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FEDERAL JUDGE RULES AGAINST INDEFINITE DETENTION PROVISION
By Brett Wilkins
September 13, 2012
A federal judge has ruled against a highly controversial provision of the National Defense Authorization Act signed into law by President Barack Obama that authorizes the indefinite military detention of Americans without charge or trial.
In her 112-page ruling, Judge Katherine B. Forrest of the U.S. District Court for Southern New York called the indefinite detention provision "facially unconstitutional" and said it "impermissibly impinges upon guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process."
Forrest, an Obama appointee, had already issued a preliminary injunction against the provision in May, blocking the government from using the law to indefinitely detain anyone without trial. Wednesday's ruling made that injunction permanent.
Both houses of Congress passed the National Defense Authorization Act, which contains provisions allowing the government to detain indefinitely individuals suspected of "substantially supporting" al-Qaeda, the Taliban or other terrorists organizations. The law, which does not say exactly what behavior could lead to indefinite detention, was quietly signed by President Barack Obama with "serious reservations" on New Year's Eve.
The law was challenged by Chris Hedges, a veteran investigative journalist who sometimes interviews terrorists as part of his work. Among his six co-plaintiffs were renowned linguist, author and activist Noam Chomsky, Pentagon Papers leaker Daniel Ellsberg, and supporters of the whistle-blowing website Wikileaks. The plaintiffs argued that the law had a chilling effect on their constitutional rights because it stoked fear that they would be indefinitely detained for doing their jobs.
Judge Forrest concurred in the May preliminary injunction. The Obama administration fought back, denying that the law applied to free speech activities. The government also asserted that the controversial provisions of the NDAA did not expand its power and that the Authorization for Use of Military Force approved by Congress in the wake of the September 11, 2001 terror attacks already granted it the power to indefinitely detain individuals.
Bruce Afran, a law professor at Rutgers University, told the New York Times that Judge Forrest's ruling was an "historic" rejection of government intrusion on constitutional rights.
"It's an absolute guarantee of freedom of political debate even in a time of war," he said.
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U.S. CITIZENS' DUE PROCESS RIGHTS SAVED FROM THE NDAA's INDEFINITE DETENTION
By Tangerine Bolen
September 13, 2012
You can't change the world if you don't believe in impossible things. On Wednesday, I was reminded that my obstinate faith in the ability of citizens to stand up against an all-out assault on civil liberties by my own government is not so absurd, after all. Judge Katherine Forrest (an Obama-appointed judge) granted people everywhere a permanent injunction against an unconstitutional provision, section 1021, in the NDAA -- and thus a reprieve from the terror of being indefinitely detained by the US military, without charge, evidence or trial.
These incredible powers that my government asserted were its absolute right to possess have been held in check by one judge, seven plaintiffs, four attorneys, public figures who publicized our case when national media would not, and supporters around the globe who pitched in to help cover court costs. My government is so unresponsive, our politics so compromised, and our slide away from a democratic republic and toward tyranny so steep, that despair and paralysis would have been the more "normal" reaction in the face of things.
What I had, however, was a redhead's temper and a fierce sense that we would be in trouble under this law just for doing our work to defend civil liberties. I work with an international volunteer team of people who are dedicated to restoring rights, justice, sanity, and decency to our world. And since we had come together and defended WikiLeaks and Bradley Manning -- these pariahs of secretive governments -- and since we were hosting online panel discussions with scholars and dissidents and were about to add to them Middle Eastern revolutionaries, and because I feel responsible for this team of people that I lead, I was not about to stand down on the NDAA.
It made me see red to think that with the highest of hopes and most altruistic of aims, I could have led innocent people into danger. This NDAA clause meant that we could be labeled "associated forces" of terrorists simply because I had been in direct contact with WikiLeaks, or because I wanted to ask Iraqi citizens on film how it felt to have my country kill their family members in a war founded on lies.
My country has worked hard to define and limit the parameters and power of our resistance to this downward slide. A long list of travesties, including the exponential increase in government secrecy, systematic denial of FOIA requests by national security agencies, the building of a surveillance state and the loss of fundamental rights to privacy, the persecution of whistleblowers and the criminalization of protest . . . all have formed a disconcerting tapestry. Paired with cynical euphemisms ("extraordinary rendition" rather than kidnapping, "enhanced interrogation" rather than torture) and disingenuous rhetoric on the part of the president, the context for the NDAA has become an Orwellian milieu where abuses are "justice" and "American liberty" is secured by taking our rights away. The NDAA was the piece de resistance: its attempt to dramatically expand the power of the federal government to pick and choose who the "terrorists" are would have been a power that could see journalists and activists indefinitely detained merely for exercising our rights of free speech.
In court, government attorneys repeatedly refused to define what they meant by key terms -- "associated forces," "material support," and "independent" advocacy and journalism. Did our support for WikiLeaks make us "associated forces" of a group some in my government have labeled as terrorists? Would a panel with a member from Hamas be constituted as our providing the organization material "support"? Judge Forrest asked my government similar questions in her ruling:
"Where is the line between what the government would consider 'journalistic reporting' and 'propaganda'? What does 'independent' mean? 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.'"
Thanks to a small handful of determined citizens and a judge who didn't roll over in the face of accusations of interfering with the laws of war, there will be no need for such an office. Sometimes, it is worth believing in impossible things -- like standing up to the United States government, and daring to believe you can win. Sometimes, we do. And because we did, for now at least, and for most of us, due process still stands.
• UPDATE (at 4:00 p.m. ET, 13 September 2012]: Less than 24 hours after Section 1021 was permanently enjoined, Obama administration lawyers filed an appeal. U.S. government attorneys repeatedly claimed that 1021 and the Authorization of Military Force (AUMF) provide the same powers. Judge Forrest made it clear her ruling would not interfere in any way with the AUMF.
So why did they appeal? Either because they had to, because doing the right thing would not be acceptable in an election cycle -- for fear of charges of being "soft on terror" -- or because President Obama doesn't actually mean most of what he says when it comes to protecting democracy and civil liberties.
OBAMA HAS ALREADY APPEALED INDEFINITE DETENTION RULING
By David Seaman
September 13, 2012
This sent a chill down my spine. In the midst of my interview with Tangerine Bolen, a plaintiff in the lawsuit against the NDAA's indefinite detention provisions & coordinator of StopNDAA.org, she received an email from her lawyer to inform her that the Obama administration has already appealed yesterday's historic court ruling. That court ruling found indefinite detention to be unconstitutional, and issued a permanent block of that provision.
For a man who doesn't want the ability to order the military to abduct and detain citizens - without charge or trial -- it is quite odd that his administration is appealing yet again.
And, as stated in the interview, I would love to speak with someone from the administration on-record about this and hash it out. Why do you need this power?
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