Kate Cholewa Commentary: “The NDAA and Marijuana Politics”

I want to talk about two things.

First, last week, oral arguments were heard in New York in the case of Chris Hedges vs. Barack Obama, Secretary of Defense Leon Panetta, and others challenging the constitutionality of the National Defense Authorization Act (the NDAA). Specifically, they were challenging section 1021 that allows for the indefinite detention of U.S. citizens by the U.S. military without charges who are suspected of providing “support” (an undefined term in the provision) to terrorists and “other associated parties” (another undefined term).

Lead plaintiff Chris Hedges is an author, former New York Times war correspondent, and Pulitzer Prize winning journalist. He and six other plaintiffs including Noam Chomsky and journalists and activists who had been involved with Occupy movements, interviewed members of al-Qaeda, or disseminated information from WikiLeaks brought the question to the Court: Are their activities protected under the rights to speech and assembly, or are their activities cause for the Government to suspect that they are engaged in terrorist activities, and thus they can be “detained” (imprisoned) by the Government? Indefinitely. No charges. No lawyers.

When Obama signed the NDAA on New Year’s Eve, 2011, he also issued a “signing statement” which said, “my Administration will not authorize the indefinite military detention without trial of American citizens.” The Government used this policy statement as an argument against the plaintiffs’ case, claiming the signing statement rendered their case moot. But when the Court asked the Government point blank, given what these people have said they have done in the course of their work, could they be detained under section 1021, the Government refused to answer.

Here’s the second thing I want to talk about.

Last week in federal court in Montana were hearings in regards to two separate cases of federal prosecutions of Montanans connected to the state medical marijuana system. The objective of the hearings was to hear motions and determine what information would be admissible in the trials before the juries.  Federal prosecutors, of course, argued against state medical marijuana laws being admissible as these are federal arrests and only federal law is relevant.

But the defense argued that participation wouldn’t have occurred at all by the defendants had state law not existed. There would have been no store fronts, no investing by citizens, or participation of a professional accountant without the state laws that created circumstances that drove the creation of business structures which, under federal law, fit the model of a sophisticated drug trafficking organization.

The defense attorneys also referred to policy statements from the federal government as evidence that the defendants had reason to believe they would not be prosecuted under federal law, just one example being the infamous 2009 Ogden memo that stated that the feds wouldn’t focus resources on prosecuting those in compliance with medical marijuana state laws. Federal prosecutors in Montana said, in regards to the Ogden memo, that it represented policy and “policy is not a promise,” and implied that a defendant believing federal policy held any legal water was the result of being addled by the use of medical marijuana.

 

So to recap, federal attorneys in New York claimed Obama’s signing statement was meaningful and gave the plaintiffs no standing in their fear of prosecution. Federal attorneys in Montana claimed that policy statements of the federal government were meaningless, and those who thought policy would protect them from prosecution must be high.

 

Moral of story – Whether signed in the Oval Office, spoken from a podium, or on official federal government letterhead, regardless of who’s in office, federal policy, apparently, is nothing more than public relations, and carries the weight of a sign outside a restaurant that says, World’s Best Pancakes.

The signing statement aside, the Judge in the NDAA case saw the Government’s refusal to say the plaintiffs activities fell outside the scope of section 1021 reason enough to temporarily enjoin the provision back in May. Their refusal led the Judge to write in her opinion that it seems clear that: “the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by [section] 1021.”

And yet, at a later hearing, when the Court asked the Government whether any citizen had been detained under section 1021 since the provision was enjoined, which would in fact be an action in contempt of court, the Government refused to answer.

If you want to read more on the parallels between the two cases, go to my blog at www.rideyourax.com.