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“The U.S. Supreme Court Decision … Means the Nation Has Entered a Post-Constitutional Era”


“We Are No Longer a Nation Ruled By Laws”

Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.

The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.

The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.

The trial judge ruled that the indefinite detention bill was unconstitutional, holding:

This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.
But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:

We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.
The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does apply to American citizens, and that top legal scholars agree.

Last week, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.

The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.

However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.

The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:

The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!
And he won’t get to say:

You’re confusing me with another John Smith, and I can prove it!
After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.

So – if you’re thrown into a hole somewhere – no one will even hear your story.

Chris Hedges noted in November:

If [the indefinite detention law] stands it will mean, as [the trial judge] pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.
Constitutional attorney John W. Whitehead agrees:

No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.
As does constitutional attorney William Olson:

The personal freedoms of Americans are now in tatters following the refusal of the U.S. Supreme Court to hear an appeal to knock down the National Defense Authorization Act, constitutional and election law attorney William Olson says.

“This is a rather remarkable shredding of the Bill of Rights,”…. he explained that the language of the act is so “loose,” that anybody can be picked up for any reason.

“The president of the United States … [has] this power to detain indefinitely without charges, without trial, without an arrest warrant, without a grand jury, just to be able to hold someone who they think might be a threat of some sort,” Olson said.


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ChristianAnarchist's picture

The whole issue of

The whole issue of "citizenship" is a red herring. The rights of all men are the same and have been acknowledged so for hundreds of years. A supreme court case in the 1800's called "Yick Wo v. Hopkins" cemented the idea that every man (not just "citizens") have the same rights. In this case the Chinese subject of the emperor who had lived in the US for some 10 years and had no intention of ever becoming a citizen of the US was protected from government oppression due to the fact of his human-ness, not his citizenship...

NDAA is BAD BAD BAD no matter WHO it's applied to...

Beware the cult of "government"...

If one never understands the importance of presumption

and the significant role it plays in the courts, then one will never understand the decisions of the courts with regards to substantive rights and their over reach to abuse such rights at any level.

just makes me wonder

What will happen to the people who have sold weapons to the 'terrerist?'

Curious legal question

Does that mean a lower appeals court takes the case, or is it suspended interminably, or is it a technical victory where the Supreme court civicly accepts moral failure?

How Ironic that Congress must act to protect the Constitution?

I hope Congress acts, but wow did the US Supreme Court blow it. How much hope that Harry Reid will act? Slim and none and none left the building.

meekandmild's picture

Let's call our congress-critters, demand recall of the Supreme

Court, they are no longer in "good standing" and can be recall according to the Constitution.

True enough.

While things have been bad for civil liberties in this country for a long time (well before the Patriot Act), I have seen first hand what damage this "Indefinite Detention" thing can do. I know somebody who spent nearly 5 years in federal prison for a misdemeanor straw purchase charge (which was bogus, he ran a gun shop and vetted his customers). The government kept him locked up for 6 months before forcing a confession to a crime he was not guilty of and being spirited off by 50 ATF agents with full military gear to a federal prison without notifying a lawyer or his family.

Before George W. Bush and the fascists in congress signed The Patriot Act, you couldn't be held in federal custody without being charged for more than 48 hours. Now they can hold you until kingdom come if they feel like it.

“My attitude toward progress has passed from antagonism to boredom. I have long ceased to argue with people who prefer Thursday to Wednesday because it is Thursday.” - G.K. Chesterton

if that is not firm evidence of treason

then I don't know what is. If the Supreme Court can not uphold a basic tenet of the Constitution, well where does that leave us? This whole 9/11 terror issue has rendered our Constitution completely moot. If it was conceived to do so, it is insidiously brilliant. If it was international terrorism, it is no less damaging.

I tremble for my children, unsure of what to do.

Bin Laden Won

big time.

We ain't got sharia law, but we sure ain't got what we use'ta had.

The word 'join' in the first

The word 'join' in the first sentence should be enjoin, which basically means to stop or prevent.

Hedges has done yeoman's work here but...

In his Truthdig article today http://www.truthdig.com/report/print/the_post-constitutional... he says:

"It is capitalism, not government, that is the problem. The fusion of corporate and state power means that government is broken. It is little more than a protection racket for Wall Street. And it is our job to wrest government back. This will come only through the building of mass movements.

“It is futile to be ‘anti-Fascist’ while attempting to preserve capitalism,” George Orwell wrote. “Fascism after all is only a development of capitalism, and the mildest democracy, so-called, is liable to turn into Fascism.”

Forming "coalitions" is one thing, but this type of viewpoint is fundamentally incorrect.

No Shit Sherlock

“We Are No Longer a Nation Ruled By Laws”

There has been great evidence of this at least since 1861. I think that this decision is just a new folly in a long train of abuses that we are finally suffering from to the point that we will no longer stand this evil.

History has shown that a country not ruled by laws, does a very poor job of protecting the citizenry at first, and then it does a horrible job at protecting the Ruling Class.



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