Journalist Chris Hedges Sues Obama Admin over Indefinite Detention of U.S. Citizens Approved in NDAA

[CHIMO]

Pulitzer Prize-winning journalist Chris Hedges has filed suit against President Obama and Secretary of Defense Leon Panetta to challenge the legality of the National Defense Authorization Act, which includes controversial provisions authorizing the military to jail anyone it considers a terrorism suspect anywhere in the world, without charge or trial. Sections of the bill are written so broadly that critics say they could encompass journalists who report on terror-related issues, such as Hedges, for supporting enemy forces. "It’s clearly unconstitutional," Hedges says of the bill. "It is a huge and egregious assault against our democracy. It overturns over 200 years of law, which has kept the military out of domestic policing." We speak with Hedges, now a senior fellow at the Nation Institute and former New York Times foreign correspondent who was part of a team of reporters that was awarded the Pulitzer Prize in 2002 for the paper’s coverage of global terrorism. We are also joined by Hedges’ attorney Carl Mayer, who filed the litigation on his behalf in the U.S. District Court for the Southern District of New York.


http://www.democracynow.org/2012/1/17/journalist_chris_hedges_sues_obama_admin

[Ter]

1. Good, let's hope it's found unconstitutional

The NDAA is a disgusting neo-con bill.

[Joe Shlabotnik]

5. [phone] nt

[rhett o rick]

19. Doesnt someone have to be harmed by the bill to get into the court system?

And wont the court system screw it up like they have the Hamdi and Padilla cases?

[happyslug]

21. Correct, a person MUST have "Standing" but in this case the Reporter clearly does

Remember the reporter is claiming he could be arrested under this statute for doing his job, if that job includes a report on terrorists.

Now, there are two ways to attack a statute, the first is what the reporter is doing here, a frontal attack on the statute that it is clearly unconstitutional on its face. i.e. The reporter has standing for he COULD be a person prosecuted under this statute, and the statute is so broad he can be convicted if he did what he does for a living. Thus the court must strike down the statute if it is clearly on its face violates the Bill of Rights or other constitutional provision.

On the other hand, the court can rule that such a frontal attack fails to show that the Statute, on its face, is unconstitutional, for it is possible for the law to be applied in such a way that no provision of the Bill of Rights or other Constitutional provision is violated. If the court says such a frontal attack fails to show the law, on its face, violates the Bill of Rights OR other Constitutional provision, then people can still attack the law as it applies to them. i.e. when arrested for violating the law, bring up its unconstitutionality at that time.

The downside the such an attack after you have been arrested for violated the law, is if your constitutional claim fails, you are a convicted felon. For decades people wanted to challenged the constitutionality of the Federal Gun Control Law, but the court REFUSED to say the law was unconstitutional on its face for violating the Second Amendment on the simple ground you could have weapons illegal under the Federal Gun Control Law but also had little or no military usefulness (Zip guns, unstable explosive compounds, shot barrel rifles and shotguns with barrels so short as to make then useless for military purposes but perfect for acts of terror) AND in those cases where the weapon clearly had some military usefulness the Defendants faced a dilemma, agree to what ever deal the Federal Prosecutor offered in exchange for dropping the appeal as to constitutionality of the Federal Gun Control law. Defendants, almost to a man, agreed to a lesser sentence then the life sentence mandated by the Gun Control Weapons as to Automatic Weapons in exchange for dropping the Constitutional claim (Or the Prosecutor dropped the Gun Control Violation and concentrated on what ever other crime such people did). In either case no appeal court case and none to the US Supreme Court till the recent decision (Which I disagree with, both to the Majority decision AND the dissent, for I maintain the Second amendment applies to weapons usable in a normal combat situation NOT pistols which was the subject of the recent decision i.e. the Second forbids the Federal, State and Local Governments from banning AUTOMATIC weapons of the type used by the US Military, but such government can ban other weapons NOT is use, or had been used in the recent past, by the Military).

I am getting off the subject with the Second Amendment, but the cases involving the Second shows how the two types of Constitutional challenge to a law works and why some unconstitutional provisions can last for decades before they are struck down. The Anti-Communist laws of the late 1940s where NOT struck ed down by the US Supreme Court till the late 1950s, long after the Red Scarce had run its course for the same reason, the courts refused to strike them down in their face when they were first pasted, and then only strike such laws down in the late 1950s when challenged in a case with an person charged under those laws (And when it was safe to do so, the US Supreme Court will avoid controversial cases if it can, and most cases it can, thus Segregation was ruled unconstitutional in 1954, but then no real effort was made to integrate the schools till the 1970s (And it took Congressional action that tied in Federal Support for Education to desegregation). The 1972 case striking down abortion laws (and reestablishing the English Common Laws restrictions on Abortions, which in turn were based on pre-1869 Catholic Doctrine as to when a woman could have an abortion, which was based on St Augustine observations in the 400s which in turn where based on Aristotle's position from the time of Alexander the Great, i.e. c300 BC) even through the "Right to Privacy" claim that Roe Vs Wade depended on was a 1966 US Supreme Court Decision (And again driven by the Fact a Legislative body, in the case of Abortion, the New York State Assembly, had re written its abortion law closer to the old English Common Law Rule, then the Medically driven abortion laws of the mid 1800s).

Now, some of the Roe Vs Wade decision was driven by politics, but "Roe" (This is a Pseudonym) had standing for she wanted an abortion and could NOT get one. She retained standing even after she had the abortion done in another state (Normally that would have ended her standing, for by the time her case was in front of the US Supreme Court, she no longer "needed" an abortion, but the Court decided she had standing for she may want to have an abortion in the future). The Court decided it was time to rule on the issue of Abortion and did so, even through they could have avoided the issue by stating the the Plaintiff no longer had standing for she either had had the abortion or she had given birth by the time the case reached the US Supreme Court.

Yes, the court can avoid many cases by citing "standing" you can NOT just claim you object to a law, you MUST show it does some HARM to you. The Courts have been liberal with who has Standing when the Court wants to make a decision (See my comments above as to Roe Vs Wade) but can be conservative when it comes to issue the Court does NOT want to rule on (Gun Control and Zoning laws and the two biggest areas of the law the Court goes out of its way to avoid, a standing is one of many tools that can be used to avoid such cases).

On the other hand, if the court wants to hear the case, it will rule someone has standing IF IT IS CLEAR THAT YOU WILL HAVE OPPOSING ARGUMENTS AT TRIAL. The Court does NOT want to hear both sides saying X is the law, the court wants one side to say X is the law, and the other side X is not the law (or at least Y is the law). In a nutshell that is the Standing argument, it must be a case in "Controversy". The next issue is does the court really wants to hear the case (As my comment involving Gun Control present). Finally the courts gets to decide the case and in this case given the nature of "Terrorism" i.e. "Terrorism" can mean anything, does the court really want to rule on this issue TODAY? (See my comments about the Anti-Communist laws and the Courts refusal to take such cases till the Red Scare was over).

Thus Standing is an issue in this case, but it can be used by the Court to refuse to rule as to this law when it appears the law is popular., We will have to see if the Court has the Stomach to do what it should do and strike this law down.

[rhett o rick]

22. Remember that the courts IMO fail miserably in both the Hamdi and Padilla cases.

Thanks for the explanation.

[24601]

23. As I recall Roe in Constitutional Law, the reasoning wasn't that she might want an abortion in the

future - but in taking the case, the court recognized that the time to accept, hear and decide a case would always be longer than a pregnancy - and they granted cert despite the actual case would be moot in order to establish the case law.

[msanthrope]

26. Don't confuse the issue with actual law. Or facts.

The best legal explanations on DU are always posted by non-lawyers....

[happyslug]

27. But the point I was trying to make, was the Court COULD have avoided the case

The point I was trying to make with Roe was that the Court COULD have declined to hear the case for Roe no longer had standing for she had had the abortion OR had given birth by the time the case reached the Supreme Court.

I was using ROE was an HOW standing can be used by the Judges to avoid cases the Court wants to avoid. In the case of ROE, the Court decided the hear the case and thus ruled that Roe had standing.

The Supreme Court has a long history of avoiding issues it dislikes. One of the earliest example of this was during the Impeachment of Andrew Johnson in 1868, the court REFUSED to rule on the act Johnson was impeached for violating, the Tenure in Office Act. Some 20 years later, when the Act was almost long forgotten AND the President and Congress were no longer at each other throats, the Court did rule on the Tenure in Office Act, and ruled it unconstitutional. Thus by one Vote of a Senator we could have seen the removal of a President for violating an act, that the Supreme Court later found unconstitutional for it restricted HOW the President could run the executive branch of Government (i.e. the President would have been removed for doing something the Constitution permitted him and him alone to do).

The court has several other legal rules it can use to avoid making a decision that is opposed by Congress and the President. The Political Issue case is one of the best known (for it clearly states the issue is Political and thus to be decided by Congress, thus it is a way to move a controversial subject from the courts to Congress).

The Standing issue, is not the clear putting of an issue to Congress as in the Political issue case, but it is a way to avoid a case the Court has no desire to decide at the present time. The standing issue can also be waived (given you still have two sides to an issue) if the Court really wants to hear the case. Thus Standing can be a real issue in a case, or an excuse to avoid an issue (and sometimes both).

[msanthrope]

24. Wrong. He does not have standing. Read Lujan v. Defenders and get back to us.

And please--the standing issue presented in Roe has absolutely nothing to do with this case.


You wrote:

"On the other hand, if the court wants to hear the case, it will rule someone has standing IF IT IS CLEAR THAT YOU WILL HAVE OPPOSING ARGUMENTS AT TRIAL."

No. Just no. Not even close. Learning Civ Pro is best done in a law school--not on the Internets.

[happyslug]

28. I am talking the POLITICS of the Court

The US Supreme Court is a POLITICAL entity, it will bend the issue of Standing when it wants to. That is the point I was making. This is a CONTROVERSIAL Subject, popular with Congress (given its overwhelming support from Congress). The Court has used standing to avoid AND to hear cases it wanted to in the past, ignoring precedent when needed.

As to Lujan v. Defenders of Wildlife, that case involved environmentalists that opposed regulations issued by the Federal Government. To quote from the opinion:

Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object. Pp. 559-562.

That is NOT the case as to this reporter, he has reported on this subject in the past and plans to do so in the Future, this he passes the test set by Lujan vs the Defenders of Wildlife and being able to state A DIRECT HARM to himself, i.e. arrest for violating the statute, that gives him standing IF THE COURT WANTS TO DECIDE THIS CASE, my rest of my thread was basically a statement of when the Court will avoid such a case if and when the Court decides it is Politically desirable to do so.

In Lujan vs Defenders of Wildlife the Court ruled that you had to have be subject to a DIRECT HARM to have standing in the Federal Court, in Lujan vs Defenders of Wildlife did the court REQUIRE you to violate a Statute before you can challenge it IF YOU CAN SHOW HARM TO YOURSELF based on HOW THE STATUTE IS WRITTEN. The direct attack was left open TO PEOPLE WHO COULD SUFFER DIRECT HARM, but third parties can NOT have standing unless they can point so some DIRECT or INDIRECT harm to themselves based on the wording of the Statute. Mere POTENTIAL harm at some future date is not enough to give someone standing, but the court has NEVER ruled one MUST first be CHARGED with a Crime to challenge the constitutionality of a Criminal Statute if it can be shown the mere existence of the Statute CAN impose unconstitutional limits to one's actions (I do NOT have to be charged with violating a law saying I can NOT walk down a street, I have Standing to Challenge that law do to the mere fact I am SUBJECT to arrest if I walked down that Street).

The same with this reporter, he has reported on this subject in the past and states he will do so in the future. Thus this law FORBIDS him to do something and that is a DIRECT HARM.

In 2004 the court ruled in ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al that the Atheist Father did NOT have standing to the Pledge of Allegiance at his child's school. The court said he had NO STANDING for he did NOT have primary physical custody of the Child. The court said the MOTHER would have had standing, for she had primary physical custody, but the father did not have standing. The concurring opinions, lead by Requenist, Thomas and O'Connor all agreed Father had Standing and concurred with the Majority for it struck down the decision of the ninth Circuit as to the Pledge of Allegiance. They dissented from the Majority on the issue of Standing saying the Father had Standing even through he did NOT have primary Physical Custody and while he had Joint legal Custody, in any dispute as to legal Custody issue, Mother decision was to control (the Majority ruled that the Custody Order gave MOTHER final control over any litigation involving the child and Mother wanted the case DISMISSED, the Father had NO Standing to file the action in the first place).

Standing requires a direct harm, the Majority in Elk Gover Unified School District vs Newton, said Father was at best a third party and as such could suffer NO direct harm and thus had no standing. That follows Lujan vs Defenders of Wildlife, but all the Justices said he would have had Standing of he had Primary Physical Custody for then he would have suffered an indirect harm via his child having to say the Pledge of Allegiance in School.

My point is Standing just requires that a person can SUFFER A HARM, not a possible harm a real harm. Restrictions as to what one can do is a DIRECT HARM and thus this reporter has Standing.

Here is the LUJAN v. NAT'L WILDLIFE FED'N, 497 U.S. 871 (1990)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=497&invol=871

This issue was ruled for a second time in 1992 involving the same parties see
LUJAN v. DEFENDERS OF WILDLIFE, 504 U.S. 555 (1992)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=504&invol=555

For ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al.see:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=542&invol=1

[msanthrope]

29. So, you don't have the law, but are arguing politics?

I find your conclusions regarding standing unpersuasive and uninformed.

I note you've moved on from the ludicrous Roe argument, and are now citing dicta from Lujan. Neither you, nor Mr. Hedges in his complaint can cite an injury that is anything other than conjectural. Fearing that 'x' action that you wish to do might break the law does not give rise to an Article III complaint.

This will be tossed. As it should.

[Uncle Joe]

30. If politics or conjecture don't come into play why did the SC give Bush standing

Last edited Fri Jan 20, 2012, 02:09 PM - Edit history (2)

in Bush vs Gore?

[msanthrope]

31. Because Mr. Bush claimed an actual, direct harm that could be redressed.

Regardless of what you think of the case (and I took the dissent's position) Mr. Bush had standing.

[Uncle Joe]

32. How could Bush be harmed in a disputed, two man, state run election, and Gore not be harmed by

the SC stopping the counting of votes?

Or for that matter wouldn't the people of Florida and the U.S. be harmed by them stopping the counting of votes?

[msanthrope]

33. None of the other issues you bring up have anything to do with

Mr. Bush's standing. I won't re-litigate Bush v. Gore, and certainly will not defend the majority decision. I agreed with the dissent.

[Uncle Joe]

34. I understand you agree with the dissent, my only point is that De Facto by

agreeing to insert itself into a disputed election, which is supposed to be run by the state according to the Constitution, the SC blatantly used politics as its' motivation.

They couldn't possibly give Bush standing by stating he would be harmed should the counting of all the votes proceed without consideration that Gore would be harmed should they stop the count.

The SC had no business in this case, there were already mechanisms in place to determine the outcome whether it ultimately be the counting of the votes, the Florida Legislature and/or the U.S. Congress.

Knowing they were in the wrong, they even decided that inspite of its' heavy ramifications this decision couldn't set precedent.

[msanthrope]

35. So you want SCOTUS to find Hedges has standing for political reasons

rather than have them follow the law?

No.

[Uncle Joe]

36. It isn't a question of what I want, it's a question of what is.

Last edited Sun Jan 22, 2012, 02:28 AM - Edit history (1)

The point I'm trying to make in addressing this segment of the thread going back to post# 19 by rhett o rick and all the discussion which has occurred in between is that history has shown politics most certainly playing a major role in SC deliberations.

"19. Doesnt someone have to be harmed by the bill to get into the court system?"

Politics affects the law and the law affects politics.

You might believe Obama has the most noble of intentions, however do you believe a future President Cheney clone won't use the broad, ambiguous and overreaching segments of this ill thought out policy and abuse it?

Common sense and logic should tell you he or she will and unpopular journalists will be among the most vulnerable targets, it doesn't take a great leap of faith to see harm.

To follow a policy of "if the President does it this must be right or legal" is a surefire path to disaster.

[EVDebs]

2. War Powers Resolution

WPA of '73 requires "clear" "situations" and "circumstances" prior to committing troops to action. These domestic actions are similar to the proposed law in 2007 by Jane Harman

Factsheet: The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007
http://ccrjustice.org/learn-more/faqs/factsheet:-violent-radicalization-and-homegrown-terrorism-prevention-act-2007

"Could Rosa Parks, who was arrested in Montgomery, Alabama in 1955 for violating segregation laws by sitting in the white-only section of a bus and refusing to move, be considered a “homegrown terrorist” by the U.S. government today? Under the terms defined in the Violent Radicalization and Homegrown Terrorism Prevention Act she just might be."

And with NDAA she could be again.

[lovuian]

3. It is ilegal and they know it

A constitutional lawyer should know that

[rhett o rick]

20. The constitutionality of a law is determined by the court system.

They could easily find it "constitutional".

[tblue]

4. Glad to hear it.

This bill is such a travesty and a real bad move for our POTUS. He thinks we don't know better and/or can't do anything about it.

[JJW]

6. No need to worry, O is just playing 12 dimensional chess

you'll see!

[rhett o rick]

7. This is badly timed. If the current right-wing SCOTUS finds it Constitutional, it will be very hard

to fix.

[lovuian]

8. SCOTUS knows its ilegal too and if they vote

then they are part of the dictatorship

[rhett o rick]

10. The SCOTUS is acting well beyond their Constitutional duties. They are out of control.

In 2000 when then made the unprecedented decision to choose the president, they because an integral part of the dictatorship.

[Wind Dancer]

25. +1000

[Mosaic]

9. What do you do when the supreme court becomes illegitimate?

We are living in a lawless and immoral land now.

[rhett o rick]

11. Guillotines. nm

[Ter]

17. This issue goes beyond right and left

The far-right hates it as much as the far-left. Too bad regular Democrats and Republicans all voted for it. It passed in the Senate with 86 or 87 votes. The "No" votes consisted of Mike Lee, Rand Paul, Jim DeMint, Bernie Sanders, Al Franken, etc. How's that for an unlikely mix?

[rhett o rick]

18. So do you think the SCOTUS would rule against it? nm

[JJW]

12. Reality check

You do nothing. SCOTUS stole the election in 2000. The masses did nothing.

[Iwillnevergiveup]

13. How great would it be

if David Gregory had Chris Hedges and his attorney on "Meet the Press" the full hour on Sunday? And all the rest of the Sunday talk shows for that matter. This is so hugely important, but the vast majority of folks don't really understand the ramifications. Nor do they tune in Amy Goodman, a bona fide journalist.

One of my 8th grade students told me, "I'm 1/3 white, 1/3 Mexican and 1/3 black, so now I'm afraid to leave the house." Not sure how he pulled these percentages, but the point being he feels very unsafe in this country because of his perceived minority status.

K&R

[Norrin Radd]

14. kr

[MNBrewer]

15. So that's why the recent character assassination against Hedges has been occuring

He dared to cross the Obama machine on DU.

[christx30]

16. If someone commits a crime

arrest them, try them, convict them and sentence them. But there is nothing about terrorism that warrants indefinite detention without trial. Especially if that person is an American citizen. But everything that someone could do in "terrorism" is already a crime. Planting bombs, making threats, murder, ect is already illegal. Which begs the question: if all of that is already illegal, at what point does doing that stuff rise to the standards of this law and warrant being caged for the rest of their lives with no trial.
Further, if someone is being held without a court giving it's blessing, isn't that essentially kidnapping by branch of the government? I know I'm not the smartest person on the planet, but hear me out:
The Legislature branch votes and says murder is illegal.
The Executive branch (through the police) arrest someone for it.
The Judicial branch tries the person and sentences them.
All three branches in his above example have signed off on what it takes to take away someone's freedom. Sure the murderer is an ass, but all of his rights were protected to the last second, because that's the type of people we are.
Under this new law:
The legislature says that belonging to certain organizations (Al Quida) is illegal.
The Executive (in this case, federal agents) arrest you for it.
the Judicial branch is not involved. May or may not even hear about your case. You are shipped off to Gitmo or a supermax somewhere and you eventually die there without having your day in court.
Scary times indeed. Good luck Mr. Hedges.