I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the National Defense Authorization Act(NDAA) that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities. Carl Mayer and Bruce Afran, the lawyers who with me in January 2012 brought a lawsuit against President Barack Obama (Hedges v. Obama), are about to file papers asking the U.S. Supreme Court to hear our appeal of a 2013 ruling on the act’s Section 1021.
“First the terrorism-industrial complex assured Americans that they were only spying on foreigners, not U.S. citizens,” Mayer said to me recently. “Then they assured us that they were only spying on phone calls, not electronic communications. Then they assured us that they were not spying on American journalists. And now both [major political] parties and the Obama administration have assured us that they will not detain journalists, citizens and activists. Well, they detained journalist Chris Hedges without a lawyer, they detained journalist Laura Poitraswithout due process and if allowed to stand this law will permit the military to target activists, journalists and citizens in an unprecedented assault on freedom in America.”
Last year we won round one: U.S. District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 unconstitutional. The Obama administration immediately appealed her ruling and asked a higher court to put the law back into effect until Obama’s petition was heard. The appellate court agreed. The law went back on the books. I suspect it went back on the books because the administration is already using it, most likely holding U.S. citizens who are dual nationals in black sites in Afghanistan and the Middle East. If Judge Forrest’s ruling were allowed to stand, the administration, if it is indeed holding U.S. citizens in military detention centers, would be in contempt of court.
In July 2013 the appellate court, in round two, overturned Forrest’s ruling. All we have left is the Supreme Court, which may not take the case. If the Supreme Court does not take our case, the law will remain in place unless Congress strikes it down, something that federal legislators have so far refused to consider. The three branches of government may want to retain the ability to use the military to maintain control if widespread civil unrest should occur in the United States. I suspect the corporate state knows that amid the mounting effects of climate change and economic decline the military may be all that is left between the elite and an enraged population. And I suspect the corporate masters do not trust the police to protect them.
If Section 1021 stands it will mean that more than 150 years of case law in which the Supreme Court repeatedly held the military has no jurisdiction over civilians will be abolished. It will mean citizens who are charged by the government with “substantially supporting” al-Qaida, the Taliban or the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition. It will mean citizens seized by the military will languish in military jails indefinitely, or in the language of Section 1021 until “the end of hostilities”—in an age of permanent war, for the rest of their lives. It will mean, in short, obliteration of our last remaining legal protections, especially now that we have lost the right to privacy, and the ascent of a crude, militarized state that serves the leviathan of corporate totalitarianism. It will mean, as Forrest 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.
“As Justice [Robert] Jackson said in his dissent in the Korematsu case, involving the indiscriminate detention of Japanese-American citizens during World War II, once an unconstitutional military power is sanctioned by the courts it ‘lies about like a loaded weapon, ready for the hand of any authority,’ ” Mayer said.
In our lawsuit the appellate court never directly addressed the issue of using the military to hold citizens and strip them of due process—something that is clearly unconstitutional. Instead, the court held that I and the other plaintiffs did not have standing to bring the case. It said that because none of us had been imminently threatened with arrest we had no credible fear. This was an odd argument. When I was a New York Times reporter I was, as stated in court, arrested and held by the U.S. military in violation of my First Amendment rights as I was covering conflicts in the Middle East. In addition I was briefly detained, without explanation, in the Newark, N.J., airport by Homeland Security as I returned from Italy, the court was told.
During the five years I covered the war in El Salvador the Reagan administration regularly denounced reporters who exposed atrocities by the Salvadoran military as “fifth columnists”for the rebel movement, a charge that made us in the eyes of Reagan officials at the very least accomplices to terrorism. This, too, was raised in court, as was the fact that during my seven years as a reporter in the Middle East I met regularly with individuals and groups, including al-Qaida, that were considered terrorists by the U.S. government. There were times in my 20-year career as a foreign correspondent, especially when I reported events or opinions that challenged the official narrative, that the U.S. government made little distinction between me and groups that were antagonistic to the United States. In those days there was no law that could be used to seize and detain me. Now there is.
Journalist Alexa O’Brien, who joined the lawsuit as a plaintiff along with Noam Chomsky, Daniel Ellsberg and others, was incorrectly linked by the security and surveillance state to terrorist groups in the Middle East. O’Brien, who doggedly covered the trial of Chelsea (formerly Bradley) Manning, co-founded US Day of Rage, an organization dedicated to electoral reform. When WikiLeaks in February 2012 released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, it was revealed that the company was attempting to tie O’Brien and her organization to Islamic radicals and websites as well as jihadist ideology. Fred Burton, Stratfor’s vice president for counterterrorism and corporate security and a former deputy director of the counterterrorism division of the State Department’s Diplomatic Security Service, and Thomas Kopecky, director of operations at Investigative Research Consultants Inc. and Fortis Protective Services LLC, had an email exchange over this issue. Kopecky wrote: “I was looking into that US Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements. Thus far, I have only hear[d] rumors but not gotten any substantial connection. Do you guys know much about this other than its US Domestic fiscal ideals?” Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movementat this point.” But that soon changed. Stratfor, through others working in conjunction with the FBI, falsely linked US Day of Rage to al-Qaida and other Islamic terrorist organizations. Homeland Security later placed her group on a terrorism watch list.
This will be the standard tactic. Laws passed in the so-called war on terror will be used to turn all dissidents and activists into terrorism suspects, subjecting them to draconian forms of state repression and control. The same tactic was used during the anti-communist hysteria of the 20th century to destroy union leaders, writers, civil rights activists, intellectuals, artists, teachers, politicians and organizations that challenged entrenched corporate power.“After 12 years of an undeclared permanent war against an undefined enemy and multiple revelations about massive unconstitutional spying by the government, we certainly hope that the Supreme Court will strike down a law that replaces our civilian system of justice with a military one,” said Mayer. “Unless this happens there will be little left of judicial review during wartime.”
Afran, a law professor at Rutgers University, asked last week during a conversation with me: “Does the Army have to be knocking on your door saying, ‘Come with me,’ before there will be the ability to challenge such a law?” He said the appellate court’s ruling “means you have to be incarcerated before you can challenge the law under which you’re incarcerated.”
“There’s nothing that’s built into this NDAA [the National Defense Authorization Act] that even gives a detained person the right to get to an attorney,” Afran said. “In fact, the whole notion is that it’s secret. It’s outside of any judicial process. You’re not even subject to a military trial. You can be moved to other jurisdictions under the law. It’s the antithesis of due process.”
The judges on the appellate court admitted that we as plaintiffs had raised “difficult questions.”“This is a way of acknowledging they’re troubled by the apparent lack of constitutionality of the law,” Afran said during our conversation. “But they were not willing to face the question head on. So, in effect, they said, ‘Well, when someone’s threatened with arrest, then we have a concrete injury.’ But no one’s going to be threatened with arrest. They’ll simply be arrested. They’re not going to send a letter saying, ‘By the way, on Thursday next we’re going to place you in military custody.’ … The whole point of the law is that they’re going to come in and take you [in secrecy].”
The appellate court stated that the law does not apply to U.S. citizens and permanent residents. In reading the law this way the justices were saying, in effect, that I and the other plaintiffs had nothing to fear. Afran called this a “circular argument.” The court, in essence, said that because it did not construe the law as applying to U.S. citizens and lawful residents we could not bring the case to court.
“They seem to accept a lot of what we said, namely that the whole history of the jurisprudence, of the court decisions, is that American civilians cannot be placed in military custody,” Afran said. “And they accept the idea that Section E of the statute says, ‘Nothing herein shall be construed to affect existing authorities as to the detention of U.S. citizens.’ So on the basis of that they say this is not meant to add any new powers to the government and since the government doesn’t have power over civilians in this way the law can’t be extended to civilians. The problem is by saying there’s no standing, they deprive the district court of entering an order, saying and declaring that the statue does not apply to U.S. citizens or permanent residents, lawful residents in the U.S.”
The court, in essence, accepted the principle that citizens cannot be taken into military custody but refused to issue a direct order saying so that would be enforceable.“We have the absurdity of the court of appeals, one of the highest courts in the country, saying this law cannot touch citizens and lawful residents, but depriving the trial court of the ability to enter an order blocking it from being used in that way,” Afran said. “The lack of an order enables future [military] detentions. A person may have to languish for months, maybe years, before getting a court hearing. The [appellate] court correctly stated what the law is, but it deprived the trial court of the ability to enter an order stopping this [new] law from being used.”
“A law is not constitutional just because habeas corpus says you have a right to go to court to try to get out,” Afran said in speaking about the legal mechanism by which someone might challenge custody. “The citizen is entitled not to be detained in the first place absent probable cause. Habeas corpus is a remedy of last resort. It’s not there to justify the use of unconstitutional detention laws.”
The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. There is no guarantee our appeal will ever be heard. If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.
Robert Lustyik Jr., 51, who pleaded not guilty to the New York indictment before U.S. District Judge Vincent Briccetti in White Plains on Tuesday has been held in a Utah prison since his bail was revoked in that case in March, and faced a lengthy transport just to appear before Briccetti.
“Seven transfers to get here,” said defense attorney Ray Mansolillo, who noted that the Utah case is not expected to go to trial until at least March before U.S. District Judge Tena Campbell in Salt Lake City.
Prosecutors in White Plains arranged for Lustyik to be transferred here for the arraignment, and will now seek to negotiate with federal marshals, prosecutors and a federal judge in Utah to determine if Lustyik may remain here during preliminary hearings.
Mansolillo said he is willing to waive Lustyik’s presence in the Utah courtroom for hearings there.
Lustyik and childhood friend Johannes Thaler, a 49-year-old former Tarrytown resident, were first charged in the Utah case last year. Federal prosecutors in Salt Lake City alleged that Lustyik and Thaler attempted to thwart a federal investigation into a controversial defense contractor in exchange for lucrative payoffs.
Last month both men and a third man, Rizve Ahmed, 34, of Fairfield County, Conn., were named in a new indictment in New York. In that case, they are accused of accepting $1,000 and seeking tens of thousands more in exchange for an FBI “suspicious activity report” on an unnamed Bangladeshi political figure, according to a 15-page complaint unsealed last month in federal court in White Plains.
Lustyik and Thaler are accused of soliciting the bribes from Ahmed, identified as a rival of the Bangladeshi politician who was the subject of the FBI activity report.
Monday, Sept. 23, 2013
A former Atlanta car dealer who worked as a Russian mobster and FBI informant spoke to Channel 2 investigative reporter Jim Strickland while in custody at the Fulton County Jail.Mani Chulpayev is expected to be the star witness in the case of a murdered rapper.Rapper Lil Phat was shot and killed in his car in the parking lot of Northside Hospital in June 2012.Prosecutors say it was a revenge killing ordered by drug dealers who believe the rapper stole from them. Prosecutors have accused Chulpayev of helping an assassin squad to hunt down the victim.
Strickland has learned that suspects charged in the murder are customers of Chulpayev's Atlanta car-leasing business.
INFORMANT TURNED SUSPECT
attorney general/doj file photo
House Republicans are planning to remove AG Eric Holder from office by year’s end, Rep. Tod Yoho, R-Fla., told the Gainsville Sun.
“It’s to get him out of office — impeachment,” the Florida freshman said, adding “it will probably be when we get back in [Washington]. It will be before the end of the year. This will go to the speaker and the speaker will decide if it comes up or not.”
Among the reasons for removal is the botched “Fast and Furious” operation, which allowed guns to be placed in the hands of Mexican drug cartels.
The group plans to take the plan to House Speaker John Boehner, R-Ohio, when the lawmakers return from break.
November 23, 2013, 8:58 p.m.
As far as news releases go, the one the Los Angeles police union put out was highly unusual.
It dealt with Brian C. Mulligan, a Hollywood executive turned banker, who had been arrested by LAPD officers. In the news release, the union portrayed Mulligan as a drug-abusing liar and accused him of trying to "shake down" the Police Department.
The evidence? A secret recording that a police officer in nearby Glendale had made of Mulligan a few days before his arrest. Sounding agitated and paranoid, Mulligan admitted on the recording to using a potent type of bath salts, a synthetic drug that can cause paranoia. The union embedded in the release a link to the recording, which it had uploaded to its website.
It was a counterattack on Mulligan. The Deutsche Bank executive had gone public with a strange, troubling account of his arrest, in which he was badly injured. Officers, he said through an attorney, had kidnapped him, forced him to go to a motel and then beat him in a brutal, unprovoked attack when he tried to flee. He also denied the officers' claim that he had admitted using bath salts and marijuana, and he accused the officers of lying in their arrest report to cover up the alleged abuse.
How the audio recording made its way into the hands of the Los Angeles Police Protective League and its decision to publish it are at the heart of a lawsuit filed recently by Mulligan. In it, and in a related lawsuit, Mulligan has accused union officials of conspiring with a lawyer in the L.A. city attorney's office and a media consultant to "publicly vilify" Mulligan and pressure him to drop his demands for millions of dollars in damages.
The union has stoutly defended its right to publish the audio recording, saying in a court filing that it was acting "to defend the reputation of the two officers" who arrested Mulligan and was free to release the recording because it was not confidential.
An attorney for Eric Rose, the union media consultant named in the recent lawsuit, echoed that idea, saying Rose and the union had the right to disseminate Mulligan's "very public truthful admission which he finds embarrassing."
The confrontation occurred at a Food Lion supermarket in Charlotte, N.C., on March 20, 2008, after a store manager fired 17-year-old employee Darryl Wayne Turner for insubordination. When an irate Turner refused to leave the store, Officer Jerry Dawson with the Charlotte Mecklenburg Police Department arrived to escort him out. Turner refused to calm down, however, leading Dawson to point the red "laser dot" from his Model X26 Taser at the subject's chest, as he had been trained. Dawson fired and, when Turner did not immediately collapse, continued to emit an electrical shock into Turner's body for 37 seconds before Turner collapsed. The officer held the trigger for an additional 5 seconds of shock once Turner was on the ground. Turner was in ventricular fibrillation when paramedics arrived and was pronounced dead at the hospital. Dawson later testified that he had no reason to think that firing the X26 at Turner's chest was dangerous because he was trained to aim it towards a subject's "center of mass," and TI's various training materials since 2003 state essentially "that application of the X26 Taser had no effect on a subject's heart rates." Turner's mother, Tammy Lou Fontenot, then sued the weapon's manufacturer Taser International Inc., for product liability. She claimed that TI negligently failed to warn X26 users of academic study results that showed the device posed a risk of ventricular fibrillation, which can cause cardiac arrest, especially when the electrical current from the Taser was applied near the subject's heart. A jury ultimately found that the company had been negligent and awarded her $10 million in damages. U.S. District Judge Robert Conrad Jr. then reduced the judgment to $5.5 million, but a divided three-judge panel of the 4th Circuit deemed this amount still too high Friday. The 39-page majority opinion emphasizes that the multimillion award implies "that Turner's services, care, and companionship had a value approaching $1000-$2000 per week, per parent."
RB ROTARY – Retired FBI agent and author Bob Hamer discusses his work with the FBI at the Rancho Bernardo Rotary Club meeting noon Thursday, Jan. 30 at the Bernardo Heights Country Club.
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