By Michael Boldin on July 17, 2013
The Second Circuit has permanently vacated the injunction issued by the District Court against NDAA 2012 indefinite detention powers. The case has been remanded to District Court Judge Kathryn Forrest. who originally issued the injunction.
In layman’s terms, Forrest put a stop to indefinite detention, and the Second Circuit overturned that. It also permanently prohibited Forrest from attempting to do so again, ordering her to proceed with the case consistent with their opinion.
NDAA “indefinite detention” powers are alive and well.
The opinion appears to be based only on lack of standing — based on the Clapper case decided by the Supreme Court:
“In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens. While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.” P. 60
The Tenth Amendment Center, along with a broad coalition of organizations and individuals, filed an amicus brief on behalf of the defendants. It was cited at p. 4 and note 3 in the District Court’s opinion:
As one group of amici has noted, “[r]arely has a short statute been subject to more radically different interpretations than Section 1021.”
The only other reference to an amicus brief was at p. 40, in note 137 — Center for National Security Studies.
REVIEWING THE “LAW” IN QUESTION
While unsurprising, the Second Circuit’s opinion is patently incorrect – to claim that Section 1021 of the 2012 “simply says nothing about the government’s authority to detain citizens.” Here’s the text in question, with comment provided by leading Constitutional scholar, Rob Natelson, from his full analysis:
§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.
Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.
(b) . . A covered person under this section is any person as follows:
Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens within U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?
c) . . The disposition of a person under the law of war . . may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .
Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”