The purpose of Thursday's hearing held in a Manhattan federal courtroom was to decide if those who have joined in the lawsuit questioning the constitutionality of the NDAA have legal standing to initiate a proceeding against the federal government.
In order to clear the “standing” hurdle, plaintiffs must provide evidence sufficient to demonstrate a “reasonable fear” of being denied their First Amendment rights and of being detained by the government of the United States for the exercise thereof.
If the plaintiffs can satisfy this first threshold legal requirement, then the suit may proceed.
The suit, filed by Pulitzer Prize-winning reporter Chris Hedges, counts several other prominent writers and commentators as co-plaintiffs — Noam Chomsky, Daniel Ellsberg, and Icelandic politician Birgitta Jonsdottir. Renowned author and journalist Naomi Wolf has joined the legal battle as well, indicating in an article published in the Guardian that she has filed an affidavit in support of Hedges and the suit against the NDAA.
The principal allegation made by the plaintiffs against the NDAA is that the vagueness of critical terms in the NDAA could be interpreted by the federal government in a way that authorizes it to label journalists and political activists who interview or support outspoken critics of the Obama administration’s policies as “covered persons,” meaning that they have given “substantial support” to terrorists or other “associated groups.”
Fearing that even the probability of such a scenario would have a chilling effect on free speech and freedom of the press (Naomi Wolf writes in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA) in violation of the First Amendment, Hedges filed his lawsuit on January 12 in the U.S. District Court for the Southern District of New York.
Naming both President Barack Obama and Defense Secretary Leon Panetta as defendants, the complaint of Hedges avers that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a “covered person” who, by way of such writings, interviews and/or communications, “substantially supported” or “directly supported” “al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners,… under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]."
The complaint continues,
The Homeland Battlefield Bill [NDAA] is sufficiently broad as to include within its scope Plaintiff’s writings and journalistic endeavors that have the effect of conveying, promoting or disseminating the ideas, philosophy and program of organizations, persons and entities in a state of hostility with the United States since September 11, 2001 or with organizations, persons and entities allied or associated with persons in a state of hostilities as defined under the AUMF and the Homeland Battlefield Bill.
Accordingly, Plaintiff as a result of his journalistic endeavor and profession, is in jeopardy of detention under the Homeland Battlefield Bill because he produces material, an example of which is set forth, supra, that may be deemed within the scope of “substantially” or “directly” supporting persons, organizations, entities and their associates, allies and colleagues, who are in a state of hostility with the United States.
Specifically, Hedges alleges in his complaint that it is precisely the existence of these “nebulous terms” — terms that are critical to the interpretation and execution of the immense authority granted to the President by the NDAA — that could allow him or someone in a substantially similar situation to be classified as an enemy combatant and sent away indefinitely to a military detainment center without access to an attorney or habeas corpus relief.
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