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For Immediate Release: April 29, 2014
U.S. Supreme Court Refuses to Hear NDAA
Legal Challenge, Allowing President and Military to
Arrest and Detain Americans Indefinitely Without Due
Process
WASHINGTON, D.C. — In refusing to hear a legal
challenge to the indefinite detention provision of the
National Defense Authorization Act of 2012 (NDAA), the
United States Supreme Court has affirmed that the
President and the U.S. military can arrest and
indefinitely detain individuals, including American
citizens. By denying without comment a petition for
review in Hedges v. Obama, the high court not
only passed up an opportunity to overturn its 1944
Korematsu v. United States ruling allowing for
the internment of Japanese-Americans in concentration
camps, but also let stand a lower court ruling
empowering the President to use “all necessary and
appropriate force” to indefinitely detain persons
associated with or “suspected” of aiding terrorist
organizations. In weighing in on the case before the
lower court, attorneys for The Rutherford Institute
challenged the Obama administration’s claim that the
NDAA does not apply to American citizens, arguing that
the NDAA’s language is so unconstitutionally broad and
vague as to open the door to arrests and indefinite
detentions for speech and political activity that might
be critical of the government.
The Rutherford
Institute’s amicus
brief in Hedges v. Obama is
available at www.rutherford.org.
“Once
again, the U.S. Supreme Court has shown itself to be an
advocate for the government, no matter how illegal its
action, rather than a champion of the Constitution and,
by extension, the American people,” said John W.
Whitehead, president of The Rutherford Institute and
author of A Government of Wolves: The
Emerging American Police State.
“No matter what the Obama administration may say to the
contrary, actions speak louder than words, and history
shows that the U.S. government is not averse to locking
up its own citizens for its own purposes. What the NDAA
does is open the door for the government to detain as a
threat to national security anyone viewed as a
troublemaker. According to government guidelines for
identifying domestic extremists—a word used
interchangeably with terrorists, that technically
applies to anyone exercising their First Amendment
rights in order to criticize the government.”
The
NDAA 2012, the mammoth defense bill passed by Congress
in 2011 and signed into law by President Obama, contains
a provision allowing for the indefinite detention of
those who “associate” or “substantially support” enemies
of the U.S. such as terrorist groups. These terms,
however, are not defined in the statute, and the
government itself is unable to say who exactly is
subject to indefinite detention based upon these terms,
leaving them open to wide ranging interpretations which
threaten those engaging in legitimate First Amendment
activities. Soon after the NDAA was enacted, a lawsuit
was filed by citizens and non-citizen activists and
journalists alleging that it violated their
constitutional rights by threatening them with
indefinite detention for engaging in protected speech,
such as protesting American foreign policy or
interviewing suspected terrorists for journalistic
purposes. On September 12, 2012, U.S. District Judge
Katherine Forrest of the Southern District Court of New
York ruled in favor of the plaintiffs and placed a
permanent injunction on the indefinite detention
provision.
However, President Obama appealed the
decision to the Second Circuit Court of Appeals, which
ruled in July 2013 that the journalists and activists
did not have standing to challenge the detention
provisions. In rationalizing its decision, the court
stressed that there had been no history of enforcement
against persons such as these plaintiffs (activists and
journalists, but non-combatants), the statute is not
aimed at persons like them, and there has been no
specific threat by the government to apply the statute
to them. Critics of the NDAA had hoped that the U.S.
Supreme Court would agree to hear the case and, in so
doing, reverse its 1944 ruling in Korematsu v.
United States, which concluded that the
government’s need to ensure the safety of the country
trumped personal liberties and allowed for the
internment of Japanese-Americans during World War
II.
This press release is available at
www.rutherford.org.
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