Back in January of 2012 former war correspondent Christ Hedges and others, including Noam Chomsky and Daniel Ellsberg, filed a lawsuit in federal court challenging the constitutionality of the 2012 National Defense Authorization Act (NDAA) and specifically the Act’s Section 1021(b)(2), which allows for indefinite detention by the U.S. military of people “who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States.” This detention denies those held of the ability to “contest the allegations against them because they have no right to be notified of the specific charges against them.” In this suit filed by Hedges et al., the issue in question was the vagueness of the terms “substantially support” and “associated forces.” For instance, could this vagueness lead to apprehension and detention of journalists who publish interviews with members of Al Qaeda or the Taliban? Could it lead to the same treatment against political activists protesting U.S. policies against these or “associated” groups?
The case, now designated Hedges v. Obama, was initially heard in New York District Court by Judge Katherine Forrest. The plaintiffs claimed that the NDAA violated the 1st (free speech), 5th (due process as well as the stipulation that people must be able to understand what actions break the law) and 14th (equal protection) Amendments to the Constitution. To address the question Judge Forrest asked the government lawyers if they could assure the court that the activities of the plaintiffs would not result in indefinite detention under the act. If they could give such assurances it would, as far as the judge was concerned, eliminate the plaintiff’s “standing” to challenge the law.
The government lawyers refused to give those assurances, and as a result, the judge concluded, “The definitions of ‘substantially supported’ and ‘associated forces’ were so vague that a reporter or activist could not be sure they would not be covered under the provision.” This, in turn, would result in what the plaintiffs considered a “chilling effect on free speech and freedom of the press.” Therefore, in September 2012, the Judge granted a permanent injunction against the practice of indefinite detention as put forth in NDAA.
There is no evidence that the U.S. government ever complied with this injunction, and its lawyers immediately appealed the ruling to the U.S. Second Circuit Court of Appeals. When the case was heard in this court, the U.S. Justice Department suddenly came up with the assurances it refused to give only weeks before. In part it was because of these assurances that the appeals court decided to overturn Forrest’s ruling and grant a permanent stay of her injunction. In one of its interim rulings, the appeals court observed, “Since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of NDAA, it was unnecessary to block the enforcement of 102 (b)(2) of the NDAA.” However, as Carl Mayer, the lawyer for Christopher Hedges, had noted earlier, “The government has not put in any evidence. They just keep making these broad assurances. It’s all a ‘trust us’ proceeding.” And trust them is exactly what the appellate judges did. The appeals court’s final ruling in favor of the government was given on 17 July 2013.
One can seriously ask, is any government that trustworthy? Particularly those governments that see themselves at endless war with shadowy enemies and which claim the need for “broad executive war powers” to wage the struggle. One of the reasons that the rule of law is so important is just because there must be limits to behavior for everyone, including the rule makers. Usually the rules that hold governments in check are set forth in constitutions. Laws formulated by branches of U.S. government should explicitly comply with the U.S. Constitution, not just promise to do so.
Despite the naive faith of the Second Circuit judges in the verbal assurances of government lawyers that the NDAA will be enforced in a constitutional manner, there is evidence that such assurances cannot be trusted. Government personnel seem not to have enough objectivity and simple common sense for trust to be placed in them. For example, consider the 2010 case of Holder v. Humanitarian Law Project.
This case was argued before the Supreme Court in January 2010 and challenged that part of the USA Patriot Act, which prohibits “material support” to groups designated terrorist organizations by the U.S. government. Just as “substantially support” and “associated forces” are too vague for Hedges and his fellow plaintiffs, so was “material support” too vague for the Humanitarian Law Project. The HLP was seeking to interact with alleged terrorist groups such as the Kurdistan Workers Party of Turkey so as to “help the group enter into peace negotiations and United Nations processes.” In other words, the HLP wanted to help lead such organizations away from violence and toward nonviolent strategies. Could this be construed as giving “material support” to terrorists? The Obama Justice Department, in striking disregard of common sense, argued that it was indeed material support and thus a criminal venture. And, as it turned out, in its June 2010 decision, the Supreme Court agreed.
This was not just an intellectual exercise in front of the highest court of the land. The resulting Supreme Court decision quickly assumed real life significance. Within three months of its decision, the FBI was raiding homes in Chicago and Minneapolis, confiscating computers and files, because they suspected some undefined connection between the residents and various alleged Colombian and Palestinian terrorist groups. The FBI cited Holder v. Humanitarian Law Project as legal justification for their actions.
In addition, enforcement of this law turned out to be blatantly selective. In January 2011 civil rights lawyer David Cole, who represented the HLP before the Supreme Court, noted that well-known political figures, such as former New York City mayor Rudolph Giuliani and former head of homeland security Tom Ridge, had committed felonies when they publicly spoke in support of the Mujahedeen Khalq, an Iranian designated terrorist group that happened also to be in opposition to the current Islamic government of Iran. The FBI has not, nor will it, raid their homes.
Under these circumstances, anyone who accepts at face value the assurance of government lawyers that laws such as the Patriot Act and NDAA will conform to the Constitution and not walk all over one’s civil rights should, as the old saying goes, have their head examined.
What we have in the Hedges v. Obama case is yet another very bad precedent. As Judge Forrest had pointed out, “Courts must safeguard core constitutional rights.” The 2nd Circuit Appeals Court, clearly not applying the principle of caveat emptor (let the buyer beware) to this situation, has sold out that obligation for a handful of dubious promises. Recent history provides no confidence that such promises are given in good faith. No, it is bad faith we are witnessing here. The government lawyers should hang their heads in shame for obviously undermining the Constitution they are sworn to uphold. It just goes to show there are always those, be they soldiers, police, or lawyers who will simply follow orders no matter what the consequences.
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. Maybe the president is simply playing a double game and lying to the voters. Lying is certainly part of the politician’s toolbox. On the other hand, maybe Obama is conflicted but dwells in an environment where it is politically “necessary” to be seen as a tough guy, lest the Republican warmongers gain an edge. How much difference does it really make? As it stands now, in terms of civil liberties there is not much “daylight” between Obama’s practice and the past behavior of neoconservative vulgarians such as George W. Bush. “If it swims like a duck, then it probably is a duck.”
Lawrence Davidson is professor of history at West Chester University in West Chester, PA.