Judge Strikes Indefinite Military Detention Law

     MANHATTAN (CN) – A federal judge on Wednesday permanently blocked the U.S. military from enforcing a law allowing it to indefinitely detain anyone accused of aiding or participating in terrorism.
     In May, U.S. District Judge Katherine Forrest issued a preliminary injunction barring the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.
     President Barack Obama signed the bill on New Year’s Eve.
     Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit weeks later, stating that his interviews with people the government considers terrorists could put him under the crosshairs of the statute.
     Six other dissenters, including MIT professor Noam Chomsky and Pentagon Papers source Daniel Ellsberg, joined as co-plaintiffs to form the self-styled “Freedom Seven.”
     At issue in the enormous law is one paragraph, Section 1021(b)(2), which lets the military hold anyone accused of having “substantially supported” al-Qaida, the Taliban or “associated forces” until “the end of hostilities.”
     Government lawyers were unable to define several of these phrases at hearings, Forrest noted.
     “When the government was asked by the court what the words ‘substantially supported’ mean, it was unable to provide a definition; the same was true for ‘directly supported,'” she wrote in her new order, which makes the preliminary injunction permanent. “There can be no doubt, then, these terms are vague.”
     That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.
     During the evidence phase, four of them — Icelandic Parliamentarian Birgitta Jonsdottir, reporter Alexa O’Brien, activist Kai Wargalla, and Hedges — testified that fear of the NDAA made them change how they worked, traveled and associated.
     Their testimony convinced the judge that the law had a “chilling effect” on free speech, making the law impermissible under First Amendment grounds.
     “Courts must safeguard core constitutional rights,” she wrote. “A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases — primarily decided during World War II — in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.”
     The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.
     U.S. Supreme Court Justice Antonin Scalia criticized that case as “not the court’s finest hour” because Quirin, a New York resident, could have been tried in a civilian court, according to the order.
     “Presented, as this court is, with unavoidable constitutional questions, it declines to step aside,” Forrest wrote.
     She blasted the government’s position that federal courts should provide habeus, rather than judicial, review to military detainees as “without merit” and “dangerous.”
     “Habeas petitions (which take years to be resolved following initial detention) are reviewed under a ‘preponderance of the evidence’ standard (versus the criminal standard of ‘beyond a reasonable doubt’) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous,” Forrest wrote (parentheses in original). “If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.”
     The judge refused to “abdicate” her duty to protect constitutional rights out of deference for executive power.
     “The court is mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security,” the order states. “Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. 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.”

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