Gavel Grab

Controversial Indefinite Detention Provision Blocked by Court

A federal judge has issued a preliminary injunction blocking enforcement of part of the recently enacted National Defense Authorization Act. The highly controversial provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

A group of civilian activists and journalists contended that they fear detention under the provision, which is part of legislation that President Obama signed in December. U.S. District Judge Katherine Forrest of New York (photo above) ruled in their favor, according to a Reuters article.

“In the face of what could be indeterminate military detention, due process requires more,” Judge Forrest said. She said a portion of the law  has a “chilling impact on First Amendment rights.” She noted, according to a Bloomberg article, “An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.”

In Salon, Glenn Greenwald praised Judge Forrest’s decision as “amazing” and “a sweeping victory for the plaintiffs,” as it rejected the chief arguments advanced by Obama’s Department of Justice. Greenwald elaborated:

“I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend . . . .  [T]his is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles. . . .” 

In the New York Times’ Opinionator blog, meanwhile, Linda Greenhouse asked whether the Supreme Court’s justices are saying “Goodbye to Gitmo,” that is, whether the court will hear any new appeals submitted recently on behalf of terror suspect detainees at the naval base at Guantanamo.

“It’s hard to imagine good law coming out of a renewal of the Supreme Court’s interest at this point,” Greenhouse wrote; however, she added, “[I]t is for institutional reasons that I hope the court feels a responsibility to get back into the game.” Greenhouse suggested it is bad for the judiciary to allow certain executive branch assertions to go uninterrogated.

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