Post-constitutional era: SCOTUS allows capture & rendition of US citizens under the NDAA

I had planned to start the next phase of the climate series today, but I’d been covering the NDAA and its legalization of the capture and indefinite detention of U.S. citizens — even on U.S. soil — without due process or judicial review. And I want to complete the circle, since the final part of the story has now been written.

We first wrote about those provisions of the 2012 NDAA (National Defense Authorization Act) here:

Obama to sign “Indefinite Detention by the Military” bill into law

In that piece I quoted civil liberties lawyer Glenn Greenwald as saying:

The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.”

Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”

A later post explained that contrary to administration spin, the NDAA does indeed codify extra-judicial indefinite detention of U.S. citizens into law.

Those provisions in the NDAA were then challenged in court by Chris Hedges, among others. About his suit, Hedges wrote:

Why I’m Suing Barack Obama

Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint Friday in the Southern U.S. District Court in New York City on my behalf as a plaintiff against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31.

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.

That suit has moved through the courts, and has an interesting history. It was initially upheld by the lower court and the government enjoined from carrying out these detentions. Obama’s government swung into immediate action, targeting not only the ruling, but the injunction as well.

About this Hedges writes (my emphasis and some reparagraphing throughout):

[Attorney Bruce] Afran, [Attorney Carl] Mayer and I brought the case to the U.S. Southern District Court of New York in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalistAlexa O’Brien, RevolutionTruth founder  Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist  Kai Wargalla.

Later in 2012 U.S. District Judge Katherine B. Forrest declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed — we expected it to appeal — but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.

The government swiftly went to the U.S. Court of Appeals for the 2nd Circuit [based in New York]. It asked, in the name of national security, that the court stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit agreed. The law went back on the books.

You may wonder why the injunction had to be targeted so swiftly. Was it because the government (yes, Obama’s government; Mr. Legacy’s government) was already carrying out these detentions? Hedges thinks yes:

My lawyers and I surmised that this [request to immediately stay the injunction] was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen. The administration would have been in contempt of court if Forrest’s ruling was allowed to stand while the federal authorities detained U.S. citizens under the statute.

Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.

Rather than rule on the constitutionality of Section 1021(b)(2) of the NDAA, which the suit challenged, the 2nd Circuit Court declared that the plaintiffs had no standing — that because they could not show they were affected by the provision, they could not challenge it. More from Hedges:

The Supreme Court had ruled in [Clapper v. Amnesty International, a previous challenge to the FISA Amendments Act of 2008] that our concern [Hedges was a plaintiff there too] about government surveillance was “speculation.” It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed.

The court knew, of course, that the government does not disclose whom it is monitoring. It knew we could never offer proof. The leaks by Edward Snowden, which came out after the Supreme Court ruling, showed that the government was monitoring us all, along with those we interviewed.

The 2nd Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.

This ruling by the 2nd Circuit Court of Appeal left the constitutionality of the NSAA provisions undecided. So the plaintiffs appealed to the Supreme Court. Who punted (sorry, refused to hear the case).

So the law stands.

What does the NDAA now allow?

U.S. prisoner at Abu Ghraib prison in Iraq

Extraordinary Rendition: U.S. prisoner at Abu Ghraib in Iraq

Hedges has much to say on what this decision by the Supreme Court means. I invite you to read the entire piece — it’s typically clear and well-written. What does the law allow?

[It] permits the military to seize U.S. citizens and hold them indefinitely in military detention centers without due process[.]

“Military detention centers” — that’s Bagram and Gitmo, folks, or anywhere else in the world. Fort Hood. A CIA meat locker in Omaha. It means you can be scooped up from your home in Small Town U.S.A. — or off the street in fact — bagged and tagged, and locked up forever if they choose.

By “bagged and tagged,” I’m being literal. When the government grabs you, the hood goes on, frequently followed by the suppository (do click; the suppository and other “indignities” come right out of the CIA rendition procedure manual). That’s you on the right, by the way, except maybe for the torture. Why “maybe”? Because no one has “standing” to prove we “do torture” anymore.

Hedges bottom line:

The U.S. Supreme Court decision to refuse to hear our case … means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power — one of the core definitions of fascism.

It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed — a poll by showed that this provision had a 98 percent disapproval rating — is a cruel joke.

And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty. …

The government … is jeopardizing its legitimacy.

I’ll leave you to read Hedges’ powerful last paragraph for yourself. The final sentence is worth calling out:

A ruling elite that accrues for itself this kind of total power … eventually uses it.

If Obama builds it, this domestic rendition program, someone will use it.

Yes, this is all on Obama, brand new on his watch. I’m pretty certain he originally got the law written this way in order to make legal what his Deep State brothers — the Pentagon and CIA, etc. — were already doing. The presumption by the rest of us, who once more did not rebel, is that only brown people would be affected. Our sorry racial legacy, and our sorry mistake.

Obama’s legacy? He did build it. Someone is going to use it, and our sorry mistake will come home.


Twitter: @Gaius_Publius
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Gaius Publius is a professional writer living on the West Coast of the United States.

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61 Responses to “Post-constitutional era: SCOTUS allows capture & rendition of US citizens under the NDAA”

  1. Bruce says:

    “Obama’s legacy” : You can putsch lipstick on a fascist pig; but he’s $TILL A FASCIST PIG!

  2. Erin says:

    Just because he has a Disqus account doesn’t mean he isn’t a troll. Bill_Perdue is a troll.

  3. pvequalkt says:

    If I may…
    audacity hopey changey NEVER “pushed” for more … anything for gays.
    He was loudly and proudly AGAINST marriage equality… until several courts and states decided and legislated in favor of it. At the point where it became NOT a political liability to NOT BE AGAINST IT, he came out as supporting the NOT AGAINST IT position.
    And wrt DADT, he did NOTHING to advance the repudiation. Nothing rhetorical; nothing in deed; nothing as CIC (as Truman did to integrate the military). It was the military, itself, who finally decided to NO LONGER ENFORCE it, followed by congress acting from behind that.
    So, I think I just proved that your sole check mark on the credit side of audacity hopey changey’s ledger was incorrect. This means… what… he is one of the worst ever presidents… and certainly the worst ever democrat president. And he is the worst D ever by light years.

    But, of course, among republican/right wing/fascist despots, he is among the very best.

  4. Guest says:

    Aren’t you dead yet? If not, why not? If there’s anything I can do to help expedite this process, please let me know.

  5. Indigo says:

    Habeas corpus defunctus est.

  6. Bill_Perdue says:

    Understandably anonymous DNC guest, you’re lying. The wrong people are people like you who approve of the racist and extralegal murders of Arab and muslim Americans like Anwar al-Aulaqi, Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi and Jude Mohammed. One was a sixteen year old boy from Denver Colorado.

    Decent people will remember their names, who killed them and what it means. Obama, your boss, is ordering the racist murders of US citizens on a whim.

  7. Just say NO to authoritarians! says:

    Bill, You’re just upset that ‘the wrong people’ have the power to detain indefinitely without trial. You’d have no problem with this as long as you, or someone you supported, were using this law. After all, the Constitution is merely something you like to hide behind. It’s certainly nothing you support.

  8. ComradeRutherford says:

    As a Liberal, you are correct!

  9. mirror says:

    I wasn’t talking about what I believe, but rather what the Five believe [they can get away with].

  10. angryspittle says:

    I would submit that the quote on the front of the building is as relevant…… and just as meaningless today because it simply does not ring true.

    “Equal Justice Under Law”

  11. HelenRainier says:

    The bottom line is: Don’t believe or trust anything said or done by the government.

  12. Indigo says:

    I’ll be 116 and, yes, I think it’s going to take that long because Reaganitis is currently endemic and no cure has been yet developed.

  13. mirror says:

    I couldn’t figure out how to share directly, but I did post it on my FB page.

  14. mirror says:

    This quotation is carved into the marble of Supreme Court Building: “It is emphatically the providence and duty of the judicial department to say what the law is.” That is from the holding of the 1803 case Marbury v. Madison.

  15. mirror says:

    I think you missed the core point of law school. Didn’t you read Marbury v. Madison?

  16. Indigo says:

    Yes . . . thanks for the Vorlon reference. I’d forgotten how deeply relevant their mode of thought was to good sense. Won’t anybody mine the Babylon V data for the outline of Vorlon thought? I’m too lazy to do it.

  17. Moderator4 says:

    A long time, and he is a very frequent commenter.
    The point is, you may disagree all you want with him, and present your own arguments in rebuttal. But dismissing him as a troll is incorrect and does not further your viewpoint.

  18. Elijah Shalis says:

    Well then I disagree with the ACLU on this issue and I am a former two year ACLU College Chapter President. The Rules of War are governed by different laws.

  19. Elijah Shalis says:

    Really how long has he been commenting? I have had older accounts on here commenting since 2007 at least.

  20. Moderator4 says:

    Elijah Shalis, you may disagree with Bill_Perdue, but he is not a troll.
    He has been commenting regularly on this blog far, far longer than you have.

  21. Bill_Perdue says:

    I’m not a troll. It wasn’t an attack and I am very informed.

    I’m sorry that you either can’t or won’t answer the question, which I wanted to use to open up a discussion about why you seemingly oppose rendition and torture but approve of racist extra-judicial murders.

    The ACLU and the CCR, each of which includes more than a few real constitutional experts in it’s ranks disagrees with you about Obama’s racist murders.

    My mistake. I’ll never assume that you’re interested in political discussion again.

  22. Elijah Shalis says:

    Troll attack by low information reader

  23. Bill_Perdue says:

    As many have said the construction of an american police state is nearly complete. It’s purpose is the suppression of unions, the struggles for equality by people of color, the women’s movement, the LGBT communities and the suppression of the antiwar and environmental protection movements.

    What’s missing is an Enabling Act to transform a police state into something far worse. NDAA and Obama’s claim that he can order the racist and extra-judicial murders of American citizens here and abroad are two big steps in that direction.

    The problem is not, however, limited to Obama. Both parties are right wing parties lurching violently to the right. We need to build unions and a Labor Party to offset that.

  24. Bill_Perdue says:

    So is the murder of American citizens.

  25. Bill_Perdue says:

    Decent people wouldn’t succumb to those pressures. Which is moot because decent people don’t stand a chance of getting elected in a banana republic.

  26. Bill_Perdue says:

    Obama is a Democrat and they are a right wing party. They will never get better, only worse.

  27. Silver_Witch says:

    Do we have to wait that long Indigo….I will be quite old by then (101) and probably not all that excitable.

  28. taikan says:

    Ever since the retirement of Justice Brennan, SCOTUS has been retreating from its earlier decisions upholding the restrictions on government action set forth in the Fourth, Fifth and Sixth Amendments.

    Washington, Jefferson, Madison and other members of the “Founding Fathers” likely would be leading a new revolution if they were alive today.

  29. Silver_Witch says:

    Do you mean HRC…you won’t find such statements, nor will anyone find such statements. The party has already begun for all of us….and none of us will know the truth until after the election for 2016. Sadly, very sadly, Politicians just don’t tell the truth of what they believe, their actions however always do.

  30. taikan says:

    Even though they may condone the use of torture against individuals captured by law enforcement or by the CIA, the vast majority of the military officer corps opposes the use of torture on anyone captured on the battlefield. That’s because they know that whenever we torture prisoners of war, we increase the likelihood that members of the US military who are captured will themselves be subjected to torture.

  31. BeccaM says:

    “The avalanche has already started. It is too late for the pebbles to vote.”
    – Ambassador Kosh, Vorlon representative

  32. BeccaM says:

    I’d like to know what cocktail parties you’re talking about. You sure do seem to be rather misinformed as to the social life of our blog host and his writers.

  33. Houndentenor says:

    I give John McCain a hard time about a lot of things (especially for inflicting Sarah Palin on the lower 48) but he’s always been against torture and if anybody ought to know what it’s like to be tortured, it’s him. The one person I know of who said that waterboarding was not toruture who actually agreed to submit himself to it, changed his mind within seconds of that procedure. It is torture and I think everyone knows it. It’s a technique the Chinese invented to get false confessions and statements out of dissidents. It’s not about getting reluctant people to tell you the truth. I don’t doubt that a few minutes of torture and I’d tell you anything you ever wanted to hear to make it stop. True or not. Since true or not is a big deal in this case it sounds like this is just sadism on the part of chicken-hawks. Again, the people who endured it (and a lot worse, think it’s wrong. And also the US pressed for war crimes and executions for Japanese soldiers who did this to Americans in WW2. I guess now that we do it it’s okay? Now wonder no one in the world respects is any more.

  34. goulo says:

    Hey, it would be GREAT compared to the reality of what he is, if he would have been merely a centrist. A centrist wouldn’t have escalated drone killings, or tried to officially legalize capture & rendition & murder of US citizens by the US president, or persecuted whistleblowers more aggressively than any previous president, etc etc.

  35. Ford Prefect says:

    I doubt anyone as cynical as the president-elect can be scared that way, unless maybe he/she was targeted by the surveillance state in a way that amounts to blackmail–ie, it’s personal stuff, not natsec stuff. POTUS is also surrounded by a gaggle of Yes Men, so there’s that as well. In Obama’s case, it’s pretty clear he’s always been on board with all this nonsense from the get-go. He’s done nothing but cover-up Bush’s war crimes and commit his own as well.

    Hillary will also be down with it, as will Jeb, so no matter who wins the Imperial Office, it’s all downhill from here. As for the military and torture, I would simply remind that the most prominent dissent on torture has come in large part from military and former military people–there are perfectly logical reasons for that. The intelligence community is another thing, as is the piss-poor quality of civilian leadership in this country that sees the entire globe as a battlefield on which to play general.

    Either that, or Obama and all his predecessors going back to Reagan are/were simply the biggest amoral cowards who ever lived.

  36. jomicur says:

    Some of us saw through Obama from the get-go and have not been at all surprised by his performance in office. As for him being a DINO, that’s only the case if you’re locked in nostalgia for what the Democratic party used to be. He is perfectly typical of what it has become, alas.

  37. Houndentenor says:

    I suspect that upon taking office each new President is briefed on national security threats and get the bejeezus scared out of them and all their noble ideas about freedom and privacy fall away. Because no one who isn’t already on board with these practices gets briefed on any of that (or at least only rarely) there’s no one to counter any of the arguments made. So basically Obama, like every president since WW2 is surrounded by military people who are convinced that torture is okay as a means to an end and there aren’t exactly any civil libertarians around and this is the result. I’m not sure what the solution is to that. We don’t know what we don’t know and we can’t exactly make the necessary case about no longer torturing people or denying habeas corpus to him without the access that we’d never be able to get.

  38. Indigo says:

    Okay, well, after the insurgency of 2057, there’ll be a movement to restore the Constitution, at least in a modified form. Maybe.

  39. Indigo says:

    It began when Reagan took office, now it continues and as it continues, the landslide gets bigger.

  40. basenjilover says:

    Roberts, anointed by Bush as justice chief, keeps on giving, or rather keeps taking away.

  41. Ford Prefect says:

    Perhaps ironically, they’re also making it necessary.

  42. Ford Prefect says:

    Since the ’90s, both parties have gone ballistic over the other party’s fascistic ways, yet neither party has EVER taken any interest in reining in those powers. In the left hand, we have the PR apparatus, giving the electoral base something to worry about. In the right hand, we have unremitting will to power sans any restraint on that power.

  43. Houndentenor says:

    If you’re talking about the typical undereducated primary voter, then yes. If you mean does Lindsay Graham really think there’s anything in Benghazi other than a horrible tragedy, then no. Graham and the rest know they are full of crap.

    I’ve been asking this for some time and no one seems interested. These horrible forwarded emails that go around full of lies about Obama and others are coming from PR hacks paid by people like the Koch brothers. Such things are traceable by those who know how. I’d love to know where this nonsense is coming from and who is paying for it. We could guess of course and probably be right but it would be more convincing with facts to back it up.

  44. Ford Prefect says:

    One ought not to have to point this out, but I guess it is necessary to repeat over and over again: People do not claim powers they have no intention of using. Obama was murdering innocents with his drones five months before he had OLC type up a memo saying, “It’s not illegal if POTUS does it.”

    The lack of outrage among “Democrats” over these illegal powers is most telling.

  45. TruthNotReligion says:


    I keep looking for statements on the web from certain potential Democratic presidential candidates denouncing this state of the law, resulting from the refusal of the USSC to accept this case, but . . . GOLLY ! . . . I just can’t find any of these statements.

    SO . . . the next time the staff of AMERICABLOG is at a Dem cocktail party (invitations to these parties seems to “buy” the loyalty of AMERICABLOG) . . . could you please ASK where all those statements of denunciation are located on the web, and then post them . . . HERE ?


  46. itiscoming says:

    Republicans really do believe that Obama is a fascist dictatorial monster, but they do not do anything about it because they are also fascist monsters that happen to be lower in the pecking order of the house slaves serving the same groups.

  47. druidbros says:

    And so it begins…

  48. itiscoming says:

    the only way Obamacare can be viewed as a success is if it leads to single payer and eliminate the for profit insurance companies for a large majority of the population.

  49. Elijah Shalis says:

    Rendition and torture is unconstitutional no matter what they say. I suggest they take a refresher course in Con Law 1 and 2.

  50. arcadesproject says:

    Habeas Corpus is so over.

  51. Silver_Witch says:

    No longer surprised by anything the government (President/Congress/Et. Al.) do/does. And they are all screaming about benghazi…how about we all scream about something real like this instead. It is of course, because Republicans support the incarceration and holding of citizens…and are using benghazi as the shiny thing to keep their own from looking at this issue.

  52. Houndentenor says:

    I don’t know where people got the idea that Obama was all that liberal. He ran on centrist positions and policies with very few exceptions. The same was true of Hillary Clinton.

  53. Houndentenor says:

    If Republicans really believed that Obama were the fascist dictatorial monster they often claim him to be, they’d want to strip his administration of the ability to detain people indefinitely without charging them for fear he’d use this power against his political opponents.

  54. angryspittle says:

    Apparently the justices (and I say that advisedly) cannot read the fucking constitution. It is written in English and it is pretty clear in its meaning, particularly the 5th amendment. Any damned idiot can see that the NDAA is in blatant violation of the fundamental meaning of the document. We have gone down the rabbit hole as a nation.

  55. chris10858 says:

    Other than us forcing Obama into pushing for more civil equality for gay people, what has he done in these years that calls to a progressive agenda? Even his ObamaCare (which I like) is nothing more than a gift-wrapped present from the Heritage Foundation to the insurance companies.

    Im very disappointed in President Obama… mostly because I though he was a progressive but he’s nothing more than a DINO.

  56. tjcole says:

    It’s not just the end of our Bill of Rights, it also eviscerates the Magna Carta..! TJ Colatrella aka TJ Cole..

  57. GaiusPublius says:

    Just a note. I want to thank everyone in this community for the Twittering and Facebooking you’ve done and are doing, especially the Facebookers who Share as well as Like. It really helps get the word out.

    Social media, when it works, works very well. An important part of the effort, and something anyone can do. Thanks!


  58. gratuitous says:

    Gee, and I remember when Hedges et al first filed the suit that the tut-tutting was near deafening. “Oh no, you’re being all paranoid and stuff! All those former practices have been ended, and the United States doesn’t go for those little short-cuts through the Constitution anymore. Why do you hate Obama? This is shrill and silly in the extreme; not sensible at all. You’re just providing ammunition for the right wingers, who are the real torturers.”

    Oh yeah; heard it all. And once again, us dirty fucking hippies were spot on.

  59. Mike_in_the_Tundra says:

    I see the federal government is fearful of a revolution, so they’re making preparations.

  60. supremefools says:

    Are you really surprised? This is the same court that held that a corporation was a “person” under the Bill of Rights and a corporation had 1st Amendment rights. What a phooking joke. Next in line for Chief Judge John Roberts and the rest of the cast of marionettes – a case holding that the federal government is a “corporation”, followed soon by undeniable law of logic that the federal government has free speech rights, because we all know the Bill of Rights was really meant to protect government. If someone could find a way to make DC and all its current inhabitants many feel the world would be a better place.

  61. cole3244 says:

    the supreme court is but a distant memory in the minds of older citizens.

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