A group of journalists and academics is crying foul after a federal appeals court ruled they had no case against the federal government for provisions in the National Defense Authorization Act that could put American citizens at risk of indefinite detention.
On Wednesday, a lawsuit filed by journalist Chris Hedges and political philosopher Noam Chomsky, among others, was thrown out, in part because those who filed the suit could not prove they were in danger of detention, according to the court’s decision.
“We conclude that plaintiffs lack standing to seek pre enforcement review of Section 1021 and vacate the permanent injunction,” the ruling states. “The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens.”
The decision by the 2nd U.S. Circuit Court of Appeals comes just one year after a federal judge ruled NDAA provisions that allow for indefinite detention of U.S. civilians unconstitutional. The judge found, in part, that plaintiffs’ fear of indefinite detention under the law was a real concern, allowing them the right to challenge the constitutionality of the act.
At issue are two sections of NDAA that would allow the military to indefinitely detain any person who has consorted with terrorists or who carries out “belligerent acts” against the U.S.
The circuit court’s decision used the same rationale the Supreme Court employed earlier this year when it struck down a lawsuit launched by Amnesty International regarding the government’s warrantless wiretapping, which was first launched under the George W. Bush administration. The Supreme Court ruled that the plaintiffs’ concerns were based on “highly speculative” fears.
The issue among the journalists, including Hedges, in the NDAA case is that they could fall under the law’s definition of those who would qualify for indefinite detention if, for example, they interviewed a person considered a terrorist by the government.
“This is quite distressing,” Hedges wrote after the decision was released. “It means there is no recourse now either within the Executive, Legislative or Judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights.”
While the plaintiffs can challenge the ruling, and likely will, there is no guarantee the Supreme Court will take up the case.
“The Second Circuit panel did not distinguish itself in upholding civil rights in America,” the plaintiffs’ attorney, Carl Mayer, told the Huffington Post. “I think the decision is imminently appealable because it reverses a very solid and comprehensive lower court opinion, and frankly I think it’s time for the Obama administration to stop supporting these statutes like the indefinite detention law.”
The NDAA and ongoing fight for change
The NDAA is normally passed once a year, and its chief function is to dictate the budget of the U.S. Department of Defense. But funding for the department also comes along with policy stipulations.
On Dec. 3, 2011, President Barack Obama signed a new version of the NDAA. The controversial legislation awarded the government broad-sweeping powers and defined criteria for indefinite detention of both terrorists and civilians.
The complaint filed by the plaintiffs labels the indefinite-detention power as a key violation of the Fourth and Sixth amendments to the Constitution, claiming it eliminates the right to be free from unreasonable search and seizure while also axing the right to a fair and speedy trial.
“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 complaint states.
In addition to Hedges and Chomsky, the plaintiffs include journalists Cornel West, Alexa O’Brien and Daniel Ellsberg, Icelandic politician Birgitta Jonsdottir and Occupy London co-founder Kai Wargalla.
In a U.S. District Court hearing held in New York in March 2012, Hedges argued before Judge Katherine Forrest that he and his colleagues had a legitimate cause for concern, saying the policy could have severely hampered his ability to interview suspected terrorists.
At the same hearing, Hedges claimed he was put on a government watch list when flying from Saudi Arabia to the U.S. for work, further evidence that he had a reasonable fear that he could be detained under the NDAA for doing his job.
Even after after a federal court ruled in favor of the plaintiffs, the Obama administration claimed Judge Forrest’s ruling was not a sweeping victory for Americans, as it only applied to those plaintiffs named in the lawsuit.
This goes against Obama’s initial reaction to the NDAA. As noted in the complaint filed by the plaintiffs, Obama expressed reservations upon signing the bill.
“I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama said.
Targeting NDAA anyway
Despite the most recent court ruling, communities around the country are launching grassroots campaigns that are leading state legislatures to act to prevent federal enforcement of NDAA.
Ignited by concerns on both the right and the left side of the political aisle, state legislators are grabbing hold of a political issue constituents can agree on.
In June, the California Liberty Preservation Act, which seeks to exempt Californians from any federal law that would allow them to be detained indefinitely without trial, was approved by the state Senate’s Public Safety Committee. It goes to the Appropriations Committee for approval Aug. 12.
Arizona was seen as a real hope for grassroots opponents of the NDAA when HB 2573 was passed by committee by a 6-2 vote in April. The bill intended to enact real protections for Arizonans against federal laws that allow for indefinite detention of Americans.
In Texas, NDAA opponents are pushing for HB 149, which was created to “counter the indefinite detention provisions, sections 1021 and 1022, of the National Defense Authorization Act,” according to People Against the NDAA, an advocacy organization.
The movements among state legislatures to protect their residents from indefinite detention is not new, but the most recent action makes clear that it’s an issue that’s not going away. By March 2012, 13 state legislatures had already taken a look at anti-NDAA legislation, according to The New American.
The movement, which has also included demonstrations throughout the U.S., has united two key political forces in the U.S.: the Occupy and Tea Party movements, which together held rallies in the leadup to congressional debate over the most recent NDAA, which included the same indefinite detention provisions.
“While the misguided mainstream media uses elements of the Tea Party and Occupy movements to divide us, the time has come to unify,” a People Against the NDAA press release regarding the event states. “We cannot let the mainstream media divide us through perceived differences and keep us from working together. We cannot stand idle while our constitution and bill of rights are trampled on.”
Following Wednesday’s court ruling, the group sent an email to supporters, largely thanking those in the Occupy movement who have stood vigilantly against the NDAA and worked to inform fellow Americans of its dangers.
“The Occupy movement has played a key role in awakening America to the dangers of the 2012 NDAA,” founder Dan Johnson wrote. “The first protest against the new law, in Grand Central Station, was organized by Occupy. It was followed by several others around the country. We are reaching out to anyone currently in the Occupy movement to join forces in this struggle against government tyranny.”
This article originally was published on July 19, 2013.