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.
Raymond Joseph Lohier, Jr. (born December 1, 1965) is a judge on the United States Court of Appeals for the Second Circuit and formerly an American prosecutor and an Assistant United States Attorney for the Southern District of New York. He was the chief of the securities and commodities fraud task force in the criminal division of the U.S. Attorney's office. He was recommended by Sen. Charles Schumer for the nomination to the seat on the United States Court of Appeals for the Second Circuit that was vacated by Sonia Sotomayor when she was elevated to the Supreme Court of the United States. Lohier is the first Haitian American to serve as an Article III Federal Judge.
Maybe I just missed it but I didn't hear anything about this on the evening news.
Which is why the government can get away with things like this.
Raymond Joseph Lohier, Jr. (born December 1, 1965) is a judge on the United States Court of Appeals for the Second Circuit and formerly an American prosecutor and an Assistant United States Attorney for the Southern District of New York. He was the chief of the securities and commodities fraud task force in the criminal division of the U.S. Attorney's office. He was recommended by Sen. Charles Schumer for the nomination to the seat on the United States Court of Appeals for the Second Circuit that was vacated by Sonia Sotomayor when she was elevated to the Supreme Court of the United States. Lohier is the first Haitian American to serve as an Article III Federal Judge"
John Yoo has been a professor at the University of California, Berkeley, School of Law since 1993. He wrote two books on presidential power and the war on terrorism, and many articles in scholarly journals and newspapers.[5] He has held the Fulbright Distinguished Chair in Law at the University of Trento and has been a visiting law professor at the Free University of Amsterdam, the University of Chicago, and Chapman University School of Law. Since 2003, Yoo has been a visiting scholar at the American Enterprise Institute, a conservative think tank. He writes a monthly column, entitled "Closing Arguments", for The Philadelphia Inquirer and is author of the book Crisis and Command.[6]
Yoo was a law clerk for Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit and for Supreme Court Justice Clarence Thomas. He also served as general counsel of the Senate Judiciary Committee.[1]
John Yoo has been a professor at the University of California, Berkeley, School of Law since 1993. He wrote two books on presidential power and the war on terrorism, and many articles in scholarly journals and newspapers.[5] He has held the Fulbright Distinguished Chair in Law at the University of Trento and has been a visiting law professor at the Free University of Amsterdam, the University of Chicago, and Chapman University School of Law. Since 2003, Yoo has been a visiting scholar at the American Enterprise Institute, a conservative think tank. He writes a monthly column, entitled "Closing Arguments", for The Philadelphia Inquirer and is author of the book Crisis and Command.[6]
Yoo was a law clerk for Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit and for Supreme Court Justice Clarence Thomas. He also served as general counsel of the Senate Judiciary Committee.[1]
"Silberman graduated from Dartmouth College in 1957 and Harvard Law School in 1961. He served in the United States Army from 1957 to 1958. His first wife, Rosalie "Ricky" Gaull Silberman, co-foundress of the Independent Women's Forum, died on February 17, 2007. Silberman has since remarried to Patricia Winn Silberman.
Silberman is also a friend of Justice Clarence Thomas and in 1989 encouraged a young and then-reluctant Thomas to accept a federal judgeship on the United States Court of Appeals for the D.C. Circuit.[2]
"As a judge, Silberman has authored a number of noteworthy opinions. In Parker v. District of Columbia, Silberman held that the District of Columbia’s flat ban on the registration and carrying of firearms violated the Second Amendment right “to keep and bear arms.”[11] The case was subsequently upheld by the Supreme Court in District of Columbia v. Heller.[12]
I
In In re Sealed Case, Silberman held that the procedures for appointing independent counsels violated the Appointments Clause of the Constitution and the separation of powers, because they interfered with the President’s ability to ensure that the laws are “faithfully executed.”[13] This decision was subsequently reversed by the Supreme Court in Morrison v. Olson, over a vigorous dissent by Justice Antonin Scalia.[14] After the Clinton impeachment episode, many changed their minds on this issue and praised Judge Silberman and Justice Scalia’s position.[15]
In a later per curiam decision captioned In re the court upheld a provision of the Patriot Act that made it easier for law enforcement officers and intelligence officers to share information with each other.[16] This was an important decision involving interpretation of the Patriot Act, the use of foreign intelligence, and the role of the FISA Court. Silberman subsequently disclosed that he had in fact written the opinion.
In re Sealed Case, 310 F.3d 717 (2002), is decision by the United States Foreign Intelligence Surveillance Court of Review reviewing a "denial" of a Foreign Intelligence Surveillance Act (FISA) application handed down on May 17, 2002. The Court of Review reversed the Foreign Intelligence Surveillance Court (FISC) rejection of the FISA application. This opinion represents the first meeting of and first opinion by the Court of Review. For the purposes of review, the FISC's modification of the requested application worked as a denial, giving the Court of Review jurisdiction to take the case.
Among other things, the Court of Review found that FISA is constitutional, that the minimization requirements of FISA are not grounds to limit the purpose of the FISA application, and that FISA may be used to collect evidence for criminal prosecution. The Court also noted (but made no judgment regarding) "the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance" which relates to part of the government justification in the NSA warrantless surveillance controversy.
INTERESTING THAT IT IS THESE "RECENT AMERICANS" WHO ARE TAKING OUR RIGHTS AND TURNING AMERICA INTO A THIRD WORLD POLICE STATE $HITOLE…………..
Is there anything binding these treasons…together..,.??????
"He was recommended by Sen. Charles Schumer for the nomination to the seat on the United States Court of Appeals for the Second"
"Yoo was a law clerk for Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit and for Supreme Court Justice Clarence Thomas. He also served as general counsel of the Senate Judiciary Committee"
Here we have another illustration of the folly of looking to *government* courts for protection from the government. Conscientious jurists like Forrest are anomalies; most federal bench-warmers are only too eager to legitimize federal power grabs.
And Russia is called communist what shall we call america.
The sheeple and lemmings need to ask one question; Why does the government so deperately NEED to authority to detain Americans without due process or charges?
It's called a Dictatorship. And I suspect it is about to remove its mask of civility.
Of the three kinds of people: predator, victim, and survivor, which will you be?
Maybe you ought to ask your "Of the three kinds of people: predator, victim, and survivor, which will you be?' question of the Afghans… Which type are they… Or which type were the founding fathers…??? What I'm getting to here with this… is this question…. Is there is not a "When the going gets tough, the tough get going"….. type of people who are neither predators nor victims…and are not mere survivors either… but defensive conquerers of foreign invaders like the Afghans have been throughout most of the last three millennium…… Perhaps that is the reason that the DHS needs I.6 billion rounds of 40 cal hollow points. See: http://www.teapartynation.com/forum/topics/does-a… http://www.examiner.com/article/department-of-hom…
It has been called State of Fashisam…so what is new ?
And this is how freedom is lost: By one well-intentioned and mis-guided step at a time.
Yes, as each day passes we lose more and more freedoms for our "safety'
It really is sad
As expected. Once it makes it so the oh, so high and mighty Corporate Supreme Court when Fascism becomes the official highest law on the land of the thief and the home of the serf.
STOP crying and at least connect the dots…. At least work out the WHY….. And WHY now……..!!!
To fight this it will be necessary to understand the WHY …and the HOW…… Especially the WHO…..
WHO is the driving force..?? It ISN'T Raymond Joseph Lohier, or John Yoo…… They are only lackeys.. being groomed behind the scenes to do this dirty work of enslaving even those whose families fought to free us from the wretched kings and queens…..
There is an alarming similarity to what's going on here and what happened in Germany ….. Hitler was not elected, , Hitler was appointed Reich Chancellor by President Hindenburg after a disputed election.. Neither was "W" elected, he was appointed by the Republican majority of the supreme court after the disputed election..
Very soon after Hitler was appointed, the Reichstag was burnt. The very next day by issuing an emergency decree “for the Protection of the people and the State,” which stated: “Restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press; on the rights of assembly and association; and violations of the privacy of postal, telegraphic and telephonic communications and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.”
"are also permissible beyond the legal limits otherwise prescribed.” Odd how it almost precisely parrots what the torture teams of legal lackeys like David Addington, Michael Mukasey and John Yoo were mouthing……
Next the Enablingt act:
The Enabling Act (German: Ermächtigungsgesetz) was passed by Germany's Reichstag and signed by President Paul von Hindenburg on 23 March 1933. It was the second major step, after the Reichstag Fire Decree, through which Chancellor Adolf Hitler legally obtained plenary powers and established his dictatorship. It received its name from its legal status as an enabling act granting the Cabinet the authority to enact laws without the participation of the Reichstag. The act stated that it was to last for four years unless renewed by the Reichstag, which occurred twice.
Here it was the Patriot Act:
The USA PATRIOT Act (commonly known as the Patriot Act) is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001. The title of the act is a ten letter backronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001.[1]
The act, as a response to the terrorist attacks of September 11th, significantly reduced restrictions in law enforcement agencies' gathering of intelligence within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.