Military Detention Law Survives on Appeal

     (CN) – Without proof that the Obama administration’s military detention law will target them specifically, a group of journalists opposed to it lack standing to sue, the 2nd Circuit ruled.
     Pulitzer Prize-winning journalist Chris Hedges filed suit days after President Barack Obama signed the 2012 National Defense Authorization Act, or NDAA, which Hedges claims has dangerously vague language that could be used against reporters, activists and human-rights workers.
     One paragraph nestled in the 565-page doorstopper, Section 1021(b)(2), lets the military indefinitely detain anyone accused of having “substantially supported” al-Qaida, the Taliban or “associated forces” until “the end of hostilities.”
     Six others opposed to the law, including renowned scholar Noam Chomsky and Pentagon Papers source Daniel Ellsberg, joined as co-plaintiffs
     Though U.S. District Judge Katherine Forrest blocked the law based on the so-called Freedom Seven’s “reasonable fear” for their free speech and due process rights, the 2nd Circuit had stayed the injunction pending the government’s appeal .
     Those watching the case predicted that full reversal was likely after the Supreme Court’s February 2013 resolution of Clapper v. Amnesty International . In that case, a five-justice majority found that human rights groups could not force the government to produce evidence about its warrantless wiretapping program without proof of the spying. Detractors have criticized the ruling as a “Catch 22.”
     Like the warrantless wiretapping opponents, the challengers of indefinite detention failed to prove that they had any chance of winding up in a military prison, the 2nd Circuit found Wednesday.
     Though critics of the NDAA have interpreted the law as allowing the indefinite military detention of U.S. citizens, such as Hedges and a fellow plaintiff-journalist Alexa O’Brien, the court found otherwise.
     “The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the president’s authority to detain American citizens,” U.S. District Judge Lewis Kaplan wrote for a three-member panel, sitting by designation from the Southern District of New York.
     “And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021,” Kaplan added (emphasis in original). “Accordingly, we do not address the merits of plaintiffs’ constitutional claims.”
     This finding is the takeaway point of the decision, American University law professor Stephen Vladeck said in an interview.
     “In order to explain why the citizen plaintiffs lacked standing, the Court of Appeals necessarily rejected the possibility that the NDAA could authorize the detention of U.S. citizens – the exact issue that had motivated those plaintiffs to sue in the first place,” Vladeck said in an email. “As for the noncitizen plaintiffs, in order to explain why they lacked standing, the Court of Appeals also provided useful guidance going forward on the limits on detaining individuals based upon their provision of ‘substantial support’ to al-Qaida or its affiliates. Put simply, in order to explain why these guys didn’t have anything to complain about, the 2nd Circuit had to explain why the government doesn’t have the power that the Justice Department refused to disclaim.”
     “There are hard questions remaining in cases involving noncitizens captured abroad who come closer to ‘substantial support,’ but there have not yet been any such cases since Sept. 11,” Vladeck added (emphasis in original).

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