An appeals court judge has issued an order temporarily restoring to Barack Obama – whose administration previously has described individuals who hold a pro-life position or advocate for the Second Amendment or limited government as possible terrorists – authority to detain indefinitely those suspected of aiding or supporting America’s enemies.
The order late last night from Raymond Lohier of the 2nd U.S. Circuit Court of Appeals stayed a permanent injunction issued by the trial court in the case and instructed that the issue be addressed by the court’s motions panel Sept. 28.
The move restores for now the authority for Obama under the National Defense Authorization Act to detain indefinitely those he would designate as having supported materially opponents of the U.S.
The lower court judge, U.S. District Judge Katherine Forrest, had ordered the authority, Section 1021 of the NDAA, blocked because, as she noted in her order, “The government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under Section 1021.”
But she continued, “The government did not – and does not – generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under Section 1021.”
U.S. Rep. Ron Paul has commented on the law, signed by Obama late last year, because of the uncertainty of the language itself, a fault that Forrest also cited.
“The main section of concern, Section 1021 of the NDAA Conference Report, does to the 5th Amendment what the PATRIOT Act does to the 4th. The 5th Amendment is about much more than the right to remain silent in the face of government questioning. It contains very basic and very critical stipulations about due process of law. The government cannot imprison a person for no reason and with no evidence presented or access to legal counsel,” he wrote.
But, he said, the NDAA calls for indefinite detention of “anyone accused of ‘substantially supporting’ such groups or ‘associated forces.’ How closely associated? And what constitutes ‘substantial’ support? What if it was discovered that someone who committed a terrorist act was once involved with a charity? Or supported a political candidate? Are all donors of that charity or supporters of that candidate now suspect, and subject to indefinite detainment? Is that charity now an associated force?
“The Bill of Rights has no exemptions for ‘really bad people’ or terrorists or even non-citizens,” he continued. “It is a key check on government power against any person.”
He said the NDAA abridges that “on the theory that rights are suspended in a time of war, and the entire United Sates is a battlefield in the War on Terror. This is a very dangerous development indeed.”
The federal government’s plea to the 2nd Circuit Court said it was an emergency that needed to be resolved right away.
The government said the journalists and others who brought the challenge weren’t in danger of being arrested because of what they did, and those who would be targeted for detention should be in the bull’s-eye because of what they are doing in the war.
They argued that a president must have the ability “to conduct military operations” and that without that, there are those “in areas of active hostilities” who could be impacted.
Obama’s attorneys also argued that acts of Congress are presumed to be constitutional. And they note the NDAA says it does not “affect existing law or authorities relating to the detention of United States citizens.”
Further, Obama made the statement when the plan became law he would not “authorize the indefinite military detention without trial of American citizens.”
But Lucy Steigerwalk, an associate editor at Reason, said while there were detentions during World War II, that eventually ended. “This one [war on terror] is against a tactic, a belief, and people spread allover the world. It need never end, and it may never end, when you have real religious extremists” combined with the government’s actions.
Gary Kreep of the United States Justice Foundation has worked on amicus briefs in the case, and told WND the arguments in the briefing to the Second Circuit “are consistent with the Obama administration’s intent to restrict our constitutional rights in any way…”