[6] The legislation permitted the U.S. government to indefinitely detain people "who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States".

[7] The plaintiffs contended that Section 1021(b)(2) of the law allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban[6] respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations.

[9] In May 2012, a federal court in New York issued a preliminary injunction which temporarily blocked the indefinite detention powers of the NDAA (section 1021(b) (2)) on the grounds of unconstitutionality.

[28] Plaintiffs were journalist Christopher Hedges, Pentagon Papers whistleblower Daniel Ellsberg, writer and linguist Noam Chomsky, Icelandic parliamentarian Birgitta Jónsdóttir, activist and RevolutionTruth founder Jennifer Bolen, Occupy London activist Kai Wargalla, journalist and founder of "US Day of Rage" Alexa O'Brien, and American academic Cornel West.

[31][32] The plaintiffs said the NDAA chills speech by threatening constitutionally protected activities such as news reporting, protest and political organizing in defense of controversial causes such as the WikiLeaks case.

Fearing that section 1021(b)(2) of the NDAA could be applied to journalists and that the specter of such a scenario would have a chilling effect on free speech and freedom of the press in violation of the First Amendment, Hedges filed his lawsuit on January 12, 2012.

Naomi Wolf wrote for example in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA.

"[30] Hedges' complaint claimed that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a "covered person" who, by way of such writings, interviews and/or communications, "substantially supported" or "directly supported" "al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, ... under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]."

[34] In a post-hearing memorandum[35] the lawyers for the plaintiffs rejected the U.S. governments repeated position that the NDAA is merely an "affirmation" of the Authorization for Use of Military Force Against Terrorists (AUMF).

[36]Lawmakers, free-press advocates, small-government partisans, conservative think tanks, pro-gun groups, border-control activists, civil libertarians, a pastor and a professor, acting as amici curiae, stated in this context that the constitutionality of the AUMF authorization merits review[36][37] and that the NDAA violates the Treason Clause of the U.S.

[37] A federal court in New York City issued an order blocking the indefinite detention powers of the NDAA for American citizens after finding it unconstitutional.

On May 16, 2012, in response to the lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,[38] US District Judge Katherine B. Forrest ruled in a 68-page opinion that Section 1021 of the NDAA was unconstitutional because it violates the 1st and 5th Amendments.

[39] Judge Forrest therefore issued a preliminary injunction which prevented the US government from enforcing section 1021 of the NDAA's "Homeland Battlefield" provisions pending further order of the court or an amendment to the statute by US Congress.

[44] In an opinion and order[45] filed June 6, 2012, Judge Forrest clarified her statement, saying that her injunction applies not just to the named plaintiffs in the suit, contrary to government's narrow interpretation.

[49] On September 12, 2012, U.S. District Judge Katherine Forrest granted the plaintiffs' motion for a permanent injunction of § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 in a 112-page opinion.

The permanent injunction issued by Judge Forrest barred the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they "substantially supported" Al Qaeda or its allies — at least if they had no connection to the September 11 attacks.

[56]The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold.

[59] The U.S. government had argued that the NDAA was a reassertion of powers provided by Congress in the 2001 Authorization for Use of Military Force, which targeted perpetrators of the September 11 attacks and those who helped them.

[3][5][7][63] More precisely the U.S. government sought both an immediate temporary stay on Judge Forrest's September 12, 2012 ruling so that the matter can be argued, and a permanent one lasting until higher courts resolve the case.

[59] In their court papers on September 14, 2012[64] government lawyers said the plaintiffs had no basis to fear being locked up for their activities, and that the judge's order interfered with the president's powers at a time of war.

[3] Lawyers for the Obama administration also argued that the United States will be irreparably harmed if it has to abide by a judge's ruling that it can no longer hold terrorism suspects indefinitely without trial in military custody.

[59] They also argued that the injunction places an undue burden on military commanders in a time of war while the plaintiffs had no reasonable fear of ever being detained "in the foreseeable future".

[71] The Justice Department also said Forrest's decision not only invalidated the NDAA, but went further: rejecting the White House's long-standing interpretation of the President's and the military's authority to detain terror suspects.

[67] On September 17, 2012, the U.S. Department of Justice (DOJ) asked the U.S. Second Circuit Court of Appeals to place a temporary emergency stay on the permanent injunction made by Judge Forrest five days earlier.

[14][4][16][57][74][75][76][71][77] One day before the September 28, 2012 U.S. Second Circuit Court of Appeals hearing, Hedges asserted in a Reddit question-and-answer session: "I suspect, that U.S. citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home.

[48][88] The government argued that the plaintiffs lacked standing because "there is no actual or imminent injury to be redressed,"[88] stating that plaintiffs had never been detained and face no threat of detention, and criticized Judge Forrest's interpretation of the term "associated forces," writing: "The term is well understood to cover cobelligerent groups that fight together with al-Qaeda or Taliban forces in the armed conflict against the United States," and it is not and cannot be "read to cover the types of unarmed advocacy organizations involved in this suit.

"[20] In response to questioning from the court, Loeb stated that independent journalists had no reason to fear detention from the NDAA "and would not be treated as combatants unless there was evidence they were only using journalism as a cover and were in fact members of a designated enemy group.

"[97] Afran, the lawyer for Hedges and the other plaintiffs, countered that a number of ostensibly protected activities could fall under the NDAA's ill-defined language on "substantial support" for terrorism: "For example, raising money for Guantanamo inmates.

"[23][25] The court held that "plaintiffs have provided no basis for believing that the government will place Jonsdottir and Wargalla in military detention for their supposed substantial support.