The NDAA lawsuit – it’s not looking good

In September of last year, US District Judge Katherine Forrest made a final ruling that Section 1021 of the National Defense Authorization Act (NDAA) – which allows for the indefinite detention of American citizens without trial – was unconstitutional and therefore unlawful. US Government lawyers immediately appealed against the ruling via the Second Circuit Court of Appeals, and on September 17th a 2nd Circuit Judge by the name of Raymond Lohier put a temporary stay on Judge Forrest’s ruling, meaning that Section 1021 of the NDAA was still law (the case is known as Hedges vs Obama, and you can find my previous post about it here).

The NDAA has no parallel in American history. In fact, it is without precedent in the history of Anglo-Saxon law since the Magna Carta was signed in 1215. Perhaps the closest historical kindred to the NDAA would be Article 58 of the Soviet Criminal Code, which allowed for arrest and summary imprisonment of anyone suspected of working to undermine the Soviet state. But this is the USA and many folks, myself included, figured that Hedges vs Obama would eventually end-up in the Supreme Court. Last December the Hedges plaintiffs applied to the Supreme Court to overturn the stay on Judge Forrest’s ruling. This application was rejected. In February of this year further arguements were heard by the Second Circuit Court of Appeals. Here’s Chris Hedges speaking outside the court room. You might note the absence of any mainstream media microphones (this is one of the most important court cases not just in recent years, but in recent decades)…

The Second Circuit judges were waiting for the result of another Supreme Court case, Clapper vs Amnesty International USA (which was a challenge against warrantless wiretapping – see here). At the end of February the Supreme Court decided in favour of the Government in Clapper vs Amnesty International USA. The day after this ruling the US Government filed a letter arguing that, like the Clapper plaintiffs, the Hedges plaintiffs could not “establish a present or ‘certainly impending’ injury-in-fact”, and that the NDAA’s detention provisions, like the NSA warrantless wiretapping authorization, merely permitted rather than required the government to take a particular action. The legal arguements as to whether Hedges vs Obama can actually go before the Supreme Court are still continuing. It doesn’t look good for Hedges & Co. On the plus side, 40 States, counties and cities, are bringing in their own legislation to overturn the NDAA (here). The NDAA 2013 was recently signed into law by President Obama, and it contains exactly the same indefinite detention provisions as the NDAA 2012. It should also be noted that the millionaires on Capitol Hill, from both sides of the political divide, continue to vote overwhelmingly for these NDAA indefinite detention provisions.

Here’s Tangerine Bolen, one of the 8 plaintiffs in Hedges vs Obama, being interviewed shortly after the court hearings in February…

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