Journalists are leery in the new world of alternate truths after the arrest of four covering Washington protests. Initially they were charged with felony rioting; charges were later dropped.
They have good reason. The Trump administration can use the military to arrest them, extradite them to some black site anywhere in the world, without trial, without habeas corpus, and without end—all legally.
Some background is required to explain such dictatorial power. Surprising to many, it was written into law at the insistence of Barrack Obama, defender of civil rights.
In 2011, Congress voted to redefine the U.S. as a battlefield and subject to the rule of warfare. Senator Lindsey Graham (R-S.C.) was quoted in 2011 that the National Defense Authorization Act (NDAA) of 2011 will “basically say for the first time that the homeland is part of the battlefield.”
The bill was drafted in secrecy by Senators Carl Levin (D-Mich.) and John McCain (R-Ariz.), then passed in closed-door committee meeting without public hearing.
Senator Mark Udall (D-Colo.) said of the bill “One section of these provisions, section 1031 [later renamed 1021], would be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil.”
President Obama insisted that his “”Administration will not authorize the indefinite military detention without trial of American citizens” because “doing so would break with our most important traditions and values as a Nation,” promising that his “Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.” The problem: Indefinite detention is not against the law and Obama is no longer president.
The Posse Comitatus Act of 1878 prohibited the federal government from using the military to enforce domestic policies within the United States. It was the law of the land until 2011. Now the land is ruled by the law of war.
Section 1021 allows the government to detain anyone, including U.S. citizens, who “substantially support”—a phrase the legislation doesn’t define—al Qaida, the Taliban, or “associated forces”—another undefined phrase. Those detained under Section 1021 can be imprisoned by the military without due process until “the end of hostilities.” Given the endless War on Terror, the end of hostilities may be a life sentence. Anyone detained under the NDAA can be imprisoned in “any foreign country or entity.” In effect, extraordinary rendition.
Section 1021 was declared invalid by the Southern District Court of New York when challenged by Chris Hedges, a Pulitzer Prize winning journalist, but appealed by the Obama administration. The appeal was approved and Section 1021 remains as law.
Robert M. Loeb, lead attorney for the administration’s appeal, argued that “independent journalists” we were exempt from the law and had no cause for concern.
Hedges still had concerns. “I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department’s terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be ‘independent’?”
“I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as ‘independent.’ They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.”
Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. The paradox is that journalists, once seized for suspicion of aiding the enemy, lose their right to a trial by their peers and the opportunity to exonerate themselves.
Sami Al-Hajj, a journalist for the Al-Jazeera news network, was arrested by the U.S. military and imprisoned for 7 years in Guantanamo.
“Just calling yourself a journalist doesn’t make you a journalist, like Al-Hajj,” Loeb said during the appeal. “He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida.”
Al-Hajj was never charged with a crime. As a result, he could never defend himself.
“The power to detain — or, for that matter, kill — without charge or trial effectively inverts the presumption of innocence,” Shahid Buttar wrote in the Huffington Post.
Given the vagueness of Section 1031, the Trump administration could link journalists with terrorist organizations simply because they were doing their jobs, as Chris Hedges feared. Trump’s vengeful nature and cavalier disregard for the law should be disconcerting for journalists. Their job, more important now more than ever, just got a lot more dangerous.