Moral Low Ground

US Government

Federal Appeals Court Affirms NDAA Indefinite Detention Provision

A federal appeals court has extended a temporary stay of a lower judge’s injunction against a controversial law authorizing the indefinite military detention without charge or trial of anyone, including Americans, suspected of being or aiding terrorists.

Politico reports that a three-judge motions panel of the US Court of Appeals for the 2nd District issued the order Tuesday afternoon, extending a temporary stay issued by Judge Raymond Lohier last month.

Lohier, along with Judges Denny Chin and Christopher Droney, found what they said were flaws in the injunction issued against Provision 1021 of the National Defense Authorization Act (NDAA) by Judge Katherine B. Forrest of the US District Court for Southern New York earlier last month.

Judge Forrest ruled that Provision 1021, which allows the president to order the indefinite military detention without charge or trial of anyone, including Americans, “who was 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,” was unconstitutional.

The NDAA was quietly signed into law by President Barack Obama, who expressed his reservations about it and promised to never indefinitely detain Americans, on New Year’s Eve.

The law was challenged by journalists, authors and activists who argued that it had a chilling effect on their constitutional rights and that they feared they could be indefinitely detained for doing their jobs. Forrest agreed, calling Provision 1021 “facially unconstitutional” and stating that it “impermissibly impinges upon guaranteed First Amendment rights and lack sufficient definitional structure and protections to meet the requirement of due process.”

But the three-judge panel disagreed in Tuesday’s ruling.

“We conclude that the public interest weighs in favor of granting the government’s motion for a stay,” they wrote, citing the government’s assurance that “journalists and activists… are in no danger whatsoever of being captured and detained by the US military.”

The case will now likely proceed to another three-judge panel.

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