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Federal court enjoins NDAA

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A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon's ruling came as part of a lawsuit brought by seven dissident plaintiffs -- including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir -- 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."

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ's three arguments:

(1) because none of the plaintiffs has yet been indefinitely detained, they lack "standing" to challenge the statute;

(2)
even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and

(3)
 the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ's first argument -- lack of standing -- the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):

"In support of their motion, Plaintiffs assert that -1021 already has impacted their associational and expressive activities--and would continue to impact them, and that -1021 is vague to such an  extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention."

The court found that the plaintiffs have "shown an actual fear that their expressive and associational activities" could subject them to indefinite detention under the law,and "each of them has put forward uncontroverted evidence of concrete -- non-hypothetical -- ways in which the presence of the legislation has already impacted those expressive and associational activities" (as but one example, Hedges presented evidence that his "prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban" proves "he has a realistic fear that those activities will subject him to detention under -1021"). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that's because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.

Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, "plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment."

Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA's authorization to indefinitely detain not only Al Qaeda members, but also members of so-called "associated forces" and/or anyone who "substantially supports" such forces, and noted:

"Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a 'covered person.' In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an 'associated forces,' and what it means to 'substantially' or 'directly' 'support' such forces or, al-Qaeda or the Taliban. ..."

"The Government was unable to define precisely what 'direct' or 'substantial' 'support' means. . . Thus, 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."

Read the rest of this article at Salon

 

For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, more...)
 
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