Chris Hedges / TruthDig – 2012-01-16 21:39:11
(January 16, 2012) — Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint Friday in the Southern US District Court in New York City on my behalf as a plaintiff against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31.
The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any US citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.
I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have “disappeared” into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.
Section 1031 of the bill 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.”
I met regularly with leaders of Hamas and Islamic Jihad in Gaza. I used to visit Palestine Liberation Organization leaders, including Yasser Arafat and Abu Jihad, in Tunis when they were branded international terrorists. I have spent time with the Revolutionary Guard in Iran and was in northern Iraq and southeastern Turkey with fighters from the Kurdistan Workers’ Party. All these entities were or are labeled as terrorist organizations by the US government.
What would this bill have meant if it had been in place when I and other Americans traveled in the 1980s with armed units of the Sandinistas in Nicaragua or the Farabundo Marti National Liberation Front guerrillas in El Salvador? What would it have meant for those of us who were with the southern insurgents during the civil war in Yemen or the rebels in the southern Sudan? I have had dinner more times than I can count with people whom this country brands as terrorists. But that does not make me one.
Once a group is deemed to be a terrorist organization, whether it is a Palestinian charity or an element of the Uighur independence movement, the military can under this bill pick up a US citizen who supported charities associated with the group or unwittingly sent money or medical supplies to front groups. We have already seen the persecution and closure of Islamic charity organizations in the United States that supported the Palestinians. Now the members of these organizations can be treated like card-carrying “terrorists” and sent to Guantanamo.
But I suspect the real purpose of this bill is to thwart internal, domestic movements that threaten the corporate state. The definition of a terrorist is already so amorphous under the Patriot Act that there are probably a few million Americans who qualify to be investigated if not locked up.
Consider the arcane criteria that can make you a suspect in our new military-corporate state. The Department of Justice considers you worth investigating if you are missing a few fingers, if you have weatherproof ammunition, if you own guns or if you have hoarded more than seven days of food in your house.
Adding a few of the obstructionist tactics of the Occupy movement to this list would be a seamless process. On the whim of the military, a suspected “terrorist” who also happens to be a US citizen can suffer extraordinary rendition — being kidnapped and then left to rot in one of our black sites “until the end of hostilities.” Since this is an endless war that will be a very long stay.
This demented “war on terror” is as undefined and vague as such a conflict is in any totalitarian state. Dissent is increasingly equated in this country with treason. Enemies supposedly lurk in every organization that does not chant the patriotic mantras provided to it by the state. And this bill feeds a mounting state paranoia.
It expands our permanent war to every spot on the globe. It erases fundamental constitutional liberties. It means we can no longer use the word “democracy” to describe our political system.
The supine and gutless Democratic Party, which would have feigned outrage if George W. Bush had put this into law, appears willing, once again, to grant Obama a pass. But I won’t. What he has done is unforgivable, unconstitutional and exceedingly dangerous. The threat and reach of al-Qaida — which I spent a year covering for The New York Times in Europe and the Middle East — are marginal, despite the attacks of 9/11.
The terrorist group poses no existential threat to the nation. It has been so disrupted and broken that it can barely function. Osama bin Laden was gunned down by commandos and his body dumped into the sea. Even the Pentagon says the organization is crippled. So why, a decade after the start of the so-called war on terror, do these draconian measures need to be implemented?
Why do US citizens now need to be specifically singled out for military detention and denial of due process when under the 2001 Authorization for Use of Military Force the president can apparently find the legal cover to serve as judge, jury and executioner to assassinate US citizens, as he did in the killing of the cleric Anwar al-Awlaki in Yemen?
Why is this bill necessary when the government routinely ignores our Fifth Amendment rights — “No person shall be deprived of life without due process of law” — as well as our First Amendment right of free speech? How much more power do they need to fight “terrorism”?
Fear is the psychological weapon of choice for totalitarian systems of power. Make the people afraid. Get them to surrender their rights in the name of national security. And then finish off the few who aren’t afraid enough. If this law is not revoked we will be no different from any sordid military dictatorship. Its implementation will be a huge leap forward for the corporate oligarchs who plan to continue to plunder the nation and use state and military security to cow the population into submission.
The oddest part of this legislation is that the FBI, the CIA, the director of national intelligence, the Pentagon and the attorney general didn’t support it. FBI Director Robert Mueller said he feared the bill would actually impede the bureau’s ability to investigate terrorism because it would be harder to win cooperation from suspects held by the military. “The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we’ve been fairly successful in gaining,” he told Congress.
But it passed anyway. And I suspect it passed because the corporations, seeing the unrest in the streets, knowing that things are about to get much worse, worrying that the Occupy movement will expand, do not trust the police to protect them. They want to be able to call in the Army. And now they can.
Text of Hedges’ Legal Complaint
(FIFTH AMENDMENT DUE PROCESS) ABSENCE OF ADEQUATE STATUTORY NOTICE 23
The Homeland Battlefield Bill is unconstitutional in that imposes incarceration, detention, rendition and/or military prosecution without adequate notice of the nature and substance of the charge that a “covered person” has “substantially supported” or “directly supported” the activities of any person, organization, entity or their allies or associates who are in a state of hostility with the US under the AUMF. 24
In particular, the Homeland Battlefield Bill, Â§1031 fails to give adequate statutory notice of its material terms including the terms “covered person”, “covered persons”, “substantially supported”, “directly supported” or ” associated forces.” 25
As a result of the absence of proper notice and statutory definitions of said material terms plaintiff and others similarly situated do not have adequate notice of the acts and matters that will render them “covered persons” under Â§1031 and subject to indefinite detention without trial, made subject to military trial or to rendition outside the United States. 26.
Accordingly, the Homeland Battlefield Bill, Â§1031 authorizes the arrest and indefinite detention of US citizens and other persons without adequately defining or giving notice as to “covered persons” or the acts that render a person one who “substantially supported” or “directly supported” the described entities including ” al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the UnitedStates”.
WHEREFORE, Â§1031 of the Homeland Battlefield Bill is unconstitutional in that it fails to provide adequate statutory notice of the nature and substance of the acts for which a “covered person” shall be subject to arrest, detention and other treatment under the statute and Plaintiff respectfully requests judgment declaring Â§1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
(MILITARY JURISDICTION TO BE IMPOSED UPON CIVILIANS ARRESTEDWITHIN THE UNITED STATES AS “COVERED PERSONS” UNDER Â§1031) 27.
Under Â§1031, persons arrested as “covered persons” within the United States may be made subject to the military jurisdiction and the military courts in violation of the United States Constitution that provides for civilian access to a civil court system for all crimes and offenses within the United States.
WHEREFORE, Â§1031(c)(2) and (3) of the Homeland Battlefield Bill are unconstitutional in that they impose military jurisdiction upon civilians in violation of Article III and Amendment V of the United States Constitution and Plaintiff respectfully requests judgment declaring Â§1031(c)(2) and (3) to be void and permanently enjoining their enforcement, along with attorney’s fees and cost of suit.
(FIRST AMENDMENT) EXPRESSIVE AND JOURNALISTIC ACTIVITIES 28.
The Homeland Battlefield Bill, Â§1031 is unconstitutional in that it imposes indefinite incarceration without trial or judicial recourses for expressive conduct such as that of Plaintiff in his work as a journalist and chills and burdens the freedom of speech, press, expression and association guaranteed by the First Amendment to the United States Constitution.29.
Such interference with protected expressive and associative rights arises by rendering persons who promote, publicize or endorse the views, ideas, philosophy and program of persons defined as being engaged in hostilities with the United States under the AUMF or the Homeland Battlefield Bill subject to indefinite detention without trial in the United States, made subject to trial by military courts or military commission, or made subject to rendition to any jurisdiction at the sole discretion of the United States without recourse to any civil court. 30.
In his profession as a journalist, Plaintiff must travel from time to time to theatres of combat and other locations where persons engaged in hostilities with the United States reside and conduct their business. 31
In his profession as a journalist Plaintiff must interview, report upon and promote and publicize the views and opinions of persons engaged in a state of hostility with the US as described in Â§1031 and
Â§1032.32.Plaintiff and others similarly situated will be chilled and burdened in the exercise of his First Amendment rights because of the continued threat of incarceration and other treatment under Â§1031 and Â§1032 that arises in connection with his work as a journalist, as described above.33.In the alternative,
Â§1031 is unconstitutionally overbroad in that it renders subject to incarceration and other treatment persons who “substantially supported” the persons and entities described in the statute or in the AUMF, conduct that embraces a wide range of protected expressive and associative rights under the First Amendment.
of the Homeland Battlefield Bill is unconstitutional in that chills, burdens and intrudes upon protected rights of expression under the United States Constitution, Amendment I, in the alternative is unconstitutionally overbroad, and Plaintiff respectfully requests judgment declaring Â§1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
WHEREFORE, Plaintiff on his own behalf and for all others similarly situated respectfully requests judgment as follows:
1. Declaring the Homeland Battlefield Bill, Â§1031 to be void as unconstitutional;
2.Permanent injunctive relief barring its enforcement, along with attorney’s fees and cost of suit and such other relief as to the Court may seem just and proper.
Respectfully, Carl J. Mayer (CM-6589)
MAYER LAW GROUP LLC1040 Avenue of the Americas, Suite 2400New York, NY 10018212-382-4686
Bruce I. Afran, Esq.10 Braeburn Drive, Princeton, New Jersey 08540609-924-2075 Attorneys for Plaintiff Dated: New York, New York January 9, 201213