Federal Judge Permanently Blocks the Indefinite Detainment Provision of the NDAA, Because It's Unconstitutional, Obama Administration Appeals [Updated]


Remember way a few months ago when we were all freaked out by the National Defense Authorization Act (NDAA), and how it seemed its section 1021 allowed for the indefinite military detainment of American citizens, even those picked up on American soil, and we were basically all doomed? (The actual wording being the person who can be detained is someone "who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces.")

Lately we've moved on to more important issues like the high stakes 2012 presidential election, starring the guy who signed the NDAA, with a weak, promise to not detain Americans, versus the guy who "would have" signed the NDAA.

In the meantime, a strangely awesome federal judge named Katherine Forrest has been busy trying to roll back the insane advances of the government of which she is technically part. In May, she agreed with plaintiffs who had challenged the law in March, and issued a preliminary injunction to block the detainment provision of the bill that dealt with American citizens, saying it had a "potentially chilling effect on free speech." Those plaintiffs included the American Civil Liberties Union, Daniel "Pentagon Papers" Ellsberg, journalist Chris Hedges, and lefty-scholar Noam Chomsky. 

Now, as Reason 24/7 noted earlier today, Forrest has made it official and declared that the detainment provisions of the NDAA are permanently blocked. Part of Forrest's reasoning was that the broad wording of the act might lead to the detainment of journalists who attempted to write about or interview members of or forces associated with Al-Qaeda, something Hedges has actually already done more than 15 times. This violates the First Amendment of the U.S Constitution (the "chilling effect"), and Forrest also believes the NDAA is in violation of the Fifth Amendment's right to due process. 

Notes the Huffington Post, in May Forrest found the:

language too vague, and repeatedly tried to get government attorneys to say that the reporters' fears were unfounded. The lawyers declined.

"At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021," Forrest wrote. "Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.

On Judge Forrest's Wednesday ruling, the AP noted:

She questioned in her 112-page opinion whether a news article perceived as favorable to the Taliban and garnering support for the Taliban could be considered to have "substantially supported" the Taliban?

"How about a YouTube video? Where is the line between what the government would consider "journalistic reporting" and "propaganda?" she asked. "Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is 'modest' or 'substantial?'"

Ellen Davis, a U.S. Attorney's office spokeswoman, said the government had no comment.

Plaintiffs' lawyer Bruce Afran called the ruling "very historic" and said it was rare in the last half century that a judge would declare a federal statute unconstitutional for directly intruding on speech.

Forrest also took issue with the Obama administration's argument that the NDAA provision is simply redundant with the powers granted by the 2001 Authorization for Use of Military Force Act (AUMF), as well as the argument that the plaintiffs had no standing to challenge the law because they couldn't prove that they had been affected by it. 

No doubt the Obama administration will be tempted to challenge this ruling, but we should all take a moment to appreciate the fact that a judge did something this awesome. Meanwhile, people like Rep. Justin Amash (R-MI) have made the even bolder statement that the U.S. Constitution was meant to apply to people, not just citizens. This the Amash argument behind his failed amendment to the Act from last spring, and he got called a terrorist "coddler" for his troubles.

For a law this bad, and this vague, it's amazing to have people like Forrest and Amash and these plaintiffs fighting against even the potential use of this government power.  But let's not forget that indefinite detainment was happening to people long before the Obama administration took the White House. And it has already happened to citizens, which Forrest pointed to in her ruling, alluding to Japanese internment: 

"Although it is true that there are scattered cases—primarily decided during World War II—in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment."

[Update]: Thanks to Tangerine Bolen, of stopndaa.org, and one plaintiff for the NDAA lawsuit, for pointing out that my optimism was already out of date. Lawyers in the Manhattan office of U.S. Attorney Preet Bharara today have already filed for review of Judge Forrest's ruling, on behalf of the Obama administration. They are still arguing that the NDAA is redundant with the powers granted by the 2001 AUMF. Judge Forrest argues that her ruling does not conflict with the AUMF.

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  1. What the fuck is wrong with: “These provisions violate at least two and as many as 4 Amendments specifically written to prevent the US government from engaging in this behavior.”

  2. U-N-C-O-N-S-T-I-T-U-T-I-O-N-A-L. Is that a real word? It sounds vaguely familiar. Something archaic, maybe? It’s an anagram of coital union stunt–some sort of porn term, perhaps?

    1. Wait until it’s ruled that indefinite military detainment is really a tax.

      1. I don’t see why they don’t take my long-standing advice to make everyone a felon, then enslave them, as permitted under the 13th Amendment. That’s actually totally constitutional, provided that the law everyone is charged with is passed properly and otherwise passes constitutional muster.

      2. freedom tax

        1. Well, the government protects our freedoms, and all freedoms stem from government largess. Yes, I believe freedom is legally taxable.

          1. What if they tax…thingy?

            1. “I would tax foreigners living abroad.”

            2. Oh, and it would make chartered accountancy a more interesting profession.

              1. I would tax Racquel Welch. I’ve a feeling she’d tax me.

                1. If Obama were smart, he’d tax references to movies and television programs. Or is that programmes? Also, he should tax d?j? vu, that strange feeling we sometimes get that we’ve lived through something before, that what is happening now has already happened. Tonight on ‘It’s the Mind’ we examine the phenomenon of d?j? vu, that strange feeling we sometimes get that we’ve. . . .

    2. UNCONSTITUTIONAL. Is that a real word? …some sort of porn term, perhaps?

      Well, it’s got “tit” in the middle, and I’ve heard SugarFree use it once or twice, so I’d say so.

  3. Tomorrow’s headline:

    Federal Judge Who “Permanently Blocked” the Indefinite Detainment Provision of the NDAA Indefinitely Detained Under NDAA

  4. “Forrest also believes the NDAA is in violation of the Fifth Amendment’s right to due process.”

    Ya think?

    1. No shit. I am getting a little worn out on the 1A being the only amendment that anyone needs to take seriously, with the rest of the BOR being an afterthought.

      1. if you’re not first you’re nothing.

  5. Are you serious? Are you serious?

  6. Well, that’s good.

    1. Isn’t it?

    2. This whole good news thing is really screwing me up.

  7. I don’t understand (even though I like the ruling) why Judges still use the “journalism” angle on free speech.

    Everyone is a potential journalist. And even if that weren’t true, why should ‘journalists’ get more broad 1st amendment considerations.

    That said, the premise of her ruling (even though I agree with the ruling itself, is frustrating.

    1. I’m pretty sure there are SCOTUS opinions that state that there is no special rights in the press as an institution. In other words, freedom of the press is just a subset of freedom of speech.

      1. Freedom of the press is meant to protect organizations of individuals that collaborate to publish information. Basically so that the government can’t arbitrarily deem them a criminal or subversive entity and crush them.

        But the left wants to abolish that quaint notion since it logically would apply to evil corporations and Super PACs that publish information.

        1. “Press” really refers to the means of distributing protected speech. So there’s really no legal distinction between a blog post and a newspaper article.

          1. You’re all idiots. The freedom of the press is our guaranteed freedom to do any kind of press we want: military, bench, incline, reverse grip, you name it.

            We need to end over 200 years of misinterpretation.

            1. I’m surprised that you missed the obvious interpretation: Congress shall make no law. . .abridging the freedom of. . .the olive press. . . .

            2. Is that weightlifting?

              1. Powerlifting.

                  1. Hmm…combining weightlifting with olive pressing? ProL, that’s genius! Think of all the energy wasted in workouts; all that energy expended without any work being done. So, all gyms need to install olive presses attached to the equipment! We’ll make billions! Well, I will, you’ll be like the fifth Beatle.

                    1. Billy Preston or Eric Clapton?

                1. WEIGHTLIFTING, you idiot not powerlifting
                  you and your chidlsh ilk dont even care to know the facts

                  1. elegant as hell

                    it aint about big muscles or posturing or brute strength. it’s about explosiveness, strength, timing, fleixibility, precision, etc.

                    sagir’s speed under the bar is amazing.


                    my teammate
                    olympian and the first (and possibly only. haven’t checked currently) woman in the USA to clean and jerk double bodyweight – melanie roach. doing double BW here backstage at a meet just a month before beijing


                    now, THAT is an athlete.

                    powerlifting is cool, but it’s basically just a test of limit strength. weightlifting is an athletic event testing a host of qualities. it’s akin to javelin or pole vault, in the skill and complexity that is involved

                    iirc, it was medveyev who said that strength is a skill

                    in the west, we tend to think of it as a quality, not a skill

                    1. Have you ever pressed olives? Or grapes? I’m saddened that people don’t much stomp on grapes anymore, making that iconic I Love Lucy episode confusing to the young.

                    2. Don’t worry, Pro L, this video fixed that, at least for a few more years.

                    3. My favorite Olympic weightlifter is Sergei Akhmoudov.

                    4. And he’s pulled his arms off! That’s gotta be a disappointment to the big Russian.

    2. BelowTheRim| 9.13.12 @ 4:28PM |#

      I don’t understand (even though I like the ruling) why Judges still use the “journalism” angle on free speech.

      I think in this case they (the plaintiffs) were first attempting to establish “Standing” to justify their challenge of the law – the fact they used ‘jounalism’ to demonstrate that the law could be applied to basically anyone may simply be the consequence of how they initially got in the courthouse door.

  8. “Federal Judge strikes down controversial provision of NDAA supported by Mitt Romney that would allow for I definite detainment of American citizens”

    /New York Times headline writing department

  9. I shit you not, my ultraliberal Facebook friends are now saying that this was all a West-Wing-esque clever ploy by the Obama administration to add the indefinite detention language into the bill so as to get the courts to overturn it.

    My head is about to explode.

    1. With friends like those, who needs enemas?

    2. If they were that smart, surely they could have come up with something more sinsterly elegant than PPACA.

    3. clever ploy by the Obama administration

      Almost as sophisticated and successful as Bush’s inside-job destroying the World Trade Center and attacking the Pentagon in order to justify his invasions of the middle east to steals all the oils.

    4. i see that shit a fair amount at DU

      it’s the Obama 3 Dimensional Chess syndrome

      whenever you see obama doing something that just seems blatantly wrong for a CONSTITUTIONAL SCHOLAR a NOBEL PEACE PRIZE WINNER and a GREAT HUMANITARIAN RESPECTOR OF CIVIL RIGHTS

      it’s because you can’t understand his ultra advanced logic and strategy. he’s thinking many moves ahead of us mere mortals

      in poker, we refer to “levelling”. obama is levelling hardcore in these people minds.

      1. i see that shit a fair amount at DU


        That’s just wrong. Those people have less awareness than developmentally disabled mongoloid children raised in a basement for 20 years with nothing except a subscription to People Magazine. Whats so frustrating is that they fancy themselves ‘the enlightened’ to boot.

    5. Yes, because the veto was just too damned risky, it was much safer to go through the courts.

      1. You can’t possibly follow his cunning plan. Don’t even try.

    6. My ultraliberal Facebook friends simply ignore anything that undercuts Obama’s Messiah status. It’s as though they revered an “Obama” whom they had just made up in their own minds and who, amazingly, agreed with them on everything. Actually, that sounds vaguely familiar.

      1. Only those with the faith of little children can enter the Kingdom of Obama.

    7. BO is the honey badger of presidents.

  10. Oh, great. The terrorists have won.


  11. They’ll just ignore her, because there is no law.

    1. Pretty much.

  12. [Update]: Thanks to Tangerine Bolen, of stopndaa.org, and a coordinator for the NDAA lawsuit, for pointing out that my optimism was already out of date. Lawyers in the Manhattan office of U.S. Attorney Preet Bharara today have already filed for review of Judge Forrest’s ruling, on behalf of the Obama administration. They are still arguing that the NDAA is redundant with the powers granted by the 2001 AUMF. Judge Forrest argues that her ruling does not conflict with the AUMF.

    Well, that’s not good news.

    1. Bharara is a known scumbag. I guarantee he’s gunning for pulling a Guiliani and becoming mayor via the prosecutor’s office.

  13. The bright side of the update is that it really embarrasses the Obama cheerleaders who thought this was part of a master plan. That’s… that’s something.

  14. so, obama can’t detain them indefinitely any more? i guess that’s just more incentive to just assassinate them w/o due process, which last i checked he has retained the power to do

  15. Motherfucker.

    Terry Jones is a dick, a super dick in fact, but for the Chairman of the Joint Chiefs to call an American citizen and ask him to not exercise his 1A Rights because it is getting Americans killed is 100x worse than anything Jones could possibly say or do.

    We should do something to DC from orbit for this. Does anybody on here have an idea what that is?

      1. Would that be the equivalent to Dresden from the stars? If so, I approve.

    1. Moon them? From Orbit? Would that work?

      1. ^^This^^ is why nobody takes libertarians seriously. We’re talking about destroying DC from orbit and you bring up childish antics like mooning them.

        1. I thought it was because we called people cunts. Man, this shit is hard to keep up with.

    2. Even if Jones disavowed the video now and promised to never attack Islam again, it wouldn’t matter. We’re talking about seriously low-information people who are engaging in these attacks. I’d think the JCOS chair would know that.

      The administration is seriously desperate to deflect attention away from the fucked up embassy security. How in the world does a mob of yokels breach a US fucking embassy — in a country that just experienced a gorram civil war! — and kill the ambassador? It’s not like the embassy in Iceland we’re talking about.

    3. “I don’t believe this is the Chairman of the Joint Chiefs because the Chairman of the Joint Chiefs wouldn’t be so much of a fuckwit to be calling me about this.” [click]

      1. “Please state for the recording your full name, title, and legal authorization for this request.”

  16. You know what I say to people that complain about the NDAA, “quit being all faggy and shit”

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