The State Will Always Transcend Its Limits

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Submitted by Pater Tenebrarum of Acting-Man blog,

Detaining People Indefinitely on the President's Say-So

A law suit filed by journalists and academics (including Chris Hedges, Daniel Ellsberg, and Noam Chomsky) against the NDAA statute that provides for the secret detention of 'terrorism suspects' by the military on the president's say-so, while subsequently denying them any judicial review or recourse, initially ended with the lower court siding with the journalists.

The journalists complained because the law obviously has a chilling effect on their journalistic activities. How can they report on terrorism, when e.g. an interview with a terrorism suspect could land them in indefinite detention without trial? A few excerpts from the reasoning behind the lower court's decision (a decision it reaffirmed when the government challenged it):

“Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021," Forrest wrote.

 

At a hearing in March, three of the plaintiffs testified that the possibility of government repression under the NDAA made them reconsider how they approached their journalism and activism.

 

Guardian journalist Naomi Wolf read testimony from Jonsditir, who prepared a statement saying that she would not visit the U.S. for fear of detention. Forrest alluded to this testimony in her decision.

 

"Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O'Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm," she wrote.

 

"In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities – i.e., an indeterminate period of time," Forrest continued.

 

"Being subjected to the risk of such detention, particularly in light of the Government's inability to represent that plaintiffs' conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate? Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe."

(emphasis added)

The government apparently wasn't able to completely rule out that it might actually end up detaining one of the plaintiffs one day. It is also worth pointing out here that there can actually never be a 'cessation of hostilities' in the 'war on terror'. After all, terror is a tactic, and will always exist. Hence, this war is going to last forever, similar to other wars waged by the government, such as the completely ineffectual and counterproductive 'war on drugs', or the utter failure known as the 'war on poverty', to name two boondoggles that are evidently open-ended.

It is also well known that the 'war on terror' continually produces new terrorists, as e.g. shown by the enormously successful Al Qaeda recruitment program underway in Yemen by means of drone attacks (for every terrorist killed,  several new ones reportedly join up). In short, it is another never-ending war.

If one is actually detained under this statute, it may therefore well turn into a life sentence – only, there won't be any sentencing. Not one detainee will ever get his day in court.

Shortly thereafter, a federal appeals court of three Obama-appointed judges restored the indefinite detention provision of the NDAA by issuing a stay of the lower court's decision:

A federal appeals court has extended a temporary stay of a district court judge's order barring the government from using an indefinite detention provision in a defense bill passed by Congress and signed by President Barack Obama late last year.

 

A three-judge motions panel of the U.S. Court of Appeals for the 2nd Circuit issued the order Tuesday afternoon, indicating they saw flaws with the scope and rationale for U.S. District Court Judge Katherine Forrest's original order blocking the disputed provision of the National Defense Authorization Act of 2011.

 

"We conclude that the public interest weighs in favor of granting the government's motion for a stay," Appeals Court Judges Denny Chin, Raymond Lohier and Christopher Droney wrote in a three-page order that also expedited the appeal.

 

[…]

 

All three judges on the motions panel were appointed to the appeals court by President Barack Obama.

(emphasis added)

The last hope for the case was the next stage of the appeals process – in other words, the plaintiffs were hoping that  the Supreme Court would deign to hear it. Fat chance.

 

NDAA

 

Challenging Odious Laws Becomes Impossible

No-one should be surprised that the same old trick worked once again: the Supreme Court agreed with the government that the plaintiffs 'have no standing'.

“The U.S. Supreme Court on Monday handed a victory to President Barack Obama's administration by declining to hear a challenge to a law that allows the U.S. military to indefinitely detain people believed to have helped al Qaeda or the Taliban.

 

The high court left intact a July 2013 2nd U.S. Circuit Court of Appeals decision that journalists and others who said they could be detained under the law, did not have standing to sue.

 

The provision in question is part of the National Defense Authorization Act, which the U.S. Congress passes annually to authorize programs of the Defense Department.

 

It lets the government indefinitely detain people it deems to have "substantially supported" al Qaeda, the Taliban or "associated forces."

 

Journalists and activists whose work relates to overseas conflicts, including Pulitzer Prize winner Chris Hedges and an Icelandic spokeswoman for the Wikileaks website, said that the law could subject them to being locked up for exercising constitutionally protected rights. They also said the threat of enforcement violated their right to free speech.

In September 2012, U.S. District Judge Katherine Forrest of New York issued a permanent injunction preventing the United States from invoking the part of the law authorizing indefinite detentions.

 

The appeals court said the challengers had no standing because they could not show the provision has any bearing on the government's authority to detain U.S. citizens.

The court said the plaintiffs who were not U.S. citizens lacked standing to sue because they did not show "a sufficient threat that the government will detain them" under the provision.”

(emphasis added)

Consider what this actually means. The government apparently 'promised' that it won't detain journalists under the provision. But that 'promise' is just words. What happens if a journalist does in fact end up detained?

One could easily imagine a hypothetical case in which a journalist in making contact with dubious sources is erroneously (or even deliberately) suspected of having 'aided' terrorists. He is then detained under the NDAA provision.

This would mean two things: for one thing, the person concerned would definitely have acquired 'standing' to sue the government over the detention rule. Secondly, no use could possibly be made of this 'standing', because according to the terms of NDAA detention, access to the courts would be denied to the detainee!

As Jason Ditz remarks:

“Courts initially banned such detentions, over intense objection from President Obama, who argued that prohibiting the detentions would be an unconstitutional restriction of presidential power.

 

The Appeals Court eventually restored the detention power, however, insisting that Hedges et al didn’t have standing to contest their future detention because they couldn’t prove that the president might decide to detain them at some point in the future.

 

The standing argument effectively makes it impossible to challenge the NDAA statute, as it precludes challenges before the detention takes place, and once a person has been disappeared into military custody under the NDAA, the law explicitly denies them any access to the courts.”

(emphasis added)

This is neat. Heads I win, tails you lose. How can one still speak of a nation of laws under these circumstances? It is in fact not quite clear why terrorism suspects allegedly need to be 'disappeared' and cannot be tried in court. Are we to assume that the president, or whoever orders such detentions, is an infallible being?

As Murray Rothbard noted in 'Anatomy of the State', the idea that the separation of powers protects against the government eventually arrogating powers to itself it was never supposed to have according to the constitution is misguided. One cannot reasonably expect the State to 'control' or 'limit' itself. As Rothbard writes:

“Certainly the most ambitious attempt to impose limits on the State has been the Bill of Rights and other restrictive parts of the American Constitution, in which written limits on government became the fundamental law to be interpreted by a judiciary supposedly independent of the other branches of government.

 

All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions. For if a judicial decree of “unconstitutional” is a mighty check to government power, an implicit or explicit verdict of “constitutional” is a mighty weapon for fostering public acceptance of ever-greater government power.”

 

[…]

 

For while the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches.

 

Black admits that this means that the State has set itself up as a judge in its own cause, thus violating a basic juridical principle for aiming at just decisions.

(emphasis added)

'Emergencies' always pave the way for an expansion of government power, which is rarely taken back again afterward (the 'ratchet effect', which is especially pronounced in times of war).

As we always point out in similar contexts, it is irrelevant how likely or unlikely it is whether today's government abuses these provisions. Once laws are in place that can be potentially abused, then all that is required is that people are swept into power who have no compunction about doing just that.

Hitler comparisons may be tiresome, but he remains a pertinent example: after gaining power in a democratic election, he found that a great many 'emergency laws' had been put in place by his moderate predecessors that he only needed to enforce. Consider also what he said to the Reichstag (parliament) when he introduced the 'Enabling Act' (a much broader, truly dictatorial law; however, similar to the infinite detention provision of the NDAA, it inter alia allowed for the suspension of habeas corpus):

“The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures.  […]

The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one.”

In other words, there is nothing to fear! We are a civilized, democratic people and government, nothing untoward can possibly happen. We only have to deal forcefully with the current emergency. It turned out that the 'internal necessities' soon proliferated.

 

Conclusion:

Court challenges to constitutionally dubious laws that have been introduced since the WTC attack, as well as to the highly questionable activities of the national security apparatus, have been regularly stopped in their tracks with the argument that the plaintiffs 'lacked standing'. In the case of the indefinite detention provision this argument is especially bizarre, since all those who will acquire 'standing' in the future will no longer have access to the courts – the very thing the plaintiffs tried to challenge. This seems hardly compatible with how a nation of laws is supposed to operate, but as Rothbard pointed out, the State will always find a way to transcend its limits.

 

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