Privacy SOS

NDAA: Government lawyers “can’t rule out” throwing us all in jail indefinitely for speech “crimes”

A number of prominent activists and writers are suing the US government, alleging that the National Defense Authorization Act of 2012 is unconstitutional because it grants the feds the authority to lock up anyone without charge or trial and throw away the key. Sounds about right.

The trial began on March 29 in the Southern District of New York, with Judge Forrest presiding. Some alarming insights were revealed in the court room that day.

Naomi Wolf, a journalist who filed a brief in support of the petitioners, took notes and has offered them to the public. One of the plaintiffs, Pulitzer Prize winning journalist Chris Hedges, wrote a piece about the scene in the court room that went viral yesterday (read it if you haven't already).

It's a good thing we can still read about court room proceedings and government secrecy. After all, Hedges and Wolf have both bemoaned the constricting of press freedom under the Obama administration, which has prosecuted six whistleblowers under the 1917 Espionage Act — more prosecutions under the anti-speech law than all prior administrations combined.

Wolf told the court in her supporting brief that she has already begun censoring herself, not seeking out interviews with people she worries the US government might someday decide are terrorists (including Occupy activists, among other non-terrorists), out of fear that she could be locked up under sections 1021 and 1022 of the 2012 NDAA.

Hedges has said, alternatively, that the tripartite assault of warrantless wiretapping, whistleblower prosecutions and the NDAA is a perfect anti-speech package. The first enables the government to find out who is leaking sensitive (read: embarrassing) information to the press; the second allows the government to lock up whistleblowers; and the third allows the government to lock up the journalist who prints the leaks. Voila! (Who needs Walter Lippmann anymore with laws like that?)

Wolf's notes from the court room, like Hedges' piece and the legislation that is the target of the suit, are shocking. Most shocking is that the government lawyers marshaled to defend the Gulag statute don't deny that they have the authority to do any of the following:

  • lock up Chris Hedges for writing something they don't like;
  • lock up Occupy activists if someone decides they are terrorists (in secret, with secret evidence, of course);
  • lock up anyone for publishing a book the government decides provides "material support to terrorists"; or
  • decide what constitutes "material support for terrorists" or "associated forces" on a whim and in secret.


Wolf reports:

“Government lawyers in New York court tell Judge they can’t directly rule out detaining Chris Hedges for reporting, Occupy London for protesting, or the author of a hypothetical book on politics for expressing an opinion, under NDAA sections 1021 and 1022.”

When Chris Hedges took the stand, his lawyer asked him if he had knowledge of the US government assigning him the "terrorist" label. Hedges said no. But then his lawyer asked him if he'd even been put on a homeland security watch list. Hedges said yes. His lawyer asked: who's supposed to be on those lists?

Hedges: "Terrorists."

Part of the problem with NDAA, allege the plaintiffs, is that it opens the door to detaining people indefinitely if the government simply alleges that the person provided ambiguously defined "material support to terrorists" or "associated forces."

Much of the hearing last week focused on this phrase: "associated forces." What does that mean? From Wolf's notes:

Judge Forrest was pushing to determine the boundaries of the NDAA law.
Obama’s lawyer said that it would take a case of someone being detained under the NDAA, to find the parameters of the law.
Judge Forrest: “Is it really adequate to say you have to go to a DC court, in detention, to figure this out? Are you going to have to wait for courts other than this one to decide who ‘associated forces’ are? Is this the only way we can figure this out?”
She asked the government lawyer for an example of a boundary around “associated forces.”
Judge Forrest: “I don’t want precision. I want a boundary.”
Obama lawyer: “I don’t have specifics.”
Judge Forrest: “Associated forces”? What are they?”
Judge Forrest: “If you can’t stand here and say, “1021 won’t touch Ms O’Brien [one of the plaintiffs]…unless, if you did, we would be done — if you can’t do that, you leave us in a tough spot here.”
Read the rest of her notes. It's chilling stuff. The moral of the story seems to be to watch what you say. Not exactly "Land of the Free, Home of the Brave," is it?
But more important: fight back. Dissent is the most important tool we have to stop the advancing police state in the US. Use it — now — or lose it.

© 2021 ACLU of Massachusetts.