This case involved a challenge to Section 1021 of the National Defense Authorization Act of 2012 (“NDAA”), which authorized military detention of civilians based on vague standards of providing “support” for an adversary of the United States, similar to the Japanese-American internment camps during World War II. Journalist Christopher Hedges and a group of journalists and lawyers brought this challenge to the NDAA.
CLDEF filed amicus briefs in each of the cases before, respectively, the district court, court of appeals, and the Supreme Court.
The U.S. District Court for the Southern District of New York ruled in favor of the plaintiffs, holding that the 2012 NDAA created new federal authority because it differed materially from the 2001 Authorization for the Use of Military Force, and was broad enough to create a reasonable and objective fear of detention by the plaintiffs. CLDEF filed the only amicus curiae brief supporting the grant of a preliminary injunction.
The U.S. Court of Appeals for the Second Circuit reversed, ruling that the plaintiff journalists did not have standing to challenge the law.
The plaintiffs filed a petition for a writ of certiorari with the U.S. Supreme Court. CLDEF’s amicus curiae brief in support of the petition urged the Supreme Court to grant certiorari in this case in order to address the issue of military detention of Americans. CLDEF argued that the NDAA is intentionally drafted with vague and ambiguous language to give politicians simultaneously both maximum power and maximum deniability. Moreover, under the court of appeals’ reasoning, it is possible that the only person with standing who could challenge the law is someone who has been kidnaped by military agents and held in secret without access to even a phone, much less a lawyer. Finally, CLDEF’s brief argued that this law is essentially a statute about treason, thus unlawfully rewriting the Constitutional requirements that it include only certain specific actions, and be witnessed by two other individuals.
On April 28, 2014, the U.S. Supreme Court denied the petition for certiorari.