Within days of Congress reauthorizing the National Defense Authorization Act (NDAA) in January 2012, Brian Trautman summarized it perfectly:
This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.”
The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.”
But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability — potentially even demonstrators and protesters exercising their First Amendment rights.
One of those felt threatened was Christopher Hedges, Pulitzer Prize winner and former New York Times reporter, who sued President Obama (and others in his cabinet along with members of Congress) claiming that his rights not only as a citizen but as a journalist were threatened. U.S. District Court Judge Katherine M. Forrest agreed, issuing a preliminary injunction against the most pernicious piece of the NDAA — Section 1021(b)(2) — on constitutional grounds, and then made her ruling permanent four months later.
The administration appealed her decision and the injunction was lifted until a full appeal could be heard. The U.S. Second Circuit Court of Appeals overturned Forrest’s ruling in July 2013. From there it was just a matter of time before the case came to the Supreme Court for review. On April 28 the Supreme Court let the Second Circuit Court’s ruling stand, without comment.
The specific language contested allows the president to use United States armed forces to detain indefinitely
[Any] person who was a part of or substantially supports al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces.
Indefinite detention means no protection under the Fifth Amendment (“No person shall be … deprived of life, liberty, or property, without due process of law”), the Sixth Amendment (“the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation”), or the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
In addition the ruling greatly dampens and discourages freedoms guaranteed under the First Amendment (“Congress shall make no law ... abridging the freedom of speech, or of the press.”)
In other words, under instructions from the president, an American citizen may be arrested, incarcerated and deprived not only of his right to an attorney but access to trial in a court of law for as long as such alleged hostilities last (i.e., forever).
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