I Could Not Have Said It Better — Journalist Chris Hedges’ Single Paragraph about Evaporated American Freedom — in an Article about the Un-Constitutionality of Section 1021 of the National Defense Authorization

14 August 2012

Citation — to the Chris Hedges article that I am referring to

Chris Hedges, Criminalizing Dissent, Truthdig (13 August 2012)

Theme — fear has motivated us to trade Liberty for Autocracy

Sound boring?

This trend affects all of us. We are complicit in dribbling away our freedoms.

Two parts to this essay

These are:

(1) A specific example of Liberty’s demise, as illustrated by Section 1021 of the National Defense Authorization Act.

(2) Journalist Chris Hedges’ general statement about the causes of Freedom’s decline.

Part One — Section 1021 of the National Defense Authorization Act threatens freedoms that Americans take for granted

Journalist Chris Hedges and 6 other plaintiffs are in the process of challenging the constitutionality of Section 1021 in the federal district court for the Southern District of New York:

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.

Sound overly dramatic? — read the statute

Here is the wording of Section 1021 — the arguably unconstitutional provisions are underlined:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) 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.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 . . . . [meaning a military court]

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States. [See below for the reason that this wording is both disingenuous and meaningless.]

(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

“But what’s the problem with catching bad guys, Pete?”

It is not catching bad guys that is the issue.

The Constitutional and Liberty problems lie in allowing the Federal Government to snatch American citizens and lock them up — potentially forever — without permitting arrestees access to civilian court.

This law says that the President and the U.S. military can indiscriminately lock up any citizen, whom they suspect or pretend might be associated with:

the 11 September 2001 attack on the World Trade Center,

al-Qaeda,

the Taliban,

or “associated forces” — whoever they are

that are engaged in:

hostilities — however those are defined

against the United States or its coalition partners,

including any person who has committed a belligerent act — however that is defined

has directly supported such hostilities — however those might be defined

in aid of — however “aid” might be defined

such enemy forces.

These kingly prerogatives can interfere with citizens’ ordinary activities — including you and me

Dean Kuipers, of the Los Angeles Times, reported on the initial stage of the lawsuit:

Hedges had said that he could no longer interview some of his contacts in the Middle East because associating with these individuals might subject him to indefinite detention.

Similarly, one of the founders of Occupy London, Kai Wargalla, discovered that the city of London Police Department had categorized her organization as “domestic terrorism/extremism” — among a list of groups that included Al Qaeda.

Along with her work supporting Wikileaks, she said she felt primed for a visit from the rendition patrol.

It should be obvious that many Americans might have ordinary contacts and relationships with people, whom they do not realize are listed on American or Coalition “bad guy” lists.

These Americans can be scooped up indefinitely, with no way to defend their innocence in court.

Power corrupts — absolute power corrupts absolutely

The problem with Section 1021 is that assumes that Government appropriately identifies bad guys. But we all know that mistakes are frequently made.

In Section 1021’s case, not only are errors likely to occur in identifying the “enemy” organizations that are listed, mistakes are very probable in identifying the people criminally associated with them.

Then, throw in the statute’s ridiculously vague wording about “hostilities, belligerent act, and aid” — and you have a recipe for dictatorial excesses that would have made members of World War II’s Axis Powers proud.

Citation — Rob Natelson explains the legal reasons for challenging Section 1021

Rob Natelson, NDAA Sections 1021 and 1022: Scary Potential, TenthAmendmentCenter.com (06 February 2012)

Legal objections to Section 1021 — summarized

Habeus corpus protection boils down to the legal ability to force the State to bring you into a civilian court, in a timely manner, so as to demonstrate that you have done something illegal.

Section 1021 implicitly removes the habeus corpus projection previously afforded American citizens under circumstances in which the United States is not in a war that imminently threatens its survival.

Contrast today’s circumstances with those that President Lincoln faced, when he suspended habeus corpus, during the American Civil War. With the country split and enemy sympathizers on both sides of the lines, the Union’s immediate survival was at stake.

See:

Robert Longley, Lincoln Issues Proclamation Suspending Habeas Corpus Rights, About.com (2012)

Robert Longley, Bush and Lincoln both Suspended Habeas Corpus, About.com (2012)

As Rob Natelson pointed out, in regard to Section 1021’s imperious end run around President Lincoln and most of American history:

[N[one of these prior [U.S. Supreme Court] holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant.

So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

Contrast the cowardice that Section 1021 embraces with the courage of 1776’s patriots

Do you think that even one 1776 American patriot would have voted for, much less tolerated, Section 1021’s kingly prerogative?

Fear makes us cowards. We abandon our liberties in hopes that their abandonment will keep us safe.

This is a pusillanimously far cry from the Americans, who fought the British and died or suffered for freedom.

Part Two — “So, Pete, why are Americans today so different from our Liberty-insisting ancestors?”

Chris Hedges evidently thinks that today’s Americans are acting like entertainment addicts, whom America’s oligarchs manipulate into giving up Liberty.

He made his point in a single paragraph, that I have split up for readability reasons:

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.

The moral? — We are going to sleep our way into Autocracy, if we continue to ignore what fear and apathy are doing to Freedom’s Heritage

Talking a good line is not the same as actually living one.

Twenty-First Century American culture appears to be incapable of distinguishing the difference.

PeteFree.com

I Could Not Have Said It Better — Journalist Chris Hedges’ Single Paragraph about Evaporated American Freedom — in an Article about the Un-Constitutionality of Section 1021 of the National Defense Authorization