All right, welcome back to the show.
I'm Scott Horton.
ScottHorton.org is the website.
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All right, our first guest on the show today is Nick Pinto.
He wrote this piece last week, NDAA suit argued in federal court.
Welcome to the show.
How are you doing?
I'm good, thanks.
How are you, Scott?
I'm real good.
Appreciate you joining us today.
So some friends of ours, Chris Hedges, Noam Chomsky, Naomi Wolf, Daniel Ellsberg, have sued, and there's more than that, I guess, have sued the federal government over the NDAA.
So I guess, first of all, give us the background on the NDAA and why this handful of anti-war radio guests.
Sure.
So the NDAA stands for the National Defense Authorization Act, and it's an enormous law that was passed in Congress last year and signed by President Obama on New Year's Eve of last year.
And contained in this enormous document is a particular section, section 1021, which basically allows for the indefinite detention, more or less without trial, of people who are affiliated with or, you know, I'll actually read you the exact language because it's important.
So the ability to detain people who substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its partners.
So this is something that sounds a lot like powers that were given the government in the original basically declaration of war that came out shortly after September 11th, but the language is somewhat more vague.
And so that's where Hedges and these other plaintiffs are getting really nervous because they say, you know, what is substantial support?
What are associated forces?
Hedges is a journalist who spends a lot of time in war zones talking to different sides of conflict.
You know, at a certain point in his testimony in this case, he sort of looked at the government list of designated terrorist groups and said, I've been in conversation with 17 of these groups.
So his concern is, you know, could this law be used to detain me indefinitely without a trial?
And, you know, wouldn't that be an infringement, both of my First Amendment rights to free speech, but also to my First Amendment rights to associate with whomever I please.
Right.
And so they actually won their first victory, right?
Or, well, you know, it's just a battle, not the war.
Yeah.
So the first thing they asked for was just a preliminary injunction of this section of the law.
And, you know, when people were gaming this out early in the court process, nobody expected them to get anywhere with this.
You know, a lot of the commentary was, you know, it's good that they're fighting this fight.
This is going to be a good sort of peg to hang media coverage of this issue on.
But no federal judge in their right mind is going to go up against an act of Congress on this.
But then to everybody's surprise, in May, the judge, Judge Catherine Forrest, granted the preliminary injunction.
So that sort of changed everyone's expectation of what was happening in this case.
And then it came back around for more hearings last week because what the plaintiffs are really asking for is a permanent injunction of this law.
And, you know, based on how those proceedings last week went, you know, the judge has a very, not aggressive, but a very interventionist style in her courtroom.
She asks a lot of questions of both sides.
And she asks some really difficult probing questions of the government.
So based on that and based on the fact that she granted the preliminary injunction, I think there's good reason to believe that she might actually grant the permanent injunction as well.
And then, of course, there are higher courts than her.
And we can bet that Obama will appeal it and keep fighting it.
Absolutely.
In fact, the government has already appealed part of this.
So, yeah, this is almost certainly going to go further up.
All right.
Now, just to recap here, they passed their it's really just their typical authorization for funding for the military, right, the military budget.
Only they added this amendment to it, right?
Like lots of bills, you know, other things get loaded in with that.
Right.
And so in this case, what it basically what it's saying is it's like the authorization to use military force.
Or I guess this supersedes the authorization to use military force passed after 9-11.
They granted Bush the power to hunt down and get whoever did the attack.
Right.
So you're saying that it's saying associated forces in such a broad way that it could include maybe Chris Hedges, former New York Times reporter, or maybe anybody Chris Hedges ever talked to or who knows what.
Well, so this is actually I mean, that that is the question that that was sort of at the center of much of the arguments last week, because the government is saying, you know, there's no difference between between the NDA and the authorization for the use of military force.
But that, you know, any differences in the language there were basically sort of assumed in in in the initial document.
So there's nothing new here.
So there's nothing to see here.
Don't worry about it.
The judge has not been persuaded of that.
She she really sees sort of different language here.
And so and more expansive language.
And so and so, yeah, that's that's what the plaintiffs are arguing that this is this is so vague that, you know, the common citizen, one of the tests here is sort of what what would your average what would your everyday citizen sort of reading this law?
Would they be able to sort of understand it with enough clarity that they would know how to avoid breaking the law?
And and the judge has been has been very skeptical of of that claim.
Well, that's good to hear.
Who appointed this judge?
Do you know?
Do you say?
Yeah, she's an Obama appointee.
So she's she's relatively recent.
So she's she's actually she's in the awkward position of, you know, having having to rule on on a law signed by the guy who appointed her.
Cool.
Well, you know, I hate to put faith in judges.
I don't.
But I like to see them fight among each other.
Did you ever see that movie Amistad where the Spanish ambassador says, well, why don't you just, you know, tell the judge what to decide?
And the president says, you know, unfortunately, I can't do that.
I mean, yeah, I appointed him, but I can't fire him.
And so how am I going to do?
Yeah.
Yeah.
That's supposed to be.
Anyway, you know, my worry is whenever the courts are cases like this, they're just going to give them red rubber stamps all the way up to Scalia.
And then where are we then?
Who's ever going to undo any of it?
The House is going to impeach a president for enforcing a law that they pass something like that.
Come on.
At that point, we're cooked.
True enough.
No.
And, you know, this judge is clearly, you know, very aware that that whatever she decides is likely to get appealed one way or another further up.
And so she's she's being very conscientious.
Her her ruling on the on the preliminary injunction ran to run to 68 pages.
And so she's she's discussing she's discussing this in detail.
She's anticipating the arguments against her on the appeal and trying to go ahead and The government lawyers are making those arguments for, you know, for her to address now.
So she's and she's she's really pushing them.
She's one of the things that's really sort of driven this this case in the direction that it's gone is that, you know, one of the government's arguments is, well, listen, you know, none of these plaintiffs have been, you know, put in indefinite military detention for what they've done yet.
So they really have no standing to, you know, to bring this claim.
They have no they have no cause to to be worried that, you know, if if we haven't done it yet, what's what's the cause for action?
And when you know this administration is prosecuting, albeit in federal court, they're not using the military to kidnap these people, but they're prosecuting whistleblowers and saying that to blow the whistle is to help the enemy.
As Marcy Wheeler was explained on the show, the government's position is that if you give it to The New York Times, well, that's even worse than giving it to the enemy because you're giving it to the enemy and everybody else.
And so that amounts to just like they're charging Bradley Manning.
That amounts to support for the enemy just being a whistleblower.
And I don't know that they're arguing that in all the cases, but in some of them.
So you can see already the slippery slope.
The Obama administration would love to race down on this issue.
But hold it right there, because I got some more questions for you.
It's Nick Pinto, everybody, from The Village Voice.
NDAA sued, argued in federal court.
We'll be right back.
All right, y'all, welcome back.
I'm Scott Horton talking with Nick Pinto from The Village Voice.
This piece is called NDAA sued, argued in federal court yesterday.
It's about Dan Ellsberg and Chris Hedges and one of the Naomi's, I forget.
I don't know.
And they're suing over the chilling effect of the signing of this NDAA.
That's the National Authorization, whatever the hell it is, Defense Authorization Act.
That's what I'm looking for.
And they're suing over the expansion of the authorization to use military force language to include anyone that the president says is an al-Qaeda guy or an associated force with them or the Taliban or any other group that they don't like.
And really, you know, it seems to me like the point really is the, and I think you argue or you talk about, you don't argue, you talk about this in there, the argument about habeas corpus and about just how little ability people have to dispute these kinds of charges.
I mean, we've seen, I think it's a super majority of the habeas corpus petitions coming out of Guantanamo.
They've been granted, but then the people are still held anyway if they happen to be Chinese or if they happen to be Yemeni or, you know, whatever technicality the Obama administration wants to argue, they just keep holding them anyway.
And this is after being held for years and years.
This is part of the government's argument that, you know, it's not as if these people don't have any form of judicial recourse.
They can file, as many of the Guantanamo detainees have, they can file habeas petitions, and the government argues that's the way you, you know, if this law makes you squirmy, that's the way you deal with it, is when you are detained, you file a habeas petition.
But the judge didn't really like that argument either.
She asked the government lawyer, Benjamin Torrance, yeah, how long does that take to file one of those petitions?
And he said, you know, I don't have those numbers in front of me.
She said it would take a long time, right?
So the point here is that the government would like the solution to this problem to be that every single person who's detained under this act has to file an individual habeas petition, which can, you know, which can take years in some of these cases.
And it's pretty clear that the judge is not really enthusiastic about that as a solution.
Well, and the threshold for one of those things is so low too.
It's, you know, hey, judge, we have reason to believe that this person may have done something or something, right?
It's not like an indictment before a grand jury, which is already as easy as a breeze.
Right, no, and, you know, the government lawyers themselves say that in most of these cases, the people who do file habeas petitions do wind up having their, having the legitimacy of their detention confirmed by courts.
Yeah, and we talked with Marjorie Cohen about one of these judges is saying now that, well, if there's an intelligence report that says a thing about a guy, that has this new thing I just invented called the presumption of regularity, which means an intelligence report must be true even if there's no evidence to back it up anywhere in the world.
Isn't that fun?
The presumption of regularity, brand new invention of a judge on one of these habeas things.
Interesting.
Yeah, well, and then the attorney general gave a speech, right, where he said, hey, you know, due process, that's a word I can reinvent.
I mean, he is working with the Clintons in a way, you know, right?
We'll just reinvent the meaning of the term due process to mean if the president has a meeting with his own chief of staff or whoever he feels like and they decide to do something to someone, that's it.
I mean, who cares what the founders understood due process to mean when they wrote the Fifth Amendment?
That doesn't have anything to do with it, right?
So due process now just means if Obama and Holder agree about something.
Yeah, this is another one of the areas that's getting thought out in this case is the question of sort of their separation of powers questions here, that if, you know, first of all, if all these decisions are being made in the executive and courts have no say in this, you know, does that constitute due process?
And then there's also this question of, you know, Congress made a law and the president signed it and it has to do with national defense.
And the government's argument is, you know, courts should be really careful before they start sticking their noses in that kind of issue, you know, that when courts start sort of trying to overturn congressional laws, particularly ones that have to do with national defense, that's, you know, that's a dicey situation.
And clearly Judge Forrest is cognizant that she needs to tread lightly here, but she's made very clear that, you know, that alone is not enough to scare her off this issue, that she's going to look at it hard.
The courts are the only ones who don't ever lie us into war, right?
I mean, I guess they do try to from time to time, right?
They blame Iran for blowing up everything that ever blew up, something like that.
But it seems like it's the presidents and the Congress who do most of the spending and the killing.
Yeah, and Judge Forrest, in making this argument in the hearing last week, wound up citing a passage in the Federalist Papers, number 78, written by Alexander Hamilton under a pseudonym, in which he says, where the will of the legislature, declared in its statute, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.
So the point there being that, you know, if Congress goes around passing laws which are unconstitutional, the courts don't need to be afraid about stepping in and upholding the more fundamental law, the Constitution.
We're talking about power never claimed by a president, at least not since Lincoln, and that was, he would have just said, a temporary emergency type of thing.
But this is the war that goes on forever here, right?
A generational conflict, they've claimed, that'll never end.
And they're claiming the power to just use the military to pretend that the American homeland is a battlefield, where they can just kidnap even American citizens and hold them prisoner.
Who cares about whether they call it national security or not?
If there's a reason for judicial review ever, this is it.
Right, and it's interesting that you mention the Civil War era in this, because that's actually one of the main cases that the plaintiffs are relying on here, is actually a Civil War era case.
Of course.
Had to do with this question of whether...
Yeah, Hitler cited Abraham Lincoln too.
Sorry, go ahead.
Right, well yeah, so first of all there's Lincoln's suspension of habeas corpus, but then there's this other law called Macmillan or McGillicuddy or something like that.
I'll get that for you in a second.
But basically it concerned the question of whether it was appropriate to try people in military tribunals in parts of the country during the Civil War in which civil courts were still operating normally.
And that ruling was extremely clear that if you're in an area where the civil judiciary is functioning normally, there's no good reason, there's no justification for relying on military courts.
And so the plaintiff's lawyers in making their argument said, listen, September 11th was a terrible day.
That was a single terrible day.
But that did not transform the nation into sort of a perpetual battlefield in which we don't have functioning courts.
We have functioning courts and we should be using them for these cases, not the much more opaque military courts.
All right, and now another thing in the Federalist Papers is number 10 by James Madison where he says, well, since we're dealing with fallen men, the best chance we have is to make ambition check ambition.
And so if all these guys hate each other and are trying to take power from each other, that's the best hope a man has of being free under this governmental system we're setting up here.
So hopefully the judges will all get mad that like, hey, we want to be the ones who sentence people to death, not you.
And then they'll have a big fight over who gets to sentence people to death.
And then maybe the judges will limit the power of the president a little bit.
I think it's a safe bet that we're going to see we're going to see more fighting on this issue as it goes forward.
I hope so.
Boy, that James Madison sure was wise for giving us this system.
Oh, no, he wasn't.
All right.
All right.
Well, OK, I got one more subject for you.
We only got another minute and a half or so.
But let me ask you this.
What about this?
Who cares?
Does anyone care?
I mean, other than Chris Hedges, I'm I'm very grateful that Chris Hedges and Dan Ellsberg can always be relied on to say something, do something in a case like this.
But what about the American people?
What about the rest of the media?
Is this even a big deal anymore?
Well, you know, I'll tell you, I was really struck in sitting in on this hearing.
I was one of I was one of two, two reporters covering this, you know, the other rights for the for the courthouse wire service.
So I was really surprised to see how little media attention this got.
That said, you know, there are this case.
This case did draw a lot of a lot of people filed amicus briefs in this case or a single amicus brief.
Well, that's good.
And it was interesting to see there was a pretty broad political spectrum of people.
I'm sorry.
We got to leave it there.
Thanks very much for your time.
I really appreciate Nick Pinto, everybody from the village voice and the suit argued in federal court.
Check it out.
Thanks again.
Thanks for having me.
