U.S. Circuit Court of Appeals Hears Arguments in NDAA Battle (We Barely Could)


It sounded like a panel of Federal Appeals Court judges drilled lawyers with a barrage of questions yesterday during a hearing of oral arguments in the high-profile lawsuit against the Obama administration over the 2012 National Defense Authorization Act.

Of course, that’s a bit tough to confirm considering that despite numerous requests from plaintiffs to have the arguments heard in a large courtroom, it was held in a rather small one. Unfortunate journalists and onlookers such as myself were subjected to listening to the hearing in a spacious overflow courtroom decked-out with two antiquated speakers fit for an iPod-Mini dock-system–which court technicians didn’t get to work until 15 minutes into the hearing.

Public interest in the case is so high that many spectators and journalists couldn’t even get into the ill-equipped overflow room. No biggie though, it’s only a case that will decide whether the U.S. Military and the Executive Branch have the right to detain American citizens.

Yesterday’s Second Court of Appeals hearing was the latest in a case brought by a group of seven plaintiffs–including former New York Times Reporter Chris Hedges, noted scholar Noam Chomsky and Pentagon Papers leaker Daniel Ellsberg–against the Obama administration over section 1021 of the 2012 NDAA, which authorizes the military to detain:

“A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

From what could be heard over the shitty speakers, lawyers from the Obama administration seemed to present a bit of a scattered argument. In lower court hearings, they refused to answer whether any of the plaintiffs would be subject to detention under the provision. Yesterday the U.S. Department of Justice attorneys argued that the law doesn’t apply to the plaintiffs in their work as journalists, activists, researchers and commentators.

The attorneys for the plaintiffs, Bruce Afran and Carl Mayer, continued to argue that the provisions hardly ensures that their clients will face future immunity from detention because the statue fails to precisely define what constitutes “substantially” supporting terror groups or groups “associated” with terrorism. The plaintiffs frequently interview and voice the opinions of subjects who are either directly associated with, or could be identified by the government as associates of terrorist organizations.

“[The government] kept qualifying that independent journalists are going to be fine,” Tangerine Bolen, the founder of RevolutionTruth and a plaintiff in the case,” told the Voice. “Well, where is that line of independent versus dependent? And, who defines that line?…No matter what, the language of 1021 opens the door for anyone, anywhere to be detained.”

Journalist Alexa O’Brien has reported extensively on U.S. abuses at Guantanamo Bay, and in the course of her investigations she’s spoken to many detainees who are classified as current and former members of terrorist organizations. She previously testified that the government has already targeted her for her journalism and association with U.S. Day of Rage.

“It’s certainly chilled my freedom of speech because there are articles that I have chosen not to publish since the passage of this law,” O’Brien said. “People aren’t going to express themselves openly if there’s the threat of indefinite detention over their head.”

According to Matt Sledge of the Huffington Post, DOJ attorney Robert Loeb argued that the law “expressly exempts our citizens” from detention, but Judge Raymond Lohier countered that it really “doesn’t exempt anything.”

“If they had written in there, that U.S. citizens were exempt, none of us would be here. But they didn’t do that. And they didn’t do that on purpose,” Hedges told the Voice.

What made the government’s argument a bit bi-polar is that while the lawyers insisted that American civilians won’t be detained. They concurrently argued that if an American is detained under the law, subsection 1021-(e) affords them with the same Fifth Amendment rights they’ve always had. Afran and Mayer argue that this doesn’t solve the issue of whether the military has the right to detain them in the first place.

“That section of the law actually says that Americans in this country can be detained, but they can assert their rights to get out later,” Afran said at a press conference following the hearing. “This presumes something that the Supreme Court has always said is unconstitutional: the detention of Americans by the military.”

Mayer added that there’s no telling how long a detained American would have to wait to exercise his or her Fifth Amendment right to due process of the law.

“Once someone is already detained they can then move the government to clear them, but usually these cases take seven or eight years,” Mayer said.

Despite this apparent flaw in the logic of the provision, the plaintiffs fear that if the judges do decide to rule against them, they’ll use this so-called “saving-clause” as their out.

“I think on the merits we should win. It’s hard to know,” Hedges told us. “The only judge in the last decade to stand up to the abuses of the National Security state has been Judge Katherine Forrest in the Southern District of New York. The pattern has been one where courts have essentially issued opinions where they’re arguing why they can’t [strike down] the law.”

As Voice writer Nick Pinto previously reported, Forrest affirmed many of the plaintiffs’ arguments in her district court ruling.

She levied an injunction on the law in September, but the Obama administration quickly filed an emergency appeal with the Second Circuit, which granted the president with a stay on the injunction. As it stands now, the law is still in place, and Obama signed off on a 2013 update of the law in January, which grants the military similarly vague authorities to detain Americans.

“For once, for once, a judge [was] willing to say this is officially unconstitutional no matter to whom, when, or under what circumstances,” Ellsberg said during the press conference. “I’ll be pleasantly surprised if [the Appeals Court judges] have the courage to do what she’s done, and not simply be time-servers for their own advancement. I don’t think [Forrester’s ruling] will advance her very much.”

Afran and Mayer are confident that they sufficiently argued their points, but declined to predict how the court will rule and noted that a decision on the case likely won’t be rendered until months from now. Both sides of the lawsuit plan to appeal to the Supreme Court if they lose.

“If we don’t prevail, we will appeal to the Supreme Court. If we do prevail, we’ll call on the Obama administration to stop their practices,” Mayer told the Voice. “Either way I think it’s been a huge success because not only did we win [in district court], but we’ve given the administration and the military the distinct impression that they can’t do this without a reaction from the citizens.”

Previous Coverage:

NDAA Suit Argued In Federal Court Yesterday

Obama’s NDAA Law Allowing Indefinite Military Detention of Citizens Ruled Unconstitutional

Syke! Permanent Military Detention For American Citizens Is Totally Cool Again

Appeals Panel Undermines Free Speech Victory Over NDAA