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NDAA Provisions Found Unconstitutional By Court

Back in December, when the National Defense Authorization Act was passed, many of us said that Section 1021 which authorized indefinite military detentions it would not stand up to a court challenge. It wasn’t really necessary for there to be a court challenge, because President Obama voided that section and anything else in the bill that limited Americans’ rights with an extensive signing statement. It was his first use of the signing statement to nullify a law or portions of a law. President George W. Bush did it almost 100 times to prevent Congress from exercising their Constitutional power of oversight. Signing statements cannot be overturned the way a veto can, and they have been used sparingly by every President except Bush because they reek of dictatorship.

But, the fact that the President voided those parts of the NDAA did not stop a group of journalists from bringing suit against the law. Lead plaintiffs Pulitzer Prize winner Chris Hedges of the Nation Institute, Tangerine Bolen of RevolutionTruth, joined by Daniel Ellsberg of the Pentagon Papers, MIT professor and activist Noam Chomsky and WikiLeaks Birgitta Jonsdottir, argued to Federal Judge Katherine Forrest that the law infringes on freedom of the press, freedom of speech and due process.

The prime issue to Hedges and Bolen is the vague definition in the law of who could be indefinitely detained as “a person who was a part of or substatially supported al-Qaeda, the Taliban or associated forces.” Hedges and Bolen, along with a lot of American journalists, have had contact with terrorists as part of their work. Anyone who has ever worked in the Middle East or has investigated terror cells in any country might have come in contact with such persons. In another one of those “if we don’t defend it, it will go away” moments we have come to appreciate in the Holden Justice Department, the DoJ attorney defending the law refused to say that the government would never detain without charges or trial any member of the press. If the DoJ had argued that based on what Obama would do, there was no guarantee that the promise of journalistic immunity would be honored by a subsequent administration. Better to have the law stricken down by the court.

Judge Forrest, who was appointed in 2011 to the historic United States District Court for the Southern District of New York, one of the first courts established by our government, ruled that she found the language of the law “too vague.” She wrote, “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doind so. In the fact of what could be indeterminate military detention, due process requires more.”

Bolen, unfortunately, went overboard with her victory speech. She said “We dealt a pretty big blow to two branches of Congress and President Obama.” Like Jonsdottir, she works on WikiLeaks and the Bradley Manning case and has interviewed Iraqis and Afghans as part of her defense of WikiLeaks and Manning. With typical WikiLeaks lack of journalistic research, she did not understand that the President had already voided the provisions she was objecting to. Jonsdottir, however, is an Icelandic citizen and this ruling would not blanketly exempt her from arrest if she were engaged in activities involving terrorists. Paranoia must be contagious in WikiLeaks because Bolen was pretty sure that if she “became a thorn in the side of the U. S. Government in fighting for our rights…” she could be rounded up and detained.

Author/activist Naomi Wolf was even more over-the-top with her assessment of the hearing, saying that she found the judges questions to the federal lawyers and them not answering chilling, saying “To hear those words — it’s so true, it’s so obvious — it puts in glaring relief the hideousness, the unconstitutionality, the darkness of this legislative efffort and others like it. She [Judge Forrest] is so completely, obviously right. It’s nothing short of treason to have put forward legislation like this, let alone to have had most of the people who represent us and our president sign off on this clearly, obviously criminally unconstitutional — unconstitutional is inadequate. It’s anti-constitutional. It’s dictatorial. I’m so happy as a mother. It’s so profound. All of us were put in danger by this law.”

I really hope that Daniel Ellsberg at least is mature and rational enough to understand that the Obama administration handed this ruling to them. President Obama was opposed to this section of the law, but could not veto the law without cutting off paychecks for our troops and their families. By using a signing statement, he preserved the operational flow of the military and killed those provisions he objected to.

Meanwhile, in Washington, Reps. Adam Smith, Democrat of Washington, and Justin Amash, Republican of Michigan, have offered an amendment to the 2013 National Defense Authorization Act that would also void Section 1021 of the 2012 National Defense Authorization Act. According to Rep. Amash, their amendment would “..ensure that persons arrested on U. S. soil aren’t detained indefinitely without charge or trial.” Amash asked his colleagues in the House to pass the amendment because, “If our constituents haven’t sent a clear enough message, tonight’s ruling surely does. Congress must act now to guarantee the constitutional right to a charge and trial.”

Aw, shucks. Didn’t anyone explain to Amash that his own party loves this section and loves to ignore the signing statement because then they can accuse the President of trying to be a dictator who “wipes his ass” with the Constitution.

I will never claim that I am familiar with every law that our Congress has ever passed or every court ruling ever handed down, but I can’t recall off-hand any time a section of a law was killed three times just for good measure.





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One Response to NDAA Provisions Found Unconstitutional By Court

  1. Susan

    May 18, 2012 at 2:11 pm

    A couple of questions about your NDA column of 17 May 2012
    1.). Is a presidential signing statement legally binding?

    2.). Is a presidential signing statement legally binding for future

    If the section of the legislation re: arrest and detention without
    due process is unconstitutional, as it certainly appears to be, why do
    ridicule the efforts to strike that section down in the courts?
    I am puzzled.