I am in New York today to attend the oral arguments on the National Defense Authorization Act's (NDAA) indefinite detention provision, which is currently before the Second Circuit Court of Appeals.
I have not only a professional interest in this case, but also a personal one, in that the indefinite detention provision could have substantially impacted both my life and the lives of many other whistleblowers. The Government Accountability Project filed an amicus brief in the case, which detailed both my case and the case of my client, Thomas Drake, and explained the dangers that such an expansive and vague provision poses to whistleblowers.
Later, I will be at The Culture Project participating in a discussion on today's hearing. If you're in New York, please attend! I will be joined by several amazing co-panelists, including Tom Drake, Daniel Ellsberg, Michael Moore, and Chris Hedges. More information on the event can be found here.
Today's appeal stems from District Judge Katherine Forrest's 112-page opinion in Hedges v. Obama, which permanently enjoined the indefinite detention provision in the NDAA. As I discussed in an earlier blog, Judge Forrest's opinion was well-reasoned and bold.
Here are some of the key quotes from Judge Forrest's opinion:
Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.
When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.
Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
Here, the stakes get no higher: indefinite military detention -- potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever.The plaintiffs contend that the NDAA provision allows the government to indefinitely detain U.S. citizens on the suspicion that they provided support to terrorist groups or "associated forces." They argue that the language of the provision is so vague that suspicious activities could potentially include such mundane activities as engaging in political advocacy or reporting the news. Not surprisingly, the government has argued that Judge Forrest's opinion threatens national security.
The courts must not give the government free reign to trample constitutional rights simply because it invokes national security concerns. I can only hope that the Second Circuit will not allow the government's overused argument to prevent this issue from receiving the judicial scrutiny it deserves.