Appeals Panel Undermines Free Speech Victory Over NDAA


The government is still allowed to lock up American citizens indefinitely inside military facilities, thanks to a ruling this week by a panel of three 2nd-circuit appeals judges, who granted a stay against a lower court ruling that a controversial section of the National Defense Authorization Act is unconstitutional.

Soon after the law was signed on New Year’s Eve last year, it was challenged in federal court by seven journalists and activists, including Chris Hedges, Noam Chomsky, and Daniel Ellsberg, who argued that the vague and sweeping language of the law violates their freedom of speech and right to due process.

Judge Katherine Forrest agreed, and struck down the law in a lengthy opinion last month, but government lawyers immediately sought and received a temporary emergency stay on the ruling. This week’s ruling extends the stay until the government can appeal Forrest’s ruling, likely in the next three or four months.

The appeals panel listed several reasons for granting the stay this week: Firstly, the explicit confirmation by the government in its motion for a stay that “based on their stated activities,” plaintiffs, “journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.” That explicit commitment had been conspicuously absent in arguments before the lower court.

The panel reasoned that though the NDAA allows for the indefinite detention of citizens without civil trial, it doesn’t affect our rights, because it says it doesn’t.

Lastly, the panel writes that Judge Katherine Forrest’s original ruling goes beyond overturning the NDAA provisions to actually affect the original Authorization for Use of Military Force, signed the week after 9/11. Government lawyers have argued all along that the NDAA and the AUMF are functionally identical. Judge Forrest had taken pains in her ruling to distinguish the two, noting critical language that’s brand-new in the NDAA: it’s application to people who have “substantially supported,” or, later, “directly supported,” Al Qaeda, the Taliban, or “associated forces.”

“This was a setback,” conceded Carl Mayer, a lawyer for the plaintiffs, in a conversation with the Voice yesterday. “We’re not happy with it, and we don’t agree with the decision.”

But Mayer noted that the judges who ruled on the stay won’t necessarily be the same who consider the actual appeal. Even if the second circuit were to reverse Judge Forrest’s ruling, Mayer said, his clients are prepared to take the case all the way to the Supreme Court.

“Our fight goes on,” Mayer said. “A lot of people were surprised that the Obama administration is so aggressively appealing the ruling, but so be it. Let’s rumble.”

Both sides will have submitted their briefs by December 3, and the court will likely schedule arguments for the end of the year or early January.

Here’s the full text of the appeals panel’s stay:

NDAA Appeals Court Stay

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