We Won—For Now

Chris Hedges, the man who sued Obama over the NDAA and won, writes an article about it.  Obama has already filed an appeal

“We Won—For Now

Showdown between the president and the judiciary

By Chris Hedges

September 17, 2012 “Information Clearing House” –  In January I sued President Barack Obama over Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which authorized the military to detain U.S. citizens indefinitely, strip them of due process and hold them in military facilities, including offshore penal colonies. Last week, round one in the battle to strike down the onerous provision, one that saw me joined by six other plaintiffs including Noam Chomsky and Daniel Ellsberg, ended in an unqualified victory for the public. U.S. District Judge Katherine Forrest, who accepted every one of our challenges to the law, made her temporary injunction of the section permanent. In short, she declared the law unconstitutional.

Almost immediately after Judge Forrest ruled, the Obama administration challenged the decision. Government prosecutors called the opinion “unprecedented” and said that “the government has compelling arguments that it should be reversed.” The government added that it was an “extraordinary injunction of worldwide scope.” Government lawyers asked late Friday for an immediate stay of Forrest’s ban on the use of the military in domestic policing and on the empowering of the government to strip U.S. citizens of due process. The request for a stay was an attempt by the government to get the judge, pending appeal to a higher court, to grant it the right to continue to use the law. Forrest swiftly rejected the stay, setting in motion a fast-paced appeal to the 2nd U.S. Circuit Court of Appeals and possibly, if her ruling is upheld there, to the Supreme Court of the United States. The Justice Department sent a letter to Forrest and the 2nd Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the 2nd Circuit for an emergency stay that would lift Forrest’s injunction. This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the president and the judiciary. 

“This may be the most significant constitutional standoff since the Pentagon Papers case,” said Carl Mayer, co-lead counsel for the plaintiffs.

“The administration of President Obama within the last 48 hours has decided to engage in an all-out campaign to block and overturn an order of a federal judge,” said co-lead counsel Bruce Afran. “As Judge Forrest noted in her opinion, nothing is more fundamental in American law than the possibility that journalists, activists and citizens could lose their liberty, potentially forever, and the Obama administration has now lined up squarely with the most conservative elements of the Republican Party to undermine Americans’ civil liberties.”

The request by the government to keep the law on the books during the appeal process raises a disturbing question. If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?

“A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the U.S. and saying that DHS is looking for the Islamic leaders of these likely riots,” Afran said. “It is my view that this is why the government wants to reopen the NDAA—so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.”

The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush. Obama has refused to restore habeas corpus. He supports the FISA Amendment Act, which retroactively makes legal what under our Constitution has traditionally been illegal—warrantless wire tapping, eavesdropping and monitoring directed against U.S. citizens. He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate U.S. citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention.

Liberal apologists for Barack Obama should read Judge Forrest’s 112-page ruling. It is a chilling explication and denunciation of the massive erosion of the separation of powers. It courageously challenges the overreach of Congress and the executive branch in stripping Americans of some of our most cherished constitutional rights.

In the last 220 years there have been only about 135 judicial rulings that have struck down an act of Congress. Most of the cases involved abortion or pornography. Very few dealt with wartime powers and the separation of powers, or what Forrest in her opinion called “a question of defining an individual’s core liberties.”

Section 1021(b)(2) authorizes the military to detain any U.S. citizen who “substantially supported” al-Qaida, the Taliban or “associated forces” and then hold them in military compounds until “the end of hostilities.” The vagueness of the language, and the refusal to exempt journalists, means that those of us who as part of our reporting have direct contact with individuals or groups deemed to be part of a terrorist network can find ourselves seized and detained under the provision.

“The Government was unable to offer definitions for the phrases ‘substantially support’ or ‘directly support,’ ” the judge wrote. “In particular, when the Court asked for one example of what ‘substantially support’ means, the Government stated, ‘I’m not in a position to give one specific example.’ When asked about the phrase ‘directly support,’ the Government stated, ‘I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.’ In its pre-trial memoranda, the Government also did not provide any definitional examples for those terms.”

The judge’s ruling asked whether a news article deemed by authorities as favorable to the Taliban could be interpreted as having “substantially supported” the Taliban.

“How about a YouTube video?” she went on. “Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda?’ Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is ‘modest’ or ‘substantial?’ ”

Forrest concurred with the plaintiffs that the statute violated our free speech rights and due-process guarantees. She noted that “the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite detention; the Government refused to answer.” The judge went on to criticize the nebulous language of the law, chastising the government because it “did not provide particular definitions.” She wrote that “the statute’s vagueness falls far short of what due process requires.” 

Although government lawyers argued during the trial that the law represented no change from prior legislation, they now assert that blocking it imperils the nation’s security. It is one of numerous contradictions in the government’s case, many of which were illuminated in Forrest’s opinion. The government, she wrote, “argues that no future administration could interpret § 1021(b)(2) or the AUMF differently because the two are so clearly the same. That frankly makes no sense, particularly in light of the Government’s inability at the March and August hearings to define certain terms in—or the scope of—§ 1021(b)(2).” The judge said that “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF [Authorization to Use Military Force Act] in 2001 and to try and ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF.”

The government, in effect, is attempting to push though a law similar to the legislation that permitted the government to intern 110,000 Japanese-Americans during World War II. This law, if it comes back into force, would facilitate the mass internment of Muslim Americans as well as those deemed to “support” groups or activities defined as terrorist by the state. Calling the 1944 ruling “an embarrassment,” Forrest referred to Korematsu v. United States, which upheld the government’s internment of Japanese-Americans. 

The judge said in her opinion that the government “did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings.” She went on to write that she found “the testimony of each plaintiff credible.”

“At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2).”

The government has now lost four times in a litigation that has gone on almost nine months. It lost the preliminary injunction in May. It lost a motion for reconsideration shortly thereafter. It lost the permanent injunction. It lost its request last week for a stay. We won’t stop fighting this, but it is deeply disturbing that the Obama administration, rather than protecting our civil liberties and democracy, insists on further eroding them by expanding the power of the military to seize U.S. citizens and control our streets.

Chris Hedges, whose column is published Mondays on Truthdig, spent nearly two decades as a foreign correspondent in Central America, the Middle East, Africa and the Balkans. He has reported from more than 50 countries and has worked for The Christian Science Monitor, National Public Radio, The Dallas Morning News and The New York Times, for which he was a foreign correspondent for 15 years

This this article was first published at Truth Dig

© 2012 TruthDig.com”
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Does our Media Have the Freedom To Think?

“One of the shrewdest ways for human predators to conquer their stronger victims is to steadily convince them with propaganda that they’re still free. N.A. Scott American author, intellectual, anti-totalitarian figure.”

One wonders if all of the network correspondents also think the same things (read the same scripts) on matters of foreign policy.

How to Convince a Liberal With the Socratic Method

I was watching Senator DeMint on the Daily Show last night and I had an epiphany.  But before that, let me preface what was going on.  Jon Stewart was being uncharacteristically very rude, and clearly not willing to look inside and be wrong sometimes.  In fact, he spent the entire 30 minute interview (I found the full two part interview) attacking Mr. DeMint, always interrupting, and telling Mr. DeMint how he was wrong.  I am a fan of Mr. Stewart and usually he at least lets guests he disagrees with to actually speak.    Mr. DeMint was being extremely polite, generous, and sincere, even in the face of Mr. Stewart’s utter disregard for his book and the sweeping straw-men he kept painting the book with.

Mr. Stewart’s main argument was that what we need is good regulation, that we can cut some regulation but that we don’t need to “take a flamethrower to all regulation.”  From Mr. Stewart’s insinuations, I gathered he thinks that the constitution is an imperfect document that should not be adhered to, that we currently live in a capitalist society, that the problems with health care are due to capitalism not government interference, that the solution is more government interference, that government interference does not drive up prices in health care, and that government can administer health care better than free people among other things.  I began feeling the urge to respond for the Senator, and this is what I came up with.

“Are you perfect?”

“Is any person perfect?”

“Is government made up of people?”

“Did well intentioned imperfect people create the mess we are in today?”

“How can well intentioned imperfect people perfectly select which government to keep and which to get rid of?”

“Do you think you have the authority to decide which government powers to keep and which to get rid of?”

“Who do you trust to have that authority to make those decisions?”

“Is there a document that can make those decisions for us?”

“Does that document restrict the government or the people?”

“Do you think you are smarter than that document?”

“Do you think you can be trusted to subvert the authority of that document?”

“Who do you think should be entrusted to subvert the authority of that document?”

“Do you think government should be able to subvert that document?”

“Who do you think has more power, you or a corporation?”

“Who do you think has more influence on government policy, you or a corporation?”

“If you think a corporation has more influence on government policy, why do you think more government will save you from corporations?”

“If government did not have the power to interfere with and influence markets, how would corporations make laws that benefit them?”

“Who gave corporate banks bailouts?”

“Whose homes were foreclosed upon by big corporate bailed out banks?”

“Whose regulations created the housing bubble?”

“Which entity causes inflation?”

“Which entity claims the right to invade other sovereign states?”

“Which entity should be most restrained by the people?”

“Do you think the government should have the power to run your life?”

“Do you think the government has the right to run certain parts of your life?”

“Do you think the government should be able to decide which parts of your life it wants to run for you?”

“Is there a document that already outlines what government can and cannot do?”

“What is wrong with it?”

“If the government is allowed to subvert ‘the document’ for one thing (such as health care), what restrains it from subverting the document for other purposes?”

“If subverting the document is common practice, then is it a big deal for government to subvert the document by taking away freedom of speech, freedom of press, freedom of religion, freedom of assembly, or a right to trial?”

“If we no longer have the right to trial according to the government, are we still free?”

“Does government give us our freedoms or are they natural born?”

 

Have we Crossed The Rubicon?

Eric Peters says yes.
Article below, After reading I recommend visiting the site and reading the comments, which are equally good.

http://epautos.com/2011/12/14/we-have-crossed-the-rubicon/

“We Have Crossed the Rubicon

December 14, 2011

By

Do you suppose cows have any idea what’s coming as they’re marched down the chute? Or do they stare with bovine indifference at the tail and hind quarters in front of them, until they’re suddenly – and very briefly – startled by the man with the nail gun?

Perhaps Americans will – likewise too late – ask themselves What Happened in the very near future. Perhaps just after the midnight knock comes and they are taken away into the night.

It is not an exaggeration.

America is now on the cusp of becoming a state that does exactly such things; things exactly like the things done by 20th century horror shows such as NS Germany or Stalin’s USSR. Literally. Not “this is where it might lead” or “the tendency is similar.” Exactly, literally, the same thing. The only difference is that it awaits being done on a mass scale. But the power to do it openly – brazenly – has been asserted.

And is about to be sanctified by law.

The National Defense Authorization Act will make it official. It will confer upon the executive branch and the military (increasingly, the same things) the permanent authority to snatch and grab any person, U.S. citizens included, whom it decrees to be a “terrorist” – as defined or not by the executive or the military –  and imprison them, indefinitely, without formal charge, presentation of evidence or judicial proceeding of any kind. These “detainees” will have neither civilian rights in the civil court system, nor – crucially – even the minimal rights to due process and decent treatment conferred upon prisoners of war. (And we are allegedly “at war,” are we not?)

The language of the bill specifically includes American citizens “caught” within the borders of the United States – aka, the “battlefield.” It is claimed by sponsors that only those awful them – you know, the enemies of freedom The Chimp and his successors like to reference as they systematically gut our freedoms – need worry. But read the actual document, and be afraid. The wording is such that any shyster lawyer for the government will be able to draw up a memorandum at some point in the near future equating, say, criticism of the federal government’s policies in the Middle East with “substantially supporting” the enemies of the United States. As defined by the United States.

That is, as defined by the government.

At its whim. At the personal discretion of whomever happens to be the Maximum Leader, or even one of the ML’s duly appointed minions.

As the always excellent Matt Taibbi of Rolling Stone recently observed, what happens when some nutjob who attended a few Tea Party meetings tries to bomb a federal building? Will the Tea Party itself – and anyone who “substantially supports” it be thus transformed into an “enemy combatant”? How about the OWS protestors? How about this web site – and this author – which have on several occasions called bullshit on the federal government’s usurpations and follies? How hard will it be, really, to describe such actions – such thoughts expressed in an article or an interview – as “substantially supporting” whatever the government decides amounts to “terrorism” or the threat thereof against itself?

Surely, the door is now wide open for such an interpretation by some John Woo or Dick Cheney waiting in the wings. Prospective jefe Newtie is practically turgid at the prospect of getting his hands on such power. And there is no longer (or soon won’t be) any legal means available to contest a one-way trip to Treblinka in Topeka – or wherever it is they will send you.

Taibbi writes:

“The really galling thing is that this act specifically envisions American citizens falling under the authority of the bill. One of its supporters, the dependably-unlikeable Lindsey Graham of South Carolina, bragged that the law ‘basically says … for the first time that the homeland is part of the battlefield’ and that people can be jailed without trial, be they ‘American citizen or not.’ New Hampshire Republican Kelly Ayotte reiterated that ‘America is part of the battlefield.’ ”

Graham further stated:

“It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’ ”

The key thing being, it is entirely up to the government to decide what constitutes “helping” al Qaeda. It can be nothing more than a vague assertion. Indeed, no evidence of any kind whatsoever is necessary to “hold them as long as it takes” in order to “find intelligence” (not defined, either) by any means it wishes to employ.

As Taibbi notes:

“If these laws are passed, we would be forced to rely upon the discretion of a demonstrably corrupt and consistently idiotic government to not use these awful powers to strike back at legitimate domestic unrest.”

The Fuhrer (oops, President Obama) is about to sign this latter-day Enabling act and when he does, it will mark the moment that America’s coffin is nailed shut. The corpse has been on view since 9/11. But there was always some hope that, perhaps, it might be jolted back into life. Now we know the awful truth. Death is permanent.

And it’s coming for us.

Throw it in the Woods?

This entry was posted on December 14, 2011 at 11:50 am and is filed under Features, Politics, Slide Show. You can follow any responses to this entry through the RSS 2.0 feed.”