NDAA's 'Indefinite Detention' Provisions Unconstitutional, says Judge

An Obama-appointed judge rules provisions of NDAA likely violate the 1st and 5th Amendments

Published on Thursday, May 17, 2012 by - Common Dreams staff

"A federal judge in New York on Wednesday ruled in favor of a group of civilian activists and journalists and struck down highly controversial 'indefinite detention' and 'material support' provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. In their suit, the plaintiffs stated they could be detained 'indefinitely' for their constitutionally protected activities. Citing the 'vagueness' of certain language in the bill, U.S. District Judge Katherine Forrest -- who was appointed to the court by Obama -- agreed, and said the law could have "chilling impact on First Amendment rights" for journalists, a
activists, and potentially all US citizens.

An individual could run the risk of substantially supporting or directly supporting an 'associated force' without even being aware that he or she was doing so," the judge said.

The ruling came as part of a lawsuit brought by seven plaintiffs — Chris Hedges, Dan Ellsberg, Noam Chomsky, Birgitta Jonsdottir, Alexa O’Brien, Kai Wargall, and Jennifer Bolen — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

Salon's Glenn Greenwald, who has written critically and extensively of the NDAA, called the ruling "a sweeping victory for the plaintiffs."

"This is an extraordinary and encouraging decision," Greenwald continues, though he noted that many caveats still must be applied. "This is only a preliminary injunction (though the judge made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade."

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The Associated Press reports:


A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.

"A tremendous step forward for the restoration of due process and the rule of law"
-- Chris HedgesU.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a "chilling impact on First Amendment rights." She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who "substantially" or "directly" provides "support" to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.

"An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so," the judge said.

She said the law also gave the government authority to move against individuals who engage in political speech with views that "may be extreme and unpopular as measured against views of an average individual.

"That, however, is precisely what the First Amendment protects," Forrest wrote.

She called the fears of journalists in particular real and reasonable, citing testimony at a March hearing by Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members, conversed with members of the Taliban during speaking engagements overseas and reported on 17 groups named on a list prepared by the State Department of known terrorist organizations. He testified that the law has led him to consider altering speeches where members of al-Qaida or the Taliban might be present.

Hedges called Forrest's ruling "a tremendous step forward for the restoration of due process and the rule of law."

He said: "Ever since the law has come out, and because the law is so amorphous, the problem is you're not sure what you can say, what you can do and what context you can have."

Hedges was among seven individuals and one organization that challenged the law with a January lawsuit. The National Defense Authorization Act was signed into law in December, allowing for the indefinite detention of U.S. citizens suspected of terrorism. Wednesday's ruling does not affect another part of the law that enables the United States to indefinitely detain members of terrorist organizations, and the judge said the government has other legal authority it can use to detain those who support terrorists."

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