By Michael Kelley
Wednesday was another key day for a challenge to the government's ability to indefinitely detain anyone under the laws of war.
A three-judge panel at the U.S. Court of Appeals for the Second Circuit heard oral arguments regarding the permanent block placed (and then paused) on the indefinite detention clause of the 2012 National Defense Authorization Act (NDAA).
At a press conference after the hearing, lawyer for the plaintiffs Bruce Afran said that the panels' decision is not expected for weeks if not months. Until then, the indefinite detention clause is technically in effect.
Journalists and activists sued to stop the provisions, 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.
In May District Judge Katherine Forres sided with the plaintiffs and ordered a temporary block on the grounds that the provisions are so vague they are unconstitutional under the First (i.e. free speech/press) and Fifth (i.e. due process) Amendments.
In September Forrest ordered a permanent injunction on the provision.
President Obama quickly appealed Judge Forrest’s ruling and sought an emergency stay on the injunction, which was granted by Appeals Court Judge Raymond Lohier reinstated and extended (pending appeal) by Lohier and other judges.
The arguments revolve around Section 1021 of the bill, which says:
The President has the authority to detain persons that the President determines planned, authorized, 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, authorized, committed, or aided in the actual 9/11 attacks” as well as those who harbored them.
The plaintiffs argue, and 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."
The case is expected to go all the way to the Supreme Court, and today will be another checkpoint for the historic case.