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Journalists Prepare US Supreme Court Fight Against Indefinite Detention

FILE - Occupy Wall Street activist Lauren Digioia is detained by police during a demonstration against the National Defense Authorization Act in New York's Grand Central Station, Jan. 3, 2012.

FILE - Occupy Wall Street activist Lauren Digioia is detained by police during a demonstration against the National Defense Authorization Act in New York's Grand Central Station, Jan. 3, 2012.

A group of journalists and activists are preparing to challenge a U.S. court decision upholding the Obama administration’s ability to indefinitely detain individuals. The ruling, plaintiffs say, deals a blow to civil liberties in the name of national security, and could even be used to detain U.S. citizens without due process.

An appeals court in New York this week ruled the plaintiffs do not have standing to challenge Section 1021 of the National Defense Authorization Act.

The U.S. Court of Appeals for the Second Circuit found the law “says nothing at all about the President’s authority to detain American citizens,” as argued by the plaintiffs. It also said the non-citizen plaintiffs “failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021.”

Wednesday’s decision hands a victory to the U.S. government, upholding its ability to indefinitely detain people considered enemy combatants, or individuals considered to have provided support to them.

Guilt by association?

The ruling struck down a district court injunction that had sided with the plaintiffs, who contend Section 1021 is a significant expansion of the president's military detention authority. The plaintiffs, many of whom have interviewed militants and terrorist suspects, say they fear "the government may construe their work as having substantially supported al-Qaeda, the Taliban, or associated forces."

The plaintiff’s attorney, Bruce Afran, said Friday he will be filing an appeal to the Supreme Court.

“I am troubled by this decision as part of a series of court decisions in which the courts are refusing to take on civil liberties abuses and overreach by the federal government,” Afran said.

The plaintiffs say the wording of the NDAA is conveniently vague, so that it could be interpreted to include U.S. citizens or not. Afran added it seems impossible his clients “don’t have an objective fear that the law could be used against them.”

“My clients are not extremists. They’re writers and journalists who’ve had contacts with these groups to understand who they are,” he said.

Among the plaintiffs are journalist Christopher Hedges, Pentagon Papers whistle-blower Daniel Ellsberg, RevolutionTruth founder Jennifer "Tangerine" Bolen, writer and activist Noam Chomsky, journalist Alexa O’Brien, activist Kai Wargalla and Icelandic parliamentarian Birgitta Jonsdottir.

When Hedges, a war correspondent who has interviewed members of al-Qaida and the Taliban, first filed his lawsuit in January 2012, he suggested Section 1021 of the NDAA could have a chilling effect on the First Amendment, which protects free speech and freedom of the press.

The Pulitzer Prize winner reacted to the Appeals Court decision with disdain.

“It means there is no recourse now either within the executive, legislative or judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights,” Hedges said in a statement to TruthDig, where he is a columnist.

He suggested the NDAA has helped blur the lines between domestic policing and military counter-terrorism operations.

“It means that the state can use the military, overturning over two centuries of domestic law, to use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers,” he wrote.

Liberty vs law enforcement

Katherine Forrest, the U.S. district judge who originally sided with the plaintiffs, addressed the balance between liberty and law enforcement in her September 12, 2012 ruling.

“Does the public have a greater interest in preservation of its First Amendment and due process rights that are infringed by [section 1021 of the NDAA], or in having the statute potentially available for use by law enforcement authorities?” she asked.

Forrest blocked the implementation of the act on indefinite detention, saying the public has a “strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.”

The Fifth Amendment protects against the abuse of government authority and upholds a person’s right to the due process of law.

After the September 11, 2001, terrorist attacks, the U.S. passed a series of laws to give law enforcement agencies greater ability to gather intelligence on, and take action against, alleged terrorist threats. The National Defense Authorization Act, which outlines the Defense Department budget and spending plan, is part of that effort.

President Barack Obama signed the act in 2012, he said, “with serious reservations” about provisions related to the treatment of terrorism suspects held at Guantanamo Bay. At the signing, he also addressed concerns about the treatment of U.S. citizens.

“My Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation,” he said. “My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

The U.S. government has not said whether it has held any U.S. citizen under section 1021 of the NDAA.

Read the full court document: