Obama Administration Angry At Judge For Striking Down Indefinite Detention

In a move supported by the CATO Institute and the American Civil Liberties Union, a federal judge from the U. S. Second Circuit struck down provisions allowing indefinite detention of American citizens without trial.

Obama appointee Katherine Forrest in the Second Circuit argued that the provision violated the First Amendment, as well as guarantees of due process.  The Department of Justice countered by calling the ruling "unprecedented" and  simply reasserted the 2001 act authorizing the use of force in the War on Terror.  This would seem to be less of an argument against Judge Forrest and more of a preparation for arguments in front of Republican appointed judges later on.

Forrest found the definition of who was subject to be detained frighteningly broad. According to the argument of plaintiffs Noam Chomsky and reporter Chris Hedges, any activist or reporter who is peripherally associated with a suspect group could face detention.  The government argued that neither Chomsky nor Hedges were likely to face detention in the near future. Meanwhile, Republican Senator Rand Paul has observed that people storing up seven days worth of food could be considered terrorists and detained.

Indefinite detention has met with strong opposition from across the political spectrum.  Reason magazine warns that opposition to such measures must begin immediately.  Waiting until someone is actually detained gives the law a chance to become a "new normal."  At that point it would be much more difficult to remove. 

The ACLU stated at the time of passage last December that "the statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”

NDAA provisions have some precedent in the detention of Confederate soldiers during the Civil War.  Others have pointed out the mass imprisonment of Japanese civilians in the 1940s.  Keeping Confederate soldiers in prison camps did take place during a time of recognized rebellion when the civil courts were officially non functional.  Although the Supreme Court in 1944 upheld the Japanese detentions, the Department of Justice, under Obama strangely enough, stated that the judgement was in error.  As a result, they could not use Korematsu v United States as a buttress of their NDAA case. 

Indefinite detention in one way is a very serious assumption of power by the government that violates the First, Fifth, and Sixth Amendments, as well as possibly the 14th depending upon the application.  In another sense, however, it is so weak in potential use against American citizens that the government's zeal to fight on its behalf looks like a waste of time.

The Constitution recognizes every citizen's right to appeal to the courts for a writ of habeas corpus.  This writ evolved in England during the Middle Ages as a response to the power of the king to jail an individual indefinitely.  In 1689, only the legislative branch was recognized as having the power to suspend this writ in the specifically mandated times of invasion or rebellion.  Certainly the president can detain a person under NDAA.  And that person would be released the very next day by a judge unless a rebellion or invasion takes place.  

While is is right for CATO and the ACLU to fight this law, one should also recognize its inherent uselessness.  The Constitution already provides for legal indefinite detention in very well defined situations while restricting it under any other conditions.

See also ex parte Merryman (1861)