Why is the Obama administration continuing to fight to detain Americans indefinitely?

The Obama administration continues to defend its right to violate the rights of the people it is supposed to govern. On August 6, Department of Justice lawyers filed an appeal in federal court against a recent ruling that temporarily enjoined section 1021 of the National Defense Authorization Act (NDAA), which gives powers to the military to indefinitely detain U.S. citizens — on U.S. soil — without charge or trial. The case, and the organizing that surrounds it, will have profound implications for basic constitutional rights, though it has been largely ignored by the mainstream media.

The so-called anti-terrorism legislation was signed on New Year’s Eve by President Barack Obama and went into effect on March 1, 2012. The NDAA had been the target of little public scrutiny in 2011, but after its passage both Congress and the Obama administration became targets of outrage among liberals and conservatives alike for the act’s alleged unconstitutionality.

As anti-NDAA sentiment spread in the blogosphere, often thanks to Occupy social media networks, journalist Chris Hedges announced on January 17 that he was suing Barack Obama for infringing on his constitutionally-protected rights.

In a widely discussed article, Hedges contended that the NDAA was “a catastrophic blow to civil liberties” and that the vague and opaque wording of the law left too much room for broad interpretation of who was to be considered:

Section 1021 of the bill defines a “covered person” — one subject to detention — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

The bill, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.”

Six others joined Hedges as plaintiffs in the lawsuit, including Daniel Ellsberg and Noam Chomsky. All of them expressed worry over the broad powers defined in the NDAA and how its provisions might apply to them, their work and their colleagues. Lawyers for the plaintiffs — Carl Mayer and Bruce Afran — agreed that their clients had the standing and the right to challenge the NDAA in court.

Plaintiff Tangerine Bolen, co-founder of the pro-transparency organization Revolution Truth, wrote in an a recent op-ed about the surreal nature of suing her own government:

We are fighting for due process and for the first amendment — for a country we still believe in and for a government still legally bound by its constitution. If that makes us their “enemies”, then so be it. As long as they cannot call us “belligerents,” lock us up and throw away the key — a power that, incredibly, this past week U.S. government lawyers still asserted is their right. Against such abuses, we will keep fighting.

The court documents reveal an ambiguous interpretation of what the government believes its powers to be over its citizens. Glenn Greenwald, a constitutional lawyer and scholar, reported on the government’s inability — some might say refusal — to further define the categories named in section 1021 before the court. The government’s reluctance to specify the broad and vague terms such as “substantially supported” and “associated forces” highlights the legal gray area that the executive branch tries to maintain surrounding the powers under its purview.

When the hearings resumed last week in federal court, plaintiffs were hoping for a permanent injunction, but the government gave notice of appeal before Forrest issued a final ruling. Regardless, the temporary restraining order remains even as there are suspicions that the government may be in contempt of Judge Forrest’s ruling because the government says it does not track those whom it detains or for what reasons. The case will be heard in appellate court before likely heading toward the Supreme Court.

The government’s actions reveal its commitment to giving the military broad policing and detention power over U.S. citizens. Hedges, in an email after the ruling, commented that the government’s actions send a clear signal: “The Obama administration is determined to continue its assault on basic civil liberties, including due process, despite interference from the courts.”
http://truth-out.org/news/item/11124-the-battle-over-ndaas-police-state-provisions-continues-in-court