Bradley Manning Support Network member David House was returning to the country from a vacation last year when he was detained by agents from the Department of Homeland Security. They confiscated his laptop, camera and USB drive (all of which they kept for seven weeks), and questioned House about his political beliefs before sending him on his way.
A judge recently ruled that House has grounds to sue the government for violating his Fourth Amendment rights against illegal search and seizure, a ruling that was hailed by the American Civil Liberties Union, which is representing House, as affirmation that “that the constitution is still alive at the U.S. border.”
According to House in this 2011 interview, the activist was interrogated by border patrol agents every time he re-entered the country since being identified as a friend and supporter of Manning, who faces a court martial for allegedly leaking classified information to WikiLeaks.
But what if federal agents hadn’t stopped with the interrogations and the seizure of this young activist’s property? What if they simply grabbed House out of the customs line at Chicago’s O’Hare International Airport and took him into custody — military custody. Likely we’d not hear from House for a rather long time. Who knows when he would have a chance to sue the government then, if at all.
Put your tin foil hat on — or not. While some have said that alarms raised over the recently signed measures regarding military detentions in the National Defense Authorization (NDAA) Act may be premature, a court hearing his week over the constraints the new provisions may have on activists and journalists covering stories involving foreign sources provides a chilling indication that people like House might indeed be fair game for indefinite military detention under the statute’s “material support” clause.
Why? Because House is a co-founder of the Bradley Manning Support Network, which among other things, helps to raise money for Manning’s legal defense fund. House has also been subpoenaed in the federal government’s investigation into WikiLeaks. Manning is accused of stealing and transferring classified government documents to WikiLeaks and is facing a court martial on military charges of espionage and aiding the enemy (al-Qaeda). Experts say the military wants to make an example of Manning and is seeking to lock him up for life.
In testimony March 29 — the first legal airing of the NDAA clauses in question — government lawyers refused to define what the statute means when it says that the military has the right to detain anyone without trial, including U.S. citizens, accused of “substantially supporting” such groups (al-Qaeda/Taliban) or “associated forces” within or beyond the nation’s borders.
In other words, no one knows right now whether being a friend of Bradley Manning could have much more horrifying consequences than being questioned by the feds or having one’s laptop confiscated.
Last week, Pulitzer Prize-winning foreign correspondent Christopher Hedges, who is a lead plaintiff in the lawsuit challenging the constitutionality of the new detention provisions, said there is no guarantee that his work — which often involves talking to leaders of insurgent groups or radical military organizations considered “terrorists” by the U.S. government — won’t eventually land him in a military brig.
“What’s an associated force?” he declared in a April 2 interview with Russia Today. “It could be any organization on [America’s terrorism] list, or lots of other organizations that aren’t on the list that are considered associated forces.
“This is the problem. I spent 20 years as a foreign correspondent, and when we went through that list, there were 17 groups, including al-Qaeda, that I have had, as a reporter, direct contact with. There is no provision in there to protect journalists at all, or anyone. Anybody can be swept up under this. You don’t want to hand these kinds of powers to the state, because history has shown that, eventually, they will use it.”
Hedges is joined by several other plaintiffs now being dubbed the “Freedom 7,” including famed whistleblower Daniel Ellsberg; author Noam Chomsky; Icelandic MP Birgitta Jonsdottir (who did not attend the hearing for fear of detention); Tangerine Bolen, founder of RevolutionTruth.org; Kai Wargalla, deputy director of Revolution Truth and founder of Occupy London; and Alexa O’Brien, journalist and founder of the U.S. Day of Rage. The last two contend they’ve already been targeted by counter-terror and law enforcement authorities for their association with the Occupy movement.
The suit, filed in January, names President Barack Obama, Secretary of Defense Leon Panetta, U.S. Attorney General Eric Holder, Speaker of the House John Boehner, and Arizona Senator John McCain as defendants.
“As the hearing began, U.S. District Judge Katherine Forrest said she was ‘extremely skeptical’ that the opponents could challenge the law on its face, but she put the government lawyers on the defensive as the proceedings closed late in the day,” wrote Adam Klasfeld of CourthouseNews.com, one of a handful of reporters who turned out for the hearing, which was to determine whether the suit has sufficient grounds to go forward. It took place in the U.S. District Court, Southern District of New York in Manhattan.
Author and activist Naomi Wolf says she is also seeking to join as a plaintiff, and has already written about the chilling effect of the new NDAA provisions on her own work, forcing her to cancel meetings with Julian Assange, members of Occupy Wall Street, and with a support group for former Guantanamo Bay prisoners who were released without charge but nonetheless sustain the taint, however unfairly, of terrorism.
She was also on hand for the hearing and took notes:
The headlines? Lawyers for the U.S. government, given several chances by Judge Forrest to do so, would not rule out detaining Chris Hedges under the NDAA for reporting; they would not rule out defining a political book as providing “material support” for terrorists. The Government, given multiple chances by Judge Forrest to do so, also would not or could not give any direct definition of who is included in the phrase “associated forces,” or what any example of what it means to “provide material support.” And the government did not dispute the validity of a DHS memo that tried to target Occupy Wall Street as cyberterrorists.
In other words, this isn’t paranoia. If these government lawyers are representing the administration accurately, then the new laws are clearly open-ended and we — reporters and activists especially — should be on high alert. From Wolf’s notes (note: not a complete transcript):
Judge Forrest was pushing (Obama’s lawyer) 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, “(NDAA Section) 1021 won’t touch Ms O’Brien …unless, if you did, we would be done — if you can’t do that, you leave us in a tough spot here.”
Klasfeld from Courthouse News offered a similar account of Forrest’s exchange with the government’s attorneys:
Government lawyers did not offer any witnesses in support of the law, which they said merely “affirmed” the decade-old Authorization to Use Military Force.
But Judge Forrest said the language had changed, and she must assume a purpose behind that.
“Congress writes legislation for a reason, right?” she asked.
Government lawyer Benjamin Torrance refused to answer a barrage of questions from Forrest about whether any of the witnesses could be detained for the actions they spoke about on the stand.
“I can’t make specific representations regarding specific plaintiffs,” Torrance said.
He said he had not been authorized to say whether Jonsdottir would have been detained, had she flown in from Iceland.
Torrance said he could only say, generally, that association with WikiLeaks alone would not make her subject to the NDAA.
The judge said Torrance’s answers did not help his case that common citizens do not need to fear the new law.
“If people weren’t worried before those series of questions, they could worry about it now,” she said.
Wow. This only gives credence to what journalists like Hedges have been warning about. Hedges also testified that he believes his phones have been tapped by the government, and that he’s been placed on government “watch lists” because of his reporting.
“Journalists have every reason to be concerned that the NDAA will be applied to them,” Jacob Hornberger of the Future of Freedom Foundation told Antiwar.com.
“This is especially true for those who do pieces for al Jazeera or other Middle East media that don’t tow the pro-U.S. line. We’ve seen how the U.S. government has chilled donations to Middle East organizations with its liberal interpretation of the ‘material support to terrorists’ statute. There’s no reason to think that it wouldn’t do the same with journalists who take a critical view of U.S. foreign policy.”
Or with domestic activist organizations that may have little to do with foreign movements, but might nonetheless pose a “security risk,” according to the U.S. government. Take the Occupy movement, for example.
Sifting through a cache of leaked emails provided to Rolling Stone by WikiLeaks in February, writer Michael Hastings found a particularly interesting memo in which the Department of Homeland Security (DHS) had assessed the Occupy movement as a potential security threat.
While the peaceful nature of the protests has served so far to mitigate their impact, larger numbers and support from groups such as Anonymous substantially increase the risk for potential incidents and enhance the potential security risk to critical infrastructure (CI). The continued expansion of these protests also places an increasingly heavy burden on law enforcement and movement organizers to control protesters. As the primary target of the demonstrations, financial services stands the sector most impacted by the OWS protests. Due to the location of the protests in major metropolitan areas, heightened and continuous situational awareness for security personnel across all CI sectors is encouraged.
But DHS was watching nonetheless. According to “hundreds of pages of internal documents” provided to Truthout.org in response to a Freedom of Information Act (FOIA) request last month, DHS “closely monitored the Occupy Wall Street movement, providing agency officials with threat assessments, regular updates about protests taking place throughout the country, responding to internal requests for intelligence on the group and mining Twitter and other social media for information about Occupy’s activities.”
The first official linkage between Occupy and “terrorism,” came in the form of a London police memo dated Nov. 18. Meanwhile, private security companies with ties to law enforcement have looked for and have conjured ties between the Occupy movement and Islamic fundamentalists and even al-Qaeda in the U.S. O’Brien testified that these stories prompted federal agents to make repeated inquiries about her at her place of business, and led to her eventual resignation.
And it’s not just reporters and activists: former government officials and pols like James Woolsey and Howard Dean need to get wise to how their own lobbying and advocacy for certain insurgent groups could be impacted by these expanded detention powers. They might consider how their ties to the MEK, which despite its massive insidious lobbying effort is still on the State Department’s list of terrorist organizations, might someday land them in much hotter water than the public scrutiny and official “inquiry” facing them right now. How does a cold, dark cell and representation by a legal team working with one hand behind its back sound?
The point is, it all depends on who is in the White House and how he, or she, might someday interpret and use the NDAA statutes to their advantage. No one should feel they are immune in the changing tides of politics and power in Washington.
We can see the government already intimidating those who appear to be threatening the predominant war narrative today. Beyond David House, documentary filmmaker Laura Poitras has not only been detained by border police reentering the country — her gear also seized, her files and emails presumably copied — but she’s been threatened with handcuffs and jail if she does not comply with their demands and questions, which always revolve around her political beliefs and affiliations, according recent documents obtained by the ACLU.
“That’s the climate of fear created by the U.S. government for an incredibly accomplished journalist and filmmaker who has never been accused, let alone convicted, of any wrongdoing whatsoever,” wrote constitutional lawyer and blogger Glenn Greenwald, who published a poignant piece about Poitras on April 8.
“Indeed, documents obtained from a FOIA request show that DHS has repeatedly concluded that nothing incriminating was found from its border searches and interrogations of Poitras. Nonetheless, these abuses not only continue, but escalate, after six years of constant harassment.”
At this point, is there any reason to believe, given the government’s own inability to define what “associated forces,” or “material support” is in relation to the new NDAA laws, that Poitras is immune to more drastic measures, like military detention, the next time she comes back from an overseas trip?
Are we so willing to wait until she is to raise a clatter? At least Hedges and his fellow plaintiffs in the case — the Freedom 7 — aren’t willing to sit on the sidelines.
Now I ask the rest of you mainstream journos with the kind of ten thousand watt personalities and celebrity status that could swing public sentiment and interest in this direction — where are you?
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