I want to share with you my experiences of last Wednesday at the US Court of Appeals for the 2nd Circuit in New York City where I watched the appeal proceeding for Hedges vs. Obama. Earlier that week I saw an event listed on the Occupy Wall Street website inviting everyone who is against the NDAA to attend the hearing. This was the first time I'd been to an appeals court and I recommend that everyone try to go sometime.
First of all, people did "Flood the Court" thanks to Occupy Wall Street. It was a really cold day and a couple hundred people came out to the courthouse anyway. Loved the signs and seeing so many citizens from all walks of life protesting and of course was happy to see Lady Liberty from the Occupy Puppet Guild there too.
We got up to the courtroom early, about 8:30 AM, and the room was already almost full even though the hearing started at 10 AM. The room held 36 spectator seats (64 person capacity for the room). I don't know how many people went to the overflow room that was provided. There was a three judge panel that questioned each side for a total of 1-1/2 hours. The hearing also included a statement that the two senators who sponsored the NDAA bill in question , John McCain and Lindsey Graham, sent to be read to the judges. Highly unusual by all accounts. The proceeding was all very technical and strictly about the law. It was sometimes a little hard to hear the lawyers as they spoke because the microphones weren't very good.
The lawyers for the government argued that Hedges and the other "appellees" couldn't sue because they hadn't already been detained by the NDAA sec 1021b. Well, just because they haven't yet been detained by the military doesn't mean that they can't and won't be under this provision. Also, if the government wins on a technicality like "standing" this still doesn't address the constitutionality of sec 1021b.
What's the big deal, argued the government, the NDAA was first introduced under the Bush administration; Obama only reaffirmed a law already in effect. But that's not actually true. The law they were referring to, was the Authorization for Use of Military Force or AUMF, passed by Congress after 9/11 on September 14, 2001.
Here is what my friend who was with me said about this: "If the NDAA is irrelevant, why is the government defending it? And why, when Judge Forrest ruled against it, did the Obama administration immediately seek an emergency injunction against her ruling on the grounds that it threatened irreparable harm to national security? Why not just fall back on the earlier law?"
The government lawyers couldn't say how the government officials would decide if someone supported terrorism but they assured everyone that the government would know it when they saw it.
The lawyers for the Hedges side were questioned just as sharply by the judges as the government lawyers were. Bruce Afron was very good and brought up the points that the statute differs from the earlier law because it allows the military to have power over civilians (one of the judges actually suggested something to the effect that being arrested by the police was the same as being detained by the military!), it inhibits free speech, and the definition of support for terrorists is so vague that if a journalist has been in contact with a terrorist group that he or she would no longer viewed by the government as "independent" and can be detained without trial indefinitely. In earlier questioning by the judges the government lawyers couldn't say how the government officials would decide if someone supported terrorism but they assured everyone that the government would know it when they saw it.
It was impossible to get a sense of the mood of the judges but they seem thoughtful and will take their time making a decision (probably months). In the meantime the emergency stay on Judge Forrest's ruling is in effect and the NDAA, including sec 1021b is still law.
There hasn't been much mainstream news coverage and newspapers like the NYT seem to side with the government. They omit the fact that Americans can now be detained by the military anywhere in the world including America on "suspician" of support to the enemy. You see, the whole earth has been defined by the American government as a battlefield. In retrospect, the mainstream media was also very low key when Glass-Steagall was repealed in 1999. The press presented that story as no big deal and look what happened in the financial meltdown of 2008! Are they asleep at the wheel or what? As an alternative to MSM here is a sampling from some of the fantastic non-mainstream journalists that covered this historic day.
Please share widely so that everyone becomes aware of this fight to preserve our constitutional freedoms of free speech and due process.
Photos from the Courthouse
Video of Post-hearing Press Conference
In freedom and solidarity while we still have it, Rebekah.