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.
Beverly
Of course the catch 22, and this bill is the definition of it: 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.”
Sure, you now have standing. You just can’t exercise it ’cause you can’t get to a court.
One other thought. When it comes to “rights” guaranteed I think it is reasonable to argue that the legislating away of those rights automatically and immediately did harm by the act of having removed from the citizen what was guaranteed and thus instantly changing the environment to a less just environment.
The harm is not in the experiencing the actions of the law upon the citizen. The harm experienced is prior to even getting to that point. It is not the material world experience that a citizen should have to wait for regarding “right” but the ideological and theoretical shift that was guaranteed that is no longer.
Even simplier, I was born into a governing stucture that by the nature of my birth recognized inalienable rights. The congress just did me harm by taking away what the legal recognition said they could not. They took away a part of me. That is the harm.
Of course arguing that there has to be material harm is the problem with our legal system. It is a system designed for criminal justice which requires a perpetrator of a material crime and a victum of that material crime.
What we’re talking here is not material but abstract and to keep this economic what would be called an “intangible asset” or the “good will” value of a business. In this case citizenship.
Ooosh. The formatting is really screwed up in my post. The formatting I use doesn’t translate well to blogs; I don’t know why. I just asked Dan to repost it with corrected formatting. I cross-posted it to my own blog, at http://annarborist.blogspot.com/2012/01/comments-on-journalist-chris-hedges.html. It’s easier to read there.
One of the arguments I’m sure Hedges will make on the “standing” issue is that the statute is so imprecise and broad in whom it applies to and what conduct it addresses that it’s impossible even to know what conduct could trigger the spontaneous and indeterminate detention. Also, under this statute it appears that someone could be held in communicato and therefore never, as you point out, and therefore never have the physical ability to file a lawsuit challenging the statute’s constitutionality.
Ah! This is exaclty what the “standing” doctrine is designed to prevent. I can just HEAR Scalia shrieking about it.
Beverly, given the “signing statement” by POTUS, what are the chances that his administration would not defend against this lawsuit? Low? High? Would it depend on whether the election has come and gone? The signing statement indicates that Obama believes this provision of the law is unconstitutional and he won’t be doing what Congress authorized him to do. Last year, he announced that he would not defend DOMA because he believes it is unconstitutional.
I think that a few days before the bill was passed, two or three advisors in the Administration said that recent changes in the bill made it acceptable, if barely, and advised Obama to sign it. I don’t remember whether either (or any) of those advisors were from the Justice Dept. or White House Counsel’s office; I doubt that they were. Considering that Obama did write that signing statement saying he thinks that part of the statute is unconstitutional, it’s likely that Holder and the current solicitor general, Donald Verrilli, a big-name Washington litigator, didn’t advise him that the statute’s constitutional—which it clearly isn’t, I think that the Obama Justice Dept. won’t defend the constitutionality of the statute if they’re in office when a case is actually litigated. As for the “standing” issue, which is a “jurisdictional” issue, judges themselves are required to raise the issue even if the defendant (here, the U.S.) doesn’t.
Yeah, well to freaking bad for Scalia. I hope I live long enough to see him and his crew off the court.
I’m no fan of the reductionist approach to law at the level of interpretation. Unfortunately it seems our judges at the level of appeal make the shift from thinking like a defender/procecuter to the broader vision of say: Jefferson.
I see, Obama signed it for political reasons. What a mensch.
And we have come to the point in America where civil rights are determined by the politicians expectations of what “voters” may think.
Mr O may not have considered that the next president may think the law is hunky dory. Or then again, maybe he did, since the thrust of the O administration has been to prepare the way for a more effective plutocracy…. by doing the expedient “with serious reservations”. Never mind that barbed wire they are stringing around the ghetto. That’s just to keep you safe.
wait, I forgot
that “civil rights” in America now means something iike the “rights of minorities not to be discriminated against.”
so as long as we all have equal opportunity to end up in Gitmo, it’s all right.
It is equally plausible that he signed it because he didn’t want to close DoD and stop paying the troops, and the totally-objectionable clause did not REQUIRE him to do these objectionable, unconstitutional things. It’s a horrible law because it authorizes the president (Obama or the next president) to do horrible things, reducing our freedoms to whatever level is “promised” by a politician. Colbert joked that Obama’s signing statement is meant to be his political campaign promise, to contrast with the other candidates’ positions. Funny but not funny.
Obama did take a stand against it, initially, And as usual, eventually caved after forcing some small changes in the statute. But, yes, it was included in the Defense Dept.’s spending bill–by now a reguler GOP House trick; insert something outrageous into a spending bill that has to be passed–and he signed the bill because, unlike with, say, environmental-law-stripping provisions inserted into spending or debt-ceiling bills,it woudl eb harder for him to overcome the demogoguery on this than it would on most other poison-pill insertions into spending bills, including environmental ones.
But while it’s nice that he says he won’t invoke the legislation, he won’t be president forever. And despite everything, the Supreme Court really IS likely to rule that the statute is unconstitutional–once a case like Hedges’ does get there.
like i said, what a Man!
imagine standing up for the rights of the people to due process and a speedy trial by a jury of their peers… at the risk of losing a point on the polls, or, gasp, facing down the Republicans.
yes, a man for our times.
makes Bill Clinton look like Patrick Henry.
Bev
just in case you didn’t get my point
can you imagine the greatest orator of our time going on television more than once if necessary and telling the people… here are the Republicans trying to destroy the Bill of Rights and holding the pay of our soldiers and their arms and ammunition hostage to do it…
and not winning the argument?
this man has no spine, no brain, or he has sold his soul.
but that’s okay, the Supreme Court will surely save us.
Please stop. Please stop calling Obama a great orator. What, pray tell, causes this continued meme that he’s a great speaker? That he speaks in generics and chcihes, never in specifics?
Isn’t it long past time to recognize that this guy is a mediocre speaker?
Bev
I’m ready. But he wowed the Democratic Convention. Now, he could be a “great speaker” if he just came out and spoke the truth. but then he’d have to know the truth and not just take his advisors’ word for it.
He wowed the Democratic Convention as keynote speaker in 2004, with his unity-in-America theme that contrasted with Bush’s post-9-11 divisiveness. Unity-in-America lends itself to generic platitudes. In 2008, a lot of us were waiting anxiously for some specifics—something more than generics, clichés. There were precious few, but not many of us thought that would continue through his presidency. We were wrong.
Beverly
I have to admit I was one of the wowed. I thought he was going to give us New Deal policies without scaring the horses. (The red staters religious sensibilities)
By the time of the election I had realized my mistake. I voted for him anyway. So when St Peter says, “hmmm, our records show you voted for Obama,” I’ll know what’s coming next.
btw
i happened to be reading a history of egypt, and Obama looks very much like Senusret III, and Amenhotep IV (Akenahten).
So I wondered…. nah.
I know I’ve aked it before, but why isn’t there a tidal wave of US liberal emigrants seeking to get out while they still can? Is it because their mortgages are underwater? Surely the drift of the US into a neo-Fascist State is now obvious, and there will be no going back this side of some kind of huge social disaster – if then. Get out, you fools, get out!
I know I’ve aked it before, but why isn’t there a tidal wave of US liberal emigrants seeking to get out while they still can? Is it because their mortgages are underwater? Surely the drift of the US into a neo-Fascist State is now obvious, and there will be no going back this side of some kind of huge social disaster – if then. Get out, you fools, get out!
I know I’ve aked it before, but why isn’t there a tidal wave of US liberal emigrants seeking to get out while they still can? Is it because their mortgages are underwater? Surely the drift of the US into a neo-Fascist State is now obvious, and there will be no going back this side of some kind of huge social disaster – if then. Get out, you fools, get out!
Ah! America; love it or leave it! I can understand your dismay, Gordon, that we liberals haven’t upped and left. Sorta like my own dismay that the Tea Partiers and related folk haven’t all moved to Australia in order to avoid Obama’s socialist polices, like Obamacare.
Oh, wait. Australia has national health insurance. Directly through the government! Guaranteed! For everyone! OMG! There’s just no way to get away from socialism.
Ah! Afghanistan, maybe?
gordon
when i was very young i used to wonder why the people in Appalachia didn’t just move out. Now that I am very old I know.
I was thinking of Dixie
I’ll live and die and take my stand in Dixie..
and though it was in a bad cause I can understand the sentiment… not only sentiment but profound human necessity
If America is turning into a neo-fascist state.. and i think it is.. i’ll stay and fight the bastards before i’ll just hand America over to them.
So, Dale, you now wish you had voted for McCain/Palin instead? Things would have been better in the McCain/Palin administration, in your view?