U.S. Government Fights to Keep the Powers of Indefinite Military Detention

On Monday, the U.S. government filed a motion asking for a stay of the ruling of a federal judge made earlier this month preventing certain sections of the indefinite military detention law from being implemented. Last week, Judge Katherine Forrest had ruled in favor of activists and journalists, who had alleged the law signed by President Obama in December was vaguely worded and could be used to suppress constitutional freedoms of innocent citizens.

The controversial provision authorizes indefinite military detention of people upon the suspicion of having “substantially supported” al Qaeda, Taliban or “associated forces.” In its motion made on Monday, the Justice Department asked the 2^nd U.S. Circuit Court of Appeals in New York for an “immediate administrative stay” of Forrest’s ruling. The government alleges that blocking the controversial section of the National Defense Authorization Act’s “Homeland Battlefield” provisions would hurt the country’s ability to fight overseas.

Apparently, according to government logic, fighting in Afghanistan is difficult if the government does not have the power to put citizens, activists, or journalists into indefinite military detention over suspicions of violating the NDAA provisions at home. If the “Homeland Battlefield” cannot be brought under control, and which apparently needs to be done immediately being a now or never/November situation, the ability to fight in Afghanistan is being impeded.

The government submitted in its motion, “The district court’s overbroad, worldwide injunction is erroneous as a matter of law and threatens tangible and dangerous consequences in the conduct of an active military conflict.”

The order of the judge blocking the provision of the NDAA, however, had been made to protect citizens from “tangible and dangerous consequences” that could happen given the wording of the law being overbroad and lacking the specificity required by the Constitution.

Before the emergency filing made on Monday, the government had already appealed the order last Thursday and had asked Judge Forrest for an immediate stay of her injunction pending decision of the higher court. However, the judge denied the request thinking it prudent that the controversial section of the law remain blocked until the higher courts rule otherwise. While the judge is going by the rule of ‘better safe than sorry,’ the government seems to have taken an angle of ‘better sorry than unsafe.’

Is there a difference? Judge Forrest and the government seem to be looking exclusively at their own sides of the same coin. But according to the activists who brought the lawsuit for blocking the controversial provision, specificity is required to implement such a law that can put citizens under indefinite military detention merely for covering an interview of someone from “associated forces,” which association can well be extended ad infinitum unless checked by wording of the statute itself.

The government has argued that the plaintiffs have no basis to be afraid of being locked up for their activities and that the judge’s order interferes with the president’s powers at a time of war, at a time when the “Homeland Battlefield” powers are sorely and immediately needed.

The cases are Hedges et v. Obama, U.S. District Court for the Southern District of New York, No. 12-cv-331 and Hedges et v. Obama, 2nd U.S. Circuit Court of Appeals, No. 12-3176.