Lawsuit Plaintiffs & Hundreds of Activists will ‘Flood’ 2nd Circuit Court of Appeals in Fight Against NDAA Indefinite Detention

[New York, NY] A lawsuit over a provision in the National Defense Authorization Act (NDAA) will be back in federal court at 10am on February 6, 2013, awaiting decision on an injunction prohibiting indefinite detention of civilians without charge or trial. A group of academics, journalists, and activists filed suit last year over § 1021(b)(2) of the NDAA alleging that the provision suspended due process rights and threatened first amendment protections.

flood the court MEME

In a landmark ruling last September the plaintiffs —former New York Times war correspondent Chris Hedges, RevolutionTruth founder Jennifer “Tangerine” Bolen, Pentagon Papers whistleblower Daniel Ellsberg, linguist and author Noam Chomsky, Icelandic Parliamentarian Brigitta Jonsdottir, US Day of Rage founder Alexa O’Brien, and Occupy London activist Kai Wargalla— were awarded a permanent, worldwide injunction against the provision by Judge Katherine Forrest of the Southern District of NY (2nd Circuit).  In her ruling Judge Forrest, an Obama appointee, challenged the Justice Department attorneys for refusing to provide assurances that journalists and activists would not be indefinitely detained under the provision for exercising first amendment rights:

“Not once in any of its submissions in this action or at either the March or August hearings has the Government said, ‘First Amendment activities are not covered and could never be encompassed by § 1021(b)(2). This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention, and have as their sole remedy a habeas petition…That scenario dispenses with a number of guaranteed rights.”

Despite including a signing statement expressing deep reservations over the “indefinite detention provision” and promising not to use such powers against American citizens, President Obama immediately appealed Judge Forrest’s ruling, and sought an emergency stay on the injunction, claiming “irreparable harm” would be incurred by the US if the government lacked the ability to indefinitely detain civilians under section 1021.

“This is the final battle between the restoration of due process along with our most cherished civil liberties and the imposition of a military state,” said Chris Hedges, “if we lose this battle, will be vulnerable to being seized on American soil by the military, stripped of due process and held in indefinate detention in military facilities, including our off-shore penal colonies. It is up to federal judges now to pull us back form the brink.  Our legal challenge to section 1021(b)(2) of the NDAA is one of the defining moments of our era.”

The suit has been joined by over two dozen organizations and individuals who have filed Amicus Curiae briefs in support of the plaintiff’s claims that § 1021(b)(2) of the NDAA is over-broad and facially unconstitutional.  One such supporting brief, filed by Karen and Ken Korematsu (Children of Fred Korematsu & each Amici in this case), draws a chilling comparison between indefinite detention under the auspices of the war on terror and the internment of Japanese Americans during World War II:

Korematsu remains on the pages of our legal and political history. As a legal precedent it is now recognized as having very limited application. As historical precedent it stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.”

In opposition to the plaintiffs Senators John McCainLindsey Graham and Kelly Ayotte have utilized the Amicus process to file a brief in support of the government’s use of § 1021(b)(2) of the NDAA and have taken the unusual step of filing a motion requesting 10 minutes of oral argument time in the February 6th, 2012 proceedings, claiming the need for the Senate body to be represented in court when it comes to indefinite detention.  Plaintiff attorneys are awaiting word on whether the 2nd Circuit will grant this motion.

UPDATE: On Thursday, January 31st, 2012 attorneys for the plaintiffs received notice that McCain, Graham and Ayotte were awarded a 5 minute oral argument at the proceeding. To compensate for this the 2nd circuit also added 5 minutes onto the plaintiff argument (allowing for 20 minutes total).

A bipartisan coalition of groups backing this lawsuit, including Demand Progress, RevolutionTruth, the Bill of Rights Defense Committee and the Tenth Amendment Center, are calling on members and supporters to join the plaintiffs in court. Activists promoting a call to “Flood the Courthouse” have already received over 300 RSVP’s from activists and supporters of the plaintiffs

Plaintiff and lawsuit coordinator Tangerine Bolen will lead a press conference upon adjournment of the court session. Speakers will include Tangerine Bolen, Daniel Ellsberg, Chris Hedges, Bruce Afran, Alexa O’Brien, Cornel West, Thomas Drake, Jesselyn Radack and a number of others working to prevent indefinite detention and restore civil liberties.

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To obtain video of the press conference or to arrange an interview with any of the plaintiffs or counsel please contact Andy Stepanian at andy@sparrowmedia.net or 631.291.3010.

COURT ARGUMENTS & ACTIVIST SOLIDARITY ACTION

WHAT: Oral Arguments in NDAA Court Ruling & Activist Solidarity Action
WHERE: 2nd Circuit Court of Appeals, Thurgood Marshall Courthouse
(Room 1505, 15th floor), 40 Foley Square, NYC
WHEN: 10am Wednesday, February 6, 2013
INFO: Stop NDAA Lawsuit | Facebook RSVP

 

PRESS CONFERENCE

WHAT: Press Conference with Plaintiffs, Counsel, and Supporters
(Daniel Ellsberg, Chris Hedges, Bruce Afran, Tangerine Bolen, Alexa O’Brien, Cornel West)
WHERE: Foley Square, NYC (directly across from courthouse steps)
WHEN: After Court Adjourns (Approximately 11:30am Wednesday, February 6, 2013)
INFO: Stop NDAA Lawsuit | Facebook RSVP

• Suggested reading: Echoes of Korematsu by Noor Elashi

Comments

17 Comments so far. Leave a comment below.
  1. Jacqueline W. Sherman,

    I disagree with allowing indefinite detention of citizens for exercising first amendment rights. Journalist need the protection of the First Amendment more than anyone so that they can report the news without fear of imprisonment. “Whistleblowers” need protection from retaliatory imprisonment in order to keep in place the checks and balances system and avoid coruption in business. President Obama is not trustworthy in my opinion and he is enabling this country to be over taken by foreign powers more and more. Please do not allow this to happen!

    • Nobody,

      I don’t like the idea of indefinite detention of anyone, let alone our own citizens.

      What happened to respecting human rights -no matter where someone is from-,
      what happened to protecting whistle-blowers,
      what happened to seeing gutting the constitution as an almost treasonous thought,
      and what happened to…Our country. I feel old and tired.

  2. John Bailey,

    This gross violation of civil rights is scarier than anything a terrorist could ever do. If we don’t turn this around now we will no longer be America. We will have surrendered our essential liberty to fearmongering and fascism.

  3. M. Edmund Howse,

    Joe McCarthy would be proud. This insanity must stop.

  4. Ben,

    I will be there in spirit.

    Darf AKA “The doctor”

    http://twitter.com/therealdarf

  5. Alan8,

    The fascist attacks on the Constitution are BIPARTISAN.
    Yet another reason I vote Green Party!

  6. Janice Mccann,

    Really wish I could make this event but unfortunately, have no way down.I’ll be with you in spirit.

  7. Albert Davis,

    It is time to take out the trash!

  8. Jerry Kann,

    We should be looking forward a little, thinking about what we’ll do if the court rules against the plaintiffs. If that happens, we must not accept it as the final word on this issue. We should take the fight to Congress, where this injustice originated.

    Sending an e-mail is not enough. Your members of the House and Senate work for *you*. You can *go to see* your member of Congress (as some of us have already done) and demand that he or she work toward *repeal* of the indefinite detention provision of the NDAA.

    Getting an appointment to see your member of Congress is not as hard you might think. It’s just a matter of being persistent. And, again, they work for you. You pay their salaries, and you have the power to vote them out of office. You have every right to demand they do the right thing. Whose country is it, anyway?

  9. Author admin,

    PLEASE READ & SHARE W/ EVERYONE ATTENDING COURT ON WEDNESDAY

    Dear Friends,

    This landmark court case may have global implications. Thus anything that is tethered to this case, both inside and outside the courtroom, should proceed in only the most thoughtful and strategic manner. We should not look at this event as a typical protest action, this is a hybrid campaign …one part litigative (seeing a legal challenge to § 1021(b)(2) …one part public relations effort to change the public’s perception of the bloated security state. Should we succeed in winning a permanent injunction against indefinite detention, we will prop open the door for dozens of legal challenges to previous grotesque uses of powers by the security state (both at home and abroad). But first we must win …and the plaintiffs have put a great deal of thought into what may be the best course to take there. The following is a list of ways attendees at Wednesday’s court date can assure we stay on the track to victory, some may be obvious, others may be less obvious, but we ask that you become familiar with this these suggested guidelines and share them with others.

    1.) This is not a protest rally, this is an outpouring of solidarity, both with the plaintiffs and with the faceless victims of prosecutorial over-reach at the hands of this nations security apparatus. Just being there, (preferably well dressed and well behaved) sitting in a seat, or standing in the back row listening, no matter how subdued, IS DOING SOMETHING. The judges are used to making appellate rulings with no more then a half dozen counsel in the room, our over-flowing presence will make them remember this day for the rest of their careers.

    2.) No matter how outrageous or ugly one argument may sound (i.e. McCain et. Al) do not yell out, snicker, or flip them the bird. The three judges who will ultimately rule could be prompted to take their distain out on the attorney’s for the plaintiffs (limiting their rebuttal times, etc). This should not, BUT COULD, impact the ruling and we cannot afford to have anything potentially impact the ruling negatively.

    3.) Don’t get antsy if you cannot get into the courtroom, the clerks have made it clear that they intend on opening a second room with a closed circuit television so you can view the proceedings in real-time. Should that second room overflow, please try to see this as a good thing, and stay together as a well behaved group in the hallway.

    4.) Once court adjourns, we will exit the court and go across the street to Foley Square where at the base of the fountain we will hold a press conference to brief the media on what transpired inside the courtroom. We ask that everyone attending remain quite as possible as the media will have to record each presenter’s statements. We will have a series of mic lines and equipment set up but we will not be permitted to have amplified sound, so please respect those who will be talking, and others who wish to listen to the plaintiffs debrief, by being quite during their statements.

    5.) Be prepared to be asked by the court to check your electronic devices in with security. They will provide you with a cubbyhole and key for your stuff. If you are a journalist with a camera, or a live streamer with a mobile device and wish to cover the press conference we would suggest leaving the courtroom 10 minutes prior to when you observe it is likely to adjourn, this will allot you enough time to get your gear and get outside to the press conference.

    6.) We are also politely asking those who wish to bring a sign to keep signage on message. We all support a variety of causes (as we should) but on this day alone the plaintiffs have expressed interest in displaying only a narrow message pertaining to indefinite detention.

    7.) Because the media will likely want to get comment from attendees as well as plaintiffs you should become familiar with one-line talking points about indefinite detention. Please visit http://stopNDAA.org for more information and practice or memorize one-line soundbites about the NDAA should you be put on-the-spot by a television reporter.

    8.) “Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it is the only thing that ever has.” – Margaret Mead

  10. Kerri,

    Hasn’t our country sent in troops to countries that detain activists? Haven’t we supported opposition troops in countries that persecuted citizens that spoke out against a tyrannical government? The 1st Amendment is there for a reason.

  11. Elizabeth Richmond,

    I was held in jail by the sheriffs office in Port Angeles without arraignment for 32 days.

  12. terri firehawk,

    WE IMPLORE THE PEOPLE IN POWER, AND I USE THAT TERM LOOSELY, TO READ AND DEFEND THE RIGHTS OF THE PEOPLE WHO PUT THEM IN POWER! OBAMA, THE HOUSE AND SENATE, WERE VOTED IN BY THE PEOPLE, OUR TAXES PAY THEIR SALARY, AND THEY ARE SUPPOSEDLY WORKING FOR US! SOMEWHERE ALONG THE WAY, THE 99% STARTED WORKING FOR THE GOVERNMENT AND ARE EXPECTED TO COWER IN FEAR OF THE “MASTERS”, THE “MAN,” THE TYRANTS…..GOVERNMENT HAS GOTTEN TOO BIG FOR ITS BRITCHES. WASHINGTON, PACK YOUR BAGS, TAKE YOUR UNCONSTITUTIONAL POLITICS AND GO THE FUCK HOME!

  13. AUMF Hunger Strike: Forget #Petitions. Take #DirectAction to #DemandAction to Pass #HR198, Repeal #AUMF 2001 and Undo #NDAA 2012. #AumfHungerStrike: Learn more: bit.ly/1272Fvn

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