Friday, 14 September 2012 08:00

Indefinite Detention Provisions Struck Down by Fed Judge

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Judge Katherine Forrest, a New York federal judge, struck down a provision in the National Defense Authorization Act that allows Americans to be indefinitely detained just for being accused of supporting terrorist groups. The ruling was in response to a lawsuit brought by journalists and scholars who were concerned that the NDAA would allow them to be indefinitely detained for speaking their minds. Judge Forrest’s ruling reaffirms a ruling she issued back in May against the indefinite detention provision.

The National Defense Authorization Act has been quite controversial because it includes provisions that permit the indefinite detention of U.S. citizens. While the Obama administration and supporters of the NDAA had denied that the provisions found within the Act pertain to American citizens, analysts noted that there was no language in sections 1021 or 1022 of the Act — wherein the indefinite detention provision can be found — that exempted U.S. citizens.

Several lawmakers made efforts to combat the indefinite detention provisions.

Representative Adam Smith (D-Wash.), for example, wrote an amendment that would have required any suspected terrorists caught in the United States or its territories to be tried in civilian courts. He was joined by Congressmen Ron Paul of Texas, Justin Amash of Michigan, and John Garamendi of California.

The complaint of the lawmakers and other opponents was not simply that it violates the constitutional right to a trial but also that it doesn't work.

"In the last 10 years, we have successfully prosecuted — tried and convicted — over 400 terrorists," Smith said. "Even as we sit here today, there are over 300 terrorists in U.S. prisons."

Smith’s amendment failed.

Other efforts were made as well. writes:

Sen. Feinstein offered an amendment to make clear that only US citizens arrested overseas could be indefinitely detained by the military. That amendment failed 45-55. Senator Rand Paul, joined by five Democratic Senators (Leahy, Wyden, Merkley, Gillibrand, and Manchin), proposed an amendment to repeal the AUMF [Authorization for the Use of Military Force]. That amendment failed 30-67. And Senator Mark Udall (D-CO), joined by six Democratic Senators (Durbin, Leahy, Webb, Feinstein, Wyden, and Franken) and Senator Rand Paul (R-KY), proposed an amendment to remove the detention provisions from the NDAA. That amendment failed 38-60.

Naturally, the NDAA has faced some backlash from various civil rights groups and civilians who are concerned that the law violates a number of their constitutionally protected rights.

New York Times journalist Chris Hedges and academic Noam Chomsky brought a suit against the law, asserting it was too vague and could be used to stop journalists and other civilians from exercising their freedom of speech that is supposed to be guaranteed by the First Amendment.

Hedges and Chomsky also argued that the law was in violation of the Fifth Amendment.

According to Hedges, the indefinite detention provisions suggest “the totalitarian credo of endless war waged against enemies within ‘the homeland’ as well as those abroad.”

Agence France-Press reports, “Hedges said he already had cut back on contacts in the Middle East, for fear that his associations could lead to him being accused of breaking the law.”

Other plaintiffs on the case include Pentagon papers leaker Daniel Ellsberg and Tangerine Bolen, who runs the website Revolution Truth.

Judge Forrest agreed that the plaintiffs raised legitimate concerns about their rights and the potential for violation under the NDAA. In her ruling, she wrote that the plaintiffs in the case “present evidence that First Amendment rights have already been harmed and will be harmed by the prospect of the law being enforced.”

“The public has a strong and undoubted interest in the clear preservation of the First and Fifth Amendment rights,” she continued.

"First Amendment rights are guaranteed by the Constitution and cannot be legislated away," Forrest said in Wednesday's new ruling. "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."

According to the federal government, the NDAA gains its authority from the 2001 Authorization to Use Military force passed by Congress following the September 11 attacks. NDAA’s supporters argue that the NDAA simply reaffirms that power.

But Judge Forrest dismissed those contentions.

"The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity -- it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."

As a result, the court “permanently” halts the enforcement of the sections of the National Defense Authorization Act.

Judge Forrest’s recent ruling reaffirms a ruling she issued in May, when the court had issued a preliminary injunction against the indefinite detention provisions, asking Congress to reexamine the provision.

In May, Judge Forrest wrote, “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. 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."

Whether the federal government is going to appeal Judge Forrest’s ruling is unknown. Some civil rights groups are already urging the President not to appeal the decision, however.

Demand Progress, a group that backed the lawsuit against the NDAA, is launching a petition urging the Obama administration not to appeal.

Demand Progress is also calling upon the Senate to stop provisions for indefinite detention from being added to the NDAA for 2013, which is not yet up for a vote.

"It's wonderful to see Judge Forrest -- a recent Obama appointee -- buck the administration and stand up for the Constitution," Demand Progress executive director David Segal said in a statement. "Our members urge Obama to stop defending this obscene abuse of executive authority, and ask our senators to oppose indefinite detention when they vote on the NDAA later this fall."

Bolen celebrated the judge’s ruling in a statement following the ruling.

“After eleven years of witnessing a radical departure from democracy and fundamental civil liberties and towards increased authoritarianism—all under the guise of the war on terror—we have a ray of hope and reason to keep the faith.”

Related article: Federal Judge Permanently Blocks Indefinite Detention Under NDAA

Photo: Thinkstock




  • Comment Link Ross Wolf Sunday, 16 September 2012 21:18 posted by Ross Wolf

    Next Stop: NDAA Hell for Americans' Civil Liberties?

    Americans deemed by President Obama as Belligerent are vulnerable to Arrest and Indefinite Detention under the passed NDAA, National Authorization Defense Act.

    Recently the Obama Administration asked a NYC Federal judge to (stay) suspend a ruling by a U.S. District Judge (Katherine Forrest) that permanently blocked enforcement of vague provisions of NDAA that give the President authorization to lock up belligerents indefinitely. According to the Obama Administration—they (were justified) to lock belligerents up indefinitely—because cases involving belligerents directly-aligned with militants against the good of America—warrants such punishment.) Obama may use the NDAA provisions blocked by U.S. District Judge (Katherine Forrest) to round up without evidence millions of Americans alleging they are belligerents or threat to National Security. Hitler included similar provisions in his fascist (Discriminatory Decrees signed February 28, 1933). Immediately after German Parliament passed Hitler’s laws, the Reich Government ordered the arrest of German Citizens without probable cause or evidence; delegated power to German Police and other authorities to arrest anyone Nazi authorities claimed attempted or incited public unrest: arrested among others were outspoken Germans, writers, journalists, peaceful protestors and artists.

    The U.S. 2012 NDAA legislation Obama signed 12-31-11 is similar to Hitler’s 1933 fascist laws the SS and Gestapo used to target persons in Germany for arrest, imprisonment and execution without probable cause; and confiscate millions of dollars of property. Then Hitler used his laws to suspend Parliament insuring his laws could not be rescinded.

    During the Obama Administration's recent request for a (stay) to stop U.S. District Judge Katherine Forrest blocking enforcement of vague NDAA provisions, the Federal Government—never clarified what constitutes a (belligerent); or militant; or what belligerent activities (directly aligned with a militant) to order a belligerent’s arrest or indefinite detention; or what is against the good of America. Under NDAA, the U.S. Government or President could claim anyone was (directly aligned with militants) e.g. any political or other association; charge any activity, statement, writing or communication was (directly aligned) with an individual or group the government deemed (militant) to arrest and indefinitely detain Americans. Writers, journalists, Americans that disagree with or question U.S. Government or its allies—may under NDAA be subject to arrest and indefinite detention.

    The 2012 and not yet passed 2013 NDAA, like Hitler’s 1933 Discriminatory Decrees allow forced government censorship; warrant-less searches of private property and forfeiture of property from persons not charged with crime. Provisions in 2012 NDAA keep the door open for corrupt U.S. police; government agents and provocateurs which there are many, to falsify reports and statements to target any American, group or organization for arrest, indefinite detention, complete disappearance; civil asset forfeiture of their property.

    You may have noted NDAA referred to the USA Patriot Act. Under the Patriot Act, lending itself to Government / police corruption, the Federal Government may use secret witnesses and informants to cause arrests and civil asset forfeiture of Americans’ property. Witness(s) and informants may be paid up to 50% of assets forfeited. Federal Government under 18USC may use a preponderance of civil evidence, little more than hearsay to Civilly Forfeit Private Property. Under the Patriot Act innocent property owners may be barred by government knowing the evidence federal government uses to forfeit their property.

    Sections of 2013 NDAA are so broad, it appears U.S. Government or the President could (retroactively) deem an American’s past 1st Amendment activities prior to passage of 2012 NDAA—supported hostilities, terrorism or (Belligerents) to order the arrest and Indefinite Detention of any U.S. Citizen, writer, group or organization.

    Under NDAA It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated, not allowed legal counsel or habeas corpus may be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.

  • Comment Link not your business to publish Friday, 14 September 2012 20:57 posted by not your business to publish

    Praises to an American Judge that did the right thing, looks like Obama doesn't have all the judges in his palm.

  • Comment Link Michael Oberndorf, RPA Friday, 14 September 2012 17:37 posted by Michael Oberndorf, RPA

    And it goes without saying that the Obozo Injustice Department has announced it will appeal. The lawlessness of this bunch is beyond the pale...

  • Comment Link lastofall Friday, 14 September 2012 07:09 posted by lastofall

    It is nice to see sometimes that there are some left who are still able to discern between good and evil, right and wrong.

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