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Please applaud this brave judge. We have too few of them in America today.

18 May 2012

Summary:  American history can be seen as a series of tests to our judges.  From Dred Scott to Citizens United their responses to these challenges has shaped America.  The expansion of government power far beyond the limits of the constitution provides another test of our judges.  So far most have failed.  Today we look at a star:  Katherine Forrest (a too-rare bit of good news on the FM website).

Judge Katherine Forrest

Glenn Greenwald describes this important Court ruling (Salon, 16 May 2012; deserves to be read in full)

A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments:

  1. because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute;
  2. even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and
  3. the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ’s first argument — lack of standing — the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities.

… Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention.

About that vagueness.  To obey the law citizens must know what the law forbids.  To enforce the law, officials must know.  Let’s look at this brave Judge’s strong questioning of government officials (something few Judges will do these days, preferring craven obsequiousness).  It’s like something from a play by Kafka.

The Court then asked: What does ‘directly supported’ mean?

Government: … Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, ‘substantial support’ that I have not thought through exactly and we have not come to a position on what ‘direct support’ and what that means.

… The Court then asked: “Assume you were just an American citizen and you’re reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of §1021, and you read the phrase ‘directly supported’. What does that mean to you?”

Government: Again it has to be taken in the context of armed conflict informed by the laws of war.

Court: That’s fine. Tell me what that means?

The Government then returned to the Laws of War and finally stated, “I cannot offer a specific example. I don’t have a specific example.”

Perhaps these violations are like pornography:  government officials know it when they see it.  This would be funny except for the people rotting in our prisons around the world, imprisoned on the basis of these increasingly un-American law. Or imprisoned for little or no reason, except that the government will not admit it was wrong (for an example see “Abu Zubaydah, the man justice has forgotten“, Joseph Margulies, op-ed in the Los Angeles Times, 16 May 2012 — “Arrested in 2002 and tortured repeatedly, he was never charged, and the U.S. no longer believes he was even a member of Al Qaeda. But he remains in prison.”

For More Information

About judges:

About the National Defense Authorization Act:

  1. Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
  2. RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011
  3. “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress), 22 December 2011
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28 Comments leave one →
  1. Fred permalink
    18 May 2012 1:15 pm

    The problem is that with the support of an authoritarian congress, a trojan horse in the white house and a majority of activist judges on the supreme court, what chance has the avarage citizen against this organized front nd its continued erosion of our Constitution, Note the absensse of capitalization where it is customary. None of the above, other than the Constitution, merits a capital letter.

    • 18 May 2012 3:03 pm

      I agree with your summary of the situation. But all large problems look hopeless in aggregate. They are solved by a series of steps. In this case the only likely solution: retake our political parties and Congress. Individually and nationally. District by district. State by State. And then the Presidency.

      The Founders gave us a Republic. They did not promise that keeping it would be easy.

  2. Stephen Ward permalink
    18 May 2012 4:25 pm

    We have regressed in America to negating the rights we gained during the English Civil Wars of the 17th century. Rights that our Founding Fathers took for granted. One of the most egregous issues is the turning over of suspects to military courts. The English knew in 1628 that drum head courts did not dispense justice and demanded, in the Petition of Right, their abolishment unless the country was invaded and under actual martial law.

  3. Thomas Moore permalink
    18 May 2012 10:37 pm

    The entire attitude of most Americans is perfectly summed up by Ezra Klein’s latest lickspittle post, licking the shoes of American elites: “Don’t worry about `American decline.’”

    Don’t worry! Be happy! Life is getting better and better every day, courtesy of the wise ministrations of our resplendant leaders! And good news — the chocolate ration has been raised to 30 grams per week.

    • 19 May 2012 4:51 am

      Thx for the Link. Trite, banal, sound bites from “who is this guy?” I have yet to read an explanation that makes a lick of sense of what the heck is wrong with the cognitive faculties of too many Americans. Is it the water? The Air we breathe? TV? What the heck is it?

      Emotionally they are vapid excepting of course concerning money/stuff and sports/recreation. Adolescent-like, mainly. Unfocused, goofy at times, silliness as a response to Life. Lazy, placated, wandering, red-necked children. And some have Retirements built in beyond belief!

      America just ain’t quite the country it thinks it is, I dare say. Fascinating when you consider it.

      Breton

    • 19 May 2012 3:51 pm

      Breton,

      I do not understand the basis for your characterization of many Americans. Why do you believe something is wrong with “the cognitive faculties of too many Americans”?

      Most people throughout history have been subjects; the same is true today. Societies with citizens, not subjects, are extraordinarily rare in the past, and a minority today (subject-citizen is a range, not binary). Americans appear to be choosing to become subjects, perhaps finding the burden of self-government too great to bear. It is their right, their choice.

      To maintain our self-regard such a decision must be screened by myths, even lies. That’s human nature.

    • 19 May 2012 11:20 pm

      “That’s human nature.”

      Links, please. Philosophoically or spiritually based, hopefully. (Or recent Sociological arguments would suffice, also)

      Breton

  4. Zemtar permalink
    19 May 2012 1:55 am

    Unbelievable that the government doesn’t know what its own laws mean or how they are to be applied. This is even more scary when the punishment is “indefinite detention” until the end of hostilities (i.e. forever). Some chilling excerpts from the decision:

    O’Brien has written a series of articles already — some of which relate to al-Qaeda, the Taliban, or “associated forces” no matter how defined. The Government was unwilling to state at the hearing that O’Brien would not be detained under § 1021 for her expressive conduct in regard to those articles.

    Wargalla stated that, as Deputy Director of RevolutionTruth.org, she is concerned that she not expose herself or others to possible detention under § 1021 by inviting Hamas to participate in certain panel discussions. That is a clear chilling of her associational activities,(which and supports a reasonable fear that at least some of her associational activities could result in enforcement under § 1021. Again, it is important to this Court’s determination that that at the hearing on this motion the Government was unwilling to represent that Wargalla’s activities would not subject her to detention under §1021.

    Off topic, but, found this link on Washington’s Blog: “U.S. Military Taught Officers: Use ‘Hiroshima’ Tactics for ‘Total War’ on Islam“, Noah Shachtman and Spencer Ackerman, Wired, 10 May 2012.

    Winning hearts and minds. Some scary stuff.

    The U.S. military taught its future leaders that a “total war” against the world’s 1.4 billion Muslims would be necessary to protect America from Islamic terrorists, according to documents obtained by Danger Room. Among the options considered for that conflict: using the lessons of “Hiroshima” to wipe out whole cities at once, targeting the “civilian population wherever necessary.”

    • 19 May 2012 2:21 am

      “Unbelievable that the government doesn’t know what its own laws mean or how they are to be applied.”

      I don’t believe that is accurate. What they want is for the laws to mean what government officials want them to mean. The laws are to applied with the widest discretion authority of government officials.

      “They {Aristotle, Livy, and Harrington} define a republic to be a government of laws, and not of men.”
      — John Adams in Essay #7 of Novanglus; Or, A History Of The Dispute With America From Its Origin In 1754, To The Present Time – addressed to the inhabitants of the Colony of Massachusetts Bay. This principle was later incorporated into the Constitution of the State of Massachusetts.

      This is as it should be, for our Nation is founded on the principle that observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny. The law which we obey includes the final rulings of the courts, as well as the enactments of our legislative bodies. Even among law-abiding men few laws are universally loved, but they are uniformly respected and not resisted. Americans are free, in short, to disagree with the law but not to disobey it. For in a government of laws and not of men, no man, however prominent or powerful, and no mob however unruly or boisterous, is entitled to defy a court of law. If this country should ever reach the point where any man or group of men by force or threat of force could long defy the commands of our court and our Constitution, then no law would stand free from doubt, no judge would be sure of his writ, and no citizen would be safe from his neighbors.

      Radio and Television Report to the Nation on the Situation at the University of Mississippi (30 September 1962)

    • Zemtar permalink
      19 May 2012 3:41 am

      That is a good point. The very vagueness of the law allows it to be wielded in an arbitrary fashion, and what is a big part of what makes it terrible.

    • 19 May 2012 3:52 am

      That’s a long-standing principle of US law:

      The due process clause of the Fifth and Fourteenth Amendments requires that statutory provisions be sufficiently definite to prevent Arbitrary or discriminatory enforcement by a prosecutor. Government officials must not be given unfettered discretion to prosecute individuals for violating a law that is so vague or of such broad applicability that evenhanded administration is not possible.

    • 19 May 2012 4:36 am

      Oh those DOJ guys know damn good and well what the NDAA means, do not console/fool yourself. And they saw pretty darn quickly they best not give much powder to this particular Judge. Realized quite early that today they were not the Smartest Guy/Gal in the Room!

      Stunning to read parts of the transcript. This is not over but it is heculean what she did. Take heart.

      Breton

  5. Alex West Virginia permalink
    19 May 2012 12:55 pm

    Thanks Judge Forrest, we support you!!!

  6. Thomas Moore permalink
    20 May 2012 4:14 am

    epagbreton asked: “Links please.” Here are a few supporting FM’s contentions:

    “For that which can foresee by the exercise of mind is by nature intended to be lord and master, and that which can with its body give effect to such foresight is a subject, and by nature a slave; hence master and slave have the same interest.”
    – Aristotle, Politics, Book I, part II.

    “I’ve always felt that fascism is a more natural governmental condition than democracy…fascism goes back to our infancy, in our childhood, where we were always told how to live. We were told ‘do this, don’t do that.”
    Norman Mailer

    “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”
    James Madison

    “The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”
    Hermann Goering

    “…the truth being that the excessive increase of anything often causes a reaction in the opposite direction; and this is the case not only in the seasons and in vegetable and animal life, but above all in forms of government. … The excess of liberty, whether in States or individuals, seems only to pass into excess of slavery. … And so tyranny naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme form of liberty …”
    Plato. The Republic, Book VIII.

    “When and if fascism comes to America it will not be labeled ‘made in Germany’; it will not be marked with a swastika; it will not even be called fascism; it will be called, of course, ‘Americanism’”
    An uncredited New York Times reporter covering Halford E. Luccock in an article published September 12, 1938.

    “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!”
    Upton Sinclair, 1935.

    “To see what is in front of one’s nose needs a constant struggle.”
    George Orwell

    • 20 May 2012 1:39 pm

      Thx. Will review the List. If all of this is just Human Nature, it really calls into question the reason for this Blog and the siren call for VOTE!

      Enjoyable as the Posts are and some of the sage Comments, it really is just an exercise in talking to talk. Now that in itself is quite enjoyable, certainly, yet shall we defer from being too hopeful about any of this or that?

      Enjoy the Sunday and the early Summer.

      Breton

    • 20 May 2012 2:00 pm

      Breton,

      I’d don’t believe you’re clear about the meaning of “human nature”. It’s not programming; we are not robots. As usual, for an explanation we go to one of America’s true sources of wisdom: The original Star Trek. From “A Taste of Armageddon“, broadcast 23 February 1967:

      ANAN (leader of the planet Eminiar Seven): You realise what you have done?

      KIRK: Yes, I do. I’ve given you back the horrors of war. The Vendikans now assume that you’ve broken your agreement and that you’re preparing to wage real war with real weapons. They’ll want do the same. Only the next attack they launch will do a lot more than count up numbers in a computer. They’ll destroy cities, devastate your planet. You of course will want to retaliate. If I were you, I’d start making bombs. Yes, Councilman, you have a real war on your hands. You can either wage it with real weapons, or you might consider an alternative. Put an end to it. Make peace.

      ANAN: There can be no peace. Don’t you see? We’ve admitted it to ourselves. We’re a killer species. It’s instinctive. It’s the same with you. Your General Order Twenty Four.

      KIRK: All right. It’s instinctive. But the instinct can be fought. We’re human beings with the blood of a million savage years on our hands, but we can stop it. We can admit that we’re killers, but we’re not going to kill today. That’s all it takes. Knowing that we won’t kill today.

  7. 20 May 2012 5:18 pm

    Star Trek, eh? Well, maybe Americans these days are just a little more “nature” than “Human”. Perhaps we won’t kill today even though we have the blood of a million savage years on our hands but maybe they will just slowly bleed the serfs to death? So we are to accept that we Americans do not suffer from modern cognitive issues and take heart from a possibility of non-robotic Two Party Voting.

    We can leave it at that and accept that is good enough in the face of reality, if you wish. For me, I’ll keep looking for a better explanation and personal path.

    Breton

    • 20 May 2012 5:38 pm

      If I discuss factor A, then Breton assumes that I don’t believe in factor B. The search for the one single explanation! You will not find it on the FM website. Human nature is a factor, and in some way is a constraint, on the evolution of any society. But it’s hardly the only factor.

      “So we are to accept that we Americans do not suffer from modern cognitive issues”

      I wish people would reply to quotes, instead of making stuff up and writing rebuttals to it. No such thing is said or implied on the FM website. The opposite in fact, since our broken OODA (observation-orientation-decision-action loop) is one of the major themes here — mentioned in hundreds of posts, discussed in two dozen (listed here).

    • 20 May 2012 5:48 pm

      “I wish people would reply to quotes, instead of making stuff up and writing rebuttals to it.”

      Apologies, if I did. Wish I had the time to reply as described., I don’t Wish I had the answers and brain power to challenge you, I don’t.

      I do believe, in retrospect, that we have lost enough Democracy in the last tens of years to almost render it moot for a spell, anyway. And that fascinates me. And that alone is worth the engagement for me….thx.

      Breton

    • 20 May 2012 6:47 pm

      If you have the time to post a comment, you have the extra few seconds to copy and paste the text to which you are replying.

      If you cannot easily find the specific text to which you’re replying, you’re probably not replying to something in the text.

    • 20 May 2012 11:41 pm

      Your criticisms are at times as ungenerous as some of your basic views of others. Many discussions here involve multi faceted trains of thought. You are as gulity as anyone in scanning off into the hinterlands. Try to be a bit more human and a lot more less self congratulatory

      Take a break. Get a life beyond your screen and your own little Blog. And by all means go VOTE! ( Were you a Goth in your former life and so enjoy the predictions about your Roman Enemies!?)

      Efutue, Maximus!

      Breton

    • 20 May 2012 11:53 pm

      “Your criticisms are at times as ungenerous as some of your basic views of others. Many discussions here involve multi faceted trains of thought. You are as gulity as anyone in scanning off into the hinterlands. Try to be a bit more human and a lot more less self congratulatory”

      Try giving examples of these things.

      1. Some seem right (“ungenerous”; although my most common reply is “thanks”).
      2. Some have no clear meaning to me. “hinterlands”? “more human”?
      3. Some seem unlikely to me. “Self-congratulatory”? See the smackdowns page; the comments are littered with my corrections.

      It seems to me (without counting) that one of the most common forms of criticism in comments is people making stuff up and writing rebuttals to it. Frequently people reason in the form of not-A must mean B (ie, there are only two answers to every question, only two teams in life). Both gets old really fast, IMO.

  8. WTF (unattended gmail) permalink
    21 May 2012 6:25 am

    epagbreton,

    After reading this blog for several years, your complaint is not unusual: FM cares more about ideas and systems than people (emotions, spirituality). People that are highly expert on a topic get some respect. People that disagree with FM’s viewpoint get little. I guess this is because of military culture, but there could be OCD, or something like PTSD/Asperger’s syndrome involved. I’m talking about the ability to show empathy and bond emotionally, and create a “community” of trust. Absent. Except for occasional evidence of formal “professional” conviviality.

    Oddly (or maybe not), the heaviest censorship that FM does is on issues of racism. Any viewpoint that contradicts the typical “PC” mentality that has polluted the educational establishment and military culture is usually censored by FM (or attacked in bizarre ways).

    Here is one explanation of how such PC tendencies developed in the military: “The Kinder, Gentler Military“, C-SPAN, 14 May 2000 — “This week on Booknotes our guest is journalist Stephanie Gutmann. She joins us to discuss her recent book, The Kinder, Gentler Military: Can America’s Gender-Neutral Fighting Force Still Win Wars?

    • 21 May 2012 1:35 pm

      (1) “FM cares more about ideas and systems than people (emotions, spirituality).”

      Everything has its place and time. Which of those pairs do you value more during neurosurgery?

      (2) “People that disagree with FM’s viewpoint get little {respect}”

      That’s not so. They get analysis, but not necessarily aggreement and applause. It’s a dysfunctionality of America today that some people believe all views should receive equal respect. That’s a delusion that we cannot afford in the difficult times ahead.

      (3) “but there could be OCD, or something like PTSD/Asperger’s syndrome involved”

      A comment too dumb to deserve comment or analysis, but reveals much about WFT.

      (4) “the heaviest censorship that FM does is on issues of racism. Any viewpoint that contradicts the typical “PC” mentality that has polluted the educational establishment and military culture is usually censored by FM (or attacked in bizarre ways).”

      False on seveal levels.
      (a) The subject very seldom comes up, and even less often warrants comment — let alone other action.
      (b) WordPress uses the Akismet spam filter; that filters for certain racial terms and so might be eating WTF’s comments about race. If so, good.
      (c) As for WTF’s note about “PC tendencies in the military”, the risks of moving to a gender-neutral military have been extensively discussed on the FM website. Such as Women as soldiers – an update, with links to several excellent sources of information.

    • 21 May 2012 2:55 pm

      WTF, thx for the feedback.

      It is his Blog and he certainly can do what ever he wants and conduct himself however he feels appropriate (..as if that needs saying, ha!) In the world of ideas even humor and self deprecating commentary is valued by those with a bit of balance. And balance is even appreciated in Neurosurgery!

      Off to the Great Battle!

      Breton

    • 21 May 2012 3:39 pm

      “And balance is even appreciated in Neurosurgery!”

      IMO this is just a lack of seriousness. Everything has its place and time — and a place and time where its less appropriate. As when you’re told “Breton, you son died due to a surgical error, but it was done with emotion and spirituality.”

  9. WTF (unattended gmail) permalink
    21 May 2012 7:46 am

    Bad link next to the top of the picture of the Judge. s/b this.

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