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September 18, 2012

Government’s Request for Stay in NDAA Lawsuit Shows Smug Arrogance of Executive Power

Posted in: Court Decisions,First Amendment,Military,Security,War on Terrorism

US Justice Department (Wikipedia Photo by Coolcaesar)

A federal appeals court judge granted the government a stay against a federal judge’s ruling permanently enjoining a provision of the National Defense Authorization Act (NDAA), which passed last year and granted the military the legal authority to indefinitely detain persons. Lawyers from the Justice Department under Obama argued they needed an emergency stay because the injunction appears to be “worldwide in its effect, intruding upon military operations in the ongoing armed conflict against al-Qaeda, the Taliban, and associated forces.”

Last week, 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 codified by a section of the NDAA.

Forrest determined certain terms like “substantially supported,” “directly supported,” and “associated forces” were vague or lacked specificity. She concluded these terms did not appear in any prior case law and that “the respective meanings of the terms at issue” are unknown but “the penalty of running afoul of it is severe.”

The government immediately appealed the permanent injunction. The government 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 Second US Circuit Court of Appeals in Manhattan and asked a judge for an emergency stay, which Judge Raymond J. Lohier granted on September 17.

The motion Justice Department lawyers filed is significantly overwrought, sensational and teeming with arrogance. It, perhaps, affirms the worst fears of the plaintiffs, who decided to bring the lawsuit months ago.

The Justice Department continues to operate under the flawed presumption that section 1021 and the Authorization for Use of Military Force (AUMF) passed under President George W. Bush are similar and the NDAA provision contains no new “concepts” for why the government should have the power to indefinitely detain someone that were not in the AUMF. The government contends it had a legal interpretation, a March 2009 memo, that has been used in numerous cases—in “habeas litigation brought by the Guantanamo detainees and the court have accepted and endorsed it.”

Here’s the language in 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.

Congress adopted this interpretation in 2011, when it passed the NDAA containing section 1021. The law expressly affirmed the authority of the President under the AUMF, including the authority of the Armed Forces, to detain “covered persons.”

The problem here is the government’s argument that the NDAA provision simply reaffirmed powers already in the AUMF—an argument Forrest never bought. Right here, the government is demonstrating in its motion the Justice Department had an interpretation of the AUMF that was different. It wrote up language that used the vague terms at issue in the NDAA lawsuit and then went to Congress. Congress put this legal interpretation into law and, now, a federal judge has reviewed the interpretation and found it to be unconstitutional. The history essentially proves the government cannot argue the NDAA provision is merely a restating of “concepts” originally in the AUMF. Nowhere in case law are these terms “substantially supported,” “directly supported,” or “associated forces” ever used prior to the NDAA being signed by President Obama.

More preposterous, however, is this section of the government’s motion:

… [I]n taking Congress to task for a lack of greater specificity or a scienter requirement in Section 1021(b)(2), the district court misunderstood the fundamental purpose of Section 1021(b)(2) and the AUMF; they are war authorizations conferred upon the President, not penal statutes intended to regulate and punish conduct. Throughout the history of this Nation, war authoritizations such as this simply do not, cannot, and should not provide the level of specificity that the district court believes they require. The district court’s overbroad worldwide injunction is erroneous as a matter of law and threatens tangible and dangerous consequences in the conduct of an active military conflict. The order should be stayed immediately and remain stayed until final resolution of the appeal… [emphasis added]

Baher Azmy, a legal director for the Center for Constitutional Rights, told Firedoglake, this is like something out of a press release from the Bush administration. Why the lawyers would feel the need to include this bombast is unclear, since the Second Circuit would likely have heard the appeal and issued the stay. Nonetheless, this “war authorization” grants the United States government the power to indefinitely detain someone. This power makes the “war authorization” more than just a piece of legislation making the world a battlefield, as the Executive Branch has asserted. It makes the “war authorization” penal because something could be done to a person and the government still has to demonstrate it has the legal right to detain a person.

In effect, the government is arguing for the power to make the decision to detain a person and put them in prison without having any body whatsoever question their power to do so because the country is in a state of perpetual war. It is essentially an argument for the power to be able to populate internment camps whenever necessary.

Azmy explained the plaintiffs “have a due process right to avoid the liberty deprivation, whether it’s a fixed sentence in a Bureau of Prisons cell or indefinite detention in a military brig.” He added, “The right to avoid that is just as compelling and so it doesn’t matter how the government labels this,” whether they classify the law as “punitive or administrative.”

What this legal reasoning further shows is how the Executive Branch no longer thinks it should have its power checked by the Judicial Branch or the Congress for that matter. The government actually wrote in its motion, “The district court’s objections to Section 1021(b)(2) are, as stated before, at odds with the interpretation that has been given to the President’s detention authority by two Presidents, the D.C. Circuit, and the Congress itself.” But Judge Forrest had no obligation to follow Congress or the president. Under the separation of powers, she had every right to declare the law unconstitutional.

Ridiculously, the stooges for authoritarian power who submitted the motion do not seem to agree:

…[t]he district court has enjoined wholesale an Act of Congress on the ground that it is facially unconstitutional. It is basic that all Acts of Congress are presumed constitutional and should remain in effect pending a final decision on the merits by the Supreme Court. This must be true especially in matters of national security and the conduct of military operations…

This might be true if you are a member of the Ministry of Truth 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.

Shahid Buttar of the Bill of Rights Defense Committee (BORDC) reacted, “The government’s argument to stay Judge Forrest’s decision essentially insinuates that the national security establishment stands above the law.” He suggested suspending the court’s decision to issue a permanent injunction would “leave due process in unreliable hands.”

Azmy concluded the government’s arrogance was indicative of the fact that the country has been “lulled into thinking that the courts have no role in checking Executive Power.” Forrest did “what courts should be doing more regularly.” She did not accept government arguments as “fiat.” She did not accede to the line, “We can be vague. Trust us. We won’t abuse this power”—what the courts have been doing for years now, especially in Washington, DC. Forrest stood up for the role of an Article 3 court and was completely in her right to issue a permanent injunction.

For over a decade now, the Executive Branch has been able to ensure business as usual is not complicated by people, who have respect for civil liberties and the rule of law. The Executive Branch has routinely invoked the “state secrets” privilege to prevent the disclosure of information and stymie those, who have a commitment to transparency. The Executive Branch has invoked “state secrets” to essentially obstruct any effort by victims of the “war on terror” to hold government officials responsible for torture, violence, rights violations, etc. The Executive Branch has been permitted to place people on “no fly” lists without having to explain to those being placed on the list why they have had their rights to mobility curbed. The Executive Branch has been able to intercept citizens’ communications through warrantless wiretapping without having to address how this violates the rights of writers, journalists, activists and other citizens. And, now, the Executive Branch has the ability to place people, whether they are US or non-US citizens, on kill lists and execute them without any judicial process, particularly because the Executive Branch has sought to redefine the universally accepted concept of due process to excuse conduct that is nothing less than criminal.

Journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, and Icelandic parliamentarian Birgitta Jonsdottir, founder Tangerine Bolen, writer Noam Chomsky and whistleblower Daniel Ellsberg took the innovative and shrewd step of filing a lawsuit because some time in the future they thought the government could use the NDAA provision against them. The judge found the plaintiffs had standing and had proven the provision could result in an “imminent and particularized, invasion of legally-protected interests.” The government was given ample opportunities to prove the power would not be used toward First Amendment-protected activities and did not reassure the judge that the power would be used solely toward individuals engaged in combat. The lawsuit succeeded and this is why the Justice Department under Obama is now hysterical.

Bolen told Firedoglake, “The government brought its full weight to bear first on the plaintiffs, describing us in a brief in a manner that was tantamount to calling us delusional for bringing this case forward, and then it went after Judge Forrest. This relatively new Obama-appointed Judge appears to be one of the few judges in the last decade, who did not buy the government’s arrogant obfuscation around its incredible assault on our liberties. She is to be commended, not treated as a radical by an administration that hypocritically continually expressed its dismay over this provision – only to fight tooth and nail to keep it.”

The government believes it has now lost the power to indefinitely detain any persons in the unending war against terrorism. Human rights and civil liberties advocates and antiwar activists would all be rejoicing were this remotely true. The AUMF was untouched by the ruling. Forrest explicitly stated, “Enjoining its ability to enforce” section 1021 “removes no tools from the Government’s arsenal.”

The Executive Branch still has all the power under the AUMF that it had prior to the NDAA provision being passed into law, powers that may possibly be unconstitutional if you follow legal arguments by government lawyers closely. Nonetheless, the Obama administration has these powers. It can still indefinitely detain (and kill) whomever it pleases under the guise of the “war on terror.” It can still populate Bagram in Afghanistan with “terror suspects” turned in by village people informing on others for money. It also—as the world saw over the weekend—can still invent terrorists and use the Federal Bureau of Intelligence’s undercover agents to target and entrap Muslim teenagers on US soil too. It has not lost any power. The Executive Branch has, however, been unusually rebuked by a federal judge, who did her job and asserted and exercised her power, and for that the Justice Department under Obama finds it critical to put on a public show to remind people of how things are supposed to be in the New Normal. So, a hearing over a government appeal will take place before the end of the month.

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