Friday, September 14, 2012

Federal Judge in NYC Blocks Obama's Indefinite Detention Law (NDAA)

What?  Obama has an indefinite detention law?  Word?  Yes, word.  Bet you didn't know that, did you?  We wrote about it HERE in case you missed it.  To give you a brief recap, the indefinite detention law's official title is the National Defense Authorization Act, or the "NDAA" for short.  So what does (or did) the NDAA do exactly?  Well, before this week's recent decision from Federal Judge Katherine B. Forrest in the case Hedges v. Obama, the NDAA primarily did 3 things:
  1. The NDAA Codified into law the indefinite detention practices started under the Bush Administration
  2. The NDAA did not exclude American citizens from indefinite detention
  3. The NDAA expanded the scope of the 2001 terrorism law passed by Congress

Now most Americans don't have a problem with laws that allow for the indefinite detention of terrorists because most Americans assume that such laws don't apply to them.  After all, we're Americans right?  That means we have rights, doesn't it?  Well, that used to be true but as you can see, item #2 above throws that theory out the window.  The NDAA does not care if you are born in Kuwait or born in Kansas; either way you can be detained indefinitely without a lawyer and without trial.

But the real kicker is item #3 (expanding the scope of power).  In 2001, just 3 days after 9/11, Congress quickly passed the Authorization for Use of Military Force ("AUMF").  This law said that:
the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
In reality, what this meant was that the President had the power to use warrantless wire taps, military detention centers (see Guantanamo Bay) and a whole host of other illegal stuff so long as it was directed towards people who were involved in the attack of 9/11.  So this new power sort of had a built-in time limit, so to speak.  After all, there were only a certain number of people involved in the plot to carry out 9/11.  But what ended up happening is that after we caught, convicted, killed, and/or indefinitely detained just about every fool and his kid brother who had anything to do with 9/11, we (read the Executive Branch) still wanted to keep the power that the AUMF had granted.  And we would have gotten away with it too, if it weren't for that meddling Supreme Court (see Boumediene v. Bush which held that even terrorist suspects in Guantanamo Bay can challenge their respective detentions in court; see also Hamdi v. Rumsfeld which held that the Constitution demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention in court).

After the Supreme Court pimp slapped the Federal Government for it's use of indefinite detentions at Gitmo, Congress' hand was then forced.  They could no longer use the excuse that the Supreme Court had not yet ruled on the issue.  Thus, they needed a new law which codified the indefinite detention practices that were started under the AUMF.

Enter the NDAA.

The NDAA (which was just supposed to be another routine annual defense budget bill) went even further than the AUMF.  It said that the U.S. government can detain you indefinitely if you "substantially support" Al Qaeda, the Taliban or "associated forces" engaged in hostilities against the U.S.  The law does not, however, spell out what the terms "substantial support" or "associated forces" actually mean.  For example, if we write a blog post here on this website that speaks positively about group ABC, and group ABC just so happens to be a supporter of the Taliban, does that mean that the Urban Politico is guilty of "substantially supporting" terrorism?  And if so, does that then mean that U.S. government can detain our entire staff indefinitely without trial?

These questions led journalists like Chris Hedges and others to file suit against our government.  In Hedges v. Obama, the journalists -- many of whom interact with terrorists on a regular basis during the course of their news reporting -- alleged that the NDAA was in infringement upon their First Amendment right to Free Speech.  Judge Katherine Forrest of the United States District Court for the Southern District of New York (the federal court seated in New York City) agreed with them.

Judge Katherine B. Forrest
In her 112-page opinion, Judge Forrest blasted the NDAA and held that:
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 [the NDAA]. 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 [the NDAA] purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

A key question throughout these proceedings has been, however, precisely what the statute means--what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties. 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 [the NDAA].
Judge Forrest then issued a permanent injunction against the Federal Government which prohibits it from enforcing the NDAA "in any manner, as to any person."  The true irony here is that Judge Forrest, who just killed President Obama's indefinite detention law, was actually appointed to the bench by President Obama himself.  How do you like them apples?

Now, to Obama's credit, he did issue a signing statement to the NDAA saying the following:
Today I have signed into law H.R. 1540, the "National Defense Authorization Act for Fiscal Year 2012." I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed...The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists...Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret [the NDAA] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
So Obama's "support" of indefinite detention is a tab bit more nuanced than the title of this post may imply.  Nevertheless, lest we forget, it was Obama's Justice Department which argued the Federal Government's case against the journalists in Hedges v. Obama, so any credit given to Obama for issuing this signing statement on the NDAA must take that fact into consideration.

1. How do you reconcile Obama and the NDAA?
2. Did the Judge get this case right?
3. Does the Judge's decision weaken our Nation's ability to fight terrorism?
4. Does Obama deserve credit for his signing statement which criticizes the NDAA?
5. Did the U.S. open Pandora's Box in 2001 with the AUMF and will any President ever give up this power?
6. Granted it is election season but WHY is the media not blowing this story up?
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