Late last Tuesday a three-judge motions panel of the U.S. Court of Appeals for the 2nd Circuit sided with the Obama administration and extended the stay that New York federal judge Raymond Lohier granted to block a previous ruling to permanently block Section 1021 of the National Defense Authorization Act (NDAA).
Last month District Judge Katherine Forrest permanently blocked the section claiming that “First Amendment rights have already been harmed and will be harmed by the prospect of (the law) being enforced.”
“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. Each judge was appointed to the appeals court by Barack Obama.
The order continues:
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…
Critics have argued that the provisions also violate the Fifth Amendment, which specifically mentions due process of law, and the “equal protection” clause of the 14th Amendment which states that all people be treated the same under the law.
“This pernicious law poses one of the greatest threats to civil liberties in our nation’s history,” writes Brian J. Trautman. Under AUMF, “this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights.”
The federal government argues that the National Defense Authorization Act did not expand its authority beyond what already existed under the 2001 Authorization for Use of Military Force (AUMF) , as interpreted by judges in Guantánamo Bay habeas corpus cases.
Josh Gerstein points out that “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,” he writes. “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.”
So it appears that Obama not only signed the law, but also has put in place his people at the appeals level to ensure it stays in place and sadly, whether it is Obama in office or Mitt Romney, both have affirmed that they think it is perfectly fine to declare U.S. citizens to be terrorists and hold them indefinitely without due process. Exhibit A would be former marine Brandon Raub.
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