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February 06, 2013

NY Appeals Court Hears Arguments in Indefinite Detention Law Challenge

by Carolyn Weaver

A New York appeals court Wednesday heard arguments in a lawsuit challenging the U.S. government's power to indefinitely detain anyone it believes is a terrorist, or who supports terrorists. Plaintiffs say a provision in the 2012 National Defense Authorization Act gives the U.S. military sweeping powers, even inside the United States. The Obama administration says the law does no such thing.

The legal battle played out in a New York federal appeals court is about one passage in the legislation: It says the U.S. military may indefinitely detain anyone it accuses of “substantial support” to terrorist or associated forces.

A group of plaintiffs, including former New York Times correspondent Chris Hedges and Pentagon Papers whistleblower Daniel Ellsberg, challenged the provision as unconstitutional last year, saying it infringes on their First Amendment right to meet with others and speak and write freely - and on their Fifth Amendment right to due process in a court of law. 

Hedges says it gives the U.S. military unprecedented power “...to allow the military onto our streets, to seize American citizens, strip them of due process, put them in military facilities, including our offshore penal colonies, and hold them indefinitely,” Hedges said.

One of the plaintiffs' attorneys, Bruce Afran, said that someone who sends money to support the legal defense of Guantanamo inmates, for example, or who provides help such a hosting a website for them, could be arrested and detained.

“It is an attempt by the executive branch to take on vast detention authority, not akin to a democracy, but like most of the dictatorships we’ve had the misfortune to know over the last century. The framers of the Constitution were very clear to make certain of two things: one, that the military is always commanded by civilians, and two, that the military will never have authority over civilians,” Afran said.

U.S. District Court judge Katherine Forrest, an Obama appointee, ruled in favor of the plaintiffs and against the Obama administration last year, leading to Wednesday's appeals court hearing.

In its brief, the administration contends that the plaintiffs are misreading the law and have no legal right to bring this suit against the government because their rights are not infringed.  Brookings Institution legal scholar Benjamin Wittes says his reading of the briefs indicates the government is correct.

“I have no doubt that an abusive government could make mischief with this statute.  That is not the assumption, that we go into a litigation over whether a statute is constitutional or not. 
You don’t say, ‘What’s the worst possible thing?’  You generally ask the question: ‘What’s the sort of normal application?’  And the normal application of this law is the detention of people who are actually associated with - in a meaningful, very direct sense - the enemy in a war, which there’s very little controversy over, the idea that those people are detainable,” Wittes said.

Wittes said he expects that Judge Forrest’s decision will be overturned shortly by the appeals court panel.