by Jim Caton
The most important federal case of our lifetimes had its beginning four years ago this month. It was a case that was never heard by the Supreme Court, a case almost wholly ignored by the media, a case you have probably never heard of.
In December of 2011, President Obama signed the National Defense Authorization Act for fiscal year 2012. The NDAA is an annual appropriations statute providing the Pentagon its immense budget and is customarily rubber-stamped by Congress and the White House. Embedded in the 2012 NDAA, however, were provisions that had been a matter of some contention. Sections 1021 and 1022 identify classes of persons to be detained without charge or trial, potentially indefinitely, by the U.S. military. The list includes U.S. citizens on U.S. soil. In a signing statement appended to the bill, Obama claimed to have “serious reservations” about these provisions, yet it is he who had insisted on their inclusion in the final bill. Nevertheless, he signed the NDAA into law with assurances that he would “reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.” He signed the bill late on New Year’s eve.
Before long, both military and civilian attorneys began to raise objections to the military detention provisions of the NDAA, and on January 12, 2012, a complaint was filed in the Southern U.S. District Court of New York on behalf of journalist Chris Hedges and other plaintiffs. Hedges v. Obama claimed that the vagueness of key terms in the NDAA left open the possibility of military arrest and indefinite detention in a military prison, without disclosure of charges and without trial, of persons guilty of no more than constitutionally protected journalism and dissent. Section 1021(b)(2) of the NDAA provides for such detention of the following “covered” persons:
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.
Hedges, a Pulitzer Prize winner and formerly the Middle East bureau chief for the New York Times, had interviewed leading members of al Qaeda. Would such interviews constitute “substantial” support? Unlike “material support,” a term with legal definition, “substantial support” is not a legal term and so is open to broad interpretation. Similarly, the term “associated forces,” while it does have a legal provenance, offers no clear referent in the context of the U.S. Government’s sprawling “war on terror.” Must the association with al-Qaeda be a matter of actual contact and collaboration with the group? Or is an “associated force” potentially any person or persons “engaged in hostilities against the United States”? If so, what constitutes “hostilities”? As recent history has shown us, the U.S. government and its security forces are liable to find hostility in such constitutionally protected activities as peacefully protesting, blowing the whistle on illegal government activity, and disseminating information about that illegal activity. Think of the leaders of the Occupy encampments, or of Edward Snowden and Glenn Greenwald. It is conceivable that under the NDAA—that is, under the color of law—such people could simply disappear. Without charge. Without trial.
Hedges and his co-plaintiffs, who included Noam Chomsky and Pentagon Papers whistleblower Daniel Ellsberg, won their suit at the district-court level. Although the past fifteen years have seen an almost unanimous allegiance among the federal judiciary to the interests of the burgeoning security state, judge Katherine B. Forrest enjoined the government from enforcing the indefinite detention sections of the NDAA. On the question of section 1021’s vagueness of language, Forrest’s decision finds that “there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.” Judge Forrest also ruled that the plaintiffs had put forward “uncontroverted proof of infringement on their First Amendment rights.” Hedges and the other plaintiffs had argued, and Forrest agreed, that the vagueness of the statute’s language created a chilling effect on their freedoms of speech and association. Finally, Forrest found that section 1021 would violate unjustifiably the fifth amendment rights to due process of any individual detained under that provision. In short, Forrest found that section 1021 amounted to a broad, if unintentional, assault on the Bill of Rights. As the government’s lawyers refused to deny that the plaintiffs, in the course of their professional and political activities, could conceivably fall under the category of “covered persons,” however, it is difficult to believe that such an assault on rights is entirely unintentional.
The Obama administration immediately filed for an emergency stay of Forrest’s injunction and were granted that stay by the Second Circuit Court of Appeals. Hedges et al. then appealed to the Supreme Court, which denied certiorari in 2014.
Let us consider the implications of this case. First, in staying Forrest’s injunction the circuit court effectively erases the longstanding principle of posse comitatus, which was to guarantee civilian policing within the United States and to keep the military off our streets. As we watch our domestic police departments deliberately transformed into military units by the same federal government that has fought tooth and nail to maintain the provisions of section 1021 of the NDAA, we must understand those provisions to be part of a pattern in which a de facto state of martial law has been gradually established around us. It is the federal government that is arming our police departments with assault rifles and mine-resistant ambush-protected (MRAP) vehicles. It is the federal government that is dressing our police officers in full body armor. And it is the federal government that is promulgating surveillance drones among our police departments. The same government that monitors our phone conversations, email and internet activity. The same government that orchestrated the simultaneous dismantling of Occupy encampments from New York to Oakland. The same government that hides in plain sight its utter supplication to Goldman Sachs and the fossil fuel industry. Taken together, these considerations leave us with no other conclusion than that, call them police or National Guard, a heavily armed host operates among us, watches us, ready to mobilize at the first sign of civil unrest, however constitutionally protected those first signs may be.
Second, the core of the Bill of Rights is deceased. If our communications and associations are surveilled and assessed by the government, we are not free to speak, write or associate. I can hear a voice scoff that I am free to write this article. And so I am. But I write in the knowledge that, after Hedges v. Obama, I may have no legal recourse should I be apprehended and imprisoned. This is the meaning of a chilling effect. And should an event occur that rouses the apparatus of the security state to a state of emergency, be it a terrorist attack on U.S. soil or economic crash, a legal framework now exists to silence voices of dissent that could be seen as a threat to our corporate masters and characterized as disloyal. For proof that such repression is possible in the Free World, we need look no further than France where the government of Francois Hollande has taken advantage of the Paris terrorist attacks to institute a raft of reactionary laws, or England where opponents of the government’s plan to begin bombing in Syria have been labelled by David Cameron terrorist “sympathizers.” And under the NDAA, let us be clear, censorship can take the form of sudden military arrest and indefinite detention without warrant or trial. No fourth, fifth or sixth amendment protections. Disappearance.
Third, we should take note of the media silence with which the Hedges v. Obama case was met. While the New York Times ran an editorial early on supportive of the plaintiffs, the paper of record provided almost no reporting on the case as it moved through the courts. And a search of the archives of the major dailies throughout the country turns up almost no mention of the most important federal case of my lifetime. It may be that district court decisions do not warrant column-space in the Detroit Free Press and Los Angeles Times, but a quick search of these papers finds ample district court cases concerning the use of steroids in major league baseball. It may be that budget cuts have left the nation’s newspapers without adequate resources or savvy reporters to track significant court cases. But if we recall the government sacking of Associated Press offices in 2014, we might also entertain the possibility that editors know which stories to cover and which stories to pass on. Whatever the reason, the invisibility of a case so crucial to our freedoms and to the very character of our country certainly serves the purposes of the security state. Finally, we should consider the possibility that, while we do not see troop transports of the National Guard racing through our streets, and while we may still be permitted to read and write critically of the government in this vein, we are already living under martial law.
Sources: The National Defense Authorization Act of Fiscal Year 2012
Wired.com, text of Hedges v. Obama
Photo of Chris Hedges: alainsaffel.com
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