WASHINGTON -- A day before Congress weighs an amendment to end indefinite military detentions in the U.S., a federal judge Wednesday ruled the law that allows the practice unconstitutional.
Saying the measure has "chilling impact on First Amendment rights," U.S. District Judge Katherine Forrest, of New York's Eastern District, found that a group of reporters and activists who brought the lawsuit had no way of knowing whether they could be subjected to it. That makes it an unconstitutional infringement on the First Amendment's free speech right and the Fifth Amendment's right to due process, Forrest said in a written opinion.
The lead plaintiffs -- Pulitzer Prize winner Chris Hedges of the Nation Institute and Tangerine Bolen, who runs the website RevolutionTruth -- argued that they conceivably could be grabbed under the law because they deal with sources that U.S. authorities may deem to fall under the law, Section 1021 of the 2012 National Defense Authorization Act.
The law defines the suspects who can be detained as a "person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces."
Forrest found the language too vague, and repeatedly tried to get government attorneys to say that the reporters' fears were unfounded. The lawyers declined.
"At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021," Forrest wrote. "Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.
"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," Forrest wrote. "In the face of what could be indeterminate military detention, due process requires more."
"We dealt a pretty big blow to two branches of Congress and President Obama," Bolen told The Huffington Post. Bolen got involved in the lawsuit because she worked extensively on the Wikileaks and Bradley Manning cases, and used her website to expose where the war on terror has gone tragically wrong, including interviewing Iraqis and Afghans with damning tales to tell.
"Given that I engage in those two activities and I have an entire team around the world, I really felt that under the vague language of the NDAA, someone like me could easily get in trouble," Bolen said.
"If I start showing that we're behaving in such an egregious manner in this country in our alleged war on terror, and I become a thorn in the side of the U.S government in fighting for our rights -- the phrase material support, I'm talking to, quote, alleged terrorists or people around the world who may be questionable -- just by talking to them and interviewing them on a platform, am I providing them material support?" Bolen said. "That was my fear."
The author and activist Naomi Wolf said watching the judge question administration lawyers repeatedly on the issue of who might be detained under the law -- and the lawyers not answering -- was downright chilling. To have the judge find that state of affairs unconstitutional was a profound relief, Wolf said in an interview.
"To hear those words -- it's so true, it's so obvious -- it puts in glaring relief the hideousness, the unconstitutionality, the darkness of this legislative efffort and others like it," Wolf said. "She is so completely, obviously right. It's nothing short of treason to have put forward legislation like this, let alone to have had most of the people who represent us and our president sign off on this clearly, obviously criminally unconstitutional -- unconstitutional is inadequate. It's anti-constitutional. It's dictatorial.
"I'm so happy as a mother. It's so profound. All of us were put in danger by this law."
The White House had no comment on the ruling Wednesday night.
Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.) are offering an amendment on Thursday to the 2013 Defense Authorization Act that would end the law. Amash sent an appeal to fellow lawmakers soon after the ruling, asking them to pass it.
"The amendment I’m offering with Rep. Adam Smith is the ONLY amendment that ensures that persons arrested on U.S. soil aren’t detained indefinitely without charge or trial," Amash wrote. "Voting against the Smith-Amash amendment allows the government to retain the power to detain persons, picked up in the U.S., for life, on the suspicion that they 'substantially supported' forces 'associated' with our enemies."
"If our constituents haven’t sent a clear enough message, tonight’s ruling surely does: Congress must act now to guarantee the constitutional right to a charge and a trial," Amash wrote.
The progressive group Demand Progress was among those directing voters to contact their elected representives about the law, using an online petition and a new Facebook tool.
The government has 60 days to decide whether to appeal.
Michael McAuliff covers politics and Congress for The Huffington Post. Talk to him on Facebook.
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The price of liberty is eternal vigilance and the people that we must be vigilant about pose as our leaders.
When the concept on indefinite detention can be adopted and accepted as a norm then we go down the rabbit hole away from even that tiny vestige of pretence at democracy we think we have.
The idea that the NDAA was one of the only bipartisan bills to pass through the 114 congress, Read More... puts the thought processes into pause because that’s anybody that suddenly can disappear off the street and never be seen or heard of again. No trial, no access to a judicial process and no real defense possible. Just gone into the shadows of the police state is frightening beyond belief and reads like a very bad futuristic novel, where we have to guard every word and fear everybody, as the citizens did in East Germany and do in China.
The Obama modifications only had 1 redeemable feature, oversight by the DOJ and a probable cause case having to be made.
Can you imagine the gall of the 2 houses of congress to vote for a veto proof bill that just took away your rights to exist and leave it up to the military to decide your fate?
When Obama signed NDAA, his signing statement was clear and he was acutely aware of the veto proof nature of what he signed into law.
He said he had reservations about the bills constitutionality and gave the more than implied message that it rightly so would be challenged on those grounds. It seemed that he set the stage for this case to come before the court system at the time of signing. It will be interesting to see if the DOJ decides to challenge the court decision or where the challenge will be mounted from, because total control of American citizen’s rights has been on the agenda for decades and the opportunity of the phony war on terror which was more a war to destabilize the economy, accelerate the starving of the beast that makes government functional, the furnace that created the media’s ability to hone the corporate propaganda message and use ever reliable fear, revenge, anger, alienation of an external other that vilified an entire religion and tactic they’d been developing in $ billion think tanks over the decades aimed at keeping people supplicant and prepared to give up right inherently written into the constitution aimed at protecting American’s from being subjugated by just such tactics, by just such people controlled by the very few, international moneyed elite.
Roll this into the austerity that is ripping apart Europe, and see a planned future of poverty for the masses and freedom to resist gone if both combine in the US.
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Posted: 05/16/2012 5:43 pm Updated: 05/17/2012 12:36 pm