With regard to Hedges the Court asked, Is it possible, in your view, that Mr. Hedges, any of his activities as he has described them, should they occur in the future, [and also as to his past activities], can you say that he would not be subject to military detention without trial under - 1021?
Government: I'm not prepared to address that question here today, but I would answer that by saying that his concerns that he has raised are addressed by what I have said and he has the burden of showing that his fear as articulated is a reasonable fear. "
The feeble response by the government attorney to Judge Forrester's questions was conclusive proof to the Court that the Act was so poorly worded, so vague, so subject to broad interpretation and misinterpretation that it could not possibly provide citizens with adequate notice as to "what is forbidden". The government attorney's admitted inability to define the essential terms of the section went far to make the plaintiffs' case.
The NDAA's further assault on the Bill of Rights
But the NDAA has even greater implications than those argued before Judge Forrester. Let's say that Mr. Hedges writes an article about terrorism and one of his sources is fellow named Muhammad Alibar, a member of dissident group in Afghanistan. Because Mr. Hedges gave voice to Mr. Alibar's viewpoint in the article, he is subsequently detained by the military under Section 1021 of the NDAA on suspicion of providing "support for an individual who has supported hostilities in aid of enemy forces". This is by no means far-fetched. The U.S. Supreme Court has already held that civil rights organizations cannot give advice to groups labeled as "terrorists", even when that advice is intended to convince them not to be terrorists. Indeed, during oral argument, it was implied by the Justices that it would run afoul of federal law to teach a member of such a group how to play the harmonica.
There's no more room at Fort Leavenworth, so Mr. Hedges is transferred to the American-run prison at Baghram in Afghanistan - or perhaps to the now famous Abu Ghraib prison, currently under control of the Iraqi administration. Section 1021 permits the transfer of detainees ". "to the custody or control of the person's country of origin, or any other foreign country or any other foreign entity". There's no guarantee under the NDAA that American detainees will be held on American soil.
The Fourth Amendment protects individuals from "unreasonable searches and seizures". The Terry case relied on the "reasonableness" requirement of this Amendment to permit temporary detentions. But under the tenets of that case, the detention was to be about an hour. The High Court has substantially relaxed or even ignored this directive at our borders. But inside our borders, law enforcement officers are supposed to follow Terry and its progeny. The NDAA by contrast envisions detention "pending disposition under the law of war". By any reasonable interpretation, this means an indefinite detention, something repugnant in any democratic society. (It is a reminder of former Attorney General John Ashcroft's "hold until clear" policy under which he authorized federal law enforcement officers to seize and detain "indefinitely" hundreds of "suspects" in the immediate aftermath of September 11. None of them were ever charged with a crime connected to terrorism. ) For this aspect of the NDAA to stand, the government will have to successfully argue that it is "reasonable" under current Fourth Amendment jurisprudence to indefinitely detain a suspect who is an American citizen. If that is the case, the Fourth Amendment is nothing more than a "form of words".
Furthermore, to Mr. Hedges and his fellow detainees, the myriad protections found in the Sixth and Eighth Amendments will be meaningless. The Sixth Amendment provides the following rights: public trial, speedy trial, impartial jury, right to notice of the charges, right to confront witnesses, and the right to counsel. But Mr. Hedges won't be assigned an attorney, nor will he be permitted to call one. He will not be taken before a judge to be told why he is being held. In fact, no charges will be filed. He will not have the right to a speedy trial as promised in the Sixth Amendment because that right is not triggered until charges are filed. So he will not have the accompanying rights to a public trial (or any trial), to an impartial jury, to confront witnesses, nor a right to argue his innocence before a neutral judge or jury.
The Eighth Amendment prohibits excessive bails and fines, and cruel and unusual punishment. Mr. Hedges will not be provided bail (the amount of money which would secure his release pending trial). And because he will be held incommunicado, without charge and without access to counsel (and probably in solitary confinement a la Bradley Manning) he will be subjected to cruel and unusual punishment (Justice Scalia's sophistry regarding this clause notwithstanding.)
The NDAA is, in essence, a nearly complete suspension of the Bill of Rights.
The NDAA as a de facto suspension of the right to habeas corpus
Because the act does not place a limit on the length of the "detention", it conceivably can be forever. But that's not supposed to happen in America. Probably the most essential right in any free society is the right of habeas corpus. Our forefathers considered it important enough to include in Article I section 9 of the Constitution. This right is the right not to be "disappeared" by the government. It is the right to be told why you are being held, and to contest those reasons before a neutral judge. The Constitution provides clearly that Congress may only "suspend" (this indicates a temporary limitation on the right, not an extinction of the right) the right when there is a public invasion or rebellion sufficient to endanger public safety. Section 1021 of the NDAA amounts to an unconstitutional suspension of the right of habeas corpus for American citizens. There is no provision for someone "detained" under this section to be provided any hearing before a neutral tribunal, nor to be told why he is being held, nor to defend himself against wrongful, mistaken or manufactured "suspicion".
Suspension of the right of habeas corpus is as serious as it gets. It's been done before. President Lincoln did so during the Civil War and was later chastised by the U.S. Supreme Court for acting beyond his constitutional authority. Congress suspended the writ for detainees held at Guantanamo in 2006. The U.S. Supreme Court struck down that provision and held that prisoners held there did indeed have that basic right. Given that decision, it is quite audacious of Congress to now enact a law that effectively denies this right to American citizens detained on American soil.
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