We will rue the day we allowed this to happen.

the law did not allow for plaintiffs indefinite detention, concluded plaintiffs had no standing to sue, and therefore tossed the suit. Supreme Court declined to review 2nd Circuit ruling

Let's recap, since it seems tricky to some:

What's not to like about that?

Absolutely not." Ok, then what is the criteria for the decision? "It lets the government indefinitely detain people it deems to have "substantially supported" al Qaeda, the Taliban or "associated forces."" Do you know what "it deems" means? It means anyone they want. The law allows them to repeat what was done to Jose Padilla. All they have to do it "deem it so."

... Defendants-appellants seek review of a district court decision permanently enjoining enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on the government’s authority to detain the American citizen plaintiffs and that those plaintiffs therefore lack Article III standing ...

... The controversy over Section 1021 was immediate. The government contends that Section 1021 simply reaffirms authority that the government already had under the AUMF, suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They are journalists and activists who allegedly fear that the government may construe their work as having substantially supported al-Qaeda, the Taliban, or associated forces ... The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021 ...

To reach this, the 2nd Circuit examined both case law and the legislative history:

... Senator Feinstein observed that the dispute over Section 1031 boiled down to “different interpretations of what the current law is.” Specifically, she noted that

Senator Feinstein went on to state that, through her second proposed amendment, the two camps would agree to disagree:

Section 1031 of the Senate bill became the conference report’s Section 1021 ...

(Emphasis added)
http://legaltimes.typepad.com/files/hedges.pdf

"It seems you still haven't read the 2nd Circuit decision:" This discussion is done.

And because the basis for lack of standing is that the President is not empowered to detain U.S. citizens under the statute -- then this you say is a victory?

At best, those sentences are dicta and without precedential value.

Since the courts try quite hard not to find statutes unconstitutional, and are extraordinarily likely to defer to the other branches in questions regarding military conflicts, a possible outcome then would have been an undesirable ruling that arbitrary indefinite detention was constitutional

This doesn't go back decades or even centuries.

This goes back to 1215.

I can't even begin.

nothing beyond this section does not change existing law (without ever specifying what the existing law was) -- which is exactly why the President's signing statement described the section as meaningless

Deciding to play complete idiots for the purposes of the suit, citizen plaintiffs chose to adopt the rightwing crackpot stance that existing law would allow their arbitrary indefinite detention (which I agree would contravene our ancient rights and privileges)

As NDAA section 1210 never codified any view of existing law, plaintiffs were effectively insisting the court break with standard practice and determine the current status of the law, without a material issue before the court and with multiple possibly conflicting rulings in existence; the court naturally declined to do so

supports have a different opinion if Bush was president?

IMO habeas corpus is dead. It was badly wounded by Pres Bush and Pres Obama has now driven a stake thru it's heart.

I fail to understand why people refuse to accept reality. The Constitution is crystal clear and completely unambiguous about Habeus:

The country has not been invaded. The last rebellion ended in 1865. There is NO LEGAL justification to suspend the Great Writ, and yet, here we are.

From Wikipedia: "The plaintiffs contend that Section 1021(b)(2) of the law allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations."

And you call the plaintiffs "rightwing crackpot". You've gotten it backwards. The rightwing started this. The rightwing loves indefinite detention ala. Jose Padilla. The plaintiffs are seeking freedom from the threat of arbitrary indefinite detention.

The plaintiffs wanted the SCOTUS to find the NDAA's indefinite detention to be unConstitutional. But the Robert's Court told the plaintiffs that they would not be allowed to challenge the law until after they got arrested.

You are defending Bush's indefinite detention. You are defending the Roberts Court. You are defending indefinite detention.

The current law allows the government to arrest and detain American citizens just like Bush did with Padilla. And you approve.

a rightwing crackpot view of the law

Of course, you are correct that the rightwing loves indefinite detention; and it is further true that rightwing authoritarians advance the view that the President has the authority to indefinitely detain anyone for any reason -- an abominable view which I expect everyone here finds thoroughly abhorrent

Sadly, and in the most moronic fashion, the plaintiffs in Hedges v Obama themselves rushed into court, arguing that this rightwing crackpot view of the law WAS (in fact) the law. What an idiotic courting of catastrophe that was! Suppose the court had upheld their statement of the law, saying Yes, the President has the authority to indefinitely detain anyone for any reason? What then? You say, The plaintiffs are seeking freedom from the threat of arbitrary indefinite detention, and perhaps in their minds that was their intent, but had their theory of the law prevailed, it would have had exactly the opposite effect from what you claim

Fortunately, the court was wiser than the plaintiffs and declined to find that the law was as the plaintiffs stated. The court confined itself here to the issue raised by the plaintiffs (namely, the meaning of the NDAA text) here, examined the text and the legislative history, and then properly found that the NDAA language simply meant that the NDAA did not affect in any way the existing law with regard to indefinite detention of US citizens, law resident aliens, or persons arrested/captured inside the US. The court was not required to sort out, and so did not attempt to sort out, the intricacies of the law in all its details

At best it is ambiguous. I agree with the plaintiffs that the ambiguity should be cleared up. Otherwise they have to worry that what they print might be "deemed" as helping the terrorists. If that should happen, then they could be arrested and detained and tortured like Jose Padilla. The SCOTUS in both the Padilla and Hamdi, DID NOT CLEAR UP THE QUESTION of indefinite detention.

This ruling did nothing more than tell the plaintiffs that they didnt have standing, meaning they couldnt challenge the law until it has been used to arrest and detain. This was bull crap by the SCOTUS. They failed in both Padilla and Hamdi. They like the indefinite detention.

Notice it was liberals fighting this and a right-wing court that you commend that wants to leave the law, as I said, at best, ambiguous. And you call the plaintiffs concern about un-Constitutional power given to the President as "rightwing crackpot view".

There is nothing to stop another case of arrest, detention, and torture like Padilla. Maybe Obama wont use the power but Jeb Bush might.

Habeas Corpus, one of the foundations of our freedoms, has been severely injured if not killed entirely.

anyone who is not a U.S. citizen and who is simply accused of aiding Al Qaida FOREVER.

American democracy was built on the Bill of Rights, which is now pretty much null and void thanks to things like the NDAA.

in the 2nd Circuit decision, is this: the rightwing wackadoodles in the Senate wanted the NDAA to explicitly codify their view of the law (namely, that the President had vast and sweeping indefinite detention powers); the saner civil libertarians wanted the NDAA to explicitly codify their view of the law (namely, that the President had no such indefinite detention powers); and finally, Feinstein proposed compromise language, saying that the NDAA didn't change the law with respect to US citizens, lawful resident aliens, or persons arrested or captured in the US (whatever that law is); the President's signing statement asserted the Executive view that the compromise language was superfluous and really said nothing helpful whatsoever. In other words, the NDAA effectively left that particular stalemate to the courts

So the NDAA does not, in fact, authorize what you claim with respect to anyone who is not a U.S. citizen and who is simply accused of aiding Al Qaida: it certainly does not authorize it (for example) with respect to lawful resident aliens or persons arrested or captured in the US -- the NDAA simply says (unhelpfully) that the NDAA does not change current law, whatever the current law might be

With regard to other persons -- that is, those who are arrested or captured abroad but are neither US citizens nor lawful resident aliens -- the NDAA applies to

The 2nd Circuit did indeed say Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad but pointed out that the matter remains unsettled: federal judges reached divergent conclusions about the scope of AUMF detention authority. For this reason, the court conceded that the foreign plaintiffs in Hedges v Obama might have an argument but noted that those plaintiffs had failed to make their argument: presumably those plaintiffs may refile if they wish to argue that there is some good cause to suspect they could be detained indefinitely on suspicion of being part of or substantially supported al-Qaeda, the Taliban, or associated forces .. engaged in hostilities against the United States or on suspicion of having committed a belligerent act or .. directly supported such hostilities in aid of such enemy forces

It is, of course, true that the legal theory of indefinite detention, that you advance, is not a product of your own feverish imagination -- but that theory is not settled law: it is merely the rightwing wackadoodle theory of detention. This is why I say you wouldn't be a good lawyer: nobody of sound mind goes into court, with the law unsettled, and argues in favor of the legal theory s/he opposes. Hedges v Obama was an appallingly stupid suit. Had the court had adopted the plaintiffs' interpretation of the NDAA but found the NDAA constitutional, under that interpretation, we would face an opinion that did allow arbitrary indefinite detention. Fortunately, the Executive and others argued against the plaintiffs' interpretation

The accurate and informative assertion is not the NDAA allows for arbitrary indefinite detention, but rather We are concerned that the courts will adopt the rightwing theory that the AUMF allows arbitrary indefinite detention -- which, at least, puts the emphasis back on genuine issues, such as the unsettled scope of indefinite military detention authority under the AUMF, and the fact that interpretation of the law depends somewhat on who has political control

Of course, arbitrary indefinite detention should matter to us, and we should make every possible effort to avoid any repeat of the idiocies and horrors of the Bush era -- but we can only be effective if we think about such topics clearly and accurately

Based on what evidence is a person covered? A trial in open court under the standard rules of due process, or at a military tribunal with simpy an accusation by secret accusers and/or based on testimony from a witness(es) the defense is not allowed to cross-examine.

What do they mean by "substantially supported"? Does that include expressing one's opinion? Does it include investigating Abu Ghraib-like abuses? Who are "associated forces"? Is there a list? What is the criteria for membership in an "associated force"? Does "coalition partners" include countries involved in the original illegal invasion of Iraq, or just the remaining countries that support that illegal invasion? What is a "belligerent" act?

Rights apply to everyone, or they apply to no one. Our government now says it has the right to detain a person without charge or trial FOREVER. These are the actions of a police state, not a democracy.

An if being a lawyer means arguing torture is legal like John Yoo, I'll pass.

that al-Qaida and affiliated/related organizations should be handled by military methods, rather than by criminal justice methods

The military model does not presume persons, such as prisoners of war, are entitled to any beyond-a-reasonable-doubt standard for detention, nor will it provide determinate-length sentences: the prisoners are typically held until hostilities cease. The model, however, involves assumptions that the opponent has state-like organization and that the end of hostilities can be negotiated and enforced, which may be questionable when the opponent is a loose confederation like al-Qaida

To end applicability of the military model here, one needs Congressional repeal of the AUMF

As long as the current Beltway consensus prevails and the AUMF remains in force, persons captured abroad may be subject to standards Congress may provide, as specified in the Constitution Art I Sec 8 Par 11: The Congress shall have Power To ... make Rules concerning Captures on Land and Water

In signing the NDAA, the President wrote:

Shortly afterwards,

civilian targets ostensibly to deal with "terrorists" is not going to end well. By "legalizing" this, the day will come when American citizens will be subject to the same disregard for human rights we are engaging in now.

I am aware of the "military" model and the AUMF that makes it "legal". So far, it has cost us about a trillion dollars, 5,000+ American lives and tens of thousands of broken and maimed soldiers (of course, it also cost around a million Iraqi and Afghani lives, but those don't count ) and we have NOTHING to show for it other than the debasement of the Bill of Rights.

that the result would be a quagmire, and that the cost in blood and treasure would be unconscionably high. DUers wrote LTTEs, contacted Congress, marched, and otherwise did whatever they could to stop the damn thing -- and we failed to do so. DUers tracked the slaughter as it occurred and tried to refute the Iraq Body Count lowball estimates. Some of us were writing Congress complaining about Bush administration torture long before the Abu Ghraib story broke

So I think you and I agree on all that. The remaining question is, What to do next? And I say we're in for a long-term fight, and we can't win unless we force ourselves to get our facts right and analyze them accurately

Thirty years ago, I was willing to make the argument you make -- the day will come when American citizens will be subject to the same disregard for human rights we are engaging in now -- when I was talking to folk on the street about Reagan's foreign policy. It might in some ways be a good argument, but it never worked for me when I used it, and I think one reason it never worked is because it's muddy -- we should oppose human rights violations on moral grounds, and those who don't find the moral argument persuasive won't find It could happen to you too! persuasive either, because they figure they can continue to win forever by repeatedly doubling their brutality

warned of the folly of the AUMF, the NDAA and the illegal wars the "laws" were used to justify. Lo and behold, we were proven 100% correct.

The problem I have is that SOME of the very same people who made these arguments, are now DEFENDING these policies because a guy with a "D" after his name is in the White House. Suddenly, murdering people with drones, including American citizens, is perfectly justifiable and "legal", and anyone who dares disagree with that view is considered "stupid", "naive", "disloyal" or worse. Torture is still on the books, but that is OK, because the guy with the "D" after his name would never use torture, so the fact that the guy with the "D" after his name has not demanded legislation EXPLICITLY repudiating that legal fiction, nor is he pressing for investigation by the Justice Department into the torture that DID occur, is just fine.

You made the correct argument 30 years ago under Reagan. It does take time, but eventually those sins came home to roost and Americans became targets by the people we oppressed (and ironically, helped arm and train). The attacks on the World Trade Center and the Pentagon were the bills for the arrogant Reagan era polices come due.

Right now, there are people whose families we have murdered who at some future point will visit that agony upon us. Maybe it will be a drone attack. The technology is VERY cheap and thanks to the American policy of selling weapons to practically anyone with money, they will be heavily armed. Or we will do something stupid like invade Iran, a country three times the size of Iraq who will be backed by the Russians and/or the Chinese. Then there will be American POWs strapped to boards for "enhanced interrogation".

What will we do when the REAL facilitators of terrorism, say Pakistan, decides to stop peddling nuclear weapons technology and simply use one of its nukes against us? Dropping one in the middle of the Saudi oil fields and wrecking the world economy would certainly lend relevance to the the old American chestnut "paybacks are a bitch".

Again, you made the right call by trying to persuade people in the past that we would pay for these policies. But how can we make that argument to those who disagree with us, if people who used to make that argument now defend these policies because "their guy" is now in charge? That they can't criticize him because they voted for him, so anything he does must be OK?

What do we do next? How about we stop lying to ourselves and defending our de facto police state just because a guy with a "D" is running the show? How about admit the fact that we spent a trillion dollars and squandered all those lives for absolutely nothing beyond helping a handful of old evil white men get rich. That Dick Cheney still laughs at us courtesy of someone else's beating heart, paid for with the money he made from the blood of those men rotting in their graves?

Melodramatic? Yes. But accurate none the less.

Perhaps we could stop declaring the immoral, moral, just because the person we voted for is now pulling the levers?

I understand the concept of choosing between the lesser of two evils, but we need to understand that whatever choice we make, we have still chosen evil. We can make that choice and STILL demand our leaders STOP embracing and justifying evil.

Or, at the very least, if just on this board, we could stop defending evil and attacking those who point out that some of "our guys" have blood on their hands.

Could we simply agree that, even when it is made "legal" by willfully twisting the law, or passing vague laws designed for twisting, that:

- Torture is WRONG. ALWAYS.

- Anything that we would call torture if it were performed on us by other countries IS torture.

- Things declared torture in the past and punished as such ARE torture.

- Indefinite detention without a fair and open trial is WRONG.

- Killing someone without open and transparent due process is WRONG.

- Invading another country on a sham pretext is WRONG.

- Spying on ANYONE without proper due process as defined by the 4th Amendment is WRONG.

There are other things we could agree to, but these few would be a good start.

Most importantly, we need to STOP pretending we (the United States) are the "good guys". Our history is steeped the in blood of innocents, whether it is slavery, genocide against native Americans, sterilizing "undesirables", imprisoning the innocent (such as Japanese Americans), facilitating the drug trade, overthrowing democratic governments at the behest of corporations, lynchings, or conducting LSD experiments on our own citizens. Bottom line, we are the evil villain that we see everywhere, except in the mirror.

If we cannot learn from our past mistakes (which are legion) and agree to stop repeating them, then our fate is pretty much sealed.

shamefully, politics for the most part.

And we thought we were going to have it restored. Well, there are no more illusions that 'electing' this party or that party just based on letters, is going to restore it, it's going to take making certain that those running for office, mainly for Congress, demonstrate clearly that they have a record of fighting for this country's Civil Rights issues, that they do not back down when it comes to those issues, and that just slapping a letter after their name isn't going to be all they need to get elected.

losses of our liberties and freedoms. You would think that their state of rationalized denial would give them some comfort, but obviously they are tortured.

that this was either a great decision or a bad one that is somehow not Obama's fault despite the fact that his administration argued for it.

As I mentioned to one person in another post: Rights apply to everyone, or no one.

he became insane. What ever the justification for that was, hasnt been changed. Let me emphasize, it hasnt been changed since Padilla.
In fact, in the eyes of many, the NCAA codified it. No court has decided that the President can not arrest and detain whom ever is "deemed" . Whom ever is "deemed". That's the words. The president can "deem" anyone and there is nothing that can be done.

Those that dont agree, claim that the NDAA doesnt say that the President can detain indefinitely. They want so badly to think that our government is good, and wouldnt dare arrest, detain and torture people without due process. When it's pointed out that Bush did it, they rationalize it. They really dont give a shit about Padilla. They have no empathy. They are not liberals.

They are excusing the inexcusable, justifying the unjustifiable, making legalistic arguments that make it all right from a "legal" perspective.

They do it because they voted for Obama and cannot bare the thought that he is not the liberal savior he claimed he was, that he is just as venal as all the rest, and now complicit in war crimes and violations of the Constitution.

Yes, I voted for Obama, because I HOPED he was the real deal. But I am morally obligated to speak up now that he has made it clear he is little better than Bush and willing to shield Dick Cheney from justice.

There is no shame in being fooled, but willful self-delusion is a different story.

this case implying that Obama himself, the dictator, wants to indefinitely imprison people without trial, the far too complex fact that the DOJ is required to argue for the upholding of current law in the Courts is not to be grasped or mentioned.

Remember the "Obama administration" also defended DOMA in the Courts, simply because ergo they must.

Reuters, another shameless lackey of the 1%.

You have rewritten the history of DOMA. The DOJ refused to defend the law.

On February 23, 2011, Attorney General Eric Holder released a statement regarding lawsuits challenging DOMA Section 3. He wrote:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

The point is proved. They can vacate a case on Constitutional grounds.

Their support for this shitty authoritarian law is noted....

It doesn't know it's dead yet.

on the court's view that (contrary to the plaintiffs' claims) the NDAA detention provision did not apply to the plaintiffs: that is, the plaintiffs could not be detained under those provisions

In any normal world, one should have expected that plaintiffs, who complained of a law on the grounds that they feared it might apply to them, would be delighted to have a court rule that the law could not apply to them, and to have the court toss their suit on those grounds -- since in any future case, that might involve the arrest and detention of such persons under the law, those arrested and detained would be able to quote the 2nd Circuit decision, and would be able to point to the Supreme Court's refusal to review that decision, as having answered (completely negatively) the question of whether the law countenanced such arrest of such persons

But, no! In the topsy-turvy world, of people eager to encourage unfounded cynicism about our current President and unwilling to actually read the statute or the 2nd Circuit decision, this happy ruling by the 2nd Circuit, and the Supreme Court's unwillingness to review that ruling, must constantly be portrayed as still more evidence that everyone is now at constant risk of being slapped into a cell and held indefinitely

indefinite detention can not be challenged until after the situation occurs. That's what "doesnt have standing" means in this case. This is a horrible blow for habeas corpus and liberty. The words of the NDAA dont preclude indefinite detention. At best they are ambiguous, open for interpretation. And via the recent ruling the SCOTUS says they wont provide that interpretation until the event occurs and is brought before them.
But when they had the chance to clear this up they failed with both Padilla and Hamdi.

This case involved respected journalists that claim the threat of arrest and indefinite detention (and torture) preclude them from honestly reporting. The Roberts Court ruled that their fear wasnt enough reason (standing) to challenge the law.

IMO the threat of indefinite detention is terrorism.

the detention of US citizens, period.

That's a good result, folks--read past the headline.

That means they didnt have a good reason to challenge the law. It doesnt mean the law doesnt allow the indefinite detention of American citizens.

This is the dream of Cheney and Pres Obama signs it. It allows the arrest and detention of any one the is "deemed" as helping terrorists.

A dark day for liberty.

More war. More profit.