Congressman Steve Stockman

Representing the 36th District of Texas

Federal court dismisses Stockman-supported challenge to NDAA indefinite detention provision

Jul 17, 2013
Press Release

WASHINGTON – The U.S. Court of Appeals for the Second Circuit issued a decision Wednesday dismissing the challenge to the indefinite detention provision of the FY 2012 National Defense Authorization Act (NDAA).  The case is Hedges v. Obama, Docket Nos. 12-1376 and 12-3644.  http://tinyurl.com/oq6wbhs

Congressman Steve Stockman (R-TX 36) was the only member of the U.S. House of Representatives to file an amicus curiae brief in the Second Circuit in this case. http://lawandfreedom.com/site/constitutional/Hedges_Amicus_2ndCir.pdf

The court vacated the permanent injunction against enforcement of NDAA section 1021 issued by District Judge Katherine Forrest, an Obama appointee.  Judge Forrest found that section 1021 extended the powers of the President to detain indefinitely U.S. Citizens on U.S. soil if he determined that any such citizen was giving “substantial support” to any terrorist organization.  Such power, if exercised, would suspend those citizens’ constitutional rights, including the right to a speedy trial, the right to trial by jury, and the right to an attorney.

On appeal, after quoting briefly from Stockman’s amicus brief that “‘[r]arely has a short statute been subject to more radically different interpretations than Section 1021,’” the Court of Appeals panel of three judges disagreed with Judge Forrest’s interpretation, concluding that section 1021 did not apply to U.S. citizens.  Rather, according to the appellate panel, the Authorization for the Use of Military Force (AUMF) enacted in 2001 governed the President’s power to detain U.S. Citizens.  And, since the citizen plaintiffs had not challenged the 2001 statute they had no standing here.  By ruling on procedural grounds, the appeals court completely ignored Congressman’s Stockman’s arguments that the AUMF is an unconstitutional delegation of Congress’s authority to declare war to the President, and that NDAA allowed punishment of Americans in violation of the Constitution’s provisions defining the elements of Treason. 

While the court of appeals decided that section 1021 had no force or effect on citizens, it determined that the section did apply to the noncitizen plaintiffs.  Even so, the court concluded that the noncitizens had no standing either because the authorization to detain was an exercise of the President’s war powers.  And, unlike grants of authority to the President to enforce the domestic criminal law, the legal standards governing the President as Commander-in-Chief allow a wide berth of discretion.  Although the court of appeals claimed that it was not “defer[ring] to the political branches because the case involves national security and foreign affairs,” it applied a much more rigorous standard for a plaintiff, citizen or noncitizen, to launch a judicial challenge to a Congressional grant of authority in a statute dealing with the war on terror than would have been the case if the statute being challenged concerned domestic law.

Stockman was joined on the amicus curiae brief by Virginia Delegate Bob Marshall (chief patron of Virginia HB 1160, Virginia’s law to refuse cooperation with federal detentions of Virginians), Virginia State Senator Dick Black, Downsize DC Foundation, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, The Lincoln Institute for Research and Education, The Western Center for Journalism, Tenth Amendment Center, Center for Media and Democracy, Restoring Liberty Action Committee, U.S. Border Control, Policy Analysis Center, Constitution Party National Committee, Pastor Chuck Baldwin, and Professor Jerome Aumente.

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