Less than a month after the National Defense Authorization Act (NDAA) was signed into law, President Barack Obama faces a lawsuit because of its highly controversial provisions regarding the detention of suspected terrorists.
Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint against Obama and Secretary of Defense Leon Panetta Friday in the Southern U.S. District Court in New York City on behalf of journalist Chris Hedges. The complaint states that the law violates the First and Fifth Amendments.
The $662 billion defense spending bill contained a controversial section that required terrorism suspects to be detained by the military without trial, regardless of where they were captured.
Despite language in the law that states it does not affect existing authorities relating to the detention of U.S. citizens or others captured within the U.S., Hedges claims that it still allows the government to detain Americans indefinitely without trial.
“I spent many years in countries where the military had the power to arrest and detain citizens without charge,” Hedges explains. “I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.”
While signing the bill, Obama issued a signing statement in which he pledged that the new laws would not violate Americans’ constitutional rights. But human rights advocates said that did not prevent future administrations from abusing the law.
The complaint alleges that Hedges could fall within the scope of the law. As part of his job as a journalist, he has direct communications with persons who are likely to be deemed engaged in hostilities with the United States. The detention provisions cover anyone who has “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.”
Hedges says that the controversial bill passed “because the corporations, seeing the unrest in the streets, knowing that things are about to get much worse, worrying that the Occupy movement will expand, do not trust the police to protect them. They want to be able to call in the Army. And now they can.
This will render null and void the Writ of Habeas Corpus, that is, Latin for “you have the body” Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.
In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has “recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’ Harris v. Nelson, 394 U.S. 286, 290-91 (1969). ” Therefore, the writ must be “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris, 394 U.S. at 291.
The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the “heavy burden” federal collateral litigation places on “scarce federal judicial resources,” a burden that “threatens the capacity of the system to resolve primary disputes.” McCleskey, 499 U.S. at 467.
The Court observed that”[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.
The predominant inquiry on habeas is a legal one: whether the “petitioner’s custody simpliciter” is valid as measured by the Constitution.
The writ of habeas corpus is the procedure by which a federal court inquires into illegal detention and, potentially, issues an order directing state authorities to release the petitioner. As described by the United States Supreme Court, “its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraint.