CERDAFIED - US Court of Appeals for the Second Circuit Judge Raymond Lohier intervened Monday night and ordered a stay on the permanent injunction filed by Judge Katherine Forrest. A three-judge appeals court panel is expected to hear the issue, until then, the stay will remain effective until September 28.
Obama expressed a “serious reservation” regarding the provisions that “regulate the detention, interrogation, and prosecution of suspected terrorists.” This neither stopped him from supporting the bill, nor stopped him pursuing the reprehensible power of section 1021, after a court ruling found it unconstitutional. Judge Forrest ruled that “Congress may pass no law abridging rights guaranteed by the First Amendment, enjoining enforcement of a statute that does.”
Barack Obama authorized H.R. 1540, the "National Defense Authorization Act” and issued a statement addressing the vile powers of the bill.
“Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities.”
You may be asking yourself why the president would pursue the powers of the 1021 so intensely, if it offers no further powers than the AUMF? Judge Katherine Forrest goes to the heart of that question in her decision;
“This proceeding directly implicates both the AUMF, signed into law on September 18, 2001, and § 1021(b)(2) of the NDAA because the Government’s central challenge to plaintiffs’ standing is that their fears of detention cannot be reasonable since § 1021(b)(2) is simply a reaffirmation of the AUMF. In other words, the Government contends § 1021 does nothing new. (See, e.g., Gov’t Trial Mem. at 6-7); Tr. II at 82-84. Repeatedly throughout this litigation, the Government has argued that the AUMF is coextensive with § 1021(b)(2). The Court preliminarily rejected that position in its May 16 Opinion, and does so again now.”
Passed in September 2001, the AUMF states:
“The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
“Detention of all of those who have been detained (the facts regarding some subset of detainees can be gleaned from habeas petitions; but it is impossible to know the bases on which the majority have been detained). There is no requirement for openness in that regard--no list to which one can refer, and the Government chose not to put in any evidence to prove this point. In fact, when the Court asked the Government whether anyone had been detained under § 1021(b)(2) for activities protected by the First Amendment, counsel conceded that for the most part, he did not know.”
Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit, with other journalists, writers, and activists, in order to permanently stop section 1021 of the NDAA.
Journalists have to worry about the vague definitions of those subject to indefinite detention. Their job may require them to travel to war torn countries, gather information from suspected hostiles or associates of suspected terrorists, and report on it. If you honest about the impacts of US actions and policies in pursuit of “terrorists” you may just find yourself detained as an abettor.
"First Amendment rights are guaranteed by the Constitution and cannot be legislated away. This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention." Judge Forrest wrote.
With protests expanding globally, and violent clashes between police and protesters continuing, many believe that Obama wants to rely on section 1021 to justify arrests of protesters and essentially block protesting.
Bruce Afran, a co-counsel representing the plaintiffs in the case Hedges v Obama, made a statement posted on Chris Hedges blog, “A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots,”
Commemorating the one-year anniversary of the Occupy Wall Street movement, protesters in New York City gathered and more than 180 protesters were detained by the NYPD. The American Civil Liberties Union, filed a Freedom of Information Act request, and has confirmed that the FBI has been monitoring Occupy protests, "in the interest of national defense or foreign policy."
Both Judge Forrest and Lohier were appointed to the court by President Obama. The question is whether Lohier can render a decision that is based on the Constitutionality of the issue, or shall he succumb to the political pressures? Viva La Forrest, who proved herself worthy of her appointment!
The Obama administration threatened to appeal Judge Forrest’s decision immediately after she issued her ruling. Monday they followed up on that threat, winning their emergency stay. Obama’s attorneys claimed that Forrest’s ruling was an “extraordinary injunction of worldwide scope.”
Yet these same attorneys offered no witnesses during the trial, offered no evidence to support its case, offered no definitions requested by Judge Forrest, and relied only on cross examination and faulty legal argument.
Attorney Carl Mayer, a counsel for Hedges and his co-plaintiffs said, “This may be the most significant constitutional standoff since the Pentagon Papers.”
Hedges warns, “The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush. Obama has refused to restore habeas corpus. He supports the FISA Amendment Act, which retroactively makes legal what under our Constitution have traditionally been illegal — warrantless wire tapping, eavesdropping and monitoring directed against US citizens.
“He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate US citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw US citizens into military prisons, where they will have no right to a trial and no defined length of detention.”
Judge Forrest forewarned the government in her ruling, “The law considers injury to First Amendment rights to constitute irreparable harm. Elrod, 427 U.S. at 373; Salinger v. Colting, 607 F.3d 68, 81-82 (2010). In addition, imprisonment without trial and for an indefinite period certainly constitutes irreparable harm.”
For now we wait and watch Lohier who is under extreme scrutiny and political pressure, and his actions shall forever determine how he is perceived by America.
(Lisa Cerda is a contributor to CityWatch, a community activist, Chair of Tarzana Residents Against Poorly Planned Development, and former Tarzana Neighborhood Council board member.) -cw
CityWatch
Vol 10 Issue 76
Pub: Sept 21, 2012
