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Forum Post: Criminalizing Dissent - Indefinite Detention Law Update by Chris Hedges

Posted 2 years ago on Aug. 14, 2012, 1:38 a.m. EST by TrevorMnemonic (5827)
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"I was on the 15th floor of the Southern U.S. District Court in New York in the courtroom of Judge Katherine Forrest last Tuesday. It was the final hearing in the lawsuit I brought in January against President Barack Obama and Secretary of Defense Leon Panetta. I filed the suit, along with lawyers Carl J. Mayer and Bruce I. Afran, over Section 1021 of the National Defense Authorization Act (NDAA). We were late joined by six co-plaintiffs including Noam Chomsky and Daniel Ellsberg.

This section of the NDAA, signed into law by Obama on Dec. 31, 2011, obliterates some of our most important constitutional protections. It authorizes the executive branch to order the military to seize U.S. citizens deemed to be terrorists or associated with terrorists. Those taken into custody by the military, which becomes under the NDAA a domestic law enforcement agency, can be denied due process and habeas corpus and held indefinitely in military facilities. Any activist or dissident, whose rights were once protected under the First Amendment, can be threatened under this law with indefinite incarceration in military prisons, including our offshore penal colonies. The very name of the law itself - the Homeland Battlefield Bill - suggests the totalitarian credo of endless war waged against enemies within "the homeland" as well as those abroad.

"The essential thrust of the NDAA is to create a system of justice that violates the separation of powers," Mayer told the court. "[The Obama administration has] taken detention out of the judicial branch and put it under the executive branch."

In May, Judge Forrest issued a temporary injunction invalidating Section 1021 as a violation of the First and Fifth amendments. It was a courageous decision. Forrest will decide within a couple of weeks whether she will make the injunction permanent.

In last week's proceeding, the judge, who appeared from her sharp questioning of government attorneys likely to nullify the section, cited the forced internment of Japanese-Americans during World War II as a precedent she did not want to follow. Forrest read to the courtroom a dissenting opinion by U.S. Supreme Court Justice Robert Jackson in Korematsu v. United States, a ruling that authorized the detention during the war of some 110,00 Japanese-Americans in government "relocation camps."

"[E]ven if they were permissible military procedures, I deny that it follows that they are constitutional," Jackson wrote in his 1944 dissent. "If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it."

Barack Obama's administration has appealed Judge Forrest's temporary injunction and would certainly appeal a permanent injunction. It is a stunning admission by this president that he will do nothing to protect our constitutional rights. The administration's added failure to restore habeas corpus, its use of the Espionage Act six times to silence government whistle-blowers, its support of the FISA Amendment Act - which permits warrantless wiretapping, monitoring and eavesdropping on U.S. citizens - and its ordering of the assassination of U.S. citizens under the 2001 Authorization to Use Military Force, or AUMF, is a signal that for all his rhetoric, Obama, like his Republican rivals, is determined to remove every impediment to the unchecked power of the security and surveillance state. I and the six other plaintiffs, who include reporters, professors and activists, will most likely have to continue this fight in an appellate court and perhaps the Supreme Court.

The language of the bill is terrifyingly vague. It defines a "covered person" - one subject to detention - as "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 forces." The bill, however, does not define the terms "substantially supported," "directly supported" or "associated forces." In defiance of more than 200 earlier laws of domestic policing, this act holds that any member of a group deemed by the state to be a terrorist organization, whether it is a Palestinian charity or a Black Bloc anarchist unit, can be seized and held by the military. Mayer stressed this point in the court Wednesday when he cited the sedition convictions of peace activists during World War I who distributed leaflets calling to end the war by halting the manufacturing of munitions. Mayer quoted Justice Oliver Wendell Holmes' dissenting 1919 opinion. We need to "be eternally vigilant against attempts to check the expression of opinions that we loathe," the justice wrote.

The Justice Department's definition of a potential terrorism suspect under the Patriot Act is already extremely broad. It includes anyone with missing fingers, someone who has weatherproof ammunition and guns, and anyone who has hoarded more than seven days of food. This would make a few of my relatives in rural Maine and their friends, if the government so decided, prime terrorism suspects.

Assistant U.S. Attorney Benjamin Torrance argued in court that the government already has the authority to strip citizens of their constitutional rights. He cited the execution of Nazi saboteur Richard Quirin during World War II, saying the case was "completely within the Constitution." He then drew a connection between that case and the AUMF, which the Obama White House argues permits the government to detain and assassinate U.S. citizens they deem to be terrorists. Torrance told the court that judicial interpretation of the AUMF made it identical to the NDAA, which led the judge to ask him why it was necessary for the government to defend the NDAA if that was indeed the case. Torrance, who fumbled for answers before the judge's questioning, added that the United States does not differentiate under which law it holds military detainees. Judge Forrest, looking incredulous, said that if this was actually true the government could be found in contempt of court for violating orders prohibiting any detention under the NDAA.

Forrest quoted to the court Alexander Hamilton, who argued that judges must place "the power of the people" over legislative will.

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power," Hamilton, writing under the pseudonym Publius, said in Federalist No. 78. "It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

Contrast this crucial debate in a federal court with the empty campaign rhetoric and chatter that saturate the airwaves. The cant of our political theater, the ridiculous obsessions over vice presidential picks or celebrity gossip that dominate the news industry, effectively masks the march toward corporate totalitarianism. The corporate state has convinced the masses, in essence, to clamor for their own enslavement. There is, in reality, no daylight between Mitt Romney and Obama about the inner workings of the corporate state. They each support this section within the NDAA and the widespread extinguishing of civil liberties. They each will continue to funnel hundreds of billions of wasted dollars to defense contractors, intelligence agencies and the military. They each intend to let Wall Street loot the U.S. Treasury with impunity. Neither will lift a finger to help the long-term unemployed and underemployed, those losing their homes to foreclosures or bank repossessions, those filing for bankruptcy because of medical bills or college students burdened by crippling debt. Listen to the anguished cries of partisans on either side of the election divide and you would think this was a battle between the forces of light and the forces of darkness. You would think voting in the rigged political theater of the corporate state actually makes a difference. The charade of junk politics is there not to offer a choice but to divert the crowd while our corporate masters move relentlessly forward, unimpeded by either party, to turn all dissent into a crime.

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[-] 3 points by beautifulworld (21378) 2 years ago

This is the stuff we should be talking about. Kudos to Chris Hedges for his work on this issue.

[-] 3 points by gnomunny (6614) from St Louis, MO 2 years ago

Yep.

[-] 1 points by beautifulworld (21378) 2 years ago

And here's a good excerpt from the piece"

"Contrast this crucial debate in a federal court with the empty campaign rhetoric and chatter that saturate the airwaves. The cant of our political theater, the ridiculous obsessions over vice presidential picks or celebrity gossip that dominate the news industry, effectively masks the march toward corporate totalitarianism. The corporate state has convinced the masses, in essence, to clamor for their own enslavement."

[-] 2 points by DKAtoday (26518) from Coon Rapids, MN 2 years ago

Gotta love how thorough the brain washing has been ( not really it is scary to say the least).

[-] 2 points by beautifulworld (21378) 2 years ago

True.

[-] 1 points by DKAtoday (26518) from Coon Rapids, MN 2 years ago

At least some people seem to be awakening from the trance - it's a slow go when you have to battle MSM and the idiot box.

[-] 0 points by TrevorMnemonic (5827) 2 years ago

Very scary.

[-] 1 points by TrevorMnemonic (5827) 2 years ago

Chris Hedges is a great mind! Great excerpt! I hope all the people will see the real truth one day.

[-] 2 points by beautifulworld (21378) 2 years ago

Never give up, Trevor. Thanks for all the good work you do here.

[-] 1 points by shadz66 (19985) 2 years ago

Thanx for your critical highlight and heads up which allows me to (hopefully forgivably) repeat that our lack of responsibility for 'The Problem' does NOT absolve us all collectively from being responsible for 'The Solution'. As Hedges shows, once the people are conditioned to embrace measures of Wall Street success as measures of their own well-being - they are easily recruited as foot soldiers in Wall Street’s relentless campaign to advance policies that support its control of money and thus its hold on almost all aspects of The Peoples' lives !

For far too long, Americans have allowed Wall Street to play them as 'marks' in a confidence scam of audacious proportions. Then they wonder at their seeming utter powerlessness to deal with job losses, depressed wages, mortgage foreclosures, political corruption and the plight of their children as they graduate into Debt Bondage !!

OWS has focused national and global attention on the source of the problem. Now it’s time for action to bust the Wall Street banking corporations, cartels and trusts, 'replace the current Wall Street 'banking system' with a 'Main Street Banking System' and take back America from the rule by 'The Evil, Wall Street Bankster Parasites' !!!

'Corporate Personhood' as practised by The Bankster Corporations is the height of the pinnacle of folly and evil. The citizens must vociferously question the legal basis of 'corporate personhood and the very notion of corporate 'limited liability' & with your excellent and very simple idea of mass marches on The SCOTUS, which has practical and strategic value especially if repeated with ever increasing numbers.

per aspera ad astra et dum spiro, spero ...