"Judge Strikes Indefinite Military Detention Law"

[applejack]

Courthouse News Service

MANHATTAN (CN) - A federal judge on Wednesday permanently blocked the U.S. military from enforcing a law allowing it to indefinitely detain anyone accused of aiding or participating in terrorism.

In May, U.S. District Judge Katherine Forrest issued a preliminary injunction barring the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.

President Barack Obama signed the bill on New Year's Eve.

Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit weeks later, stating that his interviews with people the government considers terrorists could put him under the crosshairs of the statute.

Six other dissenters, including MIT professor Noam Chomsky and Pentagon Papers source Daniel Ellsberg, joined as co-plaintiffs to form the self-styled "Freedom Seven."

At issue in the enormous law is one paragraph, Section 1021(b)(2), which lets the military hold anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."

Government lawyers were unable to define several of these phrases at hearings, Forrest noted.

"When the government was asked by the court what the words 'substantially supported' mean, it was unable to provide a definition; the same was true for 'directly supported,'" she wrote in her new order, which makes the preliminary injunction permanent. "There can be no doubt, then, these terms are vague."

That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.

During the evidence phase, four of them -- Icelandic Parliamentarian Birgitta Jonsdottir, reporter Alexa O'Brien, activist Kai Wargalla, and Hedges -- testified that fear of the NDAA made them change how they worked, traveled and associated.

Their testimony convinced the judge that the law had a "chilling effect" on free speech, making the law impermissible under First Amendment grounds.

"Courts must safeguard core constitutional rights," she wrote. "A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases -- primarily decided during World War II -- in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment."

The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.

U.S. Supreme Court Justice Antonin Scalia criticized that case as "not the court's finest hour" because Quirin, a New York resident, could have been tried in a civilian court, according to the order.

"Presented, as this court is, with unavoidable constitutional questions, it declines to step aside," Forrest wrote.

She blasted the government's position that federal courts should provide habeus, rather than judicial, review to military detainees as "without merit" and "dangerous."

"Habeas petitions (which take years to be resolved following initial detention) are reviewed under a 'preponderance of the evidence' standard (versus the criminal standard of 'beyond a reasonable doubt') by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous," Forrest wrote (parentheses in original). "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."

The judge refused to "abdicate" her duty to protect constitutional rights out of deference for executive power.

"The court is mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch's expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security," the order states. "Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold."

Posted without comment.

[Thanas]

Applause.

[Edi]

Finally a federal judge who isn't bending over backward to kiss the government's arse on this! This is indeed worthy of applause.

[montypython]

Finally a federal judge who isn't bending over backward to kiss the government's arse on this! This is indeed worthy of applause.

I just wish that it didn't have to take so long before somebody drew the line on this issue.

[Feil]

Eight months is a pretty short time for courts to do anything of significance, really. It'll be interesting to see if this goes to the Supreme Court.

[Thanas]

Not surprisingly, Obama has already appealed that ruling.

Now where are these who defend Obama on this?

[Zwinmar]

Of course there is silence. Then again, Habeus Corpus is something that needs to be taken seriously.

[Aaron MkII]

Not surprisingly, Obama has already appealed that ruling.

Now where are these who defend Obama on this?

What is there to be said? The best argument they would have is "He's better then the alternative"

A solid shit might be better then diarrhea, but its still shit.

[Tsyroc]

Not surprisingly, Obama has already appealed that ruling.

Now where are these who defend Obama on this?

I'm wondering if he's challenging it because he wants to keep detaining people this way, or if he wants to wuss out and be able to imply that it was "activist judges" who took the decision out of his hands. Both choices suck, but with the second one he's just being a weenie. The first option is just bad.

[TheHammer]

Not surprisingly, Obama has already appealed that ruling.

Now where are these who defend Obama on this?

As I alluded to in another thread, the government actually makes a sound logical case as to why they are appealing this ruling and one that isn't dependent upon Obama being some sort of evil tyrant. Their argument can be found here:

http://www.documentcloud.org/documents/ ... rcuit.html

The crux of the government's appeal is not only that plantiffs in this particular case have no standing (P.34 et al), but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al). Indeed, they also cite that the ruling is unneccessary because the law is written in such a manner as to be consistent with the constitution (P.31 et al). Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

Now, personally I think the issue of "indefinite detention" certainly needs to be addressed. But I can also see why they appealed the ruling in this case as it was written, because it seemed to go well beyond that particular issue.

[Grumman]

I'm wondering if he's challenging it because he wants to keep detaining people this way, or if he wants to wuss out and be able to imply that it was "activist judges" who took the decision out of his hands. Both choices suck, but with the second one he's just being a weenie. The first option is just bad.

Seriously?

No. Obama did not challenge an "activist judge" taking the decision out of his hands because he wanted that very circumstance as a scapegoat. Indefinitely detaining US citizens wouldn't even be on the table if Obama wasn't pushing for this power - the NDAA2012 included language exempting them until the Obama administration specifically told the chairman of the Senate Committee on Armed Services to remove it.

[Tsyroc]

I'm wondering if he's challenging it because he wants to keep detaining people this way, or if he wants to wuss out and be able to imply that it was "activist judges" who took the decision out of his hands. Both choices suck, but with the second one he's just being a weenie. The first option is just bad.

Seriously?

No. Obama did not challenge an "activist judge" taking the decision out of his hands because he wanted that very circumstance as a scapegoat. Indefinitely detaining US citizens wouldn't even be on the table if Obama wasn't pushing for this power - the NDAA2012 included language exempting them until the Obama administration specifically told the chairman of the Senate Committee on Armed Services to remove it.

Okay.

So what you are saying is that he wants the power, which was my first option. To tell you the truth I wasn't that serious about the second one since the Democrats are not the ones who typically whine about activists judges but I thought that maybe there might be a way out there off chance that he might be playing to the right wing a little. Which in itself doesn't really make any sense either, but it was just a thought.

[Thanas]

The crux of the government's appeal is not only that plantiffs in this particular case have no standing (P.34 et al), but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al). Indeed, they also cite that the ruling is unneccessary because the law is written in such a manner as to be consistent with the constitution (P.31 et al). Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

This is what they claim. So far they certainly failed to convince the judge of that. Besides, your whole argument lies on your claim that Obama does not want to indefinitely detain citizens, a claim that is utterly wrong.

Now, personally I think the issue of "indefinite detention" certainly needs to be addressed. But I can also see why they appealed the ruling in this case as it was written, because it seemed to go well beyond that particular issue.

Pray tell me how it would not impact military operations if it would address indefinite detention in another way. Because that is essentially what Obama claims here.

[TheHammer]

The crux of the government's appeal is not only that plantiffs in this particular case have no standing (P.34 et al), but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al). Indeed, they also cite that the ruling is unneccessary because the law is written in such a manner as to be consistent with the constitution (P.31 et al). Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

This is what they claim. So far they certainly failed to convince the judge of that. Besides, your whole argument lies on your claim that Obama does not want to indefinitely detain citizens, a claim that is utterly wrong.

Failing to convince this particular judge is the reason for the appeal. If they fail to convince SCOTUS, well then they've got no where else to go, but it seems that they'd like the opportunity for this case to be heard before what they consider to be a broad over-reach is actually enforced. Further, its not my argument rather its the government's argument. But since you say that such a claim is "utterly wrong", If you've got evidence that Obama does in fact want to "indefinitely detain citizens" by all means please present it.

Now, personally I think the issue of "indefinite detention" certainly needs to be addressed. But I can also see why they appealed the ruling in this case as it was written, because it seemed to go well beyond that particular issue.

Pray tell me how it would not impact military operations if it would address indefinite detention in another way. Because that is essentially what Obama claims here.

Well I'm not saying that the issue of "indefinite detention" should be addressed by a courts, rather it should be addressed via congressional action. Further, if I'm reading it right it would seem that the government could be viewed in contempt for detaining any person for any length of time under the authorization of the struck down sections. While that may not have been the judges intent, that would be something that should certainly be clarified.

[Grumman]

The crux of the government's appeal is not only that plantiffs in this particular case have no standing (P.34 et al),

Which, like the al-Awlaki case, amounts to a claim that you should never have standing, not until you're dead or in a government oubliette and physically prevented from taking advantage of it. That alone is reason to view this claim with suspicion.

but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al).

Again, this is nonsense. If Obama gave a shit about infringing upon the conduct of military operations, he wouldn't have been trying to muscle in and take a piece of the pie for the executive.

Indeed, they also cite that the ruling is unneccessary because the law is written in such a manner as to be consistent with the constitution (P.31 et al).

The accused shall enjoy the right to a speedy and public trial. If Obama's misreading this out of incompetence rather than malice the University of Chicago should sue to get back what they paid him, because he doesn't know jack about the US constitution.

Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

This... might be accurate. I'd need to know more about how the US government does things to say whether that's standard procedure, let alone a binding requirement.

[TheHammer]

The crux of the government's appeal is not only that plantiffs in this particular case have no standing (P.34 et al),

Which, like the al-Awlaki case, amounts to a claim that you should never have standing, not until you're dead or in a government oubliette and physically prevented from taking advantage of it. That alone is reason to view this claim with suspicion.

Actually Awlaki would have had standing, had he surrendered himself and sought to exercise his constitutional rights as a US citizen. The Journalists in this case however made claims that they could be detained for actions that no one had ever been detained for. It was entirely speculative with no supporting precedent.

but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al).

Again, this is nonsense. If Obama gave a shit about infringing upon the conduct of military operations, he wouldn't have been trying to muscle in and take a piece of the pie for the executive.

Congress, with a Republican controlled house, passed this bill. That doesn't equate to Obama "muscling in". Further, even if it were an attempt ot "muscle in" as you put it, that would not justify the executive simply throwing up their hands and surrendering when they are given a ruling that oversteps established precedent.

Indeed, they also cite that the ruling is unneccessary because the law is written in such a manner as to be consistent with the constitution (P.31 et al).

The accused shall enjoy the right to a speedy and public trial. If Obama's misreading this out of incompetence rather than malice the University of Chicago should sue to get back what they paid him, because he doesn't know jack about the US constitution.

Actually they make a strong case in the appeal citing federal court precedent as to why it is constitutional. Obama didn't write the appeal himself so your half assed attempt at being witty fails.

Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

This... might be accurate. I'd need to know more about how the US government does things to say whether that's standard procedure, let alone a binding requirement.

Again, the appeal cites existing precedent as support for this. If you would "Like to know more" I'd suggest starting there, or even a good old fashioned google search.

[Simon_Jester]

This... might be accurate. I'd need to know more about how the US government does things to say whether that's standard procedure, let alone a binding requirement.

That's not how rulings on constitutionality work- you don't get to just ignore a district or appeals court judge because the ruling hasn't gone to the Supremes yet.

Actually Awlaki would have had standing, had he surrendered himself and sought to exercise his constitutional rights as a US citizen. The Journalists in this case however made claims that they could be detained for actions that no one had ever been detained for. It was entirely speculative with no supporting precedent.

Ham, there really is a precedent for "chilling effect." A law can be unconstitutional because it scares people into thinking they'll lose their rights, not just because someone's rights really have been violated some years ago and they finally got around to getting in touch with a lawyer after N years of torture and sleep deprivation.

If the fear is well enough founded, and the law really permits unconstitutional acts, then the law can be struck down. This one does, nad it does.

Congress, with a Republican controlled house, passed this bill. That doesn't equate to Obama "muscling in". Further, even if it were an attempt ot "muscle in" as you put it, that would not justify the executive simply throwing up their hands and surrendering when they are given a ruling that oversteps established precedent.

If the executive branch has to follow the law, then they're going to have to follow the ruling until an appeal goes in. The legal question is why they are appealing the ruling at all; in this case, they're going to bat for their own right to throw American citizens in jail at will for being Very Bad People.

I fail to see why I should trust such a person any farther than I can throw him.

[Terralthra]

but more importantly that the ruling is overbroad and goes beyond what is neccessary to ensure constitutional protection, and infringes upon the conducting of military operations (P.36 et al).

Again, this is nonsense. If Obama gave a shit about infringing upon the conduct of military operations, he wouldn't have been trying to muscle in and take a piece of the pie for the executive.

Errrrrrrr...the military is part of the executive branch.

Further, their argument is that the issue should be decided by the SCOTUS and, citing previous rulings that acts of congress should be presumed constitutional unless declared otherwise by the SCOTUS (P.19 et al).

This... might be accurate. I'd need to know more about how the US government does things to say whether that's standard procedure, let alone a binding requirement.

This isn't quite true. A Federal Appeals court can overturn a law, if they can find clear precedent from the SCotUS supporting that overturn. For example, if the US Congress passed a law banning "desecrating or insulting the flag of the United States", a Federal Appeals court could strike it down, citing Street v. New York, 394 U.S. 576 (1969) and Texas v. Johnson, 491 U.S. 397 (1989), under the logic that the Supreme Court has already ruled on 1st Amendment/flag desecration. The original plaintiffs (Congress, or whomever) could try to appeal to the SCotUS, but they'd most likely deny cert (letting the Appeals court ruling stand), unless they really wanted to examine the issue again (times have changed, blah blah blah. It happens).

[TheHammer]

This... might be accurate. I'd need to know more about how the US government does things to say whether that's standard procedure, let alone a binding requirement.

That's not how rulings on constitutionality work- you don't get to just ignore a district or appeals court judge because the ruling hasn't gone to the Supremes yet.

No one is ignoring the ruling, hence why they are asking for stay pending the appeal.

Actually Awlaki would have had standing, had he surrendered himself and sought to exercise his constitutional rights as a US citizen. The Journalists in this case however made claims that they could be detained for actions that no one had ever been detained for. It was entirely speculative with no supporting precedent.

Ham, there really is a precedent for "chilling effect." A law can be unconstitutional because it scares people into thinking they'll lose their rights, not just because someone's rights really have been violated some years ago and they finally got around to getting in touch with a lawyer after N years of torture and sleep deprivation.

If the fear is well enough founded, and the law really permits unconstitutional acts, then the law can be struck down. This one does, nad it does.

The appeal pages 24-28 largely answer that and make the case that such fears are not well founded and cite case law to support it. I'm not going to presume the outcome of a SCOTUS decision on it, but its hardly the "unquestioned truth" you seem to think it is.

Congress, with a Republican controlled house, passed this bill. That doesn't equate to Obama "muscling in". Further, even if it were an attempt ot "muscle in" as you put it, that would not justify the executive simply throwing up their hands and surrendering when they are given a ruling that oversteps established precedent.

If the executive branch has to follow the law, then they're going to have to follow the ruling until an appeal goes in. The legal question is why they are appealing the ruling at all; in this case, they're going to bat for their own right to throw American citizens in jail at will for being Very Bad People.

I fail to see why I should trust such a person any farther than I can throw him.

As noted, the executive has not made any statements that they wouldn't follow the law. That's why they are asking for a stay pending the appeal rather than giving the court the finger and saying they'll do whatever they damn well please.

I suspect you didn't actually read the appeal or you would know why they are appealing the ruling, and why they feel that such an appeal will prevail in the SCOTUS. HINT: Its got nothing to do with wanting to throw journalists in jail for writing bad things about the U.S. government.

Further, The idea that American citizens could be detained "at will" and held "indefinitely" was never valid to begin with. Page 25 of the appeal spells that out for anyone who didn't implicitly understand that the NDAA is and was always subservient to the constitution that specifically forbids such action.