The powerful brief filed in the Chris Hedges case‏ (Vs Obama and the NDAA)

April 25, 2012 by  
Filed under Commentary

 

Pulitzer Prize winning journalist Chris Hedges is suing Barack Obama.
Hedges wants to overturn the legalized kidnapping provisions in the
2011 National Defense Authorization Act (NDAA). Hedges meets with and
writes stories about terrorists. Could this lead the U.S. military to
arrest him on American soil? Could he be held without trial? And does
he have to be arrested first, before he can have "legal standing" to
challenge this law? 

A court hearing was held to decide this issue of "standing." The Judge
asked the federal attorneys a crucial question . . .

 "Are you telling me that no US citizen can be detained under 1021 (of
the NDAA)?" 

The Judge asked this question several times in several ways. Even
though a specific denial would have ended Hedges' case, the Federal
attorneys failed to answer directly. Instead . . .

The Judge asked for briefs to argue the question of standing. We were
invited to submit one of these briefs. You helped fund it. We filed
it. Our brief uniquely argues that the NDAA's detention provisions...

 Are illegally vague
 Violate an enumerated power
 Are based on a previous unconstitutional act 

You can read the brief here (pdf):
http://www.downsizedc.org/blog-content/hedges-amicus-brief-as-filed.pdf

Here is a summary . . .

Vagueness

The kidnapping provisions contain broad, undefined terms that seem to
target people like Mr. Hedges. EXAMPLE: If Hedges publishes a
terrorists group's aims has he "substantially supported... associated
(enemy) forces?" 

The Feds intended to be ambiguous so they can kidnap and detain
without restraint. The brief you funded quotes their surprising
confessions, chapter and verse. 

But this vagueness is illegal. The State has to prove intent in a
criminal case. Yet, under NDAA, it's possible for The State to kidnap
or prosecute you for being in the wrong place at the wrong time.
<http://tenthamendmentcenter.com/2012/01/04/ndaa-open-season-for-the-police-state/>

The kidnapping provisions re-write the Constitution

The Constitution's Article III, Section 3, limits Federal powers with
regard to treason charges. It specifically . . . 

 Defines TREASON
 Sets strict evidence rules
 Limits penalties
 Stipulates that being friends with a traitor is NOT TREASON 

If the military kidnaps you and holds you without due process, treason
will be the essential reason. And yet, the NDAA kidnapping provisions
violate all the aforementioned constitutional limits on treason
charges. 

The Constitution cannot be re-written by mere legislation. The brief
you helped fund cites James Madison's views regarding Article III,
Section 3. The quotes are compelling. One attorney, seeing our work,
wrote us the following: 

The discussion of the Article III requirements for prosecuting treason
and the contrast with the NDAA's treatment is especially excellent and
compelling in discussing the historical grounding of this limitation.
I wish I had written it myself!

Extending the Un-constitutional "Authorization for Use of Military
Force (AUMF)"

After 9-11 Congress gave the Executive Branch a blank check to wage
any war it wants. This was illegal. Each war with each entity requires
a specific Congressional declaration. Congress cannot delegate this
power to the President. The brief you helped fund demonstrates this
and makes the connection to the kidnapping provisions. 

We show that the kidnapping provisions are directly tied to the
illegal AUMF. The NDAA specifically states that the new kidnapping
powers will only end when the AUMF ends. In other words . . .

The illegal kidnapping provisions are an extension of the illegal
AUMF. 

As far as we know, the brief you helped fund is the only one to make
this point. 

Your Role 

Your support plays a unique role. Our briefs . . . 

1. Oppose bad precedents 

2. Encourage Constitutional fidelity

3. Make unique arguments

4. Seek principled victory

Few briefs do numbers one, two, or three. Almost none do number four.
Most briefs are trapped in precedent-bound compromises, intended to
make things slightly less bad. That's why . . . 

* Our briefs were influential in history making decisions like the
Antoine Jones and Citizens United cases. 

* I wish we could do ten more of these per year! 

We must all thank the William J Olson firm for devising and executing
our legal strategy. 

And thanks to all who granted the funding. I hope we can count on your
continued support, at whatever level fits your budget. Specifically .
. . 

If the Court grants standing to Mr. Hedges, then we will need to do
more work on his case. That could happen soon. Get ready. 

In the meantime, you can read the first Hedges brief here (pdf):
http://www.downsizedc.org/blog-content/hedges-amicus-brief-as-filed.pdf

Jim Babka

President

Downsize DC Foundation 

P.S. As I finished this Dispatch, I learned that our brief was
prominently covered in a media report about the case
<http://www.courthousenews.com/2012/04/18/45744.htm>
. 

Not only did Downsize DC Foundation help finance the brief, we also
recruited some of the groups signing the brief. Once again, you made
that possible, so thank you.
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Comments

7 Responses to “The powerful brief filed in the Chris Hedges case‏ (Vs Obama and the NDAA)”
  1. JackieG says:

    The “standing issue” is simple.
    “Who is claiming to have been harmed?”
    There had better be a party claiming to have been harmed or the case will get thrown out the window.
    Trying to preempt some future judgement does not constitute someone being harmed.
    If someone here has already been convicted under this legislation then, the claim: “yes, I have been harmed” is a valid claim to having standing.

  2. JackieG says:

    All I got to say is these people had better know how to instruct and manage their counsel.
    They better know that when the public interest and the Plaintiffs claims collide, the Plaintiffs counsel sides with the government lawyers.
    This is where their counsel will abandon them.
    Their counsels duty to the public over rides their counsels duty to their client.

  3. JackieG says:

    Julian Assange just got pegged by the U.S. as a “covered person” for doing that interview on RT with Nasrallah.

    • JackieG says:

      These are dangerous days!!
      What not withm that claim to fame made by Dubya and all.
      You know….
      “You are either with us or your against us!”
      That is bad medicine.
      real bad.
      I personally know of a lawyer who claimed to have initiated that statement from Dubya.
      Just prior to that he filed a law suit that essentially held every elected, appointed, anointed government prick preaching from his posh office and promulgating their disease upon the land as being personally liable and responsible.
      Yep….cost him his life too.

  4. JackieG says:

    Bush and Blair got to be watching that trial in Norway….real close.
    Especially now that Brevik claims the Bush doctrine as his defence.
    This trial, once adjudicated, might set a precedent clear around the globe.

  5. JackieG says:

    Some food for thought from Karl Eisbrenner:
    Politicians shape shift from politics to “legislators” claiming their “right” to enact whatever laws they want, without any control or oversight.  Judges claim the “right” to control the courtroom like it was their property.  The first step in proper education of infants would entail refusing to engage in any discussion of “rights”.  The current philosophy, the current belief habits in Western Culture, entails deceiving people into believing the government, or some legislation, endows people with “aboriginal” or “indigenous” rights, versus the general populace.  Creating apartheid simply by using a simple word.
     
    The civil codes [Roman, Napoleonic, French] by definition begin with the absolute presupposition that “rights” can be “given” or “taken” from people.  George Bush and his advisors give us the most blatant example:  “Either you are with us, or you are against us…”, i.e. either you support us or you support the terrorists.  To insist on your “rights” = to create division = to fall into the trap.  Cleaning up our language use must be the first step toward real reform.
     
    The Law and Equity Act must become the focal point and the starting point of any submission in any Court on any issue.

  6. JackieG says:

    The Bush Doctrine is a phrase used to describe various related foreign policy principles of former United States president George W. Bush. The phrase was first used by Charles Krauthammer in June 2001…
    http://en.wikipedia.org/wiki/Bush_Doctrine
    Now….
    Dubya must be real proud of Clinton’s shop boy, Obama, in keeping up with the Bush doctrine
    Clinton, Bush and Obama.
    Three peas in the same pod.

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