“This is the final battle between the restoration of due process and the imposition of a military state.” — Chris Hedges
On Wednesday, the Second Circuit Court of Appeals will hear Hedges v. Obama, one of the most important civil liberties cases since 9/11. The plaintiffs, known as the “Freedom 7” claim that Section 1021 of the 2012 National Defense Authorization Act (NDAA) is unconstitutional, and violates the First and Fifth Amendments. The defendants, the Obama administration, claim it merely codifies existing law under the 2001 Authorization for Use of Military Force (AUMF) and does not apply to U.S. citizens.
Let’s start with the government’s positions.
The initial premise brought by government lawyers in Hedges v. Obama is that the plaintiffs lack standing. The administration asserts none of the plaintiffs have any standing, because “any injury deriving from 1021 (b) (2) cannot be redressed by the Constitutional challenge since the government has the same detention authority under the AUMF.” In other words, the plaintiffs have no standing. This case will do nothing to prevent their detention because the AUMF already gave the government that power.
This claim rests on the Obama administration's second point, namely that the 2012 NDAA doesn't expand the scope of the AUMF.
The 2001 AUMF, passed in response to the deadly crimes on September 11, 2001, authorized the president to use necessary force against anyone he determined to be involved with 9/11, harbored those involved with it, or aided in the commitment of that crime. The Obama administration posits that the 2012 NDAA, specifically section 1021 (b) (2), takes this power no further.
The plaintiffs have a very different view, arguing that they have standing because the 2012 NDAA significantly expands the powers under the AUMF.
Chris Hedges, when asked if he knew what associated forces meant, said “I don’t think we know what ‘associated forces’ are. That’s the reason I’m here.” The “Freedom 7” believe that the 2012 NDAA vastly expands the targeting profile and detention powers to include them under its umbrella. They claim the phrases “directly supported,” “substantially supported,” and “associated forces,” among others, are so vague as to allow them to be interpreted to cover nearly everyone … including me and you.
So, who’s right?
The difference, or lack thereof, between the 2012 NDAA Section 1021 (b) (2) and the 2001 AUMF is the key issue here. The president, according to the AUMF, is authorized to use all necessary and appropriate force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…” This language is very specific, ties a person’s accusation to involvement with the September 11, 2001 terror attacks, and outlines fairly precisely who Congress authorized the president to go after.
According to Section 1021 (b) (2) of the 2012 NDAA however, a covered person is "a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Thomas Jefferson warned, “In matters of power, let no more be heard of the confidence in man, but bind them down from mischief with the chains of the Constitution.” The language in Section 1021 (b) (2) not only seems vague, it is vague. District Judge Katherine Forrest, in her May 16 preliminary injunction, said “The government was unable to define precisely what 'direct' or 'substantial' 'support' means." She reaffirmed that in her permanent injunction on September 12th, noting "the Government’s terse arguments do not resolve the Court’s concerns. The statute’s vagueness falls short of what due process requires.”
These terms are so vague in fact, that the government could not even guarantee someone who wrote a book with one sentence, “I support the political goals of the Taliban,” would not be detained under the 2012 NDAA.
The over-broad nature of the 2012 NDAA, which expands the targeting profile of the 2001 AUMF from those directly connected with 9/11 to anyone that directly supports associated forces or puts the wrong words into a book, makes it one of the most dangerous laws since the civil war.
Chris Hedges could be right. This lawsuit, and other efforts to stop the NDAA, may truly be the last stand for what’s left of our Constitution.