Good news comes along too rarely to let it go without comment, so here’s a bit.
Last 31 December, President Barack Obama signed a piece of legislation to warm Home Secretary Orbison‘s heart — and even that of the real-life Dick Cheney. Among the provisions of the National Defense Authorization Act (NDAA) was a Section 1021, titled “Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force.” Section 1021(b)(2) defines any individual detainable under the act, whether a U.S. citizen or not, as:
A person who was 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
It’s that “substantial” or “direct support” that’s the tricky part. As written, it could include any individual criticism — in thought, word, or deed — of the policies of the government in conducting counterterrrorism procedures, whether that individual was a member of the offending groups or not.
Paranoia? Au contraire, said U.S. District Judge Katherine Forrest in a 68-page opinion issued last Wednesday. Ruling in the case of Hedges et al. v. Obama, the Hon. Katherine Forrest issued a preliminary injunction that Section 1021 was unconstitutional. As she wrote, “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.” There’s more in this Washington Post story.
President Obama signed this into law on 31 December and slipped it under the door of the new year, of course, when journalists along with everyone else were tanking up for the annual New Year’s Eve Running of the Drunken Idiots, and consequently it received little notice. Quite the opposite occurred when Obama expressed his support for the recognition of same-sex marriage a few weeks ago; you heard about nothing else for days, and my Facebook feed exploded with a roar of Obama-worship truly monumental to behold. Never mind that, as a states-rights issue, there’s very little Obama can actually do about it; never mind, too, that he came out in support of a cause which, according to a recent Gallup poll, the majority of Americans now support.
In American politics, especially in an election year, this is known as courage.
Of course, “I support same-sex marriage” might well mean the same thing as “Why not?” or “I don’t particularly care.” I admit there’s an important difference between “I approve” and “I don’t disapprove.” But this is about as benign as democracy gets, though David Cameron, the Conservative party Prime Minister of the UK, is probably sorry that his own nation doesn’t have the same Constitutional states-rights provision.
We should be thankful that there are still some fairly courageous people about. Among them is Chris Hedges, whose name appears first on the case citation concerning the NDAA. As he writes in this essay for Truthdig on 18 May, he and his fellow plaintiffs brought suit against the Obama administration with little real hope of success — “None of us thought we would win,” he says. “We had none of the resources of the government. [Plaintiffs' attorneys] worked for weeks on the case without compensation. All of us paid for our own expenses. And few people, including constitutional lawyers … , thought we had a chance. But we pushed forward. We pushed forward because all effort to impede the corporate state, however quixotic, is essential. Even if we ultimately fail we will be able to say we tried.”
Let’s be clear: As President, Barack Obama can’t do anything about same-sex marriage, but as Commander-in-Chief he can do something about national security — and he signed the NDAA, Section 1021 included. Obama signed into law the mechanics which could conceivably be used to institute a military-led police state here in the U.S., and he did it (speaking of courage) when nobody was around to see it. One may believe that Obama did so without any intention of ever putting those mechanics into motion. But Obama will be gone from the White House, either this January or four years from now, and the act he signed into law might well have fallen into the hands of a more conservative Republican government. Which, yes, could conceivably be worse.
The preliminary injunction issued in Hedges et al. v. Obama is not the final word on Section 1021, as Hedges points out. “The government has 60 days to appeal. It can also … accept the injunction that nullifies the law. If the government appeals, the case will go to a federal appellate court. The ruling, even if an appellate court upholds it, could be vanquished in the Supreme Court, especially given the composition of that court.” So, for Section 1021, this is only one step on a much longer road.
I don’t want to indulge in a bout of Hedges-worship either. He is frequently humorless, a fatal flaw in anyone who doesn’t himself want to be regarded as a messiah, and if there’s anything more politically ineffectual and quixotic than the Occupy movement, which he steadfastly supports with a baffling blindness to its very evident weaknesses, I can’t think of it. But credit where it’s due — good news, as I said.
In the end, Hedges et al. may fail in their quest to have this offending portion of the NDAA permanently struck down. If so, kudos to all those same-sex married couples for finally gaining the blessing of the Chief Executive. But they’d better shut up about any quibbles they have with the War on Terror if they don’t want to be locked away, without trial, for a long long time. Thanks to Hedges, they don’t have to worry about that — for now.