It’s a pleasant feeling to believe that one lives in a free country. But does that feeling stand up to reality for Americans?
The 2011 National Defense Authorization Act (NDAA) signed by Barack Obama virtually abolishes this notion.
The law gives the US government the power to indefinitely detain anyone suspected of aiding terrorists in a military prison without trial or disclosure of charges. Read that carefully: indefinitely detained without trial. The justification is for anyone of the following:
That is classic vague language. What exactly does “substantially supported” mean? Lest anyone trust the government to fairly interpret such vague concepts, remember that the US invaded Iraq in 2003 in part by falsely claiming links between then leader Saddam Hussein and al-Qaeda that never existed.
Jim Caton, writing for LegalReader, elaborates on the subjective nature of the words used in relation to Chris Hedges, a journalist who did interviews with groups such as al-Qaeda- you know, as part of being a journalist:
“Hedges, a Pulitzer Prize winner and formerly the Middle East bureau chief for the New York Times, had interviewed leading members of al-Qaeda. Would such interviews constitute “substantial” support? Unlike “material support,” a term with legal definition, “substantial support” is not a legal term and so is open to broad interpretation. Similarly, the term “associated forces,” while it does have a legal provenance, offers no clear referent in the context of the U.S. Government’s sprawling “war on terror.” Must the association with al-Qaeda be a matter of actual contact and collaboration with the group? Or is an “associated force” potentially any person or persons “engaged in hostilities against the United States”? If so, what constitutes “hostilities”? As recent history has shown us, the U.S. government and its security forces are liable to find hostility in such constitutionally protected activities as peacefully protesting, blowing the whistle on illegal government activity, and disseminating information about that illegal activity. Think of the leaders of the Occupy encampments, or of Edward Snowden and Glenn Greenwald. It is conceivable that under the NDAA—that is, under the color of law—such people could simply disappear. Without charge. Without trial.”
The lesson is that laws like the NDAA with vague language grant more leeway for governments to prosecute for behavior they don’t agree with.
Shortly afterward, various attorneys – both civilian and military – began to raise concerns, ultimately culminating in a group of activists, including Chris Hedges, Noam Chomsky, and Daniel Ellsberg, to sue the Obama Administration over the NDAA. They claimed that the NDAA portion pictured above – section 1021- directly violated the US Constitution by “violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution”
Hedges spoke at the time about the trial on Democracy Now! that can be watched here.
Surprisingly, they won.
A judge from the trial, Katherine Forrest, wrote:
“Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.”
The Obama Administration then filed an appeal shortly afterward with the US Circuit Court of Appeals.
Hedges wrote about the appeal trial back in 2013 for Truthdig:
“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.”
This time, Obama et all won the appeal, meaning Hedges and company would need to appeal the appeal at the very top of our legal system: The Supreme Court…
…who declined to hear the case.
Consequences of the NDAA
The Obama Administration’s successful appeal means the full language of the NDAA is in effect to this day. This behavior may seem surprising, given Obama’s image as something of a principled liberal by much of the mass media. But Lawrence Davidson, writing for CounterPunch, mentions the two-faced nature of Obama cultivating his public image versus his actual political behavior when rubber meets the road:
“Toward the end of this whole unseemly process someone pointed out that President Obama has consistently asserted that he is against the indefinite detention of U.S. citizens even though his Justice Department has always supported keeping the detention clause of NDAA in place and operative.”
And who also set the record for going after whistleblowers (more so than all previous administrations combined), classifying them as spies under the Espionage Act?
Behavior like this from public figures such as Barack Obama is why we at Cutting Through Politics do what we do: cut through the bullshit from the smoke and mirrors of our media landscape in order to shed light on reality to keep the powerful accountable.