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Mendocino County Today: February 24, 2013

HOW ONE SENTENCE Saved Me from Living My Whole Life as a Well-Meaning Hick

By Hank Sims

I often think it must be easier to be a white guy, but truthfully it ain't easy being anybody. — Sherman Alexie

There were upsides to growing up in Willits in the 1980s — an enduring appreciation for Mötley Crüe’s first album, all the free shade leaf you could smoke — but there were downsides, too. I’ve been thinking about one of those downsides this week, what with the news and the commentary and all.

When it came time for me to go out and see the great wide world, I was handicapped. Willits was and mostly still is an overwhelmingly white town. Not completely, but overwhelmingly. Carlos Amador was my best friend in second grade, so the bone-dumb 18-year-old version of myself thought he had things pretty much squared with La Raza. Eddie Yee and I sat in the same classroom for more than a decade. A few years ahead of us, Tallchief Comet was a figure of remote, awe-inspiring cool.

In other words, I had a few reference points. But there were zero (0) black kids in school the entire time I was there. This messed up my head for many years after I moved to the city.

It wasn’t that I felt any hostility from or toward anyone. My heart overflowed with love and peace and rainbows. Because of this, I wanted to put myself on record and let my new neighbors know where I stood. Hey: Slavery? Racism? No way! Count me out!

This messy impulse manifested itself in a few different ways, some healthy, some less so. To fill the gaps in my education I read W.E.B. DuBois (thumbs up!) and Booker T. Washington (respectfully, sir — thumbs down!), which is something every American should do anyway. I read Ishmael Reed and Richard Wright and Zora Neale Hurston. All that was to the good.

After that, though, we quickly move down the spectrum of shame. Example: For a blessedly short period of time I actually owned — and, more embarrassingly, occasionally wore — a dashiki. Worst of all, of course, was my hilarious-in-retrospect overcompensation whenever some poor emissary from black America and I found ourselves in the same room. There were a lot of puzzled smiles, a few abruptly terminated conversations.

It all lasted way too long. Some part of me knew that in my own way I was being just as racist as the racist racists, but I couldn’t figure a way out. And I write this, in part, because I think it’s not altogether uncommon for some young white kids, those who may be pure of heart but thick of skull, to find themselves in a similar position.

Then one day I was idly reading a magazine (Harper’s? The New Yorker? I’m not sure) when suddenly, out of nowhere, a sentence flew up off the page and gave my ass the kicking it needed. I can only paraphrase that sentence now, but it was something very close to this: “America will be beyond race when it finally realizes that black people are just as boring as everyone else.”

I’ve since tried and failed to track this sentence down. Might have been written by Henry Louis Gates. Might have been John McWhorter or Stanley Crouch. Almost certainly was not Cornel West. But I definitely remember the effect it had on me at the time. It was like: Oh, right. Maybe I can just calm the fuck down a little bit.

I don’t think Humboldt County in the teens maps exactly to Mendocino County in the ‘80s, but some of parts of it are close enough. Tip to the kids: Everyone grows up as a little person in his own little world, and taking in all of America can be a long, slow, painful process. Some don’t make it.

If you find yourself puzzled by people you don’t know, people you never met, puzzled by their own backgrounds and their own little worlds and the things specific to their person, then a bit of well-crafted, general-purpose cynicism can be your friend. Want to find common ground with someone? Don’t only reach up. Reach down.



MANDY DILLIN is Location Manager for a road-racing film scheduled for release in 2014. The film is called “Need For Speed.” Ms. Dillin told us last week that she plans to hold several public meetings around the County before filming begins in April. According to an on-line note, the movie will be an adaptation of the video car-racing game also called “Need for Speed.” The film summary says: “Fresh from prison, a street racer who was framed by a wealthy business associate joins a cross country race with revenge in mind. His ex-partner, learning of the plan, places a massive bounty on his head as the race begins.” Among the stars is Michael Keaton. Ms. Dillin, who works for film producers NFS Produc­tions associated with Dreamworks SKG, said there would be some ten days of local filming, some of it requiring brief interruptions of traffic. “We are not tak­ing over any roads for our film,” said Dillin. “We will be driving on the roads as part of our filming activity. Out­reach and transparency with the public is important to us. We will try to be as accommodating as possible,” she said. The film company is in the final stages of getting permits from the County, Caltrans, State Parks, and the Coastal Commission. “We don't anyone to be surprised,” said Dillin. “We hope to get notices out in early March. We are also going door to door in the filming zone.” Dillin said the filming will “only have intermittent traffic control — we would only be holding traffic for short periods of time, 15-20 minutes, max.” The production's vehicles will be parked at the Boonville Fairgrounds. “We are trying to keep everything off the roads and be as low impact as possible. We want to be a part of the community while we're here. Mendocino is beautiful. It has everything we need — Wineries. Wine country. Redwoods. The Coast. Everything!” Part of the filming will be accomplished from a helicopter. Highways 253, 128, Highway One, Lighthouse Road, Mountain View Road, and parts of Flynn Creek Road will be scene loca­tions. “A day here, a day there, a day the next place,” Ms. Dillin said.


DRUG OVERDOSE DEATHS rose for the eleventh straight year in America, fueled by legal prescriptions for OxyContin and Valium. Medical cannabis, meanwhile, continued its 10,000 year-long streak of not killing anyone by overdose.

There is no physical way to overdose on smoked or ingested cannabis, making it one of the safest, most non-toxic painkillers, sleeping aids, and stress relievers on the planet. It’s also a Schedule One narcotic that the U.S. government says has no medical use and a high potential for abuse.

Drugs that the U.S. government considers safer – like OxyContin, Vicodin and Valium – caused about 60 percent of the 38,329 drug overdose deaths nationwide in 2010, the CDC reports. “Anti-anxiety drugs including Valium were among common causes of medication-related deaths, involved in almost 30 percent of them. Among the medication-related deaths, 17 percent were suicides.”

Legal drugs deemed safe by the FDA killed more people than illegal heroin and cocaine overdoses combined, reports state. Those numbers promise to increase when statistics for 2011 and 2012 come out.

Law Enforcement Against Prohibition speaker Nate Bradley – an ex-cop from Sacramento, CA. – says the figures add up.

“I saw so many people die from pills,” he said. “My first autopsy was a Vicodin overdose – the accidental Vicodin overdose of a 38 year-old woman. And I sat there and watched them take apart her body, because she accidentally had too much.”

— David Downs (Courtesy, Health Magazine)


ACCORDING TO THE RESULTS of a Field Poll released Friday, 9 out of 10 California voters favor an orderly path to citizenship for persons in the country illegally. These persons should also, poll respondents said, be employed, learn English and pay whatever back taxes they may owe. The poll also found that a majority of voters support allowing residents who are in the U.S. illegally to get California driver's licenses, a reversal from previous surveys. But the poll also found that Californians wanted the border with Mexico somehow made less porous and real penalties imposed on employers who hire illegals.


IT ISN'T KNOWN what percentage of Mendocino County's wine industry workers are not legal – probably because the industry prefers that no one knows — but it is assumed a large percentage of vineyard labor is illegal.


CONGRESSMAN MIKE THOMPSON announced today that Congressman Jared Huffman will co-chair the Congressional Wild Salmon Caucus with Congressman Don Young (AK).

“I am proud to pass along the chairmanship of the Congressional Wild Salmon Caucus to my colleague Rep. Jared Huffman. I am confident that Jared, as the new representative of California’s North Coast, will work to protect and maintain our salmon and steelhead populations. His environmental advocacy and passion for California fisheries will help aid the collaborative congressional effort to continue conservation of salmon populations throughout the United States” said Thompson.

Congressman Huffman comes to Congress with a keen understanding of salmon issues in the rivers of Northern California and the Pacific Northwest. As a former environmental lawyer and state assemblyman, he fought legal battles and authored legislation based on sound science to speed recovery of critical species. One such bill, the Coho Salmon Habitat Enhancement Leading to Preservation Act (AB 1961), which streamlines the permit process of voluntary habitat improvements for California’s struggling coho salmon, helps landowners quickly improve conditions for these iconic fish. AB 1961 was signed into law by Governor Brown on Sept 25, 2012.

“I am honored to join my colleagues in leading the Wild Salmon Caucus in this new session of Congress, and I am excited to take on this challenge,” said Huffman, who represents a Northern California coastal district that is home to salmon rich rivers and fishing communities. “These issues are critical to my congressional district, to our fishing industry, and to our nation’s coastal communities.”

 Reps. Mike Thompson and Don Young founded the Congressional Wild Salmon Caucus in 2010, at the start of the 112th Congress. During the 113th Congress, the goal of the caucus is to serve as an informal, bipartisan group of members dedicated to conserving and restoring wild salmon populations, supporting salmon fishermen and the salmon fishing industry, and educating other members on wild salmon issues.

One of the first orders of business for the Wild Salmon Caucus will be to address the issue of genetically engineered (GE) salmon, sometimes referred to as “Frankenfish.” The Food and Drug Administration (FDA) is moving closer to approving fish that are developed by artificially combining growth hormone genes from an unrelated Pacific salmon, with DNA from the anti-freeze genes of an eelpout. If approved, this would be the first food from a transgenic animal, one whose genome has been altered, available for public consumption. The caucus will work to address the issue over the coming weeks.

 The economic impact of the salmon industry in California is vast, ranging from fishermen, to boat operators, to ice providers, and more. Studies show that a restored salmon industry could contribute up to $5 billion and 94,000 jobs to the California economy. Reps. Huffman and Thompson are committed to continue pushing for salmon protection in Congress.

 The 113th Wild Salmon Caucus will be co-chaired by Reps. Jared Huffman and Don Young, with Rep. Mike Thompson serving as vice chair.


ON-LINE COMMENT regarding a CNN discussion of driving under the influence of marijuana: "This study all depends on tolerance. People will argue this statement and that's fine due to different chemical reactions. For me personally I started smoking dope habitually at the age of 11 and quit at 20 years old. I in fact took my drivers test at 16 stoned, it was only natural, since I smoked a quarter to a half a day. I passed the physical driving test with flying colors, just as anyone would with common operational skills. However, fast forward 19 years to present day and I would never get behind the wheel stoned. Simply due to my tolerance. If I over indulged, which is easy to do, I would feel the same as I did in the beginning stages of the tolerance development. I.e., incapacitation.

I definitely support the regulation behind legalization. There are too many idiots out there to assume they use "good" judgement. Get ready for more imprisonment due to legalization. More regulation = more incarceration. Voting for these laws actually takes away from the state laws that are already in existence. Making medical more illegal than it is present day. Good luck with that."


THE AVERAGE PRICE average price of gasoline the state is now $4.22 per gallon, up almost 60 cents a gallon in a month. Food prices are way up as well because it suddenly costs a lot more to get food to markets.


NINER COACH JIM HARBAUGH said the other day that Judge Judy is his guide to honesty: “Somebody that’s not truthful? That’s big — to me. I’m a big fan of the Judge Judy show. When you lie in Judge Judy’s courtroom, it’s over. Your credibility is completely lost. You stand no chance of winning that case. I learned that from her. It’s very powerful.”



Pope Judith the First, if elected, may be the first woman with that name as Pontiff but the second woman to hold that office although the first one had to mimic a dude throughout her tenure. Regardless, I’d like to second the nomination of Nick Daddio’s wife for the next Pope (AVA Feb. 20). The new “golden” age of health, peace and prosperity as predicted by the Mayans, Buddhists, Hindus, et all is getting off to an incredible start with the first resignation of a Pope in six centuries. With his sins catching up to him, is it any wonder Pope Benedict XVI has been described as “exhausted” and “disheartened.” Regardless of his obvious PTSD, how could anyone “chosen by God” and “infallible” to boot just up and quit? Photos recently released of young Joe Ratzinger show he was more than a member of the Hitler Youth and a Luftwaffe anti-aircraft gun crew as a teen. Much later in life Joseph Cardinal Ratzinger headed a department that until 1904 was called the Office of the Inquisition and as such in recent decades protected the Vatican by covering up the most serious of sex crimes of priests throughout the world. Now he lives under virtual house arrest — an ignoble end of an ignoble career spanning more than half a century of war against human sexuality and extreme misogyny to name a few human rights abuses in addition to having helped manipulate the faithful through fear and guilt as the Vatican has done for centuries. Despite a schism that occurred during what came to be known as the Reformation, the Vatican has operated in the dark ages all these centuries with the hierarchy festooning themselves as “princes of the Church” when in reality Jesus Christ was a blue collar, radical Rabbi. The patriarchy is on the verge of extinction thanks to the likes of Pope Benedict XVI. To quote Nick Daddio of San Francisco, “Are you listening Rome?” Bro. Tom Cahill Pastor, First Syncretist Church of the Holy Pariahs Fort Bragg



Feb 21 — Fitch Ratings takes the following actions on Mendocino County (the county), California:

• $79.6 million pension obligation refunding bonds (POBs), series 2002 affirmed at 'BBB+'.

• Implied general obligation (GO) rating affirmed at 'A-'.

The Rating Outlook is revised to Positive from Stable.

Security: The POBs are an absolute and unconditional obligation of the county imposed by law, the payment of which is not limited to any special source of funds.

Continued Financial Improvement: The Positive Outlook reflects improvements in the county's financial position following substantial expenditure reductions and management reforms over the last several years.

Long-Term Economic Decline: The county continues to face challenges from a long-term economic contraction that preceded the recent downturn. Employment levels have fallen each year over the past decade while population has stagnated. In addition, wealth and income levels remain well below state and national averages.

Management Reforms: The county has made notable progress in addressing weaknesses cited in past reviews. Management has raised fund balance targets and established policies to help meet these new goals, updated treasury practices, and begun preparations for its first capital improvement plan in seven years.

Moderate Debt; Elevated Pensions: Overall debt levels are moderate but county long-term obligations are substantial due to pension funding requirements.

Improved Financial Position: A sustained record of surplus operations and enhanced financial flexibility will likely result in an upgrade in the near term.

Mendocino County is located in northern California, along the Pacific coast, approximately 115 miles north of San Francisco. The county's estimated population of 88,000 is little changed from the 1990s and is dispersed across a land area larger than several states.

Financial Improvement Follows Cuts: The county ended fiscal 2012 with strong operating results and appears well-positioned for fiscal 2013. Net operating surpluses after transfers for 2012 were equal to 5.3% of general fund spending, raising unrestricted fund balance to 9.4% of spending ($12.4 million). Year-end cash balances also rose substantially, from $11.5 million in 2011 to $21 million in 2012. The county's strong performance in 2012 follows substantial expenditure reductions over the past several years, primarily through workforce and payroll reductions. Workforce reductions have eliminated approximately one-fourth of the county's full-time employees over the past five years, while remaining employees have seen permanent wage cuts of 10% to 12.5%. In addition, the county has eliminated other post-employment benefits (OPEB) for current and retired employees. Management projects further additions to fund balance in 2013, which Fitch considers reasonable given prior year expenditure reductions and revenue improvements through mid-year.

Economic Weakness Persists: The county continues to face a long-term economic contraction that dates from the late 1990s. Population growth has been very slow over this period and employment levels have dropped steadily. Tourism and wine production have provided some opportunities for growth, but overall employment levels fell by more than 10% over the past decade. Unemployment rates for the county have generally tracked statewide averages and at 10.0% for 2012 unemployment was well above the national rate of 8.1%. Year-over-year employment growth was positive for the first half of 2012 followed by declines during the second half of the year, indicative of continuing employment challenges. Income and wealth indicators are weak at 70% to 85% of state and national averages. Taxable assessed valuation (TAV) was relatively unaffected by the national housing boom and has been insulated from subsequent declines. TAV dropped by just 2.2% between 2010 and 2013 after many years of steady increases. The local housing market continues to struggle despite the county's favorable TAV performance. December 2012 home values reported by Zillow showed a 5.7% year-over-year decline as compared to a 9.3% increase for the state as a whole.

Management Reforms: The county has made notable progress in addressing management weaknesses cited in prior rating reviews. The county adopted a revised fund balance policy in 2012 that increases reserve targets from 2% to 6.35% of general fund expenditures, or a minimum of $10 million. The new policy also provides a mechanism for incremental additions to reserves until targeted levels are reached. Fitch expects these actions to further boost unrestricted fund balances for the county over the next several years. The county also made substantial revisions to its investment practices in 2012, diversifying investment categories, increasing credit quality, and reducing maturities in general. These actions appear likely to improve the county's abilityto meet its chief investment goal of principal protection, and to better serve its cash management needs. The county has been without a capital improvement plan since 2006, but has recently authorized the development of a new five-year plan as part of its budget process for fiscal 2014. The county faces a large backlog of capital projects due to spending deferrals during the recent downturn, but Fitch views renewed efforts to identify and prioritize capital needs as a positive development.

Moderate Debt; Elevated Pension Costs: Overall debt levels are moderate at $3,188 per capita or 2.8% of TAV. Amortization of direct debt is average with 55% of outstanding principle retired in 10 years. Management has no current plans for debt issuance apart from short-term cash flow borrowing. Amounts borrowed for such purposes declined by nearly one-third in fiscal 2013, providing further evidence of strengthened operations. As of June 30, 2012, the Mendocino County Employees' Retirement Association had a funded ratio of 74%, or 67% under Fitch's alternate investment assumption of 7% returns. County contributions have increased by 63% over the past five years, largely due to lower than expected investment results. Total pension costs, including POB debt service and pension contributions, have also accounted for a growing share of governmental spending in recent years. Pension costs represented 9.3% of non-capital governmental expenditures in fiscal 2010 but rose to 12.1% in 2012. As overall governmental spending has declined (due largely to workforce and payroll reductions), such fixed costs have increased as a share of remaining expenditures. Total carrying costs for pensions, other post-employment benefits (OPEBs) and debt service were a somewhat high 16% of non-capital governmental expenditures in fiscal 2012, as compared to 12.3% in fiscal 2011. The county began a phased elimination of OPEBs in 2010 and will have no related liabilities after the end of the current calendar year. (Courtesy, Reuters)



THE NDAA & THE DEATH of the Democratic State

By Chris Hedges

On Wednesday a few hundred activists crowded into the courtroom of the Second Circuit, the spillover room with its faulty audio feed and dearth of chairs, and Foley Square outside the Thurgood Marshall US Courthouse in Manhattan where many huddled in the cold. The fate of the nation, we understood, could be decided by the three judges who will rule on our lawsuit against President Barack Obama for signing into law Section 1021(b)(2) of the National Defense Authorization Act (NDAA).

The section permits the military to detain anyone, including US citizens, who “substantially support” — an undefined legal term — al-Qaida, the Taliban or “associated forces,” again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until “the end of hostilities.” In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any “foreign country or entity.” This is, in essence, extraordinary rendition of US citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.

Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard Wednesday in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not make a decision until the spring when the Supreme Court rules in Clapper v. Amnesty International USA, another case in which I am a plaintiff. The Supreme Court case challenges the government’s use of electronic surveillance. If we are successful in the Clapper case, it will strengthen all the plaintiffs’ standing in Hedges v. Obama. The Supreme Court, if it rules against the government, will affirm that we as plaintiffs have a reasonable fear of being detained.

If we lose in Hedges v. Obama — and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court — electoral politics and our rights as citizens will be as empty as those of Nero’s Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast.

“The stakes are very high,” said attorney Carl Mayer, who with attorney Bruce Afran brought our case to trial, in addressing a Culture Project audience in Manhattan on Wednesday after the hearing. “What our case comes down to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that is ingrained in the Constitution. It was always very important in combating tyranny and building a democratic society. What the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America to detain U.S. citizens, to detain residents in the United States in military prisons. Probably the most frightening aspect of the NDAA is that it allows for detention until ‘the end of hostilities’.”

Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.

But the global corporatists — who have created a new species of totalitarianism — demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed.

Robert M. Loeb, the lead attorney for the government in Wednesday’s proceedings, took a tack very different from that of the government in the Southern District Court of New York before Judge Katherine B. Forrest. Forrest repeatedly asked the government attorneys if they could guarantee that the other plaintiffs and I would not be subject to detention under Section 1021(b)(2). The government attorneys in the first trial granted no such immunity. The government also claimed in the first trial that under the 2001 Authorization to Use Military Force Act (AUMF), it already had the power to detain U.S. citizens. Section 1021(b)(2), the attorneys said, did not constitute a significant change in government power. Judge Forrest in September rejected the government’s arguments and ruled Section 1021(b)(2) invalid.

The government, however, argued Wednesday that as “independent journalists” we were exempt from the law and had no cause for concern. Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But he assured the court that I would be untouched by the new law as long as “Mr. Hedges did not start driving black vans for people we don’t like.”

Loeb did not explain to the court who defines an “independent journalist.” I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department’s terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be “independent”? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.

I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as “independent.” They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.

Alexa O’Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the US Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention. Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Féin. “I didn’t expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say,” Afran said. “This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out.”

The government attempted in court last week to smear Sami Al-Hajj, a journalist for the Al-Jazeera news network who was picked up by the U.S. military and imprisoned for nearly seven years in Guantanamo. This, for me, was one of the most chilling moments in the hearing.

 “Just calling yourself a journalist doesn’t make you a journalist, like Al-Hajj,” Loeb told the court. “He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida.”

Al-Hajj, despite Loeb’s assertions, was never charged with any crimes. And the slander by Loeb only highlighted the potential for misuse of this provision of the NDAA if it is not struck down.

The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.

Afran quoted the NDAA bill’s primary sponsor, Sen. Lindsey Graham, R-SC, who said on the floor of the Senate: “In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t [just] go to a political rally.”

Afran told the court that Graham’s statement implicitly acknowledged that US citizens could be detained by the military under 1021(b)(2). “There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear,” Afran told the judges.

After the hearing Afran explained: “If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute.”

In speaking to the court Afran said of 1021(e): “It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?”

This was a question Judge Lohier, at Afran’s urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold US citizens.

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