Obama Admin Warns Ruling Impedes Its Detention Powers.

Obama Admin Warns Ruling Impedes Its Detention Powers.(NYT).WASHINGTON — The Obama administration warned Monday that a judge’s ruling last week blocking a statute authorizing the indefinite detention of terrorism suspects has jeopardized its ability to continue detaining certain prisoners captured during the war in Afghanistan.

Judge Forrest’s order “threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict,” the government wrote in a 38-page filing with the federal appeals court in New York.

The motion focused on language used by Judge Forrest that rejected interpreting the original use-of-force authorization as including the ability to detain “substantial supporters” of Al Qaeda and the Taliban, as opposed to people who are actually part of those groups. The judge also called into question the idea that the United States could detain members or supporters of “associated forces” that had no involvement in the Sept. 11 attacks.

“If, following issuance of this permanent injunctive relief, the government detains individuals under theories of ‘substantially or directly supporting’ associated forces, as set forth in” the National Defense Authorization Act, “and a contempt action is brought before this court, the government will bear a heavy burden indeed,” she wrote.

The United States is holding about 50 non-Afghan prisoners, most of them Pakistani, at the Parwan detention facility at Bagram Air Base in Afghanistan, as well several hundred Afghans. The legal imbroglio comes during a diplomatic tussle with the government of President Hamid Karzai over control of the Afghan prisoners.

The indefinite detention provision in the version of the annual National Defense Authorization Act enacted last year was contentious because lawmakers did not make clear whether American citizens could also be held without trial as wartime prisoners, and they did not specify what kinds of conduct constituted the “support” that could make someone detainable, nor which “associated forces” were off-limits.

Judge Forrest had previously issued a preliminary injunction against enforcing the statute. While the government had appealed, it did not seek a stay of her preliminary order, which lacked the more expansive language.

But after she made the injunction permanent last week, the Obama administration immediately asked her for an emergency stay, arguing that she was making an “unprecedented” judicial intrusion into wartime matters. When she declined, the government signaled it would go straight to the appeals court.

Robert Chesney, a professor at University of Texas, Austin, who specializes in the laws of war, said that if the Second Circuit appeals court upholds the injunction — even if by narrowing its scope — rather than overturning it on standing grounds, it could potentially set up a split on detention authority with the more conservative District of Columbia appeals court. 

In an e-mail, Bruce Afran, one of the attorneys representing the plaintiffs, argued that the government’s “concern is unfounded” because Judge Forrest’s actual injunction “does not touch” the government’s separate powers under the authorization to use military force.

“The general thrust of their argument seems to be that the president and the Congress are immune from judicial review,” he said.Hmmmm........."L'État, c'est moi" .Read the full story here.