Hedges v. Obama, the lawsuit challenging the indefinite detention provision of the 2012 National defence Authorization Act (NDAA), continued Wednesday at the U.S. Court of Appeals for the Second Circuit.
A three-judge panel heard oral arguments regarding the indefinite detention clause of the 2012 National defence Authorization Act (NDAA), which allow the U.S. military to indefinitely detain anyone who provides “substantial support” to the Taliban, al-Qaeda or “associated forces,” including “any person who has committed a belligerent act” in the aid of enemy forces.
A decision — whether to reinstate a permanent block of the provision or to overrule the injunction and affirm the clause — is expected in coming months. The clause is currently in effect (pending that decision), and the case is expected to go to the Supreme Court.
After the hearing, plaintiffs of the case held a panel in which attorney Carl Mayer gave a perfect summary of why this case is so important:
“In broad terms, the stakes are very high because what our case comes do to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that’s ingrained in the Constitution and was always very important in com batting tyranny and building a democratic society. And what the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America, to detain U.S. citizens, to detain residents in the United States in military prisons, and — probably the most frightening aspect of the NDAA — it allows detention ‘until the end of hostilities.’
We’re now, by my count, [on] day 4,163 of this war, which is an open-ended war against al-Qaeda, the Taliban and now it’s defined as ‘associated forces’ in the NDAA.”
“We’re trying to prevent a repeat of episodes like that,” Mayer said. “That’s what the case is about — it’s really about preserving our civil liberties and preserving our civil justice system, in broad terms.”
Here’s a video of the panel. Mayer’s comments are at 7:20:
Section 1021 of the NDAA is being challenged in the case, and it reads (in part):
The President has the authority to detain persons that the President determines planned, authorised, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of or substantially supported, Taliban or al-Qaida forces 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 hostilities, in the aid of such enemy forces.
The government has argued that section 1021 is merely an “affirmation” of the 2001 Authorization of Military Force (AUMF), a joint resolution passed a week after 9/11 that authorizes the government to indefinitely detain “those who planned, authorised, committed, or aided in the actual 9/11 attacks” as well as those who harbored them.
The plaintiffs argue, and initial judge Judge Katherine Forrest agreed, that the extra language added to the NDAA (i.e. “The President also has the authority…”) appeared to be a retroactive legislative fix “to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001.”
As the War on Terror has extended, so has its global scope. The plaintiffs in Hedges v. Obama are attempting to block the U.S. military’s detainment powers on its own shores.
The bottom line, according to plaintiff lawyer Bruce Afran, is that the NDAA “is still unconstitutional because it allows citizens or persons in the U.S. to be held in military custody, a position that the Supreme Court has repeatedly held is unconstitutional.”
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