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NDAA lawsuit back in court

President Obama courageously signed the 2012 National Defense Authorization Act on New Years' Eve, when most adults in the United States were probably in some state of inebriation. That particular version of the routine military funding bill allows the government to indefinitely detain people accused of being militants in the broadly defined war on terror against al Qaeda and "associated forces."

The President reportedly signed the bill despite "serious reservations." Recent executive action suggests that the indefinite detention provision wasn't among those that gave the President pause.

Former New York Times war correspondent Chris Hedges is among a number of academics, journalists and activists suing the government, arguing that the indefinite detention provision is unconstitutional because it chills First Amendment expression. He wrote:

The law was, after all, not about foreign terrorism. It was about domestic dissent.  If the state could link Occupy and other legitimate protest movements with terrorist groups, then the provisions in the NDAA could, in a period of instability, be used to ‘disappear’ US citizens into military gulags, including the government’s offshore penal colonies. And once there, stripped of due process, detainees could be held until, in the language of the law, ‘the end of hostilities.’ In an age of permanent war that would be a lifetime.

Congress doesn't seem bothered by this troublesome provision. And President Obama's "serious reservations" aside, his Justice Department is aggressively defending the power in a Manhattan court.

On March 29, 2012, the court held oral arguments on the constitutional challenge. Journalist Naomi Wolf, took the following notes:

Judge Forrest was pushing to determine the boundaries of the NDAA law.
 
Obama’s lawyer said that it would take a case of someone being detained under the NDAA, to find the parameters of the law.
 
Judge Forrest: “Is it really adequate to say you have to go to a DC court, in detention, to figure this out? Are you going to have to wait for courts other than this one to decide who ‘associated forces’ are? Is this the only way we can figure this out?”
 
She asked the government lawyer for an example of a boundary around “associated forces.”
 
Judge Forrest: “I don’t want precision. I want a boundary.”
 
Obama lawyer: “I don’t have specifics.”
 
Judge Forrest: “Associated forces”? What are they?”
 
Pause.
 
Judge Forrest: “If you can’t stand here and say, “1021 won’t touch Ms O’Brien [one of the plaintiffs]…unless, if you did, we would be done — if you can’t do that, you leave us in a tough spot here.”
Judge Forrest seems not to have been impressed by the government's vagueness.
 
In a rare civil liberties victory in May 2012, she issued a temporary injunction blocking the government from enforcing 1021 — the indefinite detention provision of the statute. The government has since appealed, arguing that the plaintiffs don't have standing to bring the lawsuit. Reuters:
In court filings, prosecutors have argued that the law is neither too broad nor overly vague, and that in any event the plaintiffs do not have standing to bring the case.
 
The plaintiffs "cannot point to a single example of the military's detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention," the United States said in court documents filed last month.
In other words the government says that the plaintiffs cannot point to a case in which an Occupy activist or a journalist has been indefinitely detained under the provision, even though the same government previously told the court room that it couldn't rule out throwing US citizens in jail over speech 'crimes.'
 
The case was back in court August 7, 2012, where Judge Forrest heard oral argument on the plaintiffs' request to make her temporary injunction against the law permanent.
 
When given the opportunity, Congress would not act to protect our freedom of speech or association from this dangerous executive power grab. Let's hope Judge Forrest sticks to her initial inclination and upholds the injunction.

© 2021 ACLU of Massachusetts.