The U.S. 2nd Court of Appeals has issued a stay granting the government’s request to block a lower court’s ruling barring the indefinite detention provision in last year’s defense bill otherwise known as the N.D.A.A. (National Defense Authorization Act). Via Politico, you can read the court ruling here –http://images.politico.com/global/2012/10/indefdetnappealscourtstay.pdf
The case will now await review by a merits panel with briefs due to be filed by mid-December so a ruling will likely await until the first of the year. In the meantime, the provision stands with the governments explanation that you have nothing to worry about. Here is a quote from the decision.
For the following reasons, we conclude that the public
interest weighs in favor of granting the government’s motion for
a stay. First, in its memorandum of law in support of its
motion, the government clarifies unequivocally that, “based on
their stated activities,” plaintiffs, “journalists and
activists[,] . . . are in no danger whatsoever of ever being
captured and detained by the U.S. military.” (Mot. for Stay 1).
Second, on its face, the statute does not affect the existing
rights of United States citizens or other individuals arrested in
the United States. See NDAA § 1021(e) (“Nothing in this section
shall be construed to affect existing law or authorities relating
to the detention of United States citizens, lawful resident
aliens of the United States, or any other persons who are
captured or arrested in the United States.”). Third, the
language of the district court’s injunction appears to go beyond
NDAA § 1021 itself and to limit the government’s authority under
the Authorization for Use of Military Force, Pub L. 107-40, 115
Stat. 224 (Sept. 18, 2011). In light of these and other factors,
see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167,
170 (2d Cir. 2007), we conclude that the interests of justice
would best be served by granting a stay of the district court’s
Did you catch that? It said “based on their stated activities”. Do you see any gray area there? This is the type of gray area that District Court Judge Katherine Forrest objected to in the N.D.A.A. itself. The definitions are too vague and open to interpretation. In other words my stated activity may be that I’m a journalist, however, the government has the ability to deem my activities outside the scope of my stated activity and therefore detain me. The government has the authority to be judge, jury and executioner.
I also find it interesting that the same Judge Raymond J. Lohier, Jr. who participated in the three judge motions panel issuing the stay is the judge who set aside the lower court injunction blocking the indefinite detention provisions. Seems to be a conflict of interest when a judge partakes in reviewing their own decision wouldn’t you think?
Christopher Hedges is a journalist who filed the original suit protesting the expansive detention powers granted under the N.D.A.A. which you can read here – http://www.wired.com/images_blogs/threatlevel/2012/06/obamaresponse.pdf
It’s a slippery slope anytime you grant the government sweeping powers, particularly when they get to decide how it applies. Judge Forrest objected to indefinite detention during a war. Which war? The war on terrorism. When will that war end? Never. Care to have the government decide if you qualify as a threat and be able to lock you up forever without a trial, or even a charge, should they choose?