Obama
wins back the right to indefinitely detain under NDAA
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.
17
July, 2013
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.
Chris Hedges, former New York Times
reporter and current Truthdig columnist (Reuters / Shannon
Stapleton)
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.”
Author and political consultant Naomi
Wolf (Reuters / Mike Segar)
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.
http://www.youtube.com/watch?feature=player_embedded&v=xdGjTKIX__o
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.
http://www.youtube.com/watch?feature=player_embedded&v=25EWUUBjPMo
“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.
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