Judge Grants Obama DOJ Request to Suspend Case Against NDAA

The government has been granted a stay in the case challenging the constitutionality of indefinite detention provisions in NDAA

by John Glaser, September 18, 2012

A federal appeals court judge granted the government’s request to suspend a federal judge’s ruling last week that permanently enjoined a provision of the National Defense Authorization Act (NDAA) empowering the government to indefinitely detain suspects in the “war on terror,” even American citizens.

Congress passed the NDAA last year, which includes provisions codifying indefinite detention for individuals suspected of allying with or supporting al-Qaeda or its affiliates.

Judge Katherine B. Forrest on Wednesday of last week blocked the government from enforcing those particular statutes on grounds that they violate Constitutionally guaranteed rights to due process, in a case brought against the government by journalists and academics including Chris Hedges, Daniel Ellsberg, and Noam Chomsky.

The Obama administration immediately appealed Forrest’s ruling, asking for an “immediate stay,” or suspension of the case’s proceedings. When Forrest denied the request, the government went to the Second US Court of Appeals in Manhattan and asked another judge for an emergency stay, which Judge Raymond J. Lohier granted on Monday.

“The motion Justice Department lawyers filed is significantly overwrought, sensational and teeming with arrogance,” writes Kevin Gosztola of FireDogLake. “It, perhaps, affirms the worst fears of the plaintiffs, who decided to bring the lawsuit months ago.”

“In effect,” Gosztola continues, “the government is arguing for the power to make the decision to detain a person and put them in prison without having any body whatsoever question their power to do so because the country is in a state of perpetual war. It is essentially an argument for the power to be able to populate internment camps whenever necessary.”

The government’s primary argument against the plaintiff’s case is that the provisions in NDAA don’t offer the government any more power to detain individuals than are already present in the Authorization for the Use of Military Force (AUMF), a joint resolution passed by Congress three days after the 9/11 attacks authorizing the use of force against those who carried out the attacks or were allied with those who did.

The Obama Justice Department says that since Congress codified already existing practices (AUMF) into law (NDAA), it should be clear NDAA doesn’t grant any new powers that can be challenged. But the question here is: why insist upon the detention provisions in NDAA?

If the NDAA provisions merely reiterate already existing statutes, then the government should be happy to allow the federal injunction to block enforcement of the provisions and just keep using the old laws they used prior to late 2011, when NDAA was passed.

Clearly, NDAA does grant the government new powers of indefinite detention without charge or trial. NDAA contains language that is very vague about who can be detained and for what: those who “substantially supported,” “directly supported,” or al-Qaeda, the Taliban or “associated forces,” including American citizens.

As the plaintiff’s put it, “The Act improperly authorizes that civilians in the United States be detained indefinitely by the military, that they be tried by military commission or military court and that they may be subject to removal to other jurisdictions in violation of the Amendments V and VI of the Constitution.”

And, “The Act fails to give reasonable notice of the acts and conduct that will render a person liable to military detention and is overbroad thereby chilling and impinging upon protexted expressive and associative acts.”

The stay that was granted on Monday essentially suspends the case’s proceedings until a full three judge motions panel can consider the matter on September 28th. The chances that the full panel will be as bold as Judge Forrest and exercise the court’s responsibility to check the power of the Executive Branch is not high.

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