Daniel Ellsberg

Daniel Ellsberg, one of the plaintiffs in the NDAA lawsuit

Argument in the government’s appeal against the provision of the 2012 National Defense Authorization Act (NDAA), which grants the military the authority to indefinitely detain US citizens, took place this morning at the Second Circuit United States Court of Appeals.

The lawsuit was filed in 2012 by a group of journalists and activists that includes journalist Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg, writer Noam Chomsky, RevolutionTruth.org co-founder Tangerine Bolen, Occupy London co-founder Kai Wargalla, Icelandic parliamentarian Birgitta Jonsdottir and US Day of Rage founder and journalist Alexa O’Brien.

Judge Katherine Forrest determined last year that the provision of the NDAA—Section 1021—was unconstitutional and issued a permanent injunction. The government not only appealed the ruling but also asked Forrest for an emergency stay. She denied the request and the government went to the Second Circuit and obtained a stay so that it could continue to use the provision to its full extent as it is being challenged.

In court, Justice Department attorney Robert M. Loeb claimed the journalists/activists bringing the case have to demonstrate “injury” or “active injury.” They have not demonstrated that they will be detained indefinitely by the military in the immediate future so they should not be able to bring this case.

Loeb also argued the detention authority in the NDAA exempts citizens and does not apply to the conduct of journalists. It claimed “aliens of the United States,” such as Jonsdottir and Wargalla, are not allowed to challenge the law simply because they are afraid to travel to the United States and be detained.

The government spoke about having a “decade of experience” detaining people and asserted that no US citizens or journalists had been detained yet. However, this is simply not true: Abdulelah Haider Shaye in Yemen, a journalist, has been kept in prison at the orders of President Obama. Later in the proceedings, the Justice Department attorney highlighted the case of Sami al-Hajj, an al Jazeera journalist who was held in detention at Guantanamo for a number of years.

A critical issue in the lawsuit has been what the words “substantially supported” mean in the provision because the government claims it can detain people who are suspected of “substantially supporting” Al Qaeda. The plaintiffs have felt it is vague and undefined and Forrest mostly agreed in her ruling. Forrest also concluded the standard was a new standard and did not appear in the Authorization for the Use of Military Force (AUMF).

Judge Raymond Lohier asked Loeb when this standard was adopted and he said after the 9/11 attacks the government began to use it to go after people who were part of al Qaeda. Lohier pressed and asked, prior to March 2009, when the government offered up an interpretation of the law with this phrase, was there a statute that granted the government the power to indefinitely detain individuals deemed to have provided “substantial support” to al Qaeda?

Loeb said the AUMF provided detention authority and then, after Lohier asked a follow-up, he said the question about whether the AUMF granted authority to detain “substantial supporters” would be subject to further litigation.

The judges continued to press this issue. Loeb said it dates back to before 2004. Judge Lewis Kaplan remarked, “In the same sense that we all date back to Adam and Eve,” the standard probably dates back to before that year.

Kaplan raised the fact that the “Executive Branch has been known to make things up.” Loeb replied, “This is not just us making things up,” and cited the laws of war as providing authority.

This response did not appear to convince Kaplan, who said what the government is defending is not the “most well-defined concept.” It is not something Congress had previously enacted. The Justice Department’s attorney then cited the Geneva Conventions as something that protects journalists (which was a bit striking because the United States has not signed on to it so it would have a force of law in the country).

Before the plaintiffs delivered their argument, a representative from Congress sent by Sen. Lindsey Graham and Sen. John McCain stepped up to provide testimony on why Congress had passed the NDAA and included this provision. What the representative stated did not do too much to bolster the government’s defense. It probably raised more questions than answers, as he suggested that it is typical for Congress to use words that are “general in nature” so that the Executive Branch can have the latitude to decide how to interpret them.

One critical issue was addressed by the judges, as Lohier took the opportunity to ask if this was the first time Congress had passed a law “affirming an already existing authority” involving detention. The representative said yes. He had said something about Congress and the Executive Branch having spirited debate between the branches. Lohier facetiously remarked that he assumes there’s always “spirited inter-branch dialogue” so that cannot explain why Congress would pass a law that merely affirmed a prior law.

Lawyer for the plaintiffs, Carl Mayer, told the court the provision has the potential to create a detention scheme that “echoes the internment policies of World War II.” He dedicated his remarks in court to Korematsu.

Mayer stated there is no reason for a law to codify another law. He also noted that, when arguing before Forrest, the government refused to state the provision would not implicate the conduct, which the journalists or activists bringing the case had been involved.

Kaplan challenged Mayer on the following: if there is nothing in the NDAA provision that affects existing law and the lawsuit only seeks to declare it unconstitutional, what about the fact that prior existing law involving detention might be unconstitutional?

Mayer answered the statute makes existing law unclear. He argued a part of the NDAA provision makes it possible for the government to use it to justify rendering citizens to another country and then broached the issue of habeas reviews, which the government says is the due process afforded to citizens under the law. However, Forrest found in her ruling that this was not good enough to satisfy due process rights because habeas reviews can take years before they reach a ruling.

The government made some startling statements about Al-Hajj. Loeb said Al-Hajj had used the claim that he was a journalist as a cover for something else. He suggested he had been involved in “providing stinger missiles.” A person in a case like this cannot use being a journalist as a defense against indefinite detention, Loeb said.

As Amy Goodman of “Democracy Now!” wrote, “His interrogators believed he had filmed the last known interview with Osama bin Laden. Al-Hajj told them: “I’m not the person who film[ed] Osama bin Laden, because at that time I was in Doha. And my passport says that, and my ticket with you also says that. I’m not the person. This is my job, and this is my business. If I get chance now to film Osama bin Laden, I will.” He was released from Guantanamo Bay nearly seven years after he was detained by US forces.

Afran told the court that it had been accepted as fact that Hedges had “associated” with al Qaeda at one point in his career because he did interviews with them and covered members’ views. In fact, the military had detained him on one occasion for straying from an embedded group. Clearly, a person like Hedges could be at risk of detention if engaged in journalism in a conflict zone.


A press conference followed the oral argument. Hedges, a key plaintiff in the lawsuit, described how what was happening in the courtroom was the last “thin line of defense between protecting what is left of our anemic democracy and the imposition of a military state.” He said the deterioration of civil liberties under the Obama administration has complete continuity with the Bush administration and, in fact, it has been worse.

O’Brien noted that the government would not state in court that she would not be detained and that laws should not read in the “poetry of fortune cookies” and be backed up with the “legal precedent of Yale speeches.” NSA whistleblower Thomas Drake declared, “What we see here is a Magnificent Seven standing in the breach against a final assault by this administration, which has been continuing from the previous administration in 2001, under the excuse that somehow we live in exigent conditions and that somehow because these conditions are so different and extraordinary that the constitution’s just a mere piece of paper.”

Mayer told the press that, whatever the outcome, plaintiffs will continue to pursue this effort even if they do not prevail against the government’s appeal. Afran noted the court was concerned about a section of the law that says there’s an exemption for US citizens. The plaintiffs answered bluntly that exemption says people detained in the US will not be affected and presumes they will be detained by the military, which is unconstitutional.

More from the press conference, including video, will hopefully be posted soon. 

Photo by Steve Rhodes under Creative Commons license