Judges to Review Constitutionality of NDAA Military Detention Legislation

Chris Hedges, whose column is published Mondays on Truthdig, spent nearly two decades as a foreign correspondent in Central America, the Middle East, Africa and the Balkans. His book War Is a Force That Gives Us Meaning (2003) was a finalist for the National Book Critics Circle Award for Nonfiction. Here he’s interviewed by Paul Jay of the Real News Network.

More at The Real News

A note on what we still classify as legalities. From the transcript:

[HEDGES: I]n September, Judge Forrest ruled that Section 1021 [of the NDAA] was in fact unconstitutional, and she issued a permanent injunction. During the trial, she had issued a temporary injunction against that law while it was being challenged in court.

The Obama administration, which had appealed the temporary injunction, filed an emergency appeal against the permanent injunction. ….

I think this has to do with internal dissent. I think that, you know, both the lawyers and myself feel that because they issued an emergency appeal, they reacted so aggressively once Judge Forrest declared this section unconstitutional, they are probably already using the NDAA. This is supposition, but probably they are holding dual Pakistan-U.S. nationals in military facilities like Bagram, because if they weren’t using it, they could have just filed an appeal.

The problem is that once the judge declared the law unconstitutional, if they continue to hold American citizens and deny them access to due process, then they would be in contempt of court. And so the rapid response, the—and it was interesting that it was the Pentagon lawyers that filed this emergency appeal. And the issuance of an emergency stay or temporary stay until the appeal is heard I think essentially is to cover them legally for already putting the NDAA into use. Internally, I really think it has less to do with Iran and a lot more to do with controlling the American public.

It’s hard to for me to see how the “lesser evil” crowd can sleep at night. The NDAA is an enabling act. What Obama’s doing with it is far worse than anything Bush ever did (granted, that we know of).

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. JGordon

    As Dmitry Orlov explains, it’s better to just ignore all this stuff. Despite being vicious, pervasive, and visible, America’s police state is not especially competent or goal-oriented. If you can bring yourself to stop caring about all the thieving and corruption that the elites are constantly engaged in then they will pretty much leave you alone. It’s the people who try hard and get agitated about things who run the risk of getting steam-rollered.

    So just do yourself a favor: sit back, relax, and get the free bread and circuses while they last–and use whatever spare money or resources you can gather to become more self-reliant while you’re at it. You’ll feel better about yourself that way and plus you won’t be so bummed out all the time about what the politicians and bankers are doing. It’s a recipe for peace of mind that I’m happy to share.

      1. knowbuddhau

        Then why are either one of you even bothering to read NC, much less reply?

        Next time you want to tell us to abdicate our obligations as citizens; to ignore the suffering of our friends, families, neighbors, and even fellow Americans we’re never likely to meet; to just lay back and enjoy the rape and pillage of all we hold dear; do us all a favor and walk your talk.

    1. El Guapo

      This is a selfish attitude. The reason people react is not simply because they themselves are threatened. Its also a response to seeing others trampled.

      And being passive won’t save you. They steamroll everyone.

      1. Nathanael

        Remember, in North Korea they have obnoxious propaganda-blaring loudspeakers all over the place…
        …people just rip the wires out.

        So many people rip the wires out that the government can’t prosecute the people who do, and doesn’t bother to do so.

        I see this as the model for “creating an alternative social paradigm”. It’s not so great because it only goes so far — eventually you have to actually overthrow the existing leftover government — but it’s how people *start* behaving when the government is discredited.

    2. JTFaraday

      Since it’s early and there aren’t many comments, I can readily recall this comment from you on the “frabulous jobs” thread, where you advocate independence from what a follow-up commenter called “the dogma of the western industrial paradigm,” a paradigm I see as co-extensive with with both the industrial economy and the post-industrial corporate white collar and service economy:

      “The idea that people should actually go out and do jobs really pisses me off at a fundamental level… I really, really hate seeing these corrupt politicians and banksters explaining how they plan to get more people working, as if that were a actually worthy goal to aim for.”

      In the current political economy in particular, the two of you may have a point about this. As a culture we seem to make employed status the very definition of good citizenship, but do we really want to give everyone a gold star who worked in the FIRE sector during the internet bubble? Is it not okay for those who positioned themselves to make a killing, but perfectly fine for those who did it in order to pay the rent?

      However, are we certain that your “drop out and build an alternative culture” social and economic solution will work in the kind of full blown police state that we’ve never seen in the US, but perhaps only to date?

      In thinking a bit about the thread from a few days ago about why commenters may be cranky these day, I felt that one possibility in the “progressive” corner of the blogosphere may have to do with the ordering of priorities.

      There is more consensus that the economy is a top priority than there was prior to the crisis in 2008 when the liberal-left was more scattered into the post-60s cultural diversity paradigm that produced the election of Obama. (Needless to say, this paradigm is still effective in dividing people, particularly those who will defend Obama and those don’t).

      But not only do people disagree even in the progressive blogosphere about “what is to be done” with regard to the economy, but to the extent that progressives continue to look to a US government that since the Bush Administration is openly and unambiguously manifesting a new authoritarianism, this has got to produce some uncomfortable cognitive dissonance for some people.

      I know it does for me, because I have a hard time imaging this gaggle of criminal minds doing anything I’d actually want to see.

      And yet I can’t agree that “dropping out” will prove a successful strategy in an open police state. Consider the Pennsylvania “kids for cash” scandal of a few years ago:

      “Two judges… were accused of accepting money from Robert Mericle, builder of two private, for-profit juvenile facilities, in return for contracting with the facilities and imposing harsh sentences on juveniles brought before their courts in order to ensure that the detention centers would be utilized.”


      It is encouraging that the two judges were convicted for racketeering. But interestingly, while he does face felony charges, the potential sentencing for the private prison promoter– like the penalties paid by the banks– does not amount to much of deterrent.

      Can we really say that the police state is incompetent and passive and not much of a concern? If you just mind your own business– and don’t protest in the streets or drive while being black (or an adolescent or whatever)– and you’ll be okay?

      1. JTFaraday

        “but do we really want to give everyone a gold star who worked in the FIRE sector during the internet bubble?”

        ooops– bubbles on top of bubbles. I meant to say:

        “do we really want to give everyone a gold star who worked in the FIRE sector during the housing bubble.”

    3. patricia

      Whatever Dmitry Orlov is recommending, he himself hasn’t been ignoring “all this stuff”. He has been talking for a long time to any who might listen. He has worked out a life with networks of people. That has been his part and very useful it is.

      If a person frees self of the “dogma of the western industrial paradigm”, there is more free time (at least for now), as stated. Some of it can be used to push against increasing tyranny. I mean, why not? And if Orlov is correct that America’s police-state is not all that competent, it will be that much easier to dismantle.

      Someone once told me that humility is knowing who you are: nothing more, nothing less. It’s important to be clear on both the power contained in the self and the limits of one’s abilities/actions.

      There are varieties of citizens in this country–we each have a part to play. Our job is to accept the part that belongs to each of us while at the same time not dash our heads against the rocks more often than absolutely necessary.

      Seems workable.

    4. citalopram

      I’m with you on this one. There’s no protest of what’s going on that’s going to change the direction we’re headed in.

      OWS is a failure, unfortunately.

      1. Aquifer

        i don’t think it’s a failure – it just, IMO, needs a political arm or leg or whatever appendage it takes to get it into the halls of power …

      2. patricia

        Hedges sees it as the first incarnation of mass citizen action, beginning a many-stepped process. As such, OWS’ character has given me hope, because when the next incarnation emerges, it will build on what they’ve well-started. I am looking forward to it!

        This is going to take a long time. The worst of the job will be completed when all the small stones begin rolling downhill in the same direction. After that, the best part of the job starts.

      3. JEHR

        Obviously, citalopram, you didn’t read the One Year Anniversary of OWS article above. Occupy has morphed into a number of groups that are attacking a certain points of the financial system so we have Occupy the SEC and OWS Alternative Banking. I’m sure there are other Occupy groups being formed as we speak.

        1. Ray Duray

          We are keeping an Occupy node alive in Central Oregon:


          For those who think OWS is kaput, I’ll point out that the women’s suffrage movement succeeded in the U.S. after only 65 years of effort. It was declared dead hundreds of times before the woman’s vote became fact.

          1. enouf

            This C-SPAN archive was wonderful;


            Assistant Director Jennifer Krafchik, the director of collections, gave a tour of the Sewall-Belmont House and Museum, displaying artifacts as she talked about Alice Paul, the Women’s Suffrage Movement, and the the protests that helped lead to the 19th Amendment. The final necessary state ratified the 19th Amendment on August 18, 1920, and the secretary of state certified the amendment’s adoption on August 26, 1920.


    5. jonkirby2012.wordpress.com

      No I dont think your even close to being right.
      It needs to be Stopped and if the elite want a fight
      Then they may take down one to two xcountries but the they will show themselves and eventually the world wont stand for it. As pretty much they are doing now. No middle class or poor GIVE A DAMN They are RICH we welcome them to be so but when they much Rule the whole world and exterminate then their shift is up.

    6. K. Ackermann

      No children, huh?

      You wouldn’t have have the same attitude if you had children. They give you something to fight for. Plus, nobody wants to look pathetic in front of their children.

    7. Chauncey Gardiner

      Hmmm… Red Pill or the Blue Pill?… Not being critical, in fact, I believe Solzhenitzen, who spent years in the gulags, actually suggested your approach toward the end.

      Btw, while you’re enjoying your corporate beer and pizza at halftime, perhaps you could just pause for a moment and ask yourself what Tim DeChristopher is doing.

    8. Capo Regime

      You probably will get a few nasty comments from the believers in voting and protests. Am with you and Orlov. Its not so much ignoring things, its checking out. Likely Orlov inspired by the “Refuseniks” who would not pay taxes, do what they were told or otherwise compy with the wishes of the state. Police state, drones and what have you if 10 +million adults decided tomorrow they would no longer pay taxes, alimony, mortgages, credit card bills, student loans the whole thing would grind to a halt. The key to change things is indeed not doing anything coupled with ignoring the inevitable pleas and threats.

    9. Susan Pizzl

      Whatever our police state was once upon a time (Bertram Gross’s friendly fascism?), what it has morphed into since 9/11 is something else entirely. The NDAA’s indefinite detention provision is a direct contradiction in law of basic constitutional principles. Ditto the information-gathering capabilities that enable the government and/or its designated agents (often contractors) to invade every aspect of our communications and private lives. Grants available to your local law enforcement agencies have enabled them to stock up on the very latest in armaments and crowd-control devices – including armored vehicles. This evolution in legal framework, intelligence apparatus, and militarization of policing, taken in tandem with a financial and corporate elite that has shown itself capable of driving an economy to its knees without regard for the cost in lost jobs, foreclosed homes, or shredded lives is hardly a recipe for a future of benign neglect. For a clearer idea of what lies in store, you might check out the type of financial warfare now being waged in the petri dish that is Greece. Or Spain. Or Latvia.

      The point is that in such an over-populated interdependent ecologically challenged world, self-reliance is necessary but insufficient for most to survive. ‘Checking out’ may sound romantic – until you find that you’re living in a ‘sacrifice zone’ where every vestige of civilization has been withdrawn (eg Camden, NJ). Strategic debt strikes (a la Dave Graeber) are far more promising, as they engage the nexus of the problem. As for peace of mind – not sure it’s possible or even desirable in the face of an existential threat…

      1. Nathanael

        It’s important to note that even a very powerful military will not save a king or junta whose *legitimacy*, in the form of public support, has vanished. We are watching this happen in Syria; Assad is dragging things out as long as he possibly can, and proving that a king who has lost power can kill hundreds of thousands of people, but the end is inevitable.

        (Now, you could go historical, and say that a king who commands a genuinely superior military technology *can* pull off the feat of ruling without legitimacy, though that requires having legitimacy at least among the members of the military. This is not the current scenario; the government was deliberately screwing over the security forces and military under GW Bush; and the government’s military technology is completely behind the times tactically, as it is totally unsuited to guerilla warfare, which is now dominant.)

    10. Valissa

      I basically agree with JGordon, but rather than ignoring what’s going on I think of it as being detached and realistic about things I have no control over. One does what one can, but that is limited by different factors for different people. I tried getting involved with protests at one point, but I realized I don’t have an activist/reformer nature. We all have different paths. I prefer learning how the world works and maintaining my sense of humor about it.

      “Peace is not something you wish for; It’s something you make, Something you do, Something you are, And something you give away.” — Robert Fulghum

      Choosing Peace http://www.cartoonstock.com/newscartoons/cartoonists/rma/lowres/rman977l.jpg

      Different strokes http://www.cartoonstock.com/newscartoons/cartoonists/mba/lowres/mban1666l.jpg

      The peace pipe is not for everyone http://www.cartoonstock.com/lowres/sea0655l.jpg

      The more things change the more they stay the same http://www.stonelinedesigns.com/conference-table-blog/photos/AtThePeaceConference.jpg

      This cartoon could easily be redone with the current Dem administration… come on now, let’s all sing together… http://www.blackcommentator.com/215/215_images/215_cartoon_peace_is_hell_large.jpg

  2. proudly may this wave, zzzip

    Good for Hedges that he can take this constitution shit seriously, I can’t. Constitution’s gone. This is not a legitimate or sovereign state (it does not meet the objective criteria, you could look it up), and no state institution is going to stop the rot because they’re all in the same advanced state of degeneracy. When the Catholic Church lost its legitimacy, people just blew it off. You can do the same with a state. There are proven governance templates and accessible institutions outside our little hermit kingdom, plenty of supranational or universal ideals and institutions more worth your loyalty. The state calls itself America. They train you to stand up during the national anthem so you confuse the two. Have you ever seen what happens when you don’t stand? Interesting, salutary things. The whole con is making you worship shit. If you blow off the America-worship, the state is just a bunch of lonely nuns.

    1. Aquifer

      Those “lonely nuns” don’t seem to have blown the Church off, but are challenging it to be what it actually claims, in its more thoughtful moments, to want to be …

      That seems to me to be a good model for “Americans” as well …

    2. oh say can you see this, zzzzip

      Oh I don’t mean the badasss liberation theology nuns, they’re the greatest, I mean the crabby old Sunday school nuns with their comical imaginary authority covering for the sacerdotal altar-boy fingerers.

  3. Aquifer

    It is interesting, IMO, that both Hedges and those Nuns on the Bus essentially came out of the same tradition of engagement with the world taught them in their training background – the other edge of the sword of religion that i am glad to see being resharpened and put into service – the edge being reshaped as a plow …

  4. MacCruiskeen

    “The NDAA is an enabling act.”

    There doesn’t seem to be a shortage of those. I seem to recall that an NC post referred to the Congressional “supercommittee” as an enabling act, although what it enabled ended up being exactly nothing.

    While I would certainly agree that this provision is unconstitutional, I don’t see how this determines a “lesser evil” one way or the other unless you can point me to a passage where Mr. Romney states he would repeal it. (In fact, one might recall a certain presidential signing statement to the effect that it wouldn’t be used, so it would be interesting to try to get the administration to reconcile.) The operating assumption should be that the next president will have this power and would not willingly give it up unless forced to, no matter who it is.

  5. Sunny129

    NDAA over rides the the very essence of American Constitution and what the spirit of America stands for!

    ‘The day we see the TRUTH and do NOT speak, is the day we begin to die’

  6. Safely Expat

    It seems relevant to me that the US is entering it’s 12th year of a “state of emergency,” dutifully renewed every six months by the current occupant of the White House. When I asked how the emergency changed governmental power, I was told that the president had the authority to recall retired military personnel. I found this response singularly unhelpful, since the president had this express power before the emergency was declared. Let’s not forget that neither we citizens nor most of our elected representatives have any idea what remains of legislation enacted before the state of emergency was declared nor, really, anything since. And that’s the tip of the iceberg. With secret budgets and secret authorization, we Americans could be up to anything.

    1. Carol Sterritt

      Well should you want “ral real scarey” scenarios -s tart getting involved witht he chem trail groups. I knwo chem trails exist – I live about two blocks from a spot where i have an unimpeded view of planes going barely over the ridge of some foothills six miles East of me. That means they are at around 4800 to 5,20 feet. Then they climb to at least 15,000 feet, and then are back down around 5,200 ft in elevation range – just nine miles away from the original start point!

      No FAA personnel would allow commercial jets to fly this way. No military jets can fly this way – except on certain days of the year, on missions usually held over the desert. this is over rural and residential areas. Why? One explanation is the aluminum, jet fuel, and sulphoruous oxides being sprayed around will kill of regular plants and trees. That leaves us only GM seeds from Monsanto to replace it all.

  7. Athena

    We’re very close to living in Mubarak’s Egypt. We just have rotating dictators and a powerful illusion of choice and democracy.

    I was into OWS weeks before the Sep17 occupation took off, and its significant popularity gives me some hope.

    Our foreign policy comes from thinktanks like the Brookings institution (google “Which Path to Persia” to see how psychopathic the real leadership is) no matter which party is in power. Figuring out where power really lies is kinda like peeling an onion of deception, and I’m skeptical that the 99% has the time or even the inclination to learn what’s up (and many who do get sucked into the Alex Jones world.)

    But good for Chris Hedges (probably my favorite journo), Noam et al. How they don’t just collapse into despair is beyond me.

    1. Nathanael

      Difference was, Mubarak’s Egypt provided prosperity for decades.

      When Mubarak fell under the spell of the neoliberal “economists”, *then* he stopped providing prosperity, and that’s when it all blew up.

      Let’s face it: if Obama — or GWB — gave us a country with full employment and a chicken in every pot, would he get away with eliminating the Bill of Rights? Yes, probably.

      However, they aren’t doing that; people are getting poorer. And as a result, the creeping fascism is going to just make people angry.

      1. enouf

        Mubarek’s Egypt and the Arab Spring occured due mainly to one recent tech; Social Media abilities – the populous was already in tune, but the State hadn’t yet caught up — that’ll NEVER happen here, since it’s the State that creates and generates such outlets.


        p.s. If you use social media, you are a ninkumpoop

  8. TK21

    “It’s hard to for me to see how the “lesser evil” crowd can sleep at night.”

    Well because the people who are against things like the NDAA are just overly-priviledged purists who are just out to make themselves look holier-than-thou.

    1. Guy Fawkes Lives

      And those of you who believe that you should just schlep on the couch and ignore all this stuff are ignorant fools.

  9. Mcmike

    If you give fascists power, they will use it. If you give a cop a billy club, he will find a head to bash with it.

    Living a life of mediocre compliance under the radar of the fascists is just that, mediocre. Where the mouse sees himself as clever when he forages for crumbs as the cat sleeps, all I see is a mouse.

  10. knowbuddhau

    Thanks for posting this here. Reminds me of something else that shreds the rule of law as we know it.

    Obama’s Drones Threaten World Civilization

    by BAR executive editor Glen Ford

    “Drone warfare utterly shreds the very concept of the rule of law.”

    When Barack Obama was running for president, in 2008, he vowed to increase the use of drones against al Qaida elements in Pakistan and Afghanistan. His surrogates roamed the talk shows, advocating a “smarter” and cheaper kind of robotic war, allowing the U.S. to avoid pouring more troops into the “Af-Pak” theater of conflict. Vastly increased deployment of Unmanned Aerial Vehicles (UAVs), the argument went, would jettison George Bush’s “dumb” approach to warfare in favor of a cheaper and more humane use of U.S. technological resources, saving both American and South Asian lives.

    What the “peace” candidate was actually proposing, was a qualitative leap in the U.S. drive for “full spectrum dominance” over the planet. The U.S. would elevate to a strategic principle its self-arrogated entitlement to use whatever technical means at its disposal – mainly drones – to target and kill designated adversaries at will, anyplace on the globe, at any time, accountable only to itself. It was a declaration of war against international law, as it has evolved over the centuries. [Emphasis added. April 11, 2012, http://blackagendareport.com/content/obama%E2%80%99s-drones-threaten-world-civilization .]

    Americans worthy of the name have to ask themselves: how can the Pentagon assert full-spectrum dominance over the rest of the planet, for the rest of time, if it doesn’t obtain here at home?

    If the Pentagon et al. is going to go to the trouble of dominating everyone, everywhere, forever, do we really think they’ll acquiesce to the decisions of judges that threaten their plans?

    To my mind, there are two powerful myths at play here. Above, others have alluded to them.

    The myth of American exceptionalism is powering the drive for full-spectrum dominance. The greedheads and warheads who control our nuclear arsenal really think they’re special. So special, in fact, that they’ve convinced themselves that American might is the final arbiter of right. It’s what the Biggest Man (and let’s be clear about this: God’s got the biggest balls of them all) up the Highest Stairs, equipped with the Biggest Club Possible, obviously wants them to do. USA! USA! USA!

    The second is the myth of original sin. According to this worldview, we’re all born guilty; the task of law enforcement is just to tag us with data points that demonstrate, as opposed to confirm, this foregone conclusion. If you’ve ever been wrongfully accused, and then faced a judge who believes in his or her bones that you were born guilty, you’ll know what an impossible task it is to get them to overturn the presumption of original guilt.

    Combine the two, and you get all manner of human sacrifices on the altar of US dominance, from the execution of demonstrably innocent people on our unconscionable Death Rows (who must’ve been guilty of something, right?), to NDAA, drones, and the self-righteous delusion that the monster we’ve created won’t ever turn its baleful Gorgon Stare on us.


    In the eyes of American Exceptionalists, we’re all born guilty and deserving of being surveilled, incarcerated, or droned to death, all so they can increase their chances of getting admitted to the ultimate country club by showing off to their Boss Man in the Sky.

    If we’re successfully to oppose this almighty force, we’ll have to tap into the power of myths of our own: to bring into being the world stage on which we’ll play our own self-determined parts.

    IMHO, OWS is doing just that. One of the most potent political metaphors ever to hit the world stage is, of course, the 99% vs. the 1%.



    1. Nathanael

      It remains important to remember the fundamental incompetence of the Pentagon.

      Iran has one of the US UAVs and has hacked the control systems.

      I wouldn’t want to fight a war against the Iranian military — they’re smart! The US military? Well, they’d make a big fat mess and kill lots of people, but they are absolutely 100% guaranteed to lose, due to the top ranks living in la-la fantasy land. (The sane generals and colonels were forced out under Bush.)

  11. bruce109

    This NDAA thing is bad. Hold on, there is a knock at the door…

    *BAMBLAM BAM!……………………………………….

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