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Will SCOTUS Address Indefinite Detention Under NDAA of 2012?

By William Peacock, Esq. on September 06, 2013 | Last updated on March 21, 2019

How many lawsuits have been brought as a result of a vague, poorly-drafted statue? Here is another one.

The National Defense Authorization Act of 2012 contained a provision that authorized the military to imprison anyone suspected of providing "substantial" assistance or support to terrorist groups "until the end of hostilities."

What is "substantial"? And when, oh when is it the "end of hostilities"?

The plaintiffs, including journalist Chris Hedges, claim that the vague language of the statue could be applied to journalists, who are often seen as more of a burden than a benefit to the military, especially when they uncover misconduct by American troops, reports RT.

Hedges stated, "I have had dinner more times than I can count with people whom this country brands as terrorists ... but that does not make me one." He has also alleged that he had been detained numerous times during his decades as a foreign correspondent.

District Court

The district court granted a preliminary injunction, then, after hearing the case, permanently enjoined enforcement of the Act, finding that it didn't "pass constitutional muster," as it could have a chilling effect on free speech and violate due process.

In her lengthy 110-page opinion, Judge Forrest emphasized that:

"The Government did not -- and does not -- generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad."

The Do-Nothing Law

The Second Circuit, on the other hand, felt that the law was far less egregious, and in fact, has no effect whatsoever on U.S. Citizens. The relevant provision of the statute states:

"Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

Senator Carl Levin, a sponsor of the bill, stated:

"[I]t would provide the assurance that we are not adversely affecting the rights of the U.S. citizens in this language․ It makes clear what we have been saying this language already does, which is that it does not affect existing law relative to the right of the executive branch to capture and detain a citizen. If that law is there allowing it, it remains. If, as some argue, the law does not allow that, then it continues that way."

In other words, both those in favor of the bill, and those opposed to it, clearly meant for that provision to ensure that the status quo remained for U.S. citizens, a status quo that, at the time, remained up for debate.

Because the law arguably changed nothing for U.S. citizens, the Second Circuit held that the U.S. citizen plaintiffs had nothing to worry about, and by extension, no standing. Foreign plaintiffs, such as a member of the Icelandic parliament, had demonstrated no fear of being arrested.

At least until the law is used, or misused, it can't be challenged under the Second Circuit's interpretation.


Of course, no one likes to live with the fear of unlawful arrest lingering over their lives. The plaintiffs are seeking certiorari from the Supreme Court, arguing that if they wait until they are unlawfully detained, it will be too late. There is no right to counsel under the NDAA, and the only remedy is habeas corpus, an extraordinary writ of last resort.

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