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Wednesday, 19 September 2012 17:30

Appeals Court Judge Reinstates Indefinite Detention — for Now

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On Monday, September 17, on the 225th anniversary of the signing of the final draft of the Constitution, with a one-page order a lone appeals court judge effectively repealed many of that document’s fundamental protections of individual liberties.

Issued late Monday night, the order written by Judge Raymond Lohier of the Second Circuit Court of Appeals temporarily set aside a lower court’s injunction blocking indefinite detention provisions of the National Defense Authorization Act (NDAA). The practical effect of Judge Lohier’s stay is the immediate reinstatement of the president’s authority to send the military to apprehend and indefinitely imprison a person suspected of colluding with a terrorist organization to threaten U.S. national security.

In the order, Judge Lohier offered no explanation for his decision, preferring to postpone publishing any opinion until the matter is thoroughly reviewed by the Second Circuit.

The injunction permanently (pending an appellate court’s review) preventing the president from exercising the extraordinary and extraordinarily unconstitutional powers granted him in the NDAA was issued on September 12 by Judge Katherine Forrest of the U.S. District Court for the Southern District of New York.

The Obama administration filed an immediate appeal.

In the opinion supporting the permanent injunction, Judge Forrest wrote,

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from § 1021(b)(2).

This is similar to the language she used in the 68-page opinion accompanying the temporary injunction order. In that order Judge Forrest disagreed with the federal government’s argument that the relevant provisions of the NDAA merely restate existing law. 

She wrote: “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].”

Pointing out that were Section 1021 and the AUMF identical then the former would be redundant, Judge Forrest held:

Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.

Scienter is defined as “a state of mind often required to hold a person legally accountable for his or her acts.” In other words, the indefinite detention provisions of the NDAA are too vague and aren’t specific enough to permit a person to know whether he or she has violated the law.

While admitting that preventing the federal government from enforcing a congressional act is a sober matter that must be attended to with caution, Judge Forrest wrote that “it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.”

As readers will recall, Pulitzer Prize-winning journalist Chris Hedges is joined as a plaintiff in a lawsuit challenging the NDAA by a coterie of other prominent writers and commentators. Noam Chomsky, Daniel Ellsberg, and Icelandic politician Birgitta Jonsdottir all signed on to add their witness to that of Hedges that the fear of indefinite detention lurked within the shadows of vagueness of key terms of the NDAA.

The principal allegation made by the plaintiffs against the NDAA was that the vagueness of critical terms in the NDAA could be interpreted by the federal government in a way that authorizes them to label journalists and political activists who interview or support outspoken critics of the Obama administration’s policies as “covered persons,” meaning that they have given “substantial support” to terrorists or other “associated groups.” 

According to the text of Section 1021 of the NDAA, the president may authorize the armed forces to indefinitely detain:

A person who was 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Fearing that this section could be applied to journalists and that the specter of such a scenario would have a chilling effect on free speech and freedom of the press in violation of the First Amendment, Hedges filed his lawsuit on January 12, 2012. (Naomi Wolf writes in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA.)

Hedges’ complaint claims that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a “covered person” who, by way of such writings, interviews and/or communications, “substantially supported” or “directly supported” “al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners,... under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]."

Specifically, Hedges alleges in his complaint that it is precisely the existence of these “nebulous terms” — terms that are critical to the interpretation and execution of the immense authority granted to the president by the NDAA — that could allow him or someone in a substantially similar situation to be classified as an enemy combatant and sent away indefinitely to a military detainment center without access to an attorney or habeas corpus relief.

Despite the Second Circuit judge’s late-night defense of indefinite detention, Hedges is optimistic. In an article by Hedges published at truth-out.org, he remains cautiously optimistic for a favorable outcome given the repeated failures of the government’s lawyers to defend the indefensible. “The government has now lost four times in a litigation that has gone on almost nine months. It lost the preliminary injunction in May. It lost a motion for reconsideration shortly thereafter. It lost the permanent injunction. It lost its request last week for a stay,” Hedges writes.

In Hedges’ article, co-lead counsel in the Hedges case, Bruce Afran, says the Obama administration’s dogged determination to restore the president’s NDAA authority raises a “disturbing question.” Speaking of the riots related to the Innocence of Muslims YouTube video that purportedly set off the anti-American violence in the Middle East, Afran said,

A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the U.S. and saying that DHS is looking for the Islamic leaders of these likely riots. It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.

A hearing before a three-judge panel of the Second Circuit Court of Appeals is scheduled for September 28.

Photo: AP Images

2 comments

  • Comment Link Ross Wolf Thursday, 20 September 2012 16:12 posted by Ross Wolf

    COMING NDAA Hell for Americans' Civil Liberties?

    Americans deemed by President Obama as Belligerent are vulnerable to Arrest and Indefinite Detention under the passed NDAA, National Defense Authorization Act.

    Late Monday 9-17-12 the Obama Administration was able to get Court of Appeals Judge (Raymond Lohier) for the Second Circuit to reauthorize the White House’s ability under (NDAA) The National Defense Authorization Act of 2012 to (indefinitely detain American citizens) without charge or due process. Second Circuit Judge (Raymond Lohier) placed on hold Judge Katherine Forest’s permanent injunction that recently blocked Pres. Obama’s enforcement of NDAA Indefinite Detention provisions until 9-28-12 when a three-judge appeals court panel is expected to take up the issue. Prior the Obama administration stated to Judge Katherine Forest under NDAA the President had authorization to lock up belligerents indefinitely. That they (were justified) to lock belligerents up indefinitely—because cases involving belligerents directly-aligned with militants against the good of America—warrants such punishment.) Pres. Obama could use NDAA provisions unblocked 9-17-12 by Judge (Raymond Lohier) for the Second Circuit to order U.S. Military Forces to round up without evidence, millions of Americans alleging they are belligerents or threat to National Security. Many observers fear Obama intends to extend NDAA, imprison U.S. Citizens in Indefinite Detention not involved with or associated with enemy forces.

    Hitler included similar provisions in his fascist (Discriminatory Decrees signed February 28, 1933). Immediately after German Parliament passed Hitler’s laws, the Reich Government ordered the arrest of German Citizens without probable cause or evidence; delegated power to German Police and other authorities to arrest anyone Nazi authorities claimed attempted or incited public unrest: arrested among others were outspoken Germans, writers, journalists, peaceful protestors and artists. After World War II the East German Secret Police (Stasi) used the threat of Indefinite Detention to forcibly recruit thousands of informants.

    The U.S. 2012 NDAA legislation Obama signed 12-31-11 is similar to Hitler’s 1933 fascist laws the SS and Gestapo used to target persons in Germany for arrest, imprisonment and execution without probable cause; and confiscate millions of dollars of property. Hitler used his laws to suspend Parliament insuring his laws could not be rescinded.

    During the Obama Administration's recent request for a (stay) to stop U.S. District Judge Katherine Forrest blocking enforcement of vague NDAA provisions, the Federal Government—never clarified what constitutes a (belligerent); or militant; or what belligerent activities (directly aligned with a militant) to order a belligerent’s arrest or indefinite detention; or what is against the good of America. Under NDAA, the U.S. Government or President could claim anyone was (directly aligned with militants) e.g. any political or other association; charge any activity, statement, writing or communication was (directly aligned) with an individual or group the government deemed (militant) to arrest and indefinitely detain Americans. Writers, journalists, Americans that disagree with or question U.S. Government or its allies—may under NDAA be subject to arrest and indefinite detention.

    The 2012 and not yet passed 2013 NDAA, like Hitler’s 1933 Discriminatory Decrees allow forced government censorship; warrant-less searches of private property and forfeiture of property from persons not charged with crime. Provisions in 2012 NDAA keep the door open for corrupt U.S. police; government agents and provocateurs which there are many, to falsify reports and statements to target any American, group or organization for arrest, indefinite detention, complete disappearance; civil asset forfeiture of their property.

    You may have noted NDAA referred to the USA Patriot Act. Under the Patriot Act, lending itself to Government / police corruption, the Federal Government may use secret witnesses and informants to cause arrests and civil asset forfeiture of Americans’ property. Witness(s) and informants may be paid up to 50% of assets forfeited. Federal Government under 18USC may use a preponderance of civil evidence, little more than hearsay to Civilly Forfeit Private Property. Under the Patriot Act innocent property owners may be barred by government knowing the evidence federal government uses to forfeit their property.

    Sections of 2012 NDAA are so broad, it appears U.S. Government or the President could (retroactively) deem an American’s past 1st Amendment activities prior to passage of 2012 NDAA—supported hostilities, terrorism or (Belligerents) to order the arrest and Indefinite Detention of any U.S. Citizen, writer, group or organization.

    Under NDAA It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated, not allowed legal counsel or habeas corpus may be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.

    See Below Hitler’s 1933 Discriminatory Decrees

    DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF THE PEOPLE AND STATE

    Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7

    In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:

    Section 1
    Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

    Section 2
    If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.

    Section 4
    Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reich marks.

    Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.

    Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

    Section 5
    The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).

    Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

    1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

    2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;

    3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.

    Section 6
    This decree enters in force on the day of its promulgation.
    Reich President
    Reich Chancellor
    Reich Minister of the Interior
    Reich Minister of Justice

  • Comment Link kay sieverding Wednesday, 19 September 2012 21:21 posted by kay sieverding

    One bad thing about the NDAA is that it will discourage people from socializing with foreign students.

    You can't trust our government. The NonDetention Act, 18 USC section 4001, says that citizens can only be detained if there is a statutory basis but I was detained by DOJ for 5 months and they filed in Court on 7/12/12 that they have no record of the statutory basis. The Bail Reform Act, 18 USC section 1342, says that everyone is entitled to a bail hearing if they are held more than a few days but I was held for 124 consecutive days without a bail hearing. Pursuant to subsection (i), there is supposed to be a USCourts form AO472 but DOJ held me without one. I was held without a criminal charge and don't have a criminal record.

    DOJ held me using the Prisoner Tracking System and the Joint Automated Booking System. These systems of records are regulated under the Privacy Act, 5 USC section 552a. DOJ published a Notice in the Federal Register, vol. 69 p 23214, that the purpose of the PTS is to manage the detention of federal prisoners held pursuant to a criminal proceeding but they filed in Court that no criminal proceeding is needed. DOJ published a Notice in the Federal Register, vol. 66 p 20478, that the only categories of individuals whose records should be in the Joint Automated Booking System are "alleged criminal offenders". However, when I sued them DOJ filed that “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”. Then Judge Bates found that "“JABS was not limited to arrests for a criminal charge.” So now, because DOJ thought it could lie when a litigant was pro se, and no one will take me seriously because I am not an attorney, there is case law in Federal Court that allows DOJ to arrest and imprison people without a statutory basis, without a criminal charge, and without a bail hearing. DOJ actually claimed that all that is required is a judicial order, not even an "oath or affirmation". The judge who ordered my indefinite detention was Edward Nottingham.

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