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The Washington Post has a dangerously misguided editorial strongly defending the Executive's right to indefinitely detain even U.S. citizens under the Section 1021(b)(2) of the National Defense Authorization Act (NDAA) and criticizing Judge Katharine Forrest's recent opinion in Hedges v. Obama, which permanently enjoined Section 1021(b)(2)'s enforcement. WaPo mischaracterizes Section 1021(b)(2) of the NDAA as a well-reasoned compromise appropriately respectful of individual rights when in fact the NDAA grants the Executive branch broad, unchecked power to indefinitely detain Americans.

For those not following Hedges v. Obama, the lawsuit is a challenge to section 1021(b)(2) of the NDAA brought by

a group of writers, journalists, and activists whose work requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).
WaPo accuses Judge Forrest of "judicial activism" - a stale accusation thrown out against any number of judges who have stood up to executive power. (Former Supreme Court Justice Earl Warren weathered constant accusations of "judicial activism" as his court consistently ruled for school desegregation).  

Contrary to WaPo's cries of "judicial activism," Forrest was acting exactly as judges should act - as safeguards of individual constitutional rights. As the New York Times editorial board said:

The judge’s willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority.

Forrest's 112-page opinion is thorough, well-reasoned, and brave.

Some key quotes from Forrest's must-read opinion:

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.
When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.
Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
First Amendment rights are guaranteed by the Constitution and cannot be legislated away.
The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.
Shortly after Forrest issued her opinion, the Obama administration requested a stay, a request Forrest sharply rebuked. The Obama administration has pledged to file an emergency stay request with the Second Circuit Court of Appeals.

Judge Forrest deserves credit for confronting and correctly deciding the constitutional question presented by indefinite detention of Americans. Indefinite detention without due process is antithetical to a democracy, no matter what spin the Executive or WaPo editorial board puts on it.

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Comment Preferences

  •  Tip Jar (25+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Mon Sep 17, 2012 at 06:38:26 AM PDT

  •  The issue is not Constitutional rights, which (0+ / 0-)

    mostly address a citizen's rights to participate in governing. The issue here is Constitutional prohibitions restricting agents of government to assure as far as possible that HUMAN rights are respected:

    When humans, who are mobile creatures, are confined in space, that's a deprivation of a right, which is not to be infringed, except as a punishment for proven crime.
    The essence of liberty is to go where one wants. If people can be persuaded to stay in fixed or mobile cages (cars) that's one thing. Confining them against their will is another.
    Now, it can be argued that a person's will or sense of self is deficient and that his wandering about is harmful to himself and others and protective detention may be warranted.  But, that has to be proven on a case by case basis.
    Suspicion is not morally sufficient.  However, the law is often used to justify immoral or amoral behavior. Employing the law to unjustly deprive humans of rights has a long history.  If progress is to be measured by anything, it's the extent to which abusive legislation is reduced.  Which, of course, is precisely what has conservatives in a tizzy.  They perceive that using the law as a tool to abuse people they don't like or seek to exploit is being eroded. So, they look to religion to buttress their authoritarian desires.

    If the men and women who labor can't be forced to obey willy nilly, how will the incompetent be sustained? Who will prepare Willard's dinner, if he can't back up his demands?

    We organize governments to provide benefits and prevent abuse.

    by hannah on Mon Sep 17, 2012 at 07:05:17 AM PDT

    •  How is this issue not a constitutional right? (7+ / 0-)

      American citizens may not be deprived of life, liberty and/or property without due process of law.  Indefinite detention unconstitutionally circumvents due process of law.


      I tremble for my country when I reflect that God is just; that his justice cannot sleep forever. ~Thomas Jefferson

      by bobdevo on Mon Sep 17, 2012 at 07:38:18 AM PDT

      [ Parent ]

      •  Agents of government are subject (0+ / 0-)

        to prohibitions, which are able to be enforced by firing the agents of government. The basis of the prohibitions is human rights, which are derived from human nature or the Creator (take your pick), but are only indirectly enforceable by people respecting them.
        It was probably a mistake to include prohibitions, in the amendments, along with the directives in the body, because prohibitions are obviously easy to circumvent by simply re-writing the laws.  All of the deprivations visited on the American people throughout the history of EuroAmerican rule have been legal, beginning with the various charters issued by the crowned heads of Europe to deprive the native populations of their lands and resources. The law is not an inevitable guarantor of justice.  The law is often immoral, as we see in so-called "capital punishment," DADT, the PATRIOT act, DOMA, Military Commissions, forced sterilization, forced vaginal investigation, forced irradiation for inspection,  forced registration for military service, forced urine analysis, involuntary termination of parental rights and the definition of children as the property of their parents.

        The law has the potential to be more implacable than any flesh and blood tyrant. Why are none of the financial fraudsters going to jail? Because their deprivations of monetary assets were all legal.  They told the people who gave them money that it might be lost for ever.  So, when $40 trillion disappeared, it wasn't fraud. Only the mugger on the street who threatens physical harm, if you don't hand over your wallet, is committing a crime, unless he can persuade the judge that it was only a joke.

        We organize governments to provide benefits and prevent abuse.

        by hannah on Mon Sep 17, 2012 at 08:20:40 AM PDT

        [ Parent ]

        •  what? you say the Banksters actions were "legal" (1+ / 0-)
          Recommended by:

          ...why didn't you share that with Sen. Levin's Senate committee which found 'rampant fraud and abuse', or look at AGs in various States dealing with 'robo-signing', which btw IS illegal. There are a LOT of other proven examples of illegal activity and just because the man in the Wall Street House says it was 'immoral but mostly legal' doesn't make it a fact (mostly? how much is enough?).

          Either way forget your blizzard of words on the diary, what this is about is the Executive branch seizing power that violates the rights citizens have under the Constitution to say the President can detain 'indefinitely' anyone it chooses ,citing nothing but claims of secrecy.

          without the ants the rainforest dies

          by aliasalias on Mon Sep 17, 2012 at 12:33:26 PM PDT

          [ Parent ]

  •  Appeal (4+ / 0-)
    Recommended by:
    aliasalias, 2020adam, jarbyus, NonnyO

    To think that a democrat president will rush to appeal a decision that defends our civil liberties should be the greatest source of disappointment with President Obama. In the name of security, our democrat has trashed the constitution, persecuted whistle blowers and order the execution without due process of American citizens; including a 16 old minor. We have a choice to raise our voices in respectful disagreement with his atrocious policies or we could behave like ditto heads and cheer every pool that has him ahead. Remember that by hypocritically not holding our leader accountable we will be doing so at our own and more importantly, at our nation's peril.

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