Moral Low Ground

Civil Liberties

Federal Judge Bows to Obama, OKs Indefinite Military Detention of Americans Without Charge or Trial

Judge Raymond Lohier (Photo: NYU Law School)

Less than a week after a federal judge declared portions of the National Defense Authorization Act (NDAA) that authorized the indefinite military detention of Americans were unconstitutional, a higher court bowed to the Obama administration and issued a temporary stay reauthorizing the highly controversial practice.

The Huffington Post reports that Judge Raymond Lohier of the US Court of Appeals for the 2nd Circuit, an Obama appointee, issued the temporary stay on Tuesday. It will last until September 28, at which time a three-judge appellate panel will hear the case.

The NDAA, passed by Congress and quietly signed into law by President Obama on New Year’s Eve, contains provisions that allow for the indefinite military detention without charge or trial of individuals anywhere in the world, including American citizens, who the government says is “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.”

Opponents argue that the law’s broad language, which does not specify which activities could result in indefinite detention, threaten freedom of speech and association and could have a chilling effect on journalists who interview those who may be part of or substantially support al-Qaeda, the Taliban or other US-designated enemies.

The law was challenged by Chris Hedges, a veteran investigative journalist who sometimes interviews terrorists as part of his work. Among his six co-plaintiffs were renowned linguist, author and activist Noam Chomsky, Pentagon Papers leaker Daniel Ellsberg, and supporters of the whistle-blowing website Wikileaks. The plaintiffs argued that the law had a chilling effect on their constitutional rights because it stoked fear that they would be indefinitely detained for doing their jobs.

Judge Katherine B. Forrest of the US District Court for Southern New York, also an Obama appointee, concurred as she issued a preliminary injunction against the indefinite detention provision in May and then ruled them unconstitutional last week. In her 112-page ruling, Judge Forrest called the provision “facially unconstitutional” and said it “impermissibly impinges upon guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.”

The Obama administration vehemently disagreed, countering that indefinite detention was a necessary tool vital to national security interests and that Judge Forrest’s ruling does “irreparable harm” to the government. The administration instantly challenged Judge Forrest’s ruling, and Judge Lohier issued his temporary stay in favor of indefinite detention.

Fears that the government had already began indefinitely detaining Americans without charge were stoked last month after the arrest of former US Marine Brandon Raub, who was detained by the FBI and ordered held in a psychiatric hospital for posting anti-government material on his Facebook page. A judge ordered Raub to be released, calling his detention “invalid.” Raub has announced that he plans to sue the FBI for his unlawful detention.

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