Indefinite Detainment is Back On: Second Circuit Judge Stays Anti-NDAA Ruling Until Decision

The fight over the 2012 National Defense Authorization Act (NDAA) might be a long one. In response to U.S. District Judge Katherine Forrest's permanent block on NDAA's Section 1021 (b)(2) — which potentially allows for indefinite detainment of American citizens— the Obama administration hastily appealed to the Second Circuit Court. Now, as of late last night, Judge Raymond Lohier has temporarily stayed Forrest's ruling until it is overturned or not, depending on the ruling of a three-judge panel. So, in theory, but let's hope not in practice, indefinite detainment is back on. (Lohier's one-page response is simply, let's see what is decided on September 28.) 

Meanwhile, the main plaintiff in the January lawsuit that lead to Forrest's ruling, Pulitzer Prize-winning journalist Chris Hedges, has written an overview of the case and where civil liberties stand so far. Here is his look at the potential powers in the NDAA as he, and Judge Forrest see it. The takeaway from Forrest's legal logic is not only is the government violating the Fifth and First Amendments with unconstitutional vagueness, but they aren't bothering to explain anything about the NDAA:

Although government lawyers argued during the trial that the law represented no change from prior legislation, they now assert that blocking it imperils the nation's security. It is one of numerous contradictions in the government's case, many of which were illuminated in Forrest's opinion. The government, she wrote, "argues that no future administration could interpret § 1021(b)(2) or the AUMF differently because the two are so clearly the same. That frankly makes no sense, particularly in light of the Government's inability at the March and August hearings to define certain terms in—or the scope of—§ 1021(b)(2)." The judge said that "Section 1021 appears to be a legislative attempt at an ex post facto 'fix': to provide the President (in 2012) with broader detention authority than was provided in the AUMF [Authorization to Use Military Force Act] in 2001 and to try and ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF."

The government, in effect, is attempting to push though a law similar to the legislation that permitted the government to intern 110,000 Japanese-Americans during World War II. This law, if it comes back into force, would facilitate the mass internment of Muslim Americans as well as those deemed to "support" groups or activities defined as terrorist by the state. Calling the 1944 ruling "an embarrassment," Forrest referred to Korematsu v. United States, which upheld the government's internment of Japanese-Americans.

The judge said in her opinion that the government "did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings." She went on to write that she found "the testimony of each plaintiff credible."

Read the whole thing here. Hedges does sound optimistic at his lawsuit's chances, mainly because the government keeps getting denied, ever since Judge Forrest's temporary block of the provision in May. But the fact that the government — ya know, currently the guys who are supposed to at least care about civil liberties if you can remember as far back as the Bush administration — is fighting this hard to keep this power feels ridiculous. Hedges, though, calls the Obama administration's crackdown on civil liberties "more severe" than Bush's. He knows the score.

Hedge also quotes his lawyer who posits that the NDAA can, and may, be used against protests related to the Innocence of Muslims film, which have rocked the Middle East these last weeks. On September 13, the FBI and Department of Homeland Security warned that the violence related to that prophet-slandering film could spread to America, though obviously nothing but college bomb threats have happened so far...

Yet somehow, critics like The Washington Post editorial board suggest that NDAA nervousness makes both Hedges, his lawyer, and Forrest paranoid. Yes, to push back against a government that is claiming the vague, yet boundless right to detain American citizens without trial, that is foolish. Much more reasonable to wait for the threat to be undeniable?

This is how new normals work, and it even works on libertarians and those who try to guard their civil liberties like a dog with a beloved chew-toy. Can anyone else remember as far back as 11 year ago, when holding suspected terrorists without charge or overarching evidence that they were guilty seemed like a really big deal? It still is, and the injustice of it only grows year after year. But the feeling that there is no way they could do that and get away with that is long gone. Gitmo is now an accepted fact, if an unpleasant one, not just the intitial, outrageous, frightened response to an attack on America.

NDAA actually being used on American citizens may sound like crossing the Rubicon for real this time, but government gives people all over the world, and even in America, their own personal dystopias every day, through the drug war, or myriad others ways that say you belong to us, citizen. Detainment happened in World War II, and as monsterous as that was, the war had an end, and it ended. This one is against a tactic, a belief, and people spread all over the world. It need never end, and it may never end, when you have real religious extermist combined with government denial of the fact that U.S. foreign policy makes people angry and for damn good reason.

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  • ||

    Now if only we could get rid of that pesky third amendment.

  • Enjoy Every Sandwich||

    LOL, I don't know if they would do that or not. If the troops were quartered amongst the people, they might get to know them as human beings. I don't think the El Presidente would like that much.

  • The Late P Brooks||

    In response to U.S. District Judge Katherine Forrest's permanent block on NDAA's Section 1021 (b)(2) — which potentially allows for indefinite detainment of American citizens

    Has anyone SEEN Judge Forrest lately?

  • Lucy Steigerwald||

    Uh oh.

  • Rich||

    I predicted this when Judge Forrest first ruled.

    *** polishes monocle ***

  • fried wylie||

    Amusing suggestion, but as part of the ruling class, the NDAA obviously isn't applicable to Forrest.

  • The Late P Brooks||

    It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings."

    The time-honored BECAUSE I FUCKING SAID SO, THAT'S WHY!" defense.

  • The Late P Brooks||

    Somebody sabotaged my /b tag.

    *goes downtown, sets Post Office on fire*

  • ||

    Oh, good. I was confused when good news happened. Now the world makes sense again.

  • ||

    That'll teach you to be optimistic, you idiot.

  • ||

    I wasn't optimistic, you shit-drinking bullfellator, I was just pleased.

  • LTC(ret) John||

    REMAIN DOUR, dammit.

  • ||

    Shit drinking?!?

  • ||

    Thank you, sage. What impertinence!

  • The Late P Brooks||

    What "good news"?

  • Paul.||


    I can't imagine how difficult it must be to find all these old Bush-era protest photos.

  • Lucy Steigerwald||

    Ha! It's not like these are anti-war signs. Otherwise your quip would be tragically apt.

  • Paul.||

    I agree, but, serious question, are people still protesting in the streets against NDAA? If they are, I have to confess I'm impressed.

    Aside: I was hoping my comment would be tragically hip. I miss again.

  • Enjoy Every Sandwich||

    The KOS kiddies are all busy sticking pins in their Mitt dolls. That's obviously far more important than that civil liberties stuff.

  • Raston Bot||

    How else are we going to justify detaining all those Persians and moving them to North Dakota during the Iranian occupation?


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