NDAA lawsuit shows lengths DOJ will go to cover Obama’s tracks

After presenting arguments to the Second Circuit U.S. Court of Appeals in Hedges v. Obama, plaintiffs and their lawyers participated in a panel discussion. The lawsuit challenges the NDAA (National Defense Authorization Act), a pernicious law allowing the indefinite detention of American citizens without due process.

Plaintiffs were found to have standing because they could be targeted under the NDAA for “substantial support to an organization associated with terrorism”–support being so vaguely defined that it could encompass their work as journalists and activists.

The judge hearing the case imposed a stay on the NDAA in December 2012.

Judge Katherine Forrest determined last year that the provision of the NDAA—Section 1021—was unconstitutional and issued a permanent injunction. The government not only appealed the ruling but also asked Forrest for an emergency stay. She denied the request and the government went to the Second Circuit and obtained a stay so that it could continue to use the provision to its full extent as it is being challenged.

The Justice Department went beserk, filing an appeal on the injunction on a Friday afternoon, as Chris Hedges describes in the panel discussion. The appeal was successful, and the NDAA is in effect.

The AUMF (Authorization of Military Force) of 2001 gave the president the power to snatch up accused terrorists during combat and hold them without due process. Now under the NDAA, the president can not only detain accused terrorists but their supporters as well–however the president might choose to define them–including U.S. citizens.

Carl Mayer, one of the lawyers representing the plaintiffs, says,

Almost with each passing year, the government keeps pressing the outer boundaries of who they can target. First it’s Al Qaeda, then it’s quote “associated forces.” They’re expert at making up these squishy terms like co-belligerents. They keep expanding the target for the government.

In the lawsuit the government claims it doesn’t have any citizens in detention. But Hedges thinks that the administration “aggressively” sought to appeal to the injunction imposed on the NDAA precisely because it is holding those with Pakistani-American dual citizenship in Bagram. If the injunction remained in place, the government would have been in contempt of court.

What if the DOJ has an even bigger legal problem to solve? Tangerine Bolen of RevolutionTruth says it might. The broad sweep of the NDAA looks like “a retroactive attempt to legislatively fix the fact that they didn’t have these powers [of indefinite detention of American citizens], and they’ve been using them all along.”

Like preemptive warfare and drone warfare, it may be the case that our government does what it wants and makes up legal justification for it after the fact. By passing laws like the AUMF and NDAA, both parties of Congress seem happy to give unchecked powers to the President. Will the third branch be so compliant?

As Carl Mayer says, this case comes down to the question, are we going to have a civil justice system or a military justice system?

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