Supreme Court refuses to stop indefinite detention of Americans under NDAA

The United States Supreme Court this week effectively ended all efforts to overturn a controversial 2012 law that grants the government the power to indefinitely detain American citizens without due process.

On Monday, the high court said it won’t weigh in on challenge filed by Pulitzer Prize-winning journalist Chris Hedges and a bevy of co-plaintiffs against US President Barack Obama, ending for now a two-and-a-half-year debate concerning part of an annual Pentagon spending bill that since 2012 has granted the White House the ability to indefinitely detain people "who are part of or substantially support Al-Qaeda, the Taliban or associated forces engaged in hostilities against the United States.”

The Obama administration has long maintained that the provision — Section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 — merely reaffirmed verbiage contained within the Authorization for Use of Military Force, or AUMF, signed by then-President George W. Bush in the immediate aftermath of the September 11, 2001 terrorist attacks.

Opponents, however, argued that the language in Section 1021 of the NDAA is overly vague and could be interpreted in a way that allows for the government to detain without trial any American citizen accused of committing a “belligerent act” against the country “until the end of hostilities.”

When the provision was first challenged days after Pres. Obama signed it into law on December 31, 2011, Hedges — who previously worked as a war correspondent for the New York Times and covered matters concerning Al-Qaeda for the paper — said, “I have had dinner more times than I can count with people whom this country brands as terrorists … but that does not make me one.”

US District Judge Katherine Forrest agreed with Hedges and his co-plaintiffs, and months later wrote in a 112-page opinion that “First Amendment rights are guaranteed by the Constitution and cannot be legislated away.”

"This Court rejects the government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention,” Judge Forrest wrote.

But the District Court’s temporary, then permanent injunction against Sec. 1021 was challenged by the White House, and the Obama administration pleaded with the Justice Department to issue a stay. A federal appeals court ruled in favor of the president last July and said that the government can, in fact, indefinitely detail a person who has provided support to anyone deemed a threat to America.

On his part, Hedges said he feared that the administration’s adamant attempts to keep the law in tact could mean that the government has already relied on the NDAA to imprison American citizens without trial. Attorneys for the plaintiffs responded by saying they would take the case to the Supreme Court, but his week the nine-justice panel said they won’t be hearing the case.

SCOTUS declined to make any comment regarding the case on Monday, but rather simply said that it would not be considered by the high court.

Last year, Hedges warned that the odds the court would take the case were slim, and said rejection on that level could lead to grave consequences with regards to freedoms in America.

“If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back,” he wrote.

On Monday this week, activist and co-plaintiff Tangerine Bolen wrote that the high court’s decision to ignore the case means that “the fundamental right of due process and our fundamental rights of free speech and association . . . no longer matter.”

“We have tried to stand up to this madness: we are outnumbered, outspent and outgunned - a David intrepidly fighting a Goliath that spans the planet and has the power to shape our 'reality' - thus shaping what the courts even see. We have sacrificed greatly to do this - and yet we would do it all again,” she wrote.

Hedges in Bolen were joined in their suit against the Obama administration by Pentagon Papers leaker Daniel Ellsberg, writer Noam Chomsky, activist and journalist Alexa O’Brien, Icelandic parliamentarian and WikiLeaks associate Birgitta Jónsdóttir, Occupy London activist Kai Wargalla and acclaimed academic Dr. Cornel West.