NDAA Indefinite Detention Provision Back in Effect

By Josh Gerstein, Politico

03 October 12

federal appeals court has extended a temporary stay of a district court judge's order barring the government from using an indefinite detention provision in a defense bill passed by Congress and signed by President Barack Obama late last year.

A three-judge motions panel of the U.S. Court of Appeals for the 2nd Circuit issued the order Tuesday afternoon, indicating they saw flaws with the scope and rationale for U.S. District Court Judge Katherine Forrest's original order blocking the disputed provision of the National Defense Authorization Act of 2011.

"We conclude that the public interest weighs in favor of granting the government's motion for a stay," Appeals Court Judges Denny Chin, Raymond Lohier and Christopher Droney wrote in a three-page order that also expedited the appeal.

The judges continue:

First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, 'based on their stated activities,' plaintiffs, 'journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.'

Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States. See NDAA § 1021(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.').

Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force...

Last month, Lohier alone temporarily blocked Forrest's order, using a so-called administrative stay.

The case will go forward now before what will likely be a different trio of judges, but the stay will likely remain in place pending resolution of the government's appeal.

The import of the law is disputed. Proponents say it simply reinforced authority a federal appeals court in Washington had already accorded to the U.S. government, at least as far as foreigner are concerned. Critics say the measure exposes journalists and human rights activists who meet with alleged terrorists to the prospect of open-ended detention.

All three judges on the motions panel were appointed to the appeals court by President Barack Obama.

• A copy of the panel's order is posted here.


• CLARIFICATION (Tuesday, 4:08 P.M): This post has been revised to indicate that Lohier's administrative stay was issued last month.


• CLARIFICATION 2 (Tuesday, 5:01 P.M.): This post has been revised to clarify that all three judges were appointed to the appeals court by Obama.