When it comes to national security and steps towards a less dystopian United States, there was about five minutes of good news Wednesday when Federal Judge Katherine Forrest permanently blocked section 1021 of the National Defense Authorization Act, which — arguably, but it definitely doesn't not — allows for indefinite military detainment of American citizens connected to terrorism, even those captured on U.S. soil.
Sadly less than 24 hours after Forrest blocked section 1021, the Obama administration appealed the decision. They are continuing the argument that the NDAA is simply redundant with powers already granted in the 2001 Authorization for Military Force Act. Forrest disagrees, and maintains that her ruling would not conflict with those powers, but that the NDAA unconstitutionally expands the category of people who can be legally detained.
Under Judge Forrest's oddly unreported ruling, which came after her May temporary injunction in response to a lawsuit filed by seven civil liberties activists, the NDAA was dubbed to be a violation of the Fifth Amendment's right to due process, as well as having a distinct chilling effect on First Amendment rights. The latter argument was underlined by the fact that one of the plaintiffs, Pulitzer Prize-winning journalist Chris Hedges has interviewed members of the Taliban and Al-Qaeda nearly a score of times. This made the NDAA's vague threat that someone who can be detained by the military is an individual "who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces" seem more serious, and led to Forrest ruling that the plaintiffs indeed had standing to challenge NDAA.
The real threat of the NDAA, if not in practice for now, then definitely in precedent, was further strengthened by the fact that the government repeatedly refused to address Forrest's concerns and confirm that the NDAA can or cannot be used against journalists like Hedges. Hedges was joined in his lawsuit by rabble-rousers Daniel Ellsberg, Noam Chomsky, and other opponents of excessive government security state madness.
Today, under the shadow of massive riots throughout the Middle East, mostly directed toward America and its allies' embassies, the Obama administration would like to remind us all that the power to indefinitely detain people is vital to national security,
In a stay request signed by New York's Southern District U.S. Attorney Preet Bharara, Assistant Attorney General Stuart Delery and Department of Defense General Counsel Jeh Johnson, the government argued that the injunction was an "unprecedented" trespass on power of the president and the legislature that by its very nature was doing irreparable harm.
Bharara also argued that the ruling put an excessive burden on military commanders at war, and that the plaintiffs had no fear of being detained "in the foreseeable future".
"The Court’s injunction against application of section 1021 'in any manner, as to any person,' ... combined with its mistaken view that section 1021 goes beyond reaffirming the authority contained in the AUMF, could impose entirely unjustified burdens on military officials worldwide, complicating the ability to carry out an armed conflict authorized by Congress in the public interest," the stay request says.
Hedges et al.'s attorney Bruce Afran is arguing that the government is already breaking the law if their argument is that stopping the detainment power would do irreparable harm. This is because the Obama administration refused to confirm or deny the detainment powers. So, of because Judge Forrest's May temporary injunction, as Afran puts it "The only way they could be doing irreparable harm is if they've been using this all along. It just shows the lawlessness of this, even under the Obama administration."
Judge Forrest denied Bharara's request for an immediate temporary stay, but the the office is also petitioning for a permanent one until a higher court rules on the matter. A hearing is set for next week. In the meantime, the detainment provision cannot legally be used.
60,000 people have signed a petition asking the Obama administration not to appeal Forrest's ruling, and not to include section 1021 in the as-yet-unvoted-on 2013 NDAA, but that seems unlikely. After all, Obama promised that he wouldn't detain anyone, and the American people are supposed to trust that.