Challenging the NDAA
"We won... for now."
by Chris Hedges

Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America.  His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle. This Coffee Coaster guest column is excerpted based on Fair Use from the Common Dreams posted column on September 17, 2012. Mr. Hedges' column concerns the recent ruling by US District Judge Katherine Forrest that the indefinite detention clauses of the National Defense Authorization Act are blatantly unconstitutional and invalid. It makes abundantly clear:

"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 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.” ...

full Hedges column here

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2012 September 2012
Copyright Chris Hedges (Common Dreams)
NDAA Detention | Due Process | Core Liberties | Civil Liberties | US Constitution | Bill of Rights