No SCOTUS Review of Military Detention Law

     WASHINGTON (CN) – A group of journalists opposed to the Obama administration’s military detention law will not get the chance to have the Supreme Court revive their case.
     Pulitzer Prize-winning journalist Chris Hedges had filed the challenge days after President Barack Obama signed the 2012 National Defense Authorization Act, or NDAA, which Hedges claims has dangerously vague language that could be used against reporters, activists and human-rights workers.
     One paragraph nestled in the 565-page doorstopper, Section 1021(b)(2), lets the military indefinitely detain anyone accused of having “substantially supported” al-Qaida, the Taliban or “associated forces” until “the end of hostilities.”
     He wrote Monday that the Supreme Court’s refusal to hear the case “means the nation has entered a post-constitutional era.”
     “It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal,” Hedges said in a post published by “It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power – one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed – a poll by showed that this provision had a 98 percent disapproval rating – is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty.”
     Six others opposed to the law, including renowned scholar Noam Chomsky and Pentagon Papers source Daniel Ellsberg, had joined Hedges as co-plaintiffs.
     Though a federal judge in Manhattan quickly blocked the law based on the so-called Freedom Seven’s “reasonable fear” for their free speech and due process rights, the 2nd Circuit had stayed the injunction pending the government’s appeal.
     Those watching the case predicted that full reversal was likely after the Supreme Court’s February 2013 resolution of Clapper v. Amnesty International.
     In that case, a five-justice majority found that human rights groups could not force the government to produce evidence about its warrantless wiretapping program without proof of the spying. Detractors have criticized the ruling as a “Catch 22.”
     Like the warrantless-wiretapping opponents, the challengers of indefinite detention failed to prove that they had any chance of winding up in a military prison, the 2nd Circuit found in July.
     Though critics of the NDAA have interpreted the law as allowing the indefinite military detention of U.S. citizens, such as Hedges and a fellow plaintiff-journalist Alexa O’Brien, the court found otherwise.
     “The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the president’s authority to detain American citizens,” U.S. District Judge Lewis Kaplan wrote for a three-member panel, sitting by designation from the Southern District of New York.
     “And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021,” Kaplan added (emphasis in original). “Accordingly, we do not address the merits of plaintiffs’ constitutional claims.”
     The Supreme Court denied Hedges and the others a writ of certiorari last week. Per its custom, the justices did not issue any comment on the decision.
     Carl Mayer, co-counsel with Bruce Afran for the NDAA’s opponents, said the refusal shows that the “Supreme Court turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America.”
     The NDAA “gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad,” Mayer said, according to the Hedges post. “There is little left of judicial review of presidential action during wartime.”

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