Comments on Journalist Chris Hedges’ article “Why I’m Suing Barack Obama”

by Beverly Mann

Comments on Journalist Chris Hedges’ article, “Why I’m Suing Barack Obama”
(reformatted for easier reading)

Dan asked me if I could comment on an article published yesterday on Truthdig, republished on Truthout, by veteran foreign correspondent and current Truthdig columnist Chris Hedges. The article is titled, “Why I’m Suing Barack Obama.” Hedges’ Truthdig bio says he’s reported from combat zones in the far corners of the earth for, among other news organizations, the NY Times, the Christian Science Monitor, and NPR. He won a Pulitzer in 2002 as part of a team of reporters for their reportage of global terrorism.

His article says that during the course of his journalism career he met with a slew of leaders of groups that the U.S. government considered terrorist outfits, and spent time with fighters in military operations of rebel armies such as armed units of the Sandinistas in Nicaragua. His lawsuit, filed last week in federal district court in New York City, challenges the constitutionality of two sections of the National Defense Authorization Act, which Obama signed on Dec. 31.
Hedges explains:

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 U.S. 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.

In the article, Hedges excoriates cowardly Democratic members of Congress who supported (or at least voted for) the insertion of those provisions into the Defense Department’s budget bill, and Obama for signing the legislation. He also speculates that the real reason that Republicans proposed those sections, and that some Democrats voted for it and Obama signed it has little to do with threats from al-Qaeda and its likes. The real purpose of the bill, he suspects, given the current crippled state of the fading al Qaeda, and the breathtakingly imprecise definitions of key words in the legislation, and therefore the law’s potential for elastic use, is to thwart internal domestic movements that threaten the corporate state. Like Occupy Wall Street.

Turns out I could, and did, comment on Hedges’ lawsuit and his article. Here’s what I wrote to Dan:

Wow. There’s so much to say about this—the statute, why it became law, this particular lawsuit, and Hedges’ comments in the article—that I almost don’t know where to begin. But here goes: First of all, the part of the statute that all allows U.S. citizens to be arrested and detained (imprisoned) indefinitely at the behest of the president, including arrest here in this county or while in a foreign country on a short visit, is not only clearly unconstitutional but is unconstitutional in a manner that both Antonin Scalia and Anthony Kennedy made clear, in a “war on terror” case several years ago, that they believe is unconstitutional. Eventually the Supreme Court will decide the constitutionality of this statute, and will hold the statute unconstitutional. The question is whether this will be the case in which it does.

There is a “procedural” reason why the lower-level federal courts—the district court (the trial-level court) court in which the lawsuit was filed, and then the circuit court (the several-state regional appellate court)—may dismiss the lawsuit, claiming that in this particular case, the courts have no jurisdiction (legal authority) to consider the consider the constitutionality issue. I place the word “procedural” in quotation marks because in this instance, the jurisdictional question, while clearly a threshold procedural question, actually is also a constitutional question: whether or not Hedges has legal “standing” to ask the courts to decide the issue—that is, whether he is claiming a “particularized” injury from the statute sufficiently concrete to meet the Constitution’s requirement that there be a “case or controversy” at issue before a court has “jurisdiction” (legal authority) to consider the issue on its merits—here, the constitutionality of the statute. The case-or-controversy requirement comes from Art. III, which is the Article that creates the judicial branch and specifies its authority. The case-or-controversy part says:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Normally, a party has to already suffered injury before he/she/it can sue, so if you’re challenging the constitutionality of a law, you usually have to, say, already have been arrested for violating that law/required to pay the tax required by the statute/prohibited from doing something that you otherwise would do for violating that law. (This is an issue in the “Obamacare” litigation challenging the constitutionality of the “individual mandate” provision; that part of the ACA hasn’t kicked in yet, and no one has been forced to pay the penalty for failing to buy medical insurance.) But there are exceptions, mainly in First Amendment cases—free speech, free assembly, free exercise of religion—and in certain other types of cases in which you’d be risking serious criminal penalty by violating the statute (challenges to a particular section of the Selective Service Act, for example).

So for Hedges, the question of whether or not he has standing to challenge the constitutionality of the statute depends on whether he wants to do something particular that would place him in danger of being detained under the statute. I haven’t read the complaint he filed in court, so I don’t know whether he’s claiming that he does, or not. As for the article itself, it’s spot-on in its assessment that the time is past for any strategic-defense arguments in support of draconian laws of this sort. Vigilance continues to be (in my opinion) in order, lest there be a successful attack of some sort. But this statute has nothing to do with vigilance. As Hedges points out, 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.” This statute is nutty.

And, as the old saw goes, it’s also too cute by half. And then some. Which brings me to Hedges’ speculation that the real reason Congress enacted it, and the reason Obama signed it, is to thwart internal domestic movements that threaten the corporate state. On these, Hedges misses the obvious point and, I think, runs off the rails. A reason that the Republicans inserted that poison pill into the Defense Department spending bill is to thwart any threat to the corporate state, however slight. But only indirectly. They inserted it into the bill because they wanted to try to fabricate a Dems-are-soft-on-terrorism issue for the November elections. And some Dems, their backs against what they thought erroneously was a wall, voted for it. And Obama, ever unwilling to take a stand and actually go to the public with specifics to support it and to refute the Repubs, signed the legislation because it was, well, y’know, just too much trouble, or just too risky, or just too whatever, to point this out.

But here’s a point they missed: Republican pols think it’s still 2002. Or at least 2004. Or maybe even 1980. Or 1968. And the Dems-are-soft-on-national-defense prescription for electoral success, and 21st century incarnation, Dems-are-soft-on-terrorism, are the gusher well they once were. They don’t realize that that well’s finally run dry. The public is paying no more attention to that then it is to the other now-decades-old Republican-playbook standards: culture-wars issues, welfare queens, tax “relief” for the wealthy; environmental deregulation, and—last but not least, liberal judicial activists (as any exist now).

Those wells have dried up, except in Tea Party circles. Republican pols keep trying to dance with the one what brung ‘em. The problem for them is that the dance is over. The problem for us is that, thanks to the comically long lag time before pols, Repub and Dem alike, realize this, we get statutes like this one.