The Supreme Court declined to hear the case that a group of activists, journalists, and academics including Noam Chomsky, Chris Hedges, and Daniel Ellsberg brought against the indefinite detention provisions of the NDAA.
This is a huge gift to the Obama administration, which will no longer have to answer for the terrible language in the provision which implies that U.S. citizens can be denied their rights to due process if the government accuses them of helping al-Qaeda or its affiliated forces. So, the court must have a damn good reason, right?
The appeals court said the challengers had no standing because they could not show the provision has any bearing on the government’s authority to detain U.S. citizens.
The court said the plaintiffs who were not U.S. citizens lacked standing to sue because they did not show “a sufficient threat that the government will detain them” under the provision.
This is malarkey. Given the laws on the books and previous court precedent, it is quite clear that journalists, academics, dissidents, and activists of the type involved in this suit are at risk of detainment. There is a clause of the USA PATRIOT Act which prohibits giving material support to groups designated by the United States as terrorists. Clarifying that clause, in Holder v. Humanitarian Law Project, the court found that “training,” “expert advice or assistance,” “service,” and “personnel,” all qualified as material assistance.
Humanitarian Law Project was a group that was giving legal advice to Kurdish separatists in the PKK, a group that happens to be on the U.S. terrorist list. The U.S. terrorist list is shamefully arbitrary. The government puts individuals or groups on and takes them off according to its interests at the time: Nelson Mandela was on it before he became admired by the world as a man of peace, Saddam Hussein was on it until the U.S. decided it wanted to support him militarily against Iran in the 1980s, the Iranian group MEK was on it until 2012 when the U.S. decided having an Iranian dissident group off the terrorist list could be in its benefit, etc.
But as to the standing of these individuals in the case, they undoubtedly have it. As Noam Chomsky said in a talk at Google this month, the material assistance clause “could maybe apply to somebody who has an interview with [Hassan] Nasrallah, you know, the head of Hezbollah, as I’ve had. Or maybe advises a group to turn to non-violence. That could be regarded as material assistance under Obama. That’s a tremendous attack on freedom of speech and just elementary justice.”
Journalists also often talk with terrorist groups or individuals. Chris Hedges has certainly done so. If the government some day didn’t like the reports this or that journalist was churning out, might he be targeted for indefinite detention?
The courts failure to hear this case is a terrible move. And when this law is used at some point in the future to detain an American without due process, the court will be remembered for ensuring that inevitable obscenity.