Thom Hartmann: Will controversial NDAA be overturned?

[thomhartmann]

On New Year's Eve last year - President Obama quietly signed into law the National Defense Authorization Act containing a provision giving the President and the military the power to indefinitely detain Americans who are suspected of associating with terrorists. On Wednesday night though - that very same indefinite provision was struck down by a federal judge. So for now - until another court hears the case - and until the Supreme Court eventually has the final say - our nation has once again found its values.

We are, for the moment, not a frightened nation that indefinitely detains people without due process of the law.

We are, for the moment, not a frightened nation that gives up our values as soon as the going gets tough.

This ruling restores a tradition that goes all the way back to before this nation's founding - back to when General George Washington won the battle of Trenton and ordered his soldiers to treat with respect 1,000 captured German mercenaries who'd been fighting for the British. Washington said: "Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren…Provide everything necessary for them on the road." Washington's order was so effective that other mercenaries and even British soldiers began to routinely surrender instead of fighting against us, because they knew they'd be treated well. Many stayed after the war and became American citizens - particularly this first wave of German immigrants who initially came here to fight against us in the 1770s.

In the last decade - we lost sight of George Washington's value - and his brilliant strategy. After 9/11 - George W. Bush trashed our nation's values. He started two illegal wars - opened up illegal secret prison camps all around the world - committed illegal torture and atrocities at places like Abu Ghraib and Gitmo - and made the indefinite detention of terrorist suspects routine. He - with the help of fellow war criminals Dick Cheney and Donald Rumsfeld - scared the hell out of lawmakers so that they, too, would go along with shredding civil liberties out of fear that terrorists would nuke an American city if they didn't comply. We descended into a national insanity.

And in the midst of all of this - George W. Bush left office - and President Obama moved in. And when a still-frightened Congress tried to enshrine Bush-era indefinite detention into law - President Obama pushed back. Arguably - he didn't push back near hard enough - and ended up signing into law the National Defense Authorization Act including indefinite detention. But he did so with a signing statement reading: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My 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."

But there is a major problem with signing statements - they're not binding law. Just because President Obama promised that his administration would not indefinitely detain Americans - there was nothing to stop future administrations from doing so. Thus, it was up to the American people to take action. And they did. Led by a group of journalists, whistleblowers, and activists like Chris Hedges, Noam Chomsky, and Daniel Ellsberg - a lawsuit was filed against President Obama arguing that the indefinite provision was unconstitutional. Specifically - the lawsuit argued that journalists and whistleblowers - operating well-within their First Amendment rights to a free press - could be locked up forever if they interviewed or associated with terrorist networks while covering a story. And it was on these grounds that Judge Katherine Forrest agreed - and struck down the provision saying, "The statute at issue places the public at undue risk of having their speech chilled for the purported protection from al-Qaeda, the Taliban, and...‘foreign terrorist organizations.’"

So for now - indefinite detention is dead. But if "we the people" who are not terrified little men like Bush and Cheney - don't keep the pressure on our lawmakers - then indefinite detention will surely return. Right now - a new version of the NDAA is being debated in Congress - and brave members on both sides of the aisle are arguing that there should be no indefinite detention provision in it. That's the good news. And, ironically, we all have to depend on the same guy who signed indefinite detention into law - President Obama - to eventually see it repealed. That's because this case will eventually work its way up to the Supreme Court - where five right-wingers will likely rule in favor of indefinite detention.

But four of the justices are over seventy-years-old - including two Republican appointees - meaning whoever is the next President will be able to change the make-up of the High Court. We can't trust Mitt Romney to select a court that upholds our national values and the rule of law - he's already said that he'll appoint more Scalia's, Thomas's and Alito's - who would shred our Constitutional protections. Instead, since the Supreme Court is even more powerful than the President, we need a President in office who will appoint thoughtful and honest and uncorrupted jurists like Elena Kagin and Sonya Sotamayor. Last night was a victory - but this battle is just beginning. We need to return to the values our nation was founded on, which include bravery and due process - and not fear and medieval imprisonment techniques. And we need to do everything we can to prevent the Supreme Court from becoming even more hard-right than it already is

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