In September 2012, three major legal battles over civil liberties converged in American courts. Cases involving indefinite detention, targeted killing by drones, and warrantless surveillance each tested the boundaries between national security authority and constitutional protections. Together, they painted a picture of a government aggressively defending its expanded powers while blocking judicial scrutiny at nearly every turn.
Indefinite Detention Under the NDAA Returns
The National Defense Authorization Act of 2012 included a provision under Section 1021(b)(2) authorizing the indefinite military detention of individuals, including U.S. citizens, without charge or trial. Federal Judge Katherine Forrest had issued a permanent injunction blocking the provision, but the Second Circuit Court of Appeals overturned her ruling, reinstating the detention authority.
Journalist Chris Hedges, one of the plaintiffs challenging the NDAA provision, offered a notable interpretation of the administration’s urgency in appealing Forrest’s injunction. He suggested that the swift legal response indicated the government may have already been exercising the detention authority and wanted to avoid being held in contempt of court. While speculative, the argument underscored the secrecy surrounding how the provision was being applied in practice.
The case highlighted a fundamental tension in post-9/11 law: whether the executive branch could claim wartime detention powers over its own citizens on domestic soil, and whether courts would permit meaningful challenges to that authority.
The CIA Drone Program and the Secrecy Paradox
The American Civil Liberties Union appeared before a three-judge panel of the D.C. Circuit Appeals Court to challenge what it characterized as an absurd contradiction in government policy. Senior officials had publicly discussed the CIA’s targeted killing drone program in television interviews, press briefings, and public speeches, claiming it was effective, lawful, and closely supervised. Yet in court, the CIA invoked secrecy to deny the program’s very existence and refused to respond to Freedom of Information Act requests.
The ACLU’s FOIA request, filed in January 2010, sought information about when, where, and against whom drone strikes could be authorized, along with details about how the government ensured compliance with international laws governing extrajudicial killing.
ACLU Deputy Legal Director Jameel Jaffer argued that the CIA could not simultaneously promote the program’s legitimacy in public while claiming its existence was classified in legal proceedings. The case tested whether the government could selectively disclose information favorable to its narrative while using secrecy doctrines to block independent oversight.
NSA Warrantless Surveillance and the Standing Problem
A class action lawsuit filed by AT&T customers in 2005 alleged that the National Security Agency had illegally intercepted their communications. Congress had immunized telecommunications companies from liability in 2008, but the government itself still faced legal challenges over the warrantless spying program.
After a judge initially dismissed the case in 2010 for lack of standing, arguing that plaintiffs could not prove they had personally been surveilled, an appeals court reversed the decision and directed a review of whether the state secrets privilege barred the case entirely. Plaintiff Carolyn Jewel subsequently filed for summary judgment, presenting testimony from NSA whistleblowers and former AT&T employees documenting the existence of dragnet surveillance infrastructure.
The government’s legal arguments contained a striking internal contradiction. Officials claimed they could not disclose who was or was not a surveillance target because doing so would cause “exceptionally grave damage to national security.” Yet in the same proceedings, they stated that surveillance under the Terrorist Surveillance Program was directed specifically at international communications involving al-Qaeda or affiliated organizations, implicitly acknowledging the program’s targeting criteria.
This contradiction suggested the government was willing to confirm that known terrorist organizations were targets but refused to address whether ordinary American citizens were also swept up in the collection, a question with profound Fourth Amendment implications.
The FISA Amendments Act Challenge
In a parallel case, the ACLU challenged the constitutionality of the FISA Amendments Act of 2008, which provided the legal framework for warrantless surveillance of international communications. The government attempted to block the lawsuit by arguing that the plaintiffs, a group of journalists, human rights workers, and academics, could not establish legal standing without proving with certainty that they had been surveilled.
The ACLU countered that this standard was deliberately impossible to meet, not because the surveillance would never occur, but because targets would never know about it. The organization argued that accepting the government’s theory of standing would effectively render courts powerless to review surveillance authorities exercised in secret, insulating the government from meaningful judicial accountability.
The case, Clapper v. Amnesty International, was headed to the Supreme Court to resolve the standing question. Meanwhile, the House of Representatives had passed a reauthorization of the FISA Amendments Act, extending the controversial surveillance authority through December 2017.
A Pattern of Resistance to Oversight
Viewed collectively, these cases revealed a consistent strategy by the national security establishment: invoke secrecy, challenge standing, and appeal unfavorable rulings to prevent courts from evaluating the legality of expanded government powers on their merits. Whether the issue was detention, assassination, or surveillance, the procedural barriers erected by the government followed a remarkably similar pattern, one that civil liberties organizations argued was fundamentally incompatible with constitutional governance and the separation of powers.
