“The U.S. Supreme Court Decision … Means the Nation Has Entered a Post-Constitutional Era”

Washington's Blog

“We Are No Longer a Nation Ruled By Laws”

 

Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.

The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.

The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.

The trial judge ruled that the indefinite detention bill was unconstitutional, holding:

This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.

But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:

We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.

The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does apply to American citizens, and that top legal scholars agree.

Last week, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting the indefinite detention law stand unchanged.

The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.

However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.

The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:

The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!

And he won’t get to say:

You’re confusing me with another John Smith, and I can prove it!

After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.

So – if you’re thrown into a hole somewhere – no one will even hear your story.

Read more