“Once again, the U.S. Supreme Court has shown itself to be an advocate for the government, no matter how illegal its action, rather than a champion of the Constitution and, by extension, the American people,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.”
The NDAA 2012, the mammoth defense bill passed by Congress in 2011 and signed into law by President Obama, contains a provision allowing for the indefinite detention of those who “associate” or “substantially support” enemies of the U.S. such as terrorist groups. These terms, however, are not defined in the statute, and the government itself is unable to say who exactly is subject to indefinite detention based upon these terms, leaving them open to wide ranging interpretations which threaten those engaging in legitimate First Amendment activities. Soon after the NDAA was enacted, a lawsuit was filed by citizens and non-citizen activists and journalists alleging that it violated their constitutional rights by threatening them with indefinite detention for engaging in protected speech, such as protesting American foreign policy or interviewing suspected terrorists for journalistic purposes. On September 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of the plaintiffs and placed a permanent injunction on the indefinite detention provision.
However, President Obama appealed the decision to the Second Circuit Court of Appeals, which ruled in July 2013 that the journalists and activists did not have standing to challenge the detention provisions. In rationalizing its decision, the court stressed that there had been no history of enforcement against persons such as these plaintiffs (activists and journalists, but non-combatants), the statute is not aimed at persons like them, and there has been no specific threat by the government to apply the statute to them.
Critics of the NDAA had hoped that the U.S. Supreme Court would agree to hear the case and, in so doing, reverse its 1944 ruling in Korematsu v. United States, which concluded that the government’s need to ensure the safety of the country trumped personal liberties and allowed for the internment of Japanese-Americans during World War II.