The Obama administration has won the latest battle in their fight to indefinitely detain US citizens and foreigners suspected of being affiliated with terrorists under the National Defense Authorization Act of 2012.
Congress granted the president the authority to arrest and hold
individuals accused of terrorism without due process under the
NDAA, but Mr. Obama said in an accompanying
signing statement that he will not abuse
these privileges to keep American citizens imprisoned
indefinitely. These assurances, however, were not enough to keep
a group of journalists and human rights activists from filing a
federal lawsuit last year, which contested the
constitutionality of Section 1021, the particular provision that
provides for such broad power.
A federal judge sided with the plaintiffs originally by granting an
injunction against Section 1021, prompting the Obama
administration to request an appeal last year. On Wednesday this week, an
appeals court in New York ruled in favor of the government and
once again allowed the White House to legally indefinitely detain
persons that fit in the category of enemy combatants or merely
provide them with support.
Now with this week’s appellate decision, plaintiffs intend on
taking their case to the Supreme Court. Should the high court
agree to hear their argument, the top justices in the US may
finally weigh in on the controversial counterterrorism law.
The so-called “indefinite detention” provision of last year’s
National Defense Authorization Act has been at the center of
debate since before President Barack Obama autographed the bill
in December 2011, but a federal lawsuit filed by Pulitzer
Prize-winning war correspondent Chris Hedges and others only two
weeks after it went into effect remains as relevant as ever in
light of a decision delivered Wednesday by the US Court of
Appeals for the Second Circuit.
The plaintiffs in case had previously been successful in
convincing a federal district judge to keep Section 1021 from
being put on the books, but the latest ruling negates an earlier
injunction and once again reestablished the government’s right to
indefinitely detain people under the NDAA.
Tangerine Bolen, a co-plaintiff in the case alongside Hedges,
told RT, “Losing one battle is not losing the war. This war is
an assault on truth itself. It flaunts reason, sanity and basic
decency. We will not stand down in the face of these egregious
assaults on our rights and liberties.”
In a statement published to TruthDig, Hedges called the ruling
“distressing” and said, “It means there is no recourse
now either within the Executive, Legislative or Judicial branches
of government to halt the steady assault on our civil liberties
and most basic Constitutional rights.”
Section 1021 of the NDAA reads in part that the president of the
US can indefinitely imprison any person who was part of or
substantially supported al-Qaeda, the Taliban or associated
forces engaged in hostilities against the US or its coalition
partners, as well as anyone who commits a “belligerent
act” against the US under the law of war, “without trial,
until the end of the hostilities.” The power to do as much
was allegedly granted to the commander-in-chief after the
Authorization to Use Military Force was signed into law shortly
after the September 11, 2001 terrorist attacks, but a team of
plaintiffs have argued that Section 1021 provides the White House
with broad, sweeping powers that put the First
Amendment-guaranteed rights to free speech and assembly at risk
while also opening the door for the unlawful prosecution of
anyone who can be linked to an enemy of the state.
Only two weeks after the 2012 NDAA was signed into law, Hedges
filed a lawsuit against the Obama administration challenging the
constitutional validity of Section 1021.
“I have had dinner more times than I can count with people
whom this country brands as terrorists … but that does not make
me one,” he said at the time.
Naomi Wolf, an American author, told the Guardian last year that
she has skipped meetings with individuals and dropped stories
that she believed are newsworthy “for no other reason than to
avoid potential repercussions under the bill.”
Hedges first filed suit on Jan 13, 2012, and was eventually
joined by a number of activists, reporters and human rights
workers from both the US and abroad, including Pentagon Papers
leaker Daniel Ellsberg, journalist Alexa O’Brien, Revolution
Truth founder Bolen and Icelandic PM Birgitta Jónsdóttir.
District Court Judge Katherine Forrest granted the plaintiffs a
preliminary injunction against Section 1021 that May, only to
make that decision permanent four months later. The Obama
administration filed a stay against that injunction just days
after, though, and the appeals court ruled this week that Judge
Forrest’s decision must be vacated.
Carl Mayer, an attorney for the plaintiffs, previously told RT that he expected the White House
to lose the appeal. “The Obama administration has now lost
three times. They lost the temporary injunction, they lost the
motion for reconsideration and they lost the hearing for
permanent injunction. I say three strikes and you’re out,” he
said.
But with the court’s 3-0 ruling this week, a federal panel
concluded that the plaintiffs involved in the suit do not have
standing to challenge Section 1021. In doing so, however, they
offered what is the most official interpretation yet of a law
that has continuously attracted criticism for nearly two years
now.
After years of debate, the appeals court said once and for all
that the NDAA does not apply to American citizens, and rehashed
the Obama administration’s insistence that it simply reaffirmed
rights afforded to the government through the AUMF.
“Section 1021(e) provides that Section 1021 just does not
speak – one way or the other – to the government’s authority to
detain citizens, lawful resident aliens or any other persons
captured or arrested in the United States,” the court ruled.
“We thus conclude, consistent with the text and buttressed in
part by the legislative history, that Section 1021 means this:
With respect to individuals who are not citizens, are not lawful
resident aliens and are not captured or arrested within the
United States, the President’s AUMF authority includes the
authority to detain those responsible for 9/11 as well as those
who were a part of, or substantially supported, al-Qaeda, the
Taliban or associated forces that are engaged in hostilities
against the United States or its coalition partners – a detention
authority that Section 1021 concludes was granted by the original
AUMF.”
“But with respect to citizens, lawful resident aliens, or
individuals captured or arrested in the United States, Section
1021 simply says nothing at all,” it concluded.
The AUMF, however, is still open to interpretation. An earlier
legal ruling concluded that the AUMF “clearly and
unmistakable” authorized detaining those who were “part of
or supporting forces hostile to the US.” Then a memo issued
in March 2009 just weeks’ into Pres. Obama’s first term even
added that the government has the authority “to detain persons
who were part of or substantially supported” anyone engaged
in hostilities against US or its partners.
“In any event, the March 2009 Memo took the view that ‘the
AUMF is not limited to persons captured on the battlefields of
Afghanistan’ nor to those ‘directly participating in
hostilities,’” the appeals court noted. When the DC Circuit
weighed in further down the road, it determined that the AUMF
authorized detention for those who “purposefully and
materially support” those hostile forces, although this
week’s ruling makes note that the Circuit Court has failed to
ever figure out what “support” exactly means.
“The government contends that Section 1021 simply reaffirms
authority that the government already had under the AUMF,
suggesting at times that the statute does next to nothing at all.
Plaintiffs take a different view,” wrote the court this week.
Definitions aside, however, the appeals court wrote that Hedges
and his American co-plaintiffs lack standing to challenge the
indefinite detention provisions since a subsection of that rule,
1021(e), frees US citizens from detention under the NDAA.
“We recognize that Section 1021 perhaps could have been
drafted in a way that would have made this clearer and that the
absence of any reference to American citizens in Section 1021(b)
led the district court astray in this case. Perhaps the
last-minute inclusion of Section 1021(e) as an amendment
introduced on the floor of the Senate explains the somewhat
awkward construction,” wrote the court. “But that is
neither here nor there. It is only our construction, just
described, that properly gives effect to the text of all of the
parts of Section 1021 and thus reflects congressional
intent.”
At the same time, though, the appeals court acknowledged that
Iceland’s Jónsdóttir, co-plaintiff Kai Wargalla of Germany and
other foreign persons could be detained indefinitely under the
NDAA. Although Jónsdóttir has argued that her well-documented
affiliation with the anti-secrecy group WikiLeaks – particularly
with regards to classified material its published much to the
chagrin of the US government – is enough to land her in hot
water, the court said indefinite imprisonment in a military jail
cell is an unrealistic fear and she therefore lacks standing.
Jónsdóttir, 46, has been a member of the Iceland parliament since
2009, the same year that US Army Private first class Bradley
Manning began supplying materials to WikiLeaks. Jónsdóttir and
WikiLeaks founder Julian Assange worked directly with raw video
footage supplied by Manning showing a US helicopter fatally
wounding innocent civilians and journalists, which the website
later released under the name “Collateral Murder.” And although
Pfc. Manning is currently on trial for “aiding the enemy” by
supplying WikiLeaks – and indirectly al-Qaeda – with that
intelligence, the court said Jónsdóttir herself has nothing to
fear.
“The claims of Jónsdóttir and Wargalla stand differently.
Whereas Section 1021 says nothing about the government’s
authority to detain citizens, it does have real meaning regarding
the authority to detain individuals who are not citizens or
lawful resident aliens and are apprehended abroad,” the court
ruled.
Elsewhere, the judges wrote that the government insists that
WikiLeaks and Manning provided “some support” to hostile
forces by publishing classified intelligence, and that the
25-year-old Army private is indeed facing prosecution for such
that could put him away for life.
“One perhaps might fear that Jónsdóttir’s and Wargalla’s
efforts on behalf of WikiLeaks could be construed as making them
indirect supporters of al-Qaeda and the Taliban as well,”
wrote the court. “The government rejoins that the term
‘substantial support’ cannot be construed so in this particular
context. Rather, it contends that the term must be understood –
and limited – by reference to who would be detainable in
analogous circumstances under the laws of war.”
Because “plaintiffs have provided no basis for believing that
the government will place Jónsdóttir and Wargalla in military
detention for their supposed substantial support,” the court
has rejected their lawsuit.
“In sum, Hedges and O’Brien do not have Article III standing
to challenge the statute because Section 1021 simply says nothing
about the government’s authority to detain citizens,”
concluded the court. “While Section 1021 does have meaningful
effect regarding the authority to detain individuals who are not
citizens or lawful resident aliens and are apprehended abroad,
Jónsdóttir and Wargalla have not established standing on this
record. We vacate the permanent injunction and remand for further
proceedings consistent with this opinion.”
Meanwhile, the court’s decision did little to resolve what
actually is allowed under the AUMF. In fact, the court said
Section 1021 “does not foreclose the possibility that previous
‘existing law’ may permit the detention of American
citizens,” making note of American Yaser Esam Hamdi and a
three-year ordeal that left him without the right to habeas
corpus or an attorney after he was picked up in post-9/11
Afghanistan on suspicion of terroristic ties. Instead, it
confirmed that foreign citizens engaged with substantially
supporting hostile forces– neither of which term is still
properly defined – can be locked up in military jails.
Hedges previously said that he thought that the US was
already using the NDAA to put some people away.
“If the Obama administration simply appealed it, as we
expected, it would have raised this red flag,” Hedges said
during an online Q-and-A session on Reddit when the White House
last fought back. “But since they were so aggressive it means
that once Judge Forrest declared the law invalid, if they were
using it, as we expect, they could be held in contempt of court.
This was quite disturbing, for it means, I suspect, that US
citizens, probably dual nationals, are being held in military
detention facilities almost certainly overseas and maybe at
home.”
In a statement published to TruthDig on Wednesday, Hedges said
that he plans to appeal. If accepted, the case of Hedges v
Obama may go all the way to the Supreme Court. That’s a
decision that will weigh with the justices, however, and Hedges
said they are by no means required to hear their request.
“It is a black day for those who care about liberty,”
wrote Hedges.
In her statement to RT, Bolen rejected the notion that she and
others lack standing to challenge a law that plaintiffs believe
is being used in secrecy.
“Good people have come forward to challenge the madness of the
US government in the wake of 9/11 – people who have every reason
to fear this atrocious panoply of laws and policies that are
fundamentally eroding guaranteed liberties and basic human
rights,” she said.
“The United States Government itself is behaving as a terror.
Through indefinite detention of innocent civilians at Guantanamo,
secret rendition, torture, murder of hundreds of thousands of
innocent civilians in Iraq and illegal drone bombings – it is
fundamentally eroding the rule of law while harming national
security. Courts are contradicting themselves on whether the
government has the right to indefinitely detain even its own
citizens, Congress has supported dragnet surveillance and other
assaults on everything we were founded on, and yet somehow, our
fears are only ‘speculation,’” she said.
Republished with permission from: RT