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Indefinite Detention Ban Stayed By Appeals Judge In NDAA Case

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Activists of Pakistan's Islamist Pasban group stage a demonstration against the U.S. on the tenth anniversary of the opening of the Guantanamo Bay detention camp, in Karachi on Jan. 12, 2012. (Photo: Asif Hassan/AFP/Getty Images)
Activists of Pakistan's Islamist Pasban group stage a demonstration against the U.S. on the tenth anniversary of the opening of the Guantanamo Bay detention camp, in Karachi on Jan. 12, 2012. (Photo: Asif Hassan/AFP/Getty Images)

WASHINGTON -- A federal appeals judge gave the Obama administration the OK to keep enforcing its indefinite detention policy Tuesday, issuing a temporary stay of a ruling that had found the practice unconstitutional.

The stay, issued by Judge Raymond Lohier of the U.S. Court of Appeals for the 2nd Circuit, lasts until Sept. 28, when a three-judge appellate panel will hear the case.

U.S. District Judge Katherine Forrest, who sits in the Southern District of New York, had ruled against the administration last week, issuing a permanent injunction against section 1021 of the National Defense Authorization Act of 2012 on the grounds that it violates the First and Fifth Amendments.

Forrest also denied a stay request, rebuffing the argument of federal lawyers that stopping enforcement of the law does "irreparable harm" to the government.

The law allows the executive branch to hold without trial any person, including Americans, "who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces."

President Barack Obama issued a statement when he signed the National Defense Authorization Act saying he would not hold people without trial and later issued regulations that bar the practice. Yet his Justice Department has vigorously defended the law, filing immediate appeals after each loss in Forrest's court.

Obama and the federal government were sued by a group of activists and journalists, including former New York Times writer Chris Hedges, academic Noam Chomsky and activist reporter Tangerine Bolen.

Forrest ruled that the law is so vague that simply by doing their usual work, the plaintiffs could conceivably be deemed to "substantially support" an "associated force" of the Taliban or al Qaeda, and thereby fall under the law's sway.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

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