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A Judge Wisely Puts Government Power In Check

Short of capital punishment, the power to lock up its citizens is the most awesome and potentially damaging power that any government possesses.

Someone who is confined loses control over his own person. He is clothed and fed - or not - at his jailer’s pleasure. He can be forced to work, deprived of sleep, subjected to interrogation without end. He loses the freedom to decide where he will be. And, as the hours, days and years of a human life inexorably pass, he loses time - time that can never be recovered.

This is why the power of confinement has been subject to limits in our legal tradition dating back eight centuries to the Magna Carta, which forced the English crown to recognize the right of due process. Our Founding Fathers included a provision in the Constitution that the writ of habeas corpus, by which a court can release someone who is wrongfully detained, cannot be suspended except “in cases of rebellion or invasion.”

These limits hardly seem to burden our federal and state governments. With around 2.3 million people in prison, the United States has one of the highest, if not the highest, rates of incarceration the world - higher than Russia, higher than China, and far higher than other Anglo-Saxon democracies like Canada and the United Kingdom.

Yet it is not enough. Like its predecessor, the Obama administration contends that the government needs to have the power to indefinitely detain U.S. citizens who are captured on U.S. soil without charge or trial - and under military, rather than civilian custody. All this is claimed in the name of the battle against terrorism.

Against this assertion of unrestricted government might, a single federal judge has taken a courageous and principled stand in opposition.

U.S. District Judge Katherine Forrest in Manhattan recently rejected the government’s request to stay her earlier injunction blocking the detention powers provided under the National Defense Authorization Act for 2012. Forrest had previously ruled that the provision in question, Section 1021(b)(2), violates citizens’ rights under the First, Fifth and 14th Amendments.

But, as I write this, the government can still take you or me to an undisclosed location, based on its undocumented and uncorroborated assertion that we have acted in support of terrorism. This is because an appellate panel has granted the temporary stay that Forrest declined to issue, pending a decision on the government’s appeal of her broader ruling.

The Obama administration’s lawyers have claimed that Forrest’s injunction could “impose entirely unjustified burdens on military officials worldwide” and that there was no risk of impending action against the plaintiffs in the case themselves, rendering the injunction unnecessary, whether temporary or permanent.

Bruce Afran, a lawyer for the plaintiffs, observed that the government’s lawyers had to reverse their earlier position in order to make this claim. After Forrest’s original temporary injunction in May, government attorneys said they did not know whether the administration was currently using the detention provision. Afran said, “If the government is now arguing that stopping the practice would cause irreparable harm, it shows the administration was indeed using the law and violating the [earlier] injunction.”

Chris Hedges, a Pulitzer Prize-winning journalist who served as the lead plaintiff in the case, said back in May that “The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances.” He added, “They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole.”

Forrest was absolutely right to restrain the government from invoking the draconian power to detain people without charge and without trial, particularly when the government could not articulate exactly what conduct would lead to such detention. Should we take the government’s word that this power would not have been invoked, say, to arrest the reporters and editors who published the Pentagon Papers? (As an interesting aside, former military analyst Daniel Ellsberg - best known for releasing the Pentagon Papers in 1971 - was one of Hedges’ co-plaintiffs in this case.)

There is nothing in the law itself to prevent such an outcome.

Section 1021 tries to retroactively justify indefinite detentions that were executed by the George W. Bush administration (and continued under Obama) in the wake of the attacks on Sept. 11, 2001. Congress approved an Authorization for the Use of Military Force shortly after 9/11, and that ambiguous authorization was later cited by both the Bush and Obama administrations as justification for the detentions at Guantanamo Bay and elsewhere.

Section 1021 states that “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for the Use of Military Force…includes the authority for the Armed Forces of the United States to detain covered persons…pending disposition under the laws of war.”

It goes on to identify “covered persons” as “A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Forrest observed that the government was “unable to provide a definition” for key phrases in the section, including “substantially supported” or “directly supported” in context of al-Qaida, the Taliban or “associated forces.”

The government has trotted out the excuse that governments always trot out when they want restrictions on their powers lifted, which is that extreme times call for extreme measures. This is the same excuse that was used to justify the internment of Americans of Japanese descent during World War II. In hindsight, such justifications never hold water. Forrest herself wrote, “Although it is true that there are scattered cases - primarily decided during World War II - in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.”

Her decision is a victory for civil rights and civil liberties. In a way, it is also a victory over the perpetrators of 9/11, because by baiting our government into abandoning some of its central principles, the terrorists would achieve through fear that which they could never achieve through force. They make us a less free people.

Our courts don’t weaken our defenses against tyranny and terror; they are a key part of our defenses. Let’s hope the appellate judges who will review Forrest’s decision share her wisdom and fortitude.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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