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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.


The suspected terrorist went to a federal pen?

by: Divorced one like Bush

So, we can’t bring the Gitmo crowd here because they are dangerous and would create an inviting situation for further terrorism, but we can take the suspected Northwest Airline man to a federal pen just outside of Detroit? A suspected terrorist, in a federal pen?

What?  Does the government really think that we don’t need the auto industry now so – so what if Detroit get’s all blown up? How could they do this to Detroit, risking all our money after helping GM and Chrysler?

Hope everyone remembers this when the super patriots come screaming again about how dangerous it is to close Gitmo and bring them to a federal pen.   At this point in the game, one is suppose to call Bull S#$t.

Another Cost of Low Prices

In the matter of externalities, accusing political enemies of being terrorists even after they are cleared of all wrongdoing is a feature of having economic power.*

Good thing it’s not being done by a country G-Mu dislikes, or we’d hear about this at Marginal Revolution. But they’re too busy arguing that the Greenspan Commission were liars with malice aforethought.

*Not that the United States would ever do that.

Another Honest Republican

Lawrence Wilkerson tells the truth and shames the Devil:

Many detainees locked up at Guantanamo were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday. “There are still innocent people there,” Lawrence B. Wilkerson, a Republican who was chief of staff to then-Secretary of State Colin Powell, told The Associated Press. “Some have been there six or seven years.”

Wilkerson, who first made the assertions in an Internet posting on Tuesday, told the AP he learned from briefings and by communicating with military commanders that the U.S. soon realized many Guantanamo detainees were innocent but nevertheless held them in hopes they could provide information for a “mosaic” of intelligence.

“It did not matter if a detainee were innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance,” Wilkerson wrote in the blog. He said intelligence analysts hoped to gather “sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified.”

Nice to know there was a reason. Read the whole thing, especially

In his posting for The Washington Note blog, Wilkerson wrote that “U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.”

I believe that counts as malice aforethought. Can we please take back The Ancestral Party now?

Losing The Other War

by Tom Bozzo

Not that I want to reinforce our doom-and-gloom reputation or anything, but the Bush administration is demonstrating its inability to walk and chew gum at the same time by losing in Afghanistan:

A recent Pentagon report about Afghanistan painted a stark picture of security conditions inside the country, a militant force that had “coalesced into a resilient insurgency” and a central government in Kabul that still could not extend its reach into the hinterlands. An American commander, Maj. Gen. Jeffrey J. Schloesser, has said that militant attacks on coalition troops increased by 40 percent from January to May compared with the same period last year.

The reason is that for the small fortune that’s been appropriated for that war, there aren’t enough resources there to keep the Taliban at bay:

General McNeill said the Afghanistan mission “needs more maneuver units, it needs more flying machines, it needs more intelligence, surveillance and reconnaissance units.”

The problem, as any student of the place would know, is that Afghanistan is the asymmetric warrior’s paradise, with a long history prior to the Soviet invasion of chewing up notionally superior forces. Incidentally, this is part of the reason why the partisan in me would be almost as happy to see Condoleezza Rice as McCain’s running mate as I would Mittens. Not only would I make a sizeable donation to anyone willing to run an ad featuring her recounting the title of the “Bin Laden Determined to Attack Inside the United States” memo, but also she must be either totally ineffectual and unprincipled [*] or the worst Sovietologist ever [**] not to have tried convincing the other Bushies to really win in Afghanistan first or to resign having tried but failed.

Comparing the candidates, Obama’s Iraq page notes the rivalry for resources, and the plan (pdf) calls for shifting some U.S. military resources freed from Iraq to Afghanistan; McCain keeps Afghanistan off his Iraq page and seems to promote the blunter and more expensive instrument of a larger standing military as the answer to resource limitations in fighting the GSAVE.

[*] The unprincipled part is is pretty much a given.

[**] Before you start debating me on worse Sovietologists, please note the “worst X ever” formulation.

How Not to Pay For a War

I’d like to thank the team at Angry Bear for giving me this opportunity to answer questions about my new book, “The Price of Liberty: Paying for America’s Wars.” If you haven’t gotten a chance yet, I encourage you to read the Outlook piece I wrote for the Washington Post on May 6. This piece contains a few ideas distilled from my book. The Post has been kind enough to let us circulate it.

There’s a popular post on this blog called “How Not to Run a War.” Taking a cue from that, I want to briefly talk about “How Not to Pay For a War.”

We shouldn’t pay for a war by INCREASING spending on non-essential domestic programs, particularly by increasing spending for “earmarked” politically inspired projects meant to satisfy domestic constituencies. In every war of the past, our government has cut non essential spending to make room in the budget to pay for the war. Not this time.

We should not pay virtually the entire cost of a war with “emergency supplementals” which skirt the normal budget process and thus avoid the normal scrutiny of determining what is really needed and what the tradeoffs are; even during the unpopular Vietnam War the use of supplementals was limited after the first couple of years.

And we should reflect in this post-Memorial Day period on a situation in which most Americans have been treated to tax cuts and many benefit from domestic spending for politically-inspired projects and generous subsidies while Americans fighting abroad and their families are making major sacrifices. That is unfair and unjust, and not consistent with the best traditions of America. No matter what one thinks of the war the troops should be well equipped, our wounded veterans should be given the best of care, and military families should be given the help they need to live at decent standards while their breadwinners are fighting abroad.

The challenge now is to learn from our mistakes and take them into account as we as a country determine how to pay for the longer war against terrorism and to be sure that the US remains financially resilient enough to counter future threats to our well being — whether from a catastrophic act of terrorism, foreign crises that may erupt in areas such as the Middle East that threaten our allies or oil, another devastating hurricane or a major pandemic.

So how should we prepare to pay for our future security over coming years? It won’t be easy given other demands on the budget, particularly projections for the rapidly growing costs of Social Security, Medicare and Medicaid in the decade ahead.

And how do we meet the costs of these programs and our national security requirements without producing massive budget deficits and/or huge tax hikes? Or are these unavoidable?

I have some thoughts on these issues, which are included in my book and which I am looking forward to discussing on this blog tour over the next several days, but my major objective is to develop a dialogue in the hope that thoughtful people of various views can come up with sound solutions.

I welcome YOUR thoughts on these questions and promise to respond as soon as possible. Many thanks for joining me in the quest for answers to these difficult but important questions.

Bob Hormats, Author,
“The Price of Liberty: Paying for America’s Wars” (Times Books)