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NDAA Indefinite Detention Provision Challenged In Federal Appeals Court

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Obama administration lawyers defended the military's indefinite detention powers in Manhattan federal court on Wednesday, claiming civil liberties advocates shouldn't worry about their rights being violated under the National Defense Authorization Act of 2012.

But a lawyer for the government's opponents, Bruce Afran, spoke out against the "dictatorial" power of indefinite detention under the law, saying at a press conference after the hearing that "if this power is upheld, it means that Americans can be subject to military imprisonment."

The NDAA allows the military to indefinitely detain anyone who "substantially supported" al Qaeda or its allies. At issue during the Wednesday hearing was whether US citizens are included under that definition -- and what exactly it means to "substantially" support al Qaeda. Three judges from the Second Circuit Court of Appeals peppered both sides with questions during the oral arguments, but seemed reluctant to wade into the constitutional issues that civil liberties advocates have raised.

The plaintiffs in the case, who include former New York Times reporter Chris Hedges and Pentagon Papers whistleblower Daniel Ellsberg, argue that the standards by which the government may detain al Qaeda supporters under the NDAA are so vague that journalists and others reasonably fear detention merely because they have been in contact with terrorists.

U.S. District Court Judge Katherine Forrest agreed with them in September, striking down the indefinite detention language as an unconstitutional affront to First Amendment free speech rights. Government lawyers quickly made an emergency appeal of the ruling, charging that it threatened "irreparable harm to national security." The Second Circuit Court of Appeals stayed the decision and ordered the Thursday hearing to be held.

Inside the packed courtroom, U.S. Department of Justice lawyer Robert Loeb went on the offensive against Forrest's ruling, claiming that it was based on "a fundamentally flawed reading of the law." Hedges and his co-plaintiffs, he said, had no reason to fear for their rights because "this statute simply does not apply to them."

Loeb pointed to a section of the law that claims it does nothing to change the detention rules for people captured in the U.S. under the 2001 authorization for the use of military force against al Qaeda. Hedges and his co-plaintiffs have not challenged that underlying law.

That subsection "expressly exempts our citizens," Loeb claimed. But Judge Raymond Lohier seemed skeptical, saying the subsection "doesn't exempt anything" since it claimed not to change the law.

Lohier and his fellow jurists were nevertheless no easier on the plaintiffs in the case. Lohier said they were "obliged" to avoid difficult constitutional problems when it was possible to dismiss cases based on standing, and suggested he would rather not decide a case based on "ambiguous inferences" made from the section supposedly exempting citizens.

In an unusual move, Carl Mayer, an attorney for the plaintiffs, "dedicated" his arguments to the descendents of Fred Korematsu and other Japanese-Americans who were detained during World War II. The lessons from their experience, combined with the NDAA's language about indefinite detention, he said, were enough to give his clients pause before expressing their free speech rights. Mayer highlighted in particular the government's failure at trial to simply state that Hedges and others could not be detained under the NDAA.

The Obama administration's lawyer, Loeb, said he could not give the plaintiffs "carte blanche." But he noted that it was "quite telling" no one had been held for acts of independent journalism during the more than ten years since Sept. 11.

Even if the judges in the case decide Hedges and his co-plaintiffs have reason to be fearful, however, they may find another reason to uphold the NDAA. In 2010 the Supreme Court ruled that the government could proscribe "material support" for terrorist groups, including merely speaking to them. Both the government and the judges made reference to that ruling.

In a sign of just how highly contentious the NDAA has become, a lawyer for hawkish Republican Sens. Kelly Ayotte (N.H.), Lindsey Graham (S.C.) and John McCain (Ariz.) also stepped in during the oral arguments to defend the government's position. Opponents, meanwhile, flooded the courtroom and overflow rooms to capacity, demonstrating against what they see as an unconstitutional overreach in the war on terror.

Steve Vladeck, a professor at the American University College of Law who has expressed skepticism about Forrest's decision, said before the hearing that he expects the Second Circuit to uphold the NDAA, or at the very least send the case back to her to reconsider it.

"The plaintiffs here are at the margins of the most broad reading of the statute," he said.

CORRECTION: An earlier version of this article incorrectly referred to the government lawyer's name and a government mention of "black vans" being used to pick people up. The reference was to targets for detention, not the government itself.

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