The following is an excerpt from WAGES OF REBELLION: The Moral Imperative of Revolt. Reprinted with permission from Nation Books 2015.
My own dead end with the judicial system occurred in April 2014 when the US Supreme Court refused to hear Hedges v. Obama, the lawsuit I brought against Barack Obama concerning Section 1021(b)(2) of the National Defense Authorization Act (NDAA). This provision permits the military to seize US citizens and hold them indefinitely in military detention centers without due process.6
The refusal by the Supreme Court to hear the case means that extraordinary rendition by our government of US citizens on US soil is legal. It means that the courts, like the legislative and executive branches of government, are now exclusive servants of corporate power. It means that the consent of the governed--in a poll conducted by OpenCongress.com the NDAA provision had a 97 percent disapproval rating--is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose what remains of our liberty.
The attorneys Bruce Afran and Carl Mayer and I had brought the case to the US Southern District Court of New York in January 2012. I was later joined by coplaintiffs, the philosopher and linguist Noam Chomsky, Daniel Ellsberg, who leaked the Pentagon Papers; the journalist Alexa O'Brien; activist Tangerine Bolen; Icelandic parliamentarian Birgitta JÃ³nsdÃ³ttir; and Occupy activist Kai Wargalla. US District Judge Katherine B. Forrest in 2012 declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed--we expected it to appeal--but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.
The government swiftly went to the US Court of Appeals for the Second Circuit. It asked, in the name of national security, that the court stay the district court's injunction until the government's appeal could be heard. The Second Circuit agreed. The law went back on the books. Afran, Mayer, and I surmised that the administration acted this quickly because it was already using the law to detain US citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia, and Yemen. The administration would have been in contempt of court if Forrest's ruling had been allowed to stand while the federal authorities detained US citizens under the statute. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.
The Second Circuit overturned Forrest's ruling in July 2013 in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was a plaintiff, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International had challenged the secret wiretapping of US citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was "speculation." It said that we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The Court knew, of course, that the government does not disclose whom it is monitoring. And it knew we could not offer proof.
The documentation proving that we--and nearly all Americans--are victims of government surveillance had not yet been provided to the press by Edward Snowden. Snowden, who worked for the consulting firm Booz Allen Hamilton at a National Security Agency (NSA) center in Hawaii, fled the country before leaking thousands of classified documents that detailed the massive government surveillance operation within the United States and abroad. The Second Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.
In refusing to hear our lawsuit, the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now a US citizen charged by the government with "substantially supporting" al-Qaeda, the Taliban, or those in the nebulous category of "associated forces"--some of the language of Section 1021(b)(2)--is lawfully subject to extraordinary rendition on US soil. And those seized and placed in military jails can be kept there until "the end of hostilities."
Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc anarchists--so named because they dress in black obscure their faces, move as a unified mass, seek physical confrontations with police, and destroy property--and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government's use of the military to detain at least 110,000 Japanese Americans in internment camps without due process during World War II.8