District Court: Obama Can Continue NDAA Indefinite Detention
October 3rd, 2012
(HigginsBlog) – A three panel federal district court has ruled to extend Obama’s power to continue indefinite detention pending a final appeals court ruling.
The temporary stay which overturned a ban on indefinite detention as authorized under the National Defense Authorization Act has now been extended indefinitely pending a final appeals court ruling.
The extension of the stay comes from a three panel district court ruling which ruled that Judge Forrest made erred in issuing a ban on indefinite detention.
However, merely stating that Judge Forrest erred is misleading although technically correct.
Furthermore while the ruling does allow President Obama to continue the indefinite detention the ruling is actually a partial victory for Americans.
Before anyone gets worked up let me explain.
As previously pointed out, during the trial Obama’s lawyers refused to define or clarify the terms “substantially supporting”, “terrorism” or who the “associated forces” where that the NDAA allowed the United States government to indefinitely detain.
Worse is during the course of trial Obama’s lawyers refused to assert to Judge Forrest that the plaintiffs, which is a collection of journalists and public advocacy activists, not be targeted for indefinite detention simply for their participating in constitutionally protected activities.
To be clear, the government refused to say that journalists such as Chris Hedges and Naomi Wolf wouldn’t be subjected to indefinite detention for exercising their Freedom of Press activities.
The government also refused to state that activists wouldn’t be targeted for exercising Free Speech.
Moreover the government refused to state that American Citizens would not be indefinitely detained under the NDAA.
Obama’s lawyers had pinned their hopes on winning the case based simply on the claim that the plaintiffs did not have jurisdiction
Judge Forrest in ruling on the original case issued a preliminary temporary and then a final permanent ban on Indefinite Detention on grounds the provision violated the First, Fourth and Fifth amendments based on how Obama argued the case.
That forced Obama to change his tune in filing his motion to delay the ban on indefinite detention.
In that motion Obama was forced to clarify who indefinite detention applied to and to state that the Plaintiff’s would not be targeted for indefinite detention for their activities.
Obama was further forced to provide clarification of the terms “substantially support” and “associated forces” although the terms are still not clearly defined.
However, Obama was forced to limit the scope of those terms to what the original 2001 Authorization of Military Force granted following 9/11 which means the NDAA can only be applied to those who directly supported or aided in the 9/11 terror attacks and in direct hostilities against the United States and its allies in the war on terror.
Most importantly it made Obama’s lawyers clearly assert that the United States would not be applied to American Citizens or those captured on United States soil, at least no in respect to engaging in constitutionally protected free speech activities.
In the three judge panels ruling this is reiterated, allowing Obama to continue indefinite detention of those engaged in hostilities overseas.
The ruling further makes it clear that the NDAA provision authorizing indefinite detention can not be invoked to detain U.S. citizens, short of those citizens being directly engaged in the activities of supporting actual hostilities against the United States.
Now that Obama has been forced to change his legal arguments and not only define these terms but also assert NDAA indefinite detention would not apply to the journalists, activists or American’s in general the district court had no choice to but to rule Judge Forrest erred in her ruling.
To be clear prior to Obama’s motion to stay the NDAA was open to vague interpretation and could have, and possibly already is, been invoked to detain American citizens for a broad variety of reasons.
That indeed was why Judge Forrest agreed to the plaintiff’s interpretation they could be detained and that interpretation was only reinforced by Obama’s given Obama’s refusal to deny it.
Even when repeatedly and bluntly asked if the government’s interpretation of the provision could be used in the manner the plaintiffs feared..
Now that the Obama administration has finally stated on the record that not their interpretation, hence preventing them from using that interpretation without being held in contempt of court, Judge Forrest is now viewed as an interpretation made in error.
However, this is only a partial victory because while the government can’t locked you up for free speech and journalistic activities they still can alleged that you “substantially supported” or “aided” in hostilities against the United States.
The ruling will most like stand as it is now, but will continue to be fought all the way to the Supreme Court because there still is gray area left to be clarified.
For example, while the district court found that journalists are not in danger of being detained by Military for their activities there are many circumstances which this would be untrue.
A journalist embedded with Taliban forces in Afghanistan or rebel forced in Yemen in example would clearly be at threat to capture by the United States military.
However, as long as Obama is forced to provide such person’s constitutional protections as the district court ruling make’s clear he is obliged to there is little room for appeal.
Here’s today’s ruling followed by a complete background of the case.
S.D.N.Y.-N.Y.C.Complete background leading up to the Judge Forests permanent ban on indefinite detention:
12-cv-331
Forrest, J.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of October, two thousand twelve.
PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
- – – – – – – – – – – – – – – – – – – -x
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, US DAY OF RAGE, KAI WARGALLA,
HON. BRIGITTA JONSDOTTIR M.P.,
Plaintiffs-Appellees,
-v.
- 12-3176 (L)
12-3644 (CON)
BARACK OBAMA, individually and as representative of the United States of America, LEON PANETTA, individually and in his capacity as the executive and representative of the Department of Defense, Defendants-Appellants.
- – – – – – – – – – – – – – – – – – – -x
In this case, the government appeals from the district court’s September 12, 2012, grant of a permanent injunction barring the government from enforcing an act of Congress, § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”). The government moves for a stay of the district court’s
order pending appeal. On September 17, 2012, an applications
-2-
judge granted a temporary stay pending a decision on the motion by a motions panel. See Fed. R. App. P. 8(a)(2)(D). We are that motions panel. For the following reasons, we conclude that the public interest weighs in favor of granting the government’s motion for a stay. First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, “based on their stated activities,” plaintiffs, “journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.” (Mot. for Stay 1). Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States. See NDAA § 1021(e) (“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”). Third, the language of the district court’s injunction appears to go beyond NDAA § 1021 itself and to limit the government’s authority under the Authorization for Use of Military Force, Pub L. 107-40, 115 Stat. 224 (Sept. 18, 2011). In light of these and other factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that the interests of justice would best be served by granting a stay of the district court’s permanent injunction.
-3-
Upon due consideration, it is hereby ORDERED that the government’s motion is GRANTED. The district court’s order dated September 12, 2012, is stayed pending a decision on the appeal by a merits panel.
The parties are directed to file their briefs on the following expedited schedule: Appellants are to file their brief on or before November 2, 2012; Appellees’ brief in opposition shall be filed on or before December 3, 2012. Appellants shall file any reply brief by December 13, 2012. The Clerk of the Court is directed to place the case on the argument calendar for the first available week after the filing of appellees’ opposition brief.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
Source: Politico
Continuing the background, Obama again appealed the permanent injunction in record time.US Totalitarianism Loses Major Battle As Judge Permanently Blocks NDAA Military Detention Provision
A federal judge has ruled against President Obama’s NDAA appeal issuing permanent injunction against the indefinite detention of U.S. citizens without trial.
After a long fought legal battle journalists and activists have won a major battle against one of the most totalitarian pieces of legislation in the history of the United States.
The legislation formally known as the National Defense Authorization Action has several constitutional trampling provisions.
The most outrageous of those provisions allowed the United States government to place U.S. citizens in jail indefinitely without ever filing charges, providing access to a lawyer or even allowing those thrown in CIA torture prisons the opportunity to defend themselves against the allegations they are being detained.
That section of the NDAA has now been permanently blocked after a federal judge issued a final injunction banning the used of the indefinite detention provision in the so-called “homeland battlefield” bill.
The authority to do so was given because the bill gives the President the authority to conduct military operations in any country in the world, including inside the United States, to fight the so-called war on terror with the need for congressional approval to do so which is effectively a suspension of Posse Comitatus.
Back in January Journalist Chris Hedges filed a lawsuit against the Obama administration to fight the totalitarian powers given in the declaration of World War 3 known as the NDAA.
Given the fact the bill presented a clear and present danger to the US Constitution Hedges was joined by a coalition of activists and journalist.
Those journalist filed shocking briefs in the lawsuit detailing how the NDAA was being using to silence political dissent and journalism critical of the US government.
Per standard procedure the corporate media remained silent after not being given a press release from the government to parrot as the case went to trial.
Instead the Pentagon simply engaged in a psychological warfare operation on the internet which was the only place the lawsuit was being discussed which attempt to discredit proponents of the lawsuits as wing nut conspiracy theorists.
After the case was heard Obama revealed in court those conspiracy theorists were right and Obama planned on using the NDAA in the exact manner patriotic Americans feared it would be used – to detain American citizens in military detention indefinitely without charge or a trial.
As such US Judge Katherine Forrest ruled the NDAA provisions unconstitutionall and issued a temporary injunction prohibiting the use of NDAA military detention against American citizens.
Obama then openly defied the ruling claiming the ban on NDAA detention applied only to the plaintiff’s in the lawsuit.
Judge Forrest then issued another ruling clarifying the protection applies to all US citizens pending a final ruling.
Judge Forest even issued a follow-up warning stating she would find the Obama administration in contempt it had not complied with her previous ruling.
Obama appealed and fought back every step of the way failing to provide legal arguments beyond the vectors of national security secrecy and executive primacy in regard to foreign policy.
At the same time Obama refused to even assert that journalists would not be subject to the NDAA simply for their reporting while also refusing to define what actions constituted providing direct or indirect support for associated forces or who those associated forces were.
Obama appealed claiming the government had the right to determine as they see fit without judicial oversight while working under the cover of secrecy granted by national security through which the government could pick and choose U.S. citizens to detain without trial.
That appeals has now been ruled against and a permanent injunction was banning indefinite has been ordered.
Read Full Article
The White House reiterated its appeal.Obama Wins Right To Indefinitely Detain Americans Under NDAA
An appeals court has granted the Obama administration’s appeal to overturn a ban on the indefinite detention of American Citizens under the NDAA.
Read more »
Then Obama won that appeal on a temporary basis, pending today’s decision.
The the plaintiff countered filed with this motion being the latest filing prior to today’s district panel ruling.Obama Wins Right To Indefinitely Detain Americans Under NDAA
An appeals court has granted the Obama administration’s appeal to overturn a ban on the indefinite detention of American Citizens under the NDAA.
Read more »
Sobering! Latest Motion: NDAA Military Detention IS Martial Law
The latest motion to fight Obama’s NDAA detention of US citizens provides a sobering picture of what the Corporate media is blacking out.
Read more…
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