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Supreme Court asked to strike down NDAA's indefinite detention clause

Published time: December 13, 2012 20:32
Edited time: December 14, 2012 00:33
The U.S. Supreme Court building (AFP Photo / Chip Somodevilla)

The U.S. Supreme Court building (AFP Photo / Chip Somodevilla)

The US Supreme Court has been asked to step in and make sure the military cannot detain US citizens indefinitely without charge or trial as guaranteed in this year’s National Defense Authorization Act, or NDAA.

Attorneys representing the plaintiffs in the case of Hedges, et al. v. Obama filed an emergency motion with the Supreme Court on Wednesday asking the top justices in the United States to stop a White House-ordered stay that ensures US citizens can be locked up without due process [pdf].

Under a provision of the 2012 NDAA, the US government can indefinitely imprison any person suspected of terrorist activity without ever requiring them to be brought to trial. In September, US District Judge Katherine Forrest granted a permanent injunction against that part of the annual defense bill, Section 1021, essentially barring the White House from using the law. In response, US President Barack Obama asked the Second Circuit Court to intervene, and they did so by placing a stay on Judge Forrest’s injunction. On Wednesday, the plaintiffs urged the Supreme Court take action and eliminate the appellate decision.

“The effect of the Second Circuit stay is to place the plaintiffs in this action and many United States civilians and citizens in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties. The stay actually upends the status quo that has been in place for most of our nation’s history: that the military cannot detain civilians,” the plaintiffs argue.

Additionally, the plaintiffs argue that the stay ensures that any US citizen is now fair game to be imprisoned indefinitely in military jails “for the first time since the internment of Japanese-Americans during World War II.”

Attorneys Carl Mayer and Bruce Afran have filed their request insisting the Supreme Court vacates the Second Circuit’s stay with Associate Justice Ruth Joan Bader Ginsburg, who can at any time now make a ruling that will reinstate the original injunction against Sec. 1021 or disregard the plaintiffs’ plea.

Mr. Mayer previously told RT that he is fully prepared to present his arguments before the Supreme Court and suggested the Obama administration is likely to lose that battle.

“I think they are ill advised to appeal this at all,” he told RT. “The Obama administration has now lost three times. They lost the temporary injunction, they lost the motion for reconsideration and they lost the hearing for permanent injunction. I say three strikes and you’re out.”

Speaking of Pres. Obama, Mayer added, “He knows as a former constitutional law professor that this is wholly unconstitutional.”

Mayer and Afran are asking for the Supreme Court to vacate the Second Circuit’s stay because the plaintiffs say the president’s argument that Judge Forrest’s injunction intrudes upon the executive power to detain Americans under the Authorization for the Use of Military Force (AUMF) is incorrect.

“No court in the long history of litigation under the AUMF,” write the plaintiffs, has agreed that that legislation allows for the indefinite detention of persons who’ve “substantially supported” terrorists, as outlined in the NDAA. On the president’s part, however, he argues that the injunction impedes that ability; the plaintiffs say he simply doesn’t have that power.

But because the language in the 2012 NDAA is so vague, warns Mayer, the White House could make anything possible.

“If any journalist or activist is seen as reporting or offering opinions about groups that could somehow be linked not just to al-Qaeda but to any opponent of the United States or even opponents of our allies,” he told RT they could be imprisoned.

“The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush,” plaintiff Chris Hedges wrote earlier this year.

Hedges, a Pulitzer Prize-winning journalist, is joined in the suit by co-plaintiffs Alexa O’Brien, Daniel Ellsberg, Tangerine Bolen, Noam Chomsky and others. The president is expected to approve next year’s NDAA in the coming weeks, and although content found in Sec. 1021 of the current edition is absent from the latest draft, Mayer warns that might not stay.

"Nothing has passed both houses [of Congress] and the president hasn't signed anything," Mayer tells Huffington Post this week. "If and when he were to sign something, the language that was passed by the Senate is at best an incomplete fix."