Court enjoins Obama's NDAA detention law
The case against the NDAA (Hedges et al. v. Obama et al., 12-cv-00331-KBF, US District Court, Southern District of New York) said that the new law
threatened the civil liberties of ordinary Americans. Specifically, the
plaintiffs feared that, if they criticized, condemned, or complained
about the War on Terror, the government might accuse them of giving
“substantial support” to al-Qaeda, the Taliban, and other such groups.
At issue is Sections 1021 and 1022 (formerly 1031 and 1032). These
authorize the President to detain indefinitely anyone suspected of:
- Acting like a terrorist, or
- Giving aid and comfort to one.
The problem: Sections 1021 and 1022 are vague enough to let the
President detain anybody. Nor is the new law clear enough about
protecting a citizen of the United States from summary arrest or
detention under those sections.
The plaintiffs read like an “honor guard of the American left.” They include:
- Christopher Hedges, New York Times.
- Daniel Ellsberg, of Pentagon Papers fame. (See US v. New York Times and Washington Post)
- Noam Chomsky
They also include Birgitta Jonsdottir, a dovish Member of Parliament from Iceland.
The defendants include putative President Barack Obama, Defense
Secretary Leon Panetta, Senator (and sponsor) John McCain, Senate Floor
Leaders Harry Reid and Mitch McConnell, House Speaker John Boehner, and
House Floor Leaders Eric Cantor and Nancy Pelosi.
The plaintiffs filed their anti-NDAA suit on January 13. In March, Judge Katherine B. Forrest held a hearing. The government called no witnesses and introduced no evidence.
They cross-examined the plaintiffs and their witnesses; that was all.
Hedges testified that he had changed the way he reported on 17 groups
that the State Department has on its “terrorist group” list.
So yesterday Judge Forrest enjoined the government from enforcing the detention-law parts of the NDAA. The case has not come to trial; this is an order on a motion for a preliminary injunction.
In the sixty-eight-page opinion and order, Judge Forrest held that the
government had its chance to show that the plaintiffs would not face
arrest or detention under the NDAA, and they did not. Judge Forrest further said that some of the terms in the NDAA were “so vague” that no citizen could be sure that he would not break that law. The judge took particular issue with:
- What is a covered person?
- What are associated forces?
- What does it mean, to support substantially al-Qaeda, the Taliban, or associated forces?
The judge recognized that “associated forces” has special meaning
under the Laws of War. But the government never defined the phrase substantial support in such a way as to let everyone know when he or she might be guilty of that.
The order says that Congress needs to define covered person and substantial support better before they can enforce this law.
In the meantime, the House is working on another version that is just as offensive. But two Representatives, one from each party, have written an amendment to strike the detention-law parts from the Act altogether.
See Votes by State
News & Politics