Court extends ruling allowing indefinite terror detentions

An U.S. appellate court has sided with the Obama administration to extend the stay of a lower court decision last month that could have stopped the Obama administration from detaining some terror suspects indefinitely.

The Second Circuit Court of Appeals issued a ruling Tuesday to extend a temporary stay granted last month, which was put into effect after the government appealed a U.S. District Court ruling that found part of the law unconstitutional.


U.S. District Court Judge Forrest ruled in September that some of the provisions of last year’s National Defense Authorization Act (NDAA) on indefinite detention were unconstitutional. She granted a permanent injunction that could have prevented the U.S. from indefinitely detaining those who “substantially supported" al Qaeda or "associated forces" could be detained, language she called overly vague.

The Obama administration responded with an emergency motion to stay the injunction, arguing that the court ruling “threatens tangible and dangerous consequences in the conduct of an active military conflict.”

The government’s motion said that the injunction would be directed toward “detention practices in areas of active hostilities.”

Second Circuit Judge Raymond Lohier granted the temporary stay last month, and he was part of the three-judge panel that extended the stay on Tuesday.

The court listed three reasons for granting the stay, including the government’s brief that said the plaintiffs were “in no danger whatsoever of being captured and detained by the U.S. military."

The judges were not ruling on the case with Tuesday's decision, but they did hint an opinion, stating that “on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States.”

They were citing language in the NDAA — inserted as a last minute compromise amendment in the Senate — which said: “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 indefinite detention case stems from a lawsuit filed in January by Christopher Hedges, a former New York Times reporter, and a group of journalists, writers and activists, including Daniel Ellsberg and Noam Chomsky. They alleged that their First Amendment rights were threatened and that they could be subject to indefinite detention under the 2012 NDAA law.

The NDAA sparked protests last year as it was debated in Congress amid concerns from activists and some lawmakers that the detention provisions could lead to the indefinite detention of American citizens.

While the writers of the law said these concerns were unfounded, arguing that the law was merely confirming statues already in the Authorization for the Use of Military Force (AUMF). President Obama also made clear in a signing statement that he would not use the law against American citizens.

Still, activists and lawmakers have argued there is nothing stopping future administrations from interpreting the law differently and targeting Americans.

Tuesday’s ruling also stated that the District Court injunction went beyond the NDAA statutes to limit the AUMF itself.

That’s the precise tack that some lawmakers, in particular Rep. Adam SmithDavid (Adam) Adam SmithOvernight Defense: Mattis dismisses talk he may be leaving | Polish president floats 'Fort Trump' | Dem bill would ban low-yield nukes Dems introduce bill to ban low-yield nukes Dems seek ways to block Trump support for Saudi-led coalition in Yemen MORE (D-Wash.) and Sen. Mark UdallMark Emery UdallRecord number of LGBT candidates running for governor Senate GOP rejects Trump’s call to go big on gun legislation Democratic primary could upend bid for Colorado seat MORE (D-Colo.), have taken this year in their attempts to scale back the NDAA and limit the government’s power to detain indefinitely.