by Michael Figura, originally posted at the People’s Blog for the Constitution

The Second Circuit Court of Appeals recently rejected a challenge to the sections of the National Defense Authorization Act (NDAA) that could allow for indefinite military detention of those who are suspected of substantially supporting terrorism.

As we have previously covered (hereherehere and elsewhere), the suit was brought by  by journalists and activists concerned about being subjected to indefinite military detention if they interviewed or interacted with groups deemed hostile to the US. At the trial stage, a federal district court recognized the statute’s constitutional faults.

In her 2012 rulings, Judge Katherine Forrest prohibited military detention based on allegations of ‘substantially supporting’ or ‘directly supporting’ unspecified ‘associated forces’ of our nation’s enemies, finding that the plaintiffs could likely show that the NDAA violated the First Amendment, that it was overly vague, and that it violated the Fifth Amendment. The government appealed the ruling, prompting BORDC and other groups to file briefs with the appeals court highlighting the grave historical and present concerns with unchecked indefinite detention.

Earlier this month, the US Court of Appeals for the Second Circuit overturned the lower court’s ruling. The appeals court held that Section 1021 of the NDAA does not control the government’s ability to detain American citizens and thus the citizen plaintiffs had no standing to have their challenge heard. Further the court ruled that the non-citizen plaintiffs could not demonstrate a “sufficient basis to fear detention under the statute” and as such, they also had no standing.

Essentially, the court held that under their interpretation the government could not use the particular law challenged by the plaintiffs to militarily detain them, so they had no basis for the court to hear their case. Importantly, the court acknowledged that this doesn’t mean that the government could not rely on other laws, including the now over a decade old law authorizing military force in response to the events of September 11th, to justify indefinite military detention of citizens. The court held:

 Section 1021 says nothing at all about the authority of the government to detain citizens. There simply is no threat whatsoever that they could be detained pursuant to that section. While it is true that Section 1021(e) does not foreclose the possibility that previously “existing law” may permit the detention of American citizens in some circumstances—a possibility that Hamdi clearly envisioned in any event—Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds to nor subtracts from whatever authority would have existed in its absence.

Addressing the claims of the non-citizen plaintiffs in the case, the court relied on what should now be a discredited line of reasoning from Clapper v. Amnesty International to conclude that the plaintiffs had no reasonable fear of being detained and thus could not have their challenge of the law adjudicated by the court. In Clapper, the Supreme Court rejected challenges to the government’s secret surveillance program under the Foreign Intelligence Surveillance Amendments Act (FAA) because the plaintiffs could not prove they were targets of clandestine surveillance. This reasoning appeared ridiculous at the time (as noted by the dissenting Justices), but now is indefensible as a continued line of reasoning given the evidence leaked by Edward Snowden that reveals the breadth of the spying program.

The Court also attempted to avoid precedent which allowed people potentially subject to criminal laws to challenge them, by suggesting that the situation of people subject to indefinite detention was somehow different.

Consequently, there is a world of difference between assuming that a state executive will enforce a statute imposing civil penalties for certain campaign finance violations—or even that the executive branch will enforce a federal criminal statute barring provision of material support to terrorists—and assuming that the President will detain any non-citizen abroad that Congress authorizes him to detain under the AUMF.

Despite making this assertion several times in various formulations, the Court provided little legal or prudential reasoning for its conclusion. If anything, those challenging indefinite detention have an even greater need for access to court challenges prior to their detention, as history has shown the lengths to which the government will attempt to subvert judicial review post-detention.

While the Second Circuit’s decision in Hedges places a roadblock to one legal challenge to the NDAA, federal, state and local challenges to indefinite detention continue, as concerned citizens attempt to revise the law to comply with the Constitution and long held principles prohibiting the domestic deployment of the military.

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