One brave judge is all that lay between us and a law that would have
given the president power to detain US citizens indefinitely.



Naomi Wolf

guardian.co.uk,

Thursday 17 May 2012 18.19 BST


Activist and reporter Tangerine Bolen, a plaintiff in the case against
the NDAA, speaking to the media after a New York judge enjoined section
1021 of the law. Photograph via Fromthetrenchesworldreport

On Wednesday 16 May, at about 4pm, the republic of the United States
of America was drawn back – at least for now – from a precipice that
would have plunged our country into moral darkness. One brave and
principled newly-appointed judge ruled against a law that would have
brought the legal powers of the authorities of Guantánamo home to our
own courthouses, streets and backyards. US district judge Katherine Forrest, in New York City's eastern district, found that section 1021
– the key section of the National Defense Authorization Act (NDAA) –
which had been rushed into law amid secrecy and in haste on New Year's
Eve 2011, bestowing on any president the power to detain US citizens
indefinitely, without charge or trial, [url=http://www.huffingtonpost.com/2012/05/16/homeland-battlefield-act-unconstitutional_n_1522587.html]"facially unconstitutional"[/url].
Forrest concluded that the law does indeed have, as the journalists and
peaceful activists who brought the lawsuit against the president and
Leon Panetta have argued, a "chilling impact on first amendment rights".
Her ruling enjoins that section of the NDAA from becoming law. In her written opinion,
the judge noted that she had been persuaded by what the lead plaintiffs
– who include Pulitzer prize-winner Chris Hedges of the Nation
Institute, editor Jennifer Bolen of RevolutionTruth,
Noam Chomsky, Daniel Ellsberg, co-founder of Occupy London Kai
Wargalla, Days of Rage editor Alexa O'Brien, and the Icelandic
parliamentarian and WikiLeaks activist Birgitta Jónsdóttir – had argued.
In their testimonies (in court and by affidavit), these plaintiffs
compiled a persuasive case that they had "standing" to sue because it
was reasonable for them to worry that they could conceivably could be
detained indefinitely under the section 1021 law because their work
requires them to have contact with sources the US government might
assert were "terrorists" or "associated forces" of al-Qaida.The key claim made by the plaintiffs – of which Judge Forrest was
persuaded – was that the language in section 1021 is so vague that it
could sweep up anyone. The law fails to define or specify what
"associated forces" or the concept of "substantial support" actually
mean.I attended the hearing as a journalist supporting the
plaintiffs, providing by affidavit examples from my own experience of
how the NDAA's section 1021 had already affected my reporting.
(Princeton professor Dr Cornel West and I are also standing by to become
plaintiffs, if called upon, in the next round.) I was also there to
read in court Birgitta Jónsdóttir's disturbing testimony: she had been
advised by her own government not to attend the hearing in person
because the US government would not give Iceland a written assurance
that it would not detain her under the NDAA if she did so. US
federal agents have already confiscated her Twitter account and personal
bank records.The back-and-forth between Judge Forrest and Obama administration's
lawyers that goes to the heart of the judge's ruling was stunning to
behold. Forrest asked frepeatedly, in a variety of different ways, for
the government attorneys to give her some, any assurance that the
wording of section 1021 could not be used to arrest and detain people
like the plaintiffs. Finally she asked for assurance that it could not
be used to sweep up a hypothetical peaceful best-selling nonfiction
writer who had written a hypothetical book criticizing US foreign
policy, along lines theater the Taliban might agree with. Again and
again (the transcript from my notes is here),
the two lawyers said directly that they could not, or would not, give
her those assurances. In other words, this back-and-forth confirmed what
people such as Glenn Greenwald, the Bill of Rights Defense Committee,
the ACLU and others have been shouting about since January: the section
was knowingly written in order to give the president these
powers; and his lawyers were sent into that courtroom precisely to
defeat the effort to challenge them. Forrest concluded:"At
the hearing on this motion, the government was unwilling or unable to
state that these plaintiffs would not be subject to indefinite detention
under [section] 1021. Plaintiffs are therefore at risk of detention, of
losing their liberty, potentially for many years."The government's assertions become even more hellishly farcical. Forrest further observed:

"An
individual could run the risk of substantially supporting or directly
supporting an associated force without even being aware that he or she
was doing so. In the face of what could be indeterminate military
detention, due process requires more."This upholding
of the US constitution and the rule of law is a triumphant moment, but a
fragile one: Judge Forrest has asked Congress to clarify the language
protecting America's right to trial and the first amendment's
protections on speech and assembly. And now, Thursday, Representatives
Adam Smith (Democrat, Washington) and Justin Amash (Republican,
Michigan) have presented an amendment to Congress an amendment that does just that.
Those who vote against it therefore will be voting clearly, and without
any ambiguity, for stripping Americans of their constitutional rights
and reducing them to the same potential status as "enemy combatants" and
Guantánamo prisoners. The House thus votes for or against the power
handed to the executive by the NDAA to hold any of us, anywhere,
forever, for no reason. There can be no hiding from this; the lawyers
defending the administration's position made that perfectly clear.What truly disturbed me in that courtroom was the terrible fragility
of all the checks to power that are supposed to be in place to protect
us against such assaults on democracy. Many senators, including my own,
Chuck Schumer, had sent out letters to their own worried constituents
flat-out denying our fears about what section 1021 does. No major news
media organisations attended the original hearing (except Paul Harris of
the Guardian and Observer). The trial and the NDAA itself have been so
inadequately reported by mainstream outlets that I keep running into
senior editors and lawyers who have never heard of it. I
recently cornered one southern Democratic senator at an event and asked
him why he had voted to pass the NDAA. He asked what my objection was."It
allows the president to detain Americans without charge or trial," I
pointed out. His aides had assured him this was not the case, he
replied. "Have you read the bill?" I asked. "It's 1,600 pages," he
replied.This darkness is so dangerous not least because a new
Department of Homeland Security document trove, released in response to a
FOIA request filed by Michael Moore and the National Lawyers' Guild,
proves in exhaustive detail that the DHS and its "fusion centers"
coordinated with local police (as I argued here, to initial disbelief),
the violent crackdown against Occupy last fall. You have to put these
pieces of evidence together: the government cannot be trusted with
powers to detain indefinitely any US citizen – even though Obama
promised he would not misuse these powers – because the United States
government is already coordinating a surveillance and policing war against its citizens, designed to suppress their peaceful assembly and criticism of its corporate allies. The
lawyers for the government have endless funds (our tax dollars); the
plaintiffs' lawyers all worked pro bono; the plaintiffs themselves paid
their own way to make their case. Yet, by these slender means, what was
essentially a coup in two paragraphs has been blocked from advancing
under cover of ignorance and silence to becoming the supreme law of the
land. But should our democracy hang by such a tenuous thread that it
relies on the sheer luck that this case was heard by a courageous judge
with a settled belief in the constitution of the United States?