Federal Judge Rules NDAA’s Indefinite Detention Unconstitutional and Issues Permanent Injunction Against It

Ruling Backed By Civil Liberties Groups Who Urge Obama to Give Up Defending Indefinite Detention

By Michael McAuliff / Huffington Post / September 13, 2012

Civil liberties groups are asking the Obama administration to stand down and give up defending America’s law allowing the indefinite detention of terrorism suspects after a judge Wednesday issued a permanent injunction against it.

The indefinite detention law — contained in the National Defense Authorization Act of 2012 — codified the post-9/11 practice of having the military jail suspects, including Americans, and hold them without trial.

Federal Judge Katherine Forrest reaffirmed on Wednesday her May ruling that the provision was unconstitutional, and made the ruling permanent. She had previously found that the law could be used to imprison activists and journalists without trial, noting that it does not define what it means to substantially “support” Al Qaeda or “associated” forces.

The detention provision in the NDAA affirms the administration’s right to detain a “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces.”

Forrest found that reporters who talk to and write about someone who could be defined as being part of an “associated force” could be deemed to be substantially supporting them.

“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest said in Wednesday’s new ruling. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”

Other plaintiffs in the case are Pulitzer prize-winning journalist Chris Hedges, Pentagon papers leaker Daniel Ellsberg and left-wing scholar Noam Chomsky.

It was not immediately clear whether the administration would appeal to a higher court, but civil liberties advocates were asking the White House to quit the case.

“Today is a day to celebrate,” one of the plaintiffs, Tangerine Bolen, said in a statement after the ruling. “After eleven years of witnessing a radical departure from democracy and fundamental civil liberties and towards increased authoritarianism — all under the guise of the war on terror — we have a ray of hope and reason to keep the faith.”

The group Demand Progress, which backed the lawsuit, is launching a a petition asking President Barack Obama not to appeal the ruling. They also want the Senate to stop the detention provision from being added to the NDAA for 2013, which has not yet been brought up for a vote.

“It’s wonderful to see Judge Forrest — a recent Obama appointee — buck the administration and stand up for the Constitution,” Demand Progress executive director David Segal said in a statement. “Our members urge Obama to stop defending this obscene abuse of executive authority, and ask our senators to oppose indefinite detention when they vote on the NDAA later this fall.”

The detention authority stems from the 2001 authorization to use military force passed by Congress after the Sept. 11 terrorist attacks. Supporters of the law contend that the 2012 NDAA did nothing more than reaffirm that power, and that the law of war supports detentions of anyone in times of conflict.

Forrest did not agree.

“The law of war has never been, and should not be, part of the domestic laws in the United States,” she wrote. “The law of war is vague by necessity — it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law.”