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UPDATE: Less than twenty-four hours later, as expected, Obama Justice Department files appeal to federal judge’s ruling.

Original Post

A federal judge issued a ruling on September 12 that permanently enjoined a provision of the National Defense Authorization Act (NDAA) that was signed by President Barack Obama codifying indefinite military detention into United State law last year. She found that the writers, journalists and activists who were plaintiffs in the lawsuit had demonstrated actual and reasonably that their First Amendment-protected activities could subject them to indefinite military detention and ruled the public had a greater interest in preserving the First Amendment and due process rights than allowing law enforcement to have this tool.

Judge Katherine B. Forrest, a judge appointed by Obama, had already issued a temporary injunction against Section 1021 of the NDAA. That section authorized the President to “use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF), including “the authority of the Armed Forces of the United States to detain covered persons.” The section said a “covered person” was “a 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.” Persons detained could be held without trial “under the law of war” until the “end of hostilities authorized by the AUMF.”

Journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, and Icelandic parliamentarian Birgitta Jonsdottir demonstrated in court during the trial that they were able to prove the provision could result in an “imminent and particularized, invasion of legally-protected interests.” In her 112-page ruling, the judge wrote, “Hedges, O’Brien, Wargalla, and Jonsdottir all testified to facts showing a chilling of their written, oral or associational activities. That is actual injury.” (For more specific details on the plaintiffs’ back stories, go here.)

Forrest concluded the plaintiffs had demonstrated monetary damages would not “redress the injury” and “considering the balance of hardships between the plaintiffs and government, injunctive relief” was warranted and “the public interest would not be disserved by the issuance of an injunction.” She also found the government had been “unable to provide this Court with any assurance” that these writers, journalists or activists’ activities would not subject them to military detention, as laid out in section 1021.

What she stated was remarkable: Hedges, Wargalla, O’Brien and Jonsdottir had “already been harmed” and would continue to be harmed if this section of the NDAA was enforced.

The judge did not stop there. Her permanent injunction systematically deconstructed the provision picking up on the core of the argument against the government in the case—that “substantially supported,” “directly supported,” and “associated forces” were vague or lacked specificity. She determined these terms did not appear in any prior case law and that “the respective meanings of the terms at issue” are unknown but “the penalty of running afoul of it is severe.”

She also stated:

…A key question throughout these proceedings has been, however, precisely what the statute means–what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2)…

This is profound. Since the September 11th attacks government has sought to claim powers that infringe upon liberties and do so without explanation on the mere basis that if government did explain what was being done they might reveal methods or techniques being used to defeat alleged terrorists. Judges have given great deference to the Executive Branch and allowed it to invoke the state secrets privilege to avoid accountability and justice for any crimes committed in the “war on terrorism.” But here, a federal judge is preemptively blocking a national security law before the government really has any opportunity to employ it on the basis that the government drew it up poorly and failed to properly define what could lead someone to be subject to indefinite military detention. Moreover, the judge is insinuating and suggesting throughout that the government would be able to use this power of preventive detention in an Orwellian manner and so she must intervene.

Forrest added it was impossible to understand the “scope” of this provision without key terms being defined. The government was unable or unwilling to provide definitions. The government expended little energy or resources in trying to provide the court with definitions. They did not take the vagueness seriously at all or think the judge would care that they had no interest in defining these terms, which were primarily responsible for the plaintiffs bringing a lawsuit against the government. She determined the “statute’s vagueness” fell short of “what due process requires.”

She eloquently outlined how this provision violated Americans’ right to due process:

…Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States. The President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute “substantially” or “directly supporting” terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far. Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ)…

Essentially, the judge found it had hollowed out an American’s right to due process. That alone is extraordinary, and even more extraordinary is the fact that a federal judge read into this law, made such an astute conclusion, and accepted the government might violate the due process of citizens if allowed to use this provision.

She also concluded the provision the government was defending in court could be used to target First Amendment activities. The government had not agreed or anywhere argued that activities protected by the First Amendment could not subject a person to indefinite military detention. They apparently wanted to keep options open in case they wanted to imprison someone in the future and all they had to support detention was speech. Forrest noted:

The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

The government had claimed throughout that the section of the NDAA was an “affirmation” of the AUMF, a position entirely illogical and not accepted by the judge. To this the judge stated in her ruling it had a “broader scope” and “directly” referred to the law of war.

No evidence had been put forth by the government indicating it needed the provision for “law enforcement efforts.” It had put itself in a tenuous position by claiming the NDAA provision simply “reaffirmed” the AUMF, because if that was so, then why was it necessary for the provision to be part of law?

The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes…that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF–a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government’s arsenal.

The government did not present evidence that there was a practical purpose to having the power to subject US citizens to indefinite military detention. The writers, journalists and activists had, however, shown how the law would impact their First Amendment and due process rights. Therefore the judge was obligated to permanently enjoin the law and urge Congress to fix the statute or examine whether this provision was ever needed at all. She stated, “Military detention based on allegations of ‘substantially supporting” or ‘directly supporting’ the Taliban, al-Qaeda or associated forces is not encompassed within the AUMF and is enjoined by this Order,” and “no detention” under the provision would be permitted.

In conclusion, this decision makes clear the preventive detention codified into law was purely an expansion of unchecked and authoritarian executive power. It demonstrates how the country is in a new phase of the “war on terrorism,” a dangerous phase that requires vigilance by citizens, like the filing of preemptive lawsuits, in order to stop the government from manufacturing new laws that further redefine civil liberties and universal rights that are granted to all Americans by the Constitution.

The government has reached the boundaries yet refuses to let those boundaries, such as rights laid out in the Constitution, constrain it. It seeks to make innovations of law that will match the totalitarian state which has been under construction for the past decade. The law is behind and in order to not have to wholly disregard it, lawyers have to redefine accepted concepts of law like due process in order to—as the Obama 2012 presidential campaign might say—move forward. (America is already redefining due process through a kill list that gives the president the power to extrajudicially assassinate any “terror suspects” abroad, whether they be US citizens or not.)

Writers, journalists, activists and other citizens must anticipate that they might be warrantlessly wiretapped because it is now legal, and in order to stop government, they must force government to define what gives it the power to violate someone’s privacy. They must anticipate what might lead the government to add them to a “No-Fly” list, because the government will not make public the criteria. They must file challenges in court to the addition of people to “kill lists” when they have reason to believe they have been added or when they believe they themselves could be added. This is because the national security state has no opposition from either major political party in the United States, the Congress no longer functions as a check on the Executive Branch, and the press yawns or gives government the benefit of the doubt each time it decides to expand the scope of its power to control people and undermine liberty.

A tremendous victory was won but Obama’s Justice Department will appeal the permanent injunction. They’ll defend their right to pass and implement Kafkaesque expansions of executive power. The lawsuit will likely be heard by a judge who is much more deferential to power than Forrest because most judges, unlike Forrest, have abdicated their duty to question and properly challenge how the government employs its national security policies. Nonetheless, it cannot be overstated: the plaintiffs in this case won when few thought they had any chance of winning and that proves that sometimes the most effective acts of resistance are acts that people engage in because they understand they have a moral obligation to take a stand regardless of how the system might be stacked against them.