Journalist Chris Hedges Sues Obama Administration Over Indefinite Detention of US Citizens Approved in NDAA

AMY GOODMAN: During Monday night’s debate in South Carolina, Republican candidates sharply disagreed over a new policy to indefinitely detain American citizens. President Obama approved the measure as part of the National Defense Authorization Act, or NDAA, which includes controversial provisions authorizing the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial. President Obama added a signing statement when he signed the NDAA, stating, quote, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens.”

Well, last night, Republican front-runner Mitt Romney defended Obama’s approval of the bill, saying he would have done the same.

KELLY EVANS: Governor Romney, as president, would you have signed the National Defense Act, as written?

MITT ROMNEY: Yes, I would have. And I do believe that it’s appropriate to have in our nation the capacity to detain people who are threats to this country, who are members of al-Qaeda. Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country, we have a right to take those people and put them in jail.

AMY GOODMAN: That was Republican presidential front-runner Romney, talking about the controversial indefinite detention provisions in the NDAA.

Meanwhile, Rick Santorum said a U.S. citizen who’s detained as an enemy combatant should have the right to a lawyer and to appeal his case before a federal court. And Ron Paul said holding American citizens indefinitely is a breach of the U.S. judicial system.

When President Barack Obama signed the NDAA, sections of the bill were opposed by key members of his administration, including Defense Secretary Leon Panetta, FBI Director Robert Mueller and Director of National Intelligence James Clapper. Many civil liberties activists believe the law is unconstitutional.

Well, today, an announcement is being made in New York, filing a complaint in the Southern U.S. District Court against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the NDAA. Their plaintiff is none other than veteran war correspondent and Pulitzer Prize winner Chris Hedges.

For more, we’re joined by Chris Hedges himself, senior fellow at the Nation Institute, who recently wrote a piece for TruthDig called “Why I’m Suing Barack Obama.” Chris Hedges is a former foreign correspondent for the New York Times, was part of a team of reporters who won the Pulitzer Prize in 2002 for the paper’s coverage of global terror. He is author of a number of books, including Death of the Liberal Class and The World As It Is: Dispatches on the Myth of Human Progress.

And we’re joined by Chris Hedges’ attorney Carl Mayer, who filed the litigation on his behalf.

Chris Hedges and Carl Mayer, welcome to Democracy Now!

CHRIS HEDGES: Thank you.

AMY GOODMAN: Chris, why are you suing President Obama?

CHRIS HEDGES: Because it’s clearly unconstitutional, for starters. But secondly, it is a huge and egregious assault against our democracy. It overturns over 200 years of law, which has kept the military out of domestic policing. And even that passage that you read from the White House, I think, is deeply disingenuous, because Dianne Feinstein had a resolution by which, within that bill, Americans would be exempted from this, and the Democratic Party and Barack Obama rejected it. All of the debate with Carl Levin, who, with McCain, sponsored the bill, was a struggle between the White House so that they would assume—they would have the right to assume which Americans would be detained by the military without due process and held indefinitely until the end of hostilities, this kind of endless war on terror. It’s an extremely frightening step backwards for American democracy. And as someone who’s spent 20 years overseas and has lived in countries where the military has that kind of power, I have friends who have disappeared into these military gulags. We have unleashed something that I think is truly terrifying.

And as discontent grows, of course, the criteria by which people can be investigated in this country are so amorphous, even bizarre—I mean, somebody who is missing fingers on a hand or somebody who has more than seven days’ worth of food. It’s a very seamless step to include in that list some of the obstructionist tactics of the Occupy movement. And I think that for those of us who care about civil liberties, the right of dissent and freedom, we have to stand up. And that’s why Carl and I have decided to do this.

AMY GOODMAN: Carl Mayer, how does this—how does this litigation work?

CARL MAYER: Right, well—

AMY GOODMAN: And why not a class action lawsuit, where many people file?

CARL MAYER: Right. Well, the purpose of the litigation is to have a federal court declare this act unconstitutional. And that would apply to everyone.

Chris is an important plaintiff in this, because—you just showed the clip from Mitt Romney. I’m not sure that Mitt Romney has read this bill. The act is so broad and vague that it covers, in its writing, any persons who give, quote, “substantial support to al-Qaeda, the Taliban, or,” quote, “associated forces,” which are incredibly broad, nebulous terms and could capture, within those—their terms, journalists like Chris Hedges, who courageously has gone around the world to interview members of opposition parties, to interview members of terrorist groups, to report the truth. And so, when Mitt Romney says these are people who are in terrorist organizations, that’s not how the bill is written. It’s written so broadly that it could encompass a journalist like Chris Hedges. It could encompass people who are engaged in free speech and in all sorts of activities that have nothing to do with what Mitt Romney, etc., are talking about.

And so, we filed this action. I filed it in conjunction with my colleague Bruce Afran, who’s a professor of constitutional law at Rutgers Law School, another veteran public interest attorney. And what we’re asking the court to do is to declare that this law violates not only the First Amendment rights of citizens like Chris to report and to speak about these issues, but also the Fifth Amendment right to due process, because what this—what this bill does is it sends people to military tribunals, and it allows for the indefinite detention of these people. It even allows for the rendition of covered persons, which is not defined in the act, to render these people to foreign countries.

AMY GOODMAN: And explain what you mean by that. This is extraordinary rendition.

CARL MAYER: Right. And so, what the act permits is that if someone is deemed under the act to be giving, quote, “substantial support” to, quote, “associated forces” that are associated with terrorists, they could be sent overseas at the determination of the American military, or they could be held in a military prison here indefinitely, or they could be tried in a military court. And as Chris Hedges, who is courageously bringing this as a plaintiff, pointed out, there is a longstanding Supreme Court decision called ex parte Milligan, which dates to the Civil War period, in which several people were held by the military for plotting to overthrow, during the course of the Civil War, the governments of Indiana and Ohio. And they were sentenced to death. The Supreme Court ruled, after the Civil War, that as long as there are civilian courts operating, you cannot try these people in military courts, even people who are—whose avowed purpose was to overthrow the civilian governments of Ohio, Indiana, etc. So, it is that level of protection that is built into the Constitution. And that’s what our ancestors fought for, is to uphold the Bill of Rights, due process rights, right to a trial by jury. And all of this is being abrogated by this legislation.

AMY GOODMAN: I wanted to bring in what Rick Santorum said last night at the Republican debate in South Carolina about a U.S. citizen detained as an enemy combatant having the right to a lawyer to appeal their case before a federal court.

RICK SANTORUM: First off, I would say this. What the law should be and what the law has been is that if you are a United States citizen and you are detained as an enemy combatant, then you have the right to go to federal court and file a habeas corpus petition and be provided a lawyer. That was the state of the law before the National Defense Authorization Act, and that should be the state of the law today. You should not have—you should not have—if you’re not an American citizen, that’s one thing. But if you are a citizen and you’re being held indefinitely, then you have a right to go to a federal court. And again, the law prior to the National Defense Authorization Act was that you had the right to go to a court and for that court to determine, by a preponderance of the evidence, whether you could continue to be held. That is a standard that should be maintained, and I would maintain that standard as president.

AMY GOODMAN: Chris Hedges, Rick Santorum versus President Obama?

CHRIS HEDGES: He’s not a politician I usually have much in common with, but this is right. I mean, this is about the egregious destruction of the rule of law. I mean, we have to remember that under the 2001 Authorization to Use Military Force Act, some of this was already happening. José Padilla, for instance, was picked up by military courts, held without trial, access to due process—again, a U.S. citizen—went to the Supreme Court, and by that time, they handed him over to civilian court to—and the Supreme Court never made a ruling on it. But I think that this essentially codifies this very extreme interpretation of this 2001 act into law.

And more importantly, it expands the capacity by the state in terms of defining who is, quote/unquote, “not only a terrorist, but somebody who is,” in their terms, “associated forces” or substantially supports people defined as terrorists. And, of course, the reason for that is that many of these groups that are being attacked in Yemen and other places had nothing to do with 9/11—they didn’t even exist when 9/11 happened—and to expand this into the civilian population of the United States. And I think, Amy, one of the most sort of disturbing aspects of this is that the security establishment came out against it—the CIA, the FBI, the Attorney General, the Director of National Intelligence. None of them wanted it.

AMY GOODMAN: President Obama said he was going to veto it.

CHRIS HEDGES: President Obama said he was going to veto it, but we now know from leaks out of Levin’s office that that’s because the executive branch wanted to decide. They wanted the power to decide who would be tried, who would be granted exemptions. It wasn’t actually about the assault against due process.

And I think we have to ask, if the security establishment did not want this bill, and the FBI Director Mueller actually goes to Congress and says publicly they don’t want it, why did it pass? What pushed it through? And I think, without question, the corporate elites understand that things, certainly economically, are about to get much worse. I think they’re worried about the Occupy movement expanding. And I think that, in the end—and this is a supposition—they don’t trust the police to protect them, and they want to be able to call in the Army. And if this bill goes into law, and it’s slated to go into law in March, they will be able to do that.

AMY GOODMAN: I wanted to ask you a quick question about a comment Texas Governor Rick Perry made last night, in a related, but not exactly the same thing as what you’re talking about. He said on Sunday the Obama administration has gone “over the top” in criticizing marines who were videotaped urinating on Afghan corpses.

GOV. RICK PERRY: What bothers me more than anything is this administration and this administration’s disdain all too often for our men and women in uniform, whether it is what they’ve said about the Marines—now, these young men made a mistake. They obviously made a mistake.

BRET BAIER: You’re talking about urinating on the corpses?

GOV. RICK PERRY: They made a mistake that the military needs deal with, and they need to be punished. But the fact of the matter—the fact of the matter is this. When the Secretary of Defense calls that a despicable act, when he calls that utterly despicable—let me tell you what’s utterly despicable: cutting Danny Pearl’s head off and showing the video of it, hanging our contractors from bridges. That’s utterly despicable.

AMY GOODMAN: That was Rick Perry, Texas governor. Chris Hedges, you were a longtime war correspondent.

CHRIS HEDGES: Well, you know, when people are killed on a battlefield, and those who are deemed the enemy are, at best, treated like human refuse. But usually they’re treated like trophies. They’re often dismembered. I mean, one of the first things you do after you kill an enemy combatant is go through their pockets. And in war after war that I covered, the desecration and mutilation of corpses was extremely common. So, I think that what we saw was a window into the reality of war, one that has essentially been censored from public view.

AMY GOODMAN: I want to thank you both for being with us, Chris Hedges, Carl Mayer.