Hedges v. Obama

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Event.png Hedges v. Obama  Rdf-entity.pngRdf-icon.png
DateJanuary 13, 2012 - April 28, 2014
Typelegal case
CourtUnited States Court of Appeals for the Second Circuit
PlaintiffsChristopher Hedges,  Daniel Ellsberg,  Jenifer Bolen,  Noam Chomsky,  Alexa O’Brien,  Kai Wargalla,  Birgitta Jónsdóttir
DefendantsBarack Obama,  United States of America,  Leon Panetta,  US Department of Defense,  John McCain,  John Boehner,  Harry Reid,  Nancy Pelosi,  Mitch McConnell,  Eric Cantor
DescriptionThe plaintiffs challenged the 2012 NDAA contending that indefinite detention on "suspicion of providing substantial support" to groups such as al-Qaeda and the Taliban was so vague as to allow unconstitutional, indefinite detention of civilians based on vague allegations. The Court of Appeals struck down an initial agreement, and the US Supreme Court concurred, arguing that the plaintiffs could not prove they would be affected by the law, so had no standing to contest it.

The plaintiffs contend that Section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 (NDAA) allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban, respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations.


The Second Circuit Court of Appeals overturned in 3-0 ruling on July 17, 2013 Judge’s Forrest ruling which struck down § 1021(b)(2) of the controversial U.S. military-detention law NDAA as unconstitutional because the plaintiffs lacked legal standing to challenge it.[1][2][3][4] The Court of Appeals overturned Forrest’s decision in a 60-page ruling[5] and lifted her injunction, saying that Christopher Hedges and another plaintiff weren’t eligible to challenge the law because it “simply says nothing about the government’s authority to detain citizens.”[1] The court held that under their interpretation the government could not use the particular law challenged by the citizen plaintiffs to militarily detain them, so they had no basis for the court to hear their case. But the court acknowledged that this doesn’t mean that the government could not rely on other laws, including the AUMF to the events of September 11, to justify indefinite military detention of citizens.[6] The court concluded that the non-citizen plaintiffs had no reasonable fear of being detained and thus could not have their challenge of the law adjudicated by the court.[6] “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,” the court said.[1]

The appeals court wrote that Hedges and his American co-plaintiffs lack standing to challenge the indefinite detention provisions since a subsection of that rule, 1021(e), frees US citizens from detention under the NDAA. “We recognize that Section 1021 perhaps could have been drafted in a way that would have made this clearer and that the absence of any reference to American citizens in Section 1021(b) led the district court astray in this case. Perhaps the last-minute inclusion of Section 1021(e) as an amendment introduced on the floor of the Senate explains the somewhat awkward construction,” wrote the court. “But that is neither here nor there. It is only our construction, just described, that properly gives effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.”

“Section 1021(e) provides that Section 1021 just does not speak — one way or the other — to the government’s authority to detain citizens, lawful resident aliens or any other persons captured or arrested in the United States,” the court ruled.[7] “We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens and are not captured or arrested within the United States, the President’s AUMF authority includes the authority to detain those responsible for 9/11 as well as those who were 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 — a detention authority that Section 1021 concludes was granted by the original AUMF.”[7] “But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all,” it concluded.[7]

The appeals court acknowledged that Iceland’s Jónsdóttir, co-plaintiff Kai Wargalla of Germany and other foreign persons could be detained indefinitely under the NDAA. “The claims of Jónsdóttir and Wargalla stand differently. Whereas Section 1021 says nothing about the government’s authority to detain citizens, it does have real meaning regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad,” the court ruled.[7] “One perhaps might fear that Jónsdóttir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well,” wrote the court. “The government rejoins that the term ‘substantial support’ cannot be construed so in this particular context. Rather, it contends that the term must be understood — and limited — by reference to who would be detainable in analogous circumstances under the laws of war.”[7] Because “plaintiffs have provided no basis for believing that the government will place Jónsdóttir and Wargalla in military detention for their supposed substantial support,” the court has rejected their lawsuit.[7] “In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens,” concluded the court. “While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jónsdóttir and Wargalla have not established standing on this record. We vacate the permanent injunction and remand for further proceedings consistent with this opinion.”[8]

U.S. District Judge Lewis Kaplan, who sat with the 2nd Circuit by designation and wrote the decision, said section 1021 nonetheless "does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens," citing as an example Yaser Esam Hamdi, a U.S. citizen detained after allegedly fighting alongside the Taliban in Afghanistan in 2001.[2] The 2nd Circuit vacated the permanent injunction returned the case to Forrest for further proceedings consistent with its ruling.[7][2]

"The Second Circuit panel did not distinguish itself in upholding civil rights in America," said Carl Mayer, an attorney for the plaintiffs. "I think the decision is imminently appealable because it reverses a very solid and comprehensive lower court opinion, and frankly I think it's time for the Obama administration to stop supporting these statues like the indefinite detention law."[3] Bruce Afran, a lawyer for Hedges, said the ruling "continues a distressing trend in which American federal courts are refusing to rule in cases where the U.S. government is over-reaching and violating civil liberties."[2] The Manhattan U.S. Attorney's Office, which represents the government in the case, declined to comment.[2] Jenifer Bolen, co-plaintiff, said: “Losing one battle is not losing the war. This war is an assault on truth itself. It flaunts reason, sanity and basic decency. We will not stand down in the face of these egregious assaults on our rights and liberties.”[7] Hedges called the ruling “distressing” and said, “It means there is no recourse now either within the Executive, Legislative or Judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights.”[7]


On September 2, 2013, Christopher Hedges announced he, along with attorneys Carl Mayer and Bruce Afran, who originally brought the lawsuit against Obama, would again file papers asking the U.S. Supreme Court to hear an appeal of the Second Circuit Court of Appeals 17 July 2013 ruling on the act’s Section 1021. The U.S. Government filled in March 2014 a brief arguing that petition for a writ of certiorari should be denied by the US Supreme Court, which duly denied certiorari in an order issued April 28, 2014.

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