What follows are my verbatim notes from the hearing for the lawsuit by Chris Hedges and other plaintiffs against Barack Obama and other defendants, regarding the NDAA. The hearing took place all day in Judge Forrest’s courtroom in the Southern District of New York City, yesterday, Mar 29. The purpose of the hearing was to establish ‘standing’ – are the plaintiffs legally entitled to sue? Harm: have they experienced negative outcomes, or ‘chill’ of their speech, because of the NDAA? And ‘redressability’: is the plaintiff’s fear of detention reasonable? The plaintiffs include Pulitzer prize-winning reporter Chris Hedges, Occupy London co-founder Kai Wargalla, journalist Alexa O’Brien, Daniel Ellsberg, Noam Chomsky, Birgitta Jónsdóttir, an Icelandic parliamentarian who supported Wikileaks’ right to publish and Jennifer “Tangerine” Bolen, a civil liberties advocate and independent journalist. Dr. Cornel West and I are also seeking to join the plaintiffs.

(While the notes are as accurate as I could make them, there are elisions due to the volume of the proceedings; these are noted by lines of asterisks. Fundraising to acquire and release the court transcript will commence shortly.)

The headlines? Lawyers for the US government, given several chances by Judge Forrest to do so, would not rule out detaining Chris Hedges under the NDAA for reporting,; they would not rule out defining a political book as providing ‘material support’ for terrorists. The Government, given multiple chances by Judge Forrest to do so, also would not or could not give any direct definition of who is included in the phrase ‘associated forces’, or what any example of what it means to ‘provide material support.” And the government did not dispute the validity of a DHS memo that tried to target Occupy Wall St as cyberterrorists.

Some key moments:

Journalist Alexa O’Brien had detailed how Stratfor, a private security firm with links to the US government, and a Federal agent had all sought to intimidate her. The government lawyer was making the case that she could not know that the US government had directed those actions. One security firm manager, she said, had surveilled her organization.

The government attorney asked her if she knew that the government had been behind those actions.
“None. Those things are done in secret.”

At another point she detailed more private security firm surveillance from a second firm.

Government lawyer: “Do you know the government directed him that action?”

O’Brien: “Yes. He went to the NYPD.”

Government attorney: “Strike response as unresponsive.”

O’Brien produced into evidence a DHS memo that sought to link US Day of Rage to their cyberterrorism initiative. The government lawyer was given a chance by Judge Forrest to dispute the memo as fraudulent and did not do so.

Kai Wargalla, co-founder of Occupy London, submitted into evidence a memo from the City of London Police Department that categorized Occupy London as a terrorist organization.

Obama lawyer: “What evidence do you have that the government has harmed you?”

Wargalla: “Other than putting my organization on a list of terrorist groups, none.”

Chris Hedges testified: “It is my belief that if Reagan officials had had the power of the NDAA to detain journalists covering conflicts in Nicaragua and El Salvador, they would have used it. “ Government lawyers made the case that nothing has changed since the FISA law allowed electronic surveillance, and the NDAA. Hedges said that “Every investigative reporter will tell you that sources have critically dried up since six were charged under the Espionage Act.”

Hedges noted that the difference between FISA and the NDAA was “a quantum deterioration in free speech.” He also said: “NSA surveillance has far more effect on my sources than on me,” he said, but “the NDAA is about me.”

Hedges testified that he believed that his phone was being tapped because in El Salvador and now, it would hang up after one ring, which he had been told was the cue for the start of surveillance recording. Asked if he knew his phone had been tapped in El Salvador, he said, “Yes. Because sometimes there would be an open line and I would hear: “Ministerio de Defenso.” Asked by his attorney if he knew what “associated forces’ meant, he said, “I don’t think we know what ‘associated forces’ are. That’s the reason I’m here.”

Obama’s lawyer asked Hedges if he had ever to his knowledge been identified as a terrorist by the US government. Hedges answered “No.”

In the redirect, Hedges’ lawyer reminded him that he had testified that a US official had advised him, when he had been briefly detained in Saudi Arabia, that he was on a watch list. “What is your understanding of what a watch list is? What are they watching for?”

Hedges: “Terrorists.”

*********************************************************************************

Judge Forrest referred to Obama’s signing statement, noting it referred to ‘trial’ for US citizens but not what kind: “I want to clarify that US citizens wouldn’t be detained without trail. It is unclear what kind of trial they get. Tell me [to government lawyers] what it means to give ‘substantial support.’ I just want one example.”Government lawyer: “I’m not in a position to give an example.”Judge Forrest: “Give me one.”

Obama lawyer: “I can only give you context.”

*********************************************************************************

Judge Forrest was pushing to determine the boundaries of the NDAA law.

Obama’s lawyer said that it would take a case of someone being detained under the NDAA, to find the parameters of the law.

Judge Forrest: “Is it really adequate to say you have to go to a DC court, in detention, to figure this out? Are you going to have to wait for courts other than this one to decide who ‘associated forces’ are? Is this the only way we can figure this out?”

She asked the government lawyer for an example of a boundary around “associated forces.”

Judge Forrest: “I don’t want precision. I want a boundary.”

Obama lawyer: “I don’t have specifics.”

Judge Forrest: “Associated forces”? What are they?”

Pause.

Judge Forrest: “If you can’t stand here and say, “1021 won’t touch Ms O’Brien …unless, if you did, we would be done — if you can’t do that, you leave us in a tough spot here.”

***********************************************************************************

Bruce Afran, lawyer for the plaintiffs, presented the hypothetical of a book that did not say how to make a bomb but simply expressed support for the political goals of the Taliban, or that made the case that the Taliban’s view that the US government overreaches in occupying other countries, has merit. He and Judge Forrest discussed the hypothetical that such a book could be a bestseller and be on a book tour, generating comment throughout the Middle East.

Judge Forrest simplified the example to a hypothetical of a book with only one sentence, and whose only sentence read: “I support the political goals of the Taliban’. She asked the government lawyers if such a book could be read as providing ‘material support’ for ‘associated forces” under the NDAA. They did not rule it out.

Judge Forrest pushed:

“You are unable to say that [such a book ] consisting of political speech could not be captured under [NDAA section] 1021?”
Obama lawyers: “We can’t say that.”

Judge Forrest: “Are you telling me that no US citizen can be detained under 1021?”

Obama lawyer: “That’s not a reasonable fear.”

Judge Forrest: ‘Say it’s reasonable to fear you will be unlucky [and face] detention, trial. What does ‘directly supported’ mean?”

Obama lawyer: “We have not said anything about that…”

Judge Forrest: “What do you think it means? Give me an example that distinguishes between direct and indirect support. Give me a single example.”
Obama lawyers: “We have not come to a position on that.”

Judge Forrest: “So assume you are a US citizen trying not to run afoul of this law. What does it [the phrase] mean to you?”

Obama lawyer: “I couldn’t offer any specific language. I don’t have a specific example.”

Judge Forrest: “You have said “unwitting’ [i.e. that a US citizen would be exempt from the NDAA if the ‘direct support’ or ‘material support’ was ‘unwitting’] which would offer some comfort if you are worried about running afoul of the law. But ‘unwitting’ is not in here. How do I get ‘unwitting’ here?

Obama’s attorney did not answer her question, but noted the fact that Congress had authorized the AUMF, which they argued the NDAA section 1021 and 1022 followed from.

Judge Forrest; “One of you [of the two US government attorneys] has to answer if a demonstration such as Kai Wargalla’s [in Occupy London] is ‘substantial support.”

Obama lawyer: “We have never taken a position re 1021 that independent advocacy [falls under it].”

Judge Forrest: “And you assert today that the Government does not intend to take that position?”

Obama lawyer: “Well…”

Judge Forrest: “You have to give me that or you have a problem here.”

Obama lawyer: “Well, I’m not aware that anyone is taking that position.”

*****************************************************************************

Bruce Afran made the point that ‘support’ is a very vague term – you can offer ‘emotional support’ to a spouse or ‘financial support’ to an organization. A discussion followed about vagueness in the statute, and Judge Forrest pressed the government attorneys to say exactly what ‘material support’ or ‘substantially support’ meant. She was unable to get a definition from them.

“Judge Forrest:”You [government lawyers] have to explain why the statute is not vague if I cannot get a definition under direct questioning [what ‘substantially support’ means]. If you folks can’t say what ‘substantially support’ means, how does an ordinary citizen know? You guys say why, and you win.”

*******************************************************************************

Judge Forrest: “Mr. Hedges — his speaking in Belgium and France [activities his deposition said he had curtailed from fear of the NDAA]: could that subject him to investigation under the NDAA?”

Obama lawyer: “The government has never taken that position in ten years.”

Judge Forrest: “How can you give the plaintiffs comfort that the next person won’t take that position?”
Obama lawyer: “The President says we won’t.”

Judge Forrest noted again that Obama’s signing statement assured people that US citizens would get a “trial”, but that the signing statement does not specify whether it is a military trial or a civilian trial. Judge Forrest: “”They could get a military trial not a civilian trial.”

Obama lawyer: “I would have to look at the statute again.”

Judge Forrest: “It’s extremely carefully worded….President Obama said he was concerned about constitutionality. Ms. Jónsdóttir [the Icelandic Parliamentarian who is afraid of being detained if she comes to the US]: Can she travel to the United States without worrying about being captured?”

Obama lawyer: “The US Embassy represented to her that she won’t be subject to detention and interrogation.” [Ms Jónsdóttir’s affidavit made the point that the US embassy refused to put those assurances in writing, and that the Icelandic government advised her not to travel to the US in that circumstance}.

Judge Forrest:”I’m asking you as a representative of the United States government here today: Can MS Jónsdóttir travel without fear of capture?”

Obama lawyer made the point that they didn’t know what she’d been up to or whom she had met since her affidavit was given.

Judge Forrest: “Given what you know.”

Obama lawyer: “From what we know, the member would not be subject to 1021.”

Judge Forrest:”So you are saying that being associated with Wikileaks won’t [put one] at risk?”

Obama lawyer: “They are not ‘associated forces.”

Judge Forrest: “So being associated with Wikileaks would not subject anyone to detention? Sorry to put you on the spot, but that’s my job.”

Obama lawyer: ”Unless they are Al Qaeda or the Taliban under another name, that is correct.”

Judge Forrest distinguished between journalist and US Day of Rage founder Alexa O’Brien, who does not spend time around people identified by the US government as terrorists, and Chris Hedges, who, as a reporter on such groups, does do so.

Judge Forrest, to the Obama attorney: “Can you say he will not subject to … solitary detention?”

Obama attorney: “I cannot say that today.”

Judge Forrest: “Well, why is [Hedges’ fear] unreasonable: if you have an individual engaged on a regular basis with interviewing, travelling with, “associated forces” [in combat with the US] – and you can’t tell us that his activities won’t subject him to 1021 – why is it [Hedges’ fear] unreasonable?”

Obama lawyer: “Given all the factors – looking at this case, looking at them as a whole, they sufficiently rebut reasonable fear at this stage.”

Judge Forrest: “So the nub of it is I must agree with your position that 1021 does nothing new?”

Obama lawyer: “Yes.”

Judge Forrest: “And I should do this in spite of case law that asserts that Congress writes laws for a reason?”

[Laughter in court.]

What: Court Hearing on Federal lawsuit seeking injunction against the implementation of
National Defense Authorization Act
Where: US District Court, 500 Pearl St, Manhattan
When: 9:00 AM, Thursday March 29th
Website: StopNDAA.org

Contact:

Tangerine Bolen, Coordinator and Plaintiff
503-887-0773
Tangerine.bolen@revolutiontruth.org

Carl Mayer, Lead Attorney
609-921-0253
carlmayer@aol.com

At 9:00 AM this Thursday, March 29th at the Southern District of New York Federal Courthouse,
multiple plaintiffs will testify in support of a worldwide lawsuit against the United States
government over the National Defense Authorization Act (NDAA). The NDAA, also known as
the “Homeland Battlefield” law, permanently suspends due process and Habeas Corpus for
persons accused by the federal government of being involved in hostilities against the United
States, or being an “associated force” of terrorists. The law authorizes military policing of US
citizens for the first time in over 200 years.

The first round of plaintiffs in this historic case, dubbed “the Freedom Seven”, include Chris
Hedges, Daniel Ellsberg, Noam Chomsky, Icelandic MP Birgitta Jonsdottir, and three women
leaders working at the vanguard of civil liberties and basic human rights who have reason to
believe they are in imminent danger of harm under the NDAA. Naomi Wolf and Dr. Cornel West
are in the process of becoming plaintiffs in this lawsuit …

As Hedges noted this week, “If there is no rolling back of the NDAA law we cease to be a
constitutional democracy. Totalitarian systems always begin by rewriting the law. They make
legal what was once illegal.” He continued, “Crimes become patriotic acts. The defense of
freedom and truth becomes a crime. Foreign and domestic subjugation merges into the same
brutal mechanism. Citizens are colonized. And it is always done in the name of national
security. We obey the new laws as we obeyed the old laws, as if there was no difference. And
we spend our energy and our lives appealing to a dead system.”

“The Homeland Battlefield Law is as Orwellian as its name implies. America is not
a “battlefield”; it is a democratic republic. This law is unconstitutional because it violates the
free speech and due process rights of American citizens.” Carl Mayer, lead attorney on the case

Plaintiffs and attorneys on this case will hold a press conference on the courthouse steps at the
conclusion of the hearings, some time after noon. Occupy Wall Street will express solidarity and
support for this lawsuit with a gathering and silent march beginning at Foley Square at 3 PM.

“The NDAA is a sweeping invasion of the traditional right of all Americans to live as free citizens
without the threat of arbitrary detention and incarceration and to speak and express themselves
openly without fear of government.” Bruce Afran, attorney on the case

This lawsuit is accompanied by a global campaign geared to alert the US public and galvanize
people to protest this egregious assault on the US Constitution and the Bill of Rights. Two
groups, a small, international and all-volunteer organization called RevolutionTruth, and the
million-member civil liberties group Demand Progress, have teamed up to ensure the general
public has a strong platform for standing against the unconstitutional aspects of the NDAA. Over
45,000 emails have been generated to US Congress members from their constituents in support
of the lawsuit in Round One. Round Two will be opened up to the US public and to people
around the world who wish to become plaintiffs. For more information, go to StopNDAA.org

Address for trial and press conference:

United States District Court
Southern District of New York
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
New York, NY 10007-1312
Room 15A
Tel: (212) 805-0136

Dear Naomi,

I am writing to you today in hopes of getting the story of my brother covered by you and raising awareness for a case that affects all Americans.

I am fighting for justice for my brother Ahmed Abu-Ali, a U.S. citizen who continues to spend 23 hours every day in solitary confinement at ADX Supermax Prison based on a confession obtained through torture. Ahmed was born in Texas and raised in Falls Church, VA. He spent his free time working with disabled adults, teaching children how to read, and building bridges in interfaith activities, and donated blood regularly to the American Red Cross. Ahmed completed high school in Northern Virginia where he graduated as valedictorian. He then got a full scholarship to study Islamic Literature in Medina.

Ahmed’s life took an unexpected turn when he was 22 years old. On June 8, 2003 he was wrongly detained in Saudi Arabia, amidst a final exam. He was tortured into reading a false confession, held for 20 months without charges or access to attorney. The US government, after denying any involvement in Ahmed’s detention and repeatedly stating they had no interest in him even though they had already acquired the confession tape, suddenly flew him to the US and charged him with conspiracy based only on the confession obtained through torture in a Saudi prison. Despite this, the judge refused to suppress the tainted evidence and didn’t allow evidence of torture to being presented to the jury. Ahmed was sentenced to thirty years, then increased to life in prison, for “conspiracies” that the judge said “did not result in a single actual victim”

Now it has been nearly nine years that Ahmed has spent in solitary confinement in an 8×12 room in Colorado’s Supermax, also called “the clean version of hell.” He is not allowed any contact with the outside world except for limited correspondence with his family and attorney. Now our last available legal option to free Ahmed is a habeas petition, which is scheduled for April 2012.

Please help me bring attention to his case, which set a disturbing precedent which we MUST reverse!

You can read more about his case at freeahmed.com

Best,

Mariam Abu Ali