Judges to Review Constitutionality of NDAA Military Detention Legislation
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Judges to Review Constitutionality of NDAA Military Detention Legislation

PAUL JAY: Welcome to The Real News Network.
I’m Paul Jay in Baltimore. On Friday, September 28, a panel of three
judges will review the appeal of a ruling by a judge that said that the section of the
NDAA (that’s the National Defense Appropriation Act) that’s the section that’s been very controversial
that essentially allows for the military to detain people without trial, people in general
(that means citizens and noncitizens), if they are connected with al-Qaeda or, quote,
associated with it, whatever that means (and that’s part of what the problem is, whatever
that means)–. Well, a legal case that was launched against
this section included Chris Hedges, and he now joins us to give us an update on what’s
happening. Chris is a senior fellow at the Nation Institute. He writes a weekly column
for Truthdig. He’s an author, a best-selling author. His newest book is Days of Destruction,
Days of Revolt. Thanks very much for joining us, Chris. CHRIS HEDGES: Thank you, Paul. JAY: So where do things–first, for people
that aren’t up on the case, give us a little background, and then where are we at and what’s
happening on this panel today. HEDGES: Well, on December 31, President Obama
signed into law the National Defense Authorization Act, which included Section 1021. Section
1021 permits the U.S. government to overturn 200 years of domestic law and empower the
military to carry out policing duties, to detain American citizens, hold them in military
facilities, and strip them of due process until, in the language of that section, the
end of hostilities, which, of course, is indefinite detention. In January, the lawyers Carl Mayer and Bruce
Afran approached me about suing the president along with the defense secretary over Section
1021 of the NDAA. We brought that case before Judge Katherine Forrest in the Southern District
Court of New York. I was eventually joined in that lawsuit by six other activists, including
Noam Chomsky and Daniel Ellsberg. The last hearing on the case was in August. And in
September, Judge Forrest ruled that Section 1021 was in fact unconstitutional, and she
issued a permanent injunction. During the trial, she had issued a temporary injunction
against that law while it was being challenged in court. The Obama administration, which had appealed
the temporary injunction, filed an emergency appeal against the permanent injunction. They
first asked Judge Forrest to consider a stay, meaning the injunction would go back into
effect until it was appealed in the appellate court, which will start hearing it tomorrow,
the 28th, Friday, and she refused. They demanded an emergency stay at 9 a.m. the next morning
(they filed on Friday, and so it was 9 a.m. on Monday morning). Unfortunately, the appellate
court did issue a stay, putting that law back into effect. Now, why is it so dangerous? It expands the
power of the executive branch beyond anything we have seen, including under the authorization
to use military force act of 2001, the Patriot Act, even the FISA Amendments Act, which allows
for the warrantless wiretapping, monitoring, and eavesdropping of tens of millions of American
citizens. And we now know that all our information is being stored out in supercomputers in Utah. And the language of the section, as Judge
Forrest noted in her 112-page ruling, is very vague and very nebulous. It not only permits
the military to seize U.S. citizens who have links to al-Qaeda or the Taliban, but [links]
to what they call “associated forces”. It allows the government to seize citizens who
substantially support terrorism activity. And during the course of the trial, Alexa
O’Brien, who was one of the plaintiffs from U.S. Day of Rage, presented to the court email
correspondence back and forth from staffers at a private security firm, which–these emails,
5 million of them, had been leaked by WikiLeaks–which attempted to link U.S. Day of Rage with al-Qaeda.
And this is precisely the problem. You pass these laws in the name of the war on terror,
and then you use them to criminalize legitimate dissent, as well as criminalize groups in
opposition to the ruling elite. It’s something that we saw in the whole long, decades-long
battle against communism. It’s exactly the same kind of template. And it allows the government
to classify an entire section of the population as essentially outside legal boundaries, I
mean, to strip them of due process, strip them of their legal rights. And that’s why
this section, 1021, is so frightening. JAY: And I suppose once you have a section
like this and it’s established, you could then pass a little amendment, for example,
add Iranian Revolutionary Guard to that list, and maybe you could add some other–. HEDGES: But, you know, they don’t even need
to do that, because “associated forces” is a kind of catchall where–you know, what are
they? It’s basically anything the government decides is, you know, linked or has within
it terrorist intentions can be included. And Judge Forrest pointed that out in her opinion,
that the language was purposely so undefined as essentially to empower the government to
carry out those kinds of activities against anybody they wanted to. JAY: Now, the other part of this, which I
don’t think has had as much attention as the substantive issue of you can simply detain
people without trial, but is that the power was given to the military. I mean, you know,
you can imagine you could have said the FBI, you could have said the police that are supposed
to be doing this kind of domestic work. But we know (I mean people, those of us who are
these kind of wonks that follow this sort of thing) that military intelligence apparently
is bigger than all the other intelligence agencies put together. And now we find out
they must be extensively operating within the borders of the United States. Otherwise,
why would you need legislation that empowers you on American soil? HEDGES: Well, what was so interesting in the
leadup to this legislation–there were a couple of things. First of all, Dianne Feinstein
had proposed inserting into this section an exemption for American citizens, which both
the Democratic Party and the Obama White House rejected. Secondly, you had the secretary
of defense; you had Mueller, the head of the FBI; all of these people went up to Capitol
Hill and testified against this piece of legislation, and yet it passed anyway. And that raises the issue: why? Why was there
such an internal thrust to empower the military to carry out domestic surveillance and detention,
and, you know, on American soil, potentially on American soil? What is it that’s happening
here even when the heads of other intelligence agencies opposed it? JAY: And what do you make of the timing of
this legislation? You know, we’re, you know, more than ten years now from 9/11. You know,
by all security analysts who follow this kind of stuff, the threat level’s lower than it’s
ever been, certainly lower than it was in the years, you know, just near or after 9/11.
Yet now it comes. HEDGES: Because I don’t think that it’s aimed
at Islamic radicals. It’s aimed at domestic dissidents. That’s the point. And that threat
is rising as we watch the collapse of globalization, the long-term political paralysis on the part
of our corporate state, its inability to deal with fundamental issues that are ravaging
American families, whether that’s poverty, chronic underemployment, unemployment. All
of those issues, coupled, of course, with the effects of climate change, are leading
to a world, both within our borders and outside our borders, of tremendous instability. And
you are watching the state accrue to itself through the legal system the powers to essentially
keep people in check. And I think that’s the real reason for the NDAA. JAY: Do you think there’s also possibly another
rationale to this, without them saying so? Is this part of preparations for war with
Iran? HEDGES: I don’t think so. I don’t think this
has to do with Iran. I think this has to do with internal dissent. I think that, you know,
both the lawyers and myself feel that because they issued an emergency appeal, they reacted
so aggressively once Judge Forrest declared this section unconstitutional, they are probably
already using the NDAA. This is supposition, but probably they are holding dual Pakistan-U.S.
nationals in military facilities like Bagram, because if they weren’t using it, they could
have just filed an appeal. The problem is that once the judge declared
the law unconstitutional, if they continue to hold American citizens and deny them access
to due process, then they would be in contempt of court. And so the rapid response, the–and
it was interesting that it was the Pentagon lawyers that filed this emergency appeal.
And the issuance of an emergency stay or temporary stay until the appeal is heard I think essentially
is to cover them legally for already putting the NDAA into use. Internally, I really think
it has less to do with Iran and a lot more to do with controlling the American public. JAY: Okay. The panel meets today, essentially,
as we’re running this story. When do we expect a decision from the panel on whether or not
they’re going to find this unconstitutional? HEDGES: I don’t know, but obviously the government
wants to expedite this process. And, you know, it could be a few weeks. If the appellate
court upholds Judge Forrest’s ruling, then there’s little doubt that this will end up
in the Supreme Court very, very quickly, I mean, in probably a matter of weeks. JAY: Alright. So we’ll come back to you once
we have a decision from the panel. And we’ll obviously keep following this story. Thanks
very much for joining us, Chris. HEDGES: Thank you. JAY: And thank you for joining us on The Real
News Network.


  • alienbaroque

    The NDAA allows for the indefinite detention, without trial, of any American who aids Al-Qaeda. I can think of several people who are actively aiding Al-Qaeda right now. IN SYRIA. Their names are U.S. President Barak Obama, Joe Biden, Hilary Clinton, and Susan Rice. You could probably throw in most of the Senate and House of Representatives, especially Lindsay Graham and Joe Liberman. But who's going to arrest them? Rome is falling.

  • notthere83

    Oh give it a rest with the "unamerican" already. If what you would call "american" are ideals that are usually proclaimed to be "american" (you know – liberty, pursuit of happiness and all that stuff), the whole USA would be "unamerican". And not just today but a lot of the time throughout history. After all – when was there ever a time that all people really were considered to be born equal, when was church and state truly separate, when was freedom more important than security, etc.?

  • notthere83

    Always great to hear from Chris Hedges. I hope that whatever keeps him going will do so for a long time. And that he'll stay safe, despite things like this NDAA hanging over his head (and that of every other dissenter, obviously).

  • notthere83

    Based on your reply, probably more than you. Ignorant dipshits such as yourself make western societies (though a bit more extreme in the case of the US) what they are: ruled by ignorance towards the world because they don't care about anything but themselves. You should feel damn lucky that there are people like me, who bother to learn, think and care about others and not just themselves.

  • Josdamale

    I get the feeling this part of the NDAA is being pushed through so heavily by the Obama administration to be used against Assange and associates. But what a law and how far will it reach? What of the separation of powers between the executive and the court: the military is directly under the President and they can side step the court system by such a law?

  • Barskor1

    It is Not Associated Forces clause that is the Problem It is the "Or a Belligerent Act" part that is the killer any protest and resistance is a belligerent act Did you know that to reflexively jerk away from being grabbed by a cop is legally an ASSAULT on the cop? and so it is a Belligerent Act. Now when they can arrest you at will what Rights do you have sitting in a Prison never seeing a judge a lawyer your family without anyone being able to force your release from the government? NONE!

  • FDRstar

    President defended his action,writing that he signed the act,"chiefly because it authorizes FUNDING for the defense of the United States and its interests abroad, CRUCIAL services for service members,their families and vital national security programs that MUST be renewed.” The GOP call themselves playing hardball with the President with this act and many other programs the President tried to attain for Americans during her time of need,then leaked stories that the President is a communist.

  • Georgiana Steele-Waller

    This is Right Wing/Libertarian bullshit. This only applies in War time and war zones, NOT for normal American Citizens on American soil…get real!

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