Obama's NDAA Law Allowing Indefinite Military Detention of Citizens Ruled Unconstitutional

ChrisHedges.jpg
Chris Hedges, one of the plaintiffs who successfully sued over unconstitutional provisions of the NDAA.
The Obama administration's efforts to enshrine sweeping 9/11-era rollbacks of civil liberties and constitutional rights as federal law hit a serious roadblock yesterday, as a federal judge struck down clauses of the National Defense Authorization Act as unconstitutional.

The offending section of the NDAA, signed by Obama on New Year's Eve last year, grants the government the power to put citizens in military detention indefinitely and without the usual recourse to civil courts.

Chris Hedges, along with other writers and activists including Daniel Ellsberg and Noam Chomsky, challenged the law soon after in a federal lawsuit.

They argued that the phrasing of the law, which allows for the detention of anyone who has "substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," is so broad that in infringes on their own first-amendment rights.

Judge Katherine Forrest, a recent Obama appointee to the federal bench, was clearly sympathetic, and granted a preliminary injunction of the offending sections of the law.

The parties were back in court for further arguments last month for further arguments, but by Forrest's close questioning of administration lawyers, it was clear she still wasn't buying the government's argument.

That impression was confirmed yesterday with Forrest's 112-page ruling, which resoundingly dismisses the law as unconstitutional:

The Government did not--and does not--generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

First amendment rights aren't the only constitutional problem with the law, Forrest continues:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention--potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity--and that specificity is absent from § 1021(b)(2).

Forrest is particularly dismissive of the government's argument that the issue is none of the court's business, and that at most, courts can consider individual habeas corpus petitions from already-detained prisoners.

That argument is without merit and, indeed, dangerous.... If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.

Speaking with the Voice Wednesday night, Hedges said he is happy with the ruling.

"I'm elated," he said. "This judge is amazing. She had the courage to do the right thing in an age when most judges write long opinions about why they can't do the right thing."

There's good reason to temper the elation, however. The government is almost certain to appeal the ruling. Indeed, the administration already has appealed the temporary injunction granted in May.

"That's all right," Hedges said Wednsday. "If they appeal, we'll fight them, and we'll keep fighting them, and we'll fight them until we win."

You can read Judge Forrest's ruling here:

NDAA Ruling

UPDATE: Justice Department lawyers are appealing the ruling, and have succeeded in getting an appeals judge to stay the decision. The NDAA provisions are now back in effect.

Previous Coverage:

[npinto@villagevoice.com] [@macfathom]

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

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55 comments
Vermando
Vermando

.@alon_levy 1 reason why even if you're disappointed in the President, if you care about civil liberties then you should still vote Democrat

Dandrew1Andrew
Dandrew1Andrew

@Vothski @villagevoice too bad i know someone that should be put away now!!

rqskye
rqskye

@Ansel Was announced yesterday. Got lost in all the consulate attack news.

alizardx
alizardx

@Theremina @villagevoice note that the ruling is being appealed and SCOTUS tends to be very sympathetic towards expansion of gov't powers.

susajul
susajul

@ChrisLynnHedges @villagevoice Great news!

Rick_24K
Rick_24K

RT: @YALiberty Federal judge: Indefinite detention for American citizens unconstitutional. http://t.co/y7HPMAbc | #tlot #tcot

Annette Elizabeth
Annette Elizabeth

It's being appealed already by Obama's attorneys. blue or red we are screwed.

Annette Elizabeth
Annette Elizabeth

It's being appealed already by Obama's attorneys. blue or red we are screwed.

eric.nelson745
eric.nelson745 topcommenter

This part of the law effectively suspends habeas corpus. I don't understand how Bush or Obama could do this in view of the fact that the Supreme Court ruled such indefinite detention as being unconstitutional... nearly 150 years ago!

NicoleGlauber
NicoleGlauber

@naomirwolf @TheRealRoseanne Does anyone know where I can send Judge Katherine Forrest a nice fruit basket from the American people?

Examphora
Examphora

@BostonReview Props indeed. Hedges should stick to worthy suits like this one. He's a horrible writer.

signandsight
signandsight

@naomirwolf What does this have to do with your vagina?

politaire
politaire

@JamesPMorrison @villagevoice So, there you go. Pays to pay attention

politaire
politaire

@JamesPMorrison @villagevoice Then, there is a directive, an actual directive from Obama stating the exact same thing & protecting

politaire
politaire

@JamesPMorrison @villagevoice It's not "Obama's" NDAA, it was Buck McKeon's NDAA, and why ppl are focused on this NDAA 2013 is being worked

Ted Rice
Ted Rice

About time, but let's be fair. Obama signed it, but it was pushed through Congress by Republicans. Neither party cares about our rights or about the Constitution. We used to be "the land of the free", now we are the "land of the paranoid".

BHonest
BHonest

A great part of the problem lies in the Fact that had President Obama Not signed the NDAA Bill, then our military men and women, the suppliers and contractors for the military, would have gone unpaid until a new bill was wrangled out in Congress, which, considering the Repub/TPers focus on making Pres. Obama a 'one term President' they would have taken their time about it, no matter the harm to our military men and women, and bashed Pres. Obama for it unmercifully, even though it was THEM that wrote it and passed it.

 

One also must remember that it is Congress that writes and passes these bills, not the President, and so Pres. Obama did the best he could by signing the bill and issuing a signing statement declaring that he felt it unconstitutional and would not uphold it.

 

That the Administration is appealing the ruling of a lower court is actually a way for the President to use the Courts to remove that portion of the Bill by getting it sent to a higher court, where it should, again be deemed unconstitutional, possibly all the way to the Supreme Court, with the same result and those portions of the Bill will be removed in a Constitutional manner.  While it may LOOK like the President is fighting for those portions of the Bill, it is actually his one remaining way to have them removed entirely since he cannot remove them himself, that would have to be done by Congress due to the Separation of Powers delineated in the Constitution.

 

Instead of blaming President Obama for having looked after our Military men and women AND working to have those portions excised, in a legal, Constitutional manner, blame the people who wrote and passed the Bill with those unconstitutional sections in it.

binarybits
binarybits

@themartorana That's great news!

realjett
realjett

@ChrisLynnHedges since when do they obey the law.

Diogenes
Diogenes

Wait!  You mean to tell me that the government is going to appeal to be able to enforce the provision that Obama first told us would cause him to veto it, then signed and added a signing statement saying, "Yeah, I know it says I can .... but I won't."?  (Was he planning on remaining president forever, or is he that sure that no successor would abuse such unconstitutional and horrible power?)

AngryBlackLady
AngryBlackLady

.@JoeSmithSDK it’s great that the court ruled indefinite detention unconstitutional, but it has zero practical effect.

AngryBlackLady
AngryBlackLady

.@JoeSmithSDK it’s not a big deal bc PBO issued a signing statement re 2012 NDAA and the court can’t enjoin what might appear in 2013 NDAA.

craftycameleon
craftycameleon

@carwinb #chrishedges yes the judge is amazing and so is Mr Hedges for being our Archangel Michael. He's a #angel :-)

iboudreau
iboudreau

@LitThom Same as I argued before. It's not NDAA you have a problem with, it's with Congress' AUMF. Don't tag Greenwald for attention, btw.

alon_levy
alon_levy

@Vermando Eddie Tabash makes the same point re separation of church and state.

Vothski
Vothski

@Dandrew1Andrew @villagevoice who did you have inn mind?

JamesPMorrison
JamesPMorrison

@politaire @villagevoice I remember that, a signing statement from DOJ, right?

mr_bellows
mr_bellows

 @BHonest  Hello BH: I just wanted to thank you for helping me understand the nuances and reasoning for this 'signing'.  I was confused about how a president who speaks for hope and change and Freedom, at every turn, could sign such a document.  You provided clarity and helped remove distortion. thank you kindly.

themartorana
themartorana

@binarybits I know. So odd I had to read it in the Village Voice instead of CNN, Reuters, etc.

JoeSmithSDK
JoeSmithSDK

@AngryBlackLady signing statements are just words on a paper and what about the next pres or you ok with the next one having this power ?

LitThom
LitThom

.@iboudreau @ggreenwald. Wow. So clearly bullshit. You and your clique of "Emoprog!" screamers were 100% wrong on this.

politaire
politaire

@JamesPMorrison @villagevoice This is congress, btw.

politaire
politaire

@JamesPMorrison @villagevoice bill that was supposed to take care of the "detainee" issue, but I don't think it really did honestly.

politaire
politaire

@JamesPMorrison @villagevoice What is important now is to look at what congress is doing to NDAA 2013. They had some

politaire
politaire

@JamesPMorrison @villagevoice The paper directive I have came directly from the White House, I think. I will look for it.

binarybits
binarybits

@themartorana I've been surprised how little coverage my FISA story from yesterday has gotten. Most people don't care about this stuff.

iboudreau
iboudreau

@LitThom Sorry you don't understand law or civics. Go away and keep reading your Mad Magazine columns.

politaire
politaire

@politaire @JamesPMorrison @villagevoice If you want more info, I can dig it up. Just give me a bit of time.

binarybits
binarybits

@themartorana Still has to go through the Senate, but yeah it was pretty disappointing.

themartorana
themartorana

@binarybits crap. FISA was renewed? Although is a corrupted HOR more worrisome, or that the courts allow FISA to continue to exist?

AngryBlackLady
AngryBlackLady

@iboudreau also, they’re just wrong. But whatevs. They can read Chomsky at their next drum circle and feel like kings of fuck mountain.

iboudreau
iboudreau

@AngryBlackLady And it's only for their own feelings. They have no regard for the people affected by the real implications of policy.

iboudreau
iboudreau

@AngryBlackLady They love the feeling of being outsiders. They're obsessed with being more "for freedom" than anyone else.

AngryBlackLady
AngryBlackLady

@iboudreau it’s really laughable. they’re all high fiving themselves for no reason.

iboudreau
iboudreau

@AngryBlackLady Yeah, exactly. They read Greenwald's self-congratulatory swill, but never the actual bill or opinion. Fuck them.

AngryBlackLady
AngryBlackLady

@iboudreau unless I’m missing something, the court enjoined PBO from doing something he already said he wasn’t going to do.

AngryBlackLady
AngryBlackLady

@iboudreau The NDAA happens every year and PBO already issued a signing statement re indefinite detention of Americans. So what’s the BFD?

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