Federal Court Rejects NDAA's Indefinite Detention, Issues Injunction

First time accepted submitter Arker writes "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. The Obama administration had argued, inter alia, that the plaintiffs, including whistleblower and transparency advocate Daniel Ellsberg and Icelandic Member of Parliament Birgitta Jonsdottir lacked standing, but Judge Katherine Forrest didnt buy it. Given recent statements from the administration, it seems safe to say this will be the start of a long court battle."

Comments

A small ray of hope

[colinrichardday]

It's about time someone stood up to the nightmare of a police state.

Re:A small ray of hope

[ZeroSumHappiness]

I love that they could indefinitely detain for "unknowingly supporting terrorism." Oh, that plumber you hired to fix your pipes was actually a terrorist? You supported him therefore you supported terrorism. WAT?

Re:A small ray of hope

[Anonymous Coward]

Oh, that plumber you hired to fix your pipes was actually a terrorist?

My good friends call me Harry.

Re:A small ray of hope

[MisterSquid]

I love that they could indefinitely detain for "unknowingly supporting terrorism."

To say nothing about the ways in which US politicians and government operatives make back-channel deals that support terrorism they find politically expedient. You won't see anyone being detained for that.

Re:A small ray of hope

[WrongSizeGlass]

I love that they could indefinitely detain for "unknowingly supporting terrorism."

To say nothing about the ways in which US politicians and government operatives make back-channel deals that support terrorism they find politically expedient. You won't see anyone being detained for that.

That's because what they do is knowingly support terrorism, which is completely different.

Re:A small ray of hope

[mspohr]

Even being a US citizen doesn't protect you.
Anwar al-Awlaki was a US citizen living in Yemen who was thought to have ties to al-Qaeda. His 16 year old son was killed a few weeks later. They were executed by the US (using unmanned drones) without a trial or even charges being brought in the US.
The Wikipedia page gives a fairly comprehensive biography. http://en.wikipedia.org/wiki/Anwar_al-Awlaki

Re:A small ray of hope

[kilfarsnar]

That had nothing to do with the NDAA. And yes, we should have had an in absentia trial first, but then you'd just be complaining it was a show trial.

Trials in absentia are generally illegal in the United States. In the 1993 case Crosby v. United States, the Supreme Court ruled that federal law "prohibits the trial in absentia of a defendant who is not present at the beginning of trial."

Re:A small ray of hope

[Tokolosh]

Either we (Americans) believe in our core values (Declaration of Independence, Constitution, Bill of Rights, Pledge of Allegiance, due process, etc.) or we do not. Personally, I do, because these values result in desirable outcomes in the long run, even if inconvenient in the short term.

These values apply universally. There are no exemptions for non-US citizens, location outside the US or convenience to US interests.

Re:A small ray of hope

[Vancorps]

Except that he's wrong, as others have pointed out. The term existing laws in there is pretty powerful.

No worries, SCOTUS will give it the green light

[crazyjj]

When it makes it to the Supreme Court, they'll affirm the law. They've been asleep at the wheel for 10 years, why wake up now? I'm pretty sure that most of them aren't even aware that there *is* a 4th Amendment at this point. And they probably think Habeas Corpus was a Roman emperor.

Re:No worries, SCOTUS will give it the green light

[crazyjj]

You mean like they struck down the Patriot Act, retroactive immunity for illegal wiretapping, and all the other laws that have made torture and infinite detention with no trial legal?

Re:No worries, SCOTUS will give it the green light

[cpu6502]

The Court can only strike-down cases brought before them, and the government (both Bush and Obama) have been very careful to make sure that doesn't happen. They drop the case before it ever has a chance to reach the justices.

BUT when the justices have reviewed cases, they've typically sided with the Constitution, such as striking down the Washington and other city's laws that effectively-forbid ownership of guns. Striking down a law that forced states to build nuclear disposal sites. Striking down warrantless searches of our cellphones. Striking down random stops along highways (unless there's a specific & urgent need: such as locating an escaped prisoner). The Court of the last ten years has done more to limit the government's power than the Court from 1940 to 2000 (which was expansionist).

Re:No worries, SCOTUS will give it the green light

[cpu6502]

>>>Libertarians think they're getting freedom by eliminating the government. They're just getting corporate slavery.

More like freedom where you choose which corporation you want to deal with. (1) Libertarians are not Anarchists. Just as Fascist/corporatists are not Communists. Libertarians don't want to eliminate government completely but instead, to quote Jefferson, "If it were possible to have no government, we would. But we need to government in order to protect our rights." He also said, "No man has a right to harm another, and that's all the government should restrain him."

(2) It is government that gave Comcast its monopoly over my neighborhood. If government were downsized, the monopoly would be gone. Other companies like Apple or MSN or Time-Warner could enter the market and give us some choice.

(3) And of course we'd still have safety nets for the poor. We'd still have Food Stamps, Housing assistance, welfare checks, and unemployment. I repeat: Libertarians are SMALL government, not no-government anarchists.

Re:No worries, SCOTUS will give it the green light

[Grishnakh]

I think you're mistaken.

The Republicans are offering corporate slavery.
The Democrats are offering corporate slavery.
There's some minor differences in the particular corporations they would enslave you to.

Signing Statement?

[Hatta]

What about Obama's signing statement in which he decried the very power he was accepting by signing the NDAA? Do you mean to tell me Obama was dishonest in his disapproval of infinite detention? Shocking.

The crazy thing is some people actually bought the argument that this clause was forced on him by Congress. The fact that he's defending it in court makes it absolutely clear what his stance on infinite detention is.

Re:Signing Statement?

[Hatta]

If he wanted to reject those provisions, he could've appealed to a court literally the minute he signed it.

If he wanted to reject those provisions, he should have vetoed it. Actually, if he wanted to adhere to his oath to uphold the Constitution, he is required to veto it. But he didn't, so we know how much an oath is worth to Barack Obama.

Re:Signing Statement?

[Hatta]

Obama directed the DOJ not to enforce the Defense of Marriage Act. He could do the same with any other law. This is why his argument that "we have to enforce the law" when it comes to Cannabis dispensaries is entirely bankrupt.

In that situation, we put the Justice Department in a very difficult place if we're telling them, "This is supposed to be against the law, but we want you to turn the other way." That's not something we're going to do.

That's not a difficult place at all, and entirely within his powers as the chief law enforcement officer in the country. He has the power to set priorities for federal law enforcement, including priorities of zero.

If you're someone who wants to laud Obama for his Civil Rights record, ask yourself how many gay people there are in jail for being gay. Then ask yourself how many Cannabis smokers there are in jail. Why not attack the bigger problem first?

Re:Signing Statement?

[marcop]

What about it? He should be thrown out of office on treason against the constitution. I'm not arguing whether or not any of his other policies are good or bad, and will not state my political affiliation. However, when a president blatantly violates a basic freedom that so many Americans have fought to protect, a freedom he has sworn to protect, then he deserves treason charges. And yes, GWB deserved it also for the exact same reasons.

But the sheep that live in this country will ignore it and instead either applaud or crucify him for his social policies. Pitiful.

Re:Signing Statement?

[Hatta]

Yes, but anti cannabis bigotry is far, far worse than anti-gay bigotry. Around 5-10% of the population is gay. Around 10-20% of the population smokes pot. Neither of these groups pose any threat to anyone whatsoever.

Gay people might get fired because of bigotry. Worst case scenario one is lynched, once a decade or so and there's a huge outcry of sympathy.

Pot smokers on the other hand go to jail regularly. Persecution of pot smokers is official government policy. When a harmless pot head is killed by a police officer, the officer generally gets a paid vacation for his trouble.

Every time a pot smoker is arrested, that's a hate crime.

Re:Signing Statement?

[Hatta]

Just how gullible are you? Has the phrase "He beats me because he loves me" ever passed your lips?

If selling out every democratic principle is what it takes to win Congress's trust, we don't need it. We'd be better off with a president that vetos every single grab for power and gets nothing else done, than we are with this collaborater.

Re:Signing Statement?

[artor3]

You've been tricked by a summary rife with propaganda.

The the lying demagogue who wrote the article states, "Given recent statements from the administration, it seems safe to say this will be the start of a long court battle." The deceitful bastard was clever enough to include a hyperlink, knowing you wouldn't click on it but would instead just accept it as gospel. But go ahead, click on it. The recent statements referred to are from a joint letter by several former officials. Their names?

Edwin Meese - Republican Attorney General under Reagan
Michael Mukasey - Republican Attorney General under George W Bush
Michael Chertoff - Republican Secretary of Homeland Security under George W Bush
Steven G Bradbury - Republican Head of the OLC under George W Bush
Daniel Dell'Orto - Republican Lawyer for the DOD under George W Bush
David Rivkin - Republican Legal Counsel to both Reagan and George HW Bush, and the guy behind the lawsuit against the ACA
Charles Stimson - Republican Deputy Assistant Secretary in charge of "Detainee Affairs" under George W Bush
Paul Butler - Can't find any details on this guy, but he's definitely not the Democrat of the same name who died in the 60s.
Seven Engel - One of the lawyers in the anti-ACA lawsuit.
Paul Rosenzsweig - Member of the Heritage Foundation, a well known right-wing think tank.

Do you really think anyone on that list is speaking for the Obama administration? Sadly, the truth takes time to dig up, and in that time hundreds of people have no doubt seen the summary and your post, and fallen for the propaganda. What hope does truth have against such well-engineered lies?

Re:Signing Statement?

[artor3]

So it's irrelevant that the summary is a lie? Sure, yeah, who gives a fuck about the truth when you have a political axe to grind.

Furthermore, Obama did not insist on the addition of "those two sentences for indefinite detainment". The indefinite detention section was already there, but only applied to Al Qaeda. Obama asked for it to be expanded to cover other terrorist groups. But it can't be used to "grab Americans off the streets", as you claim, because it also says:

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

But let me guess... that's also irrelevant. No truth is relevant if it goes against your limitless hatred.

Re:Signing Statement?

[DragonWriter]

It was OBAMA who told Congress to add those two sentences for indefinite detainment w/o trial.

There are more than two sentences about that.

The "two sentences" the administration fought to have added, once it was clear that the Congress wouldn't pass the NDAA without indefinite detention language, were the ones that provide that the indefinite detention provisions in the NDAA neither "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force" nor affect any "law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States".

The President stated at the time that the original language would be unconstitutional and unacceptable and require a veto, and -- in his signing statement -- that with the new language the provisions were still undesirable, and unnecessary since they had no effect beyond what had already been done by the AUMF.

The court in its preliminary injunction disagreed and said that as a principal of construction statutes should be read as doing something, and that the something that the NDAA did on this issue appears to be unconstitutional. The difference between the court on the administration isn't over whether the NDAA doing anything beyond what had been previously been found to be authorized by the AUMF and found constitutional by the Supreme Court in cases challenging actions under the AUMF would be unconstitutional, the difference is over whether the NDAA, on its own terms, actually does anything at all on the issue.

Note that this has set up a controversy under which a court siding with either the administration or those challenging the law would find no new power under the NDAA -- if the administration is right, the NDAA has no effect on indefinite detention powers regardless of its Constitutionality. If the challengers are right, the NDAA's detention provisions are unconstitutional, and, as such, have no effect.

(Probably in Guantanamo... the place Obama promised to close but never did.)

Congress blocking funds from being used for that purpose repeatedly since Obama came to office has nothing to do with that, right?

Constitutional rights...

[spidercoz]

They apply to everyone or they mean nothing. James T. Kirk taught me that, and I agree with him.

About time

[Anonymous Coward]

It's also about time we admit to ourselves that police state momentum (i.e. continuous expansion of government) is now in full swing and supported by ALL mainstream political interests. And the next step is admitting that those political interests work purely for themselves, and not "the people" as they claim (increasingly loudly).

Re:About time

[MobyDisk]

The step after that, is admitting that this is also supported by mainstream Americans. Here at Slashdot we would like to think that it is the people -vs- the politicians. But in reality the people support this too. Despite rhetoric to the contrary, most Americans trust the government and the military to look out for them, and so they support warrant-less wiretapping and infinite detention because they perceive that it protects them from terrorists.

I'm sorry, but the enemy is us.

Someone please free us

[Sloppy]

It's about time someone stood up..

..so that we don't have to. The last thing I want in November when electing congresspeople, senators, and presidents, is to be stuck with that responsibility. It's about time someone relieved us all from having to think about the kind of relationship we want there to be, between our government and its people.

The actual ruling

[Bob the Super Hamste]

For those who would like to read the actual 68 page ruling from Judge Katherine Forrest.

You're wrong

[Anonymous Coward]

"This is a brilliant lie" Nope, sorry chief, you fail. Read it AGAIN "Nothing in this section shall be construed to affect existing law" EXISITING LAW. Which in this case is the AUMF, already allowed indefinite detention by Presidential fiat. This law just codifies it. You are EXACTLY wrong.

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war. (b) Covered Persons. A covered person under this section is any person as follows . . . (2) 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. (c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following: (1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

The AUMF is the "existing law" the NDAA codifies, you simply have chosen to misread the statute.