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Indefinite Detention – Detained Indefinitely by Court

CERDAFIED - On September 12, 2012, a 112 page decision by Judge Katherine Forrest, in the case of Hedges v. Obama, of the US District Court of the Southern Region of New York, permanently enjoined enforcement of the indefinite detention portion of the National Defense Authorization Act.

Our congress debated section 1021 of the National Defense Authorization Act and though some claimed that the power of indefinite military detention was not a provision, other congressional members cried foul, and said that the author purposely tried to obscure its hideous truth.

The American Civil Liberties Union and the Republican Liberty Caucus  provided legislators with ample information to expose the deceptive content, and the author’s ill-willed intentions. Their opposition to the NDAA. included a well organized write-in and call-in campaign.  Senator Rand Paul (R-KY) spoke up against the bill in Congress, leading the heated debate, to no avail.

Rep. Allen West (R-FL) supported the NDAA and he blithely dismissed complaints regarding indefinite detention. He said, “We cannot look to guarantee those who seek to harm the US the constitutional rights granted to Americans, if we extend that to them, this war on terror, now it’s a criminal action.”

Exactly when did law become so repugnant to our law makers? They churn out new laws like a production line, but baulk at the thought of a prisoner of war using the legal system to protect their rights. Who more should rely on international law than a soldier? We clearly crossed a threshold between civilized behavior and barbaric retaliation

President Obama signed the federal law on December 31, 2011, and in May, Judge Forrest issued a preliminary injunction to prevent the government from detaining persons without trial and judicial review.

Our leadership has used the fear of “terrorism” to disregard international law in the form of the Geneva Convention which controls wartime rights of prisoners, both civil and military. It established protections for the wounded, as well as civilians in and around a war zone.

Judge Forrest acknowledges, “The Court is mindful of the extraordinary importance of the Government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security.”

“Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

“And this Court gives appropriate and due deference to the executive and legislative branches–and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language.”

“Although it is true that there are scattered cases–primarily decided during World War II–in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside.”

The court essentially confirmed what the vast majority of civil rights lawyers claimed; Indeed the NDAA does contain language that allows for indefinite detention under order of the Executive Branch.

The Plaintiffs in the suit are writers, journalists and activists who have demonstrated to the court a reasonable fear of indefinite military detention. The court was unable to assure the following Plaintiffs that they were not at risk; Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, U.S. Day of Rage, Kai Wargalla, and Hon. Brigitta Jonsdottir. (Read Chris Hedges account.)   

The first issue of note, was whether the Plaintiffs particular past activities could subject Plaintiffs to indefinite military detention. This was important to determine, because the Plaintiffs rights had to be at risk for the case to move forward. The Government refused to answer that question.

“Article III of the Constitution, allowing federal courts to entertain only actual cases and controversies, requires that a plaintiff have standing to pursue a claim. Plaintiffs here, then, must show that they have a reasonable fear that their actions could subject them to detention under § 1021(b)(2).3”

Only after the May 16, opinion of the court, the government responded, “[T]he conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.”

The standing must be made at the outset of the case. The government’s reluctance to respond to the issue actually gave more credibility to the plaintiff’s case. The only thing that was clear was our government did not want to clarify anything, thus reducing the wide interpretation they hoped to gain.

While the government claimed that they had no interest in the Plaintiffs prior actions using their First Amendment rights, there still remained a threat of indefinite military detention in the future, as the Plaintiffs were determined to stay on course and not be dissuaded by the government.

“Third, the Government argues that even in the absence of its proffered assurance, plaintiffs cannot have standing since § 1021 is simply a reaffirmation of the 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (the “AUMF”)--and since plaintiffs were never detained under the AUMF in the ten years since its passage, they cannot have a reasonable fear that they will be detained under § 1021(b)(2) now. The Court rejects that argument,”

Another issue was the vague terminology contained in section 1021, and the government’s inability to give definitions to the key words.

“In particular, plaintiffs commenced this lawsuit asserting--and they continue to assert--that the phrases “associated forces,” “substantially supported,” and “directly supported” all are vague. Indeed, even after this Court’s May 16 Opinion in which the Court preliminarily found a likelihood of success on the merits of plaintiffs’ vagueness/due process challenge, the Government nevertheless did not provide particular definitions.”

The government attempted to bypass the constitutionality of section 1021, however the court rejected their assertions.

“Fourth, the Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it”--that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality.”

“Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.”

The judge granted a permanent injunction against section 1021 of the NDAA. While we can take comfort in the actions of Judge Katherine Forrest, we are left with absolute scorn for our paid representatives who shirked their duties to their constituents by voting to approve this egregious attack on human rights.

No doubt, the Defendants in this case; Barak Obama, Leon Panetta, John Mc Cain, John Boehner, Harry Reid, Nancy Pelosi, Mitch Mc Connell, and Eric Cantor will continue down the path of indefinite military detention, and will attempt to resurrect another version of their Frankenstein.

The violations of our First, Fifth, and Fourteenth Amendments are just too high of a price to pay for the attacks on September 11, 2001. We cannot build peace from fear and retaliation. Nor can we violate even ONE man’s rights and be righteous.  

For more information, read the ruling.

(Lisa Cerda is a contributor to CityWatch, a community activist, Chair of Tarzana Residents Against Poorly Planned Development, and former Tarzana Neighborhood Council board member.) -cw

Vol 10 Issue 75
Pub: Sept 18, 2012