Chris Hedges v. Barack Obama Amicus Brief urges Supreme Court to bar NDAA Military Detentions of Citizens

Michael Harless Constitutional Law, U. S. Supreme Court

Today our firm has filed our third amicus brief in support of Chris Hedges and the other journalists and political activists who are challenging Section 1021 of the National Defense Authorization Act of 2012 (http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf), and its authorization of the military detention of civilians based on vague standards of providing “support” for an adversary of the United States.

These NDAA standards were so vague that when asked, the U.S. Justice Department refused to say that Chris Hedges and the other plaintiffs could not be arrested by the military, e.g., for their reporting on middle eastern affairs, which includes interviews with, and even embeds with, foreign organizations.

This brief was filed in the U.S. Supreme Court, urging that it grant certiorari and review the decision of the U.S. Court of Appeals for the Second Circuit. The Second Circuit determined that the plaintiffs did not have standing to challenge detention, as the NDAA statute did not really say what it appeared to say, and that it was a nullity as to American Citizens. The Second Circuit left unaddressed whether American citizens could be detained by the military under the Authorization for the Use of Military Force (https://www.govtrack.us/congress/bills/107/sjres23) passed hurriedly after the events of September 11, 2001.

Our brief explained why the Court needs to address the issue of military detention of civilians. It explained that NDAA 2012 was fundamentally different from the AUMF. It explains that laws are often written in an ambiguous manner to give politicians deniability when called to account by their constituents. And it discussed how why NDAA 2012 eliminated the protections of the U.S. Constitution’s treason clause.

Our brief states:
“If this Court does not grant the petition, there is no reason to believe that U.S. Presidents would cease to assert “the right to place certain individuals [including American citizens] in military detention, without trial.” Id. 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 warrant issued by an Article III 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 any 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.”

Our brief concluded:
“Ninety years ago, Franz Kafka gave the world a glimpse into the terror faced by individuals required to prove their innocence against unspecified charges in a world devoid of the rule of law. See F. Kafka, The Trial (1925). No American citizen should be subject to secret arrest and indefinite detention by the military, exempt from the protections of the Bill of Rights, and made even more terrifying by the threat of rendition to a foreign country for purposes that could include torture that is illegal in the United States.”

We began working against this dangerous bill with organizations such as DownsizeDC.org and Gun Owners of America as soon as word circulated about its detention provisions during Thanksgiving weekend 2011.

Then, on April 16, 2012, we filed an amicus brief in the U.S. District Court for the Southern District of New York — the only amicus brief filed in that case supporting the granting of an injunction against the federal government.http://lawandfreedom.com/site/constitutional/Hedges_Amicus.pdf
District Judge Kathleen Forrest issued first a preliminary, then a permanent injunction against NDAA detentions.

On December 17, 2012, we filed another amicus brief in the U.S. Court of Appeals for the Second Circuit.
http://lawandfreedom.com/site/constitutional/Hedges_Amicus_2ndCir.pdf

Our brief was filed on behalf of the following individuals and organizations:
U.S. Congressman Steve Stockman
Virginia Delegate Bob Marshall
Virginia Senator Dick Black
U.S. Justice Foundation
Gun Owners Foundation
Gun Owners of America, Inc.
Center for Media and Democracy
Downsize DC Foundation
DownsizeDC.org
Free Speech Defense and Education Fund
Free Speech Coalition
Western Journalism Center
The Lincoln Institute for Research and Education
Institute on the Constitution
Abraham Lincoln Foundation for Public Policy Research, Inc.
Conservative Legal Defense and Education Fund
Tenth Amendment Center
Restoring Liberty Action Committee
U.S. Border Control Foundation
Policy Analysis Center
Constitution Party National Committee
Pastor Chuck Baldwin
Professor Jerome Aumente

Link to brief