Some of the nation’s most respected legal teams are asking the Supreme Court to take up a challenge to the indefinite-detention provisions of the National Defense Authorization Act, charging the law has created the framework for a police state.
The controversial provision authorizes the military, under presidential authority, to arrest, kidnap, detain without trial and hold indefinitely American citizens thought to “represent an enduring security threat to the United States.”
Journalist Chris Hedges is among the plaintiffs charging the law could be used to target journalists who report on terror-related issues.
A friend-of-the-court brief submitted in the case states: “The central question now before this court is whether the federal judiciary will stand idly by while Congress and the president establish the legal framework for the establishment of a police state and the subjugation of the American citizenry through the threat of indefinite military arrest and detention, without the right to counsel, the right to confront one’s accusers, or the right to trial.”
The brief was submitted to the Supreme Court by attorneys with the U.S. Justice Foundation of Ramona, Calif., Friedman Harfenist Kraut & Perlstein of Lake Success, N.Y., and William J. Olson, P.C. of Vienna, Va.
The attorneys are Michael Connelly, Steven J. Harfenist, William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan and Robert J. Olson.
They are adding their voices to the chorus asking the Supreme Court to overturn the 2nd U.S. Circuit Court of Appeals, which said the plaintiffs didn’t have standing to challenge the law adopted by Congress.
The brief is on behalf of U.S. Rep. Steve Stockman, Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, the U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Center for Media & Democracy, Downsize DC Foundation, Downsize DC.org, Free Speech Defense & Education Fund, Free Speech Coalition, Western Journalism Center, The Lincoln Institute, Institute on the Constitution, Abraham Lincoln Foundation and Conservative Legal Defense & Education Fund.
The 2014 NDAA was fast-tracked through the U.S. Senate, with no time for discussion or amendments, while most Americans were distracted by the scandal surrounding A&E’s troubles with “Duck Dynasty” star Phil Robertson.
Eighty-five of 100 senators voted in favor of the new version of the NDAA, which had already been quietly passed by the House of Representatives.
Hedges, a Pulitzer Prize-winning journalist, and others filed a lawsuit in 2012 against the Obama administration to challenge the legality of an earlier version of the NDAA.
It’s Section 1021 of the 2012 NDAA, and its successors, that drew a lawsuit by Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alex O’Brien, Kai Warg All, Brigitta Jonsottir and the group U.S. Day of Rage. Many of the plaintiffs are authors or reporters who stated that the threat of indefinite detention by the U.S. military already had altered their activities.
“It’s clearly unconstitutional,” Hedges says of the bill. “It is a huge and egregious assault against our democracy. It overturns over 200 years of law, which has kept the military out of domestic policing.”
Hedges is a former foreign correspondent for the New York Times and was part of a team of reporters awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism.
The friend-of-the-court brief warns the precedent “leaves American citizens vulnerable to arrest and detention, without the protection of the Bill of Rights, under either the plaintiff’s or the government’s theory of the case.
“The judiciary must not await subsequent litigation to resolve this issue, as the nature of military detention is that American citizens then would have no adequate legal remedy,” the brief explains.
Section 1021 allows the detention of anyone, including American citizens, by the military, if the president considers that person to have helped with terror. It’s different from the Authorization for the Use of Military Force, which was adopted immediately after the Sept. 11 terror attacks, because while that law allows detention, there must be something linking them to the Sept. 11 attacks.
“Section 1021 authorizes detention, potentially forever, and even rendition of American citizens to foreign nations,” the brief points out. “If this court refuses to hear the Hedges challenge, it will leave American citizens subject to unconstitutional military arrest and detention.
“If this court does not grant the petition, there is no reason to believe the U.S. presidents would cease to assert ‘the right to place certain individuals [including American citizens] in military detention, without trial.’ There would continue to be no statutory constraint on an arrest being authorized by a military officer of unspecified rank. There would be no protection provided by the requirement of a grand jury indictment. There would be no requirement of an arrest arrant issued by an Article II judge supported by a sworn affidavit showing probable cause of the commission of a specific crime. Neither would there be any protection against use of compelled testimony, or against an violation of due process of law. There would be no civilian proceedings whatsoever against the person detained. Indeed, there is no requirement that the individual being detained has committed any federal crime, and military detentions could be used to circumvent the protections afforded American citizens by the treason clause of the U.S. Constitution.”
It describes a scary scenario.
“After the string of black Suburbans pulls away, it is difficult to believe that the military would provide relatives or lawyers with any information whatsoever as to where the person being detained was being held.”
After all, it explains, Congress specifically expressed its desire for the detention provision to apply to American citizens even on American soil by rejecting multiple amendments that would have exempted them.
And Obama, also, affirmed the detention authority, stating, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens … My administration will interpret Section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”
Simply stating that means it could be interpreted in a contrary manner.
At the trial court level, U.S. District Judge Katherine B. Forrest issued a Memorandum Opinion and Order that struck the provision as unconstitutional.
Multiple states have passed laws banning its enforcement inside those states. Herb Titus, a constitutional expert, previously told WND Forrest’s ruling underscored “the arrogance of the current regime, in that they will not answer questions that they ought to answer to a judge because they don’t think they have to.”
The judge explained that the plaintiffs alleged paragraph 1021 is “constitutionally infirm, violating both their free speech and associational rights guaranteed by the 1st Amendment as well due process rights guaranteed by the 5th Amendment.”
She noted the government “did not call any witnesses, submit any documentary evidence or file any declarations.”
“It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not,” she wrote.
Instead, the administration only responded with, “I’m not authorized to make specific representations regarding specific people.”
“The court’s attempt to avoid having to deal with the constitutional aspects of the challenge was by providing the government with prompt notice in the form of declarations and depositions of the … conduct in which plaintiffs are involved and which they claim places them in fear of military detention,” she wrote. “To put it bluntly, to eliminate these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of 1021 would have been simple. The government chose not to do so – thereby ensuring standing and requiring this court to reach the merits of the instant motion.
“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment,” she wrote.
Experts have expressed concern that even a journalist who has interviewed a member of a terror group may be considered to have rendered aid to that group.
The government appealed the trial judge’s ruling to the 2nd Circuit, which abruptly ruled that the plaintiffs had no right to challenge the law.
In the following interview, Hedges, early in the case, described what he sees developing: