Last week, it looked like a controversial provision in the National Defense Authorization Act (NDAA) would be struck down -- namely, the ability to indefinitely detain American citizens. In January, a group of seven renowned journalists, activists and thinkers including Chris Hedges, Daniel Ellsberg and Noam Chomsky sued the president over the provision and gained an ostensible victory last week. U.S. District Judge Katherine Forrest made a permanent injunction of the provision. "In short," as Hedges noted in his recent Truth Dig column, "she declared the law unconstitutional." However, the issue of indefinite detention of U.S. citizens is far from closed. The Obama administration instantly challenged Judge Forrest's decision.
Government prosecutors called [Forrest's] opinion “unprecedented” and said that “the government has compelling arguments that it should be reversed.” The government added that it was an “extraordinary injunction of worldwide scope.” Government lawyers asked late Friday for an immediate stay of Forrest’s ban on the use of the military in domestic policing and on the empowering of the government to strip U.S. citizens of due process. The request for a stay was an attempt by the government to get the judge, pending appeal to a higher court, to grant it the right to continue to use the law. Forrest swiftly rejected the stay, setting in motion a fast-paced appeal to the 2nd U.S. Circuit Court of Appeals and possibly, if her ruling is upheld there, to the Supreme Court of the United States. The Justice Department sent a letter to Forrest and the 2nd Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the 2nd Circuit for an emergency stay that would lift Forrest’s injunction. This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the President and the judiciary.
“This may be the most significant constitutional standoff since the Pentagon Papers case,” said Carl Mayer, co-lead counsel for the plaintiffs.