U.S. Government Regains Indefinite Detention Powers

The Court of Appeals, 2^nd Circuit has permanently vacated the injunction against “indefinite detention” issued by District Court Judge Kathryn Forrest in respect of the federal government’s powers under Section 1021 of the National Defense Authorization Act 2012.

While remanding the case back to Forrester, the Second Circuit permanently prohibited Forrester from issuing another injunction in the same matter and trying to check the federal government’s powers of “indefinite detention” again.

The federal government maintains that powers to indefinitely detain a person are required to properly combat terrorism and other war situations. Given, that the country is considered to be in a perpetual state of war, journalists and activists challenged the law and expressed fears that it could be used maliciously.

The Second Circuit did not rule after addressing the constitutional issues, but rather addressed the standing of the plaintiffs and their stakes. U.S. District Judge Lewis Kaplan held American plaintiffs lacked standing because the provision, Section 1021 of NDAA 2012, “says nothing at all about the President’s authority to detain American citizens.”

So, according to the Second Circuit, U.S. citizens lacked standing from challenging the “indefinite detention” powers of the section.

At the same time, Kaplan said with respect to a Wikileaks representative that people who were not U.S. citizens lacked standing to challenge the law because they failed to show “a sufficient threat that the government will detain them.”

The provision in question is supposed to allow the federal government to detain people indefinitely if it is suspected that the person or persons concerned, “substantially supported” al Qaeda, the Taliban or “associated forces.”

Journalists and activists who in their line of work report about conflicts overseas are concerned that the law could subject them to be indefinitely detained and prevent them from exercising their constitutional rights.

However, with the Second Circuit clarifying that both U.S. citizens and non-U.S. citizens lack standing to challenge the law the federal government’s powers to indefinitely detain people becomes unchallengeable.