"President Obama was a late convert to the Bush Administration's antiterror detention policies, but his latter-day position has now been vindicated. A panel of the Second Circuit Court of Appeals voted 3-0 last week to reject a lower court order that would have limited the ability of Congress to authorize the President to detain enemy combatants and those who aid and abet them.
"Hedges v. Obama was brought by former New York Times stalwart Christopher Hedges and other anti-antiterror activists who claimed that the Obama Administration's use of the National Defense Authorization Act was unconstitutionally vague. Because the law allows the government to detain those who "substantially support" terrorism or "associated forces," the plaintiffs said they were afraid they could be imprisoned because of their work.
"This was preposterous, but in September District Court Judge Katherine Forrest declared section 1021 unconstitutional. In overturning her decision, the Second Circuit panel wrote that the NDAA says nothing about the feds' ability to detain American citizens, and "the non-citizen plaintiffs have failed to establish a sufficient basis to fear detention under the statute to give them standing to seek preenforcement review."
"That point was made at oral argument by Baker Hostetler's David Rivkin, who represented Senators John McCain, Lindsey Graham and Kelly Ayotte as amici in the case. The NDAA explicitly says that "[n]othing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force."
"The plaintiffs say they'll appeal to the Supreme Court, but don't expect the Justices to take the offer. The legal war on the war on terror continues, but the Constitution gives the President broad wartime powers. As for Judge Forrest, an Obama appointee, she ought to be embarrassed to have been overruled so decisively."