The Obama administration continues to defend its right to violate the rights of the people it is supposed to govern. On August 6, Department of Justice lawyers filed an appeal in federal court against a recent ruling that temporarily enjoined section 1021 of the National Defense Authorization Act (NDAA), which gives powers to the military to indefinitely detain U.S. citizens — on U.S. soil — without charge or trial. The case, and the organizing that surrounds it, will have profound implications for basic constitutional rights, though it has been largely ignored by the mainstream media.
The so-called anti-terrorism legislation was signed on New Year’s Eve by President Barack Obama and went into effect on March 1, 2012. The NDAA had been the target of little public scrutiny in 2011, but after its passage both Congress and the Obama administration became targets of outrage among liberals and conservatives alike for the act’s alleged unconstitutionality.
On January 3, 2012, Occupy Wall Street organized a press conference on the steps of the New York Public Library, where a broad coalition of civil rights and legal groups condemned the NDAA as dangerous and unconstitutional. Activists then visited New York senators’ offices and, in a “spontaneous show of people power,” organized a flash mob in Grand Central Station to raise public awareness of the NDAA’s passage. Three were arrested for disorderly conduct. In Washington, D.C., more than 50 citizens were arrested in acts of civil disobedience at the White House in January (here and here).
As anti-NDAA sentiment spread in the blogosphere, often thanks to Occupy social media networks, the influential journalist Chris Hedges announced on January 17 that he was suing Barack Obama for infringing on his constitutionally-protected rights.
In a widely discussed article, Hedges contended that the NDAA was “a catastrophic blow to civil liberties” and that the vague and opaque wording of the law left too much room for broad interpretation of who was to be considered:
Section 1021 of the bill 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.”
Six others joined Hedges as plaintiffs in the lawsuit, including Daniel Ellsberg and Noam Chomsky. All of them expressed worry over the broad powers defined in the NDAA and how its provisions might apply to them, their work and their colleagues. Lawyers for the plaintiffs — Carl Mayer and Bruce Afran — agreed that their clients had the standing and the right to challenge the NDAA in court.
Plaintiff Tangerine Bolen, co-founder of the pro-transparency organization Revolution Truth, wrote in an a recent op-ed about the surreal nature of suing her own government:
We are fighting for due process and for the first amendment — for a country we still believe in and for a government still legally bound by its constitution. If that makes us their “enemies”, then so be it. As long as they cannot call us “belligerents,” lock us up and throw away the key — a power that, incredibly, this past week U.S. government lawyers still asserted is their right. Against such abuses, we will keep fighting.
I spoke with Alexa O’Brien, another plaintiff and a key organizer of US Day of Rage, by phone about her involvement in the case. She spoke about the relief she has felt from the experience of being able to publicly expose the government’s intimidation of activists — including herself — and the deep regard she had for her co-plaintiffs in the lawsuit. “It really is an honor to be part of such distinguished company,” said O’Brien.
Accompanying the lawsuit was an aggressive campaign to spread awareness about the consequences of the NDAA. Preliminary arguments in the class-action lawsuit were made on March 29, 2012, and were joined by days of action across the country — mostly organized by various Occupy groups — to express public opposition to the law.
Lucas Vazquez is a volunteer organizer with Revolution Truth, one of the partners providing media support for the lawsuit. Vazquez, an early planner of Occupy Wall Street who became involved with the litigation because of his concerns about government repression of the Occupy movement and other activist groups, helped organize some of the days of action in New York City that opposed the NDAA. When we spoke by phone last week, Vazquez emphasized the need for more outreach to the press.
“We’ve had good media coverage,” said Vazquez. “No one [in the media] has really denounced the lawsuit, which is giving us some degree of merit. Still, we need to continue raising awareness and giving updates to people.”
In May, Judge Katherine Forrest — an Obama appointee to the Southern District of New York — issued a temporary injunction on section 1021 of the NDAA, which prevents the government from enforcing the indefinite detention clause of the NDAA. In a panel discussion organized by Revolution Truth, lawyers, plaintiffs and other concerned persons emphasized the importance of Judge Forrest’s ruling, which ruled the NDAA unconstitutional. Still, as the case moves into the court of appeals, the struggle is far from over.
The court documents reveal an ambiguous interpretation of what the government believes its powers to be over its citizens. Glenn Greenwald, a constitutional lawyer and scholar, reported on the government’s inability — some might say refusal — to further define the categories named in section 1021 before the court. The government’s reluctance to specify the broad and vague terms such as “substantially supported” and “associated forces” highlights the legal gray area that the executive branch tries to maintain surrounding the powers under its purview.
When the hearings resumed last week in federal court, plaintiffs were hoping for a permanent injunction, but the government gave notice of appeal before Forrest issued a final ruling. Regardless, the temporary restraining order remains even as there are suspicions that the government may be in contempt of Judge Forrest’s ruling because the government says it does not track those whom it detains or for what reasons. The case will be heard in appellate court before likely heading toward the Supreme Court.
The government’s actions reveal its commitment to giving the military broad policing and detention power over U.S. citizens. Hedges, in an email after the ruling, commented that the government’s actions send a clear signal: “The Obama administration is determined to continue its assault on basic civil liberties, including due process, despite interference from the courts.”
For Alexa O’Brien, the appeal didn’t come as a surprise, and it further reveals the need for change. “I hope the judicial branch checks this kind of abomination,” she said. “The executive branch doesn’t want to give an inch. The executive has access to 16 intelligence agencies, finances, the military. We need to educate Americans about the actuality of checks and balances in the post-9/11 world.”
The ongoing litigation challenging the NDAA highlights the potential efficacy of judicial action. While the Hedges v. Obama case seems to hold the most promise for challenging the constitutionality of the NDAA — and for drawing attention to the increasing frequency of detention issues and the apparent neglect of the writ of habeas corpus — this legal approach is just one tactic for those trying to oppose the NDAA’s most troubling provisions.
Organizations like the ACLU have had success in drumming up support for counter-legislation, for example. The ACLU toolkit has model legislation that would repeal, nullify, or prevent state and local enforcement of sections 1021 and 1022 of the law. Chris Anders, senior legislative counsel at the ACLU, believes that grassroots opposition to the NDAA can lead to its eventual repeal in Congress. Anders explained in an email that Congress has noticed that “the state and local resolutions condemning the NDAA detention provisions, and prohibiting state and local officials from participating in the indefinite detention without charge or trial in the United States, have had an impact in Congress.”
The opposition is coming from across the traditional political spectrum. The Tenth Amendment Center — a libertarian organization committed to protecting states’ rights — is also promoting model legislation for state and local opposition to the NDAA. The progress of such legislation in dozens of towns, cities, and states — including resolutions in Pennsylvania, Rhode Island, Virginia, Arizona and elsewhere — can be tracked on the center’s website.
Demand Progress — a key ally in the coalition fighting against the NDAA — has worked hard to put pressure on Congress to undo the indefinite detention provision. Hundreds of thousands of emails were sent to members of Congress opposing the NDAA, as well as many phone calls, when the Smith-Amash amendment — which would have prohibited the government from indefinitely detaining U.S. citizens — was up for a vote in the House of Representatives in May 2012. The bill was ultimately defeated 237–182. Now, Demand Progress is targeting the Senate to have the provision overturned in the 2013 version of the annual NDAA.
When asked what others could do, Alexa O’Brien replied, “Organize rallies, call representatives, because they can also nullify this. People, within their communities, have other recourse to fight against this legislation.” In the meantime, she, her fellow plaintiffs and their legal team will continue their struggle in the courts.
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