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Indefinite Detention Blocked: District Judge Rules On Controversial Provision Of NDAA

By LARRY NEUMEISTER 05/16/12 07:31 PM ET AP

NEW YORK -- A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.

U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a "chilling impact on First Amendment rights." She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who "substantially" or "directly" provides "support" to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.

"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," the judge said.

She said the law also gave the government authority to move against individuals who engage in political speech with views that "may be extreme and unpopular as measured against views of an average individual.

"That, however, is precisely what the First Amendment protects," Forrest wrote.

She called the fears of journalists in particular real and reasonable, citing testimony at a March hearing by Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members, conversed with members of the Taliban during speaking engagements overseas and reported on 17 groups named on a list prepared by the State Department of known terrorist organizations. He testified that the law has led him to consider altering speeches where members of al-Qaida or the Taliban might be present.

Hedges called Forrest's ruling "a tremendous step forward for the restoration of due process and the rule of law."

He said: "Ever since the law has come out, and because the law is so amorphous, the problem is you're not sure what you can say, what you can do and what context you can have."

Hedges was among seven individuals and one organization that challenged the law with a January lawsuit. The National Defense Authorization Act was signed into law in December, allowing for the indefinite detention of U.S. citizens suspected of terrorism. Wednesday's ruling does not affect another part of the law that enables the United States to indefinitely detain members of terrorist organizations, and the judge said the government has other legal authority it can use to detain those who support terrorists.

A message left Wednesday with a spokeswoman for government lawyers was not immediately returned.

Bruce Afran, a lawyer for the plaintiffs, called the ruling a "great victory for free speech."

"She's held that the government cannot subject people to indefinite imprisonment for engaging in speech, journalism or advocacy, regardless of how unpopular those ideas might be to some people," he said.

Attorney Carl Mayer, speaking for plaintiffs at oral arguments earlier this year, had noted that even President Barack Obama expressed reservations about certain aspects of the bill when he signed it into law.

After the ruling, Mayer called on the Obama administration to drop its decision to enforce the law. He also called on Congress to change it "to make it the law of the land that U.S. citizens are entitled to trial by jury. They are not subject to military detention, policing and tribunals, all the things we fought a revolution to make sure would never happen in this land."

The government had argued that the law did not change the practices of the United States since the Sept. 11 terrorist attacks and that the plaintiffs did not have legal standing to sue.

In March, the judge seemed sympathetic to the government's arguments until she asked a government attorney if he could assure the plaintiffs that they would not face detention under the law for their work.

She wrote Wednesday that the failure of the government to make such a representation required her to assume that government takes the position that the law covers "a wide swath of expressive and associational conduct."

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NEW YORK -- A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journ...
NEW YORK -- A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journ...
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tedhices
I don't need no Wah-Wah
07:57 AM on 05/20/2012
MSM hasn't make much of a point on reporting this.
11:31 AM on 05/17/2012
Just when you thought being jaded was the only option..
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HUFFPOST SUPER USER
beautyandblack
war vetran
07:16 AM on 05/17/2012
I suppose it is too early to comment without waiting to see the version of the government as President made some reservations on some points of the Bill before he signed it into law..
DUSAA-1775
never moon a werewolf
06:56 AM on 05/17/2012
This judge must be confused. Obama took a course in constitutional law, therefore he must know if a law is constitutional or not..... do we really want the courts out there second guessing the most intelligent president ever?
12:20 PM on 05/17/2012
I really hope your kidding
11:44 PM on 05/16/2012
The final version of the bill provides, in sub-section(e), that:

"Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

So the NDAA of 2012 doesn't actually change law as it pertains to US citizens and those detained in the US.
11:28 AM on 05/17/2012
re-read section 1021
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deepintheheartoftejas
Middle o/t Road = Yellow stripes & dead armadillos
08:01 PM on 05/18/2012
The problem is that another part of section 1021 says basically, nothing in this is intended to limit the powers of the president or military. It is these seemingly contradictory phrases that contributed to the vagueness of the law, and prompted the finding in this court. How do you interpret something that says that nothing in the law can be construed to affect existing law, while another law in the same section says that section cannot be construed to limit executive power?
08:18 PM on 05/18/2012
I don't see how those two clauses are vague. The president (with the exception of the Lincoln Administration) has never had the power to detain US citizens indefinitely. Just because this law does not limit the Executive power doesn't necessarily mean it expands executive power. What you reference is merely a clause to avoid any potential separation of congressional and executive power issues.

Even if this law impliedly granted the authority to indefinitely detain US citizens absent trial, the Due Process clause would clearly supersede it. Since the constitution is "the supreme law of the land" and it was in existence prior to and adoption of the NDAA, the section I quoted above would expressly nullify this change.

I understand how people can be weary of this sort of law, but after reading the law myself it appears that it put these fears to rest rather completely.
10:56 PM on 05/16/2012
it's funny because when Obama 1st signed the NDAA I condemned it for this exact reason. all the dems called me crazy and said Obama would never sign something that gave the government authority to indefinitely detain US ctizens without a trial. now we know he actually did do that. everyone still calling themselves a democrat or a republican should be ashamed of themselves. this is the type of garbage they're passing while you two bicker over which robot you want to elect. wake up.
10:06 PM on 05/16/2012
Wow! A judge who stands against a clear violation of the constitution. I guess it had to happen eventually.
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Virgo4Obama
...of the people, by the people, for the people...
10:04 PM on 05/16/2012
I wish Obama had vetoed this as I am in stark disagreement with him here. But I understand why he didn't. If he had vetoed it the Republicans would be saying he vetoed the bill funding the military. Their intransagence is so transparent.
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HUFFPOST SUPER USER
Peter Bushel
08:08 AM on 05/19/2012
You know that multiple democrats voted for this law as well right.....This is not a partisan issue. This was a bipartisan law that passed the house and senate easily!!! Do not give the president a pass on this issue. He should have vetoed the bill based on his principles because that is what leaders do!!!! Instead he just signed away our human rights and gave another person the permission to detain us for the rest of our lives!!!
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Virgo4Obama
...of the people, by the people, for the people...
07:52 PM on 05/19/2012
I don't see it is as giving him a pass. I'm very disappointed that he signed it. I was just stating that I understand the politics of it. But I get your point. 
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HUFFPOST SUPER USER
kennyhoff
The Stupid, It Burns!
09:26 PM on 05/16/2012
Those darn activist judges. Who does she think she is, upholding the bedrock principles of the constitution like rights to trial by jury?
09:14 PM on 05/16/2012
What Orwellian law will conbaggers try to get through next?
09:09 PM on 05/16/2012
May not be a bad idea, how does she have the authority to do that.
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Virgo4Obama
...of the people, by the people, for the people...
09:54 PM on 05/16/2012
It's checks and balances. The judiciary provides a check on the executive and legislative branches. The government will appeal to a higher court. Eventually, it will end up before the Supreme Court for the final verdict.
HUFFPOST SUPER USER
Chipper1
08:38 PM on 05/16/2012
Good for Judge Forrest but I am not going to celebrate yet. It seems this country always has some higher court judge overturn the decision of the lower court judge. Will this happen with Judge Forrest's ruling?
08:33 PM on 05/16/2012
With all the crazy stuff Obama has been signing, you'd never know he was (allegedly) a Constitutional lawyer.
HUFFPOST SUPER USER
ExistentialProtagonist
I've got soul, but I'm not a soldier.
08:28 PM on 05/16/2012
Took long enough.
I-US
Beware the monsters lurking in word swamps.
08:25 PM on 05/16/2012
There are so many problems with this law, but one of them is the potential military enforcement of this against US civilians.