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I am in New York today to attend the oral arguments on the National Defense Authorization Act's (NDAA) indefinite detention provision, which is currently before the Second Circuit Court of Appeals.  

I have not only a professional interest in this case, but also a personal one, in that the indefinite detention provision could have substantially impacted both my life and the lives of many other whistleblowers.  The Government Accountability Project filed an amicus brief in the case, which detailed both my case and the case of my client, Thomas Drake, and explained the dangers that such an expansive and vague provision poses to whistleblowers.

Later, I will be at The Culture Project participating in a discussion on today's hearing.  If you're in New York, please attend!  I will be joined by several amazing co-panelists, including Tom Drake, Daniel Ellsberg, Michael Moore, and Chris Hedges. More information on the event can be found here.

Today's appeal stems from District Judge Katherine Forrest's 112-page opinion in Hedges v. Obama, which permanently enjoined the indefinite detention provision in the NDAA.  As I discussed in an earlier blog, Judge Forrest's opinion was well-reasoned and bold.  

Here are some of the key quotes from Judge Forrest's opinion:

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.
When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.
Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
Here, the stakes get no higher: indefinite military detention -- potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever.  
The plaintiffs contend that the NDAA provision allows the government to indefinitely detain U.S. citizens on the suspicion that they provided support to terrorist groups or "associated forces."  They argue that the language of the provision is so vague that suspicious activities could potentially include such mundane activities as engaging in political advocacy or reporting the news.  Not surprisingly, the government has argued that Judge Forrest's opinion threatens national security.  

The courts must not give the government free reign to trample constitutional rights simply because it invokes national security concerns.  I can only hope that the Second Circuit will not allow the government's overused argument to prevent this issue from receiving the judicial scrutiny it deserves.  

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Comment Preferences

  •  Tip Jar (21+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Wed Feb 06, 2013 at 07:04:09 AM PST

  •  The age-old "National Security" trump card, (8+ / 0-)

    invented by self-serving Republicans and recently appropriated by Third Way Democrats who actually believe that Republican-style "defense" is better, needs to be exposed so that, forevermore, the phrase engenders heightened suspicion and broad distrust. Because it so frequently has been misused and abused for hiding illegal and/or unethical government activities and the incompetent and/or nefarious individuals who perpetrate them, extinguishing the sunshine that disinfects what frequently become the halls of criminality, burying whistle-blowers and others who would shed light in the darkness where these deeds are done, promoting the most easily-manipulated brand of nationalism, serving war profiteers and many other corruptions of government authority.

    The Class, Terror and Climate Wars are indivisible and the short-term outcome will affect the planet for centuries. -WiA "When you triangulate everything, you can't even roll downhill..." - PhilJD

    by Words In Action on Wed Feb 06, 2013 at 07:21:32 AM PST

  •  War is the enemy (8+ / 0-)
    Here, the stakes get no higher: indefinite military detention -- potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever.  
    "No nation could preserve its freedom in the midst of continual warfare."

    James Madison--April 20, 1795

    Help me to be the best Wavy Gravy I can muster

    by BOHICA on Wed Feb 06, 2013 at 07:27:07 AM PST

  •  How can the US military justify... (7+ / 0-)

    ... indefinite detention of civilians?  How can the US courts justify indefinite detention of civilian prisoners who have not been charged with any crimes?

    Al Quada [Al Quaida - however it's spelled] was always a little band of civilian criminals who represented only themselves (and their own religious delusions or whatever else drives them; I suspect many are just paranoid misfits).  They never represented any government.  They were never part of any nation's military forces.  Most were/are criminals who were not welcome in their own countries of origin, so they were essentially men without any country - which is why they were hiding out in a remote and inaccessible mountain region of Afghanistan in '01.  There are fewer than 100 AQ criminals left in the world today.  (Criminal gangs who "are like AQ" are not the same organizations, but the Al Quaida name is supposed to cause a Pavlovian fear response in people at the mention of their name... apparently.)

    It was Bush, Cheney, Rumsfeld, Rice, et alia, who made the horrific criminal actions of hijacking and mass murder by a little criminal gang on 9/11 into a pseudo-military "declaration of war against the US" - and media went right along with that most essential of lies to create a paranoid frenzy.  Most young men and young women were smart enough (or lazy enough) to not enlist in the military after that day, so the PNAC goal of having their own "Pearl Harbor-like incident" to gin up the nation to sponsor an illegal war was not as successful as they wanted it to be - ergo, national guard units from each state were sent to Afghanistan or/and Iraq when Bush/Cheney deliberately ignored AUMF to detour the military to illegally and unconstitutionally invading Iraq based on lies for oil.

    Anyone paying attention to the 2000 presidential "debates" - like me! - knew that was Bush's goal was to invade Iraq to finish his daddy's war if he were elected.  I journaled about it extensively that night, as well as predicting not only war but a recession if he were elected.  The only mystery was trying to figure out why political pundits thought George the Lesser "won" the "debates" since he was clearly so pathetically stupid and I didn't see how anyone could vote for anyone with such an obvious lack of intelligence.  With 9/11, George the Lesser had his "excuse" to invade Iraq even though they clearly had no connection to 9/11, and had no WMDs.

    Still, there is no way to legally or constitutionally justify indefinite detention of civilian prisoners at Gitmo and/or wherever else the civilian prisoners might be held in the world under American "authority" (some are criminals who needed to be put on trial, some were in the wrong place at the wrong time - all should be released to their countries of origin).

    I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

    by NonnyO on Wed Feb 06, 2013 at 07:48:31 AM PST

    •  but, but, but, fear! (1+ / 0-)
      Recommended by:
      NonnyO

      you must pay more attention to the frightening elements of this!

      the enemy is exceptionally frightening, therefore the government must wield exceptional powers to hold the people's fears at bay!

      "You see what power is – holding someone else's fear in your hand and showing it to them"

        -- Amy Tan

      i'm part of the 99% - america's largest minority

      by joe shikspack on Wed Feb 06, 2013 at 10:42:50 AM PST

      [ Parent ]

      •  I'm not afraid... (1+ / 0-)
        Recommended by:
        joe shikspack

        Extremely curious about why this has continued to go on for years and years, repulsed by the unconstitutional powers claimed, and have long since lost any respect for even our own Dem politicians for not getting our people out of an untenable situation and for not giving us back the rights they took away (worse, they keep extending these illegal and unconstitutional laws!).

        I'm still wondering what our politicians are afraid of and/or who's buying their souls and votes in Congress.

        History will judge politicians for the last 15 years harshly, I hope.  They certainly deserve it.  Most deserve impeachment for lies and war crimes and/or demands for their resignation or jail time for lying to us and sending our people to needless wars based on lies for oil.

        Their repeated refrain about 'fear of ter'rism' just makes me feel contempt and disgust for them.

        I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

        by NonnyO on Wed Feb 06, 2013 at 02:50:22 PM PST

        [ Parent ]

        •  power is the one thing that no politician can... (1+ / 0-)
          Recommended by:
          NonnyO

          resist and there are none that i can think of who will voluntarily diminish their power an instant before they are forced to.

          i'm part of the 99% - america's largest minority

          by joe shikspack on Wed Feb 06, 2013 at 07:05:54 PM PST

          [ Parent ]

          •  ... Absolute power corrupts absolutely.... (2+ / 0-)
            Recommended by:
            joe shikspack, FakeNews

            They deserve every condemnation coming their way someday.  They deserve jail time for their lies and crimes, but I'm pretty sure that won't happen.

            The one thing regrettable about being old now is that there's pretty well no chance I'll live long enough to see them get what they deserve, even if it's posthumously.

            I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

            by NonnyO on Wed Feb 06, 2013 at 08:28:09 PM PST

            [ Parent ]

        •  If I'm afraid of anyone, it's our own (0+ / 0-)

          DOJ and security apparatus--and their friends in the private sector.

          If this is what it takes to keep me safe from terrorists, I'll take my damned chances, thank you.

          if necessary for years; if necessary, alone

          by SouthernLiberalinMD on Wed Feb 06, 2013 at 09:45:14 PM PST

          [ Parent ]

          •  Your unreasonable fear... (0+ / 0-)

            ... is what fear-mongers count on to take away your rights - as well as the constitutional rights of those who were never afraid in the first place.

            I'm not willing to give up my constitutional rights because you are afraid of your own shadow.

            "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
            — Benjamin Franklin
            Your safety can never be guaranteed.  Ever.  In fact, your chances of dying from an accident at home, or within 25 miles of your home, are greater than your chances of dying at the hands of a ter'rist.  The statistical probability is that someday you will die at home in your own bed or in a bed at your nearest hospital or hospice.

            Why should those of us who know our safety can never be absolutely guaranteed be forced to give up our constitutional rights because you, and people like you, fear your own shadow and buy into the "be afraid" fear-mongering done by the reichwingnuts?

            Why are you willing to force me, and people like me, to give up our constitutional rights to placate your unjustified fears like you're a child who needs a parent to check under your bed every night to make sure there's no monster under your bed?  That makes the rest of us who understand statistical probability victims of your fear, and puts the rest of us into the role of rescuer and parent to placate your childish fears, and we're forced into that role because you're afraid of your own imaginary fears.

            No thank you.  I'd rather have my constitutional rights back.

            I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

            by NonnyO on Thu Feb 07, 2013 at 05:24:09 AM PST

            [ Parent ]

            •  you don't at all understand (1+ / 0-)
              Recommended by:
              NonnyO

              what I said.

              I said, I am more afraid of the DOJ, the NSA and what they're doing to the Constitution (and the law) than I am of terrorists of any stripe.

              If this abuse of the law and the Constitution is what it takes to keep me safe from terrorists, I'll take my chances, thank you.

              Read some of my comment history and you'll see I am for civil liberties all the way. I've been having this damned al-Awlaki fight with the pro-Administration people ever since the goddamned thing happened.

              if necessary for years; if necessary, alone

              by SouthernLiberalinMD on Fri Feb 08, 2013 at 12:00:50 PM PST

              [ Parent ]

              •  I apologize (1+ / 0-)
                Recommended by:
                SouthernLiberalinMD
                I said, I am more afraid of the DOJ, the NSA and what they're doing to the Constitution (and the law) than I am of terrorists of any stripe.

                If this abuse of the law and the Constitution is what it takes to keep me safe from terrorists, I'll take my chances, thank you.

                You are correct.  I understood the first paragraph quoted above, but not the meaning of the second one.  I believe you mean you'll take chances with terrorists (as I mean) because in sheer mathematical proportions, there aren't that many criminals compared to the number of good people who would not harm anyone.

                I'm sorry I misunderstood you.

                We are in agreement about what's happening with our Constitution and how our elected officials are abusing power and misinterpreting or just making meanings up that were never in the Constitution - or treaties or in US law - to begin with.  I believe somewhere down the line historians will condemn America from ca 1999 forward to some point in the future that has not yet arrived where we can correct the errors of the last 15 years.  As of this immediate moment in time, I can't even see an end point of this nightmarish insanity.

                I'd like to see the US go back to being a country that obeys and reveres our Constitution and Bill of Rights and the rule of law..., but I turn 67 in a couple of weeks and time is not on my side (even if I do plan to live to age 100 in spite of health issues).

                Again, I apologize for misunderstanding you.

                I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

                by NonnyO on Fri Feb 08, 2013 at 10:13:26 PM PST

                [ Parent ]

    •  Why don't you ask Fred Korematsu? The NDAA (1+ / 0-)
      Recommended by:
      NonnyO

      indefinite detention provisions mean that the only thing preventing "FEMA camps" (ok, DHS camps) from happening are the logistical issues of rounding up tens of millions of people and putting them into detention camps.  After all, even if you are willing to let the detainees die of dehydration, starvation, and exposure (thus turning the camps into death camps due to the detainees not being allowed any food or water) you still have to feed and house the guards.  If they aren't going to be death camps then the logistical issues are even worse to deal with as they would then have to deal with food, water, waste disposal, medical treatment, and shelter for tens of millions of people.

      You have watched Faux News, now lose 2d10 SAN.

      by Throw The Bums Out on Wed Feb 06, 2013 at 11:29:17 AM PST

      [ Parent ]

      •  I'd love to (1+ / 0-)
        Recommended by:
        Throw The Bums Out

        No one else seems to be asking questions like I have, least of all our cowardly, craven, cretinous Congress Critters... who "should" be representing We The People (not passing laws taking away our rights) and who "should" have asked these questions a LONG time ago - like by 12/13 Sept '01 when the first shock wore off or as soon as Dumbya and Dickie and their lying criminal cohorts started pushing for illegal and unconstitutional war.

        I am not the only one who saw this sham and farce for what it was when it started happening all those years ago..., right?

        Other people were still capable of using their analytical thinking powers all those years ago, in spite of the horrors of massive criminal acts by 19 men using only box cutters..., right?

        TeeVee "news" coverage [after the first three days of disbelief and honest coverage, at least] suddenly turned bizarre and we were told to be afraid, then pow, bop, bam, kazam!  The Patriot Act was passed with little protest, other rights were stripped away, and George the Lesser got his AUMF because Congress could not make up their minds about going to war over purely criminal acts, so gave him dictatorial powers when he threw a temper tantrum.  I was never afraid.  Curious about why no one was asking the same questions I was, but not afraid.

        I live in the dingtoolies; no criminal in his right mind would blow up a bunch of trees and kill a lot of squirrels and birds and do little or no harm to humans out in the dingtoolies; it wouldn't make the national news.  There was no reason to be afraid.  I sort of understood the fear of people in NY or DC, but they could opt to leave - and didn't.

        From there..., everything started to look like a surreal Dali painting and we've not even stepped out of that world yet, but everyone I know wants our people home on US soil, not in some gawdfersaken country where more can get killed for lies for oil and corporate profits, and more lies (the people the countries we unconstitutionally and illegally invaded can train themselves like they did before we invaded; stop treating them like children).

        Gimme a microphone and order people to give me honest answers or suffer jail time... and I'll ask the questions our cowardly cretins in Congress refuse to ask.

        I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

        by NonnyO on Wed Feb 06, 2013 at 02:43:58 PM PST

        [ Parent ]

        •  Perhaps you aren't aware of the fact that Fred (1+ / 0-)
          Recommended by:
          NonnyO

          Korematsu was the one who first fought against indefinite detention in court (and lost) in 1944?  He died in 2005 but were he still alive he would have some very strong words to say about the NDAA.

          You have watched Faux News, now lose 2d10 SAN.

          by Throw The Bums Out on Wed Feb 06, 2013 at 09:04:19 PM PST

          [ Parent ]

  •  btw, I understand Warren, Schakowsky, Wyden, (5+ / 0-)

    Grayson and others spoke to hundreds on Capitol Hill at a celebration of Aarone Schwart's life. The opportunity was also taken to "advocate changes to federal anti-hacking law."

    The Class, Terror and Climate Wars are indivisible and the short-term outcome will affect the planet for centuries. -WiA "When you triangulate everything, you can't even roll downhill..." - PhilJD

    by Words In Action on Wed Feb 06, 2013 at 07:49:40 AM PST

    •  I was there. (0+ / 0-)

      I thought someone closer to Aaron (I never met him) would put up a diary on it. Also, I wasn't taking notes; didn't think of going there as "press," but more as, I don't know, a way of bearing witness and showing respect. As a fellow activist.

      It was a very good event; it was standing-room only. There were legislators there who didn't speak, which is a very good sign. Alan Grayson (who did speak) was wonderful.

      if necessary for years; if necessary, alone

      by SouthernLiberalinMD on Wed Feb 06, 2013 at 09:43:33 PM PST

      [ Parent ]

  •  Jesselyn, will that panel (6+ / 0-)

    be available via livestreaming today? I'd love to sit in on that but can't be in NYC today.  

    I see that it's being held today from 5-7 pm but I don't see anything about it being broadcast or livestreamed.

    http://www.sparrowmedia.net/...

    You know, I remember a time when C-SPAN  would broadcast things like this on C-SPAN 3. They don't seem to provide as much content that I am interested in as they used to.


    "Justice is a commodity"

    by joanneleon on Wed Feb 06, 2013 at 08:06:01 AM PST

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