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Ear to the Ground

NDAA Setback: Latest Court Ruling Paves Way for ‘Indefinite Detention’

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Posted on Oct 3, 2012
Photo by CTJ71081 (CC-BY)

An appeals court Tuesday extended a temporary stay of a judge’s order prohibiting the Obama administration’s controversial efforts to put any U.S. citizen the government deems a terrorism suspect behind bars indefinitely without being charged or tried. U.S. District Judge Katherine Forrest had blocked the disputed statute from the National Defense Authorization Act, essentially declaring it unconstitutional.

“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest wrote in her ruling last month. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”

But on Tuesday, a three-judge panel of the 2nd U.S. Circuit Court of Appeals disagreed with Forrest’s ruling, writing, “We conclude that the public interest weighs in favor of granting the government’s motion for a stay.”

Politico:

The case will go forward now before what will likely be a different trio of judges, but the stay will likely remain in place pending resolution of the government’s appeal.

The import of the law is disputed. Proponents say it simply reinforced authority a federal appeals court in Washington had already accorded to the U.S. government, at least as far as foreigner are concerned. Critics say the measure exposes journalists and human rights activists who meet with alleged terrorists to the prospect of open-ended detention.

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Truthdig columnist Chris Hedges is among the group of journalists and activists who sued the government over the provision. Hedges wrote in September after Forrest decided in favor of the plaintiffs that the ruling was “an unqualified victory for the public.”

Chris Hedges:

The judge said in her opinion that the government “did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings.” She went on to write that she found “the testimony of each plaintiff credible.”

“At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2).”

The government has now lost four times in a litigation that has gone on almost nine months. It lost the preliminary injunction in May. It lost a motion for reconsideration shortly thereafter. It lost the permanent injunction. It lost its request last week for a stay. We won’t stop fighting this, but it is deeply disturbing that the Obama administration, rather than protecting our civil liberties and democracy, insists on further eroding them by expanding the power of the military to seize U.S. citizens and control our streets.

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It is worth nothing that all three of the judges from the 2nd Circuit involved in the latest NDAA ruling were appointed by President Obama.

For Truthdig’s continuing NDAA coverage, click here.

—Posted by Tracy Bloom.

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