Judge Strikes Down NDAA, Rules Obama Must Obey Constitution

Doug Book
The Western Center for Journalism

In a considerable setback for a president eager to ravage the due process rights of the American people, Federal Judge Kathleen Forrest granted a preliminary injunction on Wednesday, striking down those sections of the National Defense Authorization Act (NDAA) of 2012 which sought to provide Barack Obama the power to indefinitely detain citizens without benefit of their 5th Amendment rights.

Signed very quietly into law on New Year’s Eve, the controversial Act has been roundly criticized as unconstitutional by groups on both the political left and right. Of greatest concern was Section 1021, which grants the United States military authority to exercise police powers on American soil. Upon order of the president and at his sole discretion, agents of the military are empowered to detain “until the end of hostilities” anyone the president believes to have “substantially supported” al Qaeda, the Taliban, or “associated forces.”

Judge Forrest concluded that the Section “…failed to ‘pass Constitutional muster’ because its broad language could be used to quash political dissent.” In a statement clearly directed to lawmakers, she added,   ”Section 1021 tries to do too much with too little – it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass constitutional muster.” That is, Congress failed—perhaps deliberately– to define “substantial support” of terrorist groups or describe those activities which might be construed as crossing the legal line. And no law may be enforced if those to whom it applies are unable to clearly understand what a violation of that law entails…

…According to Democrat Senator Carl Levin, it was Obama himself who demanded American citizens be included under the detention law and that the President have exclusive authority to invoke the statute…

Also, Federal judge blocks National Defense Authorization Act provision, at the Los Angeles Times.

…In her decision published Wednesday, Forrest, in the Southern District of New York, ruled that Section 1021 of NDAA was facially unconstitutional — a rare finding — because of the potential that it could violate the 1st Amendment.

“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment,” she wrote, addressing the constitutional challenge.

Seven individuals, including Pulitzer Prize-winning former New York Times foreign correspondent Chris Hedges, MIT linguist Noam Chomsky and “Pentagon Papers” activist Daniel Ellsberg, had sued President Barack Obama, Defense Secretary Leon Panetta, and a host of other government officials, stating they were forced to curtail some of their reporting and activist activities for fear of violating Section 1021. That section prohibits providing substantial support for terrorist groups, but gives little definition of what that means. Environmental activists were also poised to join the suit if it expanded…

UpdateBill To End Indefinite Detention Fails In House

A judge may have found unconstitutional the law that allows people to be held indefinitely without trial by the military, but the House of Representatives voted Friday to keep it anyway…

…One Tea Party freshman, Rep. Morgan Griffith (R-Va.), took to the floor to note the judge’s verdict and cite a letter that Thomas Jefferson wrote to James Madison in 1787 arguing for the Bill of Rights. Jefferson insisted that such liberties should be spelled out, not left to “inference.” A key reason Forrest found the law unconstitutional was its vagueness and lack of definitions.

“Jefferson was not willing to allow us to rest on the rights of inference, nor should we in this Congress also be willing to rest on the rights of inference, and particularly when you have language such as this coming out of the court yesterday evening,” Griffith said. “As long as I serve in Congress, I will stand up for liberty and make sure that no citizen of the United States has their due process removed.”…

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