“The U.S. Supreme Court Decision … Means the Nation Has Entered a Post-Constitutional Era”

George Washington's picture

http://www.theispot.com/images/source/FredaLibertyUpended1.jpgPainting by Anthony Freda: www.AnthonyFreda.com

“We Are No Longer a Nation Ruled By Laws”

Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.

The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.

The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.

The trial judge ruled that the indefinite detention bill was unconstitutional, holding:

This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.

But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:

We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.

The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does apply to American citizens, and that top legal scholars agree.

Last week, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.

The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.

However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.

The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:

The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!

And he won’t get to say:

You’re confusing me with another John Smith, and I can prove it!

After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.

So – if you’re thrown into a hole somewhere – no one will even hear your story.

Chris Hedges noted in November:

If [the indefinite detention law] stands it will mean, as [the trial judge] pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.

Constitutional attorney John W. Whitehead agrees:

No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.

As does constitutional attorney William Olson:

The personal freedoms of Americans are now in tatters following the refusal of the U.S. Supreme Court to hear an appeal to knock down the National Defense Authorization Act, constitutional and election law attorney William Olson says.


“This is a rather remarkable shredding of the Bill of Rights,”…. he explained that the language of the act is so “loose,” that anybody can be picked up for any reason.


“The president of the United States … [has] this power to detain indefinitely without charges, without trial, without an arrest warrant, without a grand jury, just to be able to hold someone who they think might be a threat of some sort,” Olson said.




“How are you going to challenge it when the black SUV rolls away from your house and no one even knows where you’ve been taken?”

If you think they’re crying wolf, just remember that the CIA director relabeled “dissidents” as “terrorists” in 1972 so that he could continue spying on them … and nothing has changed.

Daniel Ellsberg notes that Obama’s claimed power to indefinitely detain people without charges or access to a lawyer or the courts is a power that even King George – the guy we fought the Revolutionary War against – didn’t claim. And former judge and adjunct professor of constitutional law Andrew Napolitano points out that Obama’s claim that he can indefinitely detain prisoners even after they are acquitted of their crimes is a power that even Hitler and Stalin didn’t claim.

Access to justice is already being severely curtailed in America. Even when the prisoner is afforded a trial, it is becoming more and more common for the government to prosecute cases based upon “secret evidence” that they don’t show to the defendant, his lawyer … or sometimes even the judge hearing the case. The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even to assassinate people. And see this and this. Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs. Indeed, even the laws themselves are now starting to be kept secret.

But prisoners under the indefinite detention bill have it much worse: they don’t get any trial or opportunity to talk to a judge, any access to a lawyer … or perhaps any information about what they’re even accused of doing or why they were nabbed in the first place.

Chris Hedges notes today:

The U.S. Supreme Court decision … means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant [Washington's Blog believes in non-violence] mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty.


“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”




The law went back on the books [after the court of appeal reversed the trial judge's decision]. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen….  Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.




In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians.




The goals of corporate capitalism are increasingly indistinguishable from the goals of the state. The political and economic systems are subservient to corporate profit. Debate between conventional liberals and conservatives has been replaced by empty political theater and spectacle. Corporations, no matter which politicians are in office, loot the Treasury, escape taxation, push down wages, break unions, dismantle civil society, gut regulation and legal oversight, control information, prosecute endless war and dismantle public institutions and programs that include schools, welfare and Social Security. And elected officials, enriched through our form of legalized corporate bribery, have no intention of halting the process.


The government, by ignoring the rights and needs of ordinary citizens, is jeopardizing its legitimacy. This is dangerous. When a citizenry no longer feels that it can find justice within the organs of power, when it feels that the organs of power are the enemies of freedom and economic advancement, it makes war on those organs. Those of us who are condemned as radicals, idealists and dreamers call for basic reforms that, if enacted, will make peaceful reform possible. But corporate capitalists, now unchecked by state power and dismissive of the popular will, do not see the fires they are igniting. The Supreme Court ruling on our challenge is one more signpost on the road to dystopia.




A ruling elite that accrues for itself this kind of total power, history has shown, eventually uses it.

And Tangerine Bolen writes:

The Supreme Court has made it abundantly clear, first via Citizens United, then most recently via McCutcheon v. FTC, that corporations are “persons” whose “free speech” must be protected at all costs – including the cost of democracy – while our rights – the rights of living, breathing people, the fundamental right of due process and our fundamental rights of free speech and association – those no longer matter. They are to be trampled.


Under the war on terror, the United States government has trampled upon the fundamental human rights of people around the world since 9/11. The Bush administration manufactured a false war based on carefully crafted lies, false evidence and sickening manipulation. In the wake of that war, our courts prefer to continue to defer to a disingenuous national security narrative that has arisen out of the lies, paranoia, and incredible lawbreaking of our own government, including kidnapping, torturing, indefinitely imprisoning, and assassinating people with impunity – all of this against both reason and international law.


We are no longer a nation ruled by laws. [She's right.] We are nation ruled by men who have so steeped themselves in a false narrative that at the same time they are exponentially increasing the ranks of terrorists, they are destroying the rule of law itself. [Indeed, we’ve gone from a nation of laws to a nation of powerful men making one-sided laws to protect their own interestsin secret. Government folks are using laws to crush dissent. It’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.] It is madness upon madness – the classic tale of becoming the evil you purport to fight while believing you remain righteous.


We have tried to stand up to this madness: we are outnumbered, outspent, and outgunned – a David intrepidly fighting a Goliath that spans the planet and has the power to shape our “reality” – thus shaping what the courts even see. We have sacrificed greatly to do this – and yet we would do it all again.

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blindman's picture

all ridiculous, absurdities upon bull shit.
think. the nation exist upon the constitution and
nothing else. there is no existence of the "nation"
without the constitution and the people supporting it.
"foreign" federal reserve money is no substitute, even
if the holders of the debt money are willing buyers
of the public and private assets. omg, the grand scam,

TooBearish's picture

bravo for all these comments and article - yes the War of Northern Agression was indeed a fight over states rights and the agraian South had a competiitve advantage over the high cost North because of slave labor - but remember it was LEGAL to own slaves in NY as it was in GA, and mobility of that labor was transaction based.

To argue that the illegitamacy of slavery was a southern only issue is disingenious, it was a necessary progrssion of humanity to lose the concept of human ownership for labor, but the DETERMINATION thereof did lie with the states,  and Mr Lincoln did away with that and since the FEDERAL state has trumped all local law.  Hence the ensuing chaos, bring it....

blindman's picture

Here Come de Judge
Flip Wilson on The Ed Sullivan Show
Pigmeat Markham - Here Comes The Judge + The Trial - 1968 45rpm

blindman's picture

@“The U.S. Supreme Court Decision … Means the Nation Has Entered a Post-Constitutional Era”..g.w.
you do realise that this is an absurdity, a mere trick of language
and ridiculous. there is no authority or power within the
constitution, those documents and spirits, that allows, justifies or
condones the structures, titles, positions or functions of any
group of people or party to govern in a "post-constitutional"
environment. that is the definition of treason.
treason, punishable.

MickV's picture

It's been "Post Constitutional" since the domestic enemy Usurper Obama entered the Oval Office GW. There is no law when the "executor of the laws" is an illegal entity. Why haven't you been trumpeting the fact that the POTUS is illegal? Are you a coward?

"The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. " Minor v. Happersett, 88 US 162, 167 (1894)

That is LAW in the form of SCOTUS precedent. Obama is not a natural born Citizen because his father was not a US Citizen when BHO was born---- FACT. So it seems you, GW, pick and choose which laws you like. Constitutional relativity has been the death of the Republic. I have already told you GW-- the law no longer exists, except in the way evil men make their own. Get a clue you idiot.

Flying Wombat's picture

Martial Law, Detention Camps and Kangaroo Courts: Are We Recreating the Third Reich?


Mr. Delicious's picture

Citizens was rightly decided. Reason.com has a lot of good articles on why "free speech" and prosecuting and potentially jailing people {real people} for making shitty political documentaries is not...um.... sort of going along with what the 1st says....

It says "Congress shall make no lw" - that means it's something government can't do, not a "right" - newspapers are generally corporations too, and so are film studios... the critics of Citizens either haven't read the fucking thing or they think the 1st Amendment only means how they would qualify it with words and concepts... that aren't even in the thing.

Whatever, you can't fix stupid, but I thought it was mostly statists and progressives who were into giving government the power to ban speech on the thin excuse some guys who hated Hillar formed a corporation to make their movie and air it on pay per view... really... they should go to jail for doing so? Fucking idiotic positions like that are no small part of why we're fucked.

For fuck's sake, if only individuals in an individual capacity can say stuff then the governmen can fine and jail movie studio heads and actors... the fucking myopia...the fucking dishonesty as to Constitutional text.

Apart from that, good article and I like GW's work.

My point really is, GW, it's not just SC cases - the people, and especially the chattering classes - don't even like the idea of a Constitution - it's a limitation on the power they want to give government.

Kidding aside - read the comments section in the NYT or HuffPo - these people are fucking idiots, they are allergic to learning lessons from history, and their love and trust of government is what enables Big Brother.

See, Big Brother doesn't come first - what happens is people demand that a fellow like candidate Obama become Emperor Obama.

Everyone in the military right now is a fuckin' stormtrooper. I've said that openly, including to a young, less than a year in {prolly} Marine I knocked out a few months back in Dorchester, MA. As I pointed out, not only have I earned the right to say it, and not only is the point to have the freedom to say it, I have zero respect for anyone killing people who don't threaten me or mine and then fucking lying about it and doing nothing as the Empire expands.

And if you tell me to shut up or you'll make me - I'm gonna ask you to try your best, and I don't care what war stories you have to impress drunk sluts. I know the ones you're not mentioning back home.

Blood Spattered Banner's picture

Unlike the majority of useful idiots protesting against the status quo, Hedges is one of the few that realizes that revolting is our only option, which gives him a lot of street cred in my book.  So many others are desperately clinging to the notion that change can come from within, which is sad.

besnook's picture

the rule of law gives way to the law of rulers. the usa has become what the constitution explicitly tried to prevent from happening proving they were right to conclude all . govs eventually abuse their authority at the expense of the people.

falconflight's picture

One of the easiest ways of resisting the State is to conduct as much of your transactions as possible in cash.  Especially those service related transactions such as w/ plumbers ect.  You allow the service provider to decide what to report to the State.  Grow the underground economy  and show some patriotism.  

Comte d'herblay's picture

I keep telling you George, that we aren't a nation ruled by laws, but by Lawyers. 

Isn't that LAWgical??

gnomon's picture

It is "do what you got to do" time without regard for your life or the lives of your family.  Yes, it is that grim.  Only you can concede your inalienable rights.  And I would rather die and have all of my seed die than give up my inalienable rights to a rogue government.  

We are not the rogues.  They have become the rogues.  We stayed were we were.  They moved on in the pursuit of total control in order to accrue even greater power and wealth.

steadysteve's picture

The government is now a domestic enemy of the Constitution. We the people of the several states claim the right to "disappear" or kill any agent, worker, or representative of the now enemy government. Fair is fair assholes ,and remember you started it.

boozo's picture

Wait, wait. It is the constitution that created and authorizes a supreme court. So, if the court nullifies the constitution, then the court itself ceases to exist and has no authority. Thus, citizens can safely ignore the opinions of the "justices," who are left defrocked.

yellowsub's picture

We are a nation of laws, they just don't apply to some...

Oh I still have freedom of speech to criticize people, ain't I free?

Savyindallas's picture

It's okay to criticize Miley Cyrus for being a slut, or Justin Bieber for being a spoiled rich teeanage idiot. I can criticize my favorite sports team players. If I'm a republican, I can criticize demorats and vice-versa.   - so how are we not free?  What's the big deal? If you don't want to be black bagged and disappear to some dungeon or be executed in secret -then just use some discretion on who you criticize. 

the wet spot's picture

You've completely missed the point, good sir.  You simply don't get it - at all.

CaptainSpaulding's picture

Why did i receive a jury duty notice then?  This is drama George.

SAT 800's picture

No it's not drama you halfwit; your jury duty has nothing to do with the existence of the this federal law.

HardAssets's picture


bascially I agree with SAT 800

but no reason to pile on

Boubou's picture

As a Brit who frequently visited US to visit my daugter and family, I now feel like this is an unwarranted risk, especially since we enter in Miami where immigration is particularly grim. My frail 70 year old wife always seems to get detained over some misunderstanding and it is pretty intimidating in view of the 'dissapear' law.

Now the family visits us in Antigua which remains a civilized place with genuine freedom, universal healthcare and education etc.. similar to UK.

Savyindallas's picture

Chill out man. So you might get strip searched and have some rubber gloved TSA agent stick his finger up your ass  -I doubt it. At your age, you're not a likley target. It's pretty young girls (or boys) who are profiled as most likely to be carrying drugs or other terrorist contraband in their body cavities. They're the ones who should be complaining.

NuYawkFrankie's picture

re.. genuine freedom, universal healthcare and education etc.. similar to UK

Another deluded Brit

Things that go bump's picture

This is nothing new. In 18th Century France they were callled lettre de cachet, a document signed by the king and co-signed by one of his ministers that authorized the arrest and indefinite detention of a citizen without charge and without recourse. They fought a revolution over that and other injustices and mismanagements including letting the people starve while food intended for the army rotted. There really was a man in an iron mask detained without identity in a French prison at the pleasure of the king. Who he was is still a mystery.

Totentänzerlied's picture

"They fought a revolution over that and other injustices and mismanagements"

Heheheh, they sure did ... and look how France turned out.

Things that go bump's picture

They were desperate enough to forget that its better the devil you know.

ptoemmes's picture

Moreover, if you are detained and they don't (have to) tell anyone....poof you are disappeared.

Jano's picture

the gap to other countries is closed.

USA is at the same level, like Pakistan, or afghanistan, or Saudi Arabia.

WHy do they need it?

They control anyhow the System Media.

dexter_morgan's picture

Seems we haven't been a nation of laws for quite some time now. Most are just waking up to that fact though.

HardAssets's picture

The 'supreme' court is just another element of this society that I ignore now.

They are just govt lawyers in black dresses, doing their part to maintain the slave plantation.

And even if one did have a conscience, the evidence is out there that they are being closely watched and are compromised. (example - Roberts 180 reverse on 'health care' law decision)

forwardho's picture

GW, thanks again for your time, effort, and courage.

When Truth becomes treason, your words will be used against you.

therearetoomanyidiots's picture

GW - do have a link for the trial courts opinion.   It's pretty important to see what that judge said beyond the very few lines you've provided.  

As I read the opinion of the appeals court, it appears they are saying that indeed citizens cannot be held indefinitely. 

FrankDrakman's picture

There's a three-part challenge in the last lines of the "Star Spangled Banner":

"O, say, does that star-spangled banner yet wave,

O'er the land of the free, and the home of the brave?"

Well, the flag may be waving still, but it's certainly not over the 'land of the free', nor I suspect, 'the home of the brave'.

America, live up to your anthem! It will take a lot, but you did it once.

optimator's picture

So, they simply never play those last lines, just like the last lines of the U.S. Air force offical song that's not played anymore.  Here are the words of that last stanza:

Flying men, guarding the nation's border, 
We'll be there, followed by more! 
In echelon we carry on. Hey! 
Nothing'll stop the U.S. Air Force!

sondernauch's picture

"Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others "

Sorry, but I couldn't get past this list. These are the kind of people who put us into this situation in the first place. And that feminazi Naomi Wolf makes me want to kill her.

Westcoastliberal's picture

Let me be the first to tack up the "Troll Alert" sign.

Totentänzerlied's picture

+1. Indeed. Journalists make my skin crawl. If they utter 1 truth amid 100 lies, they're hailed as moral heroes and defenders of truth itself. All of your downvoters have their portraits next to the word "naive" in the Oxford English Dictionary. Chris Hedges and Naomi Wolf? Oh where would the world be without these unbiased titans of honesty and truth (who just happen to agree with 99% of everything the government does, but either disagree with the specific means or want them to do even more of it [welfare, regulation, nationalization, etc.]).

Many so-called whistleblowers are part of whitewashes, witch-hunts, and limited-hangouts, they too lie, distort, and conceal as much as they please, revealing only carefully chosen morsels that conveniently implicate no one of consequence and accomplish nothing.

Activists ... not even worth mentioning. 99 varieties of self-serving knaves, grasping at their chance to become part of the Machine and sell out their (idiotic, misguided, dangerous, and destructive) causes.

Maybe one in a thousand does anything of note. The rest are the equivalent of small-town gossiping church-ladies, only the egos are far larger.

And sorry but the article's argument is incoherent populist drivel based on grievous fictions such as constitutionalism, legalism, and the bizarre notion that trials for victimless crimes are somehow related to justice. These people are throwing buckets of lukewarm water at a glacier. We're heroes! Give us more fame, awards, book deals, and money!

SAT 800's picture

You're a disgrace to the country. Apparently you can't think straight at all. do everyone a favor and get a fatal disease.

falconflight's picture

Now your avatar makes percent sense.

Sathington Willougby's picture

Degeneracy into a state parallel to feudalism isn't a surprise.  The 200 year shelf life has long expired.

sondernauch's picture

If we're going to have feudalism, at least let's have competition and let us choose which kingdom to live in.

astoriajoe's picture

I hear the arctic circle is up and coming, albeit somewhat transient with troublesome real estate deliniation.

wally_12's picture

There's a black SUV parked in front of my house. What are they doing?

Psquared's picture

So I could be detained for posting on this website.

Ban KKiller's picture

Anarchy. Emma Goldman style....or not. 

Violence becomes the only option when the ballot box is denied. 

Kina's picture

Unfortunately for Americans this wont get fixed until Russia nukes you back to the stone age... and the rest of humanity.  But they say cockroahes would survive.....so bad luck then.



But of course the real way to fix this is go after all the Oligarchs themselves.

Mo Bius's picture

Yep.All of the Committee of 300 and on up! And very royal family left in Europe.