By: Daniel Nardini
In a severe blow to the National Defense Authorization Act (NDAA) and against U.S. President Barack Obama, U.S. District Judge Katherine Forrest ruled that Section 1021 of the Act was unconstitutional. When President Obama signed the Act in December of 2011, five journalists filed a lawsuit against the NDAA, and especially against Section 1021 of the Act. The journalists argued that Section 1021 was too vague in defining “associated forces” and “helping enemy forces” in regards to Al Qaeda and the Taliban. According to the Act, those who “associate” or “aid” the enemy could be seized, held without trial, and denied any and all legal access (i.e. lawyers) while U.S. government or military forces detained such people indefinitely. This can also include U.S. citizens. The problem is that American journalists could easily fall into such categories because they may need to access witnesses or personal sources, or even be in the battle scenes, with Al Qaeda and Taliban forces. This could lead to innocent journalists being denied their constitutional rights. Judge Forrest agreed with this, and has permanently struck down this provision of the NDAA. The U.S. government will appeal the decision.
I suspect that the U.S. government will appeal this decision all the way to the U.S. Supreme Court eventually. I also feel that the federal courts will overwhelmingly reject provisions of the NDAA that give the U.S. government and military carte blanche to detain, torture and deny any and all U.S. citizens of their constitutional rights. There is no question that the NDAA is a very bad law, and it gives too much over-reach to the U.S. government and especially to the executive branch. This is why a federal judge has permanently struck down this part of the NDAA, and why it is credible that all or most federal judges will not accept the government’s word. If you think about it, the NDAA cuts the judiciary out altogether, and that is a big NO NO. The judicial branch will not tolerate any other part of the government sidelining it, and this act clearly would do that. The Act would in too many ways be a slippery slope to doing away with the judiciary—the very institution that interprets the U.S. Constitution and the legality of laws that are put before it. While the U.S. Congress at the last minute put in a few words about not subjecting Americans to such arbitrary detention, the Act is still too vague about where arbitrary detention is applicable and where it is not.
Looked at in any way, the National Defense Authorization Act is too vaguely worded what rights anyone has, what the federal government can and cannot do, and gives the executive sole authority in areas that not only cut out the judiciary but also in part cut out the U.S. Congress. If the President of the United States can do all of this, then what point is there for the judiciary, the legislative branch and even the U.S. Constitution itself? This is why it is all so gratifying that there are some brave people within this country who are willing to stand up against the government when it is wrong and equally gratifying that no one branch of the government calls all of the shots. But this issue is far from resolved. The NDAA has not been thrown out completely, and it is still possible that higher courts (and maybe even the U.S. Supreme Court) could uphold the NDAA and Section 1021. The courts have been known in the past to give wide discretionary powers to the federal government, and it is possible that this might still happen even if it endangers the U.S. Constitution.
Victory Over NDAA
By: Daniel Nardini
I suspect that the U.S. government will appeal this decision all the way to the U.S. Supreme Court eventually. I also feel that the federal courts will overwhelmingly reject provisions of the NDAA that give the U.S. government and military carte blanche to detain, torture and deny any and all U.S. citizens of their constitutional rights. There is no question that the NDAA is a very bad law, and it gives too much over-reach to the U.S. government and especially to the executive branch. This is why a federal judge has permanently struck down this part of the NDAA, and why it is credible that all or most federal judges will not accept the government’s word. If you think about it, the NDAA cuts the judiciary out altogether, and that is a big NO NO. The judicial branch will not tolerate any other part of the government sidelining it, and this act clearly would do that. The Act would in too many ways be a slippery slope to doing away with the judiciary—the very institution that interprets the U.S. Constitution and the legality of laws that are put before it. While the U.S. Congress at the last minute put in a few words about not subjecting Americans to such arbitrary detention, the Act is still too vague about where arbitrary detention is applicable and where it is not.
Looked at in any way, the National Defense Authorization Act is too vaguely worded what rights anyone has, what the federal government can and cannot do, and gives the executive sole authority in areas that not only cut out the judiciary but also in part cut out the U.S. Congress. If the President of the United States can do all of this, then what point is there for the judiciary, the legislative branch and even the U.S. Constitution itself? This is why it is all so gratifying that there are some brave people within this country who are willing to stand up against the government when it is wrong and equally gratifying that no one branch of the government calls all of the shots. But this issue is far from resolved. The NDAA has not been thrown out completely, and it is still possible that higher courts (and maybe even the U.S. Supreme Court) could uphold the NDAA and Section 1021. The courts have been known in the past to give wide discretionary powers to the federal government, and it is possible that this might still happen even if it endangers the U.S. Constitution.