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A court order enjoining the United State government from using a provision of the 2012 National Defense Authorization Act has been overturned by a federal appeals court.

The injunction issued by Judge Katherine B. Forrest was against Section 1021. That section authorized the President to “use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF), including “the authority of the Armed Forces of the United States to detain covered persons.” The section said a “covered person” was “a person who was 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.” Persons detained could be held without trial “under the law of war” until the “end of hostilities authorized by the AUMF.”

It was the result of a lawsuit filed on behalf of journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, Icelandic parliamentarian Birgitta Jonsdottir, Pentagon Papers whistleblower Daniel Ellsberg, author Noam Chomsky and Tangerine Bolen of

President Barack Obama’s administration immediately appealed the permanent injunction issued by Forrest. And, on Tuesday, the US Court of Appeals for the Second Circuit concluded in their ruling that Forrest had made a mistake in her decision to grant standing to Hedges, O’Brien, Jonsdottir and Wargalla.

“Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens,” according to the court’s ruling. “While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.”

The ruling seemed to accept that the 2012 NDAA did not give the government any new authority to indefinitely detain persons. For example, a section on the “American Citizen Plaintiffs,” reads, “There is nothing in Section 1021 that makes any assumptions about the government’s authority to detain citizens under the AUMF. Rather, Section 1021(e) quite specifically makes clear that the section should not be construed to affect in any way existing law or authorities relating to citizen detention, whatever those authorities may provide.”

That is not how Forrest interpreted the “saving clause” of the provision, which is the following:

“Nothing in this section shall be construed to affect 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 captures or arrested in the United States.” [emphasis added]

Forrest wrote, “That saving clause, however, relates only to detention, specifically. Had Congress omitted the language emphasized above, the Court would not be entertaining this action as the ‘saving clause’ would then encompass the First Amendment.”

The appeals court appeared to spend more time considering whether non-citizen plaintiffs—Jonsdottir and Wargalla—had standing, especially since the district court found they “had an actual fear of detention under Section 1021 and had incurred costs and other present injuries due to this fear.”

The ruling argues, “Plaintiffs never articulate a precise theory on which they fear detention under Section 1021(b)(2)—that is, in what sense the government may conclude that they were 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.”

It then proceeds to outline what the court believes is Jonsdottir and Wargalla’s “strongest argument” that they are at risk as a result of this indefinite detention provision:

…The strongest argument would seem to be a contention that the work of Jonsdottir and Wargalla substantially, if indirectly, supports al-Qaeda and the Taliban as the term “support” is understood colloquially. The record demonstrates a number of ways in which the government has concluded, or would have a basis to conclude, that WikiLeaks has provided some support to al-Qaeda and the Taliban. This includes the evidence that the government is prosecuting Manning for aiding the enemy by his releases to WikiLeaks and news articles in the record or cited by the Jonsdottir declaration reporting on the immense amount of classified information that WikiLeaks made public, much of which is related specifically to the government’s military efforts against al-Qaeda and the Taliban.164 One perhaps might fear that Jonsdottir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well…

That should be alarming, particularly because it is unclear what information led to the conclusion that the government has a “basis to conclude” that WikiLeaks, a media organization, has provided “some support to al-Qaeda and the Taliban.”

The court goes on to add the government does not “construe” the term “substantially supported” in this context. It only applies in the context of “law-of-war” principles. The government does not think Jonsdottir or Wargalla are detainable under “law-of-war principles.” It then declined to resolve the issue of whether Jonsdottir and Wargalla were covered by the provision (which for Jonsdottir or Wargalla and others like them may find troubling).

In the end, the appeals court found no “threat of enforcement.” No evidence had been put forth that “individuals even remotely similarly situated” had ever been subjected to military detention. It further contended that Jonsdottir and Wargalla had “no basis for believing that the government” would place either of them in “military detention for their supposed substantial support.”

The most remarkable aspect of all this is still the fact that the Obama administration appealed the ruling by the district court because Forrest was out of line. As Shahid Buttar of the Bill of Rights Defense Committee (BORDC) told Firedoglake back in September 2012, “The government’s argument to stay Judge Forrest’s decision essentially insinuates that the national security establishment stands above the law.”

Indeed, a section of the government’s motion included this pompous paragraph:

… [I]n taking Congress to task for a lack of greater specificity or a scienter requirement in Section 1021(b)(2), the district court misunderstood the fundamental purpose of Section 1021(b)(2) and the AUMF; they are war authorizations conferred upon the President, not penal statutes intended to regulate and punish conduct. Throughout the history of this Nation, war authoritizations such as this simply do not, cannot, and should not provide the level of specificity that the district court believes they require. The district court’s overbroad worldwide injunction is erroneous as a matter of law and threatens tangible and dangerous consequences in the conduct of an active military conflict. The order should be stayed immediately and remain stayed until final resolution of the appeal… [emphasis added]

The Obama administration essentially argued it should have the power to make the decision to detain a person and put them in prison without having any body whatsoever question their power to do so because the country is in a state of perpetual war. And the government actually wrote in its motion, “The district court’s objections to Section 1021(b)(2) are, as stated before, at odds with the interpretation that has been given to the President’s detention authority by two Presidents, the D.C. Circuit, and the Congress itself,” as if the Judicial Branch of government had no right to challenge the Executive Branch’s authority.

But Judge Forrest had no obligation to simply follow Congress or the president. Under the separation of powers, she had every right to declare the law unconstitutional. That is what she did, and, in doing so, she validated many of the concerns of plaintiffs in the lawsuit and those citizens who supported it.

While the appeals court may have concluded that none of the plaintiffs had standing, it does not mean the issues the indefinite detention provision seems to pose to liberty have been properly addressed. It is simply another case showing how difficult it is for citizens to challenge the powers being claimed by what can best be collectively referred to as the national security state.


Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."