Foley Hoag Files Brief Urging Supreme Court to Review Law Granting President Broad Authority

February 7, 2014

Foley Hoag LLP has filed a brief urging the Supreme Court to review provisions of the National Defense Act of 2012 that enable the government to undertake a broad range of measures against U.S. citizens, including trying them in military commissions and targeting them with lethal force. Foley Hoag partner David A. Kluft and associates Elizabeth Holland and Daniel L. McFadden filed the friend-of-the-court brief on behalf of the Bill of Rights Defense Committee. The Bill of Rights Defense Committee is a national non-profit organization that advocates against infringement of rights and liberties by overly broad national security and counter-terrorism policies.

The Foley Hoag brief asks the Supreme Court to hear the case. It argues for the reversal of a lower court’s decision rejecting a challenge to the law by U.S. citizen journalists who claimed that the law’s vague standards and extraordinary grant of power caused them to curtail their reporting activities. The brief highlights the critical role of the judiciary in reviewing the constitutionality of the broad exercise of Executive authority.

“The Government should not be allowed to evade judicial review of Section 1021,” the brief argues. “The stakes are too high. The scope of Section 1021 is potentially breathtaking. It applies to everyone, including U.S. citizens. It proscribes undefined and vaguely described conduct. The range of potential punishments is largely unknown. At a minimum, U.S. citizens accused of terrorism may be tried by military tribunals. Yet the international law of war authorizes much more, up to and including the extrajudicial use of lethal force. Few situations could possibly present a more pressing need for this Court’s intervention and guidance.”

About the Bill of Rights Defense Committee

Formed in 2001, The Bill of Rights Defense Committee (BORDC) is a national non-profit grassroots organization. We defend the rule of law and rights and liberties challenged by overbroad national security and counter-terrorism policies. BORDC supports an ideologically, ethnically, geographically, and generationally diverse grassroots movement to protect and restore these principles by encouraging widespread civic participation; educating people about the significance of our rights; and cultivating grassroots networks to convert concern, outrage, and fear into debate and action. For more information, visit or email

About Foley Hoag LLP

Foley Hoag provides innovative, strategic legal services to public, private and government clients across the globe. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse backgrounds, perspectives and experiences of our lawyers and business services professionals contribute to the exceptional service we deliver to clients ranging from startups to multinational companies to sovereign states. For more information, visit or follow @FoleyHoag on Twitter.