A Federal Appeals Court in New York has thrown out a previous ban on the enforcement of the 2012 National Defense Authorization Act (NDAA) statute allowing the president to impose indefinite detention without trial.
A 2012 lawsuit against the NDAA, brought by Chris Hedges, Daniel Ellsberg, Noam Chomsky and others, had sought to preemptively block the federal government from using the NDAA to detain them as dissidents, since the bill was extremely vague about who it could apply to and granted presidents seemingly enormous latitude on the matter.
Judge Katherine Forrest twice ruled in their favor, and in September permanently blocked the use of the NDAA’s detention clause. It is that block which was removed today by the Appellate Court, which ruled that Hedges et al hadn’t established “sufficient basis to fear detention.”
President Obama fought against the Forrest ruling, claiming it could force him to release some of the people he’s already detaining without trial, and administration officials have defended the idea of leeway on who counts as “aiding the enemy,” saying it was neither “possible nor advisable” to issue specific rules.
But while objecting to the idea of limitations in the abstract, the administration sought to avoid getting into any specifics of who it might detain with the NDAA, and simply argued that none of the listed participants in the case could prove ahead of time that they were liable to be detained. And of course once they’re detained without access to courts, they couldn’t challenge it anyhow.
Indeed, the court openly spurned the question of whether or not it could detain any of the listed people, seemingly conceding the point that Icelandic MP Birgitta Jonsdottir could conceivably be accused of “aiding al-Qaeda” for being involved in WikiLeaks, as Bradley Manning has been, and on those grounds might then be detained under the NDAA, but saying that she hadn’t proven her detention was “imminent” and therefore she couldn’t challenge it.
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