Question: When our politicians talk about America's freedoms and
liberties, just what are they talking about? ~~~ laserlefty
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Posted on Aug 13, 2012
By Chris Hedges
I was on the 15th floor of the Southern U.S. District Court
in New York in the courtroom of Judge Katherine Forrest last Tuesday. It was the
final hearing in the lawsuit I brought in January against President Barack Obama
and Secretary of Defense Leon Panetta. I filed the suit, along with lawyers Carl
J. Mayer and Bruce I. Afran, over Section
1021 of the National Defense Authorization Act (NDAA). We were late joined
by six co-plaintiffs including Noam Chomsky and Daniel Ellsberg.
This section of the NDAA, signed into
law by Obama on Dec. 31, 2011, obliterates some of our most important
constitutional protections. It authorizes the executive branch to order the
military to seize U.S. citizens deemed to be terrorists or associated with
terrorists. Those taken into custody by the military, which becomes under the
NDAA a domestic law enforcement agency, can be denied due process and habeas
corpus and held indefinitely in military facilities. Any activist or dissident,
whose rights were once protected under the First Amendment, can be threatened
under this law with indefinite incarceration in military prisons, including our
offshore penal colonies. The very name of the law itself—the Homeland
Battlefield Bill—suggests the totalitarian credo of endless war waged against
enemies within “the homeland” as well as those abroad.
“The essential thrust of the NDAA is to
create a system of justice that violates the separation of powers,” Mayer told
the court. “[The Obama administration has] taken detention out of the judicial
branch and put it under the executive branch.”
In May, Judge Forrest issued a temporary injunction
invalidating Section 1021 as a violation of the First and Fifth amendments. It
was a courageous decision. Forrest will decide within a couple of weeks whether
she will make the injunction permanent.
In last week’s proceeding, the judge, who appeared from her
sharp questioning of government attorneys likely to nullify the section, cited
the forced internment of Japanese-Americans during World War II as a precedent
she did not want to follow. Forrest read to the courtroom a dissenting opinion
by U.S. Supreme Court Justice Robert Jackson in Korematsu v. United States, a
ruling that authorized the detention during the war of some 110,00
Japanese-Americans in government “relocation camps.”
“[E]ven if they were permissible military procedures, I deny
that it follows that they are constitutional,” Jackson wrote in his 1944
dissent. “If, as the Court holds, it does follow, then we may as well say that
any military order will be constitutional, and have done with it.”
Barack Obama’s administration has
appealed Judge Forrest’s temporary injunction an
d would certainly appeal a
permanent injunction. It is a stunning admission by this president that he will
do nothing to protect our constitutional rights. The administration’s added
failure to restore habeas corpus, its use of the Espionage Act six times to
silence government whistle-blowers, its support of the FISA Amendment Act—which
permits warrantless wiretapping, monitoring and eavesdropping on U.S.
citizens—and its ordering of the assassination of U.S. citizens under the 2001
Authorization to Use Military Force, or AUMF, is a signal that for all his
rhetoric, Obama, like his Republican rivals, is determined to remove every
impediment to the unchecked power of the security and surveillance state. I and
the six other plaintiffs, who include reporters, professors and activists, will
most likely have to continue this fight in an appellate court and perhaps the
Supreme Court.
The language of the bill is terrifyingly
vague. It 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.” In defiance of more than 200 earlier laws of
domestic policing, this act holds that any member of a group deemed by the state
to be a terrorist organization, whether it is a Palestinian charity or a
Black Bloc anarchist unit, can be
seized and held by the military. Mayer stressed this point in the court
Wednesday when he cited the sedition convictions of peace activists during World
War I who distributed leaflets calling to end the war by halting the
manufacturing of munitions. Mayer quoted Justice Oliver Wendell Holmes’
dissenting 1919 opinion. We need to “be eternally vigilant against attempts to
check the expression of opinions that we loathe,” the justice wrote.
The Justice Department’s definition of a potential terrorism
suspect under the Patriot Act is already extremely broad. It includes anyone
with missing fingers, someone who has weatherproof ammunition and guns, and
anyone who has hoarded more than seven days of food. This would make a few of my
relatives in rural Maine and their friends, if the government so decided, prime
terrorism suspects.
Assistant U.S. Attorney Benjamin Torrance argued in court
that the government already has the authority to strip citizens of their
constitutional rights. He cited the execution of Nazi saboteur Richard
Quirin during World War II, saying the case was “completely within the
Constitution.” He then drew a connection between that case and the AUMF, which
the Obama White House argues permits the government to detain and assassinate
U.S. citizens they deem to be terrorists. Torrance told the court that judicial
interpretation of the AUMF made it identical to the NDAA, which led the judge to
ask him why it was necessary for the government to defend the NDAA if that was
indeed the case. Torrance, who fumbled for answers before the judge’s
questioning, added that the United States does not differentiate under which law
it holds military detainees. Judge Forrest, looking incredulous, said that if
this was actually true the government could be found in contempt of court for
violating orders prohibiting any detention under the NDAA.
Forrest quoted to the court Alexander Hamilton, who argued
that judges must place “the power of the people” over legislative will.
“Nor does this conclusion by any means suppose a superiority
of the judicial to the legislative power,” Hamilton, writing under the pseudonym
Publius, said in Federalist No. 78. “It only supposes that the power of the
people is superior to both; and that where the will of the legislature, declared
in its statutes, stands in opposition to that of the people, declared in the
Constitution, the judges ought to be governed by the latter rather than the
former. They ought to regulate their decisions by the fundamental laws, rather
than by those which are not fundamental.”
Contrast this crucial debate in a
federal court with the empty campaign rhetoric and chatter that saturate the
airwaves. The cant of our political theater, the ridiculous obsessions over vice
presidential picks or celebrity gossip that dominate the news industry,
effectively masks the march toward corporate totalitarianism. The corporate
state has convinced the masses, in essence, to clamor for their own enslavement.
There is, in reality, no daylight between Mitt Romney and Obama about the inner
workings of the corporate state. They each support this section within the NDAA
and the widespread extinguishing of civil liberties. They each will continue to
funnel hundreds of billions of wasted dollars to defense contractors,
intelligence agencies and the military. They each intend to let Wall Street loot
the U.S. Treasury with impunity. Neither will lift a finger to help the
long-term unemployed and underemployed, those losing their homes to foreclosures
or bank repossessions, those filing for bankruptcy because of medical bills or
college students burdened by crippling debt. Listen to the anguished cries of
partisans on either side of the election divide and you would think this was a
battle between the forces of light and the forces of darkness.
You would think
voting in the rigged political theater of the corporate state actually makes a
difference. The charade of junk politics is there not to offer a choice but to
divert the crowd while our corporate masters move relentlessly forward,
unimpeded by either party, to turn all dissent into a crime.
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