"Indefinite Detention under the National Defense Authorization Act (Hedges v. Obama) In January 2012, Pulitzer Prize-winning journalist and Truthdig columnist Chris Hedges and other activists, including Noam Chomsky and Daniel Ellsberg, filed a federal lawsuit challenging the constitutionality of Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which allows for indefinite detention by the U.S. military of people, including potentially U.S. citizens, “who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States.” To the surprise of many observers, U.S. District Judge Katherine Forrest, an Obama appointee sitting in New York City, issued a permanent injunction, declaring the detention section unconstitutional. And then, reality set in. On July 17 of this year, the 2nd U.S. Circuit Court of Appeals lifted the injunction, holding that the plaintiffs lacked standing to bring a legal challenge to the detention provision. Hedges and his fellow litigants now plan to seek Supreme Court review. Statistically, their chances of persuading the Roberts court to take another look are slim, as the tribunal agrees to hear roughly 1.2 percent of the petitions for review filed annually. Even if Hedges beats the odds and entices the high court to grant review, the prospects for a victory on the merits are also slim, because the 2nd Circuit based its dismissal order on the case of Clapper v. Amnesty International, decided by the Supreme Court only in February. The Clapper plaintiffs tried to overturn a key section of the Foreign Intelligence Surveillance Act dealing with emails and other forms of electronic communications. In a 5-4 majority opinion written by Justice Samuel Alito, the court dismissed their complaint, reasoning that none of the organizations bringing the suit could prove their emails in fact had been intercepted and, therefore, that none had suffered the actual legal harm needed to satisfy the Roberts court’s strained definition of the “standing” required to prosecute federal lawsuits. A similar fate likely awaits Hedges and his co-plaintiffs should the Supreme Court decide to add their case to the docket. As the war clouds over Washington grow darker by the day, now would be the ideal time for a full, substantive judicial review of the indefinite detention provisions of the NDAA. But short of a miracle in the form of a sudden political come-to-Jesus conversion by at least one of the high court’s conservatives, that’s not going to happen. Not this term, and not for the foreseeable future."
Posted on: Sat, 07 Sep 2013 01:44:48 +0000
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