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On The Front Lines

Rutherford Institute Challenges NDAA’s Indefinite Detention Provision, Calls on Second Circuit to Protect Americans from Habeas Corpus Violations


Click here to read The Rutherford Institute’s amicus brief in Hedges v. Obama

NEW YORK, N.Y. — Attorneys for The Rutherford Institute have filed an amicus curiae brief with the United States Court of Appeals for the Second Circuit in Hedges v. Obama, a case which challenges the indefinite detention of Americans by the armed forces under a provision of the National Defense Authorization Act for Fiscal Year 2012 (NDAA).

In challenging the NDAA’s indefinite detention provision as a violation of Americans’ habeas corpus rights, Rutherford Institute attorneys are asking the Second Circuit Court of Appeals to affirm a lower court decision which found the NDAA’s indefinite detention provisions to be unconstitutionally vague. The lawsuit was filed in January 2012 in the U.S. District Court for the Southern District Court of New York by journalists and activists who are concerned that, under the NDAA’s provisions, they may be subject to indefinite detention for various constitutionally protected activities such as interviewing alleged terrorists or working to put an end to wars in countries viewed by the U.S. as harboring terrorists. The plaintiffs represented in the lawsuit include former New York Times war correspondent Christopher Hedges, Pentagon Papers whistleblower Daniel Ellsberg, and writer Noam Chomsky, among others.

“As Pulitzer Prize-winning journalist Chris Hedges rightly observed, the appellate court is all that separates us and a state that is no different than any other military dictatorship,” said John W. Whitehead, president of the Rutherford Institute. “The NDAA is a threat to anybody causing trouble, and in our world today, anyone exercising their rights is more often than not seen as a troublemaker. This should be a cause of concern for anyone exercising their First Amendment rights, especially.”

President Obama signed the mammoth defense bill, NDAA 2012, into law on December 31, 2011, followed a year later by NDAA 2013. Adopted by Congress in late 2011, the NDAA contains a provision allowing for the indefinite detention of American citizens by the armed forces. By its own terms, the NDAA allows for the indefinite detention of any person whom the government deems to be a part of or to have “substantially supported” al-Qaeda, the Taliban, or “associated forces.” However, because these terms are not defined in the statute, they are open to wide-ranging interpretations, including interpretations which could threaten those engaging in legitimate First Amendment activities.

One group of writers, academics, journalists, and activists, including former New York Times war correspondent Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg, and writer Noam Chomsky, is challenging any attempt by the government to use the indefinite detention provision of the NDAA to limit constitutionally protected activity. For example, it is conceivable that those protesting American foreign policy, or those who interview suspected terrorists for journalistic purposes, may be considered in violation of the NDAA.

As Hedges, a Pulitzer Prize winner, explained, “I, as a foreign correspondent, had had direct contact with 17 organizations that are on [the US government’s list of terrorist organizations], from al-Qaida to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section [of the NDAA] to exempt journalists.”

On September 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of Hedges, placing a permanent injunction on the indefinite detention provision. That ruling has since been overturned by the Second Circuit Court of Appeals pending its assessment of the provision’s constitutionality.

In filing an amicus curiae brief on behalf of Hedges et. al., Rutherford Institute attorneys argue that the NDAA provision represents an extreme violation of the First Amendment and that the indefinite detention of any American citizen, regardless of his or her alleged crime, is a direct violation of the constitutional right of habeas corpus, the right to have one’s case reviewed in a court of law so as to avoid unlawful detention.


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