UPDATE: Well, that was fast. Our progressive hero, ConLaw prof, former opponent of the Patriot Act, warrantless wiretapping and all that, just filed and appeal.
ORIGINAL: We just won the lawsuit against Obama et al over the indefinite detention provisions of the fiscal 2012 National Defense Authorization Act. These provisions represented a blatant violation of due process and First Amendment rights, and plaintiffs argued that they were already having a chilling effect on journalists and activists.
The NDAA included a clause which afforded the military the power to detain civilians — even Americans — indefinitely, without charge or trial, if they are accused of certain anti-state crimes or are accused of “substantially supporting” those accused of said crimes or forces associated therewith. If that sounds tortuous and nebulous it’s because it is: What the heck does “substantially support” or “associated force” even mean?
In a sweeping 112-page ruling (which I’ve not yet read in full) Judge Katherine Forrest issued a permanent injunction against the use of such powers. Here’s Reuters:
A federal judge made permanent on Wednesday her order blocking enforcement of a U.S. law’s provision that authorizes military detention for people deemed to have “substantially supported” al Qaeda, the Taliban or “associated forces.”U.S. District Judge Katherine Forrest in Manhattan had ruled in May in favor of non-profit groups and reporters whose work relates to conflicts in the Middle East and who said they feared being detained under a section of the law, signed by President Barack Obama in December.
Plaintiffs include Chris Hedges, Noam Chomsky, Daniel Ellsberg, and others; Demand Progress members have raised more than $10,000 to support the lawsuit and used it to pressure lawmakers to revoke the provions in question. We lost a relatively narrow vote in the House a few months ago, and the Senate will take up amendments to end indefinite detention in coming weeks.
Demand Progress and its members are hopeful that Senators Reed, Whitehouse, and others will take this finding of unconstitutionality to heart and explicitly revoke the codification of the indefinite detention authority.
This ruling required great fortitude on the part of Judge Forrest: She was appointed by Obama just last year. After initially expressing concerns about the provisions in question — because they infringed on certain executive power, not because of all of the reasons above — Obama has consistently supported and defended them. He signed them into law under cloak of darkness on New Year’s Eve and has aggressively defended them in court. This’ll probably get appealed all the way up to the Supreme Court.
David,
Well done.
While there is an enormous amount of ground to cover if the federal government is ever going to be reined in to what should be the true limits of the Constitution, it’s nice to see a positive development.
I am by no means a textualist or a strict constructionalist, but it bothers me that many people forget that the Constitution was designed to be a limitation placed upon what the government could do in order to infringe upon the rights of the people. And yet 240 years later, look what has become of the relationship between our government, the Constitution, and the population at large.
Especially within the context of modern technology, the Framers would not be a happy bunch if they had any idea of how the federal government operates today.
David
Excellent.