There’s a kind of grim humour about the proceedings in the lawsuit that Chris Hedges and others have brought against President Obama (see my post about the lawsuit here). Chris Hedges & Co believe that certain sections of The National Defense Authorization Act 2012 (NDAA) allow for the indefinite detention of American citizens without trial, which obviously denies First and Fifth Amendment rights. It’s not my intention to clog-up this post with legal stuff. However, in order to understand what Hedges & Co and Obama/US Government are arguing about, you need to see the relevent part of Section 1021 of NDAA 2012. The bold bits are mine:
(b) COVERED PERSONS.—A covered person under this section
is any person as follows:
(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001,
or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may
include the following:
(1) Detention under the law of war without trial until
the end of the hostilities
Hedges & Co are arguing that Section 1021(b)(2) contains language that is both broad and vague. What does “associated forces” and “substantial support” mean? (remember, something that’s written into law has to be very clearly defined, and on Capitol Hill they have teams of lawyers to do this) Who decides what construes “associated forces” and what “substantial support” actually is? What does “until the end of the hostilities” actually mean in the context of an endless ‘war on terror’? Hedges & Co believe this vague language leaves many people, including journalists, war correspondents, out-spoken activists and serious critics of US government foreign policy in real danger of harm and a fundamental loss of constitutionally guaranteed rights.
The case was originally heard in May, when District Judge Katherine Forrest ruled that Section 1021(b)(2) appeared to be unconstitutional. The Obama/US Government lawyers appealed against the ruling. On September 12th, Judge Forrest gave her final ruling, saying that Section 1021(b)(2) of the National Defense Authorization Act was definitely unconstitutional. During the 12th September hearing, Judge Forrest kept trying to get the Obama/US Government lawyers to define what these terms actually mean, in exchanges such as this:
Judge Forrest: Give me an example. Tell me what it means to substantially support associated forces.
Government: I’m not in a position to give specific examples.
Court: Give me one.
Government: I’m not in a position to give one specific example.
Judge Forrest: What does ‘directly supported’ mean?
Government: We have not said anything about that in our brief.
Court: What do you think it means?
Government: . . . your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, ‘substantial support’ that I have not thought through exactly and we have not come to a position on what ‘direct support’ and what that means.
Bear in mind that the lawyers acting for Obama and the US Government are highly skilled and highly paid. To put such vague language into a law could only be deliberate (Obama, who signed off the NDAA 2012 last New Year’s Eve, studied law at Harvard and is an expert on the American constitution). Ruling a federal law illegal is a big deal, so Judge Forrest kept trying to get the government lawyers to define “substantially supported”, such as by asking them if someone posting a YouTube video of a Taliban leader could be construed as ‘substantially supporting’ the enemy. Each time the government lawyers refused to give an answer. As part of the permanent injunction, Judge Forrest wrote: “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”
Within hours of Judge Forrest’s ruling, the Obama/US Government lawyers filed an appeal to the 2nd Circuit Court of Appeals; and that’s where it is at the moment. It will no doubt end-up in the Supreme Court, which will have the final say. It’s important to remember that while all this legal wrangling is going on, Section 1021 of the NDAA 2012 still stands as a law.
The National Defense Authorization Act is a law that is passed each year by Congress. The NDAA sets out military expenditure for the coming year, and often contains other provisions, such as detaining people indefinitely without trial. It should be noted that both Republicans and Democrats voted overwhelmingly for the NDAA 2012. The NDAA 2013 is going through Congress as I write, and it contains exactly the same section about indefinite detention (the NDAA 2013 also gives the framework for a war with Iran). Once again, the millionaires on Capitol Hill are voting for it overwhelmingly. There’s every likelihood that Section 1021 of the NDAA has nothing to do with combatting terrorism, and everything to do with a banking sector that’s wrecked the economy. The peasants are revolting and the millionaires on Capitol Hill need to be able to lock them up.
If I were an American citizen I would be very, very worried.