NY Federal Judge Enjoins Indefinite Detention Portion of NDAA

U.S. District Court Judge Katherine Forrest (SDNY) has granted a permanent injunction against the provision in the 2011 National Defense Authorization Act that allows the indefinite detention of individuals (including U.S. citizens) who substantially support Al-Qaeda, the Taliban or their “associated forces." The 112 page ruling is here.

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, and have as their sole remedy a habeas petition adjudicated by a single decision-maker (a judge versus a jury), by a “preponderance of the evidence” standard. That scenario dispenses with a number of guaranteed rights.


On whether the court has authority to decide the issue:

...The Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war...Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

...this Court gives appropriate and due deference to the executive and legislative branches–and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights.

...Although it is true that there are scattered cases–primarily decided during World War II–in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil)). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside.

On the vagueness of the term "associated forces" which the Government claims is defined by the Laws of War:

As the Supreme Court said in Hamdi, the laws of war are not and should not be part of the domestic laws of the United States. In addition, however, “associated forces” is an undefined, moving target, subject to change and subjective judgment.

Judge Forrest says the provision(Section 1021(b)(2))violates the First, Fifth, and Fourteenth Amendments of the United States Constitution.

Among the reasons a permanent injunction is warranted:

Imprisonment without trial and for an indefinite period certainly constitutes irreparable harm.

On the balance of hardships:

The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes (referred to above) that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism.

...Most importantly, since Congress may pass no law abridging rights guaranteed by the First Amendment, enjoining enforcement of a statute that does just that cannot deprive Congress or the executive branch of that which they have no right to have.

According to the Government, § 1021 is merely a reaffirmation of the AUMF--a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce S. 1021(b)(2) removes no tools from the Government’s arsenal.

We need more judges who realize that due deference does not require a rubber stamp of approval.

< House Passes Re-Authorization of Warrantless NSA Surveillance | Wednesday Night Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    About the only good news today (5.00 / 1) (#2)
    by shoephone on Wed Sep 12, 2012 at 08:11:59 PM EST
    When can we expect the appeal to the circuit court? I'm glad this was decided before the election. By some stroke of luck, perhaps it will be a topic in the debates.

    Between the slapdowns on state voter I.D. laws and this decision today, one might get the impression that judges are actually applying the constitution again.

    Love this decision (none / 0) (#1)
    by bmaz on Wed Sep 12, 2012 at 08:06:19 PM EST
    ...even if it is a bit rambling in construct.  That said though, as beautiful as it is, without a very fortuitous panel draw, it will not make it past the Second Circuit.

    one might. (none / 0) (#3)
    by cpinva on Wed Sep 12, 2012 at 11:12:59 PM EST
    one might get the impression that judges are actually applying the constitution again.

    then again, one might want to remember who controls the supreme court, which should bring you crashing back to earth. the robert's court has a decidedly mixed history, when it comes to the rights of individuals, vs the gov't right to do whatever it damn well pleases, while hiding behind the twin curtains of "national security", and "the "war" on terror". more properly called a "police action on terror" since congress has never officially declared war on a word before, or now.

    i might add, there is a specific reason bush refused to ask congress for official declarations of war, and it has to do with the veterans of officially declared wars, finances, and the geneva conventions on war, so the issue is not simply one of semantics. as it is, obama has availed himself of those same differences, ignoring what's convenient to ignore, because we aren't technically "at war".

    anyway, i'm happy for this decision/injunction, i'll be ecstatic if it's sustained by the 9.

    And, Judge Forrest (none / 0) (#4)
    by KeysDan on Thu Sep 13, 2012 at 10:19:53 AM EST
    used the Administration's argument against their position--the government fought the injunction barring reliance on the  defense authorization statute to detain anyone without a trial claiming the new law did not cover free-speech and it did not create new detention authority that did not already exist in the original authorization to use military force.

    The Judge disagreed with the Administration's analysis, but noted that the fact that the government took the narrower view of the new law was decisive because it meant that enjoining the statute would, therefore, not endanger the public.

    The governent filed for a stay (none / 0) (#5)
    by Jeralyn on Sun Sep 16, 2012 at 02:43:06 AM EST
    of her order while it appeals and the judge denied it. Here is the Government's brief in support of a stay.