If you thought – as we did – that some time would elapse before the government would challenge the September 12th ruling issued by Judge Katherine Forrest striking down indefinite detention, you would be wrong.
With lightening speed the government has reportedly appealed the decision from the Federal District Court of the Southern District of New York to the US Court of Appeals for the Second Circuit.
We had even held out some hope that the government would decide not to appeal. After all, the President did append the following signing statement to Section 1021 – the subject of Judge Forrest’s ruling – when he signed the NDAA of 2012 into law:
I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
But this kind of forthright language about the detention without trial of American citizens never came out of the mouths of government lawyers in the hearings before Judge Forrest.
And other parts of the President’s signing statement are clearly at odds with Judge Forrest’s interpretation of Section 1021. Obama insists that it “breaks no new ground,” does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force” and may not “be construed to affect any existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
Language affirming “existing law” had been added in last-minute revisions – which are presumably what the last paragraph of today’s New York Times editorial is referring to - that led Obama to drop his threatened veto of the NDAA.
But what exactly is “existing law”? President George Bush and the US Court of Appeals for the Fourth Circuit interpreted the Authorization for Use of Military Force (AUMF) to permit the indefinite military detention of Jose Padilla, an American citizen seized on American soil.
Confusion about the language of Section 1021 has prevailed since the NDAA became law. But Congress has made clear where it stands. Five months after the President signed the NDAA of 2012 into law, the Smith-Amash Amendment specifically barring the indefinite detention of American citizens was defeated by a 238-182 vote of the House of Representatives.
So how is the Court of Appeals for the Second Circuit likely to rule? It has a mixed record on cases involving the First Amendment and national security, and much depends on the composition of the panel of judges that will hear the appeal.
Last month, a three-judge panel upheld the caging of demonstrators in a “free speech zone” established by the NYPD over a block away from the 2004 Republican National Convention at Madison Square Garden.
In May of 2012, a panel of the Court ruled against the ACLU which had brought a FOIA lawsuit to obtain cables and a photograph depicting torture. The Court ruled that the CIA does not have to release descriptions of waterboarding because they relate to “intelligence” methods.
According to ACLU staff attorney Alexander Abdo, the ruling “grants the government the Orwellian authority to censor a photograph of a detainee because the photograph might reveal the detainee’s ‘condition’ after being tortured.”
But the Second Circuit Court also ruled in March 2011 that plaintiffs have standing to challenge the constitutionality of the FISA Amendments Act of 2008 in an ACLU case which is now before the US Supreme Court.
And back in December 2008, the appeals court upheld a district court ruling that the indefinite gag order attached to National Security Letters enabling the FBI to demand personal records from Internet Service Providers, financial institutions and many other businesses violated the First Amendment.
Whichever way the Second Circuit rules, the case seems likely to reach the Supreme Court.