A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.Given that I could unknowingly be supporting terrorism by writing this article, or knowingly supporting terrorism by marching with Occupy Oakland (whom at least one Oakland City Council member has referred to as "domestic terrrorists") it would make sense to me that it would be unconstitutional. The judge seems to agree...
There is a strong public interest in protecting rights guaranteed by the First Amendment," ((Federal District Judge)) Forrest wrote. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention...And then there's this:
((Plaintiffs)) Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O'Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm
In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities - i.e., an indeterminate period of timeI was taught back when we thought the Constitution meant something that no one could up and do something like that. Of course I was wrong, and it seems likely to me that the judge's injunction will be squashed on appeal and laughed out of the Conserapreme Court, but it's always nice to have a reason for a celebratory high-five, ephemeral as it may be.
Serendipitously, see also NDAA Indefinite Detention Vote is Tomorrow..., just diaried.
Forrest’s order prevents enforcement of the provision of the statute pending further order of the court or an amendment to the statute by Congress.
The case is Hedges v. Obama, 12-CV-00331, U.S. District Court, Southern District of New York (Manhattan).
I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade.4:28 PM PT:
David Seaman @d_seaman
EVERYONE, RETWEET AND DRINK IN CELEBRATION! Manhattan judge blocks #NDAA provisions: http://www.animalnewyork.com/...