A federal judge has upheld her previous preliminary injunction against provisions of the National Defense Authorization Act that would allow the government to seize “terror suspects” and detain them indefinitely in military custody without charge or trial, including United States citizens on American soil.
On May 16, Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued a 68-page opinion and order blocking Section 1021 of the 2012 National Defense Authorization Act (NDAA) on the grounds that the provision failed “pass constitutional muster” – specifically the First and Fifth Amendments – because its broad language could be used to suppress political dissent. On June 6, Forrest issued an eight-page decision rejecting the Obama administration’s request for “reconsideration” and reiterating her earlier ruling banning the implementation of the NDAA’s indefinite detention provision.
President Obama signed the controversial $662 billion NDAA on New Year’s. In addition to funding the United States’ ongoing wars and the 900 military bases it maintains in 130 countries, the bill provides for the U.S. president to have draconian worldwide authority to order the military to seize anyone suspected of “terrorism” or “providing aid to terrorists” or “associated forces” anywhere in the world, including U.S. citizens on American soil, and detain them without charge or trial indefinitely.
During the year long controversy leading up to Obama’s signature on the bill, Indigenous Peoples expressed concern that the NDAA could be used against them for asserting their rights to self-determination and sovereignty or for protecting their lands and resources against exploitation by governments or corporations. Their fears were not so far-fetched considering 2011 was the year in which the government conflated American Indians with terrorism in two shameful instances —the military’s use of Geronimo as the code name for Osama bin Laden and the revelation that military commission prosecutors had compared the Seminole Indians to terrorists and had cited Andrew Jackson’s murderous actions against the Seminoles as a justification and precedent for prosecuting Al Qaeda suspects.
The president issued a signing statement with the bill in which he claimed “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” But his reservations did not center around constitutional rights regarding due process or international human rights laws concerning detention and interrogation, but rather over concerns that “some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe.”
Two weeks after Obama signed the NDAA into law, a group of writers and political activists filed the complaint challenging the constitutionality of Section 1021 and seeking a preliminary and permanent injunction against the NDAA’s implementation. The group included former New York Times reporter and Pulitzer Prize winner Chris Hedges, MIT professor Noam Chomsky, Daniel Ellsberg, the former military analyst and Vietnam anti-war activist, who set a model for Wikileaks by releasing the Pentagon Papers. The group asserted that that Section 1021 of the NDAA had already impacted their “associational and expressive activities” – their freedom to assemble and free speech rights – and that the language of the law is so vague that it “provokes fear” that they could be seized and subjected “to indefinite or prolonged military detention” for exercising their constitutionally protected right to political speech.
Forrest accepted their arguments. "There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in her May 16 ruling. "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."
In asking Forrest to reverse her May ruling, the Obama administration made three arguments: that the plaintiffs lack standing; that even if they had standing, they failed to demonstrate “an imminent threat” justifying an injunction; and that Section 1021 is “simply an ‘affirmation’ or ‘reaffirmation’ of the authority conferred by the 2001 Authorization for Use of Military Force (AUMF). The AUMF, however, which Congress passed a week after the September 11, 2001, terrorist attacks on the World Trade Center, limited use of the military specifically to those people who were responsible for the 9/11 attacks. The 2012 NDAA expanded that authority to anyone suspected of terrorism or aiding terrorists or “associated forces” without defining the terms. Forrest did not set aside the section of the NDAA dealing with the World Trade Center terrorists, but instead upheld the section of the NDAA that authorized the government to detain “those who planned, authorized, committed, or aided in the actual 9/11 attacks.”
The administration’s argument that Section 1021 “simply affirmed” the AUMF is at odds with Obama’s tacit acknowledgment in his signing statement that the NDAA expanded his authority to detain anyone without trial, including Americans. “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 (the NDAA) in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.” His statement was no comfort, however, since it would not affect how other administrations would interpret the law.
The administration went on to say in its brief that it was “extraordinary” for a judge to issue “an injunction regarding the President himself, or restraining future military operations (including military detention) under the President’s constitutional authority as Commander-in-Chief during a time of war.” In a footnote, the administration said it interpreted Forrest’s May 16 injunction as applying only to Hedges and the other plaintiffs.
But in her May 6 ruling, Forrest clarified that her earlier order found Section 1021 “constitutionally infirm” on the First Amendment and the due process clause of the Fifth Amendment and that kind of finding provides relief both to the parties challenging the law and others. “This court’s preliminary injunction was consistent with that precedent. Put more bluntly, the May 16 order enjoined enforcement of Section 1021 against anyone until further action by this, or a higher court – or by Congress,” Forrest wrote.
In the single footnote in her May 6 opinion and order, Forrest said that the Court had asked the parties in a June 1 telephone conference to confer among themselves and with each other and “report back to the Court with the vehicle they think is best to resolve this action once and for all.”