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April 25, 2012

The powerful brief we filed in the Hedges case

Pulitzer Prize winning journalist Chris Hedges is suing Barack Obama. Hedges wants to overturn the legalized kidnapping provisions in the 2011 National Defense Authorization Act (NDAA). Hedges meets with and writes stories about terrorists. Could this lead the U.S. military to arrest him on American soil? Could he be held without trial? And does he have to be arrested first, before he can have “legal standing” to challenge this law?

A court hearing was held to decide this issue of “standing.” The Judge asked the federal attorneys a crucial question . . .

 “Are you telling me that no US citizen can be detained under 1021 (of the NDAA)?”

The Judge asked this question several times in several ways. Even though a specific denial would have ended Hedges’ case, the Federal attorneys failed to answer directly. Instead . . .

The Judge asked for briefs to argue the question of standing. We were invited to submit one of these briefs. You helped fund it. We filed it. Our brief uniquely argues that the NDAA’s detention provisions…

  • Are illegally vague
  • Violate an enumerated power
  • Are based on a previous unconstitutional act

You can read the brief here (pdf):

Here is a summary . . .


The kidnapping provisions contain broad, undefined terms that seem to target people like Mr. Hedges. EXAMPLE: If Hedges publishes a terrorists group’s aims has he “substantially supported… associated (enemy) forces?”

The Feds intended to be ambiguous so they can kidnap and detain without restraint. The brief you funded quotes their surprising confessions, chapter and verse.

But this vagueness is illegal. The State has to prove intent in a criminal case. Yet, under NDAA, it’s possible for The State to kidnap or prosecute you for being in the wrong place at the wrong time.  

The kidnapping provisions re-write the Constitution

The Constitution’s Article III, Section 3, limits Federal powers with regard to treason charges. It specifically . . .

  • Defines TREASON
  • Sets strict evidence rules
  • Limits penalties
  • Stipulates that being friends with a traitor is NOT TREASON

If the military kidnaps you and holds you without due process, treason will be the essential reason. And yet, the NDAA kidnapping provisions violate all the aforementioned constitutional limits on treason charges.  

The Constitution cannot be re-written by mere legislation. The brief you helped fund cites James Madison’s views regarding Article III, Section 3. The quotes are compelling. One attorney, seeing our work, wrote us the following: 

The discussion of the Article III requirements for prosecuting treason and the contrast with the NDAA’s treatment is especially excellent and compelling in discussing the historical grounding of this limitation. I wish I had written it myself!

Extending the Un-constitutional “Authorization for Use of Military Force (AUMF)”

After 9-11 Congress gave the Executive Branch a blank check to wage any war it wants. This was illegal. Each war with each entity requires a specific Congressional declaration. Congress cannot delegate this power to the President. The brief you helped fund demonstrates this and makes the connection to the kidnapping provisions.

We show that the kidnapping provisions are directly tied to the illegal AUMF. The NDAA specifically states that the new kidnapping powers will only end when the AUMF ends. In other words . . .

The illegal kidnapping provisions are an extension of the illegal AUMF. 

As far as we know, the brief you helped fund is the only one to make this point.  

Your Role

Your support plays a unique role. Our briefs . . .

1. Oppose bad precedents
2. Encourage Constitutional fidelity
3. Make unique arguments
4. Seek principled victory

Few briefs do numbers one, two, or three. Almost none do number four. Most briefs are trapped in precedent-bound compromises, intended to make things slightly less bad. That’s why . . .

* Our briefs were influential in history making decisions like the Antoine Jones and Citizens United cases.
* I wish we could do ten more of these per year! 

We must all thank the William J Olson firm for devising and executing our legal strategy. 

And thanks to all who granted the funding. I hope we can count on your continued support, at whatever level fits your budget. Specifically . . .

If the Court grants standing to Mr. Hedges, then we will need to do more work on his case. That could happen soon. Get ready.

In the meantime, you can read the first Hedges brief here (pdf):  

Jim Babka
Downsize DC Foundation 

P.S. As I finished this Dispatch, I learned that our brief was prominently covered in a media report about the case

Not only did Downsize DC Foundation help finance the brief, we also recruited some of the groups signing the brief. Once again, you made that possible, so thank you.    

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