America to remain the land of the free, for now

As Connie Ye asks, if legislation falls in the woods and nobody is there to hear it, then what is the point?

Last Wednesday, the National Defense Authorisation Act reared its ugly head after months in obscurity. It passed slyly under the radar in the bowels of Washington on New Year’s Eve 2011. The National Defense Authorization Act, specifically section 1021, affording the President “all necessary and appropriate force” in order to detain any citizens involved in terrorist activities; specifically, anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”.

US District Court judge Katherine Forrest issued a preliminary injunction against the Obama government’s exercise of the controversial indefinite detention allowed by the Act.

Ms. Forrest says the extensive power to detain without trial or charge could ultimately impede on civil liberties in the US. She describes it as potentially having “a chilling impact on First Amendment Rights”, labelling the section “facially unconstitutional”.

The lawsuit leading to the injunction was filed against President Obama, Defense Secretary Leon Panetta, and the Defense Department, by plaintiffs including prominent intellectuals Noam Chomsky and Naomi Wolf, Icelandic parliamentarian Brigitta Jónsdóttir, and Pulitzer prize-winner Chris Hedges.

The court’s major gripe was with the wording. The plaintiffs claimed the deliberately broad umbrella terms used brought their investigative work as journalists in contacting sources into threat. Worryingly, the administration couldn’t define this wording, even when pushed. Obama’s attorneys were consistently unable to define or clarify the wording of section 1021 when called to testify. When explicitly asked to give assurances that the behaviour of the plaintiffs would not warrant being subjected to detainment under section 1021, the attorneys were ‘repeatedly’ unable to give such assurances.

Moreover, the Senate also rejected calls to amend the act to protect First Amendment rights. They would not support wording explicitly exempting United States citizens from detainment.

As for coverage of the hearing it remains disappointing that mainstream media missed or, perhaps more appropriately, ignored the news. Described as a literal ‘blackout’, mentions of the NDAA on top American news network CNN were deliberately shifted out of primetime slots. In one instance a pro-NDAA lawyer was provided as the sole talking head on the issue.

Instead, the main sources of commentary were predominantly online, such as in Huffington Post, smaller independent blogs and most importantly, via social media (especially on Twitter). Outside of the US, Naomi Wolf wrote in support of lead plaintiff Chris Hedges in March on The Guardian blog, citing the offending law as a “coup in two paragraphs”.

The plaintiffs paid their own way to the case, with their attorneys working pro bono. For a group of plaintiffs so heavily invested and so media-savvy, the continued press silence is worrying.

What is more worrying to Naomi Wolf, as she ended her Guardian blog, is the prospect that “our democracy hang[s] by such a tenuous thread that it relies on the sheer luck that this case was heard by a courageous judge with a settled belief in the constitution of the United States.”

Connie Ye is an Honi Soit editor

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