Appeals Judge Grants Stay of Injunction on NDAA’s Indefinite Detention

The federal government can once again seize and detain anyone, including Americans, suspected of “terrorism” and hold them indefinitely – at least until September 28.

On Monday, September 18, appeals court Judge Raymond J. Lohier granted the government's request to put on hold a permanent injunction ordered by federal court Judge Katharine Forrest's in Hedges v. Obama, which bans a provision in the National Defense Authorization Act (NDAA) of 2012 that gives the government power to seize “terror suspects” and detain them indefinitely in military custody without charge or trial, including United States citizens on American soil. Lohier granted the interim stay against the indefinite detention provision – Section 1021(b)(2) – until September 28 when a panel of judges will hold a hearing on the matter.

President Obama signed the controversial $662 billion NDAA last New Year’s after a year-long controversy that centered on the vagueness of the language that gave the U.S. president unprecedented and unlimited authority to order the military to seize anyone suspected of “terrorism” or “providing aid to terrorists” or “associated forces” anywhere in the world. The Act nowhere gave specific indications of what kind of activities might land someone in indefinite detention without being charged or tried.

Former New York Times reporter and Pulitzer Prize winner Chris Hedges, MIT professor Noam Chomsky, Daniel Ellsberg, the former military analyst and Vietnam anti-war activist, who set a model for Wikileaks by releasing the Pentagon Papers and others filed the lawsuit against Obama and other federal government and congressional officials last winter. The plaintiffs asserted that Section 1021(b)(2) had already affected their “associational and expressive activities” – their freedom to assemble and free speech rights – and that the language of the law is so vague that it “provokes fear” that they could be seized and subjected “to indefinite or prolonged military detention” for exercising their constitutionally protected right to political speech.

In issuing the permanent injunction on September 12, Forrest cited the First and Fifth Amendments and called the indefinite detention provision “unconstitutionally overbroad.”

“A key question throughout these proceedings has been ... precisely what the statute means—what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties,” Forrest said. “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. 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 Section 1021(b)(2). Understanding the scope of Section 1021(b)(2) requires defining key terms.”

The government argued that Forrest issued an “extraordinary injunction of worldwide scope at the behest of a handful of individuals plaintiffs who lack standing“ because the government said they will not be detained under Section 1021(b)(2). Forrest pointed out in her order that this is a new position on the part of the government, which earlier refused to make that assurance and instead had offered a “qualified position.” Forrest quoted the government’s earlier position in her order, adding emphasis: “As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.”

In arguing for the stay, the government questioned the appropriateness of issuing an injunction against the president – “the courts have recognized that any injunction running against the President would be extraordinary,” the government attorneys wrote – and also stated, that “an Act of congress is entitled to a presumption of constitutionality.”

The government also claimed that the NDAA of 2012 did not expand “existing authority under the 2001 Authorization for Use of Military Force.” The AUMF, however, which Congress passed a week after the September 11, 2001, terrorist attacks on the World Trade Center, limited use of the military specifically to those people who were responsible for the 9/11 attacks. The 2012 NDAA expanded that authority to anyone suspected of terrorism or aiding terrorists or “associated forces” without defining the terms.

Forrest argues at length against the government’s assertion that the original AUMF and the 2012 NDAA are the same. “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF,” Forrest wrote.

The 2012 NDAA uses language such as ‘reaffirmation’ to make it “appear as if this broader detention authority had always been part of the original grant. It had not,” Forrest wrote. Based on what is known about the history of the executive branch’s use of detention authority through reported cases and the governments own statements, “sometime between September 18, 2001 (the date of the AUMF) and December 31, 2011 (the date of the NDAA) – without congressional authorization – the executive branch unilaterally extended its interpretation of its military detention authority to a scope resembling what was passed into law as Section 1021(b)(2),” Forrest wrote. “Detentions have been challenged via habeas petitions. Courts have warned the Government about the limits of congressional authorization for detention authority (with respect to the AUMF), and that the ‘laws of war’—to which the Government has repeatedly referred in its opposition to the Guantanamo habeas petitions as providing a basis for detention—was not and should not be part of domestic law.”

Hedges said he will keep fighting the NDAA provision that denies citizens the right of due process and allows them to be detained indefinitely in military facilities, including prisons in other countries. In a September 17 article in Truthout, he wrote, “The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush. Obama has refused to restore habeas corpus. He supports the FISA Amendment Act (Foreign Intelligence Surveillance Act), which retroactively makes legal what under our Constitution has traditionally been illegal—warrantless wire tapping, eavesdropping and monitoring directed against U.S. citizens. He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate U.S. citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention.”

Forrest’s ruling, Hedges said, “is a chilling explication and denunciation of the massive erosion of the separation of powers. It courageously challenges the overreach of Congress and the executive branch in stripping Americans of some of our most cherished constitutional rights.”