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Tuesday, February 27, 2024
Courthouse News Service
Tuesday, February 27, 2024 | Back issues
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NDAA Opponents Stretch Across the Aisle

MANHATTAN (CN) - Lawmakers, free-press advocates, small-government partisans, conservative think tanks, pro-gun groups, border-control activists, civil libertarians, a pastor and a professor forged an unlikely alliance Monday to speak against the 2012 National Defense Authorization Act in federal court.

The motley crew hopes to intercede in a lawsuit against provisions of the law that have been dubbed "Homeland Battlefield." Its ranks include the Bill of Rights Defense Committee, Center for Media and Democracy, Conservative Legal Defense and Education Fund, Constitution Party National Committee, Downsize DC Foundation, Gun Owners Foundation, Restoring Liberty Action Committee, Tenth Amendment Center, The Lincoln Institute for Research and Education, U.S. Border Control, U.S. Justice Foundation and Western Center for Journalism.

Signed by President Barack Obama on New Year's Eve, the 565-page NDAA contains a short paragraph that lets the military detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would supposedly last until "the end of hostilities."

In a signing statement, Obama contended that the new language "breaks no new ground" and restated the 2001 Authorization to Use Military Force (AUMF).

That assurance did not sway Pulitzer Prize-winning journalist Chris Hedges, who filed a federal lawsuit saying that the vague language could be used to crack down on journalists, activists and political dissidents.

After six plaintiffs joined that suit, the group called themselves the "Freedom 7" and stepped into court for the first time late last month. Three of them testified about government repression they already have encountered that makes them fear what the NDAA could hold in store.

Government attorneys offered none of their own witnesses, but they repeated Obama's position that the NDAA represents no change from the AUMF.

Lawyers for the NDAA opponents brushed that position aside in a new brief Monday.

"This court need not and should not indulge the fiction that section 1021 merely acknowledges authority latent in the AUMF," the memo states.

The group of 19 that wish to file an amicus, or friend-of-the-court, brief add that, even if the AUMF representations are true, the constitutionality of that authorization merits review.

Legislators passed the AUMF seven days after the Sept. 11 attacks, "acting in the heat of passion," according to the brief. The controversial provisions in the NDAA, Section 1021(b)(2), were passed a decade later.

The plaintiffs outlined the legislative differences in the new brief.

"AUMF authority is linked to the 9/11 attacks, and the purpose of AUMF authority is 'to prevent any future acts of international terrorism against the United States' by those involved in the 9/11 attacks, and those that harbored them," the memorandum states. "By contrast, Section 1021(b)(2) authority is linked to no event, states no specific purpose, and extends to 'covered persons' who 'substantially support' those 'that are engaged in hostilities against the United States or its coalition partners,' a far broader 'catchment' than the AUMF."

Attorneys for the government are expected to reply in May, and U.S. District Judge Katherine Forrest is expected to rule shortly after she reads all of the written arguments.

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