View Full Version : Challenging NDAA Indefinite Detention - Panel and Lawsuit

Peter Lemkin
02-08-2013, 06:16 PM



Peter Lemkin
02-10-2013, 10:24 AM
NDAA - Fighting for Everything that Defines America
By Marianne Hoynes

This morning while most Americans were not paying much attention, a critical battle for our civil liberties, everything in fact that defines America, was being waged at the NY US Court of Appeals for the Second Circuit, in Foley Square.

An amazing group of patriotic Americans were facing down the Obama administration over the new law, NDAA, in Chris Hedges et al vs. Obama NDAA.

NDAA essentially allows military law to supersede civil law, which goes against the US Constitution. It gives dictatorial authority to the President of the US, not seen since before the signing of the Magna Carta. "There is no doubt as to the merit and structure of the bill", said attorney for Chris Hedges, Carl Mayer, but section 1021 E is phrased in such general terms that it allows for the abduction of American Citizens by the US Government. It allows our government to hold citizens under military law indefinitely, with no right to due process, no right to an attorney or access to evidence, until the "end of conflict", which is now defined as America's War on Terror, and ongoing war on nebulous enemy combatants, now in its eleventh year with no end in sight.

This case is so critical to America's freedom that a few high profile people lent their names, including Michael Moore, who also came to speak with us today. Another high profile name lent to this case, is the rising star of "holding Banksters Accountable", the Icelandic Parliamentarian Birgitta Jonsdottir, also known for her role in Wiki leaks, and holding the US accountable by trying to legislate them to get warrants before they could take all of our online personal information without our knowledge.

Before this law, the US military could never have power over the American civilian population, or civil law. NDAA was written and backed by bipartisan support from the US Congress, and signed into law by Obama in 2012.

You might remember the AUMF (Authorization for Use of Military Force Against Terrorists), signed into law by George W. Bush. AUMF clearly does not allow the detention of any American citizen or legal resident of the US by the US military, even during wartime. Whereas Bush's executive order exempts US citizens, Obama's NDAA law does not.

We live under an administration that has named peace activists and those who speak up for the rights of Americans, like those who Occupy Wall Street, as terrorists. Chris Hedges, formerly of the NY Times and now an independent journalist, has cause for concern under NDA. So does every American and legal US resident who independently publishes articles or blogs that in any way criticize America's actions at home or abroad; or even have their photo taken at a peace rally they just happen to be walking through, and are not even a part of.

The attorneys arguing on behalf of the Executive Office, Barack Obama, said that if Americans were arrested under NDAA, "they probably would not be detained for long, and Americans [or legal residents in detention] would be given plenty of time to convince the US Government that they were not Al Qaeda".

Ask Al Jazeera cameraman, Sami Al-Hajj how well that worked for him. As Kevin Gosztola of Firedog lake reported today, "The government made some startling statements about Al-Hajj. Loeb (attorney for the US government) said Al-Hajj had used the claim that he was a journalist as a cover for something else. A person in a case like this cannot use being a journalist as a defense against indefinite detention. Al-Hajj told the US government, "I'm not the person who film[ed] Osama bin Laden, because at that time I was in Doha. And my passport says that, and my ticket with you also says that. I'm not the person. This is my job, and this is my business. If I get the chance now to film Osama bin Laden, I will." He was released from Guantanamo Bay nearly seven years after he was detained by US forces." He was completely vindicated.

Chris Hedges speaks by Marianne Hoynes

Chris Hedges has been embedded with Al Qaeda. He has lived with them, traveled with them and done print and video interviews with them. Under NDAA, the US government can accuse Hedges of collaborating with the enemy. His actions as a journalist with the current language of this law, could be deemed as supporting Al Qaeda, or associating with known enemy combatants.

Independent expression was once known as "free speech" protected under the US Constitution in the First Amendment. The Congress who drafted this law, as well as the President of the US, take the same oath of office as every American who serves in the US military. "That oath", said famed whislteblower of the Pentagon Papers Daniel Ellsberg, "is an oath to support and defend the Constitution of the United States against all enemies, not an oath to obey the Commander in Chief. The people who wrote and then ratified this bill, are not traitors, but are enemies of the US Constitution. They are violating their oath of office."

Americans need to begin to pay more attention, before it is too late.

Peter Lemkin
02-12-2013, 05:47 PM
The NDAA and the Death of the Democratic State
By Chris Hedges

Illustration by Mr. Fish

On Wednesday a few hundred activists crowded into the courtroom of the Second Circuit, the spillover room with its faulty audio feed and dearth of chairs, and Foley Square outside the Thurgood Marshall U.S. Courthouse in Manhattan where many huddled in the cold. The fate of the nation, we understood, could be decided by the three judges who will rule on our lawsuit against President Barack Obama for signing into law Section 1021(b)(2) of the National Defense Authorization Act (NDAA).

The section permits the military to detain anyone, including U.S. citizens, who "substantially support" -- an undefined legal term -- al-Qaida, the Taliban or "associated forces," again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until "the end of hostilities." In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any "foreign country or entity." This is, in essence, extraordinary rendition of U.S. citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.

Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard Wednesday in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not make a decision until the spring when the Supreme Court rules in Clapper v. Amnesty International USA, another case in which I am a plaintiff. The Supreme Court case challenges the government's use of electronic surveillance. If we are successful in the Clapper case, it will strengthen all the plaintiffs' standing in Hedges v. Obama. The Supreme Court, if it rules against the government, will affirm that we as plaintiffs have a reasonable fear of being detained.

If we lose in Hedges v. Obama -- and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court -- electoral politics and our rights as citizens will be as empty as those of Nero's Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea-party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast.

"The stakes are very high," said attorney Carl Mayer, who with attorney Bruce Afran brought our case to trial, in addressing a Culture Project audience in Manhattan on Wednesday after the hearing...

"What our case comes down to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that is ingrained in the Constitution. It was always very important in combating tyranny and building a democratic society. What the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America to detain U.S. citizens, to detain residents in the United States in military prisons. Probably the most frightening aspect of the NDAA is that it allows for detention until 'the end of hostilities.'" [To see videos of Mayer, Afran, Hedges and other participating in the Culture Project panel discussion, click here.]

Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.

But the global corporatists -- who have created a new species of totalitarianism -- demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed.

Robert M. Loeb, the lead attorney for the government in Wednesday's proceedings, took a tack very different from that of the government in the Southern District Court of New York before Judge Katherine B. Forrest. Forrest repeatedly asked the government attorneys if they could guarantee that the other plaintiffs and I would not be subject to detention under Section 1021(b)(2). The government attorneys in the first trial granted no such immunity. The government also claimed in the first trial that under the 2001 Authorization to Use Military Force Act (AUMF), it already had the power to detain U.S. citizens. Section 1021(b)(2), the attorneys said, did not constitute a significant change in government power. Judge Forrest in September rejected the government's arguments and ruled Section 1021(b)(2) invalid.

The government, however, argued Wednesday that as "independent journalists" we were exempt from the law and had no cause for concern. Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But he assured the court that I would be untouched by the new law as long as "Mr. Hedges did not start driving black vans for people we don't like."

Loeb did not explain to the court who defines an "independent journalist." I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department's terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be "independent"? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.

I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as "independent." They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.

Alexa O'Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention.

Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Fein. "I didn't expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say," Afran said. "This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out."

The government attempted in court last week to smear Sami Al-Hajj, a journalist for the Al-Jazeera news network who was picked up by the U.S. military and imprisoned for nearly seven years in Guantanamo. This, for me, was one of the most chilling moments in the hearing.

"Just calling yourself a journalist doesn't make you a journalist, like Al-Hajj," Loeb told the court. "He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida."

Al-Hajj, despite Loeb's assertions, was never charged with any crimes. And the slander by Loeb only highlighted the potential for misuse of this provision of the NDAA if it is not struck down.

The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: "Nothing in this section shall be construed to 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."

Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.

Afran quoted the NDAA bill's primary sponsor, Sen. Lindsey Graham, R-S.C., who said on the floor of the Senate:

"In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't [just] go to a political rally."

Afran told the court that Graham's statement implicitly acknowledged that U.S. citizens could be detained by the military under 1021(b)(2). "There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear," Afran told the judges.

After the hearing Afran explained: "If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute."

In speaking to the court Afran said of 1021(e): "It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?"

This was a question Judge Lohier, at Afran's urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.

Peter Lemkin
03-13-2013, 10:09 AM
NDAA Bill: Obama Says Goodbye to Freedom and Democracy
By Areej Elahi-Siddiqui / PolicyMicMarch 12th, 2013

For more information, visit the People Against the NDAA (P.A.N.D.A.) website.
” … Civil rights lawyer Michael Deutch believes that, with the passing of the NDAA, this not only has the potential of threatening innocent Muslims across America, but just about everyone else as well. ‘The law could theoretically be used against labor strikes, acts of civil disobedience, demonstrations, and so on.’ … ”

Under the guise of what seems to be this all-encompassing “war on terror” the United States has significantly curtailed justice and freedom as it continues to pursue domestic terrorism through pre-emptive prosecution. And as Obama pushes to pass the NDAA, it’s possible that we might see considerable restraints to both democracy and freedom in America in coming years.

Section 1021(b)(2) of the NDAA, which was first declared invalid and is currently being appealed, allows the military to detain anyone – U.S. citizens included – who “substantially support” terrorist organizations such as Al-Qaeda, the Taliban or “associated forces.” In other words, indistinct from all of the Obama administration’s other national security and foreign policy legislation, this section of the NDAA is riddled with abstract and ambiguous terms making it easy to detain just about anyone.

The NDAA, however, wouldn’t do much other than legalize what the government already has been doing since the Bush administration, perhaps finding it’s true origins in Vice President Dick Cheney’s “1 Percent Doctrine,” which held that if there was even an 1% chance that a person could be engaging in terrorism in the future, the government had to pre-emptively convict the person of a crime right away. Most of whom have been bearing the brunt of this largely un-American and simply inane doctrine have been immigrant-Muslim families or children of immigrants who, in the midst of the height of Islamophobia, have found themselves incarcerated for long sentences simply because of the religion they practice or the political beliefs they could one day hold.

A prime example of this is Tareq Abufayyad, a Palestinian man and a recent college graduate who had intentions of joining his family in the U.S., all of whom were naturalized citizens of America. But rather than reuniting with his family. Abufayyad found himself detained at San Francisco International Airport, deemed inadmissible simply because he had the potential to become a Hamas-operative.

The reasoning behind such suspicions? He was a well-educated man from Gaza, Hamas’ strong-hold, and could likely be a future recruit because he was “attractive to Hamas.”

In other words, because he gained an education, he couldn’t come to the United States – far away from Hamas’ operatives – because he would be a good candidate to join Hamas.

This isn’t just a one-time thing either; numerous people have faced jail-time, which often entails abuse, or have been deported for reasons such as contributing to charities in the Middle East or potentially holding a certain political belief.

Civil rights lawyer Michael Deutch believes that, with the passing of the NDAA, this not only has the potential of threatening innocent Muslims across America, but just about everyone else as well.

“The law could theoretically be used against labor strikes, acts of civil disobedience, demonstrations, and so on,” Deutch says.

In other words, should section 1021 be signed into law, we can kiss the America we once knew –where virtues such as justice, freedom and democracy were held true and firm – goodbye.


Keith Millea
07-18-2013, 05:18 PM
Published on Thursday, July 18, 2013 by Common Dreams (http://www.commondreams.org)

'Black Day' for Liberty: Hedge's NDAA Challenge Thrown Out

US troops now free to 'seize US citizens, strip them of due process and hold them indefinitely,' says Hedges

- Jacob Chamberlain, staff writer

http://www.commondreams.org/sites/commondreams.org/files/imce-images/8451783671_71aecdea12_z.jpgHedges talks to supporters outside the Thurgood Marshall Courthouse Second Circuit Court of Appeals Feb. 6, 2013 (Photo via Flickr / pameladrew212 / Creative Commons License)

The U.S. Court of Appeals for the 2nd Circuit cast away (http://www.stopndaa.org/2013/07/17/second-circuit-rules-against-plaintiffs/) a case Wednesday brought by journalist Chris Hedges and other prominent civil rights proponents that sought to render the indefinite detention of American citizens, made possible by the National Defense Authorization Act of 2012, unconstitutional.

Calling it a "black day for for those who care about liberty," Hedges said the ruling (http://legaltimes.typepad.com/files/hedges.pdf) makes it possible for the military to "use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers."

"It's sad that we can't even find any kind of redress through the courts," Hedges told (http://www.huffingtonpost.com/2013/07/17/ndaa-indefinite-detention-lawsuit_n_3612354.html) the Huffington Post. "There's nowhere left to turn to in this really egregious assault against our most basic civil liberties."

The plaintiffs will appeal the ruling but the U.S. Supreme Court is not required to take up the case.

It seems to be the end of the road for Hedges v. Obama, (http://www.stopndaa.org/2013/07/17/second-circuit-rules-against-plaintiffs/)which has stretched over the course of 16 months. The plaintiffs, who also include Noam Chomsky, Daniel Ellsberg, Alexa O’Brien and others, had argued that the sections of the NDAA which allow the military to indefinitely detain anyone who communicated with a suspected terrorists would essentially criminalize journalists and other U.S. citizens.

Read Hedges full statement (http://www.stopndaa.org/2013/07/17/second-circuit-rules-against-plaintiffs/) below:
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.

Peter Lemkin
07-18-2013, 05:36 PM
Calling it a "black day for for those who care about liberty," Hedges said the ruling (http://legaltimes.typepad.com/files/hedges.pdf) makes it possible for the military to "use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers."

Read that a few times, fellow Americans.....let it sink in.....There are no more judicial remedies and all the other theoretical ones are unlikely in the extreme. All that is left is us [as is 'us'!] to get off our asses and into the streets; to go on strike and bring the Nation to its knees and to its senses.....short of that, get ready for police-state fascism of the likes of the Third Reich, in short order.....IMO.

Are you on the 'list'? I'm quite sure I am! Those 'military/DHS detention centers' are built, stocked and awaiting only the 'word'......

Peter Lemkin
05-02-2014, 06:31 PM
Supreme Court refuses to stop indefinite detention of Americans under NDAA Published time: May 01, 2014 15:46

http://cdn.rt.com/files/news/26/20/c0/00/scotus-declines-to-hear-ndaa.si.jpg The exterior of the U.S. Supreme Court is seen in Washington (Reuters / Gary Cameron)

The United States Supreme Court this week effectively ended all efforts to overturn a controversial 2012 law that grants the government the power to indefinitely detain American citizens without due process.
On Monday, the high court said it won’t weigh in on challenge filed by Pulitzer Prize-winning journalist Chris Hedges and a bevy of co-plaintiffs against US President Barack Obama, ending for now a two-and-a-half-year debate concerning part of an annual Pentagon spending bill that since 2012 has granted the White House the ability to indefinitely detain people "who are part of or substantially support Al-Qaeda, the Taliban or associated forces engaged in hostilities against the United States.”

The Obama administration has long maintained that the provision — Section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 (http://rt.com/trends/national-defense-authorization-act-indefinite-detention/) — merely reaffirmed verbiage contained within the Authorization for Use of Military Force, or AUMF, signed by then-President George W. Bush in the immediate aftermath of the September 11, 2001 terrorist attacks.

Opponents, however, argued that the language in Section 1021 of the NDAA is overly vague and could be interpreted in a way that allows for the government to detain without trial any American citizen accused of committing a “belligerent act” against the country “until the end of hostilities.”

When the provision was first challenged (http://rt.com/usa/obama-hedges-ndaa-sued-933/) days after Pres. Obama signed it into law on December 31, 2011, Hedges — who previously worked as a war correspondent for the New York Times and covered matters concerning Al-Qaeda for the paper — said, “I have had dinner more times than I can count with people whom this country brands as terrorists … but that does not make me one.”

US District Judge Katherine Forrest agreed (http://rt.com/usa/us-court-law-unconstitutional-031/) with Hedges and his co-plaintiffs, and months later wrote in a 112-page opinion that “First Amendment rights are guaranteed by the Constitution and cannot be legislated away.”

"This Court rejects the government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention,” Judge Forrest wrote.

But the District Court’s temporary, then permanent injunction (http://rt.com/usa/us-court-law-unconstitutional-031/) against Sec. 1021 was challenged by the White House, and the Obama administration pleaded with the Justice Department to issue a stay (http://rt.com/usa/appeals-ndaa-detention-public-536/). A federal appeals court ruled in favor (http://rt.com/usa/obama-ndaa-appeal-suit-229/) of the president last July and said that the government can, in fact, indefinitely detail a person who has provided support to anyone deemed a threat to America.

On his part, Hedges said he feared that the administration’s adamant attempts to keep the law in tact could mean that the government has already relied on the NDAA (http://rt.com/usa/ndaa-reddit-plaintiffs-hedges-143/) to imprison American citizens without trial. Attorneys for the plaintiffs responded by saying they would take the case to the Supreme Court (http://rt.com/usa/ndaa-scotus-hedges-suit-359/), but his week the nine-justice panel said they won’t be hearing the case.

SCOTUS declined to make any comment regarding the case on Monday, but rather simply said that it would not be considered by the high court.

Last year, Hedges warned (http://rt.com/usa/ndaa-scotus-hedges-suit-359/) that the odds the court would take the case were slim, and said rejection on that level could lead to grave consequences with regards to freedoms in America.

“If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back,” he wrote.

On Monday this week, activist and co-plaintiff Tangerine Bolen wrote (http://www.twitlonger.com/show/n_1s1igp1) that the high court’s decision to ignore the case means that “the fundamental right of due process and our fundamental rights of free speech and association . . . no longer matter.”

“We have tried to stand up to this madness: we are outnumbered, outspent and outgunned - a David intrepidly fighting a Goliath that spans the planet and has the power to shape our 'reality' - thus shaping what the courts even see. We have sacrificed greatly to do this - and yet we would do it all again,” she wrote.

Hedges in Bolen were joined in their suit against the Obama administration by Pentagon Papers leaker Daniel Ellsberg, writer Noam Chomsky, activist and journalist Alexa O’Brien, Icelandic parliamentarian and WikiLeaks associate Birgitta Jónsdóttir, Occupy London activist Kai Wargalla and acclaimed academic Dr. Cornel West.

Peter Lemkin
05-02-2014, 06:32 PM