Upon first glance the whole controversy might not even seem like such a big deal. After all, military forces have firepower; they capture enemies and imprison them; they kill people sometimes and have pretty wide authority to determine when to do so, at least in the field of battle. Why get all technical over the fact that they now can pick up a civilian?
As Hedges explains, one reason for concern is that this is an entirely new state of affairs. The military is supposed to be used for defense of the nation, not for policing, and there are very good reasons for the distinction that go to the heart of life in a free society. The state’s repressive powers are supposed to reside in the enforcers of statutory law, like cops and prosecutors, whose powers are strictly defined and limited. Their procedures are set out in massive and carefully constructed case laws built up at both the federal and state levels, which are meant to guarantee that individuals are not subjected to arbitrary abuses of power such as those, say, exercised by kings and feudal lords in the bad old days.
Post 9/11, however, Americans largely have turned a blind eye to the steady erosion of the distinction between policing and soldiering such that now a general in the field (or, more frequently, a CIA operative pretty much anywhere) can seize hold of your U.S. citizen grandma and spirit her off to a black hole prison somewhere without any due process and without any time limit on how long she is to be held there. The fact that they are unlikely to do so, for now, does not mean they can’t. Legally.
The grandma case is remote, but let’s think of one far more plausible example, as Hedges does, using himself. He was a foreign correspondent for many years and in that capacity often interviewed people considered enemies of the U.S. government and published their statements. He brought the suit because he is now painfully aware that were he to do so today, he could be detained under Section 1021(b)(2) of the National Defense Authorization Act of 2011 for providing “substantial support” to a terrorist group.
This idea is not farfetched in the least. We have seen how Glenn Greenwald’s partner, David Miranda, was held at Heathrow airport in London last year under similar “support for terrorism” charges for allegedly playing an intermediary role in the Snowden revelations. The concept, while patently absurd, was upheld by British courts. Who said a law has to make any sense? There is precedent galore for legalistic abuses of this sort throughout human history.
As Hedges comments, in reference to his coverage of the wars in Central America and the Middle East, he was often viewed by U.S. officialdom as essentially indistinguishable from the individuals and groups it was trying to destroy. But as a journalist, he enjoyed some protection:
There was no law at the time that permitted the government, because of my work as a reporter, to order the military to seize and detain me. Now there is.
Obama has defended the military’s right to do so tooth and nail, seeking and winning temporary orders to keep the law intact even when Hedges’ lawyers won a ruling declaring it unconstitutional. If a reactionary like Bush had done so, half the country would know about it and be at least slightly alarmed. Because it’s Obama, people tend to give the whole story a pass. But when the reactionaries come back into power, they will love this little gift provided to them by the “liberals” and will use it with vicious glee. They’ll argue that no one much cared when the other team was in power, so get over it.
And they’ll be right.