Within days of Congress reauthorizing the National Defense Authorization Act (NDAA) in January 2012, Brian Trautman summarized it perfectly:
This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.”
The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.”
But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability — potentially even demonstrators and protesters exercising their First Amendment rights.
One of those felt threatened was Christopher Hedges, Pulitzer Prize winner and former New York Times reporter, who sued President Obama (and others in his cabinet along with members of Congress) claiming that his rights not only as a citizen but as a journalist were threatened. U.S. District Court Judge Katherine M. Forrest agreed, issuing a preliminary injunction against the most pernicious piece of the NDAA — Section 1021(b)(2) — on constitutional grounds, and then made her ruling permanent four months later.
The administration appealed her decision and the injunction was lifted until a full appeal could be heard. The U.S. Second Circuit Court of Appeals overturned Forrest’s ruling in July 2013. From there it was just a matter of time before the case came to the Supreme Court for review. On April 28 the Supreme Court let the Second Circuit Court’s ruling stand, without comment.