http://www.truthdig.com/report/item/the_origins_of_our_police_state_20130916/
The Origins of Our Police State
JaQuan LaPierre, 22, was riding a bicycle down a sidewalk Sept. 5 when he noticed a squad car pulling up beside him. It was 8:30 on a hot Thursday night at the intersection of Bond Street and Jackson Avenue here in Elizabeth, N.J. LaPierre had 10 glass vials of crack cocaine—probably what the cops were hoping to find—and he hastily swallowed them. He halted and faced the two officers who emerged from the cruiser.
“We are tired of you niggers,” he remembers one of the officers saying. “We’re tired of all this shooting and robberies and violence. And we are going to make you an example.”
He was thrown spread-eagle onto the patrol car.
“What I bein’ arrested for?” LaPierre asked.
A small crowd gathered.
“Why you harassin’ him?” someone asked the cops. “He ain’t resisting. Why you doin’ this?”
One of the officers went though LaPierre’s pockets and took his keys and $246 in cash. LaPierre kept asking why he was being arrested. He was pepper-sprayed in the face. One officer threw him onto the street, and, while he was handcuffed, the two cops kicked and beat him.
“What you beatin’ my nephew for?” his uncle, Antoine, said to the cops.
“It was so hot on my face,” LaPierre said of the pepper spray when we met a few days ago. “I was gasping for air.”
More police arrived. They pushed back onlookers, including the uncle. LaPierre was gagging and choking. He was dragged across the asphalt. By the time the beating was over, blood was coming out of his mouth. He was unconscious. The assault was caught on a camera, even though when the police saw they were being recorded they pointed a flashlight beam into the lens.
The only visible crimes LaPierre had committed was riding a bicycle on a sidewalk and failing to wear a safety helmet.
Police abuse is routine in Elizabeth, as it is in poor urban areas across the country. This incident did not make news. But it illustrated that if you are a poor person of color in the United States you know what most us are about to find out—we have no civil liberties left. Police, who arrest some 13 million people a year, 1.6 million on drug charges—half of those for marijuana counts—carry out random searches and sweeps with no probable cause. They take DNA samples from many of those they arrest, even some eventually found to be innocent, to build a nationwide database. They confiscate cash, cars, homes and other possessions based on allegations of illegal drug activity and direct the proceeds into police budgets. And in the last three decades the United States has constructed the world’s largest prison system, populated with 2.2 million inmates.
As in most police states, cops serve as judge and jury on city streets—“a long step down the totalitarian path,” in the words that U.S. Supreme Court Justice William O. Douglas wrote in 1968 when he decried expanding police powers. And police departments are bolstered by an internal surveillance and security apparatus that has eradicated privacy and dwarfed the intrusion into personal lives by police states of the past, including East Germany.
Under a series of Supreme Court rulings we have lost the rights to protect ourselves from random searches, home invasions, warrantless wiretapping and eavesdropping and physical abuse. Police units in poor neighborhoods function as armed gangs. The pressure to meet departmental arrest quotas—the prerequisite for lavish federal aid in the “war on drugs”—results in police routinely seizing people at will and charging them with a laundry list of crimes, often without just cause. Because many of these crimes carry long mandatory sentences it is easy to intimidate defendants into “pleading out” on lesser offenses. The police and the defendants know that the collapsed court system, in which the poor get only a few minutes with a public attorney, means there is little chance the abused can challenge the system. And there is also a large pool of willing informants who, to reduce their own sentences, will tell a court anything demanded of them by the police.
The tyranny of law enforcement in poor communities is a window into our emerging police state. These thuggish tactics are now being used against activists and dissidents. And as the nation unravels, as social unrest spreads, the naked face of police repression will become commonplace. Totalitarian systems always seek license to engage in this kind of behavior by first targeting a demonized minority. Such systems demand that the police, to combat the “lawlessness” of the demonized minority, be, in essence, emancipated from the constraints of the law. The unrestricted and arbitrary subjugation of one despised group, stripped of equality before the law, conditions the police to employ these tactics against the wider society. “Laws that are not equal for all revert to rights and privileges, something contradictory to the very nature of nation-states,” Hannah Arendt wrote in “The Origins of Totalitarianism.” “The clearer the proof of their inability to treat stateless people as legal persons and the greater the extension of arbitrary rule by police decree, the more difficult it is for states to resist the temptation to deprive all citizens of legal status and rule them with an omnipotent police.”
Once you are branded a felon, as Michelle Alexander points out in her book “The New Jim Crow,” you are “barred from public housing by law, discriminated against by private landlords, ineligible for food stamps, forced to ‘check the box’ indicating a felony conviction on employment applications for nearly every job, and denied licenses for a wide range of professions.” And this is for people who might have had only a small quantity of drugs, perhaps a few ounces of marijuana. There are 6 million people who because of felony convictions are permanently shut out from mainstream society. They are second-class citizens, outcasts. The war on drugs—aided by hundreds of millions of federal dollars along with federal donations of high-velocity weapons, helicopters, command vehicles and SWAT team military training—has become the template for future social control. Poor people of color know the truth. They were the first victims. The rest of us are about to find it out.
LaPierre was taken unconscious to a hospital. He woke up with both hands handcuffed to a gurney. He was vomiting blood. Two of the glass vials, each worth $10 on the street, came up with his vomit. The police, ecstatic, had the drugs they had hoped to find when they stopped him.
“It’s over for you,” he heard an officer say. “You’re goin’ down.”
“You spittin’ at an officer?” one of the cops said laughingly. “Your boys are not here to protect you now, are they?”
LaPierre could not see. He heard the officers discussing the charges and making sure the official story was coherent. One officer, inexplicably, yanked out some of LaPierre’s hair, braided in cornrows, and stuffed the hair into the handcuffed man’s pants “on my private parts.”
“Trying to disarm an officer,” he heard one say as they tallied the charges. “Possession. Resisting arrest. Starting a riot.” By the time he was transferred out of the hospital five days later there would be nine charges and a $35,000 bail.
“During the last couple of days the police have been telling people in the neighborhood that if they go to court to testify about the beating of JaQuan they will be arrested and go to jail too,” Myrtice Bell, LaPierre’s grandmother, told me.
LaPierre, who was on probation for allegedly resisting arrest during another routine stop, a charge he says was false, and who has a pending charge of being in a vehicle with other men in which an illegal weapon was found by police, appears destined to be swallowed into the vast prison system. He will become, if he is railroaded into prison, one more person among the more than 2 million behind bars in the U.S. His experience, and the experience of others in poverty-stricken communities, should terrify us. Our failure to defend the rights of the poor in the name of law and order, our demonization of young black men, our acceptance that they can be stripped of the power to protect themselves from police abuse or find equality before the law, mean that their fate will soon become ours.
Thursday, September 19, 2013
Tuesday, September 17, 2013
SC119-8
http://kunstler.com/clusterfuck-nation/commotion/
Commotion
Now that Lawrence Summers has removed himself from consideration as Federal Reserve chairman, President Obama is free to launch him into Syria as the first human rehypothecation weapon of mass destruction, where he can sow enough confusion between Assad’s Alawites and the Qaeda opposition to collateralize both factions into contingent convertible capital instruments buried in the back pages of Goldman Sachs’s balance sheet so that the world will never hear of them again — and then the Toll Brothers can be brought in to develop Syria into a casino / assisted living complex that will bring hundreds of good jobs to US contractors in the region.
No doubt the stock markets will fly like eagles today. Nobody knew what monkeyshines Mr. Summers might have pulled over at the Fed and it was making investors nervous, as well as the big banks who employed Mr. Summers occasionally as some kind of policy bagman. So a big sigh of relief blew over the Northeast Region of the nation like the gusts of autumn air that swept away a fetid hump of stale, wet tropical weather that ruined all the ladies’ party hair in the Hamptons this month.
Now that Syria has been disposed of — that is, indefinitely consigned to failed state purgatory — the world can focus its remaining attention on the almighty taper. I’m with those who think we’ll get a taper test. That is, the Fed will cut back ten or fifteen percent on its treasury bond purchases to see what happens. What happens is perfectly predictable: interest rates shoot above 3 percent on the ten-year and holders of US paper all the world round fling them away like bales of smallpox blankets and… Houston, we’ve got a problem. After a month (or less) of havoc in the bond market, and the housing market, Mr. Bernanke will issue an advisory saying (in more words than these) “just kidding.” Then it will be back to business as usual, which is to say QE Forever, which might as well be saying “game over.”
One must feel for poor Mr. Bernanke. He’s tried to run a long-distance foot-race against reality and now it’s breathing down his neck near finish line. The idea was to pump enough artificial “money” into the economy to give it the appearance of motion, but all he accomplished in the words of my recent podcast guest, Eric Zencey, was a commotion of money, and the commotion was pretty much limited to a few blocks of lower Manhattan, two ribbons of real estate running up the East Side and Central Park West, and a subsidiary disturbance out on the South Fork of Long Island. Everybody else in the country was left to stew in a tattoo-and-malt-liquor torpor at the SNAP Card application office.
The Fed can only pretend to try to get out of this self-created hell-hole. The stock market is a proxy for the economy and a handful of giant banks are proxies for the American public, and all they’ve really got going is a hideous high-frequency churn of trades in conjectural debentures that pretend to represent something hidden in the caboose of a choo-choo train of wished-for value — and hardly anyone in the nation, including those with multiple graduate degrees in abstruse crypto-sciences, can even pretend to understand it all.
When reality crosses the finish line ahead of poor, exhausted Mr. Bernanke, havoc must ensue. All the artificial props fall away and the so-called American economy is revealed for what it is: a surreal landscape of ruin with nothing left but salvage value. Very few people will get a living off of the salvage operations, and there will be fights and skirmishes everywhere by one gang or another for control of the pickings. The utility of money itself may be bygone, along with the legitimacy of anyone or anything claiming institutional authority. This is what comes of all attempts to get something for nothing.
By the way, for those of you still watching the charts, notice that gold and silver may bob up and down week-by-week, but the price of oil remains stubbornly above $105-a-barrel no matter what happens. That is the only number you need to know to predict the fate of industrial economies.
Commotion
Now that Lawrence Summers has removed himself from consideration as Federal Reserve chairman, President Obama is free to launch him into Syria as the first human rehypothecation weapon of mass destruction, where he can sow enough confusion between Assad’s Alawites and the Qaeda opposition to collateralize both factions into contingent convertible capital instruments buried in the back pages of Goldman Sachs’s balance sheet so that the world will never hear of them again — and then the Toll Brothers can be brought in to develop Syria into a casino / assisted living complex that will bring hundreds of good jobs to US contractors in the region.
No doubt the stock markets will fly like eagles today. Nobody knew what monkeyshines Mr. Summers might have pulled over at the Fed and it was making investors nervous, as well as the big banks who employed Mr. Summers occasionally as some kind of policy bagman. So a big sigh of relief blew over the Northeast Region of the nation like the gusts of autumn air that swept away a fetid hump of stale, wet tropical weather that ruined all the ladies’ party hair in the Hamptons this month.
Now that Syria has been disposed of — that is, indefinitely consigned to failed state purgatory — the world can focus its remaining attention on the almighty taper. I’m with those who think we’ll get a taper test. That is, the Fed will cut back ten or fifteen percent on its treasury bond purchases to see what happens. What happens is perfectly predictable: interest rates shoot above 3 percent on the ten-year and holders of US paper all the world round fling them away like bales of smallpox blankets and… Houston, we’ve got a problem. After a month (or less) of havoc in the bond market, and the housing market, Mr. Bernanke will issue an advisory saying (in more words than these) “just kidding.” Then it will be back to business as usual, which is to say QE Forever, which might as well be saying “game over.”
One must feel for poor Mr. Bernanke. He’s tried to run a long-distance foot-race against reality and now it’s breathing down his neck near finish line. The idea was to pump enough artificial “money” into the economy to give it the appearance of motion, but all he accomplished in the words of my recent podcast guest, Eric Zencey, was a commotion of money, and the commotion was pretty much limited to a few blocks of lower Manhattan, two ribbons of real estate running up the East Side and Central Park West, and a subsidiary disturbance out on the South Fork of Long Island. Everybody else in the country was left to stew in a tattoo-and-malt-liquor torpor at the SNAP Card application office.
The Fed can only pretend to try to get out of this self-created hell-hole. The stock market is a proxy for the economy and a handful of giant banks are proxies for the American public, and all they’ve really got going is a hideous high-frequency churn of trades in conjectural debentures that pretend to represent something hidden in the caboose of a choo-choo train of wished-for value — and hardly anyone in the nation, including those with multiple graduate degrees in abstruse crypto-sciences, can even pretend to understand it all.
When reality crosses the finish line ahead of poor, exhausted Mr. Bernanke, havoc must ensue. All the artificial props fall away and the so-called American economy is revealed for what it is: a surreal landscape of ruin with nothing left but salvage value. Very few people will get a living off of the salvage operations, and there will be fights and skirmishes everywhere by one gang or another for control of the pickings. The utility of money itself may be bygone, along with the legitimacy of anyone or anything claiming institutional authority. This is what comes of all attempts to get something for nothing.
By the way, for those of you still watching the charts, notice that gold and silver may bob up and down week-by-week, but the price of oil remains stubbornly above $105-a-barrel no matter what happens. That is the only number you need to know to predict the fate of industrial economies.
Monday, September 2, 2013
SC119-7
http://www.truthdig.com/report/item/the_last_chance_to_stop_the_ndaa_20130902/
The Last Chance to Stop the NDAA
I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the National Defense Authorization Act (NDAA) that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities. Carl Mayer and Bruce Afran, the lawyers who with me in January 2012 brought a lawsuit against President Barack Obama (Hedges v. Obama), are about to file papers asking the U.S. Supreme Court to hear our appeal of a 2013 ruling on the act’s Section 1021.
“First the terrorism-industrial complex assured Americans that they were only spying on foreigners, not U.S. citizens,” Mayer said to me recently. “Then they assured us that they were only spying on phone calls, not electronic communications. Then they assured us that they were not spying on American journalists. And now both [major political] parties and the Obama administration have assured us that they will not detain journalists, citizens and activists. Well, they detained journalist Chris Hedges without a lawyer, they detained journalist Laura Poitras without due process and if allowed to stand this law will permit the military to target activists, journalists and citizens in an unprecedented assault on freedom in America.”
Last year we won round one: U.S. District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 unconstitutional. The Obama administration immediately appealed her ruling and asked a higher court to put the law back into effect until Obama’s petition was heard. The appellate court agreed. The law went back on the books. I suspect it went back on the books because the administration is already using it, most likely holding U.S. citizens who are dual nationals in black sites in Afghanistan and the Middle East. If Judge Forrest’s ruling were allowed to stand, the administration, if it is indeed holding U.S. citizens in military detention centers, would be in contempt of court.
In July 2013 the appellate court, in round two, overturned Forrest’s ruling. All we have left is the Supreme Court, which may not take the case. If the Supreme Court does not take our case, the law will remain in place unless Congress strikes it down, something that federal legislators have so far refused to consider. The three branches of government may want to retain the ability to use the military to maintain control if widespread civil unrest should occur in the United States. I suspect the corporate state knows that amid the mounting effects of climate change and economic decline the military may be all that is left between the elite and an enraged population. And I suspect the corporate masters do not trust the police to protect them.
If Section 1021 stands it will mean that more than 150 years of case law in which the Supreme Court repeatedly held the military has no jurisdiction over civilians will be abolished. It will mean citizens who are charged by the government with “substantially supporting” al-Qaida, the Taliban or the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition. It will mean citizens seized by the military will languish in military jails indefinitely, or in the language of Section 1021 until “the end of hostilities”—in an age of permanent war, for the rest of their lives. It will mean, in short, obliteration of our last remaining legal protections, especially now that we have lost the right to privacy, and the ascent of a crude, militarized state that serves the leviathan of corporate totalitarianism. It will mean, as Forrest 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.
“As Justice [Robert] Jackson said in his dissent in the Korematsu case, involving the indiscriminate detention of Japanese-American citizens during World War II, once an unconstitutional military power is sanctioned by the courts it ‘lies about like a loaded weapon, ready for the hand of any authority,’ ” Mayer said.
In our lawsuit the appellate court never directly addressed the issue of using the military to hold citizens and strip them of due process—something that is clearly unconstitutional. Instead, the court held that I and the other plaintiffs did not have standing to bring the case. It said that because none of us had been imminently threatened with arrest we had no credible fear. This was an odd argument. When I was a New York Times reporter I was, as stated in court, arrested and held by the U.S. military in violation of my First Amendment rights as I was covering conflicts in the Middle East. In addition I was briefly detained, without explanation, in the Newark, N.J., airport by Homeland Security as I returned from Italy, the court was told.
During the five years I covered the war in El Salvador the Reagan administration regularly denounced reporters who exposed atrocities by the Salvadoran military as “fifth columnists” for the rebel movement, a charge that made us in the eyes of Reagan officials at the very least accomplices to terrorism. This, too, was raised in court, as was the fact that during my seven years as a reporter in the Middle East I met regularly with individuals and groups, including al-Qaida, that were considered terrorists by the U.S. government. There were times in my 20-year career as a foreign correspondent, especially when I reported events or opinions that challenged the official narrative, that the U.S. government made little distinction between me and groups that were antagonistic to the United States. In those days there was no law that could be used to seize and detain me. Now there is.
Journalist Alexa O’Brien, who joined the lawsuit as a plaintiff along with Noam Chomsky, Daniel Ellsberg and others, was incorrectly linked by the security and surveillance state to terrorist groups in the Middle East. O’Brien, who doggedly covered the trial of Chelsea (formerly Bradley) Manning, co-founded US Day of Rage, an organization dedicated to electoral reform. When WikiLeaks in February 2012 released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, it was revealed that the company was attempting to tie O’Brien and her organization to Islamic radicals and websites as well as jihadist ideology. Fred Burton, Stratfor’s vice president for counterterrorism and corporate security and a former deputy director of the counterterrorism division of the State Department’s Diplomatic Security Service, and Thomas Kopecky, director of operations at Investigative Research Consultants Inc. and Fortis Protective Services LLC, had an email exchange over this issue. Kopecky wrote: “I was looking into that US Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements. Thus far, I have only hear[d] rumors but not gotten any substantial connection. Do you guys know much about this other than its US Domestic fiscal ideals?” Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movement at this point.” But that soon changed. Stratfor, through others working in conjunction with the FBI, falsely linked US Day of Rage to al-Qaida and other Islamic terrorist organizations. Homeland Security later placed her group on a terrorism watch list.
This will be the standard tactic. Laws passed in the so-called war on terror will be used to turn all dissidents and activists into terrorism suspects, subjecting them to draconian forms of state repression and control. The same tactic was used during the anti-communist hysteria of the 20th century to destroy union leaders, writers, civil rights activists, intellectuals, artists, teachers, politicians and organizations that challenged entrenched corporate power.
“After 12 years of an undeclared permanent war against an undefined enemy and multiple revelations about massive unconstitutional spying by the government, we certainly hope that the Supreme Court will strike down a law that replaces our civilian system of justice with a military one,” said Mayer. “Unless this happens there will be little left of judicial review during wartime.”
Afran, a law professor at Rutgers University, asked last week during a conversation with me: “Does the Army have to be knocking on your door saying, ‘Come with me,’ before there will be the ability to challenge such a law?” He said the appellate court’s ruling “means you have to be incarcerated before you can challenge the law under which you’re incarcerated.”
“There’s nothing that’s built into this NDAA [the National Defense Authorization Act] that even gives a detained person the right to get to an attorney,” Afran said. “In fact, the whole notion is that it’s secret. It’s outside of any judicial process. You’re not even subject to a military trial. You can be moved to other jurisdictions under the law. It’s the antithesis of due process.”
The judges on the appellate court admitted that we as plaintiffs had raised “difficult questions.”
“This is a way of acknowledging they’re troubled by the apparent lack of constitutionality of the law,” Afran said during our conversation. “But they were not willing to face the question head on. So, in effect, they said, ‘Well, when someone’s threatened with arrest, then we have a concrete injury.’ But no one’s going to be threatened with arrest. They’ll simply be arrested. They’re not going to send a letter saying, ‘By the way, on Thursday next we’re going to place you in military custody.’ … The whole point of the law is that they’re going to come in and take you [in secrecy].”
The appellate court stated that the law does not apply to U.S. citizens and permanent residents. In reading the law this way the justices were saying, in effect, that I and the other plaintiffs had nothing to fear. Afran called this a “circular argument.” The court, in essence, said that because it did not construe the law as applying to U.S. citizens and lawful residents we could not bring the case to court.
“They seem to accept a lot of what we said, namely that the whole history of the jurisprudence, of the court decisions, is that American civilians cannot be placed in military custody,” Afran said. “And they accept the idea that Section E of the statute says, ‘Nothing herein shall be construed to affect existing authorities as to the detention of U.S. citizens.’ So on the basis of that they say this is not meant to add any new powers to the government and since the government doesn’t have power over civilians in this way the law can’t be extended to civilians. The problem is by saying there’s no standing, they deprive the district court of entering an order, saying and declaring that the statue does not apply to U.S. citizens or permanent residents, lawful residents in the U.S.”
The court, in essence, accepted the principle that citizens cannot be taken into military custody but refused to issue a direct order saying so that would be enforceable.
“We have the absurdity of the court of appeals, one of the highest courts in the country, saying this law cannot touch citizens and lawful residents, but depriving the trial court of the ability to enter an order blocking it from being used in that way,” Afran said. “The lack of an order enables future [military] detentions. A person may have to languish for months, maybe years, before getting a court hearing. The [appellate] court correctly stated what the law is, but it deprived the trial court of the ability to enter an order stopping this [new] law from being used.”
“A law is not constitutional just because habeas corpus says you have a right to go to court to try to get out,” Afran said in speaking about the legal mechanism by which someone might challenge custody. “The citizen is entitled not to be detained in the first place absent probable cause. Habeas corpus is a remedy of last resort. It’s not there to justify the use of unconstitutional detention laws.”
The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. There is no guarantee our appeal will ever be heard. If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.
The Last Chance to Stop the NDAA
I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the National Defense Authorization Act (NDAA) that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities. Carl Mayer and Bruce Afran, the lawyers who with me in January 2012 brought a lawsuit against President Barack Obama (Hedges v. Obama), are about to file papers asking the U.S. Supreme Court to hear our appeal of a 2013 ruling on the act’s Section 1021.
“First the terrorism-industrial complex assured Americans that they were only spying on foreigners, not U.S. citizens,” Mayer said to me recently. “Then they assured us that they were only spying on phone calls, not electronic communications. Then they assured us that they were not spying on American journalists. And now both [major political] parties and the Obama administration have assured us that they will not detain journalists, citizens and activists. Well, they detained journalist Chris Hedges without a lawyer, they detained journalist Laura Poitras without due process and if allowed to stand this law will permit the military to target activists, journalists and citizens in an unprecedented assault on freedom in America.”
Last year we won round one: U.S. District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 unconstitutional. The Obama administration immediately appealed her ruling and asked a higher court to put the law back into effect until Obama’s petition was heard. The appellate court agreed. The law went back on the books. I suspect it went back on the books because the administration is already using it, most likely holding U.S. citizens who are dual nationals in black sites in Afghanistan and the Middle East. If Judge Forrest’s ruling were allowed to stand, the administration, if it is indeed holding U.S. citizens in military detention centers, would be in contempt of court.
In July 2013 the appellate court, in round two, overturned Forrest’s ruling. All we have left is the Supreme Court, which may not take the case. If the Supreme Court does not take our case, the law will remain in place unless Congress strikes it down, something that federal legislators have so far refused to consider. The three branches of government may want to retain the ability to use the military to maintain control if widespread civil unrest should occur in the United States. I suspect the corporate state knows that amid the mounting effects of climate change and economic decline the military may be all that is left between the elite and an enraged population. And I suspect the corporate masters do not trust the police to protect them.
If Section 1021 stands it will mean that more than 150 years of case law in which the Supreme Court repeatedly held the military has no jurisdiction over civilians will be abolished. It will mean citizens who are charged by the government with “substantially supporting” al-Qaida, the Taliban or the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition. It will mean citizens seized by the military will languish in military jails indefinitely, or in the language of Section 1021 until “the end of hostilities”—in an age of permanent war, for the rest of their lives. It will mean, in short, obliteration of our last remaining legal protections, especially now that we have lost the right to privacy, and the ascent of a crude, militarized state that serves the leviathan of corporate totalitarianism. It will mean, as Forrest 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.
“As Justice [Robert] Jackson said in his dissent in the Korematsu case, involving the indiscriminate detention of Japanese-American citizens during World War II, once an unconstitutional military power is sanctioned by the courts it ‘lies about like a loaded weapon, ready for the hand of any authority,’ ” Mayer said.
In our lawsuit the appellate court never directly addressed the issue of using the military to hold citizens and strip them of due process—something that is clearly unconstitutional. Instead, the court held that I and the other plaintiffs did not have standing to bring the case. It said that because none of us had been imminently threatened with arrest we had no credible fear. This was an odd argument. When I was a New York Times reporter I was, as stated in court, arrested and held by the U.S. military in violation of my First Amendment rights as I was covering conflicts in the Middle East. In addition I was briefly detained, without explanation, in the Newark, N.J., airport by Homeland Security as I returned from Italy, the court was told.
During the five years I covered the war in El Salvador the Reagan administration regularly denounced reporters who exposed atrocities by the Salvadoran military as “fifth columnists” for the rebel movement, a charge that made us in the eyes of Reagan officials at the very least accomplices to terrorism. This, too, was raised in court, as was the fact that during my seven years as a reporter in the Middle East I met regularly with individuals and groups, including al-Qaida, that were considered terrorists by the U.S. government. There were times in my 20-year career as a foreign correspondent, especially when I reported events or opinions that challenged the official narrative, that the U.S. government made little distinction between me and groups that were antagonistic to the United States. In those days there was no law that could be used to seize and detain me. Now there is.
Journalist Alexa O’Brien, who joined the lawsuit as a plaintiff along with Noam Chomsky, Daniel Ellsberg and others, was incorrectly linked by the security and surveillance state to terrorist groups in the Middle East. O’Brien, who doggedly covered the trial of Chelsea (formerly Bradley) Manning, co-founded US Day of Rage, an organization dedicated to electoral reform. When WikiLeaks in February 2012 released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, it was revealed that the company was attempting to tie O’Brien and her organization to Islamic radicals and websites as well as jihadist ideology. Fred Burton, Stratfor’s vice president for counterterrorism and corporate security and a former deputy director of the counterterrorism division of the State Department’s Diplomatic Security Service, and Thomas Kopecky, director of operations at Investigative Research Consultants Inc. and Fortis Protective Services LLC, had an email exchange over this issue. Kopecky wrote: “I was looking into that US Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements. Thus far, I have only hear[d] rumors but not gotten any substantial connection. Do you guys know much about this other than its US Domestic fiscal ideals?” Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movement at this point.” But that soon changed. Stratfor, through others working in conjunction with the FBI, falsely linked US Day of Rage to al-Qaida and other Islamic terrorist organizations. Homeland Security later placed her group on a terrorism watch list.
This will be the standard tactic. Laws passed in the so-called war on terror will be used to turn all dissidents and activists into terrorism suspects, subjecting them to draconian forms of state repression and control. The same tactic was used during the anti-communist hysteria of the 20th century to destroy union leaders, writers, civil rights activists, intellectuals, artists, teachers, politicians and organizations that challenged entrenched corporate power.
“After 12 years of an undeclared permanent war against an undefined enemy and multiple revelations about massive unconstitutional spying by the government, we certainly hope that the Supreme Court will strike down a law that replaces our civilian system of justice with a military one,” said Mayer. “Unless this happens there will be little left of judicial review during wartime.”
Afran, a law professor at Rutgers University, asked last week during a conversation with me: “Does the Army have to be knocking on your door saying, ‘Come with me,’ before there will be the ability to challenge such a law?” He said the appellate court’s ruling “means you have to be incarcerated before you can challenge the law under which you’re incarcerated.”
“There’s nothing that’s built into this NDAA [the National Defense Authorization Act] that even gives a detained person the right to get to an attorney,” Afran said. “In fact, the whole notion is that it’s secret. It’s outside of any judicial process. You’re not even subject to a military trial. You can be moved to other jurisdictions under the law. It’s the antithesis of due process.”
The judges on the appellate court admitted that we as plaintiffs had raised “difficult questions.”
“This is a way of acknowledging they’re troubled by the apparent lack of constitutionality of the law,” Afran said during our conversation. “But they were not willing to face the question head on. So, in effect, they said, ‘Well, when someone’s threatened with arrest, then we have a concrete injury.’ But no one’s going to be threatened with arrest. They’ll simply be arrested. They’re not going to send a letter saying, ‘By the way, on Thursday next we’re going to place you in military custody.’ … The whole point of the law is that they’re going to come in and take you [in secrecy].”
The appellate court stated that the law does not apply to U.S. citizens and permanent residents. In reading the law this way the justices were saying, in effect, that I and the other plaintiffs had nothing to fear. Afran called this a “circular argument.” The court, in essence, said that because it did not construe the law as applying to U.S. citizens and lawful residents we could not bring the case to court.
“They seem to accept a lot of what we said, namely that the whole history of the jurisprudence, of the court decisions, is that American civilians cannot be placed in military custody,” Afran said. “And they accept the idea that Section E of the statute says, ‘Nothing herein shall be construed to affect existing authorities as to the detention of U.S. citizens.’ So on the basis of that they say this is not meant to add any new powers to the government and since the government doesn’t have power over civilians in this way the law can’t be extended to civilians. The problem is by saying there’s no standing, they deprive the district court of entering an order, saying and declaring that the statue does not apply to U.S. citizens or permanent residents, lawful residents in the U.S.”
The court, in essence, accepted the principle that citizens cannot be taken into military custody but refused to issue a direct order saying so that would be enforceable.
“We have the absurdity of the court of appeals, one of the highest courts in the country, saying this law cannot touch citizens and lawful residents, but depriving the trial court of the ability to enter an order blocking it from being used in that way,” Afran said. “The lack of an order enables future [military] detentions. A person may have to languish for months, maybe years, before getting a court hearing. The [appellate] court correctly stated what the law is, but it deprived the trial court of the ability to enter an order stopping this [new] law from being used.”
“A law is not constitutional just because habeas corpus says you have a right to go to court to try to get out,” Afran said in speaking about the legal mechanism by which someone might challenge custody. “The citizen is entitled not to be detained in the first place absent probable cause. Habeas corpus is a remedy of last resort. It’s not there to justify the use of unconstitutional detention laws.”
The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. There is no guarantee our appeal will ever be heard. If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.
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