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(update below)

A three-judge motions panel of the US Court of Appeals for the 2nd Circuit issued a permanent stay against a permanent injunction a federal judge had issued to block a provision of the 2012 National Defense Authorization Act (NDAA), signed last year, which granted the military the power to indefinitely detain people suspected of “substantially” or “directly” supporting terrorism. The panel concluded, “The interests of justice would best be served by granting a stay of the district court’s permanent injunction.”

On September 12, Judge Katherine Forrest made the unusual decision to check the power of the Executive Branch. She issued a ruling that found the writers, journalists and activists, who were plaintiffs in the lawsuit, had demonstrated actual and reasonably that their First Amendment-protected activities could subject them to indefinite military detention and ruled the public had a greater interest in preserving the First Amendment and due process rights than allowing law enforcement to have this tool of indefinite military detention.

The government immediately appealed the permanent injunction and filed a “non-urgent appeal” on September 20 that asked for an “immediate stay.” Forrest denied the request and said she would rule on September 19 whether she needed to suspend the permanent injunction. The government then went to the 2nd Circuit Court and asked a judge for an emergency stay, which Judge Raymond J. Lohier granted on September 17.

The order from the three-judge motions panel granting the stay appears to accept multiple government arguments on their face. First, the panel cites an argument from the government that, “Based on their stated activities,” plaintiffs, “journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.” The judges then assert the statute poses no risk to the “existing rights of United States citizens or other individuals arrested in the United States.

The judges cite this section of the NDAA:

…Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”…

The judges also contend “the language of the district court’s injunction appears to go beyond” the provision itself—Section 1021—“to limit the government’s authority under the Authorization for Use of Military Force (AUMF).

I wrote about this argument the government was making when lawyers filed their motion asking for an emergency stay. The Justice Department is operating under this presumption that the language in the indefinite provision is similar to the AUMF passed by President George W. Bush. They argue it contains no new “concepts” for why government should have the power to indefinitely detain a person. It points to a March 2009 memo it has used in numerous cases, including “habeas litigation brought by the Guantanamo detainees and the court have accepted and endorsed it.”

The memo:

The President has the authority to detain persons that the President determines planned, authorized, committed or aided the terrorists 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 aid of such enemy armed forces.

The NDAA passed by Congress and signed into law by President Barack Obama accepted this legal interpretation, however, it did not merely reaffirm powers that were already in the AUMF. As Forrest pointed out in her permanent injunction ruling, nowhere in case law are these terms “substantially supported,” “directly supported,” or “associated forces” ever used prior to the NDAA.

Obama Justice Department lawyers are trying to rewrite legislative history and use a legal interpretation it crafted after the AUMF became law to stop those behind the NDAA lawsuit from quashing their new claimed power.

Moreover, the lawyers and the judges (in this particular instance) promote this false idea that Forrest’s action voided a portion of the AUMF, making it perhaps illegal to detain people in Afghanistan indefinitely. This is an imaginary problem the government has conjured to support its disingenuous legal argument that the NDAA provision is the same as language in the AUMF.

As Forrest wrote in her permanent injunction ruling:

The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes…that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF–a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government’s arsenal.

If they’re redundant, why is the Obama Justice Department expending time, energy and resources to save a provision, which gave it a power it claims the government had back in 2001? The answer is they are not the same.

To the issue of whether the plaintiffs are in danger of being indefinitely detained or not, journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, Icelandic parliamentarian Birgitta Jonsdottir proved in court the provision could result in an “imminent and particularized, invasion of legally-protected interests.” In her ruling, the judge wrote, “Hedges, O’Brien, Wargalla, and Jonsdottir all testified to facts showing a chilling of their written, oral or associational activities. That is actual injury.” The plaintiffs, including the other plaintiffs—writer Noam Chomsky, whistleblower Daniel Ellsberg and RevolutionTruth.org founder Alexa O’Brien, all showed the provision was impacting their lives in some respect.

Forrest found the government had been “unable to provide this Court with any assurance” that these writers, journalists or activists’ activities would not subject them to military detention, as laid out in section 1021. The government’s answers were consistently vague. They would not give specifics to assuage the fears of plaintiffs and the concerns of Forrest and, for that reason, Forrest issued the permanent injunction.

In conclusion, let us be clear on what the Obama administration is defending in court when it says that the ruling intruded upon the President’s power.

Contrary to the government’s argument that the injunction intrudes upon a “long-standing” detention power of the President, it is actually §1021(b) that intrudes upon along-standing and venerable rule that the Executive may not hold civilians in military custody in the U.S. where the civil courts are open and functioning. Four times the Supreme Court has rejected presidential claims that civilians in the U.S. may be held in military custody. Even in the Japanese internment cases during wartime when the country had been invaded and attack, the detainees were subject only to civil detention, not military custody.

Let’s also recognize how smug, arrogant and wrong it is for the government to continue to make this argument:

…the court has enjoined wholesale an Act of Congress, but it is wellestablished that Acts of Congress are presumed constitutional; enjoining themcauses institutional harm; and they should remain in effect pending a final decisionon the merits by the Supreme Court. This must be true especially in law thatgoverns military operations abroad…

As I suggested previously, this might be true if you are a lawyer with the Ministry of Truth, who is redefining universally agreed upon legal concepts like due process and free speech, but it is most definitely not true if you have any respect for the Constitution. The Supreme Court is not needed to declare a law unconstitutional. And this is just part of a campaign by government lawyers to make it seem like Forrest was out-of-line when she took this “activist lawsuit” seriously. It is intended to encourage government officials, politicians and legal commentators to vilify Forrest for having the guts to challenge the power of the Executive Branch.

Update – 9:20 PM EST 

An added note for those wondering what might happen with this lawsuit next. The 2nd Circuit will may hear argument before year is over. If not, argument will happen in January.

From the order:

The parties are directed to file their briefs on the following expedited schedule: Appellants are to file their brief on or before November 2, 2012; Appellees’ brief in opposition shall be filed on or before December 3, 2012. Appellants shall file any reply brief by December 13, 2012. The Clerk of the Court is directed to place the case on the argument calendar for the first available week after the filing of appellees’ opposition brief.