The Obama administration appealed a judge's decision to block a law allowing indefinite detention less than a day after the decision was made. The law gives the government power to detain U.S. citizens indefinitely without trial.
Judge Katherine Forrest ruled in New York last Wednesday ( Sept. 12 ) that the law violates the U.S. constitution. Prize-winning journalist Chris Hedges had brought a suit against the law claiming that it violated his rights of free speech even though Obama declared in a signing statement that his administration would never detain any American without a trial. Perhaps he would put them on his target list to be terminated by drones or other means however.Even though the judge is an Obama appointee she found the law was worded too vaguely and that Congress should define more clearly what behavior fell within the scope of the law. In Forrest's opinion the law's present wording could be applied to free speech and the practice of journalism as Hedges had argued.Attorney for Hedges, Bruce Aftran, said:Lawyers from the office of U.S. Attorney Preet Bharar filed papers for an appeal of Forrest's ruling in Manhattan on Thursday. The law is part of the National Defense Authorization Act for 2012.Baher Azmy, legal director of the Center for Constitutional Rights, explained some of the consequences of the law:The Forrest decision is quite limited in its critique of the law in that it only questions the vagueness of the language. Supposedly the NDAA does not suspend the right of habeas corpus. Legally speaking it does not. However, what it does is set up a kangaroo court that decides whether a suspect is legally held under the law:No one will ever be able to challenge the information presented by the government because it is classified. The judge presumes the evidence to be accurate and reliable. The suspect has no right to be charged and tried. Habeas corpus is replaced by justice interruptus and presidential decrees.
“Judge Forrest’s decision firmly rejects governmental overreach.... We now have a judgment that the NDAA, by threatening indefinite military detention as the price of speech, violates the First Amendment and threatens core American values. The federal court has denied the dangerous notion that American civilians can be taken into military custody and that the President is above the law outside of the reach of the courts. The decision is an affirmation of the American constitution.”
"It has no real geographical limitation, it has no temporal limitation. It basically puts into law, into permanent law, the ability to indefinitely detain, outside of a constitutional justice system, individuals the president picks up anywhere in the world that the president thinks might have some connection to terrorism."
Habeas corpus, in this context, means that for individuals in the United States, or at Guantanamo, the government only needs to prove to a federal judge that it’s more likely than not that the person in question is a “member” or “substantial supporter” of al Qaeda, the Taliban, or an “associated force”. It’s not clear what these vague terms mean, and in a habeas proceeding the government often presents classified information, the content of which is presumed by the judge to be accurate and reliable. Importantly, habeas corpus in this context does not guarantee a jury trial, at which the individual must be found guilty of crimes beyond a reasonable doubt, or ensure that the government only arrest people when it has probable cause.