Indefinite Detention of Americans

A NY Times article, Judge Rules Against Law on Indefinite Detention, reports on the Order and Opinion in Hedges v. Obama, where US Court Judge Katherine Forrest of the Southern District of New York permanently blocked enforcement of § 1021(b)(2) of the National Defense Authorization Act for 2012. Plaintiffs claimed that the provision could subject them to indefinite military detention for news reporting and political activism. The definitional language in § 1021(b)(1) of the statute defines “covered person” as any person “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” The next definitional, § 1021(b)(2), expands the definition to 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.” The complaint filed in January charged that this section of the law allows for detention of citizens and permanent residents on “suspicion of providing substantial support” to people engaged in hostilities against the US, such as al-Qaeda, and that the phrases “associated forces,” “substantially supported,” and “directly supported” are vague and authorize detention based on speech and associations protected by the First Amendment.

The latest Order makes permanent a May Order for a preliminary injunction after a March hearing where plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified. The Government argument that the Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing, but Judge Forrest ruled for the plaintiffs, writing at page 8 of the latest opinion that “plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.” The Court also addressed the Government’s central challenge to plaintiffs’ standing that their fears of detention cannot be reasonable since § 1021(b)(2) is simply a reaffirmation of the 2001 Authorization for Use of Military Force (AUMF). The judge wrote at page 33 of the opinion “Repeatedly throughout this litigation, the Government has argued that the AUMF is coextensive with § 1021(b)(2). The Court preliminarily rejected that position in its May 16 Opinion, and does so again now.”

At page 101, the opinion says “To the extent that § 1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis. Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States, the President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute 'substantially' or 'directly supporting terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far.”

For further reading on the subject, see The National Defense Authorization Act for FY2012: Detainee Matters in the Brooklyn Law School Library catalog. Content includes Background -- Scope of detention authority conferred by the AUMF -- 2012 NDAA : summary and analysis of detainee provisions. Detention authority --General counterterrorism matters.