News & Politics

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


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.

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