February 19, 2018
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Chris Hedges: Opinion

The U.S. Supreme Court decision to refuse to hear our case concerning Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which permits the military to seize U.S. citizens and hold them indefinitely in military detention centers without due process, means that this provision will continue to be law. It means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty. 

“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”

Afran, Mayer and I brought the case to the U.S. Southern District Court of New York in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O’Brien, RevolutionTruth founder Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.

Later in 2012 U.S. District Judge Katherine B. Forrest declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed—we expected it to appeal—but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.

The government swiftly went to the U.S. Court of Appeals for the 2nd Circuit. It asked, in the name of national security, that the court stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit agreed. The law went back on the books. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen. The administration would have been in contempt of court if Forrest’s ruling was allowed to stand while the federal authorities detained U.S. citizens under the statute. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.

The 2nd Circuit overturned Forrest’s ruling last July in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was one of the plaintiffs, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International challenged the secret wiretapping of U.S. citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was “speculation.” It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The court knew, of course, that the government does not disclose whom it is monitoring. It knew we could never offer proof. The leaks by Edward Snowden, which came out after the Supreme Court ruling, showed that the government was monitoring us all, along with those we interviewed. The 2nd Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.

In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now, a U.S. citizen charged by the government with “substantially supporting” al-Qaida, the Taliban or those in the nebulous category of “associated forces”—some of the language of Section 1021(b)(2)—is lawfully subject to extraordinary rendition on U.S. soil. And those seized and placed in military jails can be kept there until “the end of hostilities.”

Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc members and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government’s use of the military to detain 110,00 Japanese-Americans in internment camps without due process during World War II.

Of the refusal to hear our lawsuit, Afran said, “The Supreme Court has left in place a statute that furthers erodes basic respect for constitutional liberties, that weakens free speech and will chill the willingness of Americans to exercise their 1st Amendment rights, already in severe decline in this country.”

The goals of corporate capitalism are increasingly indistinguishable from the goals of the state. The political and economic systems are subservient to corporate profit. Debate between conventional liberals and conservatives has been replaced by empty political theater and spectacle. Corporations, no matter which politicians are in office, loot the Treasury, escape taxation, push down wages, break unions, dismantle civil society, gut regulation and legal oversight, control information, prosecute endless war and dismantle public institutions and programs that include schools, welfare and Social Security. And elected officials, enriched through our form of legalized corporate bribery, have no intention of halting the process.

The government, by ignoring the rights and needs of ordinary citizens, is jeopardizing its legitimacy. This is dangerous. When a citizenry no longer feels that it can find justice within the organs of power, when it feels that the organs of power are the enemies of freedom and economic advancement, it makes war on those organs. Those of us who are condemned as radicals, idealists and dreamers call for basic reforms that, if enacted, will make peaceful reform possible. But corporate capitalists, now unchecked by state power and dismissive of the popular will, do not see the fires they are igniting. The Supreme Court ruling on our challenge is one more signpost on the road to dystopia. 

It is capitalism, not government, that is the problem. The fusion of corporate and state power means that government is broken. It is little more than a protection racket for Wall Street. And it is our job to wrest government back. This will come only through the building of mass movements.

“It is futile to be ‘anti-Fascist’ while attempting to preserve capitalism,” George Orwell wrote. “Fascism after all is only a development of capitalism, and the mildest democracy, so-called, is liable to turn into Fascism.”


Occupy Zuccotti

Occupy Wall Street activists Eric Linkser, center left, and Cecily McMillan, far right, take turns shouting information to fellow protesters preparing to return to Zuccotti Park on Nov. 15, 2011. (Photo: AP/Bebeto Matthews)

Part II: The Crime of Peaceful Protest

NEW YORK—Cecily McMillan, wearing a red dress and high heels, her dark, shoulder-length hair stylishly curled, sat behind a table with her two lawyers Friday morning facing Judge Ronald A. Zweibel in Room 1116 at the Manhattan Criminal Court. The judge seems to have alternated between boredom and rage throughout the trial, now three weeks old. He has repeatedly thrown caustic barbs at her lawyers and arbitrarily shut down many of the avenues of defense. Friday was no exception.

The silver-haired Zweibel curtly dismissed a request by defense lawyers Martin Stolar and Rebecca Heinegg for a motion to dismiss the case. The lawyers had attempted to argue that testimony from the officer who arrested McMillan violated Fifth Amendment restrictions against the use of comments made by a defendant at the time of arrest. But the judge, who has issued an unusual gag order that bars McMillan’s lawyers from speaking to the press, was visibly impatient, snapping, “This debate is going to end.” He then went on to uphold his earlier decision to heavily censor videos taken during the arrest, a decision Stolar said “is cutting the heart out of my ability to refute” the prosecution’s charge that McMillan faked a medical seizure in an attempt to avoid being arrested. “I’m totally handicapped,” Stolar lamented to Zweibel.

The trial of McMillan, 25, is one of the last criminal cases originating from the Occupy protest movement. It is also one of the most emblematic. The state, after the coordinated nationwide eradication of Occupy encampments, has relentlessly used the courts to harass and neutralize Occupy activists, often handing out long probation terms that come with activists’ forced acceptance of felony charges. A felony charge makes it harder to find employment and bars those with such convictions from serving on juries or working for law enforcement. Most important, the long probation terms effectively prohibit further activism.

The Occupy Wall Street movement was not only about battling back against the rise of a corporate oligarchy that has sabotaged our democracy and made war on the poor and the working class. It was also about our right to peaceful protest. The police in cities across the country have been used to short-circuit this right. I watched New York City police during the Occupy protests yank people from sidewalks into the street, where they would be arrested. I saw police routinely shove protesters and beat them with batons. I saw activists slammed against police cars. I saw groups of protesters suddenly herded like sheep to be confined within police barricades. I saw, and was caught up in, mass arrests in which those around me were handcuffed and then thrown violently onto the sidewalk. The police often blasted pepper spray into faces from inches away, temporarily blinding the victims. This violence, carried out against nonviolent protesters, came amid draconian city ordinances that effectively outlawed protest and banned demonstrators from public spaces. It was buttressed by heavy police infiltration and surveillance of the movement. When the press or activists attempted to document the abuse by police they often were assaulted or otherwise blocked from taking photographs or videos. The message the state delivered is clear: Do not dissent. And the McMillan trial is part of the process.

McMillan, who spent part of her childhood living in a trailer park in rural Texas and who now is a graduate student at The New School for Social Research in New York, found herself with several hundred other activists at Zuccotti Park in Manhattan in March 2012 to mark the six-month anniversary of the start of Occupy Wall Street. The city, fearing the re-establishment of an encampment, deployed large numbers of police officers to clear the park just before midnight of that March 17. The police, heavily shielded, stormed into the gathering in fast-moving lines. Activists were shoved, hit, knocked to the ground. Some ran for safety. More than 100 people were arrested on the anniversary. After the violence, numerous activists would call the police aggression perhaps the worst experienced by the Occupy movement. In the mayhem McMillan—whose bruises were photographed and subsequently were displayed to Amy Goodman on the “Democracy Now!” radio, television and Internet program—was manhandled by a police officer later identified as Grantley Bovell. [Click here to see McMillan interviewed on “Democracy Now!” She appears in the last 10 minutes of the program.]

Bovell, who was in plainclothes and who, according to McMillan, did not identify himself as a policeman, allegedly came up from behind and grabbed McMillan’s breast—a perverse form of assault by New York City police that other female activists, too, suffered during Occupy protests. McMillan’s elbow made contact with his face, just below the eye, in what she says appeared to be a reaction to the grope; she says she has no memory of the incident. By the end of the confrontation she was lying on the ground bruised, beaten and convulsing. She was taken to a hospital emergency room, where police handcuffed her to a bed.

Had McMillan not been an Occupy activist, the trial that came out of this beating would have been about her receiving restitution from New York City for police abuse. Instead, she is charged with felony assault in the second degree and facing up to seven years in prison. She is expected to take the witness stand this week.

McMillan’s journey from a rural Texas backwater to a courtroom in New York is a journey of political awakening. Her parents, divorced when she was small, had little money. At times she lived with her mother, who had jobs at a Dillard’s department store, as an accountant for a pool hall and later, after earning a degree, as a registered nurse doing shifts of 60 to 70 hours in hospitals and nursing homes. There were also painful stretches of unemployment. Her mother, from Mexico, was circumspect about revealing her ethnicity in the deeply white conservative community, one in which blacks and other minorities were not welcome. She never taught her son and daughter Spanish. As a girl McMillan saw her mother struggle with severe depression and, in one terrifying instance, taken to a hospital after she passed out from an overdose of prescription pills. For periods, McMillan, her brother and her mother survived on welfare, and they moved often; she attended 13 schools, including five high schools. Her father worked at a Domino’s Pizza shop, striving in vain to become a manager.

Racism was endemic in the area. There was a sign in the nearby town of Vidor, not far from the Louisiana state line, that read: “If you are dark get out before dark.” It had replaced an earlier sign that said: “Don’t let the sun set on your ass nigger.”

The families around the McMillans struggled with all the problems that come with poverty—alcoholism, drug abuse, domestic and sexual violence and despair. Cecily’s brother is serving a seven-year sentence for drug possession in Texas.

“I grew up around the violence of poverty,” she told me as she lit another cigarette while I interviewed her Thursday night in an apartment in Harlem. She smoked nearly nonstop during our conversation. “It was normative.”

Her parents worked hard to fit into the culture of rural Texas. She said she competed as a child in a beauty pageant called Tiny Miss Valentines of Texas. She was on a cheerleading team. She ran track.

“My parents tried,” McMillan said. “They wanted to give us everything. They wanted us to have a lifestyle we could be proud of. My parents, because we were ... at times poor, were ashamed of who we were. I asked my mother to buy Tommy Hilfiger clothes at the Salvation Army and cut off the insignias and sew them onto my old clothes. I was afraid of being made fun of at school. My mother got up at 5 in the morning before work and made us pigs in a blanket, putting the little sausages into croissants. She wanted my brother and myself to be proud of her. She really did a lot with so very little.” 

McMillan spent most of her summers with her paternal grandparents in Atlanta. They opened her to another world. She attended a Spanish-language camp. She went to blues and jazz festivals. She attended a theater summer camp called Seven Stages that focused on cultural and political perspectives. When she was a teenager she wrote collective theater pieces, including one in which she wore the American flag as a burka and sang “The Star-Spangled Banner” as a character dressed as Darth Vader walked onto the stage. “My father was horrified,” she said. “He walked out of the theater.”

As a 13-year-old she was in a play called “I Hate Anne Frank.” “It was about American sensationalism,” she said. “It asked how the entire experience of the Holocaust could be turned for many people into a girl’s positive narrative, a disgusting false optimism. It was not well received.”

Art, and especially theater, awakened her to the realities endured by others, from Muslims in the Middle East to the black underclass in the United States. And, unlike in the Texas towns where she grew up, she made black friends in Atlanta. She began to wonder about the lives of the African-Americans who lived near her in rural Texas. What was it like for them? How did they endure racism? Did black women suffer the way her mother suffered? She began to openly question and challenge the conventions and assumptions of the white community around her. She read extensively, falling in love with the work of Albert Camus.

“I would miss bus stops because I would be reading ‘The Stranger’ or ‘The Plague,’ ” she said. “Existentialism to me was beautiful. It said the world is shit. It said this is the lot humanity is given. But human beings have to try their best. They swim and they swim and they swim against the waves until they can’t swim any longer. You can choose to view these waves as personal attacks against you and give up, or you can swim. And Camus said you should not sell out for a lifeboat. These forces are impersonal. They are structural. I learned from Camus how to live and how to die with dignity.”

She attended Lawrence University in Appleton, Wis., under a scholarship. After graduating, she worked as a student teacher in inner-city schools in Chicago. She joined the Young Democratic Socialists. She enrolled at The New School for Social Research in New York City in the fall of 2011 to write a master’s thesis on Jane Addams, Hull House and the settlement movement. The Occupy Wall Street demonstrations began in the city six days after she arrived at the school. She said that at first she was disappointed with the Occupy encampment in Zuccotti Park. She felt it lacked political maturity. She had participated in the political protests in Madison, Wis., in early 2011, and the solidarity of government workers, including police, that she saw there deeply influenced her feelings about activism. She came away strongly committed to nonviolence.

“Police officers sat down to occupy with us,” she said of the protests in Madison. “It was unprecedented. We were with teachers, the fire department, police and students. You walked around saying thank you to the police. You embraced police. [But then] I went to Occupy in New York and saw drum circles and people walking around naked. There was yoga. I thought, what is this? I thought for many protesters this was just some social experiment they would go back to their academic institutions and write about. Where I come from people are hungry. Women are getting raped. Fathers and stepfathers beat the shit out of children. People die. ... Some people would rather not live.”

“At first I looked at the occupiers and thought they were so bourgeois,” she went on. “I thought they were trying to dress down their class by wearing all black. I was disgusted. But in the end I was wrong. I wasn’t meeting them where they were. These were kids, some of whom had been to Harvard, Yale or Princeton, [who] were the jewels of their family’s legacy. They were doing something radical. They had never been given the opportunity to have their voices heard, to have their own agency. They weren’t clowns like I first thought. They were really brave. We learned to have conversations. And that was beautiful. And these people are my friends today.”

She joined Occupy Wall Street’s Demands Working Group, which attempted to draw up a list of core demands that the movement could endorse. She continued with her academic work at The New School for Social Research. She worked part time. She was visiting her grandmother, who was terminally ill in Atlanta, in November 2011 when the police cleared out the Zuccotti Park encampment. When she returned to the New School she took part in the occupation of school buildings, but some occupiers trashed the property, leading to a bitter disagreement between her and other activists. Radical elements in the movement who supported the property destruction held a “shadow trial” and condemned her as a “bureaucratic provocateur.”

“I started putting together an Affinity Group after the New School occupation,” she said. “I realized there was a serious problem between anarchists and socialists and democratic socialists. I wanted, like Bayard Rustin, to bring everyone together. I wanted to repair the fractured left. I wanted to build coalitions.”

McMillan knows that the judge in her trial—who in one comment on the lawyers’ judge-rating website The Robing Room is called “a prosecutor with a robe”—has stacked the deck against her.

The British newspaper The Guardian reported that Bovell, the policeman who McMillan says beat her, has been investigated at least twice by the internal affairs department of the New York City Police Department. In one of these cases, Bovell and his partner were sued for allegedly using an unmarked police car to strike a 17-year-old fleeing on a dirt bike. The teenager said his nose was broken, two teeth were knocked out and his forehead was lacerated. The case was settled out of court for a substantial amount of money. The officer was also captured on a video that appeared to show him kicking a suspect on the floor of a Bronx grocery.

In addition, Bovell was involved in a ticket-fixing scandal in his Bronx precinct.

Austin Guest, 33, a graduate of Harvard University who was arrested at Zuccotti Park on the night McMillan was assaulted, is suing Bovell for allegedly intentionally banging his head on the internal stairs of an MTA bus that took him and other activists in for processing.

The judge has ruled that Bovell’s involvement in the cases stemming from the chasing of the youth on the dirt bike and the Guest arrest cannot be presented as evidence in the McMillan case.

The corporate state, which has proved utterly incapable of addressing the grievances and injustices endured by the underclass, is extremely nervous about the mass movements that have swept the country in recent years. And if protests erupt again—as I think they will—the state hopes it will have neutralized much of the potential leadership. Being an activist in peaceful mass protest is the only real “crime” McMillan has committed. 

“Everyone should come and sit through this trial to see the facade that we call democracy,” she said. “The resources one needs to even remotely have a chance in this system are beyond most people. Thank God I went to college and graduate school. Thank God Marty and Rebecca are my lawyers. Thank God I am an organizer and have some agency. I wait in line every day to go to court. I read above my head the words that read something like ‘Justice Is the Foundation of Democracy.’ And I wonder if this is ‘Alice in Wonderland.’ People of color, people who are poor, the people where I come from, do not have a chance for justice. Those people have no choice but to plea out. They can never win in court. I can fight it. This makes me a very privileged person. It is disgusting to think that this is what our democracy has come to. I am heartbreakingly sad for our country.”

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