May 19, 2013
The Final Battle
Posted on Dec 23, 2012
By Chris Hedges
We knew the government would appeal, but we did not expect it to act so aggressively. This means, we suspect, that the provision is already being used, most likely to hold people with U.S. and Pakistani dual citizenship or U.S. and Afghan dual citizenship in military detention sites such as Bagram. If the injunction were allowed to stand during the appeal and U.S. citizens were being held by the military without due process, the government would be in contempt of court.
Judge Forrest’s 112-page opinion is a stark explication and condemnation of the frightening erosion of the separation of powers. In her opinion she referred to the Supreme Court ruling Korematsu v. United States, which declared constitutional the government’s internment of 110,000 Japanese-Americans without due process during World War II. The 2013 NDAA, like the old versions of the act, allows similar indefinite detentions—of Muslim Americans, dissidents and other citizens.
Section 1021(b)(2) defines a “covered person”—one subject to detention—as “a person who was 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
The section, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.” The vagueness of the language means that the plaintiffs, including those who as journalists have contact with individuals or groups deemed by the State Department to be part of terrorist organizations, could along with others find themselves seized and detained under the provision.
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