Federal judge blocks NDAA, ruling it unconstitutional

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.

Recently a coalition of journalist filed a lawsuit against the Obama administration for using the NDAA to silence their critical reporting on the US government.

As with many of the constitutional violating aspects of the NDAA, the Corporate Media Silent On Lawuit Over NDAA Being Used To Silence Journalists with many who read about the lawsuit through blogs and alternative media sites immediately dismissed the claims made in the lawsuit in outright disbelief that such a thing could be occurring in America.

Those journalists just won a sweeping victory before US federal districtKatherine Forrest who parted with a long streak of federal court rulings that have repeatedly sided with federal government to grant egregious Constitutiontrampling 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.”

The judge also ruled, as the alternative media has been reporting all along only to be dismissed as ‘conspiracy theorists’, that the language in the bill is so broad that NDAA can be applied for reasons well beyond the original purpose of fighting Al-Qaeda terrorist.

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:

1. Refused to certify that the journalists in the lawsuit could not be targeted by the NDAA for their activities.
2. Refuses to certify that the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention.
3. Refused to certify that the NDAA would not be used to target activities that would otherwise be protected by the first amendment.
4. Refused to define of “significantly supporting”, “directly or indirectly supporting” terrorism or even define what providing “support” meant.
5. Refused to define who was a “covered person”.
6. 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.

That is important because under the NDAAO bama has not only claimed the authority to indefinitely detain US citizens without trial buy has also claimed the right to target American citizens for assassination and to launch military strikes or invade any country in the under world without approval from congressunder the NDAA while claiming these new powers he asserted are nothing more than what already existed under the 2001 AUMF.

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.

Finally, the Judge also ruled that Obama’s claim that he would not use the broad powers under the NDAA to do anything more than to fight Al-Qaeda terrorists didn’t pass muster either, confirming the initial ‘conspiracy theorist reports Obama issues new guidelines for indefinite detention and torture as PR stunt.

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.”

Sources(s):

• Salon.com – Federal Court Enjoins NDAA
• Courthouse News – Judge Blocks Controversial NDAA