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.