The NDAA and the Death of the Democratic State

On Wednesday a few hundred activists crowded into the courtroom of the Second Circuit, the spillover room with its faulty audio feed and dearth of chairs, and Foley Square outside the Thurgood Marshall U.S. Courthouse in Manhattan where many huddled in the cold. The fate of the nation, we understood, could be decided by the three judges who will rule on our lawsuit against President Barack Obama for signing into law Section 1021(b)(2) of the National Defense Authorization Act (NDAA).

The section permits the military to detain anyone, including U.S. citizens, who "substantially support"--an undefined legal term--al-Qaida, the Taliban or "associated forces," again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until "the end of hostilities." In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any "foreign country or entity." This is, in essence, extraordinary rendition of U.S. citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.

Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard Wednesday in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not make a decision until the spring when the Supreme Court rules in Clapper v. Amnesty International USA, another case in which I am a plaintiff. The Supreme Court case challenges the government's use of electronic surveillance. If we are successful in the Clapper case, it will strengthen all the plaintiffs' standing in Hedges v. Obama. The Supreme Court, if it rules against the government, will affirm that we as plaintiffs have a reasonable fear of being detained.

If we lose in Hedges v. Obama--and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court--electoral politics and our rights as citizens will be as empty as those of Nero's Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast.

"The stakes are very high," said attorney Carl Mayer, who with attorney Bruce Afran brought our case to trial, in addressing a Culture Project audience in Manhattan on Wednesday after the hearing. "What our case comes down to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that is ingrained in the Constitution. It was always very important in combating tyranny and building a democratic society. What the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America to detain U.S. citizens, to detain residents in the United States in military prisons. Probably the most frightening aspect of the NDAA is that it allows for detention until 'the end of hostilities.' " [To see videos of Mayer, Afran, Hedges and other participating in the Culture Project panel discussion, click here.]

Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.

But the global corporatists--who have created a new species of totalitarianism--demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed.

Robert M. Loeb, the lead attorney for the government in Wednesday's proceedings, took a tack very different from that of the government in the Southern District Court of New York before Judge Katherine B. Forrest. Forrest repeatedly asked the government attorneys if they could guarantee that the other plaintiffs and I would not be subject to detention under Section 1021(b)(2). The government attorneys in the first trial granted no such immunity. The government also claimed in the first trial that under the 2001 Authorization to Use Military Force Act (AUMF), it already had the power to detain U.S. citizens. Section 1021(b)(2), the attorneys said, did not constitute a significant change in government power. Judge Forrest in September rejected the government's arguments and ruled Section 1021(b)(2) invalid.

The government, however, argued Wednesday that as "independent journalists" we were exempt from the law and had no cause for concern. Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But he assured the court that I would be untouched by the new law as long as "Mr. Hedges did not start driving black vans for people we don't like."

Loeb did not explain to the court who defines an "independent journalist." I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department's terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be "independent"? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.

I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as "independent." They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.

Alexa O'Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention.

Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Fein. "I didn't expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say," Afran said. "This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out."

The government attempted in court last week to smear Sami Al-Hajj, a journalist for the Al-Jazeera news network who was picked up by the U.S. military and imprisoned for nearly seven years in Guantanamo. This, for me, was one of the most chilling moments in the hearing.

"Just calling yourself a journalist doesn't make you a journalist, like Al-Hajj," Loeb told the court. "He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida."

Al-Hajj, despite Loeb's assertions, was never charged with any crimes. And the slander by Loeb only highlighted the potential for misuse of this provision of the NDAA if it is not struck down.

The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.

Afran quoted the NDAA bill's primary sponsor, Sen. Lindsey Graham, R-S.C., who said on the floor of the Senate: "In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't [just] go to a political rally."

Afran told the court that Graham's statement implicitly acknowledged that U.S. citizens could be detained by the military under 1021(b)(2). "There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear," Afran told the judges.

After the hearing Afran explained: "If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute."

In speaking to the court Afran said of 1021(e): "It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?"

This was a question Judge Lohier, at Afran's urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.