Judge rules against NDAA indefinite detention – Obama Administration immediately appeals

Judge Katherine B. Forrest

“Judge Katherine B. Forrest should go down in history as having pulled this Republic away from the abyss of Hell.”

– Naomi Wolf

On New Year’s Eve, December 31, 2011, President Obama signed into law H.R. 1540, the National Defense Authorization Act of Fiscal Year 2012 (NDAA).  This innocuous sounding bill, a version of which is passed every year, contained something much different than previous versions.  It contained a provision allowing the government to arrest anyone, anywhere, without a warrant, and to detain them indefinitely without trial or hearing.

For those who aren’t paying attention or who are willing to overlook mistreatment of foreigners in the name of the ‘War on Terror,’ this is one you shouldn’t ignore because it is directed at YOU. Let me repeat myself … this bill gives the federal government the draconian power to arrest American citizens … on American soil … without a warrant … and to detain them indefinitely … without trial or hearing. This is a law so destructive to our concept of due process that it has drawn criticism and concern from all corners of the political spectrum.

President Obama, in signing the bill, issued a signing statement in which he says that his administration has no intention of using the powers thereby granted. However, as the Young Turks illustrate in their January 2nd, 2012 report on the NDAA signing, once signed by President Obama, this became the law of the land and any future administration is free to use these powers.

But perhaps I, in my libertarian zeal, am merely exaggerating the implications of the NDAA.  Let’s see what the ACLU has to say about it.

“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law.”

“For the first time in American history, we have a law authorizing the worldwide and indefinite military detention of people captured far from any battlefield. The NDAA has no temporal or geographic limitations. It is completely at odds with our values, violates the Constitution, and corrodes our Nation’s commitment to the rule of law.”

“Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.”

Nope … It looks like they agree with me.  And they are not the only ones.  In early 2012, a group of influential progressives and anti-war activists including Pulitzer Prize winning journalist Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, and Alexa O’Brien filed suit against the Obama Administration seeking an injunction against the indefinite detention provisions of the NDAA. That case is Hedges v. Obama.

Back in May, Judge Katherine B. Forrest of the Southern District of New York issued a temporary injunction in the Hedges case.  In her injunction, she dismissed the administration’s argument that the powers granted under the NDAA were no broader than those already in place from the 2001 Authorization for Use of Military Force (AUMF).

In a responsive pleading filed on July 23rd, the Obama Administration imperiously demanded that the court “must not” decide the constitutional questions put forward by the plaintiffs.  Also, they noted, even if the injunction is made permanent, they will not consider themselves bound by it because in their opinion, it “would have ‘nil’ effect, for the government would continue to possess the identical detention authority under the 2001 Authorization for Use of Military Force.”

It never ceases to amaze me how much the left will tolerate from one of their own.  If President Bush had tried to strong-arm a court and then declared that he would ignore the results in any case, there would have been round-the-clock ‘constitutional crisis’ media coverage and calls for impeachment. But in the case of the Obama Administration, despite the warnings from the ACLU, no one in the mainstream media seems willing to address the issue with the seriousness it deserves.

But Judge Forrest was not intimidated and on September 12th, made her injunction permanent. She made it clear that the stakes do not get any higher than the threat of indefinite military detention during a ‘war on terror’ that will probably not end in our lifetime and the vague, overbroad language in the NDAA doesn’t even come close to passing constitutional muster when measured against such a threat to liberty and due process.

I join a host of other civil libertarians in saluting her wisdom and courage but the battle over indefinite detention is far from over.  It took less than a day for the Obama Administration to file an appeal with the Second Circuit Court of Appeals.  As the ACLU has so aptly noted, “the final word belongs to the Supreme Court” and I suspect this case may ultimately end up before the high court.

I have to say … For a president who insists he will never use this power, he is certainly willing to spend an awful lot of taxpayer money defending it.  It kinda’ makes you say ‘hmmm.’