Though the mainstream media are mum, the President’s ability to indefinitely detain U.S. citizens expected of terrorist activities was argued in a Federal court in lower Manhattan on Tuesday; the judge’s attitude toward the provisions prompted the Obama Administration to file an appeal.
In May, Judge Katherine Forrest ruled in favor of activists and reporters — including such notable names as Chris Hedges, Noam Chomsky, Naomi Wolf and Daniel Ellsberg — who claimed a section of National Defense Authorization Act, signed by President Barack Obama in December, could give the Federal government legal powers to detain any dissident voices. A preliminary injunction issued by Forest prevents the government from enforcing section 1021 of NDAA’s “Homeland Battlefield” provisions.
The section authorizes the indefinite detention at a facility like Guantanamo of American citizens who are deemed by agents of the government as follows:
A person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
In the four-hour hearing on Tuesday, the plaintiffs were asking that Forest make the injunction permanent, according to The Village Voice. During the hearing, Obama’s lawyer, Assistant U.S. Attorney Benjamin Torrance, argued that the indefinite detention law was already in place before the President signed NDAA last New Year’s Eve as a part of the Authorization for the Use of Military Force passed by Congress following 9/11. He also stated that the plaintiffs’ arguments were unfounded because the law had not yet been used in the manner they feared that it would. Furthermore, he told Forest that because she had blocked a part of Congressional legislation, she had overstepped the power of the judiciary.
Forrest disagreed, citing Alexander Hamilton in Federalist Paper Number 78: “Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
The government, it seems, cares not for the will of the courts or of the people, according to another statement by Torrance. He admitted that because the government does not specify whether it is using NDAA provisions or Authorization for the Use of Military Force provisions in detentions, it could sidestep any court-issued blockage of indefinite detention.
Forrest has not yet issued a decision as to whether she will make the injunction permanent, but the Obama Administration has already appealed to a higher court to be sure that it will not lose its ability to indefinitely detain Americans.