"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."
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