The Supreme Court Press
Petition of the Month™
Interview with Christopher Hedges
Winter — December 2014
This interview may be republished in whole or in part, royalty free, if the publisher links to “http://www.supremecourtpress.com” and credits “legal printer Supreme Court Press” somewhere in the body of its article.
The Supreme Court Press “Petition of the Month”TM for December 2013 is Hedges et al. v. Obama et al. Supreme Court Dkt. No. 13-758, an appeal coming out of the 2nd Circuit from attorneys Bruce Afran and Carl Mayer.
- Does the Second Circuit opinion overturning the District Court (that had held a law permitting the military to indefinitely detain Americans is unconstitutional) depart from this Court’s prior holdings on First Amendment standing in “fearbased” or “chilling effect” cases, so that absent review, United States citizens, legal residents and other persons are threatened with indefinite military detention, thereby infringing their First and Fifth Amendment rights? [ . . . ] To the extent that the Second Circuit opinion holds that Korematsu is among the “existing law and authorities” under § 1021(e) that relate to military detention of citizens and legal residents, should Korematsu be overruled?
- Did you know that in 2011 Congress passed a law allowing for the indefinite detention of American citizens in black, off the grid prisons without access to lawyers, judges, or family? If you think that “it couldn’t happen here” – it just did!!! The bill is the National Defense Authorization Act (NDAA) of 2011, the defense spending bill. Buried in this document is § 1021(e) which gives the military carte blanche to indefinitely detain American citizens.The petitioners in this case are prominent journalists and scholars who, in the line of their work, are frequently in contact with individuals deemed, or who may later be deemed to be terrorists. Because of the vagaries and sweeping breadth of § 1021(e), the Petitioners fear they could be swept up and locked away for meeting with a terrorist, sharing a cup of tea, giving them a ride in a car, or discussing world events with them in a manner that could be deemed “assistance.” They sought, and won, a permanent injunction at the district level, which was subsequently overturned on Government appeal. The Second Circuit held that the Petitioners lacked standing because they had not yet been detained. The Petitioners argued for standing based upon the reasonable fear of detention chilling their First Amendment rights. The Second Circuit turns a blind eye to the Kafkaesque fact that a person who is detained under § 1021(e) would be unable to petition a court for relief and therefore obtaining standing would be impossible.
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