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Yesterday, was the appeal hearing in one of the most important cases going on in the country: challenging the National Defense Authorization Act's (NDAA) pernicious provision for indefinite preventive detention by the military.

In September, U.S. District Court Judge Katherine Forrest struck down the indefinite detention language as an unconstitutional First Amendment violation of free speech rights. Government lawyers quickly made an emergency appeal of the ruling because our military is already doing this, and now could be held in contempt of court.

The courtroom was packed. The room with the video feed was packed. The overflow room, which had only audio, was packed.

And the mainstream media (except for The Guardian) was nowhere to be found.

The NDAA allows the military to detain indefinitely anyone who "substantially supported" al Qaeda or its allies. My organization, the Government Accountability Project, submitted an amicus brief because the government's labeling me a "traitor," "turncoat," and "terrorist sympathizer" (and putting me on a terror watch list)--and declaring my client Thomas Drake to be an "enemy of the state"--could ring us within the ambit of the NDAA's undefined "substantial support" of terrorist groups. That would mean the difference between a whistleblower's right to a civilian trial subject to the legal standard of "guilty beyond a reasonable doubt" and military detention subject to the exceedingly lower standard of "preponderance of the evidence."

I am concerned that the provision's vagueness will be used as yet another tool in the prosecutorial kit to punish and deter whisteblowers who disclose information outside formal channels. The government's words and deeds with regard to my clients Tom Drake and John Kiriakou--both of whom were charged under the Espionage Act, but neither of whom were convicted of espionage charges--leave no doubt that the government will continue to use heavy-handed tactics against whistleblowers. NDAA chills me as an attorney because, without notice of the provision's parameters, I must ethically advise my clients that they may be subject not only to Espionage Act charges, but also the NDAA, should they blow the whistle. This is already resulting in dramatic externalities for our democracy at large.

Yesterday, one of the issues considered was whether US citizens are included under the indefinite preventive detention provision. A second was exactly what the vague and undefined "substantially supporting" terrorists means.

The government argued that 1) the NDAA doesn't apply to the plaintiffs, 2) the "indefinite preventive detention" section doesn't change the "detention rules already in place under the 2001 Authorization for Use of Military Force (AUMF)" (lower court Judge Forrest disagreed--and think about it: why would Congress pass a law to codify another law?), and 3) the provision "expressly exempts U.S. citizens." Judge Raymond Lohier shot back, saying the provision "doesn't exempt anything," because according to the government's own argument, the NDAA doesn't change current law.

The seven plaintiffs--including New York Times reporter Chris Hedges and Pentagon Papers whistleblower Dan Ellsberg--argue that the standards by which the government may detain al Qaeda supporters under the NDAA are so vague that journalists and others reasonably fear detention merely because they have been in contact with, or perhaps even interviewed, terrorists.

For me, this is not an imaginary or exaggerated fear. Whistleblowers have faced drastic prosecutorial overreach and retaliation (see the Drake case). And I represent clients whom the military has already subjected to indefinite preventive detention and torture when they were civilian contractors in Iraq--out of fear that they might blow the whistle. Google Donald Vance, Nathan Ertel, and Doe v. Rumsfeld. And hope that the Second Circuit sides with the plaintiffs.  Either way, this case appears to be headed to the Supreme Court.

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