Permanent Injunction Against Indefinite Military Detention in NDAA Issued by Federal Judge [View all]

[phantom power]

A federal judge issued a ruling on September 12 that permanently enjoined a provision of the National Defense Authorization Act (NDAA) that was signed by President Barack Obama codifying indefinite military detention into United State law last year. She found that the writers, journalists and activists who were plaintiffs in the lawsuit had demonstrated actual and reasonably that their First Amendment-protected activities could subject them to indefinite military detention and ruled the public had a greater interest in preserving the First Amendment and due process rights than allowing law enforcement to have this tool.

Judge Katherine B. Forrest, a judge appointed by Obama, had already issued a temporary injunction against Section 1021 of the NDAA. That section authorized the President to “use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF), including “the authority of the Armed Forces of the United States to detain covered persons.” The section said a “covered person” was “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Persons detained could be held without trial “under the law of war” until the “end of hostilities authorized by the AUMF.”

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Since the September 11th attacks government has sought to claim powers that infringe upon liberties and do so without explanation on the mere basis that if government did explain what was being done they might reveal methods or techniques being used to defeat alleged terrorists. Judges have given great deference to the Executive Branch and allowed it to invoke the state secrets privilege to avoid accountability and justice for any crimes committed in the “war on terrorism.” But here, a federal judge is preemptively blocking a national security law before the government really has any opportunity to employ it on the basis that the government drew it up poorly and failed to properly define what could lead someone to be subject to indefinite military detention. Moreover, the judge is insinuating and suggesting throughout that the government would be able to use this power of preventive detention in an Orwellian manner and so she must intervene.

Forrest added it was impossible to understand the “scope” of this provision without key terms being defined. The government was unable or unwilling to provide definitions. The government expended little energy or resources in trying to provide the court with definitions. They did not take the vagueness seriously at all or think the judge would care that they had no interest in defining these terms, which were primarily responsible for the plaintiffs bringing a lawsuit against the government. She determined the “statute’s vagueness” fell short of “what due process requires.”

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Essentially, the judge found it had hollowed out an American’s right to due process. That alone is extraordinary, and even more extraordinary is the fact that a federal judge read into this law, made such an astute conclusion, and accepted the government might violate the due process of citizens if allowed to use this provision.

http://dissenter.firedoglake.com/2012/09/13/permanent-injunction-against-ndaa-provision-issued-by-federal-judge/