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Hedges v. Obama: The Supreme Court digs its head deeper into the sand

I published an article today, "Hedges v. Obama: The Supreme Court digs its head deeper into the sand," examining the Supreme Court's refusal to consider an appeal challenging the government's authority to indefinitely detain Americans without trial. It was cross-posted at Huffington Post and FireDogLake.

In this article, I explain why the denial of certiorari in Hedges "is remarkable, both for its implications for fundamental rights, and its reflection on judicial independence." In particular, the analysis examines the disturbing military detention powers expanded under the National Defense Authorization Act of 2012, the resistance mounted by opponents from the peace & justice movement to federal judges and military families, and why allowing the NDAA's detention powers to persist notwithstanding the facial challenge in Hedges threatens not only Due Process but also judicial legitimacy. The article explains that:

The power to detain—or, for that matter, kill—without charge or trial effectively inverts the presumption of innocence. Due Process requires the state to prove allegations before meting out punishments. Yet the indefinite detention powers of the NDAA could empower our military to imprison Americans on the basis of mere accusation, effectively treating people accused as if guilty until proven innocent....

The only things as disturbing as the power to torture people into false confessions are the powers (1) to detain them without cause, (2) monitor them en masse in secret (potentially to identify potential dissidents), and (3) arbitrarily profile individuals and communities according to their race, religion, or point of view.

All of these powers are currently well-established in American law. Together, they could form the foundations for severe oppression, or even mass atrocity. Once triggered, it will take very little to bend those dangerous powers to horrific ends—and a great deal to stop them.

After initially appearing on BORDC's People's Blog for the Constitution, this article was also cross-posted on outlets including Huffington Post, FireDogLake, and a handful of other outlets.


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