Fighting the Militarized State

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The Barack Obama administration, determined to thwart the attempt by other plaintiffs and myself to have the courts void a law that permits the military to arrest U.S. citizens, strip them of due process and indefinitely detain them, has filed a detailed brief with the Supreme Court asking the justices to refuse to accept our petition to hear our appeal. We will respond within 10 days.

“The administration’s unstated goal appears to be to get court to agree that [the administration] has the authority to use the military to detain U.S. citizens,” Bruce Afran, one of two attorneys handling the case, said when I spoke with him Sunday. “It appears to be asking the court to go against nearly 150 years of repeated decisions in which the court has refused to give the military such power. No court in U.S. history has ever recognized the right of the government to use the military to detain citizens. It would be very easy for the government to state in the brief that citizens and permanent residents are not within the scope of this law. But once again, it will not do this. It says the opposite. It argues that the activities of the plaintiffs do not fall within the scope of the law, but it clearly is reserving for itself the right to use the statute to detain U.S. citizens indefinitely.”

The lawsuit, Hedges v. Obama, challenges Section 1021(b)(2) of the National Defense Authorization Act (NDAA). It was signed into law the last day of 2011. Afran and fellow attorney Carl Mayer filed the lawsuit in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O’BrienTangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.

U.S. District Judge Katherine B. Forrest of the Southern District of New York, in a rare act of courage on the American bench today, declared Section 1021(b)(2) unconstitutional. The Obama administration immediately asked Forrest to lift her injunction and thereby put the law back into effect until it could appeal her decision. She rebuffed the government’s request. The government went to the U.S. Court of Appeals for the 2nd Circuit to ask it to stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit consented to the request. The law went back on the books.

Afran, Mayer and I expected the Obama administration to appeal, but we did not expect the government to mount such an aggressive response to Judge Forrest’s ruling. The law had to be restored because, our attorneys and I suspect, the administration well might be holding U.S. citizens who are dual nationals in some of our black sites. If Forrest’s ruling was allowed to stand, the administration would be in contempt of court if it was detaining U.S. citizens under the statute. This suspicion was buttressed during the trial. Government attorneys, when asked by the judge, refused to say whether or not the government was already using the law.

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