NDAA Lawsuit a Struggle to Save the Constitution

By Tangerine Bolen, Guardian UK

11 August 12

Time after time, Obama's lawyers defending the NDAA's section 1021 affirm our worst fears about its threat to our liberty.

am one of the lead plaintiffs in the civil lawsuit against the National Defense Authorization Act, which gives the president the power to hold any US citizen anywhere for as long as he wants, without charge or trial.

In a May hearing, Judge Katherine Forrest issued an injunction against it; this week, in a final hearing in New York City, US government lawyers asserted even more extreme powers - the right to disregard entirely the judge and the law. On Monday 6 August, Obama's lawyers filed an appeal to the injunction - a profoundly important development that, as of this writing, has been scarcely reported.

In the earlier March hearing, US government lawyers had confirmed that, yes, the NDAA does give the president the power to lock up people like journalist Chris Hedges and peaceful activists like myself and other plaintiffs. Government attorneys stated on record that even war correspondents could be locked up indefinitely under the NDAA.

Judge Forrest had ruled for a temporary injunction against an unconstitutional provision in this law, after government attorneys refused to provide assurances to the court that plaintiffs and others would not be indefinitely detained for engaging in first amendment activities. At that time, twice the government has refused to define what it means to be an "associated force", and it claimed the right to refrain from offering any clear definition of this term, or clear boundaries of power under this law.

This past week's hearing was even more terrifying. Government attorneys again, in this hearing, presented no evidence to support their position and brought forth no witnesses. Most incredibly, Obama's attorneys refused to assure the court, when questioned, that the NDAA's section 1021 - the provision that permits reporters and others who have not committed crimes to be detained without trial - has not been applied by the US government anywhere in the world after Judge Forrest's injunction. In other words, they were telling a US federal judge that they could not, or would not, state whether Obama's government had complied with the legal injunction that she had laid down before them.

To this, Judge Forrest responded that if the provision had indeed been applied, the United States government would be in contempt of court.

I have mixed feelings about suing my government, and in particular, my president, over the National Defense Authorization Act. I voted for Obama.

But the US public often ignores how, when it comes to the "war on terror", the US government as a whole has been deceitful, reckless, even murderous. We lost nearly 3,000 people on 9/11. Then we allowed the Bush administration to lie and force us into war with a country that had nothing to do with that terrible day. Presidents Bush and Obama, and the US Congress, appear more interested in enacting misguided "war on terror" policies that distract citizens from investigating the truth about what we've done, and what we've become, since 9/11.

I, like many in this fight, am now afraid of my government. We have good reason to be. Due to the NDAA, Chris Hedges, Kai Wargalla, the other plaintiffs and I are squarely in the crosshairs of a "war on terror" that has been an excuse to undermine liberties, trample the US constitution, destroy mechanisms of accountability and transparency, and cause irreparable harm to millions. Several of my co-plaintiffs know well the harassment and harm they have incurred from having dared openly to defy the US government: court testimony has included government subpoenas of private bank records of Icelandic parliamentarian Birgitta Jónsdóttir; Wargalla's account of having been listed as a "terrorist group"; and Hedges' concern that he would be included as a "belligerent" in the NDAA's definition of the term - because he interviews members of outlawed groups as a reporter - a concern that the US attorneys refused on the record to allay.

Other advocates have had email accounts repeatedly hacked, and often find their electronic communications corrupted in transmission (some emails vanish altogether). This is an increasing form of pressure that supporters of state surveillance and intervention in the internet often fail to consider.

I've been surprised to find that most people, when I mention that I am suing my president, Leon Panetta, and six members of Congress (four Democrats and four Republicans), thank me - even before I explain what I'm suing them over! And when I do explain the fact that I and my seven co-plaintiffs are suing over a law that suspends due process, threatens first amendment rights and takes away the basic right of every citizen on this planet not to be indefinitely detained without charge or trial, their exuberance shifts, and a deeper gratitude shines through newly somber demeanors. But this fight has taken a personal toll on many of us, including myself.

My government, meanwhile, seems to have lost the ability to discern the truth about the US constitution any more; I and many others have not. We are fighting for due process and for the first amendment - for a country we still believe in and for a government still legally bound by its constitution.

If that makes us their "enemies", then so be it. As long as they cannot call us "belligerents", lock us up and throw away the key - a power that, incredibly, this past week US government lawyers still asserted is their right. Against such abuses, we will keep fighting.