I’m apparently confused.

I thought NDAA detention was only for the terrorists.

Allen West said so!

But a federal judge disagreed with West the legal scholar, and on July 24, the Obama administration filed a brief in an appeal seeking to overturn the judge’s ruling.  Apparently, the Obama administration doesn’t want limits placed on their ability to detain –well – whomever they want.

You may remember, May of this year, Judge Katherine Forrest of the United States District Court for the Southern District of New York preliminarily enjoined the Federal Government from enforcing section 1021 of the 2012 National Defense Authorization Act (NDAA).

In other words, she said the government couldn’t enforce the indefinite detention provisions in that section.

Why not?

Basically, Forrest said the language is so broad, nobody can possibly know what it means or who it applies to.

Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.

The plaintiffs in the case included several journalists, including American Pulitzer Prize-winner Chris Hedges. They contended that the overbroad language left them fearful that simply interviewing al Qaeda members could subject them to indefinite detention.

The judge agreed.

The vagueness of § 1021 does not allow the average citizen, or even the Government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope.


A judge agreed that an American journalist was right to fear indefinite detention under section 1021 of the NDAA. Allen West told me that it doesn’t apply to Americans.

In fact, government lawyers could not even define what section 1021 “substantial support” encompassed, and would not say that the plaintiffs’ past, current and  future journalistic activities,  political expressions and associational activities would not subject them to section 1021 detention.

“I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything” the government attorney said at a hearing.

Not to belabor the point, but the lead plaintiff in this case was an American.

Now the Obama administration wants the injunction lifted. Federal lawyers claim the powers granted in section 1021 would NEVER be used in the way the plaintiffs fear. And anyway, since the government hasn’t detained anybody for those type activities before, the plaintiffs don’t have standing.

They claim they fear military detention, based on an erroneous interpretation of the statute that would extend its scope in direct contradiction of the statute’s words, and with no regard for the context that gives it meaning. They persist in asserting that interpretation even though it is contravened by over a decade of history; they cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention. And they continue to seek unprecedented injunctive relief despite already obtaining assurance from the government in this case that based on their allegations they are not detainable under this statute.

In other words, “We’ve already explained what all of this means. Trust us. We won’t detain you. We promise!”

Forgive my skepticism of government “assurances.”

This current round of legal wrangling merely extends a debate that began even while Congress was hammering out the 2012 NDAA. On one side, we have the federal government insisting vague language means what they say it means, promising they would never use detention provision for nefarious purposes.

“It doesn’t apply to you. It’s for the terrorists. Now go watch American Idol.”

On the other side, we have those who believe that government power must remain meticulously restrained and who don’t trust federal promises. They see vague, undefined language as an invitation to abuse. And they question NDAA detention supporters’ refusal to clarify the language.

A good question indeed.

During the debate on NDAA detention provisions, an amendment was proposed that stated emphatically Sec. 1021 “does not include the authority to detain a citizen of the United States without trial until the end of hostilities.”  That amendment was rejected 45-55.

Instead, we got this gobbledygook.

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.


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Allen West and his cohorts insist NDAA detention doesn’t apply to Americans. They swear only “terrorists” have reason to fear the long arm of federal law. Yet they adamantly refuse any attempt to clarify the language. All we get are promises, platitudes and accusation. “No, really, it doesn’t mean that. There – there, you just don’t understand. Seriously, stop pestering me about this. You must hate America.”

Well, I can only conclude they want to retain vague language because they want to “keep their options open.” And those options strike me as potentially dangerous.

But what do I know? After all, Allen West promises it’s “just for the terrorists.”


For a detailed analysis of Judge Forret’s opinion, click HERE.

For information on state and local efforts to block NDAA detention, click HERE.

Mike Maharrey

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