As Disinfo reported September 18th, the permanent injunction against §1021 of the National Defense Authorization Act (NDAA), has been stayed pending appeal.
Naturally the lawyers for the case are treating this as a major setback in whatever media is paying attention to them, which unfortunately is pretty thin: basically, it’s just their client. The most likely explanation for that dearth of coverage is that most major media sources have legal advisors on staff who are looking at the law suit the way the Justice Department is: this is either a standing or a separation of powers issue that should have died the miserable death all paranoid nuisance cases die at trial, and will get shut down at the appellate level and denied cert by SCOTUS. Which is not to say that view is correct, just that it’s the rather obvious and lazy conventional wisdom that cases like this attract among legal cognoscenti. Luckily, at least for Disinfo and its readers, Disinfo doesn’t have on staff a bevy of law trained news advisors to tell them this isn’t a story, instead y’all’ve got me.
So yes, while major setback this ain’t, what is worth covering right now is how this latest chapter in a very interesting long story even came about in the first place. I’m sorry to inform you, but it isn’t the story you think it is or the one that the underground press has been acting like it is. What this is, really, is a story about a law that has nothing to do with a program of arbitrary detention of American citizens designed to silence the Occupy Wall Street protests as a first step in the Kafkaesque-Orwellian Deployment of Big Brother’s Black Helicopter Brigade (“KOD-3BHB”) to effect the handover of world government to the Bavarian Illuminati. Fnord. That version of the story is what appears to people who spend too much time worrying about the KOD-3BHB and who are seeing it in the NDAA because when you look at an amorphous cloud, the pattern recognition engine will let you see all kinds of things that aren’t really there. That’s what’s wrong with the NDAA, according to Judge Forrest’s ruling, and how it is actually a danger for another reason altogether that is not getting much attention from anyone. There is a story there.
In all lawsuits seeking to protect civil rights it matters who the plaintiffs are. That is particularly true of this particular lawsuit, the lead plaintiff of which is one of the foremost war correspondents of modern times. Because of his status and reputation, Chris Hedges can make a very solid claim that he someday might want to interview or interact with members of the Taliban or Al Qaeda in order to report on their organization. That claim, and his status as a respected journalist who in fact often does report on global conflicts and is likely to have sources who are involved in those organizations, make all the difference in this lawsuit. Read between the lines of the trial Judge’s opinion, and it is fairly clear that she did not think the other plaintiffs had such a strong case that they were injured by the law. Judge Forrest’s recitation of the facts focuses heavily on the journalistic work of Hedges, with slight mention of Chomsky, and Ellsberg, and more or less no weight given to the concerns of the other plaintiffs. A very reasonable translation from Federal Judgese of all that is that had Hedges not been listed among the plaintiffs, the suit would not likely have gotten this far and may have been dismissed for lack of standing months ago.
Standing is an important issue to understand when dealing with lawsuits like this, because without it, it is unconstitutional for federal courts to hear the case. This is because Article III of the constitution only empowers the Judiciary to hear “cases and controversies.” This is one of the limits on the federal judicial power in the United States, and the set of legal doctrines dealing with aspects of this clause is the standing doctrines. One of the basic requirements of standing, particularly in a case like this where the law is being challenged on its face rather than as a result of having been applied to a particular person, is that the plaintiff in the suit has to show that they have a reasonable fear of being injured by the defendants conduct. That, frankly, is the weakest part of the case because the scenario where any old Joe Nobody has a reasonable fear under the NDAA requires the Judge to believe that the inevitable KOD-3BHB moment has arrived, time to run for the hills, load up on guns, bring your friends, etc. There is no good way to put this, so it might as well be put bluntly: people who display that kind of irrational paranoia are unlikely to be appointed to the Federal Bench.
Chris Hedges’s presence as a plaintiff, however, makes the KOD-3BHB fantasy irrelevant to the case, because he is in the fairly rarified position of operating within a zone protected by the 1st Amendment as someone who could very well be threatened by a reasonable interpretation of §1021; a statute that at best is poorly drafted, and in my opinion and the opinion of Judge Forrest unconstitutionally vague, legislative garbage. And it is that vagueness in combination with the possibility of infringing on a protected zone of activity wherein “congress shall make no law” which gave this case legs in might not otherwise have had if Joe Nobody were the lead plaintiff. And all of that leads to Judge Forrest’s rejection of the law not on 1st Amendment grounds, but because the 5th Amendment to the Constitution requires that congress give due process to any deprivation of life, liberty or property. Due process means, among other things, that a person must have what’s called “notice” about any possible violations of the law. Notice is a legal term of art that means, basically, that if the State is going to prohibit certain conduct, it has to give people fair notice by which they could have known that the conduct was prohibited.
The requirement of notice in this context means that Chris Hedges has a right to know ahead of time what activities he might engage in when dealing with sources and doing his reporting that could run afoul of the “substantial support” provision of §1021 of the law. Hedges essential claim, and the claim that ultimately won the support of the trial court—despite the fact that for some reason this has been downplayed by him and his lawyers in their public comments about it, and they seem intent on talking about it as if it were a 1st Amendment victory rather than a 5th Amendment victory—is that the statute is very vague about what such “substantial support” is and the Justice Department failed to present a credible interpretation to the court that would make clear that Hedges’s journalistic activities would not necessarily run afoul of the law. In other words, the case was really the Justice Department’s to lose. And as Judge Forrest’s opinion makes clear, they blew it because they failed to state unequivocally that protected activities of the sort described were not “substantial support.” The government lawyers know they blew it, too, and moved to correct that error in the second sentence of their petition for appeal:
This is a suit brought by a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of ever being captured and detained by the U.S. military.
That clarification was cited broadly by the 2nd Circuit panel as a primary reason why the stay was granted. However, because it does get to a fundamental Constitutional issue about the separation of powers that is novel, an emergency stay and appeal was always certain, at least to an en banc hearing of the 2nd Circuit and most likely to the Supreme Court, which I predict will refuse to hear the case.
While the use of federal troops in a domestic law enforcement capacity is hardly new&madash;its first use dating to the Forces Act during Reconstruction and its best use being the enforced desegregation of schools in the deep south after Brown v. Board of Education—its use in the bizarre Bush era construct of the War on Terror that the Obama Adminstration has inadvisedly fail to restructure does blend military and law enforcement activities in a unique and troubling way that ought not to be given the kind of wiggle room that a vague law like §1021 gives it. Novelty is a guarantee of appellate review, particularly when there’s a clash between branches of the federal government. And because of that, Judge Forrest’s order of a permanent injunction was never final, as I pointed out in the first article about it disinfo published. This was always going to be appealed and as a result, the final order was always going to be stayed pending that appeal. That’s a procedural matter that just takes place whenever there’s an appeal on a case of fundamental constitutional concern. The appeals court judges aren’t going to let anything go into effect that might overstep the authority of the Judicial branch before they’ve had a chance to look at it, and as a result the Federal Rules of Appellate Procedure set the bar for getting such a stay very low.
As for why it’s an emergency appeal, it doesn’t mean, as Hedges and his lawyers have recently claimed, that there might already be detainees of the sort that Hedges suit fears might result from the law. The actual grounds for the emergency action are a fear that the lower court’s injunction is an “invitation for contempt proceedings that appears to envision an exercise of the court’s authority beyond enjoining Section 1021(b)(2) to deter the military from continuing to adhere to the reading of the AUMF that has stood for years and has been approved by the D.C. Circuit and Congress.” Not for the first time I find myself wishing that Hedges had found lawyers who weren’t such obvious glory hounds who may get creamed because they apparently haven’t understood the Government’s position. The reason the government sought an emergency stay is because Judge Forrest’s opinion can be read in such a way that would place the Guantanamo Bay detention continuing under the AUMF and long since litigated and reformed through the ongoing litigation by those detainees as violations of her order. That’s a procedural overreach by the court that exceeds the court’s legal authority to interfere with “collateral matters.”
And but so, contrary to what various reporting has stated, such as the article quoted by Disinfo on the 18th of September and the 3rd of October (from Russia Today, unsurprisingly), there is really nothing untoward or unexpected about the stay being put in place here, and it’s not any kind of victory for the Administration or for supporters of the law. It happened just as predicted in a previous disinfo article. It is a default step that is more or less always taken unless there are extraordinary exigencies that make issuing the stay pending appeal unjust. And generally speaking, there you are talking about immediate matters of life and death which, at least for the moment, this is not. Because it’s a sweeping facial injunction on the Executive barring enforcement of a federal statute wholly related to national security, Hedges’s lawyers are either being disingenuous or stupid by expressing surprise over the emergency injunction. That’s an area of law combined with a type of ruling that is highly unprecedented and an area where the courts are traditionally highly deferential to the congress and the executive. The Forrest ruling is a serious break from that tradition and came out as badly as it did for the government because the lawyers at the trial level blew it for the Administration. So no, the stay is no big deal no matter what various hyperbolic paranoia mongers might say.
What happens next is the really interesting part as each side ramps up their case and submits their appellate briefs on the decision. What we can expect is for the Government to again raise their three primary arguments against the Hedges claim. In brief, those are the issue of standing, the request for judicial deference to the executive in a matters of national defense due the limits placed on the courts by the separation of powers, and the argument that the language in § 1021 does nothing more than reauthorize the provisions of the 2001 Authorization of the Use of Military Force, the statute originally authorizing the military detention of battlefield captures in Afghanistan.
In turn, Hedges et al. will raise their responses to those challenges and respond that the trial court got it right and the Appeals court should stay the course. If that happens, expect it to go to the Supreme Court. If the Appeals court reverses the decision of the lower court, expect it to die there. Four Justices have to agree that a case needs hearing in order for the Supreme Court to take it up, and if the Appeals court tosses the lawsuit the only reasonably reliable votes for the Nine to take it up would be Sotomayor and Ginsburg. Breyer and Kagan would both be in the maybe column, and Kagan is likely a recusal because she was solicitor general during the time when the Administration was drafting the early versions of the law in 2010. It is unlikely that any of the conservatives other than Alito would be willing to hear the case, and Alito only because if Obama wins re- election it will give him yet another opportunity to tweak the executive branch’s nose while in the end probably supporting the law and reinforcing his worst of a bad bunch reputation on matters of free speech.
But that’s all just the inside baseball analysis that may be interesting to constitutional law geeks, but doesn’t really get at why this is a real story despite most commentators—including Hedges, Chomsky et al and their lawyers, incidentally—being wrong about it. Because this isn’t really the nightmare scenario that everyone paints it as being. The reason that the KOD-3BHB scenario will never come to pass is because it never needs to come to pass. There is nothing to be gained from it by anyone with the power to push for it and a great deal to be lost for the people who involved in the great game of global power. Those Powers That Be, such as they are, don’t want large swaths of the American or European public locked up in indefinite detention and/or angry that someone they know and love is locked up in indefinite detention. And that’s not because they’re worried about what that angry public is capable of. They don’t care about that. They don’t care about Occupy Wall Street or Black Block activists giving riot cops something to do. They have seen much larger mass movements and they learned the lesson that they didn’t need to concern themselves with them because ultimately they are no threat. What those types of major league sociopaths do care about is the growth of the economy and people who are demonstrating in the streets about massive abuses of power are not buying new widgets and gadgets from Sears to help with their home improvement projects or to tune up their cars or to make sure they never miss an episode of the Real Housewives of Joe Nobodyville while they’re doing their pilates class on Wednesday nights. Put succinctly, oppressed masses under the heal of an authoritarian regime make bad consumers, and that’s why the KOD-3BHB concern is something you just don’t have to worry about. Ever.
What you do have to worry about, really worry, is the power of the American people who like to be politically informed losing access to voices like Chris Hedges and Noam Chomsky because of vagueness in the laws governing foreign conflicts making it impossible for them to work. Because whatever you might think of either of them, and I have my quibbles with both, they are a tremendous value in that they help bring to us the view of the American Empire from beyond our borders. They hold up a mirror to US foreign policy and let Americans examine ourselves in important self-critical ways that are not possible with a media that would otherwise be limited to the local news broadcasts latest report on the house fires and burglaries in your neighborhood. And it is that view that US citizens need if we are to make informed choices about foreign policy and the future of US militarization over which we have control through the republican processes of American government. Without it, everyone will start sounding like rightwing paranoid isolationists because all we will hear of the voices beyond our borders will be those those that are amenable to global capital. That, unlike the KOD-3BHB, is a danger and what’s worse about it is that it can happen even if that wasn’t something anyone intended. You just put the right vague laws and the wrong short-sighted decision makers together under stress and a world of misery and disaster can emerge without anyone even wanting it to come about.
Because this is not about the intent of the law. The problem with the NDAA is the usual composition by committee trouble of sloppy drafting and legal incompetence in congress combined with the typical ignorant anti-civil rights blow-hardiness of the right that got this garbage passed and into law where the legislative task could have been as simple as a one line reauthorization of the 2001 AUMF. For the problems of this law to be intentional, a sophisticated legal Rube Goldberg Device Like operating on a 5 dimensional chess board, the people running the show would have to be supremely competent and willing to take huge risks in furtherance of minor movement in their agendas. I see no evidence of that kind of genius or competence operating anywhere in the world at present, and particularly not in Washington, DC. So there’s no malicious intent to be feared here.
And that almost makes it worse, because what does need to be feared is the result of some mid-level military commander who is still afraid people will somehow discover how small his penis is who runs the show at a regional level in the Pashtun mountains who sees an independent journalist trying to tell a different story from the one he wants told in his particular slice of the warzone and decides maybe this guy has been a little too “substantial” in his “support” of the local Haqqani militia. Once that happens, the chilling effect on which the lawsuit was based at the trial stage becomes a real injury to that reporter who is now in a cell in Gitmo, and that real injury will become an even more serious chilling effect for other journalists who might now think twice about questioning the official Department of Defense propaganda in a hostile engagement overseas.
And that, class, is how a 5th Amendment problem with the vagueness of this law becomes a 1st Amendment problem with the vagueness of this law. And unfortunately that’s not the story that gets told when commenters focus on the paranoid fantasy of the KOD-3BHB that will never come to pass because it would prevent them from being fat happy consumers. Decreasing the number of fat happy consumers can never be allowed. But making sure they don’t hear things about what’s going on in their name in the rest of the world, that’s hunky dory. And that’s the real story of why the NDAA is stupid and dangerous even though you don’t have to worry about it.