Hedges v. Obama: Rape Is Rape. War Is War. Jail Is Jail. Agreed?

NEW YORK CITY — It is impossible to abide by a law you cannot understand and impossible to defeat a law that is perfectly clear. But, the President’s lawyers are trying to defeat the First Amendment anyway.

Congress shall make no law abridging the freedom of speech, or of the press.

Questions? Me neither. Reading level? Sixth grade (same year I stopped paying attention). Five injunctions — religion, speech, press, peaceful assembly, redress of grievances — in 42 words.

“Injunction” is George Washington’s word, not mine.

Chris Hedges, a U.S. citizen, war reporter and author, is using a powerful law — a law that should be known to every citizen — to petition a Federal judge to issue a permanent injunction against the President. (A preliminary injunction issued in May.)

The challenged language states the following in relevant part:

“The disposition of a person who substantially supported al-Qaeda, the Taliban, or associated forces may include detention without trial until the end of the hostilities.”

Hedges claims he has no idea what it means to substantially support associated forces, and that, accordingly, his First Amendment rights have been chilled and will continue to be chilled as long as this law is on the books.

Be honest — if you were Chris Hedges — knowing this law is on the books, would you engage in the otherwise First Amendment protected conduct of Skyping with a known member of Al Qaeda and uploading the resulting file to YouTube? I wouldn’t, and I say that as the only citizen to have sued the United States for the purpose of ending the unconstitutional participation of U.S. Armed Forces in the Libyan Civil War.

In 2009, the Administration issued this memo:

“It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the precise characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and organizations within the foregoing framework. The contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”

Hedges’ concerns, therefore, are well-founded. Officialdom has taken great pains to not define the challenged language. The only thing worse than policy over law, is non-policy over law and that’s precisely what Hedges attacks.

Under questioning last month by U.S. District Judge Katherine Forrest (an Obama appointee), Ben Torrance — the President’s defense lawyer – echoed the foregoing memo:

“When we are talking about a battlefield, what an association is can mean a lot of different things.”

In Post-Constitutional America, “when we are talking about a battlefield,” we are talking about Planet Earth, which by definition includes the United States.

On the one hand, the Administration embraces ambiguity as a wholesale alternative to the Bill of Rights. On the other hand, the President’s attorney claims the law is very clear.

THE COURT:  So, would you agree with me that the statute we are talking about is open to interpretation?
MR. TORRANCE:  No. We think it is quite clear, actually.
THE COURT:  So you think it is very clear.
THE COURT:  Are you absolutely confident that the individuals who run the next Department of Justice will believe that the clarity of your interpretation is the same as the clarity of theirs?

Pointing to the President’s New Year’s Eve signing statement, political true-believers – who apparently have never heard of the 16 year old boy from Denver incinerated by a CIA missile — argue that Hedges has nothing to fear from this President:

“My Administration will not authorize the indefinite military detention without trial of American citizens.”

The judge calls this a “carefully parsed statement” because the law does not authorize “indefinite detention.” It authorizes “detention until the end of hostilities.”

The President, therefore, did not limit his options on New Year’s Eve. He simply spoke over the head of the law, or as Ben Torrance puts it:

“Indefinite is probably the wrong word, there could be perpetual detention.”

“Detention” is definite in the sense that you will definitely be detained until the end of hostilities. It’s “hostilities” that are permanent indefinite. This from the same President who just two weeks ago said:

“Rape is rape. And the idea that we should be parsing and qualifying and slicing what types of rape we’re talking about doesn’t make sense to the American people.”

Rape is rape and — take it from me — jail is jail and the Fifth Amendment guarantees that no person shall be deprived of life or liberty without due process of law. The Administration’s response to the Fifth Amendment is that the Bill of Rights kicks in upon accusal. If they don’t accuse you, the only process you’re due is a cell or a missile as defined by the law of war.

Hedges – and all citizens – have every right to demand the identical, exacting, specificity from Congress, as the President’s lawyer demands from Judge Forrest:

THE COURT: Are you aware of any provision, constitutionally, which allows for the incarceration of an American citizen without trial?
MR. TORRANCE: It depends on what incarceration means.

THE COURT:  Those cases that the government cites are different from cases which talk about the ability of the Executive Branch to interpret domestic military detention in a particular way.
MR. TORRANCE:  I’m not sure what domestic military detention is.

THE COURT:  Would you agree with me that the executive branch would not have the right to expand the definition of military detention on its own, that it doesn’t have the right to do that?
MR. TORRANCE:  Beyond what?

THE COURT:  Do you know whether or not anybody had been detained under the AUMF anywhere under, for military detention and placed in military detention for any religious activities?
MR. TORRANCE:  I don’t quite know what religious activities means.

THE COURT:  Do you know whether or not anybody has been placed in military detention for non-violent purely associational activities?
MR. TORRANCE:  I don’t know what that means.

THE COURT:  Let’s say propaganda on behalf of Al Qaeda.
MR. TORRANCE:  But what does on behalf of mean?

THE COURT:  Have you looked at it recently?
MR. TORRANCE:  That depends what recently means.

Citizens can learn from the clinic Torrance gives in forcing an official to explain herself.

Hedges is going to win this case in the Southern District for two reasons: (1) the Senate’s Radical Center – by a vote of 93-7 – made “a law abridging the freedom of speech, and of the press” and (2) Judge Forrest is a real judge. She is poised — unless someone gets to her — to become the first judge in the history of the republic to issue an injunction implicating war powers, precisely because this is the first time the legislature and the executive has laid the foundation for acts of aggression against the citizenry.

This represents a start in the struggle to reinstate the Bill of Rights.

One has to wonder whether the reason Hedges is the first plaintiff standing — as opposed to, say, the New York Times (his former employer) — is due to the fact that the challenged law is having the desired impact. How else does one explain the failure of the Times and the Post to join in this litigation and the need for some asshole with a blog to assume the responsibility of meaningfully reporting on the situation?

Regardless of what happens on the appeal that is sure to come, Judge Forrest’s preliminary injunction and the permanent injunction that is sure to issue any day, will provide future litigants with the insight necessary to browbeat our elected criminals, not in the streets — but in the courts — where a single citizen can occasionally (and more frequently than you imagine) move the needle in favor of the people. See, my memoir @ 56:34

Nobody wants to live in a country where citizens can be perpetually detained without trial, based on some official assertion by the individual who happens to be president.

THE COURT: Would you agree with me that there is nothing legally binding on a Romney administration in terms of the Obama signing statement as a matter of law?
MR. TORRANCE: I think that’s correct. Yes.

It is.

The irony of Hedges v. Obama is that the standard of clarity Ben Torrance demands of Judge Forrest, far exceeds the bare minimum even Chris Hedges himself attempts to impose on the Congress and the President.

It is no accident that we are where we are. It is not Presidents who have done this to us. It is our misrepresentatives in the Congress. As citizens, we quibble over our pet presidents’ acts of discretion, while ignoring their failure to perform official duties and provide honest services.

One could make the argument that we deserve perpetual detention.

Perhaps one just did.

The entire transcript of the August 7, 2012 Permanent Injunction Hearing in Hedges v. Obama is available here. The preliminary injunction enjoining the President from enforcing the Homeland Battlefield Provision is here.