Tag Archives: hedges v obama

Supreme Court Allows Stay of NDAA Injunction While Activists Turn Tide in Media Coverage of § 1021(b)(2)

[New York, NY/ Washington, DC] A lawsuit over a provision in the National Defense Authorization Act (NDAA) was back in a federal appeals court at 10am on February 6, 2013, awaiting decision on an injunction prohibiting indefinite detention of civilians without charge or trial.  Today news broke that the Supreme Court would not grant a seperate application by the plaintiffs to vacate the stay on Judge Katherine Forrest’s injunction baring the use of indefinite detention under § 1021(b)(2) of the NDAA.  You can read the supreme court transcript HERE (#12A600).

A group of academics, journalists, and activists filed the successful suit last fall over § 1021(b)(2) of the NDAA alleging that the provision suspended due process rights and threatened first amendment protections.  On September 15, 2012 the plaintiffs were awarded a permanent injunction by Judge Katherine Forrest of the Southern District of New York.  Their victory is being appealed by the Obama administration.   Both sides, as well as lawyers for Senators McCain, Ayotte, and Graham, presented oral arguments to the 2nd Circuit Court of Appeals during the February 6th proceeding.

For the reader who is unfamiliar with legalese, or the trajectory of cases like this, there are two concrete points to take away from what has transpired thus far…

The first point is that Judge Forrest’s ruling was not only historic in that she stood up to the same administration that appointed her, but also because it underscored the fact that these plaintiffs each had standing in the case. This means that it was Judge Forrest’s interpretation that each plaintiff, could be at risk for indefinite detention under § 1021(b)(2) of the NDAA, for their otherwise constitutionally protected work as journalists or activists.

The second point was revealed in the 24 hours after Judge Forrest issued her permanent injunction on September 15th, 2012, when the Obama Administration filed a request for an “emergency stay” of her ruling.  While, an appeal of the ruling was expected from the Obama Administration, no one could have expected the speed and ferocity in which they would file their request, especially with only a little over a month until election day.  This led many to suppose that this administration has either inherited detainees who were imprisoned indefinitely using powers similar to those outlined in § 1021(b)(2) or are regularly using these powers themselves, and thus would be in contempt of court if Judge Forrest’s ruling stood.

Chris Hedges highlighted this supposition in his remarks made during the press conference outside the 2/6 hearing in the Second Circuit,  “…the Obama Administration didn’t just appeal, they demanded an emergency stay,” said Hedges,  “which means they wanted the Judge to put this law back into effect, immediately, until the second circuit could hear the appeal.  Judge Forrest, to her credit, refused, and so the Obama Administration went to the Second Circuit,  and demanded an emergency stay, which the second circuit gave them.  Now the supposition can only be made …that they responded this aggressively because they are already using the law.  If they are holding American Citizens and denying them due process, as I suspect they are, probably with US-Pakastani Dual-Nationals in places like Bagram and that injunction was allowed to stand they would be in contempt of court.”

This supposition is the most frightening part of the narrative surrounding § 1021(b)(2) as it infers that, for quite some time, American authorities were using detention powers that they never had, and only now are attempting to create a retroactive mandate that would make legal their previously illegal detentions.  This revelation (if properly articulated) may be the integral component to finally forcing the mainstream media to cover this complicated and previously politically taboo issue.

On February 4th the White Papers detailing the United States’ targeted killing policies were leaked to Michael Isikoff at NBC News subsequently forcing many of the mainstream outlets to question the bloat of executive powers post 9/11.  This provided a unique opportunity to insert talking points into this discourse about similar misuse of executive and military powers under § 1021(b)(2) of the NDAA.

While the controversy over expanded powers like those granted in § 1021(b)(2) should occupy international headlines, to date we have not seen this issue widely covered.  Some can speculate that proper coverage of the NDAA was hindered by the 2012 Presidential Election, while others attribute a lack of proper coverage to conspiratorial misrepresentations of the NDAA by pundits like Alex Jones, either way the deeply troubling elements of § 1021(b)(2) of the NDAA did not generate the media coverage and public outcry it deserved, but this may be changing…

The “Flood the Court” event called for by activists on February 6th could not be ignored as it drew hundreds of people to the Second Circuit in protest of § 1021.  Similarly it saw a dozens of media outlets in attendance beyond that of the alternative outlets and citizen journalists who have tirelessly dedicated themselves to this story.  All of the press generated from the event was positive and in favor of the plaintiff’s arguments, including some major and mainstream hits in The New York Times, The Guardian, Reuters, and The New York Law Journal.  You can read a semi-complete roundup of the laundry list of related media coverage HERE.

In the battle against the NDAA there are three fights, one is the lawyers fight in the courtroom, the other is a battle of public perception to the issue, and the third is a battle in the streets to salvage what little of our democracy is left in hopes that one day we may be able to restore it. We here at Sparrow have been working around-the-clock to get these courageous plaintiffs the press coverage they deserve.  We hope that we can create a public outcry so deafening the Supreme Court will be forced to rule in favor of the plaintiffs and favorably on the issue of indefinite detention.

Join Michael Moore, Daniel Ellsberg, Chris Hedges, Attorneys, Journalists & Luminaries for a Discussion of the NDAA Lawsuit

Join Michael Moore, Daniel Ellsberg, Chris Hedges, Attorneys, Journalists & Luminaries for a Discussion of the NDAA Lawsuit

Pentagon papers whistleblower Daniel Ellsberg, Pulitzer prize-winning journalist Chris Hedges, attorney for CIA Whistleblower John Kiriakou, Jesslyn Radack, filmmaker Michael Moore, RevolutionTruth Executive Director and NDAA Case Coordinator Tangerine Bolen and journalist Alexa O’Brien, each supporters or plaintiffs in the Hedges v. Obama lawsuit challenging the controversial indefinite detention provision set forth in § 1021(b)(2) of the National Defense Authorization Act (NDAA), will address the U.S. government’s assault on civil liberties under the NDAA in a discussion at 5pm this Wednesday, February 6th at The Culture Project, 45 Bleecker St, NYC.

Seeking to create mainstream dialog about this landmark court battle the NDAA plaintiffs and supporters will present this once-in-a-lifetime panel discussion moderated by Matt Sledge of The Huffington Post and people’s champ Natasha Lennard of Salon.com.  Attendees will be offered an up-close look at this transformative year-long court battle and what is driving the Obama administration as they continue to appeal Judge Katherine Forrest’s historic September 15th, 2012 ruling in favor of the plaintiffs.

On Wednesday morning at 10am the plaintiffs are due back in Federal Appeals Court to present oral arguments against the suspension of constitutional protections under the indefinite detention provision. They will be challenged by President Barack Obama’s lawyers who will advocate for the provision, and in a bizarre twist, will also be challenged by Senators John McCain, Lindsay Graham and Kelly Ayotte who collectively have been granted a 5-minute oral argument by the 2nd Circuit Court of Appeals. This panel will serve in-part as a debrief to the media and public of what transpired in the 2nd Circuit earlier that morning.

Themes will include the profound erosion of liberties cemented by the 2012 NDAA, a pattern of abuse and intimidation on the part of the Obama DOJ toward publishers, whistleblowers and activists, and the creative efforts of the widely disparate groups that have joined the lawsuit team and its supporters from around the world.

WHAT: Panel discussion w/ Michael Moore, Chris Hedges, Tangerine Bolen, Daniel Ellsberg, Alexa O’Brien, Jesslyn Raddack, Thomas Drake, Matt Sledge, and Natasha Lennard.

WHEN: Wednesday, Feb. 6, 5-7 PM | Event will start at 5:00pm SHARP

WHERE: The Culture Project, 49 Bleecker Street, NY, NY | www.cultureproject.org

INFO: Press Invitation | Facebook RSVP

MEDIA RSVP: All media who wish to attend please send an RSVP to Andy Stepanian at andy@sparrowmedia.net as space will fill up fast. To arrange an interview with any of the panelists please email or text Andy Stepanian at andy@sparrowmedia.net or 631.291.3010.

The Culture Project will be opening its doors to journalists and panelists at 3pm for interviews*

SPONSORED BY: RevolutionTruth, Demand Progress, The Sparrow Project, New York Civil Liberties Union Young Professionals, Culture Project’s ‘Blueprint for Accountability’ Series

Lawsuit Plaintiffs & Hundreds of Activists will ‘Flood’ 2nd Circuit Court of Appeals in Fight Against NDAA Indefinite Detention

Lawsuit Plaintiffs & Hundreds of Activists will ‘Flood’ 2nd Circuit Court of Appeals in Fight Against NDAA Indefinite Detention

[New York, NY] A lawsuit over a provision in the National Defense Authorization Act (NDAA) will be back in federal court at 10am on February 6, 2013, awaiting decision on an injunction prohibiting indefinite detention of civilians without charge or trial. A group of academics, journalists, and activists filed suit last year over § 1021(b)(2) of the NDAA alleging that the provision suspended due process rights and threatened first amendment protections.

flood the court MEME

In a landmark ruling last September the plaintiffs —former New York Times war correspondent Chris Hedges, RevolutionTruth founder Jennifer “Tangerine” Bolen, Pentagon Papers whistleblower Daniel Ellsberg, linguist and author Noam Chomsky, Icelandic Parliamentarian Brigitta Jonsdottir, US Day of Rage founder Alexa O’Brien, and Occupy London activist Kai Wargalla— were awarded a permanent, worldwide injunction against the provision by Judge Katherine Forrest of the Southern District of NY (2nd Circuit).  In her ruling Judge Forrest, an Obama appointee, challenged the Justice Department attorneys for refusing to provide assurances that journalists and activists would not be indefinitely detained under the provision for exercising first amendment rights:

“Not once in any of its submissions in this action or at either the March or August hearings has the Government said, ‘First Amendment activities are not covered and could never be encompassed by § 1021(b)(2). This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention, and have as their sole remedy a habeas petition…That scenario dispenses with a number of guaranteed rights.”

Despite including a signing statement expressing deep reservations over the “indefinite detention provision” and promising not to use such powers against American citizens, President Obama immediately appealed Judge Forrest’s ruling, and sought an emergency stay on the injunction, claiming “irreparable harm” would be incurred by the US if the government lacked the ability to indefinitely detain civilians under section 1021.

“This is the final battle between the restoration of due process along with our most cherished civil liberties and the imposition of a military state,” said Chris Hedges, “if we lose this battle, will be vulnerable to being seized on American soil by the military, stripped of due process and held in indefinate detention in military facilities, including our off-shore penal colonies. It is up to federal judges now to pull us back form the brink.  Our legal challenge to section 1021(b)(2) of the NDAA is one of the defining moments of our era.”

The suit has been joined by over two dozen organizations and individuals who have filed Amicus Curiae briefs in support of the plaintiff’s claims that § 1021(b)(2) of the NDAA is over-broad and facially unconstitutional.  One such supporting brief, filed by Karen and Ken Korematsu (Children of Fred Korematsu & each Amici in this case), draws a chilling comparison between indefinite detention under the auspices of the war on terror and the internment of Japanese Americans during World War II:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”

In opposition to the plaintiffs Senators John McCainLindsey Graham and Kelly Ayotte have utilized the Amicus process to file a brief in support of the government’s use of § 1021(b)(2) of the NDAA and have taken the unusual step of filing a motion requesting 10 minutes of oral argument time in the February 6th, 2012 proceedings, claiming the need for the Senate body to be represented in court when it comes to indefinite detention.  Plaintiff attorneys are awaiting word on whether the 2nd Circuit will grant this motion.

UPDATE: On Thursday, January 31st, 2012 attorneys for the plaintiffs received notice that McCain, Graham and Ayotte were awarded a 5 minute oral argument at the proceeding. To compensate for this the 2nd circuit also added 5 minutes onto the plaintiff argument (allowing for 20 minutes total).

A bipartisan coalition of groups backing this lawsuit, including Demand Progress, RevolutionTruth, the Bill of Rights Defense Committee and the Tenth Amendment Center, are calling on members and supporters to join the plaintiffs in court. Activists promoting a call to “Flood the Courthouse” have already received over 300 RSVP’s from activists and supporters of the plaintiffs

Plaintiff and lawsuit coordinator Tangerine Bolen will lead a press conference upon adjournment of the court session. Speakers will include Tangerine Bolen, Daniel Ellsberg, Chris Hedges, Bruce Afran, Alexa O’Brien, Cornel West, Thomas Drake, Jesselyn Radack and a number of others working to prevent indefinite detention and restore civil liberties.

To obtain video of the press conference or to arrange an interview with any of the plaintiffs or counsel please contact Andy Stepanian at andy@sparrowmedia.net or 631.291.3010.


WHAT: Oral Arguments in NDAA Court Ruling & Activist Solidarity Action
WHERE: 2nd Circuit Court of Appeals, Thurgood Marshall Courthouse
(Room 1505, 15th floor), 40 Foley Square, NYC
WHEN: 10am Wednesday, February 6, 2013
INFO: Stop NDAA Lawsuit | Facebook RSVP


WHAT: Press Conference with Plaintiffs, Counsel, and Supporters
(Daniel Ellsberg, Chris Hedges, Bruce Afran, Tangerine Bolen, Alexa O’Brien, Cornel West)
WHERE: Foley Square, NYC (directly across from courthouse steps)
WHEN: After Court Adjourns (Approximately 11:30am Wednesday, February 6, 2013)
INFO: Stop NDAA Lawsuit | Facebook RSVP

• Suggested reading: Echoes of Korematsu by Noor Elashi

Activists, Journalists Celebrate as Judge Issues Permanent Injunction Against NDAA.

Activists, Journalists Celebrate as Judge Issues Permanent Injunction Against NDAA.

[New York, NY] Judge Katherine Forrest ruled yesterday that the so-called “indefinite detention” provision (subsection 1021) of the fiscal 2012 National Defense Authorization Act (NDAA) violates the Constitution and issued a permanent injunction against its application.

The law would have allowed the military to indefinitely detain civilians without charge or trial if they are accused of certain crimes, or even accused of associations with certain listed forces.  Judge Forrest in her ruling reaffirmed that to criminalize one’s associative conduct in this manner could chill the first amendment protections of journalists who may want to conduct interviews with individuals listed by the government as extremists.

The lead plaintiff in this lawsuit is former New York Times war correspondent Chris Hedges.  He is joined by six others, including Noam Chomsky and Pentagon Papers leaker Daniel Ellsberg.

“This is a tremendous victory for the rule of law and the right of all U.S. citizens, regardless of their ideological persuasions, to be afforded due process.  It restores the two century ban on the use of the military by the state for domestic policing.  Judge Katherine Forrest, in an era when federal judges often seem to issue rulings about why they cannot implement the law, has with this injunction restored one of our most cherished Constitutional rights.  The Obama administration will no doubt appeal this decision.  We will continue to fight back.  It is not over yet.  But I, and I hope all Americans, can sleep a little more easily tonight,” said Chris Hedges this morning when asked about Judge Forrest’s ruling.

Attorney for the plaintiffs, Carl J. Mayer had a bold message to share with the President regarding any possible plans to appeal the administration may have, “President, and former Constitutional Law Professor Obama, knows that the so-called Homeland Battlefield Act or NDAA is unconstitutional and we are calling on him and his Attorney General to drop any appeal in this case and honor the opinion of the President’s own appointee: Judge Katherine Forrest.  September 12 was an important day in American history; it is rare for the Court’s to declare an Act of Congress unconstitutional.  But as the Judge noted, ‘the stakes could not be higher’ and fortunately the citizens, our democracy and the Constitution remain triumphant.”

Plaintiff and Iceland Parlamentarian Birgitta Jonsdottir shared a unique perspective that, “With Judge Forrest ruling, the USA halted, even if only for a brief moment the alarming erosion of civil liberties since 911. I feel proud to be part of such a historical ruling in favor of the basic freedoms that used to be the legacy of the USA. This case is a perfect example some individuals make a difference in our world.”

“Forrest’s ruling understands that the most fundamental crisis of Government is a crisis of trust in the institutions of Government (checks & balances).  The Executive spins its fatal sophistry, while disloyal and incompetent interests usurped our nation’s civil and military power, spawning a host of real threats to liberty and to national security.  They passing laws, like the NDAA, which prey on the resources and spirits of citizens. Thanks to Forrest, we persevere…” exclaimed activist, journalist, and plaintiff Alexa O’Brien.

According to plaintiff and activist Tangerine Bolen, “The steady assault on the US Constitution was dramatically slowed yesterday, as Judge Katherine Forrest ruled in our favor and against a dangerous and unconstitutional provision of the NDAA. After eleven years of watching our civil liberties erode we have reason to celebrate this week.”

Plaintiffs fear that Obama will continue to defend the law, by choosing to appeal the ruling to a higher court.

Activist group Demand Progress — whose million-plus members have helped support the lawsuit — urged Americans to demand that Obama not appeal the ruling, and that senators oppose indefinite detention when it comes up for a vote this fall.

You can sign their petition and email your senators at: http://act.demandprogress.org/letter/ndaa_lawsuit_win/

Demand Progress executive director David Segal said, “It’s wonderful to see judge Forrest — a recent Obama appointee — buck the administration and stand up for the Constitution.  Our members urge Obama to stop defending this obscene abuse of executive authority, and ask our senators to oppose indefinite detention when they vote on the NDAA later this fall.”

You can read Judge Forrest’s entire statement HERE

UPDATE: (2pm EST 9/13/2012) the staff of U.S. Attorney Preet Bharara made an appearance at the Federal Courthouses at 500 Pearl Street in New York City to file a notice of appeal on behalf of the Obama Administration.  The notice should read as a clear indication of the administrations intentions to appeal Judge Forrest’s decision to a higher court.


Federal Judge Hears Arguments For Permanent Injunction Against NDAA Indefinite Detention

Federal Judge Hears Arguments For Permanent Injunction Against NDAA Indefinite Detention

[NEW YORK, NY] Today at 2pm at 500 Pearl St. in Manhattan Judge Katherine Forrest will hear arguments by plaintiffs and the government relative to an effort to block the government from using new “indefinite detention” powers.

The lawsuit, brought by journalist Chris Hedges, Professor Noam Chomsky, activist Daniel Ellsberg (leaker of the Pentagon Papers) and others argues that the government’s assertion of the right to detain civilians indefinitely and without charge or trial violates the Constitution. The provision in question was passed in late 2011 as part of the 2012 National Defense Authorization Act (NDAA).

Judge Forrest —a recent Obama appointee— has concurred with the plaintiffs and earlier this year issued a temporary restraining order against the government’s use of the indefinite detention powers. Today she will hear arguments for and against issuing a permanent order. The hearing is expected to last 3-4 hours. Attorneys for the plaintiffs, and lead plaintiff Chris Hedges will speak to the press afterwards.

For more information, and to sign on as a supporter of the lawsuit, Internet users may visit www.StopNDAA.org

Civil liberties organizations Demand Progress and Revolution Truth have provided grassroots and monetary support for the lawsuit. According to Demand Progress executive director David Segal, “We are hopeful that Judge Forrest will make clear that the government’s assertion of indefinite detention powers is an obscene violation of basic tenets of our Constitution; she deserves the acclaim of all Americans for protecting our rights to speech, association, and due process by placing a rare check on executive power run amok.”