Inside a federal courtroom packed to beyond capacity, lawyers for President Obama argued that their boss has the right to deploy the U.S. armed forces to apprehend and indefinitely detain American citizens that he alone suspects of somehow supporting groups threatening national security.
Last Wednesday, judges of the Second Circuit Court of Appeals heard the government’s arguments in their appeal of an earlier ruling blocking the enforcement of this controversial provision of the National Defense Authorization Act for 2012.
Judge Katherine Forrest issued the now-stayed permanent injunction on September 12, 2012.
The Obama administration filed an immediate appeal and the case was kicked upstairs to the Second Circuit.
In the opinion supporting the permanent injunction, Judge Forrest wrote:
The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from § 1021(b)(2).
This is similar to the language she used in the 68-page opinion accompanying the temporary injunction order. In that order Judge Forrest disagreed with the federal government’s argument that the relevant provisions of the NDAA merely restate existing law.
She wrote: “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].” Pointing out that were Section 1021 and the AUMF identical then the former would be redundant, Judge Forrest held:
Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.”
Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.
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Photo of cell block at Guantanamo: AP Images