MEDIA ROOTS — Breaking the Set takes an in-depth look at the little-known landmark lawsuit against the National Defense Authorization Act’s (NDAA) indefinite detention clause. While in New York City covering the latest hearing of plaintiffs’ statements, Abby Martin and Manuel Rapalo take a look at how many people actually know about the NDAA. The episode features interviews with the journalist who spearheaded the lawsuit, Tangerine Bolen, whistleblower, Jesselyn Radack, and lead plaintiff in the NDAA case Hedges v Obama, Chris Hedges, about the historical precedent the lawsuit sets and why every American should care.
Exclusive NDAA Coverage: Call to Action with Chris Hedges
“Our Constitutional rights are being replaced by a systematic rewiring of who truly holds the power in this country.
“I’m sorry, but the Constitution begins with, ‘We the People…’ And our freedom depends on our willingness to protect it. And when it comes to speaking truth to power, I think it’s time we remind the power structure who’s really in charge.” —Abby Martin (MediaRoots.org, Founder; Breaking the Set, Founder; USA, Citizen)
Abby Martin: “Salaam, guys! Yesterday, I had the amazing opportunity to take Breaking the Set on the road to New York City. And we set up shop right outside of the Thurgood Marshall Courthouse downtown where a groundbreaking trial is taking place. In what might be one of the most historic civil liberties cases of our generation, a group of activists and journalists are seeking justice in a lawsuit against the federal government. It’s called Hedges v. Obama, a lawsuit, which was filed last year over Section 1021(b) of the National Defense Authorization Act, one which authorises the military to indefinitely detain American citizens without due process.
“While the lawsuit’s main plaintiff is journalist Chris Hedges, the case is also being fought by Revolution Truth Founder, Tangerine Bolen; Pentagon Papers whistleblower, Daniel Ellsberg; author Noam Chomsky, and many others. Yesterday, I heard the second round of oral arguments against the White House’s appeal to a decree made by a judge, who agreed with the plaintiffs on the NDAA’s unconstitutionality.
“So, today, you’ll see my exclusive interviews with the plaintiffs and more. So, stay tuned for a very important Breaking the Set.”
Abby Martin (c. 2:13): “The indefinite detention of American citizens is a very serious and disturbing notion. So, surely, Americans have heard about one of the greatest threats facing their First and Fifth Amendment rights.
“Well, Breaking the Set producer Manuel Rapalo hit the streets of New York to find out just how much people really know about the NDAA. Take a look.”
Manuel Rapalo (c. 2:34): “What is the NDAA? It sounds innocuous enough. I mean, it’s a budget act. But it’s a budget with a very important clause, one that has tremendous implications for the civil liberties of Americans.
“Outside the Second Court of Appeals in New York, demonstrators arrived to lend their support to plaintiffs in a case against the NDAA, plaintiffs, that, ultimately, represent the frustrations of countless civil liberties activists. And their message is clear: Any military detention of American citizens without due process is, both, illegal and unconstitutional.
(c. 3:13) “So, I’m outside the Thurgood Marshall Courthouse where supporters for the plaintiffs against the NDAA case are right there behind me. But we’re gonna ask some passersby to see how many people actually know what the NDAA is.
“Have you ever heard of the National Defense Authorization Act?”
Male New York City Pedestrian: “No.”
Male New York City Pedestrian #2: “Negative.”
Male New York City Pedestrian #3: “I have not.”
Male New York City Pedestrian, #4: “No.”
Male New York City Pedestrian, #5: “Nope.”
Female New York City Pedestrian: “No, I have not.”
Male New York City Pedestrian, #6: “I haven’t heard about that. But that sounds serious.”
Female New York City Pedestrian, #2: “No, I never heard of it.”
Manuel Rapalo (c. 3:39): “Have you ever heard of the National Defense Authorization Act?”
Male New York City Pedestrian, #7: “No.”
Manuel Rapalo: “Or the NDAA?”
Male New York City Pedestrian, #7: “No.”
Manuel Rapalo: “It’s a law, that gives the government the right to indefinitely detain US citizens without due process, without a trial, if they are suspected of being associated with terrorists. Have you heard about that?”
Female New York City Pedestrian, #3: “Yes. That’s ridiculous.”
Male New York City Pedestrian, #3: “I usually follow the news. I haven’t heard anything about this. So, I was wondering what it was when I was looking at it.” [Gesturing to the crowd nearby on Thurgood Marshall Courthouse steps.]
Male New York City Pedestrian, #8: “I don’t feel it’s right. You know what I mean? Because they’re just locking anybody up now. You know w’ I mean? For anything. And I don’t think it’s fair.”
Male New York City Pedestrian, #7 (c. 4:06): “That’s not right, definitely not right. They should be given a right to an attorney to present their case.”
Male New York City Pedestrian, #9: “I think it’s terrible. It’s like a type of legislation, which enabled, back in the ‘30s with Nazis, to go, like, you know, down hill all the way with their government. And that’s what’s happening here.”
Manuel Rapalo: “Well, that sounds terrifying. Thank you so much for your time.”
Manuel Rapalo: “But it’s the vague language in a portion of the NDAA, section 1021(b), that has critics riled up. Phrases like ‘substantially supported’ and ‘associated forces,’ set a dangerous precedent for how the word terrorist can be interpreted. And while [opposition to,] and awareness of, the NDAA’s indefinite detention clause is growing, the issue has yet to be picked up by the corporate media networks.
“Journalists and activists agree over the larger implications this has over First and Fifth Amendment rights, making this case one of the most important civil liberties lawsuits since 9/11. And that’s a point, that deserves more visibility.
“Manuel Rapalo, reporting from the Thurgood Marshall Court House in New York, RT.”
Abby Martin (c. 5:07): “After attending the second round of oral arguments in what’s shaping up to be a landmark case against indefinite detention, I had an opportunity to meet with a powerhouse of plaintiffs, lawyers, and activists, who are directly working on a case against the National Defense Authorization Act. I spoke with one of the plaintiffs who spearheaded the lawsuit, Tangerine Bolen. And I asked her why she felt personally compelled to take it on.”
Tangerine Bolen: “Well, I had been defending WikiLeaks. I have an international team; I have an organisation called Revolution Truth. And we started a campaign for them. We got 12,000 signatures and a letter to the government and dealt directly, and quite extensively, with WikiLeaks stuff. A couple of my staff members had as well. Some had less than I had.
“And, you know, I found myself in an arena, hearing things and just being close to things, that the government is very worried about. And the government has engaged in a secret grand jury investigation against WikiLeaks. So, I don’t even have the right to know whether I’m being investigated until I get subpoenaed.
(c. 6:12) “And I just felt like—between that and the fact that we were about to host panel discussions with members of Hamas or, you know, Middle Eastern revolutionaries—I was inadvertently providing a platform, that under the language of 1021 would make me, possibly, an ‘associated force.’ So, I was terrified. And I was worried on behalf of my team as well.”
Abby Martin (c. 6:34): “And rightly so. But I was also curious about how the other plaintiffs decided to come on board and tackle such a complex and daunting lawsuit against the federal government. Here’s what she had to say.”
Tangerine Bolen: “So, essentially, Chris Hedges filed suit with our attorneys. And I approached Chris Hedges because I was worried. And I strategized over this. I really wanted a judge to see the forest for the trees. And, sorry, no pun intended on Katherine Forrest. But that is the case. This was very strategic.
“I picked people who, together, would all tell a piece of the story: Kai Wargalla has, you know, she started Occupy London and Occupy London was designated a ‘terrorist group,’ officially; Alexa O’Brien, [of US Day of Rage, one of the original groups, which organised Occupy Wall Street], being targeted by the cybersecurity firm, which is contracted with the DOD, trying to link her organisation to Muslim extremists; myself, with my work with WikiLeaks and this other stuff; Dan Ellsberg, obviously, our whistleblower and who had dealt very closely with Bradley Manning.
(c. 7:31) “Together, we kind of make up this evolving tribe of people, who were civil liberties advocates, were independent journalists, who were hacktivists, and computer prodigies. You know, Aaron Swartz was part of our case.
“And, together, we are all standing witness to what the US government has done and become since 9/11. And because we’re standing witness, and we’re doing so diligently and we refuse to back down, we’re being harassed and intimidated. And you see this prosecutorial overreach and spin. And we’re all trying to stop that.”
Abby Martin (c. 8:04): “The fact than an annual federal budget law can include language, that would limit, both, the journalist’s right to freely uncover information and remove American’s right to due process in unheard of. So, when outrage against the law started to grow, the question became how to challenge it.
“Plaintiffs had their first success in the case after an injunction was filed against indefinite detention by district judge Katherine Forrest, who ruled that the vague language in the bill did not meet the requirements of due process.
“While there were hundreds present, protesting, at the court house, I was truly saddened at the lack of media groups attending what could very well be the most important civil liberties lawsuit in over a decade. Other than a few reporters from one or two alternative media organisations, we were the only media outlet there!
“I asked Tangerine [Bolen] why she thinks there’s a complete media blackout about the issue.”
Tangerine Bolen (c. 8:59): “I think, unfortunately, the [corporate] mainstream media hasn’t been paying attention to the most critical news. And that’s obviously to the great detriment of this nation because—”
Manuel Rapalo: “Deliberately?”
Tangerine Bolen (c. 8:59): “Um, I think it’s complex. I think our systems are really compromised right now. Our media’s sanitised and corporatized. And I’ve, personally, talked to a lot of reporters, who work for mainstream media, who feel just as frustrated as we do. So, I don’t wanna put the onus entirely on them, but partially. You know, the New York Times should have been here today. I mean, everyone should have been here today. This is a landmark case.”
Abby Martin (in-studio): “Indeed, this case does have all the potential to set a new legal precedent. We’re talking about our most fundamental rights as human beings, the right to free speech, our right to a fair trial. And it’s all being threatened by a few lines of vague language, that’s entirely up to interpretation, interpretation, that could make the difference between being a journalist and being labelled a dangerous terrorist, that could be indefinitely detained in a military prison without charge or trial.
“I sat down with former whistleblower Jesselyn Radack and asked her about how far this interpretation can really go.”
Abby Martin (c. 10:07): “And I heard the lawyer talking about that it doesn’t affect independent journalists is what they were trying to argue. I mean is there any sort of definition of what the barometer is of what is independent and not.”
Jesselyn Radack: “That’s an excellent question. As soon as they said that, I’m like, ‘Hmm, would Julian Assange be protected?’ And then, when the judges kind of hammered down on that, they said an independent journalist would be one approved by the armed forces. So, that rules out bloggers. That rules out even members of the mainstream media, who have not gotten government approval, which, again, goes right into the unholy relationship between a lot of the mainstream media and the government.
“So, it’s very interesting, the question of independent journalism, especially because there has been such a big deal made about whether or not bloggers are ‘really journalists’ and whether or not an outlet like WikiLeaks is really a ‘journalistic outlet.’ So, for them to make that argument—‘Oh, don’t worry, we’re not going after independent journalists or activists’—it was really slick and dangerous because of the way they defined it.”
Abby Martin (c. 11:21): “It’s also very slick and dangerous, the language of terrorism, aiding and abetting terrorism. I mean, very broad language here, very dangerous. And we’ve talked about this before, about the chilling effect. Obviously, you, representing multiple whistleblowers, you being a whistleblower, yourself, I mean, what are the greater implications of this case if we do not shed light and prevent this from moving forward, Jesselyn?”
Jesselyn Radack: “I think the greater implications are; I mean, I really thought the worst possible thing, that could happen now to a whistleblower is that they could go to jail—after a trial and a judicial process. The worst case scenario now is that they could be scooped up and detained indefinitely without charge, counsel, judicial review, or their families even knowing where they are. They could be detained by our military, again, without charge, counsel, or judicial review, indefinitely, as long as the government wanted to. So, it really wouldn’t have an even more chilling effect on what is already a freezing cold environment for people to come forward and speak truth to power.”
Abby Martin (in-studio) (c. 12:30): “Wow, what a daunting metaphor for what we’re up against in this country. Our Constitutional rights are being replaced by a systematic rewiring of who truly holds the power in this country.
“I’m sorry, but the Constitution begins with, ‘We the People…’ And we can’t forget our freedom depends on our willingness to protect it. And when it comes to speaking truth to power, I think it’s time we remind the power structure who’s really in charge.”
(c. 12:59) “Well, if you like what you see so far, go to our Facebook page, at facebook.com/breakingtheset and be sure to do what thousands have already done and give us a Like. We’ll be updating our status daily with links to past segments, as well as reaching out to you for ideas of what you want to see covered on Breaking the Set. You can also check out behind the scenes photos we take at our studios or when Breaking the Set is recorded on the road, like this one we took yesterday. So, head to our Facebook page and check out all of that and more.
“Now, I’ll let you take a break from my preaching. But stay tuned to hear from the main plaintiff behind the case Hedges v. Obama, Mr. Chris Hedges himself next.”
(c. 15:21) “Yesterday, I had the honour of sitting down with the main plaintiff behind the NDAA case, Hedges v. Obama, Mr. Chris Hedges, himself. He’s a former NY Times War Correspondent and Pulitzer Prize Winner, who spent nearly two decades reporting in Central America, the Middle East, Africa, and the Balkans. Despite his prolific résumé of outstanding journalism, Hedges is precisely the kind of person that could fall subject to the NDAA’s indefinite detention clause.
“You see, Chris represents one of many journalists, who often have to embed themselves with groups, that the government has deemed ‘terrorists’ to get the full story.
“So, take a look at my exclusive interview with journalist Chris Hedges, where he talks about the lawsuit and why every American should care about it.”
Abby Martin (c. 16:06): “Chris, thanks so much for sitting down with me. Why is the government holding this line, that the NDAA is no different than the AUMF, when it’s obviously much more broad in its language?”
Chris Hedges: “Well, that was the central argument, that the government lawyers made in the Southern District Court of New York, that this was, essentially, not extending the powers of the government, but reinforcing existing powers.
“Now, I’ve read the AUMF several times. It’s very clear that this is a vast extension of government authority, allowing government to detain US citizens or use the military to detain US citizens, strip them of due process, hold them in military facilities indefinitely. That is just not in the AUMF.
“And I think that we’re seeing it. We just saw the release of a memo, a 16-page white paper on drone attacks, which looks like it was written by a first-year law student. I mean, it, you know, I can’t stand John Yoo, but at least he could write a coherent legal brief for the Bush Administration justifying torture. I mean, it’s wrong, of course, but the amateurishness of this, you know, it’s a completely amateur effort.
“And I think what we’re seeing in this case, in this memo, is an attempt by the Obama Administration to justify activities, that they’ve already carried out, which include the assassination of American citizens, the Yemeni cleric Anwar al-Awlaki, his 16-year-old son two weeks later, who was not on anybody’s terrorism list.
“And I think there’s strong, I have a strong suspicion, and the lawyers have a strong suspicion, they are already using Section 1021 of the NDAA because when Judge Forrest issued her ruling in September, the government attorneys, the day of the ruling, went to Judge Forrest and asked for a temporary stay, meaning, put this law back on the books until it is heard in the Second Circuit, or the appellate court.
“Now, Judge Forrest refused.
“They then demanded an emergency hearing. This was a Friday at 9am, the next Monday morning at the Second Circuit, which they got. And they asked the judges on the Second Circuit, in the name of national security, to put this law back into effect, to override Judge Forrest’s injunction.
“Now, the Second Circuit agreed.
“We always knew the Obama Administration would appeal. That was not an issue. They lost. We did not expect them to respond so aggressively. And I think that it’s fair to conclude, they responded with that kind of aggressivity because they were already using the law, probably against US-Pakistani dual nationals in places like Bagram.
“If Judge Forrest’s injunction was allowed to stand (i.e., the law was invalid), and they were holding American citizens and denying them due process, then, of course, they would be in contempt of court.
“So, this is a steady march forward, in terms of stripping away our most basic civil liberties. I would say the NDAA, this case, is the last in line of defence between what’s left of our anaemic democracy and our transformation into a military state.”
Abby Martin (c. 19:36): “Speaking of military states, I mean, I thought Posse Comitatus prevented the military from doing this kind of thing.”
Chris Hedges: “Well, this is the law they’re overturning.”
Abby Martin: “Wow.”
Chris Hedges: “That’s it. It was put into effect at the end of the Civil War. And this is the law they’re overturning.”
Abby Martin: “Chris, how far are you willing to take this?”
Chris Hedges (c. 19:52): “Well, we’re gonna take it, look, if the appellate court overturns Judge Forrest’s ruling, we will appeal it to the Supreme Court, which is the next level. The Supreme Court could decide not to take the case, in which case, unfortunately, the law stands. If the appellate court upholds Judge Forrest’s ruling, given the response of the government so far, I think it’s very safe to say that this will be within the Supreme Court within a matter of weeks.”
Abby Martin (c. 20:20): “And, just taking it in the broader picture here, you know, Obama closing the office that’s working to shut down Guantánamo Bay within days of his re-election, why don’t we care more about, just, the indefinite detention of human beings, in general?”
Chris Hedges: “Well, what happens in these kinds of scenarios is that you create the legal mechanism to carry out these activities, while assuring the citizenry that they won’t be affected. And then, once you have the legal mechanism to engage in this kind of behaviour, it’s too late.
“And that’s, I mean, history has just borne that out. That’s how it works.
“I think the other thing is we have, especially, a commercial, electronic media, that, really, doesn’t do journalism anymore. It is, either, obsessed with celebrity gossip and trivia and info-entertainment or, if it purports to do news (the way FOX News does or MSNBC), it’s so partisan in its coverage, that it won’t harm the power interests, that it serves.
“So, the NDAA case was never mentioned on MSNBC because the primary purpose of MSNBC was to re-elect Barack Obama. And the NDAA case would not make Obama look good. It wasn’t mentioned on FOX because this section of the NDAA has bipartisan support.
“And it’s interesting—I worked for The New York Times for 15 years—that the only established news organisation, that responsibly covered the case was The New York Times. And when Judge Forrest issued a ruling, The New York Times ran an editorial supporting her decision because The Times still—I mean, it’s an elitist organisation; I have my critiques of The Times—but, nevertheless, it still understands what is news and what is not.
“But that, for me, was kind of a frightening moment when I realised how deteriorated our systems of information have become.”
Abby Martin (c. 20:20): “Absolutely. Yeah, and I love how people say there’s no bipartisan support. Well, I look at things, like the NDAA and the erosion of civil liberties, it seems like it’s all uniform across the board.
“But, speaking historically, you mentioned the way it’s kind of been accepting these illegalities, in terms of Gitmo. But looking at when civil liberties have been repealed in the historical narrative of America, in the short, brief history of our nation, Lincoln, FDR, when he authorised the brief internment of Japanese people, all these things were very brief periods and they were reinstated. It seems like, to have the NDAA ten-plus years after an event where there’s really no threat, I mean, and now it’s coupled with the surveillance state profiting off of the erosion of our civil liberties.”
Chris Hedges: “Right.”
Abby Martin: “We’re way too far gone here.”
Chris Hedges (c. 23:11): “Right. We’re talking about periods of emergency, in which our basic civil liberties were taken from us during wartime, which is not defensible. What we’re talking about here is something else. We’re talking about a long, contiguous process, over a decade. This isn’t the first assault against our civil liberties. The corporate state has used 9/11 in the same way the Nazi Party used the Reichstag Fire, as a justification to strip away all of our most important Constitutional rights. Whether that is the right or the need of a court to issue a warrant before surveillance, whether that is the right of a whistleblower to expose government crimes, including torture—and let’s, we just saw the CIA official, Kiriakou, go to prison for 30 months. What he, purportedly, leaked to The New York Times, were war crimes.
“And the interpretation of the Authorization to Use Military Force Act [AUMF] is giving the government the right—this is what this white paper, that was leaked to NBC News was about—giving the right [to] the Executive Branch to draw up kill lists, even if US citizens are on those kill lists.
“So, we’re talking about a process, not a moment. And the examples, that you’ve cited, Lincoln’s suspending of habeas corpus during the Civil War and after FDR’s internment of 100,000 Japanese Americans were moments. This is something far more dire, far more serious and far more frightening.”
Abby Martin (c. 24:58): “You mentioned, in the hearing, about how this could affect journalists abroad who—”
Chris Hedges: “Right.”
Abby Martin: “—are embedded, trying to get stories, talk about how this can be a chilling effect for people who are trying to get truths and expose stories abroad.”
Chris Hedges: “Right. Well, I—Bruce and Carl, the lawyers, approached me to be the plaintiff because, as a foreign correspondent for 20 years, I spent time (we counted them up), either, 17 individuals or groups, that are on the State Department Terrorism List, including Al Qaeda. And there’s no exemption in this provision for journalists. So, I have literally sat in vehicles with Al Qaeda members who are now spending the rest of their lives in prison.
“Number one, of course, that means, given the current state of drone attacks, I could’ve been incinerated. Number two, if I am printing, as I was, articles, that present the viewpoint of groups, that are deeply hostile to the United States, have I substantially supported—this is the language of 1021—Al Qaeda, the Taliban, or what they call associated forces? That’s completely open to interpretation.
“And people who have a kind of hostility to the role of a free press, which is to present viewpoints, that are inimical to our own, certainly would not shrink from branding me as a fifth columnist or a closet supporter of Al Qaeda. And I speak from experience. I covered the Civil War in Nicaragua and El Salvador for five years, during the Reagan Administration. And, because we were travelling frequently, with the FMLN rebels in El Salvador or the Sandinistas in the battle against the Contras in Nicaragua, we had numerous officials denouncing us, as fifth columnists, as supporters of terrorists. So, I’ve already heard the rhetoric. I already know how it goes down.
“But this, essentially, goes beyond rhetoric and empowers the state to, not only, brand you, linguistically, a terrorist, but treat you, legally, as a terrorist.”
Abby Martin (concluding remarks, back in-studio): “This is an issue, that we felt important enough to cover and dedicate the entire show to. Look, there’s a fork in the road right now. And there’s a choice we all have to make. We can, either, relinquish our rights or we can stand for them. But the time to act is now.
“I also wanna say thank you to many great people for making today’s show happen: The Sparrow Project, Andy Stepanian, the plaintiffs and attorneys in the case, Chris Hedges, Tangerine Bolen, Alexa O’Brien, and, of course, Jesselyn Radack, and Thomas Drake, as well as all the brave, heroic activists and journalists out there who are not afraid to speak truth to power. So, let’s keep doing it.”
Transcript by Felipe Messina for Media Roots and Breaking the Set.