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January 21, 2014

Can We Convince the Supreme Court to End Legalized Kidnapping?

We need your help to file a new brief with the Supreme Court. This concerns a crucial issue with devastating consequences if we lose. And we have an urgent deadline. Here's the issue…

Congress did something tricky in late 2011. They buried a deceptive provision inside the National Defense Appropriations Act (NDAA).

Those who read this provision too quickly assume that it PREVENTS the President from detaining and holding American citizens without due process. But a more careful reading reveals the exact opposite!


It allows the President to detain and hold anyone he wants, indefinitely, without charges.

This was done in the name of fighting terrorism. But it could come to include domestic political enemies, including YOU.

After all, who would have the power to stop it? Who would even know that you had been DISAPPEARED by the President, or where you were being held?

The passage of this legalized kidnapping provision had an immediate chilling effect on the Pulitzer Prize winning journalist Christopher Hedges. Associating with terrorists is one of the means by which a person can be disappeared under the NDAA provisions. Mr. Hedges actually meets with (associates with?) terrorists as part of his job as an investigative journalist. His work informs the public about terrorist objectives and motivations. But now…

Hedges is afraid to risk doing these kinds of interviews. He fears his work may be used as a pretext for federal officials to disappear him. He has launched a lawsuit to try and overturn the President's new kidnapping power, and we have been helping him.

It's been an up-and-down fight so far. We won an early injunction against the kidnapping power, and then another court overturned that injunction. Now Hedges is asking for the Supreme Court to review the matter, and he wants our help.

Our attorneys want to file a new brief arguing the following points…

  • The Second Circuit court erred in ruling that Hedges would need to be illegally detained before he could have standing to challenge his detention. This is insane, given that he would then be held without due process and would have no means to challenge his detention (Catch 22). Our attorneys want to argue that Hedges has standing because the detention is impacting Hedge's freedom of the press, thereby creating the kind of “case or controversy” that has traditionally created standing.
  • The Second Court also mistakenly misread the provision as PREVENTING such detentions, when it actually authorizes them. The proposed brief will correct this error.
  • Our attorneys also want to argue that the NDAA kidnapping provision wrongly assumes that the “Authorization to Use Military Force” (AUMF), that Congress gave to President Bush, was a formal declaration of war. It was not. Our attorneys want to argue that the AUMF was really an illegal delegation of the Congressional war-making power to the President.
  • Hedges is also asking the court to overturn the 1944 Korematsu decision that validated the internment of Japanese-Americans during World War II. The Korematsu decision is the basis for much evil, including “legal” doctrines that could permit the legalized kidnapping provision to survive. We have argued against Korematsu in past briefs, and we want to do so again in this one.
  • Our attorneys also want to argue that the NDAA provision violates the Treason Clause, which requires the testimony of two witnesses to an act of treason. The legalized kidnapping provision effectively waves this Constitutional requirement.

Here's the challenge: We're not sure we can do this brief. Why?

Money. We just don't have the funds necessary to “push the button” and get started.

Should we let Chris Hedges down?

Should we drop out of this fight, when we've already come this far?

We won't let him down and fail so late in the game, if you'll help us fund this amicus brief.

We're efficiently assembling a coalition, to file with us. But we have limited notice and limited time to execute these projects. We need to get this one finished this week, so we need your help NOW.

  • We need two people to contribute $1,000 or more. Plus…
  • Dozens who will contribute varying amounts. And, perhaps most importantly…
  • New monthly pledgers.

Please “give until it feels good” using the Downsize DC Foundation secure contribution page.

Thank you,

Jim Babka
Downsize DC Foundation

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