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The NDAA Is Worse Than We Thought

By       Message Jana Nestlerode     Permalink
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The facts of the case made the holding sound reasonable.   Officer McFadden, a foot patrol officer observed three men behaving as if they were casing a local store.   They would take turns walking to the center of the block to peer into the window of a particular store, then return to confer with the other two.   The men were dressed in a manner which could easily conceal weapons.   After observing this for several minutes, Officer McFadden approached the men and asked them questions to which they responded unintelligibly. The officer then managed to force the three men into a nearby store and patted them down, finding guns on two of them.     Terry and his compatriot were subsequently charged with weapons offenses.

The government's argument that the officer had "probable cause" to arrest was rejected. The High Court instead carved out whole new law enforcement powers that permitted officers to act on less than probable cause.   The United States Supreme Court held that officers could "temporarily stop, detain and question" citizens when officers have a "reasonable suspicion" that criminal activity is afoot". The Court reasoned that officers should have the authority to act to prevent crime, as well as to solve it once it occurs.   Police officers were permitted to detain citizens for about an hour to gather further information.   If at the end of that hour, probable cause had not been established, the officers were obligated to release the citizen. This seemed a sensible response given the fact that Officer McFadden had observed behavior sufficient to give rise to a reasonable suspicion that a crime of violence was about to occur.   Judge Douglas, however, was not so sure.    In his dissenting opinion, he warned that the granting of this power to law enforcement officers to detain an individual "whenever they do not like the cut of his jib, if they can "seize' and "search' him in their discretion, we enter a new regime. "   He called the decision a "long step down the totalitarian path".

The Terry decision was rendered in a case involving suspicion of an imminent crime of violence.   But since then, the High Court has expanded the doctrine to allow the "temporary detention" of luggage, packages, mail and vehicles.   In addition, the High Court has allowed such detentions based upon mere hearsay, rather than on the direct observations of the officer as had been the case in Terry.   Further, the Court has permitted detentions for suspicion of previously committed crimes.   The rule is no longer a suspicion that criminal activity IS afoot, but that criminal activity WAS afoot.   In addition, police may now perform detentions on mere suspicion of even minor, non-violent offenses.  

The right of law enforcement officers to "frisk" a detainee was a separate issue from the right to "detain".   The right to "frisk" was limited in Terry to those instances where the officer had a "reasonable suspicion" that the detainee may be armed and dangerous.    The Court permitted police officers to conduct the frisk for weapons only for the purpose of keeping the officer safe.    But in 1993, the Court adopted the "plain feel" doctrine, permitting officers conducting such a frisk the right to seize items other than weapons.   The frisk designed to ensure officer safety had now been expanded to a patdown for contraband and other items.   So the U. S. Supreme court, through Terry and its progeny, had already severely diluted historic Fourth Amendment protections.   (We see this effect quite graphically with the alarming increase in "stops" performed by the New York City Police Department.)

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What constitutes behavior that would give rise to a "reasonable suspicion" of criminal activity is always an interesting debate.   United States v. Sokolow was a 1989 Supreme Court case dealing with drug courier profiling.   In his dissenting opinion, Justice Thurgood Marshall concluded that drug courier profiles had a "chameleon-like way of adapting to any particular set of observations."   He cited the facts asserted by the government in various cases which allegedly could give rise to a "reasonable suspicion", thereby justifying the detention of a citizen:   suspect was first to deplane, suspect was last to deplane, suspect deplaned from the middle,   the suspect purchased one-way tickets, the suspect purchased round-trip tickets, the suspect took a non-stop flight, the suspect changed planes, the suspect had no luggage, the suspect was carrying a gym bag, the suspect had new suitcases, the suspect was traveling alone, the suspect was traveling with a companion, the suspect acted nervously, the suspect acted too calmly.   The bottom line is that it so easy for an officer to come up with a "reasonable suspicion" that it is really no level of proof at all. (Other organizations have identified an even lengthier list of "suspicious" characteristics that could be attributed to virtually everyone.)

So even if we assume that Section 1021 permits the military to detain American citizens only on "suspicion" of a connection to terrorism, there is no solace. Congress has essentially enacted a law that permits the military to detain citizens for any reason whatsoever, no matter how whimsical or contrived.  

Did the government throw the case?

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The plaintiffs' arguments in the recent challenge to the law centered on First Amendment Free Speech issues and Fifth Amendment Due Process issues.    They successfully argued that section 1021 had a "chilling effect" on free speech, (and freedom of the press) as journalists, correspondents, writers and reporters could not carry on their trade of reporting facts to the public if the information might have come from some "person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."     In many circumstances, journalists do not and cannot know whether a source might fit this broad definition.  

The plaintiffs also prevailed on their Fifth Amendment Due Process argument.   Generally, for Congress to enact a law, the wording of that law must give sufficient notice as to what is forbidden.   That is, a plain reading of the text of the law must provide the average citizen with clear guidance as to what he may or may not do.   When a law is unclear it is "void for vagueness" and is a violation of the "fundamental fairness" promised by the Fifth Amendment Due Process Clause.  

Congress sometimes uses broadly defined terms in legislation for the very purpose of giving the executive branch the greatest latitude possible.   But when they do so, they run the risk that the law will be void ab initio (invalid from its inception) because it is too unclear.   The problems with Section 1021 are obvious.   What does the term "associated forces" mean?   Do dissident groups in other countries which share Al Qaeda's animosity towards the United States qualify?   Do domestic or international

peace groups advocating for negotiations rather than military action qualify?   What does "substantially supported" mean?   Does contribution to an international charity whose funds find their way to feed and clothe the children of a "terrorist" make one a "covered person" now subject to detention?   Does giving voice to grievances of oppressed groups that resort to violence qualify as "substantial support"?   What does "directly supported", as opposed to "substantially supported" mean?   And what is a "belligerent act"?    Is it a "belligerent act" to demonstrate for peace or to join Occupy Wall Street in their myriad protests?   

The dialogue recounted in Judge Forrester's opinion would be laughable if the issues were not so serious.   With regard to the meaning of the term "substantially support", Judge Forrester asked:

"Give me an example. Tell me what it means to substantially support associated forces.

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Government: I'm not in a position to give specific examples.


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Professor of Criminal Justice

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