Obama administration: Trust us on detention 8/10/12
The Obama administration is pulling out all the stops in its defense of a provision in a federal law that critics say allows the unrestricted detention of Americans should Washington decide the citizens are in “support” of any terror group or activity.
This from a government that previously has called those who support third-party presidential candidates, the Second Amendment or pro-life positions possible domestic terrorists. Just this week, the Obama administration appealed to the 2nd Circuit Court of Appeals a district judge’s decision to grant a temporary injunction against the enforcement of the detention provision, which is found in the most recent National Defense Authorization Act, signed into law by Obama just last winter.
The Obama administration is appealing the preliminary injunction as well as an order from the judge that the injunction bars the enforcement of the provision against anyone.
Judge Katherine B. Forrest issued the injunction because of the possible injury to citizens, including the loss of their rights. Her ruling came after Justice Department officials refused to affirm that the journalists and others who brought the lawsuit would not be subject to detention for their work. “As a matter of law, individuals who engage in the independent journalistic activists or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such conduct.” It does not provide the assurance the court sought. It is a vague gloss on a vague statute; its vagueness and reach merely reinforce the plaintiffs’ standing.”
“The statute does not have sufficient constitutional guidelines to govern the discretion of the president in making a decision whether to hold someone in indefinite military detention.” The judge noted that the law doesn’t have a requirement that there be any knowledge that an act is prohibited before a detention. The judge also said the law is vague, and she appeared to be disturbed that the administration lawyers refused to answer her questions. The judge explained that the plaintiffs alleged paragraph 1021 is “constitutionally infirm, violating both their free speech and associational rights guaranteed by the 1st Amendment as well due process rights guaranteed by the 5th Amendment.” She noted the government “did not call any witnesses, submit any documentary evidence or file any declarations.”
Instead, the administration only responded with, “I’m not authorized to make specific representations regarding specific people.”
She later clarified, pointedly, to the government that the injunction was for enforcement of the provision at all, not just against the named plaintiffs.
“The government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs – or others – are not within [paragraph] 1021. It did not. This court therefore must credit the chilling impact on 1st Amendment rights as reasonable – and real.”
Virginia was the first state in the nation to refuse cooperation “with federal authorities who, acting under the authority of section 1021 of the National Defense Authorization Act of 2012 (NDAA), could arrest and detain American citizens suspected of aiding terrorists without probable cause, without the right to know the charges against them, and without the procedural rights guaranteed by the Bill of Rights.”
Obama signed NDAA into law on December 31, 2011.” The Obama administration is arguing that the law indicates that those whose detention could be accomplished without legal due process would be those who “substantially supported” terror groups such as al-Qaida or “associated forces.” But the plaintiffs note that the law does not define those terms. Instead, they point to the law’s provision that such individuals may be detained “without trial until the end of the hostilities.”
The Obama administration previously has release several reports that identify as possible domestic terrorists those who oppose abortion, advocate for the Second Amendment, think Washington has become too powerful or are returning veterans.
Sources—bob unruh–wnd


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