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Obama Administration Doubles Down for Indefinite Detention Authority

DOJ threatens appeal after judge issues injunction, calls provision 'unconstitutional'

- Common Dreams staff

Federal prosecutors from Obama's Dept. of Justice on Friday asked a judge to lift an injunction placed on specific section of a recent law that permits the 'indefinite military detention' by the United States government and was signed by the President in December.

Prosecutors on Friday double-down on behalf of the executive branch, saying that indefinite military detention without trial is justified in some cases involving militants and their supporters. (Photo: Tumblr) Earlier this month, Manhattan federal court Judge Katherine Forrest, sided with plaintiffs who filed suit as journalists and political activists against provisions in the 2011 National Defense Authorization Act (NDAA), arguing portions of the law were vaguely worded and an encroachment on their right to free speech, overstepping constitutional authority.

“The government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest said in her earlier ruling. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”

Federal prosecutors argue that indefinite military detention without trial is justified in some cases

But the prosecutors on Friday double-down on behalf of the executive branch, saying that indefinite military detention without trial is justified in some cases involving militants or their supporters.  But Forrest's previous argument, was that the government had not adequately addressed the concerns of the plaintiffs who said that they, too, because of their activities as political advocates or as journalists interacting with various 'potentially targeted' parties, could also be swept up. Also, arguing against "promises" of restraint by the Obama Justice Dept., the plaintiffs said there were no guarantees that future administrations wouldn't apply the statute more broadly.

"This law was, after all, not about foreign terrorism," prize-winning journalist, Chris Hedges, one of the plaintiffs in the suit, wrote last week. "It was about domestic dissent. If the state could link Occupy and other legitimate protest movements with terrorist groups (US Day of Rage suffered such an attempt), then the provisions in the NDAA could, in a period of instability, be used to “disappear” U.S. citizens into military gulags, including the government’s offshore penal colonies. And once there, stripped of due process, detainees could be held until, in the language of the law, 'the end of hostilities'.”

"In an age of permanent war that would be a lifetime," he said. 

And Nick Wing this morning, writing at Huffington Post, offers, '7 Ways to Get Yourself Indefinitely Detained.'

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Reuters: U.S. asks judge to undo ruling against military detention law

Federal prosecutors on Friday urged a judge to lift her order barring enforcement of part of a new law that permits indefinite military detention, a measure critics including a prize-winning journalist say is too vague and threatens free speech.

Manhattan federal court Judge Katherine Forrest this month ruled in favor of activists and reporters who said they feared being detained under a section of the law, signed by President Barack Obama in December.

The government says indefinite military detention without trial is justified in some cases involving militants and their supporters.

But critics worry that the law is unclear and gives the Executive Branch sole discretion to decide who and what type of activities can be considered as supporting militants.

The judge's preliminary injunction bars the government from enforcing section 1021 of the National Defense Authorization Act's "Homeland Battlefield" provisions.

The section authorizes indefinite military detention for those deemed to have "substantially supported" al Qaeda, the Taliban or "associated forces."

[...]

The judge said she was worried by the government's reluctance at the March hearing to say whether examples of the plaintiffs' activities - such as aiding the anti-secrecy website WikiLeaks in the case of Birgitta Jonsdottir, a member of parliament in Iceland - would fall under the scope of the provision.

Bruce Afran, a lawyer for the plaintiffs, said the government's brief failed to address fundamental concerns about what type of conduct is outside the law, and which person or group is deemed sufficiently "independent" of enemy forces.

"It is surprising that the government is pursuing this case because it has other statutes that specifically target terrorist groups," Afran said.

The government noted that courts rarely intervene in matters directed by the Executive Branch.

"Issuing an injunction regarding the President himself, or restraining future military operations (including military detention) ... would be extraordinary," prosecutors wrote, noting that they were considering an appeal of the judge's order.

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Chris Hedges: A Victory for All of Us

The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.

“At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest noted. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”

The government has 60 days to appeal. It can also, as Mayer and Afran have urged, accept the injunction that nullifies the law. If the government appeals, the case will go to a federal appellate court. The ruling, even if an appellate court upholds it, could be vanquished in the Supreme Court, especially given the composition of that court.

We had none of the resources of the government. Mayer and Afran worked for weeks on the case without compensation. All of us paid for our own expenses. And few people, including constitutional lawyers of Glenn Greenwald’s caliber, thought we had a chance. But we pushed forward. We pushed forward because all effort to impede the corporate state, however quixotic, is essential. Even if we ultimately fail we will be able to say we tried.

This law was, after all, not about foreign terrorism. It was about domestic dissent. If the state could link Occupy and other legitimate protest movements with terrorist groups (US Day of Rage suffered such an attempt), then the provisions in the NDAA could, in a period of instability, be used to “disappear” U.S. citizens into military gulags, including the government’s offshore penal colonies. And once there, stripped of due process, detainees could be held until, in the language of the law, “the end of hostilities.” In an age of permanent war that would be a lifetime.

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