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Chis Hedges: Why I'm Suing Barack Obama

Wherein Reporter Chris Hedges makes his case for why the NDAA is violation of Civil Liberties.

With the latest National Defense Authorization Act, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism.

The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.

I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have “disappeared” into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.

Section 1031 of the bill 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.”

I met regularly with leaders of Hamas and Islamic Jihad in Gaza. I used to visit Palestine Liberation Organization leaders, including Yasser Arafat and Abu Jihad, in Tunis when they were branded international terrorists.

...

All these entities were or are labeled as terrorist organizations by the U.S. government. What would this bill have meant if it had been in place when I and other Americans traveled in the 1980s with armed units of the Sandinistas in Nicaragua or the Farabundo Marti National Liberation Front guerrillas in El Salvador? What would it have meant for those of us who were with the southern insurgents during the civil war in Yemen or the rebels in the southern Sudan?

All of this is true, and a good question to ask, but then again once you get into the weeds of it all it kinda isn't... (more over the flip).

Many people from Glenn Greenwald to the ACLU have jumped up and down all over Obama for signing this legislation. The first thing they ignore, of course, is that he had originally threaten to VETO it under it's original form, which was much, much worse than what he signed.

Originally the bill did not give the Administration any choice or leway in handling terrorism cases.  All captured detainees had to be placed in Military Detention.

Via Politico

The White House threatened on Thursday threatened a possible veto of the annual defense authorization bill if it contains language aimed at forcing Al Qaeda suspects into military custody rather than civilian courts.

Those who criticize the President for not yet closing Gitmo as he promised, have to realize that he's dealing with a Congress that is still fairly radical in how they would like to handle detainees, and with this legislation tried to require that all of them go to Gitmo.  

President Obama pushed back against that as Carl Levin explains here (at 1:31:40) , the Administration attempted to have section 1031 stricken from the bill entirely, but failing that they had it changed so that it wouldn't affect existing law one way or the other.

The new bill modifies section 1031 of the bill, as requested by the Administration, to clarify the conditions of detention of individuals captured in the course of hostilities against the United States, conducted pursuant to the 2001 Authorization to Use Military Force, the AUMF, to make sure that those provisions and that statutory basis is consistent with the existing authority which has been upheld in the courts, and neither limits nor expands the scope of activities authorized by the AUMF..

As PoliticsUSA puts it.

“The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.”

Here's more from the Lawfare Blog on this question:

Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens.  Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included.  This amendment failed.  Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other.  That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.

So I now beg the question, if section 1031 didn't change the law in relation to U.S. Citizens is Chris Hedges lawsuit even necessary?  What is the law for U.S. Citizens who commit acts of (or can be shown substantially supporting) Terrorism either Domestically or Abroad?

He argues that as a journalist he has and in the future may direct engage with persons the U.S. considers to be "Terrorists", and that section 1031 would put him at risk of becoming held as an "Enemy Combatant" if he were thought, erroneously, to be a "Supporter" of that terrorism.

Is that true?

Back to Lawfare:

So where precisely does this leave things?  Well, right where Senator Feinstein says it does.  There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone.  Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).

Let's be clear here.  Hamdi is a case where an actual U.S. Citizen was held in Gitmo after being captured in Afghanistan. He was a combatant.  The Supreme Court ruled that the Government does have the power to do this, BUT that U.S. Citizens - even when in Military custody of this type - still has the right of due process, to go before a judge and petition for Habeas relief.

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

So even if Section 1031 does do what Hedges alleges it does - that type of action has already been struck down by the SCOTUS EIGHT TO ONE!

You think that opinion is going to be reversed anytime soon?  I don't.

Back to Lawfare:

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group.  This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody.  He challenged that detention through a habeas petition, with mixed results.  Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail).

Even John Walker Lindh, the so-called "American Taliban" went to trial in Federal Criminal court and is now serving 20-years.

SCOTUS has upheld Habeas protection for detainees whether their American Citizens (Hamdi) foreign nationals (Hamdan) and even after the Congress specifically revoked Habeas under the Military Commissions Act with their Boumedien v Bush decision.

The majority found that the constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory.

If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence

Let me point out the Salim Hamdan, who was allegedly Osama Bin Laden's bodyguard and driver - is now a Free Man even after being found Guilty of "Providing Material Support" to Al Qeada.  He was transferred from Gitmo to Yemen, then released to live with his family in January of 2009.  If that guy can't be detained indefinitely after being convicted, what makes anyone think Hedges or anyone else would be?

The fact is that under current stare decisis if someone whether U.S. Citizen or not, were to be held in Military Detention, they would still have Habeas protection as guaranteed by multiple consistent SCOTUS decisions, and could not conceivably be "Indefinitely Detained".

That's simply not really possible.  Yes, mistakes could be made - people could be wrongfully arrested, and even wrongfully detained for awhile.  That's not perfect, but there is one more thing that makes it a little better.

President Obama NDAA Signing Statement. From PoliticUSA.

   In his signing statement attached to the NDAA, President Obama made it clear that the language about detentions does not apply to US citizens.

    In the second paragraph of his NDAA signing statement, Obama stated, “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.”

    The president explained why he signed the NDAA, “Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.”

So just how does Obama interpret the NDAA?

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "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." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

So the Obama position is that this new NDAA really doesn't change anything that wasn't already the law under the AUMF, or hasn't be codified by the SCOTUS.  It does not, for example, change the Posse Commitatas Act which prohibits the use of U.S. Military Forces on U.S. Soil against U.S. Citizens for Law Enforcement.

It doesn't remove the Detainee Treatment Act.  It doesn't remove our requirement to abide by Geneva.

It may be fashionable to say that Obama "sold out" the American people by signing this bill, it may even be somewhat brave for Chris Hedges to challenge it in court,  some may even resort to Character Assassination of those who defend the President on this, but it seems to me that the facts, and the current existing case law, don't really support Hedges claims.

IMO Obama didn't "sell us out", not on this one, not this time - he took a lousy horrific bill and made it tolerable.

Vyan

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