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U.S. appeals court tosses injunction limiting indefinite detention

By Bernard Vaughan

NEW YORK (Reuters) - A federal appeals court on Wednesday lifted a lower court order that would have prevented the U.S. military from indefinitely detaining people believed to have helped al Qaeda or the Taliban.

The 3-0 decision by a panel of the 2nd U.S. Circuit Court of Appeals in New York was a setback for journalists, activists and others who had argued that the law put them in danger of indefinite detention.

It was a victory for the Obama administration, which said the practice is needed to fight terrorism.

The 2nd U.S. Circuit Court of Appeals in New York said the plaintiffs lacked standing to challenge the law.

The provision in question is part of the National Defense Authorization Act, which the U.S. Congress passes annually to authorize programs of the Defense Department.

It lets the government indefinitely detain people it deems to have "substantially supported" al Qaeda, the Taliban or "associated forces."

Journalists and activists whose work relates to overseas conflicts, including Pulitzer Prize-winner Chris Hedges and an Icelandic spokeswoman for Wikileaks, complained that the law could subject them to being locked up for exercising constitutionally-protected rights.

In September 2012, U.S. District Judge Katherine Forrest issued a permanent injunction preventing the United States from invoking the part of the law authorizing indefinite detentions, after granting a temporary injunction in May.

Forrest, whom Obama appointed to the federal bench in 2011, had found the provision violated the Constitution in part because its language is too vague.

The Obama administration won an emergency halt to that injunction so it could appeal.

In lifting the injunction, the 2nd Circuit panel did not address the constitutional issues.

U.S. District Judge Lewis Kaplan, who sat with the 2nd Circuit by designation and wrote the decision, said American plaintiffs like Hedges lack standing because the provision "says nothing at all about the President's authority to detain American citizens."

He said the provision nonetheless "does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens," citing as an example Yaser Esam Hamdi, a U.S. citizen detained after allegedly fighting alongside the Taliban in Afghanistan in 2001.

Kaplan also said plaintiffs who were not U.S. citizens lacked standing to sue because they did not show "a sufficient threat that the government will detain them" under the provision.

The 2nd Circuit returned the case to Forrest for further proceedings.

Forrest is now presiding over an unrelated civil fraud trial in which the U.S. Securities and Exchange Commission is suing former Goldman Sachs Group Inc Vice President Fabrice Tourre over his role in constructing a risky mortgage investment that failed.

Bruce Afran, a lawyer for Hedges, said his client may appeal to the U.S. Supreme Court.

He said the ruling "continues a distressing trend in which American federal courts are refusing to rule in cases where the U.S. government is over-reaching and violating civil liberties."

The Manhattan U.S. Attorney's Office, which represents the government in the case, declined to comment.

The case is Hedges v. Obama, 2nd U.S. Circuit Court of Appeals, No. 12-3176.

(Reporting by Bernard Vaughan; Additional reporting by Jonathan Stempel; Editing by Vicki Allen)

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