Hedges v. Obama (January 2014): Interview with Christopher Hedges

Section 1021(b)(2) of the National Defense Authorization Act (NDAA) permits the U.S. military to detain anyone, including U.S. citizens, who “substantially support”-- an undefined legal term -- al-Qaida, the Taliban or “associated forces,” again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until “the end of hostilities.” In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any “foreign country or entity.” This is, in essence, extraordinary rendition of U.S. citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.

Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding.  The appeal was granted last July and the courageous ruling by Judge Katherine Forrest was overturned.

Robert M. Loeb, the lead attorney for the government argued in the 2nd Circuit Court of Appeals that as “independent journalists” we were exempt from this section of the law.  Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But, he assured the court, I would be untouched by the new law as long as “Mr. Hedges did not start driving black vans for people we don’t like.” Loeb, however, did not explain to the court who defines an “independent journalist.”

I 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”? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.

I traveled frequently as a war correspondent 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.

Yes, of course.  If you have direct relationships as a reporter with groups defined by the government as terrorist organizations you can be detained under this law.  And reporters know it.  It is not very problematic for a reporter to interview and report the views of these groups and individuals, denying the public viewpoints that, while hostile to the United States, need to be heard to make informed decisions.

Yes.  During the first Gulf War I was detained by the military while working as a reporter for The New York Times for reporting a story – gouging by Saudi store owners of US troops – that had not been approved by the military.  I was also stopped and held for an hour by Homeland security in the Newark airport for over an hour after returning from a speaking engagement in Italy.  I was not given any explanation for the detention at Newark, although I asked for one at the airport and later reached out to Homeland Security.  I did overhear a supervisor tell the official seated at the computer terminal in front of me in the room where I was being held in the airport say “He’s on a watch.  Tell him he can go.”

The journalistic community has been disturbingly passive.  The New York Times, to its credit, covered our case and wrote an editorial lauding Judge Forrest’s ruling against the government.  The Washington Post denounced the ruling, which seems to me an odd stance for a newspaper to take if only out of enlightened self-interest.  But because the measure has bi-partisan support the slanted cable channels such as MSNBC and FOX did not cover the case.  The public knows little about the case because of this failure on the part of the commercial television shows to do their job as journalists.

Yes. Obama is cut precisely out of that mold of Bill Clinton. He purports to support civil liberties while destroying them.  The Democratic Party, in Europe, would be considered a far-right party. Obama's assault on civil liberties has, in fact, been far worse than under George W. Bush: an absolutely remarkable fact. The FISA Amendment Act, which retroactively makes legal what, under our Constitution, has traditionally been illegal: the warrantless wiretapping, monitoring, and eavesdropping of tens of American citizens. The radical - and I think most dispassionate legal scholars would go, inappropriate -interpretation of the 2001 Authorization for Use of Military Force act as giving the government the right to assassinate American citizens... and of course I'm speaking about Anwar al-Awlaki, the Yemeni cleric... and not, incidentally, his 16-year-old son, two weeks later, who was on no terrorism list at all.

The use of the Espionage Act... this is quite disturbing, as a former reporter for the New York Times. Obama has used it seven times, including now against Edward Snowden, to shut down whistleblowers and people of conscience. And, of course, we sadly saw Judge Lynn, in the Bradley Manning trial, uphold the government's right to charge Manning with "aiding the enemy": the utter inversion of the rule of law, and of the moral order. Yes, of course Manning committed a crime, as did Snowden. But next to the state crimes which he and Snowden exposed, the crimes Manning and Snowden committed were marginal. And yet, the killers.... Take just the collateral murder video, where helicopter pilots were gunning down unarmed Iraqi civilians, and then coming around to shoot civilians who came to the rescue of those who had been wounded, including two children who were in a van, and including two colleagues of mine from Reuters who had been killed. The war criminals are not prosecuted. Those who stand up and have an act of conscience to expose the malfeasance and criminal activity and fraud of government are. Kiriakou, the CIA analyst who exposed torture, is now spending 30 months in federal prison in Pennsylvania.

The mood of the country has changed.  Across the political spectrum citizens do not support this evisceration of the rule of law and legal protections.  The problem is that our elected officials, along with our courts, and most of our press, have become wholly owned subsidiaries of the corporate state.

Carl, Bruce and I felt there had to be some challenge, that we could not accept his without a fight.  We did not think we would win.  No one did, especially given the string of awful judicial rulings since 9/11 that have sacrificed our most basic Constitutional rights on the altar of national security.  But we knew it was wrong not to raise the alarm.  Once we began the case other plaintiffs joined, including Noam Chomsky and Daniel Ellsberg.  This was a great help.

I knew at the end of the trial that government’s case was weak, especially when Judge Forrest repeatedly asked the government if they could guarantee that I would not be charged under this provision and the government refused to issue such a guarantee.  So I thought we had a decent chance.  We knew the government would appeal, what we did not expect was the aggressive manner in which they appealed, demanding that the law be put back on the books until their appeal was heard.  Judge Forrest refused this request.  The 2nd Circuit granted it.  Carl, Bruce and I assume this is because the government is already holding U.S. citizens, probably dual nationals in some of our black sites, and did not want to be in contempt of court.

Exactly.  If I was detained under this provision of the NDAA  no one would know where I was or what had happened to me.

You have a sworn duty to uphold and defend our Constitutional right to due process, freedom from military and indefinite detention and a free and unfettered press.