NDAA Injunction Has Broad Reach, Judge Says
(CN) - An injunction against the National Defense Authorization Act protects all, not just the named plaintiffs, a federal judge said, clarifying her order against a "constitutionally infirm" provision that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism.
U.S. District Judge Katherine Forrest granted the preliminary injunction to block section 1021 of the 2012 National Defense Authorization Act in May 2012. The provision permits the military to detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces" until the "end of hostilities."
The suit was brought by a group calling itself the "Freedom 7," including Pulitzer Prize-winning journalist Chris Hedges, Pentagon Papers whistle-blower Daniel Ellsberg, Massachusetts Institute of Technology professor Noam Chomsky, Icelandic parliamentarian Birgitta Jonsdottir, Occupy London organizer Kai Wargalla, and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.
Forrest's May decision noted that "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 an eight-page order Wednesday, the judge refused to reconsider the decision and rejected the government's attempt to narrowly limit application of the injunction for the named plaintiffs.
"The May 16 order found Section 1021(b)(2) constitutionally infirm on two bases: the First Amendment and the due process clause of the Fifth Amendment," Forrest wrote. "As set forth below, the law has long provided that this type of finding has provided relief to both the parties pursuing the challenge, as well as third parties not before the Court. ... Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court - or by Congress."
Quoting the injunction, the judge added: "The May 16 prder stated that there is 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.'" (Emphasis in original.)
"Therefore, as it stands, a narrower remedy circumscribing the injunction would not afford sufficient protection on the current record before this court," Forrest added.