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Federal Judge Blocks “Indefinite Detention” Provision of the National Defense Authorization Act

New York, NY – U.S. District Judge Katherine Forrest in Manhattan has temporarily blocked enforcement of a provision in the National Defense Authorization Act concerning the detention of terrorism suspects that passed through Congress last year. The Obama appointee ruled that Section 1021 of the law likely violates free press and due process rights guaranteed by the First and Fifth Amendment.

This comes as good news for a wide ranging coalition of journalists, activists, conservatives, and libertarians who have been seeking to have the bill overturned. The multi-billion dollar defense funding bill sparked the debate last year as opponents warned that provisions in the NDAA of 2012 could allow the military to detain terrorism suspects on U.S. soil without charge or trial, even if they were U.S. citizens.

That group filed a lawsuit against President Barack Obama, Secretary of Defense Leon Panetta and a host of lawmakers in January. They claimed Section 1021 of the $662 billion defense spending bill was unconstitutionally vague opening the door to American citizens being arrested and held in military custody indefinitely.

As Off the Grid News reported last December, the provision poses significant conflicts with the Bill of Rights of our Constitution:

  • The 1st Amendment: If you make politically incorrect public statements about the war on terrorism, American policy in the Middle East, or the U.S. government in general, could this be a sign that you are actually a terrorist yourself? Maybe yes, maybe no – it will be up to military authorities to decide.
  • The 4th Amendment:  If the government does not really have to prove anything against you in a court of law, or rely on a warrant to take you into custody for the crimes they believe you may have committed, it is hard to think of a seizure that is more unreasonable than this one.
  • The 5th Amendment: This is the amendment that promises due process of the law for everyone suspected of or charged with a crime. The new detention provision, on the other hands, says “phooey” to the concept of due process.
  • The 6th Amendment:  This amendment promises a speedy and public trial by an impartial jury for all criminal suspects. The new detention provision promises the exact opposite.
  • The 8th Amendment: What could be more cruel and unusual than being locked away because of what you supposedly are – not because of anything you have necessarily done – and not being given any chance to defend yourself or rebut the charges against you?

Journalist and plaintiff, Chris Hedges, then argued that as part of his job he has direct communications with persons who are likely to be deemed engaged in hostilities with the United States. Section 1021 covers anyone who has “substantially supported” or “directly supported” “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

“The statute at issue places the public at undue risk of having their speech chilled for the purported protection from al Qaeda, the Taliban, and ‘associated forces’ – i.e., ‘foreign terrorist organizations,’” Judge Forrest wrote in her opinion. “The vagueness of Section 1021 does not allow the average citizen, or even the government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope.”

Lawyers representing the government have argued that the law merely restated the Authorization for Use of Military Force (AUMF), a law that allowed the President to “use all necessary and appropriate force” against those who had perpetrated the September 11 terrorist attacks. But Forrest noted that the AUMF was “tied directly and only to those involved in the events of 9/11,” while Section 1021 was much less specific.

“Ever since the law has come out, and because the law is so amorphous, the problem is you’re not sure what you can say, what you can do and what context you can have,” Hedges told the Associated Press. Judge Forrest said the issue could be resolved if Congress adds definitional language to the statute.


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