Totalitarian systems always begin by rewriting the law. They make legal what was once illegal. Crimes become patriotic acts. The defense of freedom and truth becomes a crime. Foreign and domestic subjugation merges into the same brutal mechanism. Citizens are colonized. And it is always done in the name of national security.
I spent four hours in a third-floor conference room at 86 Chambers St. in Manhattan on Friday as I underwent a government deposition. Benjamin H. Torrance, an assistant U.S. attorney, carried out the questioning as part of the government’s effort to decide whether it will challenge my standing as a plaintiff in the lawsuit I have brought with others against President Barack Obama and Secretary of Defense Leon Panetta over the National Defense Authorization Act (NDAA), also known as the Homeland Battlefield Bill.
The NDAA implodes our most cherished constitutional protections. It permits the military to function on U.S. soil as a civilian law enforcement agency. It authorizes the executive branch to order the military to selectively suspend due process and habeas corpus for citizens. The law can be used to detain people deemed threats to national security, including dissidents whose rights were once protected under the First Amendment, and hold them until what is termed “the end of the hostilities.” Even the name itself—the Homeland Battlefield Bill—suggests the totalitarian concept that endless war has to be waged within “the homeland” against internal enemies as well as foreign enemies.
Judge Katherine B. Forrest, in a session starting at 9 a.m. Thursday in the U.S. District Court for the Southern District of New York, will determine if I have standing and if the case can go forward. The attorneys handling my case, Bruce Afran and Carl Mayer, will ask, if I am granted standing, for a temporary injunction against the Homeland Battlefield Bill. An injunction would, in effect, nullify the law and set into motion a fierce duel between two very unequal adversaries—on the one hand, the U.S. government and, on the other, myself, Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian Birgitta Jónsdóttir and three other activists and journalists. All have joined me as plaintiffs and begun to mobilize resistance to the law through groups such as Stop NDAA.
The deposition was, as these things go, conducted civilly. Afran and Mayer, the attorneys bringing the suit on my behalf, were present. I was asked detailed questions by Torrance about my interpretation of Section 1021 and Section 1022 of the NDAA. I was asked about my relationships and contacts with groups on the U.S. State Department terrorism list. I was asked about my specific conflicts with the U.S. government when I was a foreign correspondent, a period in which I reported from El Salvador, Nicaragua, the Middle East, the Balkans and other places. And I was asked how the NDAA law had impeded my work.
It is in conference rooms like this one, where attorneys speak in the arcane and formal language of legal statutes, that we lose or save our civil liberties. The 2001 Authorization to Use Military Force Act, the employment of the Espionage Act by the Obama White House against six suspected whistle-blowers and leakers, and the Homeland Battlefield Bill have crippled the work of investigative reporters in every major newsroom in the country. Government sources that once provided information to counter official narratives and lies have largely severed contact with the press. They are acutely aware that there is no longer any legal protection for those who dissent or who expose the crimes of state. The NDAA threw in a new and dangerous component that permits the government not only to silence journalists but imprison them and deny them due process because they “substantially supported” terrorist groups or “associated forces.”
Those of us who reach out to groups opposed to the U.S. in order to explain them to the American public will not be differentiated from terrorists under this law. I know how vicious the government can be when it feels challenged by the press. I covered the wars in El Salvador and Nicaragua from 1983 to 1988. Press members who reported on the massacres and atrocities committed by the Salvadoran military, as well as atrocities committed by the U.S.-backed Contra forces in Nicaragua, were repeatedly denounced by senior officials in the Reagan administration as fellow travelers and supporters of El Salvador’s Farabundo Marti National Liberation (FMLN) rebels or the leftist Sandinista government in Managua, Nicaragua.
The Reagan White House, in one example, set up an internal program to distort information and intimidate and attack those of us in the region who wrote articles that countered the official narrative. The program was called “public diplomacy.” Walter Raymond Jr., a veteran CIA propagandist, ran it. The goal of the program was to manage “perceptions” about the wars in Central America among the public. That management included aggressive efforts to destroy the careers of reporters who were not compliant by branding them as communists or communist sympathizers. If the power to lock us up indefinitely without legal representation had been in the hands of Elliott Abrams or Oliver North or Raymond, he surely would have used it.
Little has changed. On returning not long after 9/11 from a speaking engagement in Italy I was refused entry into the United States by customs officials at the Newark, N.J., airport. I was escorted to a room filled with foreign nationals. I was told to wait. A supervisor came into the room an hour later. He leaned over the shoulder of the official seated at a computer in front of me. He said to this official: “He is on a watch. Tell him he can go.” When I asked for further information I was told no one was authorized to speak to me. I was handed my passport and told to leave the airport.
Glenn Greenwald, the columnist and constitutional lawyer, has done the most detailed analysis of the NDAA bill. He has pointed out that the crucial phrases are “substantially supported” and “associated forces.” These two phrases, he writes, allow the government to expand the definition of terrorism to include groups that were not involved in the 9/11 attacks and may not have existed when those attacks took place.
It is worth reading Sections 1021 and 1022 of the bill. Section 1021 of the NDAA “includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.” Subsection B defines covered persons like this: “(b) Covered Persons—A covered person under this section is any person as follows: (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the U.S. or its coalition partners.” Section 1022, Subsection C, goes on to declare that covered persons are subject to: “(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” And Section 1022, Subsection A, Item 4, allows the president to waive the requirement of legal evidence in order to condemn a person as an enemy of the state if that is believed to be in the “national security interests of the United States.”
The law can be used to detain individuals who are not members of terrorist organizations but have provided, in the words of the bill, substantial support even to “associated forces.” But what constitutes substantial? What constitutes support? What are these “associated forces”? What is defined under this law as an act of terror? What are the specific activities of those purportedly “engaged in hostilities against the United States”? None of this is answered. And this is why, especially as acts of civil disobedience proliferate, the NDAA law is so terrifying. It can be used by the military to seize and detain citizens and deny legal recourse to anyone who defies the corporate state.
Torrance’s questions to me about incidents that occurred during my reporting were typified by this back and forth, which I recorded:
Torrance: In paragraph eight of your declaration you refer to the type of journalism we have just been discussing, which conveyed opinions, programs and ideas as being brought within the scope of Section 1021’s provision defining a covered people as one who has substantially supported or directly supported the acts and activities of such individuals or organizations and allies of associated forces. Why do you believe journalistic activity could be brought within that statute?
Hedges: Because anytime a journalist writes and reports in a way that challenges the official government narrative they come under fierce attack.
Torrance: What kind of attack do they come under?
Hedges: It is a range. First of all, the propaganda attempts to discredit the reporting. It would be an attempt to discredit the individual reporter. It would be a refusal to intercede when allied governments physically detain and expel the reporter because of reporting that both that allied government and the United States did not want. And any foreign correspondent that is any good through their whole career has endured all of this.
Torrance: Remind me, the phrase you used that you believed would trigger that was “coverage disfavorable to the United States”?
Hedges: I didn’t say that.
Torrance: Remind me of the phrase.
Hedges: I said it was coverage that challenged the official narrative.
Torrance: Have you ever been detained by the United States government?
Torrance: When and where?
Hedges: The First Gulf War.
Torrance: What were the circumstances of that?
Hedges: I was reporting outside of the pool system.
Torrance: How did that come about that you were detained?
Hedges: I was discovered by military police without an escort.
Torrance: And they took you into custody?
Torrance: For how long?
Hedges: Not a long time. They seized my press credentials and they called Dhahran, which is where the sort of central operations were, and I was told that within a specified time—and I don’t remember what that time was—I had to report to the authorities in Dhahran.
Torrance: Where is Dhahran?
Hedges: Saudi Arabia.
Torrance: And that was a U.S. military headquarters of some sort?
Hedges: Well, it was the press operations run by the U.S. Army.
Torrance: And what was the asserted basis for detaining you?
Hedges: That I had been reporting without an escort.
Torrance: And was that a violation of some law or regulation that you know of?
Afran: Note, object to form. Laws and regulations are two different things.
Hedges: Not in my view. …
Torrance: Did the people who detained you specify any law or regulation that in their view you violated?
Hedges: Let me preface that by saying that as a foreign correspondent with a valid journalistic visa, which I had, in a country like Saudi Arabia, the United States does not have the authority to detain me or tell me what I can report on. They attempted to do that, but neither I [nor] The New York Times [my employer at the time] recognized their authority.
Torrance: When you obtained that journalistic visa did you agree to any conditions on what you would do or where you would be permitted to go?
Hedges: From the Saudis?
Torrance: The visa was issued by the Saudi government?
Hedges: Of course, I need a visa from the Saudi government to get into Saudi.
Torrance: Did you agree to any such conditions?
Hedges: No. Not with the Saudis.
Torrance: Were there any other journalists of which you were aware who [were] reporting outside of the pool system?
Torrance: Were they also detained, to your knowledge?
The politeness of the exchanges, the small courtesies extended when we needed a break, the idle asides that took place during the brief recesses, masked the deadly seriousness of the proceeding. If there is no rolling back of the NDAA law we cease to be a constitutional democracy.
Totalitarian systems always begin by rewriting the law. They make legal what was once illegal. Crimes become patriotic acts. The defense of freedom and truth becomes a crime. Foreign and domestic subjugation merges into the same brutal mechanism. Citizens are colonized. And it is always done in the name of national security. We obey the new laws as we obeyed the old laws, as if there was no difference. And we spend our energy and our lives appealing to a dead system.
Franz Kafka understood the totalitarian misuse of law, the ability by the state to make law serve injustice and yet be held up as the impartial arbiter of good and evil. In his stories “The Trial” and “The Castle” Kafka presents pathetic supplicants before the law who are passed from one doorkeeper, administrator or clerk to the next in an endless and futile quest for justice. In the parable “Before the Law” the supplicant dies before even being permitted to enter the halls of justice. In Kafka’s dystopian vision, the law is the mechanism by which injustice and tyranny are perpetuated. A bureaucratic legal system uses the language of justice to defend injustice. The cowed populations in tyrannies become for Kafka so broken, desperate and passive that they are finally complicit in their own enslavement. The central character in “The Trial,” known as Josef K, offers little resistance at the end of the story when two men arrive to oversee his execution. Josef K. leads them to a quarry where he is expected to kill himself. He cannot. The men do it for him. His last words are: “Like a dog!”