POLITICS

NDAA Indefinite Detention Opponents File Supreme Court Emergency Motion

12/12/2012 06:59 pm ET | Updated Dec 13, 2012

Opponents of the post-9/11 use of indefinite military detention have filed an emergency motion with the U.S. Supreme Court, seeking to block a law they say allows innocent American citizens to be locked away without trial.

The motion, submitted on Wednesday, asks the Supreme Court to reinstate an injunction against a key portion of the National Defense Authorization Act of 2012. Unless the court does so, the motion argues, Americans are "in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties."

Since January, former New York Times reporter Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg and other activists have been waging a legal battle against the U.S. government, arguing that the NDAA gives the military far too much leeway to imprison journalists or activists on vague accusations of supporting terrorism.

Lawyers for the Obama administration, meanwhile, have maintained that blocking the NDAA would do irreparable harm to the president's ability to wage war. They have also argued that the law applies only to people closely affiliated with al Qaeda or the Taliban, not independent journalists or human rights workers.

In September, NDAA opponents won a permanent injunction from a district judge against the detention provision, but it was quickly overturned by a circuit court.

Now the activists have taken their fight to block military detention to the Supreme Court. Their motion will be considered by Ruth Bader Ginsburg, who by herself or with the rest of the justices could make a ruling within a matter of days. No matter what happens with the Supreme Court motion, the NDAA lawsuit itself will continue to be argued in the 2nd U.S. Circuit Court of Appeals, where NDAA opponents filed a new legal brief on Monday.

Carl Mayer, an attorney working on behalf of the NDAA opponents, told The Huffington Post that they asked the Supreme Court for help "because as long as the NDAA is law in this country, journalists and activists like our clients, really any American citizens or civilians, are not safe from having the military detain them indefinitely."

"We don't know" whether or how the NDAA is actually being used on American citizens, Mayer said -- a point which could complicate proving the need for an injunction. But, he added, "that's the whole problem. It's secret government and it's secret detention."

The Senate voted on Nov. 29 to ban the use of indefinite military detention on American citizens in the U.S. in the 2013 reauthorization of the NDAA. But civil liberties groups said the Senate amendment was narrowly constructed and leaves open the possibility of detention for non-citizens at home or Americans abroad.

"Nothing has passed both houses [of Congress] and the president hasn't signed anything," Mayer said. "If and when he were to sign something, the language that was passed by the Senate is at best an incomplete fix."

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