The Second Circuit has permanently vacated the injunction issued by the District Court against NDAA 2012 indefinite detention powers. The case has been remanded to District Court Judge Kathryn Forrest. who originally issued the injunction.
In layman’s terms, Forrest put a stop to indefinite detention, and the Second Circuit overturned that. It also permanently prohibited Forrest from attempting to do so again, ordering her to proceed with the case consistent with their opinion.
NDAA “indefinite detention” powers are alive and well.
The opinion appears to be based only on lack of standing — based on the Clapper case decided by the Supreme Court:
“In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens. While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.” P. 60
The Tenth Amendment Center, along with a broad coalition of organizations and individuals, filed an amicus brief on behalf of the defendants. It was cited at p. 4 and note 3 in the District Court’s opinion:
As one group of amici has noted, “[r]arely has a short statute been subject to more radically different interpretations than Section 1021.”
The only other reference to an amicus brief was at p. 40, in note 137 — Center for National Security Studies.
REVIEWING THE “LAW” IN QUESTION
While unsurprising, the Second Circuit’s opinion is patently incorrect – to claim that Section 1021 of the 2012 “simply says nothing about the government’s authority to detain citizens.” Here’s the text in question, with comment provided by leading Constitutional scholar, Rob Natelson, from his full analysis:
§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.
Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.
(b) . . A covered person under this section is any person as follows:
Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens within U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?
c) . . The disposition of a person under the law of war . . may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .
Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”
(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!
(e) . . . 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.
Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.
Here are the principal Supreme Court decisions the law preserves:
(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)
(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.
(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)
(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.
Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.
Can the courts be trusted to protect the constitution and liberty? If your answer is no, you should absolutely get active in your state and local community to get legislation passed to reject these unconstitutional federal powers.
Model legislation here:
Latest posts by Michael Boldin (see all)
- Judge Napolitano: Kavanaugh is the Establishment Pick - July 10, 2018
- The Constitution and War Powers: Jefferson vs the Barbary Pirates - July 7, 2018
- Andrew Napolitano on replacing Supreme Court ‘swing vote’ Kennedy - June 27, 2018