Second Circuit Considers Challenge to NDAA's Military Detention Provisions; CMD Joins Challenge to Exec Powers

-- By Lisa Graves, Brendan Fischer, and Meher Ahmad

The Obama administration is urging a federal court to overturn a ruling that blocked the government from enforcing a law that could allow the military to imprison American citizens indefinitely, without trial. The Center for Media and Democracy joined an amicus brief with groups across the political spectrum calling for the judiciary to reject such unchecked power to use "indefinite detention."

Chris Hedges, Daniel Ellsberg, and Others Challenge NDAA Powers

On February 6, the Court of Appeals for the Second Circuit heard oral arguments in the case challenging a controversial clause in the National Defense Authorization Act (NDAA) that potentially authorized the U.S. government to indefinitely detain American citizens, in conjunction with the Authorization of the Use of Military Force (AUMF) -- which allows action against those believed to be providing "substantial support" to Al Qaeda, the Taliban, or "associated forces," but without defining those vague terms. The NDAA authorizes detention until "the end of hostilities" which, after eleven years of military activities in Afghanistan and other countries under the AUMF and other provisions, may not come any time soon.

In other fora, the Bush Administration argued that the similar phrase "material support" for terrorism could sweep in "a little old lady in Switzerland" as an "enemy combatant" if she gave money to a charity for an Afghan orphanage, if the money was passed to al Qaeda without her knowledge. Accordingly, in the case challenging the NDAA, plaintiffs said they feared they might be placed in indefinite military detention as a result of their reporting or research work, such as interviewing people the U.S. government has deemed terrorists or perhaps organizing a panel that includes a member of the Palestinian militant group Hamas. The Obama Administration asserted that it would not construe the law that way, but plaintiffs contended that the law could be construed that way by this administration or future ones.

A lower court struck down the provision in September 2012 after it was challenged by journalists and activists -- including former New York Times reporter Chris Hedges, scholar Noam Chomsky, and Daniel Ellsberg -- who argued it interfered with their First Amendment and Fifth Amendment rights. CMD joined in an amicus brief in support of the plaintiffs before the district court.

District Court Ruled that First Amendment Rights Would Be Chilled

In September, Judge Katherine Forrest, who was appointed by President Obama, agreed with the plaintiffs and permanently blocked Section 1021 of the NDAA on grounds that terms like "substantially supported" or "associated forces" were unconstitutionally vague and could have a "chilling impact on First Amendment rights." She also found the provisions did not satisfy the Fifth Amendment's requirement that ordinary citizens can understand the scope of conduct that could subject them to criminal penalties or detention.

"It is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights," she wrote in her first decision temporarily blocking the law. "In the face of what could be indeterminate military detention, due process requires more."

Judge Forrest rejected the government's arguments that the NDAA was merely a restatement of the detention powers in the AUMF that Congress passed after September 11, 2001. If that were the case, the U.S. Senate would have spent months crafting language that was nothing more than a "mere redundancy," she found.

Appeals Court Considers Claims about the Power to Detain Americans

The Obama Administration appealed the decision to the Second Circuit (which had put a temporary hold on Judge Forrest's decision in October), and last week again claimed that American citizens would not be covered under the NDAA. The Administration noted that another provision, 1021-(e), clarifies that the NDAA does nothing to change the detention rules established under the 2001 AUMF.

At the February 5 hearing, Second Circuit Judge Raymond J. Lohier asked Justice Department lawyer Robert Loeb whether there had been authority prior to the 2011 statute which allowed the government to detain people based upon "substantial support" of a terrorist group.

"To my knowledge it has never been applied that way," Loeb replied.

This issue was addressed in the amicus brief CMD joined. The brief highlights the legislative history of the NDAA, showing how an amendment that would have definitively prohibited the military detention of American citizens was rejected by the U.S. Senate, indicating that American citizens could be covered under the law's detention provisions.

A proposed amendment to the NDAA that would have explicitly exempted American citizens was deleted in a substitute bill introduced by Sen. Carl Levin (D-MI), who acknowledged that the Obama administration had asked that the limiting language be deleted.

Additionally, Sen. Lindsey Graham (R-SC) insisted during floor debate that the NDAA would apply to American citizens even if captured on U.S. soil.

An amendment was later added declaring that the NDAA's detention provisions do not affect "existing law" relating to the detention of U.S. citizens, which the government referenced in the case to support its claim that U.S. citizens are not covered under the law. But as noted in the amicus brief: "if Senators Graham or Levin believed that this section would impose any limitation on the President's authority to detain U.S. citizens, then neither would have voted for it. Yet both did, indicating that the amendment was in no way inconsistent with their view that 'existing law' permits the military detention of American citizens arrested on American soil."

Senate Hears from Drone Proponent While Detention Case Is Pending

Obama Administration lawyers told the Second Circuit last week that the NDAA's Section 1021 is a mere codification of the AUMF's detention powers (an argument Judge Forrest rejected). Some have asserted that this argument indicates the government had already been exercising these indefinite military detention powers even prior to the 2011 NDAA. Indeed, the speed with which the government sought to block Judge Forrest's opinion -- which might have led the administration to be found in contempt of court if it were holding an American citizen without a civilian trial under the NDAA -- bolstered this fear.

At the same time, the confirmation hearing of President Obama's nominee to be the director of the Central Intelligence Agency, John Brennan, underscored those concerns with Brennan defending the use of drone strikes to kill Americans believed to be aiding Al Qaeda or other forces, if the threat posed by that person was believed to be "imminent." That is, the administration asserted in one forum a right to summarily execute an American and asserted in another that it would not interpret the law to allow it to indefinitely detain an American.

The Obama Administration Argues It Would Not Detain Reporters

The Obama Administration also argued to the Second Circuit that plaintiffs do not have standing to pursue a lawsuit, as they have no "objectively reasonable fear of being placed in long-term detention," according to Loeb.

In the lower court case, Obama Administration lawyers refused to state that plaintiffs could not be subject to detention under the NDAA. But before the Second Circuit, Loeb argued that reporters like Hedges would not be covered by the law because they were "independent journalists," but without saying who makes such a definition or determination.

But Hedges notes that he has interviewed members of Al Qaeda and other members of groups on the State Department's terrorist list. He also noted that, in the 1980s, he traveled frequently and reported on members of left-wing revolutionary groups like the FMLN in El Salvador -- a group deemed a terrorist organization by the Reagan Administration, which frequently denounced journalists like him as terrorist collaborators. (The FMLN is now a political party that has been elected to the Salvadoran presidency and maintains positive relations with the United States.)

The Second Circuit may not make a final ruling on the provision for months. Regardless of how the court rules it is almost certain to be appealed to the U.S. Supreme Court.

(CMD's Executive Director, Lisa Graves, who formerly served as the Deputy Director of the Center for National Security Studies and as the Senior Legislative Strategist for the American Civil Liberties Union, contributed to this article and authorized CMD's participation in the district court case and the appeal. She previously served as Deputy Assistant Attorney General in the U.S. Department of Justice, serving under both Janet Reno and John Ashcroft.)