The NDAA Retroactively "Ass Covers" Some of the More Broadly-Applied Gitmo Detainments Says Lawsuit Plaintiff [Updated/Clarified]

Editor's Note: Due to several transcription errors, this post has been heavily edited. The previous quotes from Tangerine Bolen, which she objected to, have been replaced by quotes Bolen provided over email.

With 500-some pages of text, the 2012 National Defense Authorization Act (NDAA) covers a lot more than just section 1021(b), but the majority of the debates over the bill involve the very reason the four letters N-D-A-A have become shorthand for fears of government power finally crossing a Rubicon. Whether or not that's really true, the caginess of the government with respect to whom it can indefinitely detain [pdf] is disturbing and demands a clarification that is not being offered. 

Section 1021(b) reads that someone who can be indefinitely detained is:

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 government says the controversial bit of the NDAA is nothing new, but seven plaintiffs, including Pentagon Papers leaker Daniel Ellsberg, dissident writer Noam Chomsky, and journalist Chris Hedges, sued in January, arguing that they were under threat. Hedges in particular argued that his First Amendment rights are violated by the NDAA since he has interviewed numerous members of Al-Qaeda and the Taliban, but now fears doing so.

Another plaintiff in Hedges v. Obama is activist Jennifer "Tangerine" Bolen, founder of the pro-whistleblower group RevolutionTruth.org. She worries that her organization's support of WikiLeaks and imprisoned soldier and accused leaker Bradley Manning might also make her or her allies applicable for detainment under the NDAA.

Section 1021(a) of the bill repeats the government's power to go after perpetrators (and those who harbored them, etc.) of the September 11th attacks (put in writing in the joint Authorization for Use of Military Force (AUMF) resolution) but 1021(b) does read an awful lot like it's expanding powers, even if the actual text of the NDAA and Obama administration officials claim it isn't changing anything. (For a good overview of the NDAA up until now, go check out this Young Americans for Liberty blog post.)

Bolen believes part of the subtext to these arguments is that the government wants an excuse to go after Julian Assange and Wikileaks. "They don't want to go after The New York Times," she says, "They're willing to cherry-pick who they apply indefinite detention to." But once they can get to Assange, this power will "cascade downward" and then people like Bolen or Hedges could be under threat as well.

The government's initial argument was that the powers granted in provision 1021(b)  were exactly the same as those granted by the AUMF. Yet, argues Bolen, if the AUMF and the NDAA are the same, why is the government so desperate to stop this lawsuit? Why did they appeal less than 24 hours after Judge Katherine Forrest's permanent block of indefinite detainment on September 13? Why do they claim that block could cause "irreparable harm" to the United States? Well, no harm done for the moment. On Tuesday afternoon, the Second Circuit Court of Appeals ruled, and a three-judge panel stayed Forrest's block until a final decision is reached in December. Until then, or until this hits the Supreme Court, indefinite detainment is back on.

The key point about the NDAA, says Bolen, is that it's a retroactive "CYA" — cover your ass. "We believe that the AUMF detention powers were over-broadly applied — subsequently sweeping up innocent people —and definitely people who had nothing to do with 9/11, or are members of Al Qaida or the Taliban — which is the definition of those powers."

In their Tuesday ruling, the Second Circuit judges wrote [pdf] that it was in "the public interest" to grant the government appeal a stay. Part of their reasoning was that the government finally clarified that the plaintiffs had no reason to fear detainment, meaning that they had no standing to sue in the first place.

When the government initially refused to offer assurances that the plaintiffs could not be detained back in March, this made Judge Forrest more sympathetic to the question of whether the seven individuals indeed had standing to sue. Later, in August, seeing that Forrest was indeed going to block indefinite detainment, the government did try to offer assurances that journalists who were independent were under no threat by offering a clarifying brief. This, according to Bolen brought up a lot of questions still for the judge. Bolen says Forrest asked, "Are YouTube videos independent? Are you going to form a panel to decide who is independent?" Forrest was still not satisfied, and in her 112-page ruling she expressed incredulity over the government's failure to make its case.  [Correction: updated language to reflect better accuracy in the timeline of the case.]

The wording in the government's response brief just does not satisfy any of the plaintiffs and opens up more questions over whether the government may actually be considering keeping an eye on journalists who are not seen as "independent."

Bolen, for her part, thinks that the case will make it to the Supreme Court. But it's up to her and her fellow-plaintiffs to try to change public opinion to make sure NDAA gets thrown out.

"Obama is likely in a position whereby he feels he cannot suddenly deny himself powers on which two administrations have come to rely. He cannot afford a terror attack on his watch, and he is likely convinced he has no choice here. I think he believes that is the case and that he is stuck in a position of political realism that this country does not understand. That does not excuse his willingness to erode civil liberties and undermine human rights just like Bush did — I expected, and expect, him to do better."