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Editorial: Defense bill allows for secret, indefinite imprisonment of citizens

Published: Monday, February 24, 2014

Updated: Monday, February 24, 2014 22:02

On Dec. 31, 2011 President Barack Obama signed the National Defense Authorization Act of 2012 into law. Most of the NDAA 2012’s provisions were rather routine, such as providing $662 billion for US defense purposes, imposing additional economic sanctions against Iran and appraising the military capability of Washington’s main geopolitical rivals. Yet, tucked away within the act is Section 1021(b)(2) which allows the President to authorize any branch of the U.S. armed forces to clandestinely and indefinitely detain any individual–including U.S. citizens–who has “substantially supported al-Qeada, the Taliban, or associated forces.” The problem with Section 1021(b)(2) is that the terms “substantially supported” and “associated forces” are so nebulously undefined, especially when compounded with various other anti-terrorism laws or rulings, that the law effectively imposes a “chilling effect” on the First Amendment.

Truthdig columnist Christopher Hedges, formerly of The New York Times, filed a lawsuit against the Obama Administration in order to remove Section 1021(b)(2), which he explains could be used against journalists, activists or anyone the administration can deem a “covered person” under such ambiguous terminology. An example, as Hedges points out, is any journalist who travels to the Middle East and interviews members of al-Qaeda, the Taliban or “associated forces,” and then completes a piece deemed critical of the administration, can–under the extremely vague wording of the law–be classified as an “enemy combatant,” which makes them subject to indefinite detention in secret.

The lawsuit in question, Hedges v Obama, was initially successful, when in May 2012 U.S. District Court Judge Katherine B. Forrest ordered an injunction against Section 1021(b)(2), and she explained that the law directly violated citizen’s First and Fifth Amendments, but also added that the federal government never provided a single witness or piece of evidence to support their claim the law would not be used against U.S. citizens. Unfortunately, the Second Circuit Court of Appeals unanimously overturned Forrest’s injunction, and elaborated in their ruling that because the plaintiffs were not facing impending detention under the law they therefore had no standing to challenge it. One of the Appeals Justices, Judge Lewis Kaplan, added that the ambiguous wording of the NDAA is not reason enough to invalidate it, but did acknowledge that it could be used in conjunction with other laws, such as the Authorization for Use of Military Force act of 2001, to perpetually imprison U.S. citizens in secret. As of now, the Supreme Court has twice rejected applications to rule on Hedges v Obama, and the current Supreme Court filing made by Hedges’ team will be their last appeal allowed by law.

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