"This is a way of acknowledging they're troubled by the apparent lack of constitutionality of the law," Afran said during our conversation...
"But they were not willing to face the question head on. So, in effect, they said, 'Well, when someone's threatened with arrest, then we have a concrete injury.' But no one's going to be threatened with arrest. They'll simply be arrested. They're not going to send a letter saying, 'By the way, on Thursday next we're going to place you in military custody.' ... The whole point of the law is that they're going to come in and take you [in secrecy]."
The appellate court stated that the law does not apply to U.S. citizens and permanent residents. In reading the law this way the justices were saying, in effect, that I and the other plaintiffs had nothing to fear. Afran called this a "circular argument." The court, in essence, said that because it did not construe the law as applying to U.S. citizens and lawful residents we could not bring the case to court.
"They seem to accept a lot of what we said, namely that the whole history of the jurisprudence, of the court decisions, is that American civilians cannot be placed in military custody," Afran said...
"And they accept the idea that Section E of the statute says, 'Nothing herein shall be construed to affect existing authorities as to the detention of U.S. citizens.' So on the basis of that they say this is not meant to add any new powers to the government and since the government doesn't have power over civilians in this way the law can't be extended to civilians. The problem is by saying there's no standing, they deprive the district court of entering an order, saying and declaring that the statue does not apply to U.S. citizens or permanent residents, lawful residents in the U.S."
The court, in essence, accepted the principle that citizens cannot be taken into military custody but refused to issue a direct order saying so that would be enforceable.
"We have the absurdity of the court of appeals, one of the highest courts in the country, saying this law cannot touch citizens and lawful residents, but depriving the trial court of the ability to enter an order blocking it from being used in that way," Afran said. "The lack of an order enables future [military] detentions. A person may have to languish for months, maybe years, before getting a court hearing. The [appellate] court correctly stated what the law is, but it deprived the trial court of the ability to enter an order stopping this [new] law from being used."
"A law is not constitutional just because habeas corpus says you have a right to go to court to try to get out," Afran said in speaking about the legal mechanism by which someone might challenge custody. "The citizen is entitled not to be detained in the first place absent probable cause. Habeas corpus is a remedy of last resort. It's not there to justify the use of unconstitutional detention laws."
The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. There is no guarantee our appeal will ever be heard. If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.