In the coming weeks Judge Katherine Forrest will decide whether to issue a permanent ban on the indefinite detention section of the 2012 National defence Authorization Act (NDAA).Journalists and activists have sued to stop the provisions, which would allow the government to indefinitely detain anyone who provides “substantial support” to the Taliban, al-Qaeda or “associated forces.”
The plaintiffs claim that the provisions are so vague they would chill free speech and restrict the ability to associate with people the government doesn’t like.
Based on the her previous ruling to temporarily block the provisions, Forrest is expected to make the controversial provisions permanently null and void for the time being.
The government will do everything it can to overturn any ban by appealing to the Court of Appeals for the Second Circuit and potentially the Supreme Court.
Carl Mayer, one of lawyers for the plaintiffs, said the case is “a tough fight” because in the history of the U.S. there have only been 130 laws that have been declared unconstitutional and upheld as such by the Supreme Court.
Nevertheless, Mayer is optimistic because of Forrest’s previous opinions.
In May Forrest ordered a preliminary injunction on the grounds that the provisions are so vague that they are unconstitutional based on the the First Amendment and the Due Process Clause of the Fifth Amendment.
The First Amendment protects free expression, including freedom of press rights so that journalists aren’t targeted due to the nature of their work and opinions they express. The Due Process Clause Fifth Amendment requires that U.S. citizens be “entitled to understand the scope and nature of statutes which might subject them to criminal penalties.”
The defendants — Barack Obama, Leon Panetta, John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor — then argued that the order only stopped the government from indefinitely detaining the plaintiffs.
But Judge Forrest clarified her decision on June 6 to “leave no doubt” that U.S. citizens cannot be indefinitely detained without due process.
The arguments revolve around Section 1021 of the bill, which says:
The President has the authority to detain persons that the President determines planned, authorised, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.The President also has the authority to detain persons who were part of or substantially supported, Taliban or al-Qaida forces 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 hostilities, in the aid of such enemy forces.
The government has argued that Section 1021 does nothing new and is simply an “affirmation” of the Authorization for Use of Military Force (AUMF), a joint resolution passed a week after 9/11. But the AUMF only says that the president has the authority “to use all necessary and appropriate force against those … [who] aided the terrorist attacks that occurred on September 11, 2001 or harbored such organisations or persons.”
The plaintiffs argued that the “substantial support” and “associated forces” language added to the NDAA is so vague that it would actively suppress free expression and association because the government could detain U.S. citizens without trial for speaking to anyone considered a “terrorist.”
Forrest has agreed with the plaintiffs so far.
She even provided the government the opportunity to define which actions and associations would lead to indefinite detention – thereby limiting the scope of indefinite detention powers – but the government chose not to.
Below is a very informative Revolution Truth panel held last week that included several of the plaintiffs and their lead attorneys as well as activists and journalists (including this reporter):
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