By Chris Hedges
I was on the 15th floor of the Southern U.S. District Court in New York in the courtroom of Judge Katherine Forrest last Tuesday. It was the final hearing in the lawsuit I brought in January against President Barack Obama and Secretary of Defense Leon Panetta. I filed the suit, along with lawyers Carl J. Mayer and Bruce I. Afran, over Section 1021 of the National Defense Authorization Act (NDAA). We were late joined by six co-plaintiffs including Noam Chomsky and Daniel Ellsberg.
This section of the NDAA, signed into law by Obama on Dec. 31, 2011, obliterates some of our most important constitutional protections. It authorizes the executive branch to order the military to seize U.S. citizens deemed to be terrorists or associated with terrorists. Those taken into custody by the military, which becomes under the NDAA a domestic law enforcement agency, can be denied due process and habeas corpus and held indefinitely in military facilities. Any activist or dissident, whose rights were once protected under the First Amendment, can be threatened under this law with indefinite incarceration in military prisons, including our offshore penal colonies. The very name of the law itself — the Homeland Battlefield Bill — suggests the totalitarian credo of endless war waged against enemies within “the homeland” as well as those abroad.
“The essential thrust of the NDAA is to create a system of justice that violates the separation of powers,” Mayer told the court. …[The Obama administration has] taken detention out of the judicial branch and put it under the executive branch.”
In May, Judge Forrest issued a temporary injunction invalidating Section 1021 as a violation of the First and Fifth amendments. It was a courageous decision. Forrest will decide within a couple of weeks whether she will make the injunction permanent.
In last week’s proceeding, the judge, who appeared from her sharp questioning of government attorneys likely to nullify the section, cited the forced internment of Japanese-Americans during World War II as a precedent she did not want to follow. Forrest read to the courtroom a dissenting opinion by U.S. Supreme Court Justice Robert Jackson in Korematsu v. United States, a ruling that authorized the detention during the war of some 110,00 Japanese-Americans in government “relocation camps.”
“[E]ven if they were permissible military procedures, I deny that it follows that they are constitutional,” Jackson wrote in his 1944 dissent. “If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it.”
Barack Obama’s administration has appealed Judge Forrest’s temporary injunction and would certainly appeal a permanent injunction. It is a stunning admission by this president that he will do nothing to protect our constitutional rights. The administration’s added failure to restore habeas corpus, its use of the Espionage Act six times to silence government whistle-blowers, its support of the FISA Amendment Act — which permits warrantless wiretapping, monitoring and eavesdropping on U.S. citizens — and its ordering of the assassination of U.S. citizens under the 2001 Authorization to Use Military Force, or AUMF, is a signal that for all his rhetoric, Obama, like his Republican rivals, is determined to remove every impediment to the unchecked power of the security and surveillance state. I and the six other plaintiffs, who include reporters, professors and activists, will most likely have to continue this fight in an appellate court and perhaps the Supreme Court.
The language of the bill is terrifyingly vague. It defines a “covered person” — one subject to detention — as “a person who was a 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 has directly supported such hostilities in aid of such enemy forces.” The bill, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.”
Contrast this crucial debate in a federal court with the empty campaign rhetoric and chatter that saturate the airwaves. The cant of our political theater, the ridiculous obsessions over vice presidential picks or celebrity gossip that dominate the news industry, effectively masks the march toward corporate totalitarianism. The corporate state has convinced the masses, in essence, to clamor for their own enslavement.
There is, in reality, no daylight between Mitt Romney and Obama about the inner workings of the corporate state. They each support this section within the NDAA and the widespread extinguishing of civil liberties. They each will continue to funnel hundreds of billions of wasted dollars to defense contractors, intelligence agencies and the military. They each intend to let Wall Street loot the U.S. Treasury with impunity. Neither will lift a finger to help the long-term unemployed and underemployed, those losing their homes to foreclosures or bank repossessions, those filing for bankruptcy because of medical bills or college students burdened by crippling debt. Listen to the anguished cries of partisans on either side of the election divide and you would think this was a battle between the forces of light and the forces of darkness. You would think voting in the rigged political theater of the corporate state actually makes a difference. The charade of junk politics is there not to offer a choice but to divert the crowd while our corporate masters move relentlessly forward, unimpeded by either party, to turn all dissent into a crime.