Saturday, March 31, 2012

The Corporate Police Force

Two days ago Chris Hedges asked Cornell West and I to sit with him in Federal District Court 15 A. The occasion was his suit against the government, Chris Hedges v. United States, over the constitutionality of the National Defense Authorization Act, 2012, which went into effect at the beginning of March.
This proforma legislation is passed each year to enable the military to function but this edition (2012), notably Section 1021 (D), includes some unsavory language about civilian detention.

If the government (it doesn’t specify which person in that vast bureaucracy might be authorized to bring charges) determines that you are a “covered person” you could be whisked away never to heard from again “until the cessation of hostilities.” Given the parameters of the “War on Terror” who knows how long that might be?

The Act suffers from imprecision and shadowy application. During the hearing three witnesses and two depositions gave sobering testimony that, indeed, “an objective, reasonable fear occurs and ( an innocent person) could be brought under the statute” while pursuing a non-belligerent lifestyle toward the United States. The problem is all in the wording. 

It is understandable that Congress would set up conditions for the country to survive in a time of worry about terror. But it has written law with such a broad brush even conversation with the “associated force” of a terrorist group could put you in jail. Do you know those on the State Department List of Terrorist Groups? What is an “associated force” and when the Act infers that a “covered person” is giving “substantial support” to that entity what does that all mean?

The sinister side of this legal application is directed right at OWS. As pressure builds on the  corporate culture NDAA, 2012 arrives just in time as demonstrations increase at their doorstep. All kinds of murky and whispered conversations  take place about Occupy's relationship with fringe groups and they are refuted in the light of day but what happens when a shadowy (and incorrect) link is inferred by a government official? The scenario: an arrest is made and that party is incarcerated with no redress. The detention of Yoni Miller will become commonplace,

One accomplishment from the Chris Hedges’ case was that speech was established as a means of “support.” It’s an illumination but a worrisome one since even  a cell phone conversation could bring one to be “covered” under this statute. Now, investigative reporting on say, Guantanamo, might be prudently held back since the enactment of NDAA. The chilling effect on free speech has arrived. 

For a reporter to do his/her job interviews with a variety of persons is necessary. If a civilian walked too close to the line of legality in the pursuit of truth an arrest might happen but then a writ for habeas corpus would be issued by the court challenging the detention. Thereby, the reporter could confront the accusation in court with facts. No more.

The fun in this day-long hearing was listening to the United States government defend badly written law. Cross examinations of witnesses by federal lawyers always followed the same line, “Have you been injured by this law to your knowledge?” But that missed the point of the hearing since the entire lawsuit was a pre-enforcement challenge--do we want to  go through this later after someone is arrested and languishing in a hidden Gulag? 

Frustrated, government lawyers reasoned that if this law were struck down it would mean a separate concordance with each group of citizens to exempt them from the Act. Reporters would have one, charitable efforts another, because their work might bring them into contact with these suspect “associated forces.” So? You wrote the bad law.

The Government said an ordinary citizen would fall on the “outer boundaries” of the statute; using the term “lineage” to emphasize the point. Only generally understood classes of people would be affected by this law. I wish it were that  simple...if this lawsuit  isn’t successful the permissible bounds will be  established willy-nilly by lower courts  as they experiment on individual's lives all while the rights of American citizens  are violated.

The judge’s decision will be rendered within a month striking down this law or not. In either instance the path  to the Supreme Court is set and its constitutionality, thankfully, at stake.

1 comment:

  1. I've been following Chris Hedge's writing on this, and I'm extremely thankful to him for filing suit. And grateful to you for supporting him!