Many civil liberties activists felt that a small victory had been achieved when Federal Judge Katherine Forrest temporarily suspended the National Defense Authorization Act’s indefinite detention provision in response to a lawsuit brought forth by renowned American journalists and intellectuals earlier this year. But this week, an appeals judge reinstated the provision at request of the Administration of Barack Obama.
Forrest ruled last week that the indefinite detention provision of NDAA could implicate American journalists for providing “material support” to entities that the Federal government defines as terrorists for simply covering issues surrounding the groups. This, the judge argued, posed threats to Constitutional free speech and freedom of the press.
“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest wrote in her opinion. “This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”
When he signed the bill into law last New Year’s Eve, Obama claimed that: “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”
Despite his assertion, the President’s Administration, evidently alarmed by Forrest’s suspension of the indefinite detention provision until language in the bill is clarified, asked for an emergency stay on the order. Within hours of the request on Monday, U.S. Court of Appeals Second Circuit Judge Raymond Lohier agreed to intervene and place a hold on the injunction.
Indefinite detention is alive and well. Barring Forrest’s previous ruling means the President again has the power to put any American citizen who “was part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners” in a military detention center until “the end of hostilities.”