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?

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2 thoughts on “Indefinite detention of American citizens is back on

  1. Sadly, our judges are just as political as the politicians that appoint them. Some are wondering if the film maker of the YouTube video thar supposedly set off all of the jihadist attacks on our embassies, is the first victim of the government’s right to detain.

  2. People can argue as to what extent partisan politics has overtaken the judiciary, but I think most would agree the rights of the individual are clearly yesterday’s news.

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