Over the past year I and other plaintiffs including Noam Chomsky and Daniel Ellsberg have pressed a lawsuit in the federal courts to nullify Section 1021(b)(2) of the National Defense Authorization Act (NDAA). This egregious section, which permits the government to use the military to detain U.S. citizens, strip them of due process and hold them indefinitely in military detention centers, could have been easily fixed by Congress. The Senate and House had the opportunity this month to include in the 2013 version of the NDAA an unequivocal statement that all U.S. citizens would be exempt from 1021(b)(2), leaving the section to apply only to foreigners. But restoring due process for citizens was something the Republicans and the Democrats, along with the White House, refused to do. The fate of some of our most basic and important rights—ones enshrined in the Bill of Rights as well as the Fourth and Fifth amendments of the Constitution—will be decided in the next few months in the courts. If the courts fail us, a gulag state will be cemented into place.
Sens. Dianne Feinstein, D-Calif., and Mike Lee, R-Utah, pushed through the Senate an amendment to the 2013 version of the NDAA. The amendment, although deeply flawed, at least made a symbolic attempt to restore the right to due process and trial by jury. A House-Senate conference committee led by Sen. John McCain, R-Ariz., however, removed the amendment from the bill last week.
“I was saddened and disappointed that we could not take a step forward to ensure at the very least American citizens and legal residents could not be held in detention without charge or trial,” Feinstein said in a statement issued by her office. “To me that was a no-brainer.”
The House approved the $633 billion NDAA for 2013 in a 315-107 vote late Thursday night. It will now go before the Senate. Several opponents of the NDAA in the House, including Rep. Morgan Griffith, R-Va., cited Congress’ refusal to guarantee due process and trial by jury to all citizens as his reason for voting against the bill. He wrote in a statement after the vote that “American citizens may fear being arrested and indefinitely detained by the military without knowing what they have done wrong.”
The Feinstein-Lee amendment was woefully adequate. It was probably proposed mainly for its public relations value, but nonetheless it resisted the concerted assault on our rights and sought to calm nervous voters objecting to the destruction of the rule of law. The amendment failed to emphatically state that citizens could never be placed in military custody. Rather, it said citizens could not be placed in indefinite military custody without “trial.” But this could have been a trial by military tribunals. Citizens, under the amendment, could have been barred from receiving due process in a civil court. Still, it was better than nothing. And now we have nothing.
"Congressional moves concerning the NDAA make it clear that Congress as a whole has no stomach for the protection of civil liberties,” said attorney Bruce Afran, who along with attorney Carl Mayer has brought the lawsuit against President Obama in which we are attempting to block Section 1021(b)(2).
The only hero so far in this story is U.S. District Judge Katherine B. Forrest of the Southern District Court of New York. Forrest in September accepted all of our challenges to the law. She issued a permanent injunction invalidating Section 1021(b)(2). Government lawyers asked Forrest for a “stay pending appeal”—meaning the law would go back into effect until the Court of Appeals for the Second Circuit issued a ruling in the case. She refused. The government then went directly to the Court of Appeals and asked it for a temporary stay while promising not to detain the plaintiffs or other U.S. citizens under the provision. The Court of Appeals, which will hear oral arguments in January, granted the government’s request for a temporary stay. The law went back into effect. If the Court of Appeals upholds Forrest’s ruling, the case will most likely be before the Supreme Court within weeks.
“President Obama should never have appealed this watershed civil rights ruling,” Mayer said. “But now that he has, the fight may well go all the way to the Supreme Court. At stake is whether America will slide more toward authoritarianism or whether the judicial branch of government will stem the decade-long erosion of our civil liberties. Since 9/11 Americans have been systematically stripped of their freedoms: Their phone calls are monitored under [George W.] Bush and Obama’s warrantless wiretapping program, they are videotaped relentlessly in public places, there are drones over American soil and the police control protesters and dissenters with paramilitary gear and tactics. As long as Obama and the leadership of both parties want the military to police our streets, we will fight. This is unacceptable, un-American and unconstitutional.”
We knew the government would appeal, but we did not expect it to act so aggressively. This means, we suspect, that the provision is already being used, most likely to hold people with U.S. and Pakistani dual citizenship or U.S. and Afghan dual citizenship in military detention sites such as Bagram. If the injunction were allowed to stand during the appeal and U.S. citizens were being held by the military without due process, the government would be in contempt of court.
Judge Forrest’s 112-page opinion is a stark explication and condemnation of the frightening erosion of the separation of powers. In her opinion she referred to the Supreme Court ruling Korematsu v. United States, which declared constitutional the government’s internment of 110,000 Japanese-Americans without due process during World War II. The 2013 NDAA, like the old versions of the act, allows similar indefinite detentions—of Muslim Americans, dissidents and other citizens.
Section 1021(b)(2) 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 section, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.” The vagueness of the language means that the plaintiffs, including those who as journalists have contact with individuals or groups deemed by the State Department to be part of terrorist organizations, could along with others find themselves seized and detained under the provision.
The corporate state knows that the steady deterioration of the economy and the increasingly savage effects of climate change will create widespread social instability. It knows that rage will mount as the elites squander diminishing resources while the poor, as well as the working and middle classes, are driven into destitution. It wants to have the legal measures to keep us cowed, afraid and under control. It does not, I suspect, trust the police to maintain order. And this is why, contravening two centuries of domestic law, it has seized for itself the authority to place the military on city streets and citizens in military detention centers, where they cannot find redress in the courts. The shredding of our liberties is being done in the name of national security and the fight against terrorism. But the NDAA is not about protecting us. It is about protecting the state from us. That is why no one in the executive or legislative branch is going to restore our rights. The new version of the NDAA, like the old ones, provides our masters with the legal shackles to make our resistance impossible. And that is their intention.