The firm of William J. Olson, P.C., which filed a friend-of-the court brief asking the court to step in, noted that not a single justice dissented from the denial of the request for review.
“The court ducked, having no appetite to confront both political parties in order to protect the citizens from military detention,” the legal team said in a statement to WND. “The government has won, creating a tragic moment for the people – and what will someday be viewed as an embarrassment for the court.”
The controversial provision authorizes the military, under presidential authority, to arrest, kidnap, detain without trial and hold indefinitely American citizens thought to “represent an enduring security threat to the United States.”
Journalist Chris Hedges was among the plaintiffs charging the law could be used to target journalists who report on terror-related issues.
A friend-of-the-court brief submitted in the case stated: “The central question now before this court is whether the federal judiciary will stand idly by while Congress and the president establish the legal framework for the establishment of a police state and the subjugation of the American citizenry through the threat of indefinite military arrest and detention, without the right to counsel, the right to confront one’s accusers, or the right to trial.”
The brief was submitted to the Supreme Court by attorneys with the U.S. Justice Foundation of Ramona, California; Friedman Harfenist Kraut & Perlstein of Lake Success, New York; and William J. Olson, P.C. of Vienna, Virginia.
The attorneys are Michael Connelly, Steven J. Harfenist, William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan and Robert J. Olson.
They were adding their voices to the chorus asking the Supreme Court to overturn the 2nd U.S. Circuit Court of Appeals, which said the plaintiffs didn’t have standing to challenge the law adopted by Congress.
The brief was on behalf of Rep. Steve Stockman, R-Texas, Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, the U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Center for Media & Democracy, Downsize DC Foundation, Downsize DC.org, Free Speech Defense & Education Fund, Free Speech Coalition, Western Journalism Center, The Lincoln Institute, Institute on the Constitution, Abraham Lincoln Foundation and Conservative Legal Defense & Education Fund.
Journalist Chris Hedges, who is suing the government over a controversial provision in the National Defense Authorization Act, is seen here addressing a crowd in New York's Zuccotti Park.
The 2014 NDAA was fast-tracked through the U.S. Senate, with no time for discussion or amendments, while most Americans were distracted by the scandal surrounding A&E’s troubles with “Duck Dynasty” star Phil Robertson.
Hedges, a Pulitzer Prize-winning journalist, and others filed a lawsuit in 2012 against the Obama administration to challenge the legality of an earlier version of the NDAA.
It is Section 1021 of the 2012 NDAA, and its successors, that drew a lawsuit by Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alex O’Brien, Kai Warg All, Brigitta Jonsottir and the group U.S. Day of Rage. Many of the plaintiffs are authors or reporters who stated that the threat of indefinite detention by the U.S. military already had altered their activities.
“It’s clearly unconstitutional,” Hedges said of the bill. “It is a huge and egregious assault against our democracy. It overturns over 200 years of law, which has kept the military out of domestic policing.”
Hedges is a former foreign correspondent for the New York Times and was part of a team of reporters awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism.
The friend-of-the-court brief warned the precedent “leaves American citizens vulnerable to arrest and detention, without the protection of the Bill of Rights, under either the plaintiff’s or the government’s theory of the case.”
“The judiciary must not await subsequent litigation to resolve this issue, as the nature of military detention is that American citizens then would have no adequate legal remedy,” the brief explained.
John W. Whitehead, president of The Rutherford Institute, said that once again, the U.S. Supreme Court “has shown itself to be an advocate for the government, no matter how illegal its action, rather than a champion of the Constitution and, by extension, the American people.”
“No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes,” he said. “What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker.
Whitehead said that “according to government guidelines for identifying domestic extremists – a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.”
There already is precedent for the mass detainment of citizens.
In 1944, while the U.S. was defending itself in a war launched by Japan, the government rounded up thousands of Japanese Americans and placed them in camps under the approval of the high court in its Korematsu v. United States decision.
The new law authorizes the president to use “all necessary and appropriate force” to jail those “suspected” of helping terrorists.
The Obama administration had claimed in court that the NDAA does not apply to American citizens, but Rutherford attorneys said the language of the law “is so unconstitutionally broad and vague as to open the door to arrest and indefinite detentions for speech and political activity that might be critical of the government.”
The law specifically allows for the arrests of those who “associate” or “substantially support” terror groups.
“These terms, however, are not defined in the statute, and the government itself is unable to say who exactly is subject to indefinite detention based upon these terms, leaving them open to wide ranging interpretations which threaten those engaging in legitimate First Amendment activities,” Rutherford said.
At the trial court, on Sept. 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of the plaintiffs and placed a permanent injunction on the indefinite detention provision.
Obama then appealed, and the 2nd Circuit authorized the government detention program.
Since the law passed, multiple states have passed laws banning its enforcement. Herb Titus, a constitutional expert, previously told WND Forrest’s ruling underscored “the arrogance of the current regime, in that they will not answer questions that they ought to answer to a judge because they don’t think they have to.”
The judge explained that the plaintiffs alleged paragraph 1021 is “constitutionally infirm, violating both their free speech and associational rights guaranteed by the 1st Amendment as well due process rights guaranteed by the 5th Amendment.”
She noted the government “did not call any witnesses, submit any documentary evidence or file any declarations.”
“It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not,” she wrote.
Instead, the administration only responded with, “I’m not authorized to make specific representations regarding specific people.”
Forrest wrote that the court’s “attempt to avoid having to deal with the constitutional aspects of the challenge was by providing the government with prompt notice in the form of declarations and depositions of the … conduct in which plaintiffs are involved and which they claim places them in fear of military detention.”
“To put it bluntly, to eliminate these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of 1021 would have been simple. The government chose not to do so – thereby ensuring standing and requiring this court to reach the merits of the instant motion,” she said.
“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment.”