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.” In defiance of more than 200 earlier laws of domestic policing, this act holds that any member of a group deemed by the state to be a terrorist organization, whether it is a Palestinian charity or a Black Bloc anarchist unit, can be seized and held by the military. Mayer stressed this point in the court Wednesday when he cited the sedition convictions of peace activists during World War I who distributed leaflets calling to end the war by halting the manufacturing of munitions. Mayer quoted Justice Oliver Wendell Holmes’ dissenting 1919 opinion. We need to “be eternally vigilant against attempts to check the expression of opinions that we loathe,” the justice wrote.
The Justice Department’s definition of a potential terrorism suspect under the Patriot Act is already extremely broad. It includes anyone with missing fingers, someone who has weatherproof ammunition and guns, and anyone who has hoarded more than seven days of food. This would make a few of my relatives in rural Maine and their friends, if the government so decided, prime terrorism suspects.