Gavel Grab

Editorial Partially Applauds Indefinite Detention Ruling

A New York Times editorial, entitled “A Post-9/11 Conundrum,” juxtaposes a federal judge’s ruling on indefinite detention in the name of national security, and a House vote to extend an expansion of federal authorities’ power to conduct warrantless surveillance.

“For 11 years, Americans have struggled to reach a sensible legal balance that protects both national security and civil liberties — an existential challenge made harder by the last president’s wild excesses and abuses of power in the name of combating terrorism. This week, a vote in Congress and a decision by a federal judge, Katherine Forrest, made starkly clear how much that remains a work in progress,” the editorial said.

U.S. District Judge Forrest (photo) struck down a  controversial portion of the recently enacted National Defense Authorization Act (see Gavel Grab). The disputed provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

While the editorial had questions about her ruling, it said she was “moving in the other direction” from that taken by Congress.

“The judge’s willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security,” the editorial also said. “Unfortunately, the ruling does not fully address existing case law on detention authority or an amendment to the 2011 law that should be read to protect Americans and others in the United States from indefinite detention. Those issues, and the breadth of the injunction seem certain to be appealed.”

The House vote was to extend the FISA (Foreign Intelligence Surveillance Act) Amendments Act. FISA was a topic of a JAS report entitled “Courting Danger: How the War on Terror Has Sapped the Power of Our Courts to Protect Our Constitutional Liberties.”

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