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Lucille
10-04-2012, 05:54 PM
The NDAA Retroactively Legalizes Gitmo, Black Sites, and the Worst of the War on Terror, Says Lawsuit Plaintiff
http://reason.com/blog/2012/10/04/second-circuit-temporarily-stays-judges#fold


The government says the controversial bit of the NDAA is nothing new, but seven plaintiffs, including Pentagon Papers leaker Daniel Ellsberg, dissident writer Noam Chomsky, and journalist Chris Hedges, sued in January, arguing that they were under threat. Hedges in particular argued that his First Amendment rights are violated since he has interviewed numerous members of Al-Qaeda and the Taliban, but now fears doing so.

Another plaintiff in Hedges vs. Obama is activist Jennifer "Tangerine" Bolen, founder of the pro-whistle blower group RevolutionTruth.org. She worries that her organization's support of WikiLeaks and imprisoned soldier and accused leaker Bradley Manning might also make her or her allies applicable for detainment under the NDAA.

Section 1021(a) of the bill repeats the government's power to go after perpetrators (and those who harbored them, etc.) of the September 11th attacks (put in writing in the joint Authorization for Use of Miliary Force resolution) but the 1021(b) does read an awful lot like it's expanding powers, even if the actual text of the NDAA and Obama administration officials claim it isn't changing anything. (For a good overview of the NDAA up until now, go check out this Young Americans for Liberty blog post.)

Bolen believes part of the subtext to these argument is that the government wants an excuse to go after Julian Assange and Wikileaks."They don't want to go after The New York Times," she says, "They’re willing to cherry-pick who they apply indefinite detention to." But once they can get to people like Assange, this will "cascade downward" and then people like Bolen or Hedges could be under threat as well.

The government's initial argument was that the powers granted in provision 1021b were exactly the same as those granted by the AUMF. Yet, argues Bolen, if the AUMF and the NDAA are the same, why is the government so desperate anxious to stop this lawsuit? Why did they appeal less than 24 hours after Forrest’s permanent block on September 13? Why do they claim that block could cause ""irreparable harm" to the United States? Well, no harm done for the moment. On Tuesday afternoon, the Second Circuit Court of Appeals ruled, and the three-judge panel stayed Forrest's ruling until a final decision is reached in December. Until then, or until this hits the Supreme Court, indefinite detainment is back on.

The about the NDAA, says Bolen, is that it's a retroactive "CYA" — cover your ass. "The AUMF powers were so broadly overused for 11 years...this is an attempt [by the Obama administration] to codify powers they never had." Beginning with the Bush administration and their secret prisons and detainment, both at Gitmo and at CIA black sites all over, Bolen says that the AUMF didn't allow any of this, but the NDAA would. NDAA is, says Bolen, an attempt to legalize the past 11 years of the most heated of the War on Terror. And Hedges v. Obama is “the latch on Pandora’s box” for proving “this incredibly broad application of the AUMF which was never legal.”

In their Tuesday ruling, the Second Circuit judges wrote [pdf] that it was in "the public interest" to grand the governmental appeal a stay. Part of their reasoning was that the government finally clarified that the plaintiffs had no reason to fear detainment, meaning that they had no standing to sue in the first place.

When the government initially refused to offer assurances that the plaintiffs could be detained back in March, this changed Judge Forrest's mind on the question of whether the seven individuals indeed had standing to sue. Much later, the government did try to offer assurances that journalists who were independent were under no threat. This, to Bolen brings up a lot of questions, "“Are youtube journalists independent? Are you going to form a panel to decide who is independent?” The "independent" wording of the government's response brief just does not satisfy any of the plaintiffs and opens up more questions over whether the government may actually be considering keeping an eye on journalists who are not seen as "independent."

Bolen, for her part, thinks that the case will make it to the Supreme Court. But it’s up to her and her fellow-plaintiffs to try to change public opinion. As for her opinion on Obama, whose administration is pushing so hard on this, well, it’s not as harsh as you might think. She mentions the near-lies that lead to the Iraq war and says that the government is trained to “out-speak everyone” and that’s what they’re doing again. But “It’s less insidious and less horrific than under Bush. Not to excuse Obama, but he inherited a total nightmare…He can’t suddenly deny himself powers…”

Sure he can, Jennifer. He just doesn't want to. "Wake the f' up!" as Samuel L. Jackson likes to say.


http://www.youtube.com/watch?v=PhV9aZOqmz8