Obama Admin. vs. Justice & Constitutionality - Again!

[Peter Lemkin]

Fighting the Militarized State

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Posted on Mar 30, 2014

By Chris Hedges

Alexa O'Brien speaks to reporters during a news conference on March 29, 2012, in New York.AP/Mary Altaffer

The Barack Obama administration, determined to thwart the attempt by other plaintiffs and myself to have the courts void a law that permits the military to arrest U.S. citizens, strip them of due process and indefinitely detain them, has filed a detailed brief with the Supreme Court asking the justices to refuse to accept our petition to hear our appeal. We will respond within 10 days.
"The administration's unstated goal appears to be to get court to agree that [the administration] has the authority to use the military to detain U.S. citizens," Bruce Afran, one of two attorneys handling the case, said when I spoke with him Sunday. "It appears to be asking the court to go against nearly 150 years of repeated decisions in which the court has refused to give the military such power. No court in U.S. history has ever recognized the right of the government to use the military to detain citizens. It would be very easy for the government to state in the brief that citizens and permanent residents are not within the scope of this law. But once again, it will not do this. It says the opposite. It argues that the activities of the plaintiffs do not fall within the scope of the law, but it clearly is reserving for itself the right to use the statute to detain U.S. citizens indefinitely."
The lawsuit, Hedges v. Obama, challenges Section 1021(b)(2)of the National Defense Authorization Act (NDAA). It was signed into law the last day of 2011. Afran and fellow attorney Carl Mayer filed the lawsuit in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O'Brien, Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.

U.S. District Judge Katherine B. Forrest of the Southern District of New York, in a rare act of courage on the American bench today, declared Section 1021(b)(2) unconstitutional. The Obama administration immediately asked Forrest to lift her injunction and thereby put the law back into effect until it could appeal her decision. She rebuffed the government's request. The government went to the U.S. Court of Appeals for the 2nd Circuit to ask it to stay the district court's injunction until the government's appeal could be heard. The 2nd Circuit consented to the request. The law went back on the books.Afran, Mayer and I expected the Obama administration to appeal, but we did not expect the government to mount such an aggressive response to Judge Forrest's ruling. The law had to be restored because, our attorneys and I suspect, the administration well might be holding U.S. citizens who are dual nationals in some of our black sites. If Forrest's ruling was allowed to stand, the administration would be in contempt of court if it was detaining U.S. citizens under the statute. This suspicion was buttressed during the trial. Government attorneys, when asked by the judge, refused to say whether or not the government was already using the law.
The U.S. Court of Appeals for the 2nd Circuit overturned Forrest's ruling last July. It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was a plaintiff. The Clapper v. Amnesty International case challenged the secret wiretapping of U.S. citizens under the FISA Amendments Act of 2008. The Supreme Court in Clapper v. Amnesty International ruled that our concern about government surveillance was "speculation." It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. But we could never offer the court proof of anyone being monitored because the government does not disclose whom it is targeting. It was only later, because of Edward Snowden, that we discovered that not only were those we interviewed being monitored but so was everyone else, including ourselves. The 2nd Circuit relied on the spurious Supreme Court ruling to say that because we could not show the indefinite-detention law was about to be used against us we could not challenge it.
After the Obama administration won its appeal in the 2nd Circuit we petitioned the Supreme Court in what is known as a certiorari, or cert, to hear our appeal. The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. The court is likely to make a decision in a few months.
The government, whose open defiance of the Constitution is brazen, has tacked back and forth before the courts as to why we have no right to bring the suit. It has, throughout the case, contradicted itself. In its current brief, for example, it claims that we as plaintiffs have nothing to fear from the indefinite-detention law. This assertion is at odds with the refusal by the government attorneys in the Southern District Court of New York to provide assurances that my co-plaintiffs and I would not be affected by the law. The government brief charges that because none of us has been threatened with imminent arrest we have no credible fear and no right to bring the case. But anyone arrested under this law would disappear into a black hole. A seized person would not have access to a lawyer or the courts. By the time you were detained under this provision all avenues of judicial appeal would be closed.
The brief also says that the Authorization for Use of Military Force Act (AUMF) already gives the president power to take such actions. This is a gross misinterpretation of the limited powers authorized under the AUMF. It also raises the question of why, if that statute does give the state this power, as the lawyers claim, the government would need to pass a new law as it did when it approved the AUMF.

The brief argues that journalists are already protected under Article 79 of Additional Protocol I to the Geneva Conventions. This protocol calls for journalists to be treated as civilians. But this last assurance has no legal weight. The United States never ratified Additional Protocol I. Finally, the government attorneys selectively use the case Hamdi v. Rumsfeld, which permits the detention of a U.S. citizen only if he or she is an enemy combatant engaged in an active armed conflict with U.S. forces. They cite the Hamdi case to argue that the government has the legal authority to order the military to detain U.S. citizens who "substantially support" a terrorist group.
The government in the brief makes it plain that all of us can be subject to this law:

Petitioners further assert that at the initial hearing in the district court, the government declined to offer assurances that they would not be detained under any circumstances. Pet. 14, 34-38. But no legal principle requires the government to provide litigants with such advance assurances or otherwise to delineate the bounds of its authorityparticularly in the context of armed conflictin response to speculative fears of harm asserted in litigation.

"The brief argues that the government reserves the right to use the military to detain and indefinitely hold journalists under this law, although the 2nd Circuit stated that the law did not apply to U.S. citizens," Mayer told me Sunday. "We have already seen journalists such as [you] and Laura Poitras detained and denied access to a lawyer and due process. This law will make legal any such detentions. It will permit the military, on American soil, to throw journalists and activists in a military prison without trial or due process."

If Section 1021(b)(2) is not struck down by the Supreme Court it will effectively overturn nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. A U.S. citizen charged by the government with "substantially supporting" al-Qaida, the Taliban or those in the nebulous category of "associated forces" will be lawfully subject toextraordinary rendition on U.S. soil. Arrested citizens will languish in military jails, in the language of Section 1021(b)(2), until "the end of hostilities."
This obliteration of the right to due process and a fair hearing in a court of law, along with the mass surveillance that has abolished our right to privacy, will be the legal foundation of our militarized, corporate state. Judge Forrest warned in her 112-page opinion that whole categories of Americans could, under this law, be subject to seizure by the military. She drew parallels between Section 1021(b)(2) and Korematsu v. United States, the 1944 Supreme Court ruling that supported the government's use of the military to detain 110,00 Japanese-Americans in internment camps during World War II. Our case offers the court an opportunity, as several lawyers have pointed out, to not only protect almost 150 years of domestic law that forbids the military to carry out domestic policing but to repudiate the shameful Korematsu decision.
Once arbitrary and indefinite detention by the military is lawful, the government will use it. If we do not win this case, all those deemed to be hostile or critical of the state, including some Muslims, journalists, dissidents and activists, will find themselves under threat.
I spent 20 years as a foreign correspondent, 15 of them with The New York Times. I interviewed numerous individuals deemed by the U.S. government to be terrorists, including some members of al-Qaida, and traveled with armed groups labeled as terrorist organizations. When I reported the statements and activities of these individuals and groups, U.S. officialdom often made little distinction between them and me. This was true during the wars in Central America. It was true in the Middle East. And it was true when I covered global terrorism. There was no law at the time that permitted the government, because of my work as a reporter, to order the military to seize and detain me. Now there is.
This law, if it is not struck down, will essentially replace our civilian judiciary with a military one. Those targeted under this law will not be warned beforehand that they will be arrested. They will not have a chance to get a lawyer. They will not see the inside of a courtroom. They will simply vanish.

[Peter Lemkin]

ChrisHedges

WeAre All Aboard the Pequod

Posted on Jul 7, 2013

By ChrisHedgesThemost prescient portrait of the American character and our ultimatefate as a species is found in Herman Melville's "Moby Dick."Melville makes our murderous obsessions, our hubris, violentimpulses, moral weakness and inevitable self-destruction visible inhis chronicle of a whaling voyage. He is our foremost oracle. He isto us what William Shakespeare was to Elizabethan England or FyodorDostoyevsky to czarist Russia.Ourcountry is given shape in the form of the ship, the Pequod, namedafter the Indiantribe exterminated in1638 by the Puritans and their Native American allies. The ship's30-man crewthere were 30 states in the Union when Melville wrotethe novelis a mixture of races and creeds. The object of the huntis a massive white whale, Moby Dick, which, in a previous encounter,maimed the ship's captain, Ahab, by biting off one of his legs. Theself-destructive fury of the quest, much like that of the one we areon, assures the Pequod's destruction. And those on the ship, onsome level, know they are doomedjust as many of us know that aconsumer culture based on corporate profit, limitless exploitationand the continued extraction of fossil fuels is doomed."IfI had been downright honest with myself," Ishmael admits, "Iwould have seen very plainly in my heart that I did but half fancybeing committed this way to so long a voyage, without once laying myeyes on the man who was to be the absolute dictator of it, so soon asthe ship sailed out upon the open sea. But when a man suspects anywrong, it sometimes happens that if he be already involved in thematter, he insensibly strives to cover up his suspicions even fromhimself. And much this way it was with me. I said nothing, and triedto think nothing."We,like Ahab and his crew, rationalize madness. All calls for prudence,for halting the march toward environmental catastrophe, for sanelimits on carbon emissions, are ignored or ridiculed. Even with theflashing red lights before us, the increased droughts, rapid meltingof glaciers and Arctic ice, monster tornadoes, vast hurricanes, cropfailures, floods, raging wildfires and soaring temperatures, we bowslavishly before hedonism and greed and the enticing illusion oflimitless power, intelligence and prowess. We believe in the eternalwellspring of material progress. We are our own idols. Nothing willhalt our voyage; it seems to us to have been decreed by natural law."The path to my fixed purpose is laid with iron rails, whereon mysoul is grooved to run," Ahab declares. We have surrendered ourlives to corporate forces that ultimately serve systems of death.Microbes will inherit the earth.Inour decline, hatred becomes our primary lust, our highest form ofpatriotism and a form of eroticism. We are made supine by hatred andfear. We deploy vast resources to hunt down jihadists and terrorists,real and phantom. We destroy our civil society in the name of a waron terror. We persecute those, from Julian Assange to Bradley Manningto Edward Snowden, who expose the dark machinations of power. Webelieve, because we have externalized evil, that we can purify theearth. We are blind to the evil within us. Melville's descriptionof Ahab is a description of the bankers, corporate boards,politicians, television personalities and generals who through thepower of propaganda fill our heads with seductive images of glory andlust for wealth and power. We are consumed with self-inducedobsessions that spur us toward self-annihilation.Afterthe attacks of 9/11,EdwardSaidsawthe parallel with "Moby Dick" and wrote in the London newspaperThe Observer:

Osamabin Laden's name and face have become so numbingly familiar toAmericans as in effect to obliterate any history he and his shadowyfollowers might have had before they became stock symbols ofeverything loathsome and hateful to the collective imagination.Inevitably, then, collective passions are being funneled into a drivefor war that uncannily resembles Captain Ahab in pursuit of MobyDick, rather than what is going on, an imperial power injured for thefirst time, pursuing its interests systematically in what has becomea suddenly reconfigured geography of conflict.

Ahab,as the historian Richard Slotkin points out in his book "RegenerationThrough Violence," is "the true American hero, worthy to becaptain of a ship whose wood could only be American.' "Melville offers us a vision, one that D.H. Lawrence later understood,of the inevitable fatality of white civilization brought about by ourceaseless lust for material progress, imperial expansion, whitesupremacy and exploitation of nature.Melville,who had been a sailor on clipper ships and whalers, was keenly awarethat the wealth of industrialized societies came from the exploitedof the earth. "Yes; all these brave houses and flowery gardens camefrom the Atlantic, Pacific and Indian oceans," Ishmael says of NewEngland's prosperity. "One and all, they were harpooned anddragged up hither from the bottom of the sea." All the authorityfigures on the ship are white menAhab, Starbuck, Flask and Stubb.The hard, dirty work, from harpooning to gutting the carcasses of thewhales, is the task of the poor, mostly men of color.Ahab,when he first appears on the quarterdeck after being in his cabin forthe first few days of the voyage, holds up a doubloon, an extravagantgold coin, and promises it to the crew member who first spots thewhite whale. He knows that "the permanent constitutional conditionof the manufactured man … is sordidness." And he plays to thissordidness. The whale becomes a commodity, a source of personalprofit. A murderous greed, one that Starbuck denounces as"blasphemous," grips the crew. Ahab's obsession infects theship."Isee in him [Moby Dick] outrageous strength, with an inscrutablemalice sinewing it," Ahab tells Starbuck. "That inscrutable thingis chiefly what I hate; and be the white whale agent, or be the whitewhale principal, I will wreak that hate upon him. Talk not to me ofblasphemy, man; I'd strike the sun if it insulted me."Ahabconducts a dark Mass, a Eucharist of violence and blood, on the deckwith the crew. He orders the men to circle around him. He makes themdrink from a flagon that is passed from man to man, filled withdraughts "hot as Satan's hoof." Ahab tells the harpooners tocross their lances before him. The captain grasps the harpoons andanoints the ships' harpoonersQueequeg, Tashtego and Daggoohis"three pagan kinsmen." He orders them to detach the iron sectionsof their harpoons and fills the sockets "with the fiery waters fromthe pewter." "Drink, ye harpooneers! Drink and swear, ye men thatman the deathful whaleboat's bowDeath to Moby Dick! God hunt usall, if we do not hunt Moby Dick to his death!" And with the crewbonded to him in his infernal quest he knows that Starbuck ishelpless "amid the general hurricane." "Starbuck now is mine,"Ahab says, "cannot oppose me now, without rebellion." "Thehonest eye of Starbuck," Melville writes, "fell downright."Theship, described by Melville as a hearse, was painted black. It wasadorned with gruesome trophies of the hunt, festooned with the hugeteeth and bones of sperm whales. It was, Melville writes, a "cannibalof a craft, tricking herself forth in the chased bones of herenemies." The fires used to melt the whale blubber at night turnedthe Pequod into a "red hell." Our own raging fires, leaping upfrom our oil refineries and the explosions of our ordinance acrossthe Middle East, bespeak our Stygian heart. And in our mad pursuit weignore the suffering of others, just as Ahab does when he refuses tohelp the captain of a passing ship who is frantically searching forhis son who has fallen overboard.Ahabis described by Melville's biographer Andrew Delbanco as "asuicidal charismatic who denounced as a blasphemer anyone who woulddeflect him from his purposean invention that shows no sign ofbecoming obsolete anytime soon." Ahab has not only the heatedrhetoric of persuasion; he is master of a terrifying internalsecurity force on the ship, the five "dusky phantoms that seemedfresh formed out of air." Ahab's secret, private whale boat crew,which has a feral lust for blood, keeps the rest of the ship inabject submission. The art of propaganda and the use of brutalcoercion, the mark of tyranny, define our lives just as they markthose on Melville's ship. C.L.R.James,for this reason, describes "Moby Dick" as "the biography of thelast days of Adolf Hitler."Andyet Ahab is no simple tyrant. Melville toward the end of the novelgives us two glimpses into the internal battle between Ahab'smaniacal hubris and his humanity. Ahab, too, has a yearning for love.He harbors regrets over his deformed life. The black cabin boy Pip isthe only crew member who evokes any tenderness in the captain. Ahabis aware of this tenderness. He fears its power. Pip functions as theFool did in Shakespeare's "King Lear." Ahab warns Pip of Ahab."Lad, lad," says Ahab, "I tell thee thou must not follow Ahabnow. The hour is coming when Ahab would not scare thee from him, yetwould not have thee by him. There is that in thee, poor lad, which Ifeel too curing to my malady. Like cures like; and for this hunt, mymalady becomes my most desired health. … If thou speakest thus tome much more, Ahab's purpose keels up in him. I tell thee no; itcannot be." A few pages later, "untottering Ahab stood forth inthe clearness of the morn; lifting his splintered helmet of a brow tothe fair girl's forehead of heaven. … From beneath his slouchedhat Ahab dropped a tear into the sea; nor did all the Pacific containsuch wealth as that one wee drop." Starbuck approaches him. Ahab,for the only time in the book, is vulnerable. He speaks to Starbuckof his "forty years on the pitiless sea! … the desolation ofsolitude it has been. … Why this strife of the chase? why weary,and palsy the arm at the oar, and the iron, and the lance? How thericher or better is Ahab now?" He thinks of his young wife"Iwidowed that poor girl when I married her, Starbuck"and of hislittle boy: "About this timeyes, it is his noon nap nowtheboy vivaciously wakes; sits up in bed; and his mother tells him ofme, of cannibal old me; how I am abroad upon the deep, but will yetcome back to dance him again."

Ahab'sthirst for dominance, vengeance and destruction, however, overpowersthese faint regrets of lost love and thwarted compassion. Hatredwins. "What is it," Ahab finally asks, "what nameless,inscrutable, unearthly thing is it; what cozening, hidden lord andmaster, and cruel, remorseless emperor commands me; that against allnatural lovings and longings, I so keep pushing, and crowding, andjamming myself on all the time. …"

Melvilleknew that physical courage and moral courage are distinct. One can bebrave on a whaling ship or a battlefield, yet a coward when called onto stand up to human evil. Starbuck elucidates this peculiardivision. The first mate is tormented by his complicity in what heforesees as Ahab's "impious end." Starbuck, "while generallyabiding firm in the conflict with seas, or winds, or whales, or anyof the ordinary irrational horrors of the world, yet cannot withstandthose more terrific, because spiritual terrors, which sometimesmenace you from the concentrating brow of an enraged and mighty man."Andso we plunge forward in our doomed quest to master the forces thatwill finally smite us. Those who see where we are going lack thefortitude to rebel. Mutiny was the only salvation for the Pequod'screw. It is our only salvation. But moral cowardice turns us intohostages.MobyDick rams and sinks the Pequod. The waves swallow up Ahab and all whofollowed him, except one. A vortex formed by the ship's descentcollapses, "and the great shroud of the sea rolled on as it rolledfive thousand years ago."

[Lauren Johnson]

Hey, Peter, the law would merely give Obama the power to make somebody disappear, but he
wouldn't use it. I mean, he wouldn't would he? You know, he stands for change. Right?

::headbang::;;okay::

[Peter Lemkin]

Hey, Peter, the law would merely give Obama the power to make somebody disappear, but he
wouldn't use it. I mean, he wouldn't would he? You know, he stands for change. Right?

::headbang::;;okay::

Not to worry Lauren, we're in Wonderland now.....at the Mad Hatter's Tea Party. Obama was a greater Trojan Horse than was 'W'....but both were sponsored by the same forces, IMO.