Posted by: The Busy Post | September 18, 2012

Appeals court allows indefinite terror detentions to continue — for now


A U.S. Appeals Court judge has temporarily stayed a lower court ruling that found a controversial terrorist detention law unconstitutional and could block the Obama administration from detaining some terrorism suspects indefinitely.

Second Circuit Court of Appeals Judge Raymond Lohier granted the federal government a temporary stay that stops the District Court injunction from taking hold until the appellate court hears the case, according to reports Tuesday.

The stay was issued after the Obama administration warned that the District Court’s injunction could have harmed detention practices in active conflicts such as Afghanistan.

U.S. District Court Judge Katherine Forrest ruled last week that some of the detention provisions in last year’s National Defense Authorization Act (NDAA) were unconstitutional — and that the injunction applied to everyone, not just the plaintiffs in the case. The judge found problems with the law’s vagueness for stating those who “substantially supported” al Qaeda or “associated forces” could be detained.

The Obama administration responded with an emergency motion for an immediate stay, arguing that the injunction exceeded the district court’s authority. It said the lower court ruling “threatens tangible and dangerous consequences in the conduct of an active military conflict.”

“The district court order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict,” the Obama administration wrote.

“There should be no mistake: the court’s opinion, and its invitation of contempt proceedings, are addressed directly to detention practices in areas of active hostilities,” the government’s motion said.

The indefinite detention case stems from a lawsuit filed in January by Christopher Hedges, a former New York Times reporter, and a group of journalists, writers and activists, including Daniel Ellsberg and Noam Chomsky. They alleged that their First Amendment rights were threatened and that they could be subject to indefinite detention under the 2012 NDAA law.

The government argues that the plaintiffs “face absolutely no threat of military detention,” and that the 2012 NDAA only clarified laws already established in the 2001 Authorization for the Use of Military Force (AUMF).

The NDAA sparked protests last year as it was debated in Congress amid concerns from activists and some lawmakers that the detention provisions could lead to the indefinite detention of American citizens.

While the writers of the law said these concerns were unfounded, a provision was added that said the law did not change existing detention statutes when it came to American citizens. President Obama also made clear in a signing statement that he would not use the law against American citizens.

Still, activists and lawmakers have argued there is nothing stopping future administrations from interpreting the law differently and targeting Americans.

Forrest initially granted a preliminary injunction against the NDAA in May. Her ruling last week expanded it to cover all enforcement of the law. Forrest criticized the NDAA for not being specific enough, writing that the law is “unconstitutionally overbroad.”

“The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties,” Forrest said. “Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from [the detention provisions of the NDAA].”

Interestingly, the federal government is now using provisions in its defense that it criticized last year when Congress was debating the NDAA.

“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” the administration wrote about the bill last year in a Statement of Administration Policy calling the section “unnecessary.”

via Appeals court allows indefinite terror detentions to continue — for now – The Hill’s DEFCON Hill.


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