NDAA Suit Argued In Federal Court Yesterday

ChrisHedges.jpg
Chris Hedges outside federal court yesterday.
The question being argued in federal court in Lower Manhattan yesterday boiled down to this: Is a law authorizing the indefinite military detention of American citizens with only the barest recourse to civil courts constitutional?

The lawsuit against the Obama administration was filed in January by seven journalists and activists, including Chris Hedges, Noam Chomsky, and Daniel Ellsberg. The suit challenges sections of the 2012 National Defense Authorization Act, which authorize the armed forces to detain

"A person who was a 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."

The act would allow citizens to be detained in overseas military facilities like Guantanamo "until the end of hostilities."

The problem, the plaintiffs argue, is that this language is so vague as to possibly cover all kinds of activity protected by the First Amendment. What is "substantial support?" What are "associated forces?"

For Hedges, a journalist who has spent much of his career meeting and talking with groups and individuals considered terrorists by the U.S. government, the language was chilling.

In his complaint, Hedges argued that the law violated First Amendment protections of speech and association, constitutional guarantees for citizens' access to a civil court system, and Fifth-Amendment due process guarantees.

Judge Katherine Forrest agreed. In a 68-page May ruling, Forrest granted a preliminary injunction blocking the challenged provisions of the act.

"There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in granting the temporary injunction. "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."

But the temporary injunction of the law was just the first round in the case. Hedges and his fellow plaintiffs were asking the court for a permanent injunction. In a four-hour hearing yesterday, lawyers for the plaintiffs and for the government reargued their cases before Judge Forrest, who interrupted frequently with her own questions and opinions.

Assistant U.S. Attorney Benjamin Torrance repeated his argument that the law signed by Obama on New Year's Eve doesn't actually do anything new, but rather reiterates powers already conferred by the Authorization for the Use of Military Force passed by Congress shortly after 9/11.

That argument didn't persuade Forrest, and she told him so. But it also posed further complications for the administration's case. If the challenged NDAA provisions really didn't change anything, why was the government ready to go to the mat to defend them? Perhaps more troubling, Torrance admitted that the government doesn't specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court's injunction.

Carl Mayer, one of the plaintiff's attorneys, said later that he and his colleagues were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction.

Torrance judge Forrest that for her court to overturn congressional legislation on national security matters would be to overstep the role of the judiciary, but Forrest wasn't so sure. She cited a passage by Alexander Hamilton inFederalist Papers Number 78, "which I'm quite enamored with:"

"Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

Another of the administration's arguments is that the government hasn't so far used the law to detain journalists like Hedges, so fear that it might is unreasonable.

David Remes, one of the plaintiff's lawyers, said that wasn't the point. "The danger posed by the sword of Damocles is not that it falls, but that it can fall," he said.

Forrest also appeared unconvinced, noting that a national election could soon install a new administration with a new set of intentions and interpretations. She quoted Chief Justice John Roberts's ruling in a 2010 case: "The First Amendment protects against the government," Roberts wrote. "It does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it reasonably."

Torrance said the law still allows room for judicial oversight, because people detained under the act can file habeas corpus petitions.

"How long does a petition take?" Forrest asked.

Torrance said he didn't have the numbers in front of him.

"Several years, right?" Forrest prompted.

Torrance allowed that might be true, but noted that in most habeas petitions in the post-9/11 era, courts have found the detention legitimate.

Forrest closed the hearing with a promise that she had not yet made her mind up, Hedges and his lawyers said her earlier ruling on the temporary injunction and her close questioning of Torrance gave them cause for optimism.

Perhaps sensing which way the wind is blowing with Judge Forrest, the Obama administration has already filed an appeal in higher court.

[npinto@villagevoice.com] [@macfathom]

Go to Runnin' Scared for all our latest news coverage.


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farmgirl
farmgirl

@thebat Sorry, I don't know you but it made me click on someone ?  If it "doesn't change anything" then why is it necessary?  They haven't used it...yet.  Yeah, they're waiting until after the election, when they'll start rounding up the New American Dissidents calling them "domestic terrorists".  As we go into full tilt chaos, WE THE PEOPLE will be the targets of this unethical abuse of power.  The fact the this administration is ignoring the injunction is nothing new.  They were told that Arizona's immigration law was legal and to be upheld, but they are not doing that either.  The criminal activity by this president is astounding.  If you did any of these things, they would throw your butt in a federal prison.  If they question him, they're racists.

popup
popup

This addition to the NDAA -of detaining US citizens was added at the White House without Obama's knowledge (he only found out after the fact, as usual), this was done on the instruction of Netanyahu (thus it's easy passage without debate). Obama did not support this bill, but had no choice but to sign it to show his loyalty for the Jewish state. 

popup2
popup2 like.author.displayName 1 Like

 @popup http://www.youtube.com/watch?v=4DNDHbT44cY

 

Hey you, watch this video above.  D Car Levin states that the Obama administration insisted on the indefinite detention clause.  I mean, WHY WOULD OBAMA ADMIN FILE AN APPEAL TO JUDGE FORREST'S RULING THEN? 

Cali
Cali

Our Government and Congress have failed to put the ACT into perspective, First off they should have dissected  the Act into a terminology which all Americans could understand.  Wikipedia Defines an Simplifies.  They allow you to share:

 

"National Defense Authorization Act for Fiscal Year 2013 From Wikipedia, the free encyclopedia Jump to: navigation, search

The National Defense Authorization Act (NDAA) for Fiscal Year 2013[1][2] is legislation under consideration in the United States Congress.

Congress oversees the defense budget primarily through two yearly bills: the defense authorization and defense appropriations bills. The authorization bill determines the agencies responsible for defense, establishes funding levels, and sets the policies under which money will be spent.[3][dead link]

The NDAA for Fiscal Year 2013 passed the House Armed Services Committee 56-5 on May 10. The bill as reported to the House authorizes $554.2 billion in base Pentagon spending and $88.5 billion for overseas contingency operations (OCO).[4] The bill passed the full House on May 18 by a vote of 299-120.[5]

So as to not have the Act run into the same legal trouble the 2012 version did, the US House included sections 1031 through 1033, which strike the right of "Habeus Corpus" and the Constitutional right of due process for American citizens. Within those sections include references to a federal appeals court decision and a Supreme Court ruling that affirm the Constitutional rights of American citizens.

 

[1] However, there are already criticisms of the Act, especially with regard to a "readiness" and funding for an attack on Iran.[6]

References ^ a b "Full Text of H.R. 4310: National Defense Authorization Act for Fiscal Year 2013". GovTrack. Retrieved 13 July 2012.^ "National Defense Authorization Act for Fiscal Year 2013" (PDF). Retrieved 2012-05-21.^ "www.crs.gov/pages/Reports". Retrieved May 27, 2012.^ Herb, Jeremy (2012-05-10). "House panel moves $643B defense bill - The Hill's DEFCON Hill". Thehill.com. Retrieved 2012-05-21.^ "US House passes huge defense budget bill". The Associated Press. The International News. 19 July 2012. Retrieved 13 July 2012.^ Alexander, David (18 May 2012). "House-backed defense budget sets up clash with Obama". Reuters. Retrieved 13 July 2012."

 

It is with great remorse that we do not do enough to educate our children with American History and The Constitution.  That they do not even realize how lucky they are to be a citizen of the United States. The freedom that they have is not a given but a gift that our men n women in service sacrifice not only their freedom but are wiling to give there Life.

 

Citizens should take a step back n look at the ACT as a whole rather then pick it part because as it maybe that they Republican,Liberal and not that of a Democratic President.  Take another step back n see who actually wrote the ACT !

 

 

 

m22867
m22867 like.author.displayName 1 Like

The National Defense Authorization Act was introduced by Sen. McCain & Sen. Levin. Only a minority of (my own memory) 14-16 Senators voted against this legislation. NDAA also won the majority in the House & it was signed by our current President.  In my opinion, it is the responsibility of our Citizens to become familiar with this law, and how it may, or may not impact We The People. I'm not going to inject my opinion of this law into this comment. I think it should be discussed by We The People.

noahfactor
noahfactor

Wolf Woman, The Gardner, Pentagonax and Captain Freedom (of Speech) take on the evil powers of the military industrial complex and defend democracy so the sun can rise on America another day...

 

ccrabill
ccrabill like.author.displayName like.author.displayName 2 Like

How do these sons of bitches escape charges of treason and sedition?! Reuters reported that 0bama has signed a secret agreement to fund rebels attempting to overthrow Assad. These rebels INCLUDE Al Qaeda! Why isn't 0bama and all those complicit with this funding held accountable to the laws against treason for specifically and deliberately conspiring with terrorists regardless of the NDAA? I'll tell you why, because the NDAA isn't about Islamic terrorists! It is about American citizens who are fighting to uphold Constitutional protections. THEY ARE THE REAL ENEMY OF THIS ATTEMPTED MARXIST COUP which is why 0bama wants them destroyed!

lenzorizzo
lenzorizzo

 @ccrabill i agree completely, except i don't understand your characterization of it as "Marxist."

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