There is unexpected good news in the losing battle to defend our Bill of Rights. A federal judge granted a preliminary injunction late Wednesday to block Section 1021 of the 2012 National Defense Authorization Act (NDAA), which allows the U.S. government to indefinitely detain anyone without charges. U.S. federal district Katherine Forrest issued a ruling that found the NDAA in violation of the First and Fifth Amendments to the Constitution.
The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.
…Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”
This is a rare instance of a federal judge defending our Constitution against both Congress and the Executive Branch. It would have been easy for Judge Forrest to rule against accountability by agreeing with the government on “standing” because the plaintiffs had not been detained. Of course anyone who is locked up without any rights wouldn’t have access to the courts at all, would they?
UPDATE: Plaintiff in NDAA case: U.S. has ‘gone insane’ in its war on terror
Bolen said she was a moderate Democrat who voted for Obama, and expressed her disappointment that the President signed the law despite threatening to veto it.
The measure, sponsored by Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.), had been backed by a mix of conservatives, moderates and liberals who argued that letting the president decide to detain anyone — including Americans — deemed to be a terrorist was granting the executive too much power. And they argued that with more than 400 terrorists having been tried and convicted in civilian courts while dozens of plots were prevented, the law was unnecessary.