Appeals court hears arguments on indefinite military detention under NDAA

Today, the US Court of Appeals for the Second Circuit heard oral arguments in Hedges v. Obama, a lawsuit challenging domestic military detention authority under the National Defense Authorization Act (NDAA) of 2012. The panel of three judges heard arguments from lawyers representing the plaintiffs, who included Christopher Hedges, Noam Chomsky and Daniel Ellsberg.  The court also heard arguments from attorneys for the Department of Justice and, in a move opposed by the government, a lawyer representing three members of the Senate Armed Services Committee: Kelly Ayotte (R-NH), Lindsey Graham (R-SC), and John McCain (R-AZ).

The small courtroom was quickly filled with supporters of the plaintiffs. Over  a hundred additional supporters, as well as journalists, were soon shuttled to an overflow courtroom outfitted with an audio feed of the arguments, but the sound quality was spotty, making it difficult to decipher the proceedings in the courtroom.  Outside, a large group of activists held signs emblazoned with the rights and values threatened by the NDAA, including a free media, the right to assemble and the right to live without fear.

As the government was the party challenging the lower court's decision placing a hold on the use of indefinite military detention under the NDAA, its lawyers presented their arguments first. During the government's argument, lawyers claimed that the plaintiffs had no reasonable fear of indefinite detention, prompting the judges to question what prevented this administration, or any other, from backing away from that interpretation of the law. The government also emphasized its claim that the NDAA's indefinite detention provisions did not expand governmental power beyond what already existed from the Authorization for Use of Military Force (AUMF) signed by President Bush after September 11, 2001.

Plaintiffs' attorney Carl Mayer began by dedicating his argument to  Fred Korematsu and Gordon Hirabayashi and the other victims of Japanese Internment in the United States. The dedication drew attention to the history and dangers of indefinite military detention and the human consequences of unchecked executive authority.  BORDC helped to organize amicii for the case, including a brief on behalf of the Korematsu Center, and also filed its own amicus brief in the case.

The plaintiffs' lawyers argued that the NDAA clearly expanded the detention authority granted to the executive branch, noting both the text of the la, as well as the absurdity of passing a law that has no effect.

The judges also focused on factors that would limit the constitutional impact of their decision, asking if they could decide that the the NDAA did not implicate the Constitution, did not apply to US citizens and not impact the rights of foreign plaintiffs inasmuch as the First amendment might not apply to them.  The judges also signaled that they might wait to decide the case until the Supreme Court issues a ruling in Clapper v. Amnesty International, a case concerning the ability of a group of plaintiffs (also supported by an affidavit from Christopher Hedges) to challenge the government's warrantless wiretapping program.

That evening, a panel discussion on the case featured the plaintiffs, attorneys and other speakers, including Michael Moore, at the Culture Project in Manhattan. Over 200 people attended, and many signed up for a nascent campaign to build a local coalition in New York City challenging the NDAA's domestic detention provisions.

Updates on the Hedges case can be found on BORDC’s blog and at

You can also find others organizing across the country against the NDAA on BORDC’s national map of anti-NDAA movements. Organizers are also using Facebook to organize campaigns to oppose indefinite military detention across the United States.  Existing groups have been formed in California, Arizona, Colorado, Indiana, Kansas, Michigan, Missouri, Nevada, New York, Ohio, South Carolina, Texas, Washington, and Wyoming.

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