The Justice Department is appealing a federal judge’s injunction on a key provision of the National Defense Authorization Act, Reuters reported on Monday. The injunction, levied by New York Southern District Judge Katherine B. Forrest in May, found section 1021 of the NDAA to be in violation of the First and Fifth Amendments.
Section 1021 provides the United States military with the authority to indefinitely detain anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces.” The plaintiffs who originally challenged that provision—a coalition including Noam Chomsky, Pentagon Papers whistleblower Daniel Ellsberg, journalist Chris Hedges, and Wikileaks-linked Icelandic politician Birgitta Jónsdóttir—said that the vagueness of the provision opened the door for the military to start detaining American citizens without provocation. “The right of the US government to detain anyone, anywhere without charge until ‘the end of hostilities’ is now codified into law,” says a statement on the coalition’s website.
In its appeal, the U.S. Attorney’s Office rejects this reasoning, arguing that Section 1021 does not represent an expansion of the government’s detainment policy. The provision, according to the appeal, “does not confer any new or additional authority” not already included in the Authorization for Use of Military Force, passed by Congress shortly after 9/11. As evidence, the Attorney’s Office cites remarks made by members of the Senate, as well as a presidential signing statement in which President Obama wrote, “This section breaks no new ground and is unnecessary. The authority it provides was included in the 2001 AUMF.”
The plaintiffs challenging Section 1021 had previously argued that the signing statement was not a sufficient safeguard against increased detention powers. Judge Forrest, in her opinion setting forth the injunction, explicitly rejected the view that Section 1021 “has no independent meaning” from the AUMF “and adds absolutely nothing to the government’s enforcement powers.”
On May 10, the House Armed Services Committee approved a 2013 version of the NDAA. This version includes the language about detention from Section 1021, but adds that neither the AUMF nor the NDAA “shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained.”