Indefinite Detention and Standing – Should a Technicality outweigh Constitutional Protection?

[Note: In an attempt to make a long story short, and to have that reflect in a shorter post, this quick chronology has been simplified. There are many more details that can be found in studying the case history of Hedges v. Obama]


“President” Obama threatened a veto in an alleged pose of dissatisfaction with some of the language of the 2012 NDAA- and yet it was signed anyway, language intact, on December 31, 2011. That same “president” claimed that he was opposed to the provision legalizing the practice of indefinite detention, even of US Citizens, in the “war” on “terror” – and yet, Senator Carl Levin of Michigan revealed that, not only did the Obama Administration approve of the provision, but had demanded that it be included in the bill.

This will put a stinging spin on the later claim by the Obama Administration in the courts that the wording of the statute did not provide for an extension of the “authority” to Citizens and legal residents. Why did Obama claim to oppose it in the first place, if the bill did not provide for the things that were originally worried about – indefinite detention of all covered persons, even perhaps including U.S. Citizens.

In fact, according to Senator Levin in that same argument on the Senate Floor, the administration had not only demanded the provision in the meetings with the Armed Services Committee, but had requested that a provision would be removed that excluded its application to US citizens and legal residents.


A few journalists, led by Chris Hedges, decided to actually test the provision in the Courts by filing a lawsuit in January of 2012. The main contention was that the specific provisions dealing with indefinite detention, Section 1021 of the bill, allowed for the detention of citizens, including journalists – involving claims of due process, free speech, and the press clause.

The reading of one of the more problematic portions of the statute, the one that will be the focus of the challenge, is as follows in part:



(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40;
50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in sub-section (b)) pending disposition under the law of war.

b) COVERED PERSONS.—A covered person under this section is any person as follows:

2) 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.

c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.


This author hopes that the vague nature of this statute is considered evident by the reader. Even with the statutory provision later in the same section supposedly protecting citizens and lawful resident aliens, how can the section on covered persons not be considered, at least, constitutionally vague and worthy of removal. [Constitutionally vague merely means that a statute is too vague for the average person to understand.] In fact, the explicit protection of U.S. citizens itself, in spite of the vague nature of the section on covered persons, only applies to those “captured or arrested in the United
States” – thus, at best, leaving the door open for citizens who are abroad.

Just to specifically name a few of the vague terms emphasized above: what does it mean to “substantially support” or to be a part of “associated forces”? Or when will a “war” against the tactic of “terrorism” ever be considered finished (“until the end of hostilities”)? Could this be used against activists and journalists – even citizen activists and journalists?


The first ruling in the process came before U.S. District Court Judge Katherine Forrest in New York, and she ruled that that particular provision of the NDAA was unconstitutional and issued a preliminary injunction in May 2012 – rendering the statute void, at least for the time being. She took that a step further by making the injunction permanent later that year, in spite of the requests by the Obama Administration.

She ruled among other things that the statute lacks specificity, infringes on the constitutional protections of due process, and that giving deference (or allowance, if you will) to the executive branch on this matter was not justified.

The Judge even noted the vagueness coming from the Obama Administration itself. To quote Reuters:

The judge said she worried at the government’s reluctance at the March hearing to specify whether examples of the plaintiffs’ activities – such as aiding the anti-secrecy website Wikileaks in the case of Brigitta Jonsdottir, a member of parliament in Iceland – would fall under the scope of the provision.

To reiterate the refreshingly bold stance Judge Forrest took, the Obama Administration requested a stay of sentence, which would have halted the ruling’s applicability until the appeal was heard, and she refused; and, in fact, turned the injunction from preliminary to permanent. However, the stay was later granted by the 2nd Circuit Court of Appeals, until they were able to hear and rule on the case.

As a side not, one is left wondering why the Obama administration is so keen on having the legal justification for not extending due process to american citizens in the first place? Does not the argument that it “won’t” be used against citizens an admission that it could?

Is the statute already being used? One also wonders if anyone in the administration is left truly caring for their oaths of office to the U.S. Constitution – or at this point, has even read it, let alone understood and cared for it.

In the mean time, during these rulings, the alleged changes to the provision in subsequent versions of the NDAA were, under the guise of correction, actually worsening the statutory threats to the people’s rights as protected by the Constitution – all attempting to hide the claimed power via legalese (or lawyer-speak, if you will).


On July 17, 2013, the 2nd Circuit Court of Appeals ruled 3-0 in favor of the Obama Administration and overturned the ruling which declared that portion of the statute unconstitutional. The reason: lack of standing, or locus standi. Standing is essentially the legal right to file a case based upon the ability of the party to demonstrate harm committed to them by the law or action being challenged.

The court claimed that the statute actually doesn’t allow for the indefinite detention of citizens, and that the non-citizens had not adequately shown a basis for fear of detention under the statute being applied to them, and therefore, there was no standing by the appellants.

Seeking stay of sentence on this ruling, so that the first ruling would hold the day, the journalist plaintiff-appellants filed the paperwork and were subsequently denied by Justice Ginsberg of the Supreme Court. They tried once again with Justice Scalia, who brought it before the court, and were subsequently denied once again. No stay of sentence would occur.

Trying once again to lift the applicability of the 2nd Circuits upholding of the NDAA provision, Hedges filed for an appeal to the Supreme Court via a formal request for the court to issue a writ of certiorari – a formal legal request from a higher court for the records of a lower court in order to review a case.

The Obama Administration, not surprisingly, argued for that cert petition to be denied.

On April 28, 2014 the Supreme Court denied to issue the writ of certiorari, thus denying to review the case, and therefore, implicitly endorsing the findings of the 2nd Circuit Court of Appeals. In fact, it was denied with no comment.


Now, the Supreme Court denying to hear the case does not mean that they have ruled on the indefinite detention clause itself. It merely and implicitly endorsed the ruling which was based on the issue of standing. And in fact, it should be noted that the Court, on that issue, does have a valid argument. That is not to say that it was the right thing to do, or that it was a correct ruling – it is just stating the fact that that conclusion does follow from that argument on that particular issue. The statute had, in fact, not been applied to them directly, as of yet!

However, one is left wondering how the Court expects someone who has the provision of indefinite detention enforced against them, without counsel or due process, to even have the ability to challenge the statute in the courts in the first place. In that sense, how could a technicality such as this be used to justify a lack of constitutional protection for the people that should be sought by the courts, at any level!

Instead of the Courts running from every true constitutional issue of our day, it would sure be refreshing to find judges that care enough about the Constitution to recognize that that document’s alleged protection for the people in a case such as this should not be dodged using a technicality as justification for deference to potentially detrimental tyranny. Justice Katherine Forrest, on this issue, showed us that this is a possibility. It may be difficult yes, but it is not impossible to fight for freedom in the current legal framework.

Unfortunately, most people have become, on the one hand, brainwashed into neglecting the particulars of the rulings (e.g., ruling on the issue of standing, versus actually ruling on indefinite detention), as well as, on the other, mentally determining for themselves that a Supreme Court ruling is akin to the “Word of God” set in stone – unchanging and unalterable.

This false alternative creates more of an incentive for “rational ignorance” as well as a cynical so-called realism amongst the people – further undermining their courage and understanding of the rights that are inherent within them. This undermines the battle for freedom at large.

It is time for an emphasis on thorough understanding, and relentless attention being paid to details. Some falsely state that “the devil” is in the details. I rebut that, and assert that Godliness is in the details! Evil is what is promoted via vagueness and oversimplification. It is Godliness that encompasses thorough study and understanding of the Natural Laws all around and within us.

This sad turn of events should not be taken as an excuse for less action, but rather as a determining factor to do more. To study and learn more, to pay attention, and to strive to make a difference in this world for ourselves and for future generations.

Because, ultimately, it is entirely up to us.

Some sources: Salon, Reuters, Huffington Post (One, and Two), The New American

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