Journalist, plaintiff Chris Hedges calls ruling to block the NDAA’s ‘indefinite detention’ monumental

Chris Hedges is not only a brilliant journalist, but a former correspondent for the New York Times and part of a team of reporters awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism. The author of a number of books, including Death of the Liberal Class and The World as it is: Dispatches on the Myth of Human Progress, and now, he is most notably the plaintiff in a lawsuit challenging the National Defense Authorization Act (NDAA), the most odious Section 1021 that allows the U.S. government to indefinitely hold U.S. citizens, strip them of due process, and detain them in military facilities, including our offshore Gitmo.

Hedges organized a distinguished list of fellow journalists, scholars, and political activists, including Noam Chomsky, Daniel Ellsberg, Naomi Wolfe and Cornel West to join him as plaintiffs in a lawsuit challenging the NDAA. Also challenging the outrageous legislation (signed on New Year’s Eve by President Obama when nobody was looking), is Bruce Afran, the group’s attorney.

They were lucky to have had a judge with an extensive communications background—Judge Katherine Forrest of the Southern District of New York—who ruled the indefinite detention provision of the National Defense Authorization Act likely violates the Fourth and Fifth Amendment rights of U.S. citizens. Needless to say, her ruling is both informed, brave and stands up for the rule of law. Judge Forrest rejected the Obama administration’s argument that simply reaffirmed an existing recognition of the military’s right to perform certain routine duties.

In late March, Cornel West was among the plaintiffs who appeared in federal court to give testimony. He said, “I am in full of joy to be a plaintiff in this particular case. Why? Because we’re at a turning point in the history of this nation. We need to stand for freedom. There’s an escalating authoritarianism and even a creeping fascism. Freedom is precious. If we don’t fight for it, you lose it.”

The 1021 ruling comes as House lawmakers are debating a lineup of controversial amendments to the NDAA. A bipartisan group of congressional members are expected to come up with an amendment to the NDAA challenging its indefinite military detention provision.

Hedges, commenting on Amy Goodman’s Democracy Now, said, “Well, it in essence invalidates that provision, Section 1021, that permits the U.S. government to use the military to hold American citizens, strip them of due process, and detain them in military facilities, including our own offshore penal colonies, until in the language of that section, the end of hostilities. So, it’s monumental, because she [Judge Forrest] threw the whole thing out. She invalidated the law. It was quite a courageous decision—I think, clearly a correct one. But we have watched the federal courts, in particular, file opinion after opinion as to sort of why they can’t implement the law—rather, why they can or why they should. And so, this becomes, yes, a really important decision.”

When asked by Goodman, “Chris, why did you, as a journalist, sue President Obama,” he responded, “Because I, as a foreign correspondent, had had direct contact with—when Bruce and Carl Mayer and I went through the list, the State Department terrorism list—17 organizations that are on that list, from al-Qaeda to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section to exempt journalists. The language is amorphous: anybody who ‘substantially supports’—whatever that means—not only the Taliban or al-Qaeda to file the lawsuit but what they term ‘associate forces.’ And so, the decision to file the lawsuit was made by Bruce and Carl, who came to me because they thought that I could be a particularly credible plaintiff, and it turns out, I think, and the judge acknowledged that that was the case.”

Goodman asked Bruce Afran to talk about the importance of the extent to which she struck down this statute.

He answered, “Well, it’s quite incredible, in a sense, because it’s rare that statues are struck down completely. Judge Forrest struck down the entire provision of the NDAA governing indefinite detention of civilians and U.S. citizens. She said this provision is overbroad. She said it clearly embraces speech, even if it doesn’t intend to. And she criticized the government severely, because it refused to acknowledge in court that First Amendment activities would not bring someone into a state of indefinite detention. And five times, Judge Forrest asked the U.S. attorney, ‘Will you agree that First Amendment activities will not bring someone under the scope of this law?’ And the government five times said, ‘We can’t answer that question.’”

This brought up Goodman’s question, “So explain what you mean by First Amendment activities.”

Afran commented, “Well, you know the First Amendment itself protects all speech activities. And speech is absolutely protected, minus very limited categories. So here we have Chris Hedges, we have other plaintiffs, Alexa O’Brien, we have Tangerine Bolen, who are active as advocates and writers. And their conduct is clearly expressive. So that’s what we mean by First Amendment activities. The speaking about other organizations’ activities—not endorsing terrorist groups, but informing people of what they believe—all of this is First Amendment activity. And the government refused to say this will not bring someone within the scope of the statute. And so, the judge reacted very harshly to this.

“First and Fifth Amendments,” Goodman pointed out.

Afran agreed, “That’s right. Well, the Fifth Amendment deals with due process. You can’t lose your liberty, you can’t be detained unless there’s some clear statue that gives you notice of the wrongful conduct. And that can never happen for protected conduct. So the First Amendment and due process under the Fifth Amendment both work together.”

Goodman pointed out that Judge Forrest was appointed by President Obama.

Afran agreed, “She was appointed by President Obama. She was a judge in the field of communications—a lawyer in the field of communications. She’s clearly cognizant of free speech issues, and she took this case to heart. She really accepted our premises, and she was very, very critical of the government’s position, which simply refused to acknowledge the validity of expressive conduct as something that protects a person from incarceration.”

Goodman referred to Republican presidential candidate Mitt Romney, who was curiously booed at a Republican debate when he defended Obama’s approval of the NDAA bill. When asked by Kelly Evans, “Governor Romney, as president, would you have signed the National Defense Act, as written.”

Without missing a beat he said, “Yes, I would have. And I do believe that it’s appropriate to have in our nation the capacity to detain people who are threats to this country, who are members of al-Qaeda. Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country, we have a right to take those people and put them in jail.”

Curiously, Hedges was asked to comment on the fact that he heard booing that came from probable supporters of several of the presidential candidates, which would indicate there is some conservative sympathy for the judge’s decision.

Hedges added, “Well, at least two. Rick Santorum and Ron Paul were quite outspoken against the National Defense Authorization or this section 1021. And you know, what’s interesting is, when you look at the polls, there’s almost no support for this piece of legislation at all. I think about 70 percent oppose it. And yet, of course, once again, it passes with bipartisan support. The bill was sponsored by Carl Levin, a Democrat, and John McCain, a Republican.”

Hedges also pointed out that “When Dianne Feinstein tried to insert language into the bill that would have exempted U.S. citizens from the process, it was rejected by both the Democratic Party and the Obama White House. And, so, I think this is another window into not only the sort of steady assault against civil liberties, whether that’s the use of the Espionage Act, the FISA Amendment Act, the Authorization to Use Military Force Act itself or the PATRIOT Act. And what makes what happened yesterday [May 16] so monumental is that, finally, we have a federal judge who stands up for the rule of law.”

Goodman pointed out that, ironically, though Obama signed it, he was opposed by key members of his administration, Defense Secretary Leon Panetta, FBI Direction Robert Mueller, and Director of National Intelligence James Clapper.

Hedges pointed out, “That’s what’s so interesting. No one at the Pentagon, the FBI, Mueller and everyone else, as you pointed out—none of them supported the bill, even to the extent where Mueller and others were testifying before Congress that it would make their work more difficult. And yet it passes anyway. And it is a kind of . . . mystery to the rest of us as to what are the forces that, when you have the security establishment publicly opposing it, what are the forces that are putting it in place?

“And I can only suppose that what they’re doing is setting up a kind of legal mechanism to criminalize any kind of dissent. And Bruce can speak to this a little more. But in the course of the trial, with Alexa O’Brien, US Day of Rage, that WikiLeaks dump of five million emails of the public Security firm Stratford, we saw in that email correspondence an attempt to link US Day of Rage with al-Qaeda. Once they link you with a terrorist group, then these draconian forms of control can be used against legitimate forms of protest, and particularly the Occupy movement.”

Goodman added that a conservative group joined Bruce Afran in filing this lawsuit, and he responded that it was “A coalition of conservative groups—Downsize DC, the 10^th Amendment Foundations and others. And really, there’s a place where liberals and conservatives meet, on these very issues. Conservatives are just as opposed to this as liberals, which is what Chris is saying. And it’s so incredible that the president, you know, and the Democratic Party are deaf to the reality of what is an American value.”

So when asked the big question by Goodman, “What happens now that Article 1021 was struck down by Judge Forrest. Where does it go now?

Afran said, “Well, technically, there could be a trial on a full issue of a permanent injunction. It’s very rare that ever happens. Usually, the government will appeal. They have 60 days to appeal. We don’t know what will happen. We, Carl Mayer and I, my co-counsel, are calling on the government to issue a permanent—that is, agree to a permanent injunction . . . under a rule that it is . . . unconstitutional and can’t be enforced. Right, it is illegal. The judge has put a hold on it. And we’re calling on the president to agree to make it a permanent injunction.”

Chris Hedges was then asked by Goodman, “Where do you from here? Hedges responded, “I think that, you know, this is a never-ending battle. The security and surveillance state has already boxed us in, those of us who don’t conform to the official narrative. And this was a tremendous victory, but there are still important issues to be fought. The Espionage Act is a good one, the Authorization to Use Military Force Act itself, of course the FISA Amendment Act, the warrantless wiretapping. There are still other issues that those of us who care about an open democracy have to go out and fight for.”

Jerry Mazza is a freelance writer, life-long resident of New York City. An EBook version of his book of poems “State Of Shock,” on 9/11 and its after effects is now available at Amazon.com and Barnesandnoble.com. He has also written hundreds of articles on politics and government as Associate Editor of Intrepid Report (formerly Online Journal). Reach him at gvmaz@verizon.net.