With 500-some pages of text, the 2012 National Defense
Authorization Act (NDAA) covers a lot more than just section
1021(b), but the majority of the debates over the bill involve the
very reason the four letters N-D-A-A have become shorthand for
fears of government power finally crossing a Rubicon. Whether or
not that’s really true, the caginess of the government in respect
to who it can
indefinitely detain[pdf] is disturbing and demands a
clarification that is not being offered. ;
Section 1021(b) reads that someone who can be indefinitely
detained is:
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 government says the ;controversial ;bit of the NDAA
is nothing new, but seven plaintiffs, including Pentagon
Papers ;leaker ;Daniel ;Ellsberg, dissident writer Noam
Chomsky, and journalist Chris Hedges, sued in January, arguing that
they were under threat. Hedges in particular argued that his First
Amendment rights are violated by the NDAA since he has interviewed
numerous members of Al-Qaeda ;and the Taliban, but now fears
doing so.
Another plaintiff in ;Hedges v. Obama ;is
activist Jennifer "Tangerine" ;Bolen, founder of the
pro-whistleblower group ;RevolutionTruth.org.
She ;worries
that ;her organization's support of ;WikiLeaks ;and
imprisoned soldier and accused leaker Bradley Manning might also
make her or her allies applicable for detainment under the
NDAA.
Section 1021(a) of the bill repeats the government's power to go
after perpetrators (and those who harbored them, etc.) of the
September 11th attacks (put in writing in the joint ;Authorization
for Use of ;Military ;Force ;resolution) but
1021(b) does read an awful lot like it's expanding powers, even if
the actual text of the NDAA and Obama administration officials
claim it isn't changing anything. (For a good overview of the NDAA
up until now, go check out this Young Americans for
Liberty ;blog post.)
Bolen ;believes part of the subtext to these argument is
that the government wants an excuse to go after Julian ;Assange
and ;Wikileaks."They don't want to go after ;The New
York Times," she says, "They’re willing
to ;cherry-pick ;who they apply
indefinite ;detention ;to." But once they can get
to ;Assange, this power will "cascade ;downward" and then
people like ;Bolen ;or Hedges could be under threat as
well.
The government's initial ;argument was that the powers
granted in provision 1021(b) ;
were exactly the same as those granted by the AUMF. Yet,
argues ;Bolen, if the AUMF and the NDAA are the same, why is
the government so desperate to stop this lawsuit? Why did they
appeal less than 24 hours after Judge Katherine Forrest’s
permanent block ;of indefinite detainment on September 13?
Why do they claim that block could cause "irreparable harm" to the
United States? ;Well, no harm done for the moment. On Tuesday
afternoon, the Second Circuit Court of Appeals ruled, and
a ;three-judge
panel ;stayed Forrest's block until a final decision is
reached in December. Until then, or until ;this hits the
Supreme Court, indefinite detainment is back on.
The about the NDAA, says Bolen, is that it's a retroactive "CYA"
— ;cover your ass. "The AUMF powers were so broadly overused
for 11 years...this is an attempt [by the Obama administration] to
codify powers they never had." The Bush administration's secret
prisons and detainment, both ;at ;Gitmo and
at ;CIA
black sites ;all over, ;Bolen ;says that the AUMF
didn't allow any of that, but the NDAA would.
NDAA is, says Bolen, an attempt to legalize the past 11 years of
the most heated debates of the War on Terror. ;And Hedges
v. Obama is “the latch on Pandora’s box” for proving “this
incredibly broad application of the AUMF which was never
legal.”
In their Tuesday ruling, the Second Circuit ;judges
wrote ;[pdf] that it was in "the public interest" to grant
the government ;appeal ;a stay. Part of their reasoning was
that the government finally clarified that the plaintiffs had no
reason to fear detainment, meaning that they had no standing to sue
in the first place.
When the government initially refused to offer assurances that
the plaintiffs could not be detained back in March, this made Judge
Forrest more sympathetic to the question of whether ;the seven
individuals indeed had standing to sue. Later, in August, seeing
that Forrest was indeed going to block indefinite detainment, the
government did try to offer assurances that journalists
who were independent were under no threat by offering a clarifying
brief. This, according to to ;Bolen ;brought up a lot of
questions still for the judge. Bolen says Forrest asked,
"“Are ;youtube journalists independent? Are you going to form a
panel to decide who is independent?" and she was still not
satisfied, leading to the Judge's 112-page ;ruling
in which she expressed ;incredulousness over the
government's utter failure to make their
case. ; ;[Correction: updated language to reflect
better accuracy in the timeline of the case.]
The ;wording in the
government's ;response brief just does ;not
satisfy ;any of the plaintiffs and opens up more questions
over whether the government may actually be considering keeping an
eye on journalists who are not seen as "independent."
Bolen, for her part, thinks that the case will make it to the
Supreme Court. But it’s up to her and her fellow-plaintiffs to try
to change public opinion to make sure NDAA gets thrown out. As for
her opinion on Obama, whose administration is pushing so hard on
this, well, it’s not as harsh as you might think. She mentions the
near-lies that lead to the Iraq war and says that the government is
trained to “out-speak everyone” and that’s what they’re doing
again. But “it’s less insidious and less horrific than under Bush.
Not to excuse Obama, but he inherited a total nightmare…He can’t
suddenly deny himself powers…”
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