(MintPress)—The Obama Administration is under fire by a group of foreign and progressive authors and civil rights activists, including Noam Chomsky and Chris Hedges, who are challenging the constitutionality of the National Defense Authorization Act (NDDA) of 2012, claiming the legislation’s vague language allows the U.S. Government to detain anyone, U.S. citizens included, without trial […]
(MintPress)—The Obama Administration is under fire by a group of foreign and progressive authors and civil rights activists, including Noam Chomsky and Chris Hedges, who are challenging the constitutionality of the National Defense Authorization Act (NDDA) of 2012, claiming the legislation’s vague language allows the U.S. Government to detain anyone, U.S. citizens included, without trial — an argument government lawyers were not able to indefinitely deny.
A lawsuit filed by journalist Chris Hedges, along with a list of plaintiffs, filed a week after the bill’s New Year’s Eve passage, seeks an injunction on NDDA. It is a legal battle supported by people on the right and left side of the political aisle who see NDAA as vague, presumably allowing the government to detain U.S. citizens without proper trial, a violation of the Fourth and Sixth Amendments’ protection from unreasonable search and seizures without probable cause and the right to a speedy and public trial by an impartial jury.
The list of plaintiffs include Hedges, Chomsky, journalists Cornel West, Alexa O’Brien and Daniel Ellsberg, Iceland parliamentarian Birgitta Jonsdottir and Kai Wargalla, co-founder of Occupy London.
Support is also shared by those who identify with the Tea Party movement — the Institute of the Constitution, U.S. Justice Foundation, U.S. Border Control and Gun Owners Foundations, among others, have joined in Hedges’ fight, submitting a friend of the court brief in his defense.
A definition, please
In a hearing held March 29 in a New York U.S. District court, Judge Katherine Forrest heard arguments from lawyers representing the Obama Administration and seven plaintiffs. At the forefront of arguments was the issue of the bill’s clarity, specifically in terms of who could potentially be subject to the law and who couldn’t under Section 2021.
According to an unofficial transcript produced by author Naomi Wolf, who attended the meeting and openly supports Hedges, Forrest didn’t get definitive answers from Obama’s lawyers, calling into question the undefined scope of executive power issued through the NDAA of 2012.
“The act fails to give reasonable notice of the acts and conduct that will render a person liable to military detention and is overbroad, thereby chilling and impinging upon protected expressive and associated rights,” the court document reads.
Forrest questioned Obama’s lawyers specifically on what the term ‘trial’ means when referring to language in the bill, questioning whether or not that specifies a U.S. court trial or a military trial. Lawyers were not able to concretely answer this question, saying it would be addressed when the situation arose – a comment that didn’t seem to settle with Forrest.
Hedges, who has interviewed terrorists defined by the United States, questioned in his complaint whether interviewing such people, without supporting them, would result in his detention without due process. From the stand, Hedges made the argument that, if such laws were in place throughout his career, he would not have been able to effectively do his job — he now fears that his ability could be hindered, for fear of detention.
Hedges was put on a government watch list when attempting to fly home from Saudi Arabia, insinuating he perhaps has already been flagged by the U.S. Government.
Speaking to the portion of the bill that says the government has the right “to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in the aid of enemy forces,” Forrest questioned what ‘associated forces’ were defined as, and what it meant to ‘directly support.’
Concerns from Wargalla regarding the possible labeling of the Occupy London group as a terrorist organization by the United States were also addressed — lawyers answered by stating they were not aware of that position, according to Wolf.
In all cases, lawyers with the administration were not able to give clear ‘yes’ and ‘no’ answers, or give specific examples of cases in which ‘direct support’ would be determined. They did, however, say that U.S. citizens being detained under the bill is not a reasonable fear.
That vague assurance, however, is not enough for those opposed to the law.
NDAA pushed through
NDAA was initially passed in the House and Senate and signed into law by Obama on Dec. 31, 2011. At the time it was being debated, civil rights organizations, including the ACLU, urged Obama to veto the bill, citing infringements on citizens’ rights to a fair and speedy trial.
While he did threaten to veto, Obama signed the legislation, along with a statement in which he said he did not agree with everything in the bill, but signed it into law on the grounds that it would help keep the country safe, further stating the administration would not use it to overstep its power.
“Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded,” Obama said in the statement.
The statement went on to say the president signed the bill only after provisions were included that stated the bill could not be constructed to alter current law relating to detentions — a provision that came into question during the Hedges hearing.
“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,” Obama said in the statement.
But such statements did nothing to satisfy those who questioned why, then, the bill had to include those provisions in the first place, prompting Chomsky and Hedges to take legal action for an injunction and clear understanding of the scope of power the law allowed the government.
In response to growing protest and legal backlash, Rep. Buck McKeon, R-Calif., introduced a new version of the bill: NDAA 2013. The legislation states that all people detained within the U.S. will be guaranteed trial in court.
The bill is being supported by Rep. Adam Smith, D-Wash., who said it’s necessary to scale back the level of executive power issued through the 2012 version.