Judge Blocks National Defense Authorization Act

I realize that this, the NDAA, is a subject that good men (and women) can disagree on, but the way our system is supposed to work is that the Judicial Branch reins in the other two Branches of Government when actions or laws are Unconstitutional. It seems like one Federal Judge felt that way over the National Defense Authorization Act which allows the military to detain US Citizens in this country.

From a Adam Klasfeld, Courthouse News Service article

A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism. Signed by President Barack Obama on New Year’s Eve, the 565-page NDAA contains a short paragraph, in statute 1021, letting the military detain anyone it suspects “substantially supported” al-Qaida, the Taliban or “associated forces.” The indefinite detention would supposedly last until “the end hostilities.”

In a 68-page ruling blocking this statute, U.S. District Judge Katherine Forrest agreed that the statute failed to “pass constitutional muster” because its broad language could be used to quash political dissent. “There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called “Homeland Battlefield” provisions. Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O’Brien, an organizer for the New York-based activist group U.S. Day of Rage. They call themselves the Freedom Seven.

In a signing statement, Obama contended that the language in Section 1021 “breaks no new ground” and merely restates the 2001 Authorization to Use Military Force (AUMF). Government lawyers whistled the same tune to swat away the lawsuit, but they failed to convince the judge that no changes had been made. “Section 1021 tries to do too much with too little – it lacks the minimal requirements of definition and Scienter that could easily have been added, or could be added, to allow it to pass constitutional muster,” Forrest wrote.

Scienter refers to a person’s knowledge that a law is being violated. “For the reasons set forth below, this court finds that § 1021 is not merely an ‘affirmation’ of the AUMF,” Forrest wrote. “To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning. To find that § 1021 is merely an ‘affirmation’ of the AUMF would require this court to find that § 1021 is a mere redundancy – that is, that it has no independent meaning and adds absolutely nothing to the government’s enforcement powers.”

Brushing aside that argument, Judge Forrest took aim at government arguments that the NDAA did not affect Hedges and his co-plaintiffs personally. “Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021,” Forrest wrote. At a hearing in March, three of the plaintiffs testified that the possibility of government repression under the NDAA made them reconsider how they approached their journalism and activism.

Guardian journalist Naomi Wolf read testimony from Jonsditir, who prepared a statement saying that she would not visit the U.S. for fear of detention. Forrest alluded to this testimony in her decision. “Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O’Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021.

Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm,” she wrote. “In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities – i.e., an indeterminate period of time,” Forrest continued. “Being subjected to the risk of such detention, particularly in light of the Government’s inability to represent that plaintiffs’ conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate?

Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe.” The judge added that she did not make the decision lightly. “This court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution,” she wrote. “However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.

As set forth above, this court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.” In a phone conference, the plaintiffs’ attorneys Bruce Afran and Carl Mayer hailed what they called a “complete victory.” “America is more free today than it was yesterday due to the courageous and righteous and very sound ruling by Judge Forrest,” Mayer said. “I think this is a hugely significant development… I think it’s also a testament to the courage of the plaintiffs here.” One of those plaintiffs, O’Brien, was also jubilant in a separate interview. “I am extremely happy right now, and what I’m most happy about it is that this ruling has given me trust,” O’Brien said, “Trust is the foundation of just and stable governments, and this ruling gives me hope that we can restore trust in the foundations of government.”

While the U.S. Attorney’s office declined comment on the ruling, Mayer urged the Obama administration to “drop it,” and forego an appeal. “They have to come to terms with the fact that it’s wholly unconstitutional,” Mayer said

Marine Generals Against the NDAA

Charles C. Krulak and Joseph P. Hoar, both 4 star Marine generals, wrote a op-ed letter, published in the New York Times on December 12, 2011, demanding that President Obama veto the National Defense Authorization Act (NDAA) bill in order to protect our country from the “false choice between our safety and ideals.” Their problem with the NDAA is that it allows the government use the military to indefinitely detain American citizens without due process.

It then gets into one of the most blatant anti American treasonous provisions in the history of the United States.

One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past.

Some claim that this provision would merely codify existing practice. Current law empowers the military to detain people caught on the battlefield, but this provision would expand the battlefield to include the United States — and hand Osama bin Laden an unearned victory long after his well-earned demise. The NDAA basically throws Posse Comitatus out the window. This is a power that the military have not even asked for this extreme new power.....however, they can be ordered to use.

OP-ED Piece, 12 Dec, NY Times

Guantánamo Forever?

By CHARLES C. KRULAK and JOSEPH P. HOAR

In his inaugural address, President Obama called on us to “reject as false the choice between our safety and our ideals.” We agree. Now, to protect both, he must veto the National Defense Authorization Act that Congress is expected to pass this week (Cowboy's note: This Op-Ed was written before the vote. The NDAA did pass and was signed into law by President Obama.

This budget bill — which can be vetoed without cutting financing for our troops — is both misguided and unnecessary: the president already has the power and flexibility to effectively fight terrorism.

One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past. Some claim that this provision would merely codify existing practice. Current law empowers the military to detain people caught on the battlefield, but this provision would expand the battlefield to include the United States — and hand Osama bin Laden an
unearned victory long after his well-earned demise.

A second provision would mandate military custody for most terrorism suspects. It would force on the military responsibilities it hasn’t sought. This would violate not only the spirit of the post-Reconstruction act limiting the use of the armed forces for domestic law enforcement but also our trust with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans. It would sideline the work of the F.B.I. and local law enforcement agencies in domestic counter-terrorism. These agencies have collected invaluable intelligence because the criminal justice system — unlike indefinite military detention — gives suspects incentives to cooperate.

Mandatory military custody would reduce, if not eliminate, the role of federal courts in terrorism cases. Since 9/11, the shaky, untested military commissions have convicted only six people on terror-related charges, compared with more than 400 in the civilian courts.

A third provision would further extend a ban on transfers from Guantánamo, ensuring that this morally and financially expensive symbol of detainee abuse will remain open well into the future. Not only would this bolster Al Qaeda’s recruiting efforts, it also would make it nearly impossible to transfer 88 men (of the 171 held there) who have been cleared for release. We should be moving to shut
Guantánamo, not extend it.

Having served various administrations, we know that politicians of both parties love this country and want to keep it safe. But right now some in Congress are all too willing to undermine our ideals in the name of fighting terrorism. They should remember that American ideals are assets, not liabilities.