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Monday, June 17, 2024 | Back issues
Courthouse News Service Courthouse News Service

Military Detention Law Extended|as U.S. Appeals Finding Against It

MANHATTAN (CN) - Three Obama-appointed appellate judges reinstated the military detention law the president signed, which was blocked as unconstitutional by yet another of his nominees.

Obama enacted the 2012 National Defense Authorization Act, or NDAA, on New Year's Eve.

One paragraph nestled in the 565-page doorstopper, Section 1021(b)(2), lets the military indefinitely incarcerate anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."

Chris Hedges, a former war correspondent who reported on these groups, filed a lawsuit stating that the NDAA arms the military with the ability to imprison journalists, activists and human-rights workers based on vague allegations.

Six other dissenters, including Massachusetts Institute of Technology professor Noam Chomsky and Pentagon Papers source Daniel Ellsberg, joined as co-plaintiffs.

In blocking enforcement of the challenged provision this past May, U.S. District Judge Katherine Forrest found that the self-styled Freedom Seven had a "reasonable fear" that the law would trample on their rights to free speech and due process.

The 2nd Circuit stayed that ruling in "the public interest" on Tuesday night, enforcing a temporary stay that Judge Raymond Lohier signed in September.

Like Lohier and Forrest, each of the three judges on the panel Tuesday - Denny Chin, Raymond Lohier and Christopher Droney - are Obama appointees.

They base on the decision on three findings, each at direct odds with Forrest's ruling.

"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,'" the unsigned order states.

Forrest's ruling stated that government lawyers initially refused to make such a promise, and that their eventual, qualified assurances left the plaintiffs at the "mercy of noblesse oblige."

"Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States," the appellate order states.

Section 1021(e) states: "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."

The government claims that the NDAA reflects "existing law."

Judge Forrest had agreed with the plaintiffs, however, that it actually codifies expansive, new powers.

"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," the appellate order states.

Judge Forrest found that this contradicted the government's position that the NDAA essentially mirrored the authorization.

"If, however, the government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the government's arsenal," she had said.

A different trio of appellate court judges will hear arguments in December over the constitutionality of the challenged NDAA provision.

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