Indefinite detention provisions of NDAA ruled unconstitutional

In a critical move for the preservation of civil liberties, Federal Judge Katherine Forrest issued a permanent injunction on September 12 preventing domestic military detention. Her ruling prevents implementation of the indefinite detention provision of the National Defense Authorization Act of Fiscal Year 2012 ("NDAA"), affirming a preliminary injunction she previously granted in May. BORDC supported the case, filing an amicus curiae brief arguing that the law's detention powers are unconstitutional.

President Obama signed the NDAA into law on December 31, 2011, inciting much distress over the perilous powers it granted to the executive branch and the military. The NDAA affords, for the first time in US history since the Japanese internment, military authority to indefinitely detain persons within and outside of US soil.

Section 1021, in particular, could have authorized the indefinite detention of anyone, including Americans, suspected -- but not proven --- to have "substantially supported Al-Qaeda, the Taliban, or associated forces". In enjoining this portion of the NDAA, Judge Forrest criticized its unconstitutional ambiguity. She condemned the 'support or association' standard for indefinite detention, suggesting that its lack of specificity could enable the detention of  journalists, such as those who brought the suit.

Judge Forrest asked whether individuals who merely express extreme or unpopular views -- by posting YouTube videos, for example -- could be subjected to military detention under the NDAA even if they do not rise to the level of assisting Al-Qaeda, the Taliban, or their networks. Government lawyers conceded that the journalists' concerns were legitimate, prompting journalist (and BORDC adviser) Naomi Wolf to describe the law as "dictatorial."

Judge Forrest also cited the constitutional implications flowing from the NDAA's over-broad authority, noting the government's capacity to detain individuals over social and political opinions may have a chilling effect on protected First Amendment speech. Such potentially oppressive powers fly in the face of the liberties our nation purports to uphold.

Finally, Judge Forrest invoked the Fifth Amendment in her ruling limiting the NDAA. Pronouncing that capture and detention without notice violates due process, Judge Forrest found the standards under section 1021 too tenuous to risk the paramount interest in liberty.

While exciting, the ruling represents but one significant victory reinforcing various nationwide initiatives against the NDAA.  Resistance against the NDAA also spans the political spectrum: Arizona and Virginia, both traditionally red states, have joined the ranks of Rhode Island and Hawaii, two traditionally blue states, in pledging non-cooperation with the law's detention powers.  This solidarity across political lines shows that concerned Americans will not tolerate the erosion of our liberties.

The ruling against the NDAA's indefinite detention provision signifies a crucial blow against the interests placing freedom in jeopardy. Its implementation could have hearkened to Korematsu, Jim Crow laws, exclusion policies, and other systematic assaults on liberty which have tainted US history. Although the government promptly appealed Judge Forrest's decision, her opinion vindicates the expressed concerns of the people, demonstrating that a persistent, united voice can contest and overcome assaults on our individual and collective freedoms.

But stay tuned: the Obama administration has appealed Judge Forrest's ruling to the US Court of Appeals for the Second Circuit.

Read Judge Forrest's opinion or learn more about the NDAA and its implications.

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