A preliminary ruling finds the NDAA likely to be unconstitutional, striking down infinite detention and prohibits its enforcement pending a permanent ruling.
A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that allows the US government to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.
Under the law the government has the power to subject US citizens to military detention, under which the detained persons can be tortured, without ever filing charges against the detainee based merely on accusations that do no need to be substantiated with evidence of any kind while denying the detained person a right to a lawyer or even a trial.
Those journalists just won a sweeping victory before US federal district Katherine Forrest who parted with a long streak of federal court rulings that have repeatedly sided with federal government to grant egregious Constitution trampling totalitarian powers to the executive branch.
The ruling found that the journalists 1st Amendment rights of Freedom of Speech and Freedom of Press are indeed being suppressed by the NDAA and issued an temporary injunction against the NDAA.
In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.
“Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021,” Forrest wrote.
“Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O’Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm,” she wrote.
Separately, the ruling also found that the infinite detention statue most likely violates the Fifth Amendment Right to due process – which includes the right to a lawyer and a trial to defend yourself against allegations made against you.
“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”
“In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities – i.e., an indeterminate period of time,” Forrest continued. “Being subjected to the risk of such detention, particularly in light of the Government’s inability to represent that plaintiffs’ conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate? Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe.”
“This court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution,” she wrote. “However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights. As set forth above, this court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.”
Constitutional lawyer and Salon.com writer Glenn Greenwald noted:
The court found that the plaintiffs have “shown an actual fear that their expressive and associational activities” could subject them to indefinite detention under the law,and “each of them has put forward uncontroverted evidence of concrete — non-hypothetical — ways in which the presence of the legislation has already impacted those expressive and associational activities” (as but one example, Hedges presented evidence that his “prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban” proves “he has a realistic fear that those activities will subject him to detention under § 1021″). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that’s because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.
Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”
Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:
Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban. . . .
The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.
In fighting lawsuit, the government was forced to reveal their interpretation of the NDAA and the Obama administration:
- Refused to certify that the journalists in the lawsuit could not be targeted by the NDAA for their activities.
- Refuses to certify that the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention.
- Refused to certify that the NDAA would not be used to target activities that would otherwise be protected by the first amendment.
- Refused to define of “significantly supporting”, “directly or indirectly supporting” terrorism or even define what providing “support” meant.
- Refused to define who was a “covered person”.
- Refused to define “associated forces”
* Note: By refusing to say the NDAA didn’t apply to the activities of the plaintiffs in the lawsuit you can be assure their activities certainly fall under the government’s secret definition of these terms. In fact, if the government would have certified this the plaintiffs lawsuit would have been dismissed outright as they would not have had standing to file the lawsuit.
Perhaps most importantly, the court found that the NDAA does in fact grant more power than what was originally authorized under the 2001 AUMF.
First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.
However, the court found the 2001 AUMF clearly defines and limits the fight to Al-Qaeda terrorists as opposed to the current NDAA’s affirmation that the entire world is a battlefield and everyone is a potential target.
First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.
The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers — solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”
The Daily Sheeple reports:
Judge Blocks Controversial NDAA
A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism. Signed by President Barack Obama on New Year’s Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects “substantially supported” al-Qaida, the Taliban or “associated forces.” The indefinite detention would supposedly last until “the end of hostilities.” In a 68-page ruling blocking this statute, U.S. District Judge Katherine Forrest agreed that the statute failed to “pass constitutional muster” because its broad language could be used to quash political dissent.
“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”
Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called “Homeland Battlefield” provisions. Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O’Brien, an organizer for the New York-based activist group U.S. Day of Rage. They call themselves the Freedom Seven. In a signing statement, Obama contended that the language in Section 1021 “breaks no new ground” and merely restates the 2001 Authorization to Use Military Force (AUMF). Government lawyers whistled the same tune to swat away the lawsuit, but they failed to convince the judge that no changes had been made.
“Section 1021 tries to do too much with too little – it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass constitutional muster,” Forrest wrote.
Scienter refers to a person’s knowledge that a law is being violated.
“For the reasons set forth below, this court finds that § 1021 is not merely an ‘affirmation’ of the AUMF,” Forrest wrote. “To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning. To find that § 1021 is merely an ‘affirmation’ of the AUMF would require this court to find that § 1021 is a mere redundancy – that is, that it has no independent meaning and adds absolutely nothing to the government’s enforcement powers.”
Brushing aside that argument, Judge Forrest took aim at government arguments that the NDAA did not affect Hedges and his co-plaintiffs personally.
“Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021,” Forrest wrote.
At a hearing in March, three of the plaintiffs testified that the possibility of government repression under the NDAA made them reconsider how they approached their journalism and activism. Guardian journalist Naomi Wolf read testimony from Jonsditir, who prepared a statement saying that she would not visit the U.S. for fear of detention. Forrest alluded to this testimony in her decision.
“Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O’Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm,” she wrote. “In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities – i.e., an indeterminate period of time,” Forrest continued. “Being subjected to the risk of such detention, particularly in light of the Government’s inability to represent that plaintiffs’ conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate? Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe.”
The judge added that she did not make the decision lightly.
“This court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution,” she wrote. “However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights. As set forth above, this court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.”
In a phone conference, the plaintiffs’ attorneys Bruce Afran and Carl Mayer hailed what they called a “complete victory.” “America is more free today than it was yesterday due to the courageous and righteous and very sound ruling by Judge Forrest,” Mayer said. “I think this is a hugely significant development… I think it’s also a testament to the courage of the plaintiffs here.” One of those plaintiffs, O’Brien, was also jubilant in a separate interview.
“I am extremely happy right now, and what I’m most happy about it is that this ruling has given me trust,” O’Brien said, “Trust is the foundation of just and stable governments, and this ruling gives me hope that we can restore trust in the foundations of government.”
While the U.S. Attorney’s office declined comment on the ruling, Mayer urged the Obama administration to “drop it,” and forego an appeal.
“They have to come to terms with the fact that it’s wholly unconstitutional,” Mayer said
Delivered by The Daily Sheeple
Glenn Greenwald reports:
Federal court enjoins NDAA
An Obama-appointed judge rules NDAA’s indefinite detention provisions likely violate the First and Fifth Amendments
A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by eight dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Brigitta Jonsdottir — alleging that the NDAA violates “both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.” The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides. As for the DOJ’s first argument — lack of standing — the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.
The court found that the plaintiffs have “shown an actual fear that their expressive and associational activities” could subject them to indefinite detention under the law,and “each of them has put forward uncontroverted evidence of concrete — non-hypothetical — ways in which the presence of the legislation has already impacted those expressive and associational activities” (as but one example, Hedges presented evidence that his “prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban” proves “he has a realistic fear that those activities will subject him to detention under § 1021″). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that’s because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights. Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.” Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:
Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban. . . . The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.
Perhaps most importantly, the court categorically rejected the central defense of this odious bill from the Obama administration and its defenders: namely, that it did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention. The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill). First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention. The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers — solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.” The court concluded by taking note of what is indeed the extraordinary nature of her ruling, but explained it this way:
This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.
I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade. Source: Salon
Sources(s):
- Salon.com – Fedeal Court Enjoins NDAA
- Courthouse News – Judge Blocks Controversial NDAA
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