Indefinite Military Detention and the NDAA

by

In declining to hear the case of Hedges v Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America.

Carl Mayer, Attorney for Chris Hedges, May 2014

President Barack Obama’s administration has that curious quality that marks it as authoritarian even as it embraces principles of liberty; an enemy of freedoms even as it claims to be promoting them in bookish fashion.  The tendency is part schizophrenic, part conscious bloody mindedness when it is found out.  Obama has shown a particular liking for various draconian laws which he hopes will sail past judicial and congressional scrutiny.  The National Defense Authorization Act of 2014, signed by the President last December, was devil spawn, engendered by a security atmosphere that has the executive and law makers enthral.

The indefinite detention clause – section 1021, more specifically 1021(b)(2) – allows for the “indefinite detention of American citizens without due process at the discretion of the President.” It actually made its ignominious debut in the NDAA Act of 2012.  The wording is astonishingly bruising to civil liberties, and has received considerable criticism from a range of sources.  Public polling by OpenCongress.com showed a 98 per cent disapproval rating.  The ACLU considered the statute “particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”  It can, in fact, be argued that the provision makes the entire domestic and global space of US policy a potential battlefield, governed by executive fiat.

The subsequent bill of 2013 contained amendments made by Congress attempted, in part, to limit the reach of the indefinite detention clause.  Sections 1031 to 1033 ostensibly attained those goals, affirming the right to due process for American citizens and the right of habeas corpus.  But the legislative Frankenstein would not go away – indefinite detention was simply something too good to let go.

On the legal front, a constitutional challenge was mounted by Christopher Hedges, Carl Mayer and Bruce Afran, and joined by Noam Chomsky, Daniel Ellsberg, Alexa O’Brien, Tangerine Bolen of RevolutionTruth, Birgitta Jonsdottir and Occupy London activist Kai Wargella. They were to be rudely disappointed.

Things began promisingly enough. In 2012, US District Judge Katherine B. Forrest was sufficiently troubled by the offending section to rule it unconstitutional and grant a permanent injunction. “Here, the stakes get no higher: indefinite military detention – potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever.  The Constitution requires specificity – and that specificity is absent.”  She also repelled suggestions by lawyers for the Obama government that the section be re-instated as they appealed the decision.

The US Court of Appeal for the 2nd circuit did two things. It reinstated the law, swallowing the argument that it was needed for national security purposes.  The claimants immediately got suspicious[1] – was it already being used to detain US citizens “in black sites, most likely dual citizens with roots in such countries as Pakistan, Afghanistan, Somalia and Yemen”?  The national security premise seemed too pressing.

Second, the court decided to make a spurious legal exit in refusing to rule on the constitutionality of s. 1021(b)(2), citing the old issue of standing which was similarly used in the Supreme Court case of Clapper v Amnesty International USA (2013)[2]  In other words, those challenging the law could not show that the provision had any bearing on the government’s authority to indefinitely detain US citizens.  Those plaintiffs who were not US citizens could not show “a sufficient threat that the government will detain them” in the course of their conduct.  Similarly, in Clapper, the plaintiffs, of which Hedges was also one, could not show to the court’s satisfaction that secret wiretapping of US citizens under the FISA Amendments Act of 2008 was genuine in inflicting “real, unavoidable injury”.  The effects on such organizations as Amnesty International by wiretapping was “speculation”.

The refusal to hear the case of Hedges v Obama[3] by the Supreme Court on April 28, effectively affirming the appeals decision, threw the police state manual right back at the appellants.  A disgusted Hedges[4] showed justifiable frustration, calling it a “dirty game of judicial avoidance on two egregious violations of the Constitution.”

The rather contorted form of reasoning on the subject of proof and injury in surveillance and detention laws suggests that a patently authoritarian provision can’t be deemed unconstitutional unless it is proven to be directly exercised against the plaintiffs. If this can’t be shown, such reprehensible provisions will be allowed to remain on the books. If the proof be in the national security pudding, the judges were not interested in seeing, let alone tasting it.

As Daya Gamage[5], US national correspondent for the Asian Tribune suggested, “The United States set a precedent for other nations that face terrorist threats, internally or externally, letting the government indefinitely detain people – under military custody – it deems to have ‘substantially supported’ al Qaeda, the Taliban or ‘associated forces.’”

The hallmark of any tyranny is arbitrariness exercised without limits, without guardians, without those controls that soften the blows of authority.  Hedges argues that the United States has “entered a post-constitutional era.”  He sees courts compliant, subject to a corporate ideal that is propelling his country into a legal wilderness; where citizens are marginalised from legal redress against the abuses of state power; where the seemingly invisible hand of fascism is becoming more discernible.  But that era was well and truly marked by the Bush administration, whose legacy is being bolstered, rather than modified, by his duplicitous successor.  So much, it seems, for constitutional protections.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Like What You’ve Read? Support CounterPunch
August 04, 2015
Vincent J. Roscigno
University Bureaucracy as Organized Crime
Paul Street
Bernie Sanders’ Top Five Race Problems: the Whiteness of Nominal Socialism
Herbert Dyer, Jr.
Is White Supremacy a Mental Disorder?
Ramzy Baroud
The Palestinian Bubble and the Burning of Toddler, Ali Dawabsha
Pepe Escobar
Reshuffling Eurasia’s Energy Deck — Iran, China and Pipelineistan
L. Michael Hager
The Battle Over BDS
Eric Draitser
Puerto Rico: Troubled Commonwealth or Debt Colony?
Colin Todhunter
Hypnotic Trance in Delhi: Monsanto, GMOs and the Looting of India’s Agriculture
Benjamin Willis
The New Cubanologos: What’s in a Word?
Matt Peppe
60 Minutes Provides Platform for US Military
Binoy Kampmark
The Turkish Mission: Reining in the Kurds
Eoin Higgins
Teaching Lessons of White Supremacy in Prime-Time: Blackrifice in the Post-Apocalyptic World of the CW’s The 100
Gary Corseri
Gaza: Our Child’s Shattered Face in the Mirror
Robert Dodge
The Nuclear World at 70
Paula Bach
Exit the Euro? Polemic with Greek Economist Costas Lapavitsas
August 03, 2015
Jack Dresser
The Case of Alison Weir: Two Palestinian Solidarity Organizations Borrow from Joe McCarthy’s Playbook
Joseph Mangano – Janette D. Sherman
The Atomic Era Turns 70, as Nuclear Hazards Endure
Nelson Valdes
An Internet Legend: the Pope, Fidel and the Black President
Robert Hunziker
The Perfectly Nasty Ocean Storm
Ahmad Moussa
Incinerating Palestinian Children
Greg Felton
Greece Succumbs to Imperialist Banksterism
Binoy Kampmark
Stalling the Trans-Pacific Partnership: the Failure of the Hawai’i Talks
Ted Rall
My Letter to Nick Goldberg of the LA Times
Mark Weisbrot
New Greek Bailout Increases the Possibility of Grexit
Jose Martinez
Black/Hispanic/Women: a Leadership Crisis
Victor Grossman
German Know-Nothings Today
Patrick Walker
We’re Not Sandernistas: Reinventing the Wheels of Bernie’s Bandwagon
Norman Pollack
Moral Consequences of War: America’s Hegemonic Thirst
Ralph Nader
Republicans Support Massive Tax Evasion by Starving IRS Budget
Alexander Reid Ross
Colonial Pride and the Killing of Cecil the Lion
Suhayb Ahmed
What’s Happening in Britain: Jeremy Corbyn and the Future of the Labour Party
Weekend Edition
July 31-33, 2015
Jeffrey St. Clair
Bernie and the Sandernistas: Into the Void
John Pilger
Julian Assange: the Untold Story of an Epic Struggle for Justice
Roberto J. González – David Price
Remaking the Human Terrain: The US Military’s Continuing Quest to Commandeer Culture
Lawrence Ware
Bernie Sanders’ Race Problem
Andrew Levine
The Logic of Illlogic: Narrow Self-Interest Keeps Israel’s “Existential Threats” Alive
ANDRE VLTCHEK
Kos, Bodrum, Desperate Refugees and a Dying Child
Paul Street
“That’s Politics”: the Sandernistas on the Master’s Schedule
Ted Rall
How the LAPD Conspired to Get Me Fired from the LA Times
Mike Whitney
Power-Mad Erdogan Launches War in Attempt to Become Turkey’s Supreme Leader
Ellen Brown
The Greek Coup: Liquidity as a Weapon of Coercion
Stephen Lendman
Russia Challenges America’s Orwellian NED
Will Parrish
The Politics of California’s Water System
John Wight
The Murder of Ali Saad Dawabsha, a Palestinian Infant Burned Alive by Israeli Terrorists
Jeffrey Blankfort
Leading Bibi’s Army in the War for Washington