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.


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Gaius Publius is a professional writer living on the West Coast of the United States.

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