Obama demands detention without trial

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SOCIALIST ACTION OCTOBER 2012 3 Four years ago, Barack Obama ran for president on the promise of closing the U.S. prison at Guantanamo Bay, Cuba, within one year of taking office. Today, the prison remains open—the pledge all but forgotten. Instead of dismantling Guantanamo and with it the govern­ ment’s power to detain without a trial, Obama wants to expand this power and apply it to U.S. citizens and non-citizens alike. He is attempting to legalize through courts and legislation what Bush merely asserted through executive opinion.

On Dec. 31, 2011, the president signed into law the 2012 National Defense Au­ thorization Act, with a key provision that allows the U.S. government to imprison any person without trial or charges who is deemed a member of, or having “sub­ stantially supported” the Taliban, alQaeda, or “associated forces.” In January, Chris Hedges filed a lawsuit against the law and was joined by several other ac­ tivists and journalists (including Daniel Elsberg and Noam Chomsky).

In court hearings the Obama adminis­ tration refused to define terms such as “associated forces” and “substantially support” or say whether or not the plain­ tiffs could be imprisoned without trial for the journalistic and political activity they already practice. The government has re­ fused to say whether people are already detained under this law, and has claimed that it would have the right to do so un­ der previous laws anyhow.

In May, federal Judge Katherine Forrest issued an order temporarily blocking the government from using this provision. On Sept. 12 she ruled the indefinite deten­ tion provision unconstitutional, with an order to permanently bar its use. Forrest found that terms like “associated forces” and “substantial support” are so vague as to make it possible to detain people for the most basic exercise of free speech and political activity.

The Obama administration responded without delay, filing in rapid succession an appeal to overturn Forrest’s ruling and an emergency stay (to keep her rul­ ing from going into effect during the ap­ peals process). The stay was granted, and the appeal will go to the Second Circuit Court. If Forrest’s ruling is upheld there, the case will have nowhere left to go but the Supreme Court.

The determination with which Obama has defended this law now makes it clear that he favored it all along. The grand legislative good cop/bad cop routine has been exposed in court by a few activists.

Of course, turning back the 800-yearold right to a trial is only one part of Obama’s drive to strengthen the state’s repressive powers. Obama has claimed— and exercised—the right to assassinate U.S. citizens at will. He has gone to great lengths to defend torturers and war criminals, even leading an unprecedent­ ed campaign against those who expose these crimes. He has indicted six govern­ ment whistle-blowers under the 1917 Es­ pionage Act—twice the number indicted under all previous administrations com­ bined. His administration has continued the policy of pre-emptive prosecution (a combination of frame-ups and criminal­ ization of thought) and has overseen FBI raids and subpoenas of 23 labor, antiwar, and international solidarity activists.

Yet this wave of repression is by no means invincible. A national defense campaign prevented Chicano and anti­ war activist Carlos Montes from serving a lengthy sentence on trumped up charges. Twenty-two other activists targeted with FBI intimidation have refused to testify at grand juries after two years of sub­ poenas, and have yet to be charged with contempt. The movement against the NDAA has won enough traction to win a rare (though fleeting) court victory and expose the real objectives of the Obama administration.

In the face of this offensive in general and in each particular case, we have a choice. We can remain silent, and em­ bolden the reaction. Or we can use each instance of repression to educate, find allies, and inspire thousands and mil­ lions with confidence and determination through independent mass action in de­ fense of our basic rights.

Capitalists may break their own laws when expedient, but their rule depends upon a widespread belief in their sys­ tem’s morality and a fear of their power. When masses of working and oppressed people lose both of these through educa­ tion, experience, and struggle, the con­ tinued existence of capitalism is put into question. n

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$243,000 in attorney fees levied against SA National Secretary Jeff Mackler By CHRISTOPHER REYNOLDS In late July 2012 San Francisco Superior Court Judge Curtis E.A. Karnow imposed $243,279.50 in punitive attorney fees against Socialist Action National Secre­ tary Jeff Mackler and five other plaintiffs, who, two years earlier, had filed a law suit against the state of California challenging important provisions of Proposition 14, the new and infamous “Top Two” election law.

Top Two, the product of a bipartisan vote in the California State Legislature, was in significant part aimed at banning minor­ ity parties and candidates from fully par­ ticipating in the electoral process. The law bans write-in campaigns outright and forc­ es candidates who are not “ballot qualified” and who run in a now mandated “open pri­ mary” to identify themselves as “no party preference” despite the fact that they are members of political parties.

Mackler, who ran an effective 2006 So­ cialist Action write-in campaign for the U.S. Senate, joined the lawsuit to defend these elementary democratic rights and to avert the forced designation of “no party prefer­ ence” in anticipated future electoral efforts when he is well known as a national leader of Socialist Action. The five other plaintiffs in the suit were similarly members of a number of political parties that ran candi­ dates in California.

Other opponents of Top Two, like the ballot-certified Peace and Freedom Party, have chal­ lenged the initiative on the grounds that its passage all but eliminates the right to run in general elections, as Peace and Freedom has done since the 1960s. Since only the top two candidates in the mandated primary election can run in the general election, even if the top two are members of the same party, as is today the case in some eight California election districts, minor parties are for all practical purposes banned.

Proposition 14/Top Two was backed by multi-millionaire “liberal” Republican Charles Munger Jr., whose interest in the initiative, according to Ballot Ac­ cess News editor Richard Winger, is to eliminate fringe or ultra-conservative parties or candidates from the ballot who might siphon off votes from “mainstream” California Republicans like former Governor Arnold Schwarzenegger. Munger, who is also chair of the San­ ta Clara County Republican Central Committee, is the son of Warren Buffett’s business partner in Berkshire Hathaway, Charlie Munger Sr.

When the six plaintiffs, including Mackler and Wing­ er, filed suit against the state of California to challenge important aspects of the law, the presiding judge in the case allowed several “third party intervenors,” who had supported and helped finance Top Two, to join the state in defending it in court. The intervenors success­ fully argued, according to Winger, that “the California Secretary of State would not defend Top Two vigor­ ously enough.”

The Republican law firm Nielsen Merksamer was hired for this purpose. The firm failed to state at the time that it intended to file for attorney fees. Its “de­ fense” of Top Two, as it turns out, included the in­ tention to collect massive and punitive legal fees, the amount to be determined by the firm itself—with the (Left) Jeff Mackler speaks at San Francisco antiwar demonstration in March 2009.

assistance of a friendly judge, one might presume.

Some two years of litigation followed, during which time California courts rejected the challenge filed by the six plaintiffs. The matter was dropped, but not until Judge Karnow, break­ ing with all legal precedents, awarded Nielsen Merksamer’s well-heeled clients $243,279.50 in attorney fees against Mackler and the other plaintiffs.

California law bans such awards unless a lawsuit has harmed the “public interest.” Similarly, federal law, which in this case trumps state law, prohibits the awarding of attorney fees unless a lawsuit is “frivo­ lous.” But neither Nielsen Merksamer nor Judge Karnow alleged that the original lawsuit filed by the plaintiffs met either of these criteria.

Several observers saw Karnow’s deci­ sion as closer to a political act of Repub­ lican Party patronage than one in accord with an established principle—encourag­ ing citizens to use the courts to redress legitimate grievances, in this instance the fundamental democratic right to partici­ pate in the electoral process.

The six plaintiffs immediately chal­ lenged the imposition of the punitive at­ torney fee award by filing a Motion for Reconsideration, in which they are asking the very court that rendered the decision to change its mind. Within a matter of weeks, a broad range of civil and democratic rights organizations filed amicus (friend of the court) briefs, which showed that the legal fees im­ posed on Mackler and the other five plaintiffs violated state and federal law in a number of ways. A total of five amicus briefs were submitted to the court on the plaintiffs’ behalf—an unprecedented number for any state trial court proceeding.

A joint brief was submitted by the National Lawyers Guild and the Center for Constitutional Rights by a top Los Angeles law firm (Hadsell & Stormer). The inter­ nationally prominent law firm of Orrick, Herrington and Sutcliffe submitted a brief from FairVote, a na­ tional voter rights advocacy group. The law firm of Jina (continued on page 5)