Chris Hedges Responds to NDAA Defeat, "It is a black day for those who care about liberty"

[Catherina]

Chris Hedges Responds to NDAA Defeat, Says It’s a ‘Black Day’ for Liberty

Posted on Jul 17, 2013
AP/Jacquelyn Martin

Holding a single flower each, two protesters wearing black hoods and orange jumpsuits take part in a demonstration in front of the White House.

The U.S. Court of Appeals for the 2nd Circuit has dealt a terrible blow to Chris Hedges, Daniel Ellsberg, Noam Chomsky and the other activists and journalists suing to prevent the indefinite military detention of American citizens.

Sections 1021 and 1022 of the National Defense Authorization Act for 2012 would allow the military to detain indefinitely persons who are deemed to consort with terrorists or those who commit “belligerent acts” against the United States. Journalists, whose job it is to do just that, would undoubtedly qualify, Hedges has argued.

...

Here is what Hedges wrote after Wednesday’s decision:

"This is quite distressing. It means there is no recourse now either within the Executive, Legislative or Judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights. It means that the state can use the military, overturning over two centuries of domestic law, to use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers. States that accrue to themselves this kind of power, history has shown, will use it. We will appeal, but the Supreme Court is not required to hear our appeal. It is a black day for those who care about liberty."

You can read the court’s decision here.

http://www.truthdig.com/eartotheground/item/chris_hedges_responds_to_ndaa_defeat_20130717/?utm_source=twitterfeed&utm_medium=twitter#below

[daleanime]

1. Our fight is definitely up hill...

[Mojorabbit]

2. This is distressing news. nt

[chimpymustgo]

4. Isn't it all? Every hour of every day. What can we do?

[geek tragedy]

3. Jesus, what a drama queen.

The court held that Section 1021 doesn't authorize the President to detain American citizens, lawful resident aliens or people captured or arrested within the US.

That's a good result from a civil liberties perspective.

Per the opinion regarding Hedges et al "Section 1021 says nothing at all about the authority of the government to detain citizens. There simply is no threat whatsoever that they could be detained pursuant to that section."

In other words, the court is ruling that the government can't detain citizens and use Section 1021 as its justification.

[99th_Monkey]

30. The Court turning a blind eye to this bad law is not the same as annulling it.

If what you say is true, then why do you think Chris Hedges, Ellsberg, et. al. are still expressing
concern about the NDAA?

Oh snap! never mind, I forgot.

They must all be "drama queens".

[geek tragedy]

43. Yes, drama queens.

The court ruled that the NDAA can't be used against them, and they're bleating as if the opposite were true.

[99th_Monkey]

46. Thank you for your "expert advice"

on who's a "drama queen" and who isn't.

Please be assured, I will take it into advisement, considering the
source, or lack thereof.

[geek tragedy]

50. I do know to read a legal opinion.

Unlike every single person complaining here.

[Maedhros]

49. Why is it that you object to EVERY criticism of the security state?

Why is it that you reserve your sneering for those who express concern with our Constitutional rights?

[geek tragedy]

52. This opinion is not pro security state.

I object to false information being spread like manure.

If you had bothered to read the decision and think for yourself rather than outsourcing that function to Hedges, you would have learned that the court ruled that THE NDAA DOES NOT AUTHORIZE THE DETENTION OF ANERICAN CITIZENS.

That is its explicit ruling.

Somehow, a ruling that the NDAA doesn't authorize detention is being mischaracterized as pro security state.

[Maedhros]

77. Your claim RE: the NDAA has been disputed by a number of people.

So, instead of listening to THEM, I should just trust YOU? Your interpretation of the "explicit ruling" is somehow more reliable than that of the ABA or journalists such as Glenn Greenwald who have proven legal credentials?

The NDAA needs to be undone, even if it only applies to non-citizens. Indefinite detention in the absence of charges is not congruent with a functioning democracy.

[geek tragedy]

85. Read the opinion yourself.

Section 1021 says nothing at all about the authority of the government to detain citizens. There simply is no threat whatsoever that they could be detained pursuant to that section.

More:

Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds nor subtracts from whatever authority would have existed in its absence.

Even more:

Plaintiffs appear to contend that, even if Section 1021 is not applicable to Hedges and O'Brien, the wording of Section 1021(e) seems to "assume" that citizens may be detained if they have substantially supported al-Qaeda and that Hedges and O'Brien therefore have standing to challenge it. We disagree. There is nothing in Section 1021 that makes any assumption about the government's authority to detain citizens under the AUMF. Rather, Section 1021(e) quite specifically makes clear that the section should not be construed to affect in any way existing law or authorities relating to citizen detention, whatever those authorities may provide

.


http://legaltimes.typepad.com/files/hedges.pdf

Who are you going to believe, Hedges or your own lying eyes?

[Maedhros]

92. I can't argue with the court's ruling

other than to say that (like all court rulings) it could be appealed.

The court cites the vagueness of the language of Section 1021 and interprets it to not grant the expanded powers objected to by the plaintiffs. However other legal experts from the ABA and ACLU interpret it the opposite way.

For my own part, I believe that people are focusing only on the potential detention of American citizens and are ignoring the detention of non-citizens. People are under the mistaken assumption that the Constitution grants its rights and protections only to American citizens. This is an incorrect view, IMHO. The Constitution does not grant rights to citizens, it imposes conditions and restrictions on the government. It is wrong to detain anyone indefinitely without due process, American citizen or not. "Because Terrorism" is not a sufficient cause to do so.

I also object to this ruling's use of the tried-and-true dodge which we have seen over and over again: denying standing to non-citizen plaintiffs because they cannot prove that the law may harm them.

[geek tragedy]

93. Thoughtful response. A few points in return:

1) The ACLU actually agrees with the court's conclusion re: detention of US citizens:

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States.

http://www.aclu.org/indefinite-detention-endless-worldwide-war-and-2012-national-defense-authorization-act

2) A court's opinion is more than, er, an opinion. It becomes part of the law itself. The 2nd Circuit's interpretation of the law is binding. It appears to me that the appeals court went further than it had to in denying standing--it could have said "merely speculative" and left it at that. Instead, they said no standing and then ruled that the law was essentially harmless--essentially the 2nd circuit defanged the NDAA when they didn't have to.

3) Re: non-citizens, note that the court also held that the NDAA is irrelevant to lawful resident aliens and anyone else captured or arrested inside the US. Essentially, all that's left are non-citizens grabbed outside the US. This includes everyone from a poor innocent schlub kidnapped by the CIA from his home to battlefield detainees in Afghanistan. So, no one size fits all there.

4) The standing requirement is as old as the constitution itself--essentially there has to be a real case or controversy for the court to entertain arguments, not speculation. Of course, conservative justices are more in favor of it, since that shuts down citizens' efforts at restraining the government and especially corporations.

[Maedhros]

96. Good points.

I'm still left with the question of "why?" If the NDAA does not grant the powers claimed by the plaintiffs, then why was it created? It's redundant (cf. the AUMF).

[geek tragedy]

97. Because in 2011 the Republicans were in "Obama is too weak on terrorists"

mode and wanted him to be even more militaristic on the subject (yes, they actually believed that), and liberals/Democrats were trying to water down the odious language the Republicans were pushing. Note that Section 1022 REQUIRES, not authorizes, the President to put some detainees in military custody, not the criminal justice system.

Of course, now the Republicans are in "Obama is an iron fisted dictator" mode and worry about him droning them in church . . .

There was really no point to it.

The real question is when do they get around to fixing the 2001 AUMF. With the Republicans worried about the Obamastapo raiding their gun shows, there may be an opportunity.

[Maedhros]

98. The AUMF needs to be repealed

and Democrats as a whole have got to stop worrying about pissing off Republicans.

[geek tragedy]

99. Politically, they absolutely don't need to worry about it.

However, for governing they do, since Repugs control the House.

AUMF should have had a sunset date from the get-go. It wasn't a blank check, it was a credit card with no expiration date.

[boilerbabe]

39. oh.it's you.

[randome]

41. Damn.

That's deep.
[hr][font color="blue"][center]I'm always right. When I'm wrong I admit it.
So then I'm right about being wrong.[/center][/font][hr]

[tiny elvis]

44. tag team makes it a florin nt

[questionseverything]

63. ,,

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

[geek tragedy]

64. That means section 1022, like section 1021, does not

apply to US citizens. Ergo, it can't be invoked to detain US citizens.

[questionseverything]

65. not required is what it says

eom

[geek tragedy]

69. 1022 is a requirement, not an authorization. nt

[pscot]

100. we can't know what interpretation

some secret court or future administration may place on those words. Why leave a loaded gun lying around?

[geek tragedy]

101. The loaded gun is the 2001 AUMF, which Congress should repeal or amend substantially nt

[limpyhobbler]

79. right this is what we were all debating on here when it was first written.

By itself it's one thing, not a requirement, but still seems open to interpretation.

But when this is stacked on top of earlier court rulings like Hamdi v. Rumsfeld, these sections can be interpreted quite differently.

The executive can't really be trusted to operate in the grey undefined areas of the law, at all. If there is any inch open for abuse, they will undoubtedly use that inch.

[sabrina 1]

71. Lol, there you go again. The president claims to have the right to order the killing of an

American citizen, and so far has done so twice. A teenager, another dead teenager who has received little media attention, at least for now. But you are claiming he cannot detain US Citizens, after labeling them 'enemy combatants'?

Sure, 'we have nothing to worry about'. I love talking to people, and have done so for a decade now, who have zero concerns about what has happened to our system of justice since 9/11. Were you always a defender of the surveillance and security state?

All these 'laws' that were passed using fear of terror as a reason for their existence, were supposed to be 'temporary' and we elected Democrats, in case you didn't know this, to put an end to them as they ARE a huge THREAT to our FREEDOMS. More of a threat than any terrorist.

There hasn't been and could not be, enough DRAMA over these violations of our Constitutional rights, so you need to get used to it, there's going to be plenty of Drama until they are GONE.

[geek tragedy]

72. The NDAA does not authorize the detention of American

citizens.

The plain language of the NDAA says it doesn't. The ACLU has always maintained that position.

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States.

http://www.aclu.org/indefinite-detention-endless-worldwide-war-and-2012-national-defense-authorization-act

The federal judiciary has now confirmed it as a matter of law and fact.

[sabrina 1]

73. No, it has not said any such thing. It defers to the AUMF by NOT being specific, and under the AUMF

three US Citizens have already been detained, militarily. There is nothing in the NDAA that prevents the President from detaining US Citizens militarily.

These 'laws' put in place by a war criminals should be rescinded, they are an assault on Democracy, they have been argued throughout the Bush years with Democrats opposing them and even some smarter Republicans.

We did not elect Democrats to keep these War Criminal laws in place, we elected Democrats to get rid of them. That isn't happening, Obama is strengthening many of them.

We are ALL threatened by these dangerous laws and kudos to those, like Hedges, who are doing their duty as citizens unlike Congress, and trying to get rid of them. Which will eventually happen because people won't stop until it does happen.

[geek tragedy]

74. So, we agree that the NDAA is irrelevant to the

President's authority to detain Americans.

Since that is the case, there is no argument that Hedges could be detained by virtue of the NDAA.

[sabrina 1]

75. No, we do not agree. The NDAA does not forbid the executive branch from detaining

American Citizens, as you are claiming, from military detention. Where does it forbid the Chief Executive from detaining US Citizens militarily?

[geek tragedy]

76. It neither authorizes nor prohibits detention of

US citizens. Ergo, irrelevant.

Per the court of appeals:

Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds nor subtracts from whatever authority would have existed in its absence.

[ProSense]

5. NDAA Indefinite Detention Lawsuit Thrown Out

NDAA Indefinite Detention Lawsuit Thrown Out

But in a 60-page ruling, a three judge panel from the Second Circuit Court of Appeals found that the plaintiffs lacked legal status to mount a challenge to the law because it "says nothing at all about the President’s authority to detain American citizens," and that two non-citizens who were also plaintiffs had failed to show that they were actually threatened with detention.

http://www.huffingtonpost.com/2013/07/17/ndaa-indefinite-detention-lawsuit_n_3612354.html

Wasn't this made clear before?

[geek tragedy]

6. The court gave the plaintiffs EXACTLY THE RULING THEY WANT.

The court ruled that the President can't seize American citizens and cite the NDAA as justification.


Hedges is just trolling for attention. He's trying to argue that the statute does give Obama the authority to detain him. The court said "no it doesn't, they can't detain you."

[AllINeedIsCoffee]

9. Yeah, but that doesn't generate traffic to PoopDig. nt

[geek tragedy]

12. People are so desperate to be oppressed that they

get upset when it's revealed they're not a victim.

[Laelth]

7. k&r for exposure. This is very important. n/t

-Laelth

[indepat]

8. Big brother will not tolerate the impertinence of anyone trying to halt the steady assault on our

civil liberties and most basic Constitutional rights. After all, big brother knows which of our rights must be eviscerated to keep us safe from terraists and elected and high-ranking appointed officials know their sworn oaths of office to preserve and protect the Constitution of the United States must be abrogated if we are to be kept safe from terra. Moreover, those sworn elected and appointed officials know those who would give up their liberty for a promised modicum of safety will ultimately have neither.

[geek tragedy]

11. Did you read the court opinion, or just assume it's a travesty

solely based on what Hedges said about it?

[indepat]

21. Did not read this opinion, but just summed up my cynical take on what has been transpiring

since the already-written Patriot Act was ramrodded into law.

[geek tragedy]

24. The court ruled that the NDAA doesn't authorize the detention of American citizens.

Or lawful resident aliens.

Or anyone captured or arrested within the US.

[indepat]

33. I had read that: sounds like big brother has been overstepping in its zeal not to be accused of

being soft on terra while doing seeming little to staunch the slaughter and maiming by handguns and assault weapons.

[99th_Monkey]

32. Yes. Never mind what Chris Hedges et. al. are saying

just believe Geek Tragedy instead, because he/she says so.

[geek tragedy]

70. The ACLU disagrees with Hedges.

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States.

http://www.aclu.org/indefinite-detention-endless-worldwide-war-and-2012-national-defense-authorization-act

[99th_Monkey]

78. You conveniently left out the next two sentences

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States. Any president’s claim of domestic military detention authority under the NDAA would be unconstitutional and illegal. Nevertheless, there is substantial public debate around whether the NDAA could be read even to repeal the Posse Comitatus Act and authorize indefinite military detention without charge or trial within the United States.

This last sentence complements the first sentence in the paragraph, by admitting "there is substantial public debate" as to WTF the NDAA DOES mean in the final analysis, vis-a-vis Posse Comitatus etc.

Thanks though for at least providing a link with your post. I do appreciate that.

[geek tragedy]

83. The court resolved that question as well, and gave the right answer. nt

[xiamiam]

10. terrible news...nt

[Warpy]

13. So when are they going to arrest Grover Norquist?

He's been planning the destruction of the US government for a very long time.

[meow2u3]

14. When are they going to arrest the Koch Bros.?

They're among the ringleaders of the gang that has been plotting the destruction of the US government. You have to get the leaders.

[Warpy]

16. When Norquist squeals like the little piggie he is

and confirm they've been pulling his strings for years.

[Octafish]

15. Gosh. There goes the First Amendment.

So, if the government wants, I can be classified as an enemy of the state, not just a criminal, merely for asking a question out loud like:

[font size="6"][font color="green"]Instead of making war in Afghanistan and everyplace else, couldn't we use the money at home for jobs and housing and schools and such?[/font color][/font size]

If you don't see a problem, things are worse for you than you know.

[geek tragedy]

17. No, the court ruled the exact opposite of that. nt

[Rex]

19. YEP.

Plaintiffs brought this action shortly after the statute was enacted. They sought an
injunction barring enforcement of Section 1021 and a declaration that it violates, among other
things, their rights under the First and Fifth Amendments to the United States Constitution.
The district court agreed and entered a permanent injunction restraining detention pursuant to Section
1021(b)(2).

Unless I read that wrong, the district judge AGREED with the plaintiff.

[geek tragedy]

20. District judge agreed, but the 2nd circuit overruled district judge. HOWEVER

the second circuit opinion is every bit as good, since it essentially prohibits the executive branch from using the NDAA as a pretext to detaining American citizens.

Even better than declaring it unconstitutional, it made the NDAA irrelevant.

[Rex]

22. It is about the same hysteria (imo) as the folks that believe Obama

will be coming for their guuuuuuuuuuuuuunnnsssss!!!

FUD at it's finest.

The DAY our feds start rounding us up and sending us all off to the Rex84 camps, is the day we no longer live in America.

That day will never come imo. We will be living on Mars first.

[geek tragedy]

23. Short summary of the outcome of this case:

Plaintiffs: court should strike down this statute to prevent it being used against us
Court: the government isn't allowed to use this statute against you.
Plaintiffs: Help, help we're being oppressed.

Note that about 95% of DUers will get outraged at Hedges's press release rather than actually reading the opinion. C'est plus change . . .

[Rex]

25. Yeah that is it, thanks for the elaboration.

I could not make it look quite that silly.

[Octafish]

28. Really? That's not what the ruling says, but, if you think so, great!

Did you check out the PDF? Did you read the article? They seem to support my contention, that the NDAA will be used stifle dissent and those who criticize the government, including journalists.

That's about as un-American a thing as I can imagine. What you can imagine is your own concern -- and that of those in the national security apparatus, of course.

[geek tragedy]

45. I read it. It flatly states that the NDAA can't be

used to justify detaining an American citizen. Not a matter of interpretation--flat out says it.

[Octafish]

53. Wrong. It says Americans can be classified as enemy combatants and detained indefinitely now.

Hedges and the other plaintiffs had succeeded in getting the government to stop doing that. Now the government's free to do it again.

http://tenthamendmentcenter.com/2012/02/06/ndaa-sections-1021-and-1022-scary-potential/#.Uec1wdIp92C

No big deal, the Bill of Rights? Right?

[geek tragedy]

58. You did not read the opinion. nt

[Octafish]

66. You got that right. That's why I went to the experts.

And, I provided links.

What did you provide, besides your take?

[geek tragedy]

68. The plain language of the opinion. The ACLU agrees with

me, btw.

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States.

http://www.aclu.org/indefinite-detention-endless-worldwide-war-and-2012-national-defense-authorization-act

[DeSwiss]

18. You cannot fix this shit goddammit!

Rotten apples can't be made good again.



- You have to grow a new apple.

K&R

''You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.'' ~Buckminster Fuller

[zeemike]

31. Yes but the usual apologist here say the apple is not rotten

That the apples have always looked like that and they taste better that way.
So we should stop the drama and eat your apples...and STFU about it....Obama is in charge and it is all good.

[geek tragedy]

47. No, those of us not wetting our undies

just happen to know how to read a legal opinion.

Anyone who says this opinion authorizes the detention of citizens under the NDAA is either functionally illiterate or lying.

[zeemike]

57. So Cris Hedges is functional illiterate or lying.

So who do I believe, him or you....bmmmm that is a hard choice....him.

[geek tragedy]

59. Or, you could read the opinion yourself

instead of letting someone else do your thinking for you.

[zeemike]

61. Well I am not a lawyer.

But I trust Hedges more than I trust you to give a legal opinion on what it says.

[geek tragedy]

67. The ACLU agrees with me and the court

The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States.

http://www.aclu.org/indefinite-detention-endless-worldwide-war-and-2012-national-defense-authorization-act

[dreamnightwind]

103. You keep using that quote out of context

but you're going 180 degrees against the intent of the ACLU making that statement (which was made over year ago and not about this ruling). They're quite concerned that the NDAA will be interpreted to allow just that, and they make that clear in the very link you provide.

This ruling leaves plenty of wriggle room, if I understand it correctly. They just need to say you're "unlawful" or some such, then the protections no longer apply. Civil disobedience? Indefinite detention? That's a bad bad marriage if I ever saw one.

[geek tragedy]

104. The court explicitly adopted the ACLU's position.

The court leaves zero wiggle room on the NDAA as far as citizens are concerned.

The real problem is the AUMF. But Hedges et al didn't seek to have the AUMF declared unconstitutional.

[dreamnightwind]

105. Sorry if I'm being dense here, but

what was the exact language that left zero wiggle room as far as citizens are concerned? I know I didn't see it that way when I read it (with my admittedly cynical mind), but maybe I was just reading someone else's spin. I'll be happy if you're correct, though I still doubt it.

I agree that the AUMF is the larger problem. It's been what, 12 years now or close to it? Seems like something Obama could tackle, it's been more than long enough. I'm not very optimistic about that happening, though.

[geek tragedy]

106. Here's the language from the opinion.

Section 1021 says nothing at all about the authority of the government to detain citizens. There simply is no threat whatsoever that they could be detained pursuant to that section.

More:

Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds nor subtracts from whatever authority would have existed in its absence.

Even more:

Plaintiffs appear to contend that, even if Section 1021 is not applicable to Hedges and O'Brien, the wording of Section 1021(e) seems to "assume" that citizens may be detained if they have substantially supported al-Qaeda and that Hedges and O'Brien therefore have standing to challenge it. We disagree. There is nothing in Section 1021 that makes any assumption about the government's authority to detain citizens under the AUMF. Rather, Section 1021(e) quite specifically makes clear that the section should not be construed to affect in any way existing law or authorities relating to citizen detention, whatever those authorities may provide.

http://legaltimes.typepad.com/files/hedges.pdf

[dreamnightwind]

107. Thanks for your reply

I am certainly not any kind of legal expert, and though I have read plenty on this issue, I still need to understand it better.

The court seems to take the position that the challenged statutes don't do much of anything. I'm still skeptical of this claim, reserving judgement for further research.

A question: Is an "illegal combatant" afforded the same rights as other citizens under this law, or do we lose the protection from indefinite detention (supposedly afforded citizens, according to the court) once we have been declared an illegal combatant?

One of the things that concerns me is the grey area around who can be declared to be an enemy combatant. From the Combatant Status Review Tribunals referenced in the court's opinion:

"...enemy combatants, which the Department of Defense then defined to mean “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”/blockquote]

Seems to me there's a lot of room for interpretation there, and I'm not comfortable with that, at all. I understand that this is not language in the law being litigated here, but it is relevant, I think, to who they could apply indefinite detention to.

[geek tragedy]

108. Once you get away from the 'easy' set of facts, i.e. the person

being either a citizen, or a legal resident alien, or having been captured inside the United States, it gets very fact specific.

Also, indefinite is also, well, an undefined term. Were German POWs 'indefinitely' detained as of 1943? The big problem is that the AUMF has no sunset provisions, and describes a conflict that will likely never be over, technically speaking.

[dreamnightwind]

110. Citizens who are declared enemy combatants?

Didn't see an answer to that. It might seem obvious to you, but I actually don't know if they can be indefinitely detained or not. Didn't seem to protect Al-Alawi, or whatever his name was, or John Walker-Lindht (not sure of that spelling either).

I definitely agree about the AUMF and an endless, undeclared war against a tactic (terrorism) that isn't limited to any particular nation. That has to stop.

[geek tragedy]

111. If they're captured on the field of battle,

they will likely be detained until they can get ahold of a lawyer.

One irony is that it's legally much simpler to kill AQ members than it is to detain them.

[quinnox]

26. K&R. Bad news, but the ACLU will keep up the fight. Also, maybe another whistle-blower like Snowden

will be inspired by him and come out to the public, and this thing could have the lid blown off it. You never know.

[99th_Monkey]

27. Kick & rec. ~nt

[cantbeserious]

29. And Yet, Many Reflexively Genuflect To Authority When The Exsanguination Of Democracy Is Exposed

eom

[99th_Monkey]

36. ... all the while attacking the messenger(s) as 'drama queens' ~nt

[cantbeserious]

37. Yes - All Too True!

eom

[geek tragedy]

48. Please cite the error in the court's ruling.

Quote specific language.

[sulphurdunn]

34. I tire of reading

pompous legal reasoning purporting to explain how denial of the constitutional rights of American citizens is constitutional because Congress gave the President the authority to deny them using the pretext of a global war on a thing called "terrorism."

[struggle4progress]

35. So, as I read the decision, citizens cannot challenge the NDAA language regarding

indefinite detention, under the theory of Hedges et al, because the NDAA compromise language that actually passed simply says that the NDAA itself does not affect any existing authorities regarding indefinite detention of citizens. The possible issue of indefinite detention of citizens might still be raised in a different suit, under a different theory, but that suit would (I think) have to aim at whatever actual statutory language or judicial precedent does control any possible indefinite detention of citizens, a matter which the court here recognized as being in dispute

And, as I further read the decision, non-citizens and non-permanent residents MIGHT be able to challenge the NDAA language regarding indefinite detention, under the theory of Hedges et al, but to do so would first HAVE to establish standing by documenting sufficiently substantial grounds for fear of such prosecution, a proof which the non-citizen plaintiffs did not provide to the satisfaction of the court, since they brought forth evidence neither of any actual plans or threats to prosecute them nor of any person, in a position comparable to their own, who had been so prosecuted

It was IMO a most naive suit, showing very little legal sophistication: why should one go to court arguing that one needs protection from a power, that the current administration doubts it has and says it will not use, and that is actually in dispute? This outcome is better than some we could have had from the lawsuit: suppose, for example, the court had ruled against Hedges et al, but in the course of its ruling had determined -- in agreement with the idiotic theory of the plaintiffs -- that the executive certainly DID have the power to detain journalists indefinitely, on a finding that their writings somehow aided al-Qaida? That might have been a major loss, if upheld by our current Supreme Court. Such an outcome, of course, was unlikely -- but to my PoV Hedges et al have shown themselves to be litigative morons for even inviting such an outcome

[randome]

38. Jump on the bandwagon! Let your outrage flag fly!

That's why the suit was undertaken.

It's easier to aim for a non-existent target than tackle some of the real problems we have.
[hr][font color="blue"][center]I'm always right. When I'm wrong I admit it.
So then I'm right about being wrong.[/center][/font][hr]

[Octafish]

40. NDAA Sections 1021 and 1022: Scary Potential

by Rob Natelson on February 6, 2012 in Current Events, Featured, Founding Principles 121

Are the detainment provisions of the 2012 National Defense Authorization Act serious?

Yes they are.

SNIP...

When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

Or is that is now changing?

SOURCE: http://tenthamendmentcenter.com/2012/02/06/ndaa-sections-1021-and-1022-scary-potential/#.UecmYNIp92B

The guy goes over the ruling and the law, step-by-step. He agrees with the OP and Chris Hedges.

[phleshdef]

56. High courts are already saying the NDAA doesn't allow for any of that stuff.

The courts are the final word. People should be happy that they are taking that interpretation because if any administration tried to use the NDAA in some nefarious manner, legal precedent is already set that says "no you can't do that".

[struggle4progress]

42. Let's remember what Mr Obama said about NDAA 2012 on signing it:

... 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.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation ...

http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540

[woo me with science]

80. Bullshit PR words. Let's remember that when Pres. Obama

was presented with an amendment written specifically to CLARIFY and LEGALLY BIND that the NDAA indefinite detention would not apply to American citizens, he demanded that the language be removed.

http://www.dailykos.com/story/2011/12/09/1043781/-Why-Obama-Will-Not-Veto-NDAA-Military-Detention-of-Americans-He-Requested-It

[struggle4progress]

82. The Conference Report on the Bill was over 1000 pages long, reflecting the length of the bill and

the many disputes involved in crafting it through its six versions. The current 1021 language reflects the 1031 language of the Senate version, which was the subject of a substantial political struggle in the Senate. Feinstein, for example, proposed an amendment to the 1031 language that would have provided a blanket prohibition but lost this fight, in part because the Republicans wanted to insist on indefinite detention language. A similar conflict appeared between the House and Senate versions

The 1031 language in the version of HR 1540 referred to the Senate Committee on Armed Services does nothing except to define "individual detained at Guantanamo" as a person under DoD control at Guantanamo who is neither a US citizen nor a member of the US military; the version that passed the Senate contains in 1031(e) the language that later appeared in 1021(e) of the bill from the Conference Committee
See: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rfs/pdf/BILLS-112hr1540rfs.pdf at 567 - 568
See: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540eas/pdf/BILLS-112hr1540eas.pdf at 419

... Senator Feinstein and others feared that Section 1021 would greatly expand the power of the government with particular reference to the authority to detain American citizens captured domestically. Senator Feinstein explained that she did not believe the government had such authority while Senators Graham and Levin, perhaps among others, believed that the government already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured that—as to those covered by Section 1021(e)—courts would decide detention authority based not on Section 1021(b), but on what the law previously had provided in the absence of that enactment. This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens from its requirements. Rather, Section 1021(e) provides that Section 1021 just does not speak—one way or the other—to the government’s authority to detain citizens, lawful resident aliens, or any other persons captured or arrested in the United States ...
US Court of Appeals for the Second Circuit
Hedges v Obama (Decided: July 17, 2013)
http://legaltimes.typepad.com/files/hedges.pdf at 37 - 38

The reconciliation between the House and Senate versions of the detention provisions is discussed in the Conference Report:
... The Senate amendment contained a provision (sec. 1031) that would affirm the authority of the Armed Forces of the United States to detain certain covered persons pursuant to the Authorization for Use of Military Force (Public Law 107–40). The provision would not 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.

The House recedes ...
See http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt329/pdf/CRPT-112hrpt329-pt1.pdf at 695 - 696

Here is Levin's statement on the bill, as signed:

The Detainee Provisions in the National Defense Authorization Act for FY 2012
Tuesday, January 10, 2012
... Unfortunately, much of what has been said and written about the detainee provisions is simply wrong. If this bill did what some people claim it does, I would have opposed it myself ... First, it affirms the Obama administration’s military detention policy for individuals captured in our fight against al Qaeda, a position upheld by the federal courts. This provision will prevent future administrations from adopting more expansive and problematic interpretations of military detention authority. Second, it establishes a presumption of military detention in the case of one narrow category of individuals – foreign al Qaeda terrorists who are captured in the course of planning or conducting attacks against the United States. The executive branch can waive that presumption, and its ability to try detainees in civilian courts is protected. Third, it establishes new procedural rights, including access to a military judge and a military lawyer, for any individual who is to be held in long-term military detention ... Now, let’s turn to some common inaccurate statements about the legislation:
-- It prohibits civilian trials of terror suspects. False ...
-- It strips the FBI and other federal law enforcement agencies of their anti-terrorism duties and hands those authorities to the military. False ...
-- It allows military troops to make arrests on U.S. soil. False ...
-- It gives presidents new authority to indefinitely hold U.S. citizens without charge or trial. False. The legislation does not change current law regarding U.S. citizens ...
-- It allows indefinite detention of U.S. citizens without access to civilian courts. False ...
http://www.levin.senate.gov/newsroom/press/release/the-detainee-provisions-in-the-national-defense-authorization-act-for-fy-2012/

You're waving around snippets of long conversations without understanding what was actually under discussion

[woo me with science]

86. Bullshit. That was a lot of attempted distraction.

My clearly stated point stands.

[struggle4progress]

94. "Don't confuse me with tiresome facts!"

[woo me with science]

95. Just ignore the video and Levin's own words on the Senate floor.

Your attempt to deny in-your-face reality is sadly pathetic, but par for the course for the propaganda these days.

War is Peace.
Freedom is Slavery.
Ignorance is Strength.
and Obama did not reject an amendment to clarify that Americans are exempted from indefinite detention.

I will not respond to you again, because you are lying.

[geek tragedy]

89. Wow, you cited a Daily Kos diary to refute the 2nd Court of Appeals.

Given my legal background, I'll go out on a limb and suggest that the 2nd Circuit's clear ruling that the NDAA doesn't authorize the detention of American citizens holds more legal weight than the user "Ralph Lopez" at Daily Kos.

[questionseverything]

90. very important point

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

(b) . . A covered person under this section is any person as follows:

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . . The disposition of a person under the law of war . . may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

[questionseverything]

91. from woo's link

Senator Feinstein Confirms President and Military Can Detain US Citizens Without a Trial
Like you, I oppose these provisions. Section 1031 is problematic because it authorizes the indefinite detention of American citizens without due process. In this democracy, due process is a fundamental right, and it protects us from being locked up by the government without charge. For this reason, I offered an amendment to prohibit the indefinite detention of U.S. citizens without trial or charge. Unfortunately, on December 1, 2011, this amendment failed by a vote of 45-55.

I was, however, able to reach a compromise with the authors of the defense bill to state that no existing law or authorities to detain suspected terrorists are changed by this section of the bill. While I would have preferred to have restricted the government’s ability to detain U.S. citizens without charge, this compromise at least ensures that the bill does not expand the government’s authority in this area.

[nradisic]

51. beyond disturbing...

George Orwell must be spinning in his grave...

[Jack Rabbit]

54. Man the barricades, everybody.

One way or another, this will not stand.
[center]

[/center][font size="1"]Eugène Delacroix, Liberty Leading the People (1830)
from Wikipedia Commons (http://en.wikipedia.org/wiki/File:Eugène_Delacroix_-_La_liberté_guidant_le_peuple.jpg) (Public Domain)
[/font]

[ReRe]

55. Thanks. I wondered if this had been decided yet.

If they ever decide to "disappear" someone, this is the avenue they will take.

[Catherina]

60. Federal Appeals Court Restores US Govt’s Indefinite Detention Power Previously Blocked by Judge

Federal Appeals Court Restores US Government’s Indefinite Detention Power Previously Blocked by Judge

By: Kevin Gosztola Wednesday July 17, 2013 3:29 pm

A court order enjoining the United State government from using a provision of the 2012 National Defense Authorization Act has been overturned by a federal appeals court.

The injunction issued by Judge Katherine B. Forrest was against Section 1021. That section authorized the President to “use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF), including “the authority of the Armed Forces of the United States to detain covered persons.” The section said a “covered person” was “a person who was 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.” Persons detained could be held without trial “under the law of war” until the “end of hostilities authorized by the AUMF.”

It was the result of a lawsuit filed on behalf of journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, Icelandic parliamentarian Birgitta Jonsdottir, Pentagon Papers whistleblower Daniel Ellsberg, author Noam Chomsky and Tangerine Bolen of RevolutionTruth.org.

President Barack Obama’s administration immediately appealed the permanent injunction issued by Forrest. And, on Tuesday, the US Court of Appeals for the Second Circuit concluded in their ruling that Forrest had made a mistake in her decision to grant standing to Hedges, O’Brien, Jonsdottir and Wargalla.

...

http://dissenter.firedoglake.com/2013/07/17/federal-appeals-court-restores-us-governments-indefinite-detention-power-previously-blocked-by-judge/#

[snot]

62. K&R'd.

[ucrdem]

81. "a black day"?

[dipsydoodle]

84. Obama wins back the right to indefinitely detain under NDAA

The Obama administration has won the latest battle in their fight to indefinitely detain US citizens and foreigners suspected of being affiliated with terrorists under the National Defense Authorization Act of 2012.

Congress granted the president the authority to arrest and hold individuals accused of terrorism without due process under the NDAA, but Mr. Obama said in an accompanying signing statement that he will not abuse these privileges to keep American citizens imprisoned indefinitely. These assurances, however, were not enough to keep a group of journalists and human rights activists from filing a federal lawsuit last year, which contested the constitutionality of Section 1021, the particular provision that provides for such broad power.

A federal judge sided with the plaintiffs originally by granting an injunction against Section 1021, prompting the Obama administration to request an appeal last year. On Wednesday this week, an appeals court in New York ruled in favor of the government and once again allowed the White House to legally indefinitely detain persons that fit in the category of enemy combatants or merely provide them with support.

http://rt.com/usa/obama-ndaa-appeal-suit-229/

[geek tragedy]

88. Shockingly, the RT article is one big fat lie. nt

[blackspade]

87. Is this the same Circuit Court that the 'thugs have kept 4 judges short...

in order to maintain a 'conservative' majority?

[woo me with science]

102. America waited too long to start fighting back.

The courts are corrupt, too. This news, and now the decision on Manning's charge of aiding the enemy...

Thank goodness for Edward Snowden, and for the remaining real journalists.

[xchrom]

109. du rec.