A lawsuit challenging a controversial statute that gives the government the power to indefinitely detain U.S. citizens is back in federal court this week. On Wednesday, a group of academics, journalists, and activists will present oral arguments in court against a provision in the National Defense Authorization Act, or NDAA, authorizing the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial.
In a landmark ruling last September, Judge Katherine Forrest of the Southern District of New York struck down the indefinite detention provision, saying it likely violates the First and Fifth Amendments of U.S. citizens. The judge rejected the Obama administrations argument that the NDAA merely reaffirmed an existing law recognizing the militarys right to perform certain routine duties. However, President Obama quickly appealed Judge Forrests ruling and sought an emergency stay on the injunction.
The case is called Hedges v. Obama. A number of people are involved Chris Hedges, Noam Chomsky, Cornel West, Dan Ellsberg.
Daniel Ellsberg talking:
as an American citizen, Im really almost whipsawed by emotions this morning. On the one hand, Im here to attend the court hearing at the circuit court on Wednesday at the Federal Court Building, where I expect to see the Obama administration color itself with shame in arguing that an American citizen can be detained indefinitely in military custody without charges, indefinitely, violating really the core principles of law that go back to the Magna Carta. On the other hand, I was up late last night reading the 112-page document of Katherine B. Forrest, and I have to say, at the end of that judgment, again, granting an injunction, saying that these provisions of the law that will be argued and defended byshamefully, by the Obama administration and by three U.S. senators, who will be claiming that the detention is constitutional and legalher argument was that it was facially unconstitutional. And when I read her detailed argument, 112, taking each point of the prosecution over a period now of nearly a yeartheir evidence, their lack of evidence, their argumenttaking each argument that this was constitutional and smashing it on this, I felt pride as an American. I thought, this is the American citizen that I fought for as a marine. This is a constitutional order, a rule of law, a judge, appointed by Obama, whos willing to say that her boss was mistaken in claiming that this rule is compatible with our rule of law.
It really says to me, at last, I think, that President Obama, who was a constitutional teacher, like Professor John Yoo, of Berkeley, who authored most of these torture memos in the first placeI think that, like Yoo, Obama has to be seen as either a rotten constitutional lawyer or a man who, like Yoo, believes that the Constitution simply does not bound an American prisoner in any way in an indefinite law of torture. And either way, I believe we have here impeachable offenses by all of the people arguing this case, including the three senatorsMcCain, otherswho will be arguing today on this. We should be looking at Brennan and the other people connected with the torture program not in terms of confirmation hearings, but in terms of impeachment hearings and convictions.
Bradley Manning right now is on trial in military court with the absurd and unconstitutional charge of aiding the enemy without any element of intent, merely that his information would get to Osama bin Laden or to al-Qaeda eventually, thus making it, in effect, a terrorist organization. But giving it to WikiLeaks is very like saying that WikiLeaks is the enemy hes aiding and affecting.
supporting WikiLeaks or Manning as I do, its very clear that my speech, my First Amendment activities in support of their activities, can be interpreted by the vague, broad terms of this unconstitutional 1021(b)(2) section of the National Defense Authorization Act as, quote, “substantial support to an organization associated with terrorism.” These vague terms make it possiblereally theres no one at this table who could be exempt from some informed official, who weve now learned has the power to defendto condemn us to death. And, of course, if you can do that, Im sure they can feel quite easy about simply putting us in military custody like Bradley Manning, even though were not in the military.
what weve seen for the last 10 years is a systematic assault on the Constitution of the United States in every aspectin the aspects of the illegal surveillance, the warrantless surveillance, which was conducted against me 40 years ago by President Nixon and then led to his impeachment proceedings, but is now regarded as legal. Thats the way the law has changed. Efforts to assault me or kill me on the steps of the Capitol on May 3rd, 1972, a presidential hit squad of the kind that the president now takes pride in proclaiming that he runs all over the world.
40 years ago, I was on trial for the same offense, essentially, as Bradley Manning, though he was in the military. As a former civilian official, I released 7,000 pages of top-secret documents demonstrating lies, crimes, treaty violations by the American government that had lied us into a wrongful and hopeless war and were killing Americans and others at a great rate as it went on. For that, I was facing 115 years in prison, just as Bradley Manning is now facing life charges, essentially the same. In my case, the the then-crimes against me of illegal surveillance, warrantless surveillance, the use of the CIA against me, now legal under the PATRIOT Act, and a hit squad against me, now allegedly legal by the president, all those things figured in impeachment proceedings against President Nixon.
And it led to his resignation. They should lead, right nowweve seen this assault. The time has comeand Katherine Forrest has shown the way, I thinkto defend the Constitution and try to restore it to the rights of Americans.
Make Matthew Byrne head of the FBI—his lifelong ambition, as it so happened—clearly contingent on a suitable ending to my trial. So I think I was pretty well fated to be found guilty, had that not been leaked to the public. And he dismissed that as a charge for dismissing the trial. He said it hadn’t affected him, that offer.
But many other crimes, such as the warrantless wiretapping and the attempt to assault me, did lead to that, only because the trial was kept going for another month. It was during that month that John Dean’s acknowledgment to the prosecutors about the White House efforts to silence me, to blackmail me, to go into my doctor’s office, warrantless wiretapping, to assault me, use the CIA against me, which at that time was illegal—all of these things now being legal, by the way, but at the time being illegal—subjected him to impeachment hearings and led to his resignation. Without that, he would have stayed in office, and the war would have continued for at least another couple of years. So that initiative of people giving support, to a man that the administration was trying to make a pariah, just as they are making that effort with Julian Assange and Bradley Manning right now, and the willingness of American citizens to stand up and say, “We stand with him,” like the people who wear signs now saying, “I am Bradley Manning” — in my case, I wore a sign for television saying, “I was Bradley Manning,” very, very apt — and without that demonstration, you have a kind of isolation that makes it very difficult for anyone else to do anything—anything that possibly supports the constitutional principles here.
So, there was a case when the Constitution worked. There was an independent judiciary. There was Congress cutting off money for an illegal war, eventually. There was the threat of impeachment, which was put in the Constitution, which, by the way, is something George the Third was not subject to. You did have impeachment in Britain, but not for the monarch. And we do have it in this country. When the monarch is violating the Constitution, violating the law, that’s why it’s there. Everything worked, and it made it possible to end a war. And it was a great tribute to the ability of our process to work.
That’s what I felt last night, when I called my wife on the West Coast, having read Katherine Forrest’s opinion, and said, “I’m proud to be an American.” This is a document now that expresses our highest ideals, and it’s actually working. It’s not just a columnist saying the way it should be. This is a [woman] saying, “The representatives to the government that appointed me are mistaken in their reading of the law. They have” — to paraphrase her, I’m definitely paraphrasing her — “They have produced an argument that is worthy of Communist China or of Stalinist Russia or of other countries, authoritarian countries I could name. It is not an American document.” Now, the circuit court may not have that courage or that commitment. I hope the Supreme Court will, when it goes to the Supreme Court. An interesting thing that I read, by the way, is that one justice on our side is Justice Scalia. I don’t normally find myself on the same side as Justice Scalia, and I imagine that if he rules in our favor on this, as he may, because he has a sense of the Constitution and of the inability of the president to detain people without charges. I suppose that may lead to a rift with Clarence Thomas and some others. But I do hope that the Supreme Court will have a chance to uphold our constitutional framework. And that’s worth living and dying for.
– source democracynow.org