Skip to comments.Obama fights ban on indefinite detention of Americans
Posted on 08/07/2012 9:46:30 AM PDT by LucianOfSamasota
The White House has filed an appeal in hopes of reversing a federal judges ruling that bans the indefinite military detention of Americans because attorneys for the president say they are justified to imprison alleged terrorists without charge.
Manhattan federal court Judge Katherine Forrest ruled in May that the indefinite detention provisions signed into law late last year by US President Barack Obama failed to pass constitutional muster and ordered a temporary injunction to keep the military from locking up any person, American or other, over allegations of terrorist ties. On Monday, however, federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a claim with the 2nd US Circuit Court of Appeals in hopes of eliminating that ban.
The plaintiffs "cannot point to a single example of the military's detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention," Obamas attorneys insist. With that, the White House is arguing that as long as the indefinite detention law hasnt be enforced yet, there is no reason for a judge to invalidate it.
Reuters reports this week that the government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment. Separate from Judge Forrests injunction, nine states have attempted to, at least in part, remove themselves from the indefinite detention provisions of included in the National Defense Authorization Act for Fiscal Year 2012, or NDAA.
(Excerpt) Read more at rt.com ...
"There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in her 68-page ruling. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention."At the time Just Forrest made her injunction, attorney Carl Mayer told RT on behalf of the plaintiffs that, although he expected the White House to appeal, It may not be in their best interest.
[T]here are so many people from all sides of the political spectrum opposed to this law that they ought to just say, 'We're not going to appeal, Mayer said. "The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans."
The original plaintiffs, who include Pulitzer Prize-winner Chris Hedges, have asked Just Forrest to make her injunction permanent. Oral arguments in the case are expected to begin this week.
WTF??? You don't wait until it's raining to fix the hole in the roof.
Americans should not fall under this law. If they enforce this on Americans, it violates the Constitution.
I remember BOzo saying he signed NDAA but was “uncomfortable with some of the language in the bill.” Of course the MSM went along with that narative even though they knew the opposite was true. If you haven’t seen it yet, Youtube “Senator Carl Levin regarding NDAA 2012”. They might try to scrub the net of all evidence of that one day so hopefully some people are storing proof of such things.
It's called "ripeness."
I find the whole notion as stated that the Fed gov is now "enjoined" from arresting people as specified in the act ludicrous: if the gov has armed men willing to obey, the judiciary can do nothing.
The real issue which absolutely no one will talk about is why do we have allow entry into our country of all kinds of terrorist supporters, and why can't the gov even discuss Islamic terrorism?
Heil, Obama! They want to get us before we get them.
Let’s look at this from the perspective of American citizen vice illegal alien entering the country to do harm.
The former has rights and immunities FROM the governments abilities to do anything apart from the law and constitutional requirement for such arrest, seizure etc. The later is already subject to all the above.
I for one, do not wnat citizens treated the same as avowed alien terrorists. Do you believe the constitution is the law of the land? That a republican form of governemnt is the only method of lawful governemnt in the US (per the constitution)? Do you think the government is limited by the people? If you do, then you may be interested to find out that your federal governemtn considers you a potential domestic terrorist and therefore, subject to the arrest and unlimited detention provisions/no trial/no habeus corpus/no due process(confront your accusers, have access to eidence used against you, defend yourself, jury by of peers etc, cruel or unusual punishment etc) provision of the NDAA of 2012.
This is about us folks, not foreign terrorists who want to burn DC and your neighborhood....
Either we(citizens/persons subject to the jurisdiction of the US) all have such rights, or none of us do.
To do this all the government has to do is label you a terrorists. Our homeland security under Janet Napolitano has already labeled soldiers, conservative organizations (that means us at Free Republic) constitutional strict constructionists and other patriotic organizations as potential terrorists. I do not trust any president of any party with this kind of power.
Muslims were not on her terrorist list, and this Administration has not labeled Physician Major Nissan (The killer at Fort Hood) a terrorist. They have called this work place violence.
I guess he’ll just have them taken out by a drone instead.
Once guns are banned, anyone who refuses to turn them in will be automatically labeled.
I disagree over the need for “ripeness” in this case, because as part and parcel to this the military detains, not arrests, there is no indictment nor civilian trial, and detainees have little or no right to habeus corpus.
Almost to the very beginnings of the United States, when the US Navy detained foreign pirates, the federal courts still demanded that those pirates be returned to the US for federal trial, not tried and executed by Naval officers on location, which was the common practice by the British Navy.
However, this created a paradox, in giving constitutional rights to foreigners during times of what amounted to war.
During the US Civil War, Lincoln carried out a multitude of unconstitutional acts against US citizens, that only long after the war did congress and the courts address, with mixed results, including the Posse Comitatus Act.
W. Bush decided to approach the situation differently, by using Gitmo, Cuban territory under US lease and control, for foreign prisoners under US military jurisdiction, while keeping any US citizen terrorists in the US courts. A very crafty way to address the problem.
Obama and company, however, have muddied the waters by trying to strip American citizens of their constitutional rights, so as to treat them more like foreigners under the W. Bush policy. This won’t fly, constitutionally.
Congress and the courts cannot negate rights “endowed by the Creator” in the US. While they can suspend them temporarily, this must be adjudicated by the courts. The rights themselves are never lost.
You make a very good point: Since the imprisoned person will have no recourse to a lawyer, how can the law be challenged after an arrest?
Courts issue declaratory judgments all the time. If one's freedom of action is restricted by an unconstitutional law you can file for declaratory relief.
Well said but you missed one point. Zero and this admin do not care about the Constitution, the Rule of Law or the citizens of this country, they have already murdered citizens without trial.
It does make a lot of difference if Americans are in America, or if they are in foreign countries.
In the latter, unless they can be extradited, kidnapped by US Marshals, which they are now authorized to do, or taken as prisoners by the US military; *and* they are engaged in providing support to an enemy of the United States; there is little else the government can do but to kill them as if they were enemy combatants.
Holder actually advanced a reasonable inclusion to the presidential ability to order the killing of an American overseas, that they must be an “essential part of an imminent attack against US forces or America itself.”
That is, if they are an American journalist who happens to be blown up while attending a conference of top al-Qaeda leaders, they are not particularly targeted, they are collateral damage.
However, if the purpose of the bomb is to take them in particular out, they must be actively engaged in treason, and a principal to at least the possibility that an attack is about to be carried out.
If they were killed by US soldiers firing guns it would not be considered murder, even if the enemy was known to be an American. The only difference is that a drone is a risk-less, and totally voluntary attack. That is not a big enough difference to matter.
Arguments have been made for years that bomber aircraft crews are committing war crimes by bombing, in that if their side has air superiority, the risk to them is minimal, and they cannot see those they kill. So they are also acting in an entirely voluntary manner.
If someone is an enemy combatant they have to be in combat or have been in combat against US Forces. The people that our government has killed with drone strikes have not been. Our government has murdered US Citizens.
As long as we allow the government to define the actions that they can do we are all eventually going to become a target.
“If someone is an enemy combatant they have to be in combat or have been in combat against US Forces.”
Okay, what is your definition of combat? If you limit it to just those Americans actively throwing bullets at our soldiers, then those Americans are almost unimportant to the enemy. There is almost nothing they could do that some illiterate goat herder couldn’t do, unless the American had special military training from a modern military.
However, if they are advising enemy leaders, giving them useful information on how to attack American citizens in America, how to build bombs, how to hide their communications, what foreign leaders to assassinate, etc., they are a major threat. They might not ever fire a shot at an American, but be responsible for the deaths of thousands of Americans.
And these latter group are Americans who have been targeted in drone strikes. They are enemy combatants in a rear area of the FATA in Pakistan, where they cannot be arrested, are not under the control of any government, and are invariably with high level enemy leaders planning operations against both our military and our civilians when they are killed.
This is a very restrictive license to kill American citizens; because almost anywhere else in the world, outside of Somalia or the Maghreb region of northwest Africa, either the US has the *ability* to effect arrest, or at least there is a government that can compel an errant American to stop making war on America, or give aid and comfort to our enemies.
In all but these circumstances, such drone strikes are unwarranted.
The strikes were in Yemen so there is no reason not to apprehend the citizens. Also our own government helped train Osama Bin Laden and he has used the knowledge to train others to kill us. Can we just kill the ones who did this, no we must follow the law.
Allowing the government to ignore the law once just leads to more injustices down the road. That is why we have cops that can kill people and animals in botched raids here in the US. The government is not following the Constitution and we the citizens are paying for it.
Those killed in Yemen include “American” Anwar al Aulaqi:
“According to U.S. government officials, he was a senior talent recruiter and motivator who was involved with planning operations for the Islamist militant group al-Qaeda.”
“U.S. officials say that Al-Aulaqi spoke with and preached to a number of al-Qaeda members and affiliates, including three of the 9/11 hijackers, accused Fort Hood shooter Nidal Malik Hasan, and “Underwear Bomber” Umar Farouk Abdulmutallab; he was also allegedly involved in planning the latter’s attack.”
“The Yemeni government began trying him in absentia in November 2010, for plotting to kill foreigners and being a member of al-Qaeda. A Yemenite judge ordered that he be captured “dead or alive”.”
But the government of Yemen was unable to capture him.
“According to U.S. officials, al-Aulaqi was promoted to the rank of “regional commander” within al-Qaeda in 2009. He repeatedly called for jihad against the United States. In April 2010, American President Obama authorized al-Aulaqi’s targeted killing.”
Yep, a combatant by about any definition.
The US government did not fund, nor in any way train OBL.
Bottom line: I am of the mind that the US government should have a free hand, within the Geneva Conventions, to kill as many foreigners in foreign countries as necessary to protect and defend the US. And this also applies to US citizens beyond their legal reach, who are providing “aid and comfort”, and knowledge, to the enemy they can use to attack us.
However, this being said, *within the US* we are not at war, so there is no excuse for the vast majority of Patriot
Act and subsequent powers that are almost exclusively used against US citizens with no connection whatsoever to terrorism.
And I do not believe there is any inherent conflict between these two ideas.
By the governments own criteria I fit the profile of a potential terrorist so without more evidence no he is not a enemy combatant. Also killed in a seperate drone attach was his 16 year old son, so I am not willing to give the government that much power.
From this link http://newsone.com/1205745/cia-osama-bin-laden-al-qaeda/
National Security Advisor Zbigniew Brzezinski visited Afganistan in 1979 and met with Bin Laden and even took a picture with him. Brzezinski would tell the mujahideen
We know of their deep belief in God, and we are confident their struggle will succeed. That land over there is yours, youll go back to it one day because your fight will prevail, and youll have your homes and your mosques back again. Because your cause is right and God is on your side.
I will not give the power, that you would give, to the government, a free hand no way.
As Benjamin Franklin said
They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
I do not trust the government if you wish to good luck.
I do not trust the government particularly much either. But my emphasis is always that there must be two points of view: one being how we treat hostile foreigners outside the reach of all but American military power, and a different one for how we treat American citizens in the United States.
America has very explicit rules for how it deals with hostile foreigners. The Geneva Conventions themselves have as their origin the US Civil War General Order 100. Yet even the Geneva Conventions are clear about non-uniformed irregular combatants and their treatment.
And if an American citizen leaves the US and throws their hand in with foreigners hostile to the US, they are committing treason in time of hostilities. They and their hosts are subject, by international law, to military force. And, I might add, to field trial and execution if captured.
And, as far as 16 year old Abdul-Rahman al-Awlaki is concerned, he appears to have been collateral damage in an attempt to kill Ibrahim al-Banna, an Egyptian believed to be a senior operative in al-Qaeda’s Yemen affiliate.
So all that does is serve as notice that if you are a harmless, 16-year-old boy, it is unwise to accompany your father to an anarchic part of Yemen in the middle of a civil war, and hang out with major combatant figures.
Because if you get killed, it’s like, bad luck.
Our government is as much the enemy as any terrorist or foreign country. If we give them an inch the will and have take many miles. A Citizen is a citizen wether he or not, we cannot allow killings of fellow citizens here or any where.