Earlier this week, New York District Court Judge Katherine B. Forrest made some clarifying remarks on an injunction she made in May, saying that her ruling of indefinite detention of Americans under terrorist suspicion as unconstitutional applied to everyone, not just the plaintiffs involved.
“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote in her memorandum opinion and order. “This order should eliminate any doubt as to the May 16 order’s scope.”
The New York Times reports Forrest's May 16 injunction was brought to her by journalists and activists fearing they could be detained under the National Defense Authorization Act of 2011. The Obama Administration believed her order would only apply to the plantiffs, including journalist Chris Hedges and Wikileaks activist Brigitta Jonsdottir. The Times reports the Administration "saying that the plaintiffs lacked legal standing to challenge the law and that it was 'extraordinary' for her to have restrained future military operations that might be ordered by the commander in chief during wartime."
Still, in her clarifications, Forrest maintained her initial order that Americans should be not indefinitely detained and elaborated to include that she meant all Americans -- not just the plaintiffs. In her memorandum she writes, "this order is intended to leave no doubt on that issue."
Part of the provision now blocked by Forrest include people who "were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies." Forrest's order does not block the detention of those participating in or helping in with the 9/11 attacks.
The defense authorization bill passed in the House last month included a provision for indefinite detention of Americans. The bill is currently being considered by the Senate.
A recent editorial by USA Today condemning the provision reminds us of President Barack Obama stating that this measure wouldn't be used against citizens. The counterpoint to this opinion, also in USA Today, maintains such provisions "do not alter or endanger our constitutional rights. Rep. Mac Thornberry (R-Texas) also condemns amendments by House representatives that try to modify the provision. Rep. Thornberry writes:
Proposals such as the amendment by Reps. Adam Smith, D-Wash., and Justin Amash, R-Mich., would change the framework by requiring that every terrorist, whether here legally or not, be granted the full constitutional rights of an American citizen. Granting foreign terrorists additional privileges — including the right to remain silent — would make it harder to get the timely information we need to prevent attacks. It would also mean that for the first time, we would voluntarily remove lawful options from our counterterrorism arsenal.
Even with the New York District Court weighing in on the issue and deeming it unconstitutional, other higher courts have yet to pipe up.