On May 16th, District Judge Katherine Forrest in Manhattan made a preliminarily ruling in favour of a group of seven civilian activists and journalists, which included Daniel Ellsberg, Noam Chomsky, Birgitta Jónsdóttir, and perhaps most prominently, former New York Times war correspondent and Pulitzer Prize winner Chris Hedges.
The plaintiffs had argued that a section of the NDAA 2012 bill, which had been signed into law by President Barack Obama late on New Year’s Eve, was in violation of “both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”1
In response, the Obama administration immediately contested the judgement, asking Judge Forrest to reconsider her ruling:
… saying that the plaintiffs lacked legal standing to challenge the law and that it was “extraordinary” for her to have restrained future military operations that might be ordered by the commander in chief during wartime.2
In case you’re not sure, by the way, the US commander in chief is the President. And yes, just like Bush, Obama obviously sees himself as a “war president”. After all, he’s still fighting that preposterous “war on terror”, which rumbles mercilessly on and on, forever and ever, as it inevitably must – “terror” being such a deliberately ill-defined adversary.
Bravely, Judge Forrest stood her ground:
As part of that request, the government said in a footnote that it was interpreting her injunction narrowly as applying only to the handful of people specifically named as plaintiffs in the lawsuit, including Chris Hedges, a journalist who interacts with terrorists as part of his reporting work, and several prominent supporters of WikiLeaks.
But on Wednesday [June 6th], Judge Forrest said that her order still stood — and that, contrary to the government’s narrow interpretation of it, her injunction applied broadly and not just to the named plaintiffs.
“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote. “This order should eliminate any doubt as to the May 16 order’s scope.”3
And then, on September 12th, Judge Forrest made permanent her order that blocked enforcement of the provision within NDAA 2012:
The permanent injunction prevents the U.S. government from enforcing a portion of Section 1021 of the National Defense Authorization Act’s “Homeland Battlefield” provisions.4
However, the Obama administration came rushing back again, and on Monday [Sept 17th] won an emergency suspension of the ruling that was now blocking their indefinite detention provisions:
The Justice Department, which represents U.S. President Barack Obama, argued the judge’s September 12 injunction barring enforcement of a portion of the National Defense Authorization Act’s “Homeland Battlefield” provisions would harm U.S. war efforts abroad. […]
Carl Mayer, a lawyer for Hedges, said Tuesday that the order was procedural and “we are confident the district court opinion will be vindicated.”5
On Tuesday [Sept 18th], Democracy Now! covered the issue of the Obama administration’s appeals against Judge Forrest’s rulings on NDAA 2012, as well as Obama’s continuing use of indefinite detention at Guantánamo.
Amy Goodman spoke to Marcy Wheeler, investigative blogger who runs the website emptywheel.net. Wheeler told her:
Just last night, the Second Circuit did issue a stay in that. So, Friday night, the judge issued an injunction saying you can’t hold anybody according to this NDAA. The government immediately said they were going to appeal. There are some interesting legal issues about whether the government appeal—should have been able to appeal, but nevertheless, judges in this country continue to say, you know, “As soon as the president says ‘national security,’ we’re going to do whatever you say.” And they did that in this case. They’ve issued—they’ve issued a stay, which means they can go ahead and use the NDAA.
And what it means is this kind of vaguely defined—the government hasn’t even been able to define it—this vaguely defined category of people who substantially support al-Qaeda, Taliban, other terrorist organizations can be indefinitely detained. U.S. citizens, Obama has said, wouldn’t be held in military custody, but there’s a lot of gray area there, and I think people are right to be concerned.
Of course, Obama is far from alone in endorsing the tyrannical and unconstitutional NDAA 2012. Here’s what presidential rival Mitt Romney had to say when asked if he would have signed the act:
Yes, I would have. And I do believe that it’s appropriate to have in our nation the capacity to detain people who are threats to this country, who are members of al-Qaeda. Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country, we have a right to take those people and put them in jail.
The highlight in bold is mine, of course, added to drew attention to what civil rights campaigners and all true constitutionalists are constantly up against – that like it or lump it, America remains at war… Romney being eager to pick up where Obama left off, as the next war president.
So these are the two guys running for office and heaven help us all! As bad as Obama has been during his four years in the White House, we can only expect Romney to be at least as bad, and judging from what we already know, a good deal worse again.
To get some measure of just how bad Romney could be, here’s Marcy Wheeler again, taking a closer look at a few of the people now installed around him:
You know, as problematic as Obama has been on things like indefinite detention, when you look at Romney’s aides, they’ve got people like Cofer Black6, who really invented the counterterrorism program that we’ve been using since 9/11. You’ve got Steven Bradbury”7, who was one of the writers of the—
Amy Goodman: Cofer Black, who used to be an official with Blackwater.
Yeah, he went from the CIA to the State Department to Blackwater. But he’s the guy who invented targeted killing, who invented torture, who invented—I mean, he’s the architect of our entire counterterrorism program—top Mitt Romney aide. You’ve got Tim Flanigan8, who’s another one of the architects of the torture program. So, if you you look at the people who are close to Mitt Romney, and if you look at what he said—he’s also said that he thinks we should bring back torture—it’s clear that, if anything, he’s going to be worse than Obama on these issues. We don’t—we don’t have a great choice on these issues at the top of the ticket in November.
Nothing can really change in America until the “war on terror” is officially ended. A ‘war’ that is without any sense or direction, although undoubtedly useful when it comes to justifying the old wars, and with the dangerous potential for sparking new ones: Iran, very evidently, now in the cross-hairs. And aside from keeping the war machine ticking over, the “war on terror” also continues to provide cover for the escalating assault against all of our individual rights and freedoms – so perfectly encapsulated in the current legal battle taking place over NDAA 2012.
“The war against terror is like the war against dandruff, I mean it’s a metaphor. It doesn’t mean anything…” said the late Gore Vidal, but in truth it’s even less meaningful than that, since when it comes to dandruff we at least know what we’re looking for.
For further information about NDAA 2012 and the Hedges vs Obama legal battle visit www.stopndaa.org
Click here to read more of the transcript or to watch the interview on the Democracy Now! website.
Carl Mayer, an attorney with The Mayer Law Group and legal counsel for the plaintiffs in the case, spoke with Russia Today on September 14th:
In brief, Mayer says:
“[The Obama administration] plan to appeal this to the Second Circuit and probably ultimately to the Supreme Court. We think this is ill advised because it contradicts President Obama’s campaign statements, it contradicts his criticism of his own legislation in his signing statement and he knows, as a former constitutional law professor, that this is wholly unconstitutional.” […]
“Because the language is so vague in this law,” Mr. Mayer explains, “if any journalist or activist is seen as reporting or offering opinions about groups that could somehow be linked not just to al-Qaeda but to any opponent of the United States or even opponents of our allies” they could be imprisoned indefinitely.
“I think they are ill advised to appeal this at all,” he tells Russia Today. “The Obama administration has now lost three times. They lost the temporary injunction, they lost the motion for reconsideration and they lost the hearing for permanent injunction. I say three strikes and you’re out.”
Click here to read a more complete transcript or to watch the interview on the Russia Today website.
1 From an article entitled “Federal court enjoins NDAA: An Obama-appointed judge rules its indefinite detention provisions likely to violate the 1st and 5th Amendments”, written by Glenn Greenwald, published in Salon on May 16, 2012. http://www.salon.com/2012/05/16/federal_court_enjoins_ndaa/
2 From an article entitled “Detention Provision Is Blocked”, written by Charlie Savage, published in the New York Times on June 6, 2012. http://www.nytimes.com/2012/06/07/us/terrorism-detention-provision-is-blocked.html
4 From an article entitled “US judge’s rule protects reporters, activists in their Middle East work”, written by Basil Katz, published by Reuters on September 12, 2012. http://in.reuters.com/article/2012/09/12/usa-security-lawsuit-idINL1E8KCI8N20120912
5 From an article entitled “Government wins temporary freeze of military detention order”, published by Reuters on September 18, 2012. http://www.reuters.com/article/2012/09/18/us-usa-security-lawsuit-idUSBRE88H0X020120918
6 If Mitt Romney wins the presidency, his trusted man inside the intel community will almost certainly be Cofer Black, a retired CIA officer best known for running the agency’s counterterrorism center on 9/11. […] Early in his career, Black was credited with doing much of the street work that led to France’s apprehension in Khartoum, Sudan, of the master terrorist known as Carlos the Jackal. After the 9/11 attacks, according to Bob Woodward’s first book in his series about the Bush presidency, it was Black who briefed the president on the CIA’s war plan for Afghanistan. He’s also the guy who promised to leave al Qaeda’s operatives with “flies walking across their eyeballs.”
Taken from an article entitled “Meet Mitt Romney’s Trusted Envoy to the Dark Side, Cofer Black”, written by Eli Lake, published in The Daily Beast on April 11, 2012. http://www.thedailybeast.com/articles/2012/04/11/meet-mitt-romney-s-trusted-envoy-to-the-dark-side-cofer-black.html
7 “Steven G. Bradbury is one of three Bush administration lawyers who signed memos enabling the Central Intelligence Agency to use harsh interrogation methods on terrorism suspects. […] The first of the memos, from August 2002, was signed by Jay S. Bybee, who oversaw the Office of Legal Counsel, and gave the C.I.A. its first detailed legal approval for waterboarding and other harsh treatment. Three others, signed by Mr. Bradbury, sought to reassure the agency in May 2005 that its methods were still legal, even when multiple methods were used in combination, and despite the prohibition in international law against “cruel, inhuman or degrading” treatment. Mr. Bradbury was serving as the acting head of the Justice Department’s Office of Legal Counsel.”
Taken from an article published by the New York Times and updated on April 22, 2009.
8 “The torture memos recently released by the Obama administration have focused interest on three of their authors: John Yoo, Jay Bybee, and Steven Bradbury. However, there’s another lawyer involved in the creation of the torture memos whose name hasn’t yet come into the discussion — Timothy Flanigan.
Flanigan did not work for the Justice Department’s Office of Legal Counsel like the others. He was a deputy to then-White House Counsel Alberto Gonzales in 2001-02, when he helped craft some of the earliest justifications for the use of waterboarding and other forms of torture”
Taken from an article entitled “Timothy Flanigan: The torture memo lawyer no one is mentioning”, written by Muriel Kane, published in The Raw Story on April 22, 2009. http://rawstory.com/news/2008/Timothy_Flanigan_The_torture_memo_lawyer_0422.html