Extreme Alliance: Finding Common Ground with Manning and Snowden

Where others have failed to shed light on the dark shadow our military casts over the world, Bradley Manning and Edward Snowden have succeeded by demonstrating the courage to reveal our ignominy and speak truth to power

The exclusivity of the axiom that Democrats eat their own has been challenged in recent years by Republican infighting. Libertarians, having fully asserted themselves into the modern conservative movement, have fractured the Republican base and splintered allegiances that have endured for decades. Progressives have all but broken ties with the Democratic Party over a host of issues from single payer healthcare to drone strikes and regularly engage “Obamabots” in Twitter wars. But the blockbuster cases of PFC Bradley Manning and NSA whistleblower Edward Snowden have perhaps delivered the most bizarre ideological twist of all.

Libertarians and progressives have united on the issue of civil liberties, with Manning and Snowden as the source of the gravitational pull. It’s a tepid alliance of strange bedfellows that grows stronger with each passing day. Although lesser-known to consumers of mainstream media, the cases of Barrett Brown, Jeremy Hammond, Aaron Swartz, Jesselyn Radack and Thomas Drake have also helped to galvanize the furthest reaches of the American ideological spectrum.

This alliance of extremes comes from a deep understanding of the current risks that we face as Americans; an understanding of things rarely addressed with any depth or consistency in corporate broadcast and print media. Savvy and literate seekers of information who eschew corporate media know these risks by their legislative acronyms. AUMF. FISA. NDAA. Moreover, they know how they combine to infringe upon our rights as citizens in a manner that is unprecedented in U.S. history.

Some Americans are familiar with the appalling tributaries that stem from them. Drone strikes, rendition, warrantless wiretapping, indefinite detention, domestic communication management units and the overzealous prosecution of whistleblowers. Yet the neoliberal propaganda machine has been in overdrive for decades hammering into us ideas such as American “exceptionalism” (our lives are worth more than all others), corporations are people and money should be protected as speech. The have taught us to believe that our desire for privacy implies that we have something to hide, whereas their need for secrecy implies a sense of noblesse oblige.

Normalizing these absurdities by openly defending them through corporate propaganda channels has dulled our senses as a people. We are the walking dumb. The politically illiterate.

The government relies on its ability to manipulate the public by keeping it in a constant state of fear. Every generation has its Bogeyman beginning with the earliest days of the republic. In school we are taught to embrace the principles of the Declaration of Independence to the extent that they suit the prevailing American narrative. Ignored in school is the racist and imperial dogma found in these words from the same document: “He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.”

For years now I have reported on the relationship between the American government and sovereign Indian territories. Therefore, America’s paternalistic attitude toward the rest of the world is entirely familiar. The U.S. government views the world as one giant reservation system filled with dispensable people who receive handouts directly proportionate to the natural resources they possess. Failure to comply with our demands is to risk sanctions or occupation. The world has witnessed the unbroken wave of devastation the U.S. wrought in Indochina, the Middle East and Northern Africa, South America and Central America. The American war machine is fully autonomous, perpetual and indiscriminate.

Where others have failed to shed light on the dark shadow our military casts over the world, Bradley Manning and Edward Snowden have succeeded by demonstrating the courage to reveal our ignominy and speak truth to power. It’s why the ideological fringes of our nation see the greatness in what they have done. Progressives and Libertarians, regardless of their differences, do not revere authority. They question it. And while the conclusions they draw on several issues differ dramatically, neither easily accepts the official government narrative regarding Manning and Snowden, which is they recognize these men as heroic.

As for the rest of America, the government’s actions, no matter how barbaric or unconstitutional, are cloaked in the flag and sold as necessary tools in the “War on Terror.” To reject this notion as a citizen is to risk being alienated and branded a traitor. We have been brainwashed to believe that to “support the troops” somehow means sacrificing our youth abroad in the pursuit of oil and permanent war. Americans are so far removed from our activist roots that most are unable to see that today’s Bradley Manning and Edward Snowden are yesterday’s Daniel Ellsberg and Anthony Russo. That today’s Glenn Greenwald, Jeremy Scahill and Alexa O’Brien are yesterday’s Bob Woodward, Carl Bernstein and Seymour Hersh. That today’s Barrett Brown and Cindy Sheehan are yesterday’s Daniel Berrigan and Martin Luther King, Jr..

As a nation we tend to swallow the wholesale premise that all government actions are for our own good and that they must be employed in secret for our safety. But the secrecy the government defends is not only from the citizens it is accountable to but from the institutions designed to protect us from authoritarianism. To wit, our judicial system no longer has authority over wiretapping. Congress no longer has any oversight over the military. The Fourth Estate no longer enjoys the absolute protection afforded by the First Amendment. And dissidents no longer enjoy the freedom to peaceably assemble without intervention from law enforcement agencies with military arsenals.

Americans suffer from political amnesia. Forgotten are the Indian “removal” policies, Jim Crow laws, Japanese internment camps, the Kent State massacre, McCarthyism and Watergate. Therefore we have also forgotten the protections established to prevent these things from happening again. For those more concerned about whether Edward Snowden visited his mother enough or quibbling over Bradley Manning’s sexual orientation, allow me to demystify the above acronyms and explain what it is they are fighting against.

AUMF: Authorization for Use of Military Force. Immediately following 9/11 Congress granted extraordinary authority to the Bush administration to conduct a global war on terror. It was under this authority that the United States conducted illegal invasions of both Iraq and Afghanistan—nations with no connection to 9/11. It was also under this authority that the Bush administration began employing Unmanned Aerial Vehicles (UAV’s), more commonly known as drones, to hunt members of Al Qaeda in the mountainous regions of Pakistan. Both Presidents Bush and Obama expanded upon this authority to include Yemen and Somalia. These strikes are illegal, unconstitutional and immoral. They are not targeted, discriminate or judicious, despite the assertions of the Obama administration. We are terrorizing, and subsequently radicalizing, citizens of nations that we are not at war with.

FISA: Foreign Intelligence Surveillance Act. Originally enacted as a result of the Nixon administration’s abuse of eavesdropping, FISA was designed to establish a protocol for U.S. surveillance activities that required the government to obtain judicial approval prior to any such operation. The Bush administration broke this protocol and secretly authorized the NSA to eavesdrop without warrants. Even after the New York Times revealed the program, Congress amended the act in 2008 and officially granted the administration the authority to continue warrantless wiretapping with oversight from “secret courts.”

Secret courts. Secret. Fucking. Courts. In America.

Both the Bush administration and the Obama administration have publicly insisted that U.S. citizens have never been targets of any such program. Now we know this was a lie. Snowden’s recent revelations by the Guardian’s Glenn Greenwald have demonstrated that quite the opposite is true and the surveillance state is worse than anyone had predicted.

Spying is big business as evidenced by the fact that there are 1.6 private contractors working for the government in surveillance operations for every one government employee performing the same function. Our information has been outsourced to corporations that are writing and lobbying for the legislation that allows for it. Therefore, even those who defend the actions of the government must then concede that they are defending the actions of private corporations. It’s imperative that we see beyond the argument that if you’ve done nothing wrong then you have nothing to hide. It’s false logic because it falls apart in reverse. If this program was honest and constitutional, there would be no reason to lie about it, cover it up then threaten to silence anyone who attempts to speak out about it.

NDAA: The National Defense Authorization Act. The NDAA is an act that Congress is required to pass at the beginning of each fiscal year to organize funding and codify policies and procedures carried out by the military. Activists refer to NDAA as shorthand for an amendment authored in secret in December of 2011 by Senator John McCain regarding indefinite detention. Renowned journalist Chris Hedges brought suit against the government arguing that the language of this provision was so broad and vague that it theoretically allows for military detention of U.S. citizens, something the government vehemently denies. Nevertheless, instead of amending the language to quell any fear surrounding domestic military intervention against U.S. citizens, the Department of Justice has vigorously defended the inclusion of this provision in federal court.

The indefinite detention provision of the NDAA expands executive authority granted under the AUMF from those suspected of carrying out the terrorist attacks of 9/11 to anyone suspected of supporting terrorists. Nowhere does the government provide the definition of a terrorist or what might be considered “support.”

In May of 2013 the Pentagon introduced yet another wrinkle to this very dangerous equation. The Department of Defense altered a rule in the US Code titled “Defense Support of Civilian Law Enforcement Agencies” that grants the military the ability to quell civil disturbances and temporarily control a situation in the event authorization from the President of the United States is impossible to obtain. Nowhere does the DoD define what constitutes a civil disturbance, how long this temporary authority might last, whether or not civilians can be militarily detained without due process or under what circumstances the president would be “impossible” to reach.

Welcome to the Banana Republic of America.

Tie together the extraordinary authority the government has granted itself under these three provisions and the gravity of our predicament becomes painfully obvious. The government has the authority to listen to our conversations without obtaining a warrant. It is not only tracking every move you make online, it’s storing this information and building a profile from your actions. Any journalist who interviews someone the United States considers a terrorist threat can be seen as supporting this person. The military has the legal authority to quell any gathering it considers a “disturbance.” The military and domestic civilian agencies such as the CIA have the ability to carry out assassinations abroad regardless of whether we are involved in armed conflict in these territories. It can “disappear” anyone inside or outside of the United States for any reason.

These are the real threats to our liberty. To view them as such is to recognize the historical significance of Bradley Manning and Edward Snowden and appreciate the service they have performed for the benefit of our republic.

U.S. Military ‘Power Grab’ Goes Into Effect

“It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”

Pentagon Unilaterally Grants Itself Authority Over ‘Civil Disturbances’

By Jed Morey
Twitter: @jedmorey

This column originally appeared on www.LongIslandPress.com

The manhunt for the Boston Marathon bombing suspects offered the nation a window into the stunning military-style capabilities of our local law enforcement agencies. For the past 30 years, police departments throughout the United States have benefitted from the government’s largesse in the form of military weaponry and training, incentives offered in the ongoing “War on Drugs.” For the average citizen watching events such as the intense pursuit of the Tsarnaev brothers on television, it would be difficult to discern between fully outfitted police SWAT teams and the military.

The lines blurred even further Monday as a new dynamic was introduced to the militarization of domestic law enforcement. By making a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” the military has quietly granted itself the ability to police the streets without obtaining prior local or state consent, upending a precedent that has been in place for more than two centuries.

Click here to read the new rule

The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule:

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.

Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule, “a wanton power grab by the military,” and says, “It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”

A defense official who declined to be named takes a different view of the rule, claiming, “The authorization has been around over 100 years; it’s not a new authority. It’s been there but it hasn’t been exercised. This is a carryover of domestic policy.” Moreover, he insists the Pentagon doesn’t “want to get involved in civilian law enforcement. It’s one of those red lines that the military hasn’t signed up for.” Nevertheless, he says, “every person in the military swears an oath of allegiance to the Constitution of the United States to defend that Constitution against all enemies foreign and domestic.”

One of the more disturbing aspects of the new procedures that govern military command on the ground in the event of a civil disturbance relates to authority. Not only does it fail to define what circumstances would be so severe that the president’s authorization is “impossible,” it grants full presidential authority to “Federal military commanders.” According to the defense official, a commander is defined as follows: “Somebody who’s in the position of command, has the title commander. And most of the time they are centrally selected by a board, they’ve gone through additional schooling to exercise command authority.”

As it is written, this “commander” has the same power to authorize military force as the president in the event the president is somehow unable to access a telephone. (The rule doesn’t address the statutory chain of authority that already exists in the event a sitting president is unavailable.) In doing so, this commander must exercise judgment in determining what constitutes, “wanton destruction of property,” “adequate protection for Federal property,” “domestic violence,” or “conspiracy that hinders the execution of State or Federal law,” as these are the circumstances that might be considered an “emergency.”

“These phrases don’t have any legal meaning,” says Afran. “It’s no different than the emergency powers clause in the Weimar constitution [of the German Reich]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.”

Afran also expresses apprehension over the government’s authority “to engage temporarily in activities necessary to quell large-scale disturbances.”

“Governments never like to give up power when they get it,” says Afran. “They still think after twelve years they can get intelligence out of people in Guantanamo. Temporary is in the eye of the beholder. That’s why in statutes we have definitions. All of these statutes have one thing in common and that is that they have no definitions. How long is temporary? There’s none here. The definitions are absurdly broad.”

The U.S. military is prohibited from intervening in domestic affairs except where provided under Article IV of the Constitution in cases of domestic violence that threaten the government of a state or the application of federal law. This provision was further clarified both by the Insurrection Act of 1807 and a post-Reconstruction law known as the Posse Comitatus Act of 1878 (PCA). The Insurrection Act specifies the circumstances under which the president may convene the armed forces to suppress an insurrection against any state or the federal government. Furthermore, where an individual state is concerned, consent of the governor must be obtained prior to the deployment of troops. The PCA—passed in response to federal troops that enforced local laws and oversaw elections during Reconstruction—made unauthorized employment of federal troops a punishable offense, thereby giving teeth to the Insurrection Act.

Together, these laws limit executive authority over domestic military action. Yet Monday’s official regulatory changes issued unilaterally by the Department of Defense is a game-changer.

The stated purpose of the updated rule is “support in Accordance With the Posse Comitatus Act,” but in reality it undermines the Insurrection Act and PCA in significant and alarming ways. The most substantial change is the notion of “civil disturbance” as one of the few “domestic emergencies” that would allow for the deployment of military assets on American soil.

To wit, the relatively few instances that federal troops have been deployed for domestic support have produced a wide range of results. Situations have included responding to natural disasters and protecting demonstrators during the Civil Rights era to, disastrously, the Kent State student massacre and the 1973 occupation of Wounded Knee.

Michael German, senior policy counsel to the American Civil Liberties Union (ACLU), noted in a 2009 Daily Kos article that, “there is no doubt that the military is very good at many things. But recent history shows that restraint in their new-found domestic role is not one of them.”

At the time German was referring to the military’s expanded surveillance techniques and hostile interventions related to border control and the War on Drugs. And in fact, many have argued that these actions have already upended the PCA in a significant way. Even before this most recent rule change, the ACLU was vocal in its opposition to the Department of Defense (DoD) request to expand domestic military authority “in the event of chemical, biological, radiological, nuclear, or high yield explosive (CBRNE) incidents.” The ACLU’s position is that civilian agencies are more than equipped to handle such emergencies since 9/11. (ACLU spokespersons in Washington D.C. declined, however, to be interviewed for this story.)

But while outcomes of military interventions have varied, the protocol by which the president works cooperatively with state governments has remained the same. The president is only allowed to deploy troops to a state upon request of its governor. Even then, the military—specifically the National Guard—is there to provide support for local law enforcement and is prohibited from engaging in any activities that are outside of this scope, such as the power to arrest.

Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” Yet that’s precisely what it did. This wasn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade.

Déjà vu

During the Bush Administration, Congress passed the 2007 Defense Authorization Bill that included language similar in scope to the current regulatory change. It specifically amended the Insurrection Act to expand the president’s ability to deploy troops domestically under certain conditions including health epidemics, natural disasters and terrorist activities, though it stopped short of including civil disturbances. But the following year this language was repealed under the National Defense Authorization Act of 2008 via a bill authored by Vermont Senator Patrick Leahy (D-VT) who cited the “useful friction” between the Insurrection and Posse Comitatus Acts in limiting executive authority.

According to the DoD, the repeal of this language had more to do with procedure and that it was never supposed to amend the Insurrection Act. “When it was actually passed,” says the defense official, “Congress elected to amend the Insurrection Act and put things in the Insurrection Act that were not insurrection, like the support for disasters and emergencies and endemic influenza. Our intent,” he says, “was to give the president and the secretary access to the reserve components. It includes the National Guard and, rightfully so, the governors were pretty upset because they were not consulted.”

Senator Leahy’s office did not have a statement as of press time, but a spokesperson said the senator had made an inquiry with the DoD in response to our questions. The defense official confirmed that he was indeed being called in to discuss the senator’s concerns in a meeting scheduled for today. But he downplayed any concern, saying, “Congress at any time can say ‘we don’t like your interpretation of that law and how you’ve interpreted it in making policy’—and so they can call us to the Hill and ask us to justify why we’re doing something.”

Last year, Bruce Afran and another civil liberties attorney Carl Mayer filed a lawsuit against the Obama Administration on behalf of a group of journalists and activists lead by former New York Times journalist Chris Hedges. They filed suit over the inclusion of a bill in the NDAA 2012 that, according to the plaintiffs, expanded executive authority over domestic affairs by unilaterally granting the executive branch to indefinitely detain U.S. citizens without due process. The case has garnered international attention and invited vigorous defense from the Obama Administration. Even Afran goes so far as to say this current rule change is, “another NDAA. It’s even worse, to be honest.”

For Hedges and the other plaintiffs, including Pentagon Papers whistleblower Daniel Ellsberg, the government’s ever-expanding authority over civilian affairs has a “chilling effect” on First Amendment activities such as free speech and the right to assemble. First District Court Judge Katherine Forrest agreed with the plaintiffs and handed Hedges et al a resounding victory prompting the Department of Justice to immediately file an injunction and an appeal. The appellate court is expected to rule on the matter within the next few months.

Another of the plaintiffs in the Hedges suit is Alexa O’Brien, a journalist and organizer who joined the lawsuit after she discovered a Wikileaks cable showing government officials attempting to link her efforts to terrorist activities. For activists such as O’Brien, the new DoD regulatory change is frightening because it creates, “an environment of fear when people cannot associate with one another.” Like Afran and Freedman, she too calls the move, “another grab for power under the rubric of the war on terror, to the detriment of citizens.”

“This is a complete erosion of the rule of law,” says O’Brien. Knowing these sweeping powers were granted under a rule change and not by Congress is even more harrowing to activists. “That anything can be made legal,” says O’Brien, “is fundamentally antithetical to good governance.”

As far as what might qualify as a civil disturbance, Afran notes, “In the Sixties all of the Vietnam protests would meet this description. We saw Kent State. This would legalize Kent State.”

But the focus on the DoD regulatory change obscures the creeping militarization that has already occurred in police departments across the nation. Even prior to the NDAA lawsuit, journalist Chris Hedges was critical of domestic law enforcement agencies saying, “The widening use of militarized police units effectively nullifies the Posse Comitatus Act of 1878.”

This de facto nullification isn’t lost on the DoD.

The DoD official even referred to the Boston bombing suspects manhunt saying, “Like most major police departments, if you didn’t know they were a police department you would think they were the military.” According to this official there has purposely been a “large transfer of technology so that the military doesn’t have to get involved.” Moreover, he says the military has learned from past events, such as the siege at Waco, where ATF officials mishandled military equipment. “We have transferred the technology so we don’t have to loan it,” he states.

But if the transfer of military training and technology has been so thorough, it boggles the imagination as to what kind of disturbance would be so overwhelming that it would require the suspension of centuries-old law and precedent to grant military complete authority on the ground. The DoD official admits not being able to “envision that happening,” adding, “but I’m not a Hollywood screenwriter.”

Afran, for one, isn’t buying the logic. For him, the distinction is simple.

“Remember, the police operate under civilian control,” he says. “They are used to thinking in a civilian way so the comparison that they may have some assault weapons doesn’t change this in any way. And they can be removed from power. You can’t remove the military from power.”

Despite protestations from figures such as Afran and O’Brien and past admonitions from groups like the ACLU, for the first time in our history the military has granted itself authority to quell a civil disturbance. Changing this rule now requires congressional or judicial intervention.

“This is where journalism comes in,” says Freedman. “Calling attention to an unauthorized power grab in the hope that it embarrasses the administration.”

Afran is considering amending his NDAA complaint currently in front of the court to include this regulatory change.

As we witnessed during the Boston bombing manhunt, it’s already difficult to discern between military and police. In the future it might be impossible, because there may be no difference.

 

 

Photo: U.S. Troops in Afghanistan (Photo: Senior Airman Sean Martin, U.S. Air Force)

Gun Nuts and Chilled Speech

When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with a handful of the world’s most prominent political activists, join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Okay, so now we’re all armed. Present company included. Great job, America. Now what?

The debate over gun control would be uproarious if it wasn’t so pitiful. In typical American fashion we have taken to the streets and airwaves in the aftermath of Sandy Hook to engage in an irrational debate that, once again, places misguided ideology over common sense and humanity. If we’re going to have this conversation, let us at least place the discussion within its proper historical context so we may raise a more troubling question:

Why bother taking the guns when you can indefinitely detain their owners? 

Lost in the emotion surrounding the debate over the Second Amendment is a far more insidious assault on the First Amendment. In no way am I diminishing the consternation over our right to bear arms as citizens; rather, I’m making a pragmatic case for a far more clear and present danger than the idea that federal agents will show up at our doorstep to commandeer our weapons. Before we get to this larger and more important point, let us dispense with the ridiculous.

Of course, we shouldn’t sell guns to crazy people, just like we don’t give a driver’s licenses to  blind people. Of course, citizens shouldn’t own military-style weapons with enough ammunition to wipe out a village. Newsflash: the government has neither the authority nor the desire to seize our guns. We hold the dual distinction of being the planet’s most armed nation and its biggest dealer of arms. What does this mean? The gun culture is here to stay because it’s profitable as hell.

And another thing: Stop yelling sanctimoniously about what the Founding Fathers would say. Find out what they did say. Media pundits insult our intelligence by twisting the meaning of the Constitution and the rationale behind it. So instead of arming yourself with high-capacity weapons, arm yourself with knowledge and learn about the Second Amendment from those who wrote it.

Founding Father Knows Best

During the two short years between the ratification of the Constitution and the introduction of the Bill of Rights, three of the greatest minds in America publicly explored the rationale behind the country’s founding document. A trio of intellectual giants writing interchangeably under the name Publius—Alexander Hamilton, John Jay and James Madison—produced a collection of essays now known as The Federalist Papers. They are essentially crib notes to the Constitution left behind by the Founding Fathers.

These are treasured breadcrumbs of reasoning that lead us to understand that the great military concerns of the day were whether or not to allow a standing army and how to prevent one state from acquiring military dominance over another. (The nascent nation could ill-afford Virginia to sack Rhode Island.) This dilemma was at the heart of the federalist argument for a centralized authority. At the same time, the Founding Fathers knew that the great balancing act of the day was in maintaining enough military force to defend against external foes while simultaneously preventing armed insurrections from within.

Publius reasoned that neither citizens nor tyrants should have the ability to circumvent our legal system, therefore arms and force should be evenly rationed but employed by a central government when necessary. (For the politically impaired, this is the part about a well-regulated militia.) The framers of the Constitution were dubious when it came to having full-time, professional soldiers. After all, these men were revolutionaries themselves who intimately understood the danger of uprisings. Moreover, America was also flat broke and could never have paid for a standing army. They did, however, believe Congress should have the ability to organize a militia when necessary.

It was Hamilton (as Publius) who offered the most succinct viewpoint on the military. “To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions on paper.”

To have an army or not? If so, how best to regulate it? This was the debate. The easiest way to raise a militia was to call upon the armed citizenry should the need arise. (This is the right to bear arms part.) More importantly, it was cheap. The ability to compensate servicemen would become one of Hamilton’s central arguments in favor of a national bank—a far more delicate subject at the time than the right to bear arms would ever be. 

It’s fair to say even the Founding Fathers could never have imagined modern warfare and the rise of the military industrial complex. Nor could they have imagined the destructive capability of assault weapons in the hands of citizens. This much is clear from their writings: the Founding Fathers would have punished any idiot who attempted to stockpile enough weapons to take on the government long before they tolerated government prohibition of speech.

On several occasions our founders saw fit to violently quell popular uprisings in order to preserve the central authority of the union. In this there was great philosophical unity among them. They argued more about banking than guns and cared more about protecting speech than organizing militias. It was John Adams who created a divide among them when, as president, he passed the Alien and Sedition Acts, jarring both Thomas Jefferson and James Madison out of retirement; not because they were fearful of his demagoguery with respect to force, but because these acts took away a more sacred right: free speech.

This brings us to the larger issue at hand.

Just as Jefferson and Madison recoiled at the behavior of Adams once in office, the great intellectual giants of our day have come together to challenge President Barack Obama’s authority. 

The man who released “The Pentagon Papers” and forever changed the way in which we view our involvement in Vietnam. The award-winning multilingual journalist who quit the New York Times because it was too tepid and conservative. America’s foremost dissident who has influenced generations of thinkers and helped shape liberal intellectualism. When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with some of the world’s foremost political activists such as Jennifer “Tangerine” Bolen – the organizing force of the plaintiff’s team – join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Such is the predicament Obama finds himself in today. The above group has brought suit against the government for infringing upon free speech as defined by the Constitution. Thus far, and thankfully, they are winning. Their lawsuit (which I refer to herein as the Hedges suit) not only challenges the government’s unconstitutional behavior, it casts a light on a dangerous trend in America and exposes a surprising secret weakness in the White House and the Justice Department.

Incarceration Nation

“There are now more people under ‘correctional supervision’ in America—more than six million—than were in the Gulag Archipelago under Stalin at its height.” —Adam Gopnik, The New Yorker, 2012.

The woeful mash-up of Conservatives, Libertarians, Tea Party loyalists and Democrats who wouldn’t know a liberal idea if the ghost of Gore Vidal whispered it to them, are so busy deconstructing America’s gun culture they have ignored a more alarming cultural trend: the culture of incarceration.

In addition to being the most armed nation in the world, America also has the greatest percentage of its population behind bars. While this trend has steadily risen over the past few decades, it has gained a level of acceptability in the post-9/11 era. Perhaps, this is why so few bristled at the passage of the provision the Hedges suit aims at. 

The plaintiffs in this suit have made the case in federal court that the Obama administration and Congress violated the First Amendment with the signing of the National Defense Authorization Act (NDAA) of 2012. The Act is a routine bill that organizes defense spending for the year and typically garners little attention from citizens and the media. But the 2012 Act contained a new provision authored in secret by Sen. John McCain—known as Section 1021—that was so alarming it prompted the above suit.

Essentially, Sec. 1021 expands the scope of existing law that allows the government to hunt terrorists in connection with 9/11 to include anyone seen as providing “substantial support” of terrorism. Ever. Anywhere. The provision offers vague language that attempts to couch it within existing statutes but its very existence is evidence that the government is seeking more expansive authority.

In September of 2001 the White House put forward several provisions that gave the government the power to prosecute those responsible for the terrorist attacks on 9/11. The joint resolution—the Authorization for Use of Military Force (AUMF)—passed Congress quickly and included nearly everything the Bush Administration requested. Everything, that is, except a provision that could have been interpreted as granting the government the ability to militarily detain U.S. citizens. This denial was subsequently upheld by the U.S. Supreme Court.

The Hedges suit argues that the broadness of Sec. 1021 and vagueness of the “substantial support” language endanger journalists and activists and theoretically expose U.S. citizens to indefinite military detention.

Katherine B. Forrest, district judge in the U.S. District Court Southern District of New York, presided over the opening salvo of the Hedges suit and delivered a resounding victory to the plaintiffs, and an injunction against enforcement of Sec. 1021, excoriating the government and its case in the process. In her decision she states, “The Government was unable to provide this Court with any assurance that plaintiffs’ activities…would not in fact subject plaintiffs to military detention.”

For its part, the government’s sole defense seemed to be inaction: If no one has yet been detained, then obviously there is no cause for alarm. Basically, their defense is that even though Sec. 1021 says that the government can punch you in the face if it doesn’t like your shirt, it hasn’t done it yet; therefore we must assume it won’t. Judge Forrest wasn’t buying it. Her decision examines various laws pertaining to what the government defines as criminal statutes related to terrorist activities of behavior in “material support” of such activities. In each case, laws are clearly designed to honor due process. She further argues that the plaintiffs are rightly concerned that Sec. 1021 falls outside the scope of constitutionality with respect to habeas corpus and is therefore not consistent with any legal precedent.

This is where it gets really, really interesting.

 Judge Forrest: “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly broad interpretation of the AUMF.”

Whoa.

President Obama doesn’t have a journalism problem. He’s not afraid of liberal scholars, protests, or homegrown terrorism on the rise because of access to Jihadist websites. Barack Obama has a Guantanamo problem.

Ah, Guantanamo. Hundreds of suspected terrorists or their affiliates have been brought here for questioning. Scores have been indefinitely detained. Recall then-candidate Obama’s assurance that Gitmo would be closed. Upon becoming president, it didn’t take long for the political reality to set in that the remaining prisoners weren’t coming ashore to stand trial anytime soon.

On the one hand, the government makes the case that Sec. 1021 is no different than existing authority granted under the AUMF. On the other hand, the government stands by the need for this provision to continue its mission to find and prosecute suspected terrorists, as though AUMF isn’t sufficient enough. Judge Forrest barely shields her disdain for this conflicting stance and rightfully concludes that “Section 1021 is, therefore, significantly different in scope and language from the AUMF.” She goes on to wag her finger at the attorneys for the government, saying, “Shifting positions are intolerable when indefinite military detention is the price that a person could have to pay for his/her, or law enforcement’s, erroneous judgment as to what may be covered.”

Back to Hedges et al. for a moment. Stymieing the government’s continued attempt to cover up potential war crimes at Guantanamo may have been an incredible, yet unintended consequence of the Hedges suit. Remember, the plaintiffs in the Hedges suit aren’t suing over Guantanamo. That’s a different fight. Rather, they take issue with the inherent danger of the language to citizens, activists and journalists. Nevertheless, Sec. 1021 is still on the books as the suit is pending appeal. And regardless of whether or not any U.S. citizen has been specifically detained as a result of its passage (and how would we know?) it must disappear.

For his part, President Obama issued a signing statement distancing his presidency from Sec. 1021. But actions speak louder than words and in many ways he has been far more active in assaulting civil liberties than President George W. Bush ever was. Whether through the wide use of drone strikes in Pakistan, Yemen and Somalia or numerous examples of prosecutorial overreach—most recently the tragic case of “hacktivist” Aaron Swartz—or the failure to speak out against the alphabet soup of dwindling liberties (SOPA, PIPA, FISA) Obama has given the public little evidence that he cares about this issue. Perhaps even more troubling is that his tenure as a constitutional law professor has been touted so often that one can only assume he understands the complexity of the issue but has chosen to ignore it, or worse take advantage of it. Bush was able to play the no-nonsense (you’re either with us or against us) cowboy card. Obama has chosen to play the steely intellectual card, and in doing so has created legitimate cause for alarm.

All of which brings us back to the gun debate. As much as I am sympathetic to the right to bear arms, I refuse to capitulate to the cheap argument that it includes the right to possess combat-style weaponry. Furthermore, I’ve grown weary of the ignorant protestations from right-wing figures who poison the words of the Founding Fathers and miss the bigger picture altogether.

The more we divorce ourselves from the notion of liberty, the more abstract it becomes; the more divisive our discourse, the more perilous our future. The vociferous gun debate obscures the very real, current and existing assault on our civil liberties. And know this: Were they alive today, not only would Hamilton, Jay and Madison have joined Ellsberg, Hedges and Chomsky as plaintiffs in this lawsuit, they would challenge every right-wing blogger, talk radio host and television pundit who twisted their words to a duel.

With a pistol, not an assault rifle.

 

Illustration: Jon Moreno

 This version has been updated from the original that appears in the February edition of the Long Island Press.