Definite Intention: The Case Against Presidential Indiscretion

Next-door neighbour, dem hold your son,

said dem find him with one gun

And it's no need him start to mention,

Him going to get an indefinite detention.

Oh, lady, whatcha gonna do now? 

(...Oh...) Oh, lady, whatcha gonna do?

Oh, lady, whatcha gonna do? 

He's your one son, lady, whatcha gonna do?

Peter Tosh, "Whatcha Gonna Do?"

In what has become an all-too-common behavior from the mainstream media, almost no coverage has aired regarding the monumental decision by New York Federal District Judge, Katherine B. Forrest earlier this week in the case of Hedges v Obama.  That case directly challenges what have come to be called the “indefinite detention” provisions of last year’s National Defense Authorization Act.  The Act is a usually pro forma matter with the purpose of providing the funding and structure for much of the US’s defense budget.  But this year, a series of sections were included which went far beyond the usual scope of the Act.

As a practical matter, the Act ratified nearly everything the GW Bush administration had been doing since they started the War on Terror.  Added in, though, were a couple of sections, 1021 and 1022, regarding the holding of prisoners during wartime. Collectively called the “indefinite detention” provisions, they authorize the president to declare prisoners as combatants which then allows the military to hold those prisoners as long as the war they were arrested under continues.  No charges need be brought, no trial need be given, no attorneys need be allowed to communicate or represent the prisoner, and if a trial is forthcoming, it can be held in secret as a military tribunal.

By itself, the concept of indefinite detention of enemy combatants during wartime is not unusual. It’s a generally accepted rule of war under the Geneva Conventions that people picked up on the field of battle can be held until the end of hostilities.  The complication in the War on Terror is that, in a strict sense, itisn’t a war. It’s a fight against what can best be described as a tactic, an action taken by people who want to cause harm and fear. There is no boundary to recognize, no settlement which can be reached, and therefore no obvious “end” to hostilities that will look like anything typically seen as such.

That means that anyone held in prison can be held for life without ever being charged or held to account with evidence presented to justify being held. While viscerally, it’s easy to say ok to all of that when thinking of the people involved in 9/11 and who would continue to plan other horrors of the like; but what happens if we’re talking about someone picked up by mistake?  Remember, we are not talking about uniformed soldiers on a battlefield -- we’re talking about someone walking down a city street who looks for all intents and purposes, just like anyone else walking down the street. The problem is that it could be just anyone walking down the street who gets picked up, because, as we all know, sometimes the government gets it wrong.

The new law adds a special twist to the scenario in that it includes a wider range of potential arrest targets by authorizing the detention of anyone “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 who has directly supported such hostilities in aid of such enemy forces.” (sec. 1021(b)(2)) Here’s where things get fuzzy and where the current case came into play.

A variety of writers and activists found that their work could easily fall under the apparently wide umbrella of the section, subjecting them to the possibility that they, foreign and American citizens alike, could be picked up at any given moment and “disappeared” as if the US was suddenly a central American banana republic or South American military dictatorship of the 1970s.  A selection of them, from varied backgrounds and activities banded together to file a lawsuit against the government to test the constitutionality of the law. Here’s a quick rundown of some of them and how they have been affected already by this law even though none of them have been detained.

Chris Hedges: Pulitzer Prize-Winning former war correspondent for The New York Times, now a columnist for truthdig.com and independent lecturer and instructor. For decades he has engaged with many of the people the government would consider possible enemy targets, in order to inform the American people who they are fighting against. Hedges indicated he has altered his lectures and reconsidered many of his subjects for interview because of the possible presence of al-Qaeda operatives in his audience;

Daniel Ellsberg: Famous whistleblower for providing The New York Times with The Pentagon Papers in the 1970s, Ellsberg, at age 82 remains vibrant and active in oppositional public communications and has worked in support of Wikileaks and Bradley Manning, both of whom have been accused of aiding and abetting terrorist networks or being terrorists by members of congress.

Brigitta Jonsdottir: A member of parliament in Iceland, she has worked with Wikileaks and other groups to facilitate the free flow of information across the world. Because of her activity, her government has advised her not to travel to the United States.

Jennifer “Tangerine” Bolen: Has also worked with Wikileaks and been involved in pro-democracy, pro-information movements in the US and around the world in addition to working for support of Bradley Manning.  As with all the plaintiffs, she has rolled back on some of her activities and communications because of the detention law.

Initially, attorneys Carl Mayer and Bruce Afran, argued that the court should grant a preliminary injunction before getting to the direct question of constitutionality. A preliminary injunction means that the court could find that the operation of the law is so dangerous to the plaintiffs and likely to be declared unconstitutional, that it couldn’t be used by the government while the case remains open.  They argued is so broad and vague that all of the plaintiffs have already been injured by the existence of this law because they have had to curtail their activities, associations, and speech, public and private because they believe the law could be used to against them, and that if it were to happen, they would be prevented from any recourse against indefinite detention. 

In response, the government claimed first: that the plaintiffs had not suffered any injury that allowed them to come to court at all -- the doctrine of “standing” to sue: second: that if they did have standing, then an injunction was unnecessary since the government assured they had no intention of using the law against these plaintiffs, and; third: that this law was merely a reaffirmation of a prior law -- the Authorization to Use Military Force (AUMF), which is the basis for the war in Afghanistan – which has already been found constitutional.  The government did not present any further statements, testimony, or evidence.

Following the presentation of the statements and arguments by each side, this past Wednesday, the judge granted the injunction and effectively declared the law at least temporarily unconstitutional.  The government has 60 days to decide what to do next.  They can appeal the injunction or they can proceed with a trial at the level the case is at now. The judge’s opinion was especially strong and granting an injunction is exceedingly rare at the District Court level. Additionally, the judge herself is a recent Obama appointee which suggests that the higher courts will not be swayed by political leanings as they have been accused so often in recent years. Further, failure in court by the government from here on out will also have the effect of raising the decision to the level where it can be referred to in the future as a precedent for challenges to other laws which may reduce oppositional speech and association.

What many outside the case considered something of a publicity stunt at first now know that this is a very serious matter and a big deal for activists and wannabe whistleblowers not just in the US but throughout this grandly interconnected world. This morning I participated in a press forum phone conference with the attorneys and several of the plaintiffs on behalf of Progressive Blend Radio and found that all were ecstatically surprised not only at the outcome in what they had presumed was just the early first phase of the case, but by the defense, or lack of defense, put up by the government.

In reading the judge’s opinion, one can almost read a sense of mockery at the feebleness of the government’s assertion that the new law is merely a restatement of what was already on the books, that it would “require [the] Court to find that [the law] is a mere redundancy – that is, that it has no independent meaning and adds absolutely nothing to the Government’s enforcement powers… that it is meaningless.”  Later references to the signing statement issued by President Obama upon signing the entire bill into law, implied that the administration had no real intention to use the authority this law bestowed upon it, an implication that would be laughable if it wasn’t part of a long history of governments throughout the world who claimed they would act only with kindness towards its people regardless of circumstance.

Long time populist and anti-corporatist attorney, Carl Mayer, indicated that he was surprised at the decision by the Department of Justice attorneys to present almost nothing in opposition to the plaintiffs’ assertion, relying on what amounted to a “trust us” position towards application and enforcement of the law. He considered that maybe they had the law written poorly and defended weakly on purpose but couldn’t say why they would do such a thing.  He did offer that perhaps the bill was written poorly just to get it through and to fix it later, which may be true as attempts are underway to accomplish just that although they haven't accomplished anything yet.

Alternatively, Ellsberg was nearly aghast at the implications this law could have on free speech and association.  He explained that he has remained active in the whistleblower community and even has other people who would be prepared to step forward on a variety of subjects but they are holding back because of the implications of being prosecuted under this law. Ellsberg himself said that if not for his age, he would be hesitant to even engage in the discussion we were having.  He also ruminated that all of the actions taken against him by the Nixon administration, threats of prosecution, unwarranted wiretapping, all manner of reprisals up to and including sending thugs to beat him up -- which were part and parcel of what would have been grounds for impeachment and removal had Nixon not resigned -- have all been pretty well ratified and made mundane since the GW Bush years and that this law was the final icing on the cake. As it happens, because of the current resounding victory, should it hold up -- and there is little reason at this point to think that it won’t -- Ellsberg is confident that this case will be useful as a precedent to challenge other onerous laws which are on the books, significantly, the Espionage Act of 1917, the one that he was prosecuted under in 1973.

After reading the opinion, related articles, and supporting documents from the case, and talking with many of the principles involved, I have to say I’m fairly shocked at the course of events.

While the public debate over the Defense Bill was taking place in December I was astounded when I read the offending passages for all the reasons that have been cited.  The clauses in question seemed blatantly violative of the Constitution for all sorts of reasons. They were also horribly written.  Within its content are a variety of weasel words well-known to any 1^st year law student as intended to give executives the ability to define their own discretion rather than define precisely what they can and cannot do. It was one of these weasel words that told me the accusation regarding detention of American citizens was legitimate. Section 1022(b): “Applicability to United States Citizens…(1) The requirement to detain a person in military custody under this section does not extend to citizens of the United States [emphasis mine].” A too quick read would lead one to believe that this clause means that military (indefinite) detention doesn’t apply to US citizens at all but that would be wrong. To achieve that result, it would have to say exempt or shall not in there somewhere. Instead it says “requirement”. In other words, there is a mandate, a requirement, that foreign citizens and illegal residents of the US who are accused of terrorism or supporting terror be held in military detention. But if a US citizen or legal resident is picked up under such circumstances, military detention is optional, and fully within the discretion of the President.  The President of the United States, under this law has been given the authority to use his discretion to have citizens disappeared. No charge, no recourse, no representation, no time limit.

If that isn’t unconstitutional, then Barack Obama is the secret love child of Josef Stalin and Chairman Mao.