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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsPermanent Injunction Against Indefinite Military Detention in NDAA Issued by Federal Judge
Judge Katherine B. Forrest, a judge appointed by Obama, had already issued a temporary injunction against Section 1021 of the NDAA. That section authorized the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF), including the authority of the Armed Forces of the United States to detain covered persons. The section said a covered person was a person who was part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces. Persons detained could be held without trial under the law of war until the end of hostilities authorized by the AUMF.
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Since the September 11th attacks government has sought to claim powers that infringe upon liberties and do so without explanation on the mere basis that if government did explain what was being done they might reveal methods or techniques being used to defeat alleged terrorists. Judges have given great deference to the Executive Branch and allowed it to invoke the state secrets privilege to avoid accountability and justice for any crimes committed in the war on terrorism. But here, a federal judge is preemptively blocking a national security law before the government really has any opportunity to employ it on the basis that the government drew it up poorly and failed to properly define what could lead someone to be subject to indefinite military detention. Moreover, the judge is insinuating and suggesting throughout that the government would be able to use this power of preventive detention in an Orwellian manner and so she must intervene.
Forrest added it was impossible to understand the scope of this provision without key terms being defined. The government was unable or unwilling to provide definitions. The government expended little energy or resources in trying to provide the court with definitions. They did not take the vagueness seriously at all or think the judge would care that they had no interest in defining these terms, which were primarily responsible for the plaintiffs bringing a lawsuit against the government. She determined the statutes vagueness fell short of what due process requires.
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Essentially, the judge found it had hollowed out an Americans right to due process. That alone is extraordinary, and even more extraordinary is the fact that a federal judge read into this law, made such an astute conclusion, and accepted the government might violate the due process of citizens if allowed to use this provision.
http://dissenter.firedoglake.com/2012/09/13/permanent-injunction-against-ndaa-provision-issued-by-federal-judge/
Comrade Grumpy
(13,184 posts)we rely on the judiciary to rein them in. Thank you, judge.
xchrom
(108,903 posts)MannyGoldstein
(34,589 posts)Our Founders were smart.
Hell Hath No Fury
(16,327 posts)Huge win for civil liberties!
redqueen
(115,103 posts)Could the tide be turning?
former9thward
(32,017 posts)Luminous Animal
(27,310 posts)I've heard nothing about an appeal yet.
former9thward
(32,017 posts)MadHound
(34,179 posts)However this will probably be bucked up to the Supreme Court, and given the authoritarian nature of the court, they will probably lift the injunction.
HiPointDem
(20,729 posts)sabrina 1
(62,325 posts)The balance of powers only works when at least one part of the balance understands their role in reigning in the others.
That was a very good ruling and badly needed.
patrice
(47,992 posts)NDAA 2012 Presidential Signing Statement.
Tigress DEM
(7,887 posts)Particularly this part:
section 1021(e)
Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
Smilo
(1,944 posts)Thank you Judge Forrest for being a voice of reason and ruling on law, not on personal ideologies.
backscatter712
(26,355 posts)Time to yank the police state's leash!
Laelth
(32,017 posts)-Laelth
lunatica
(53,410 posts)Luminous Animal
(27,310 posts)Tigress DEM
(7,887 posts)Not that I'm supporting the act in general, we have enough laws on the books for actual acts of treason and that seems like the real gist of why the power was granted.
Belligerent acts and journalists are like PBJ they just go together naturally, so I see why they were concerned. True 4th Estate reporting often tells truths that those in power don't want to hear. But telling the truth isn't necessarily "directly supporting hostilities" so I think the journalists were over playing their hand, but they won. Good for them.
a covered person was a person who was part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces. Persons detained could be held without trial under the law of war until the end of hostilities authorized by the AUMF.