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Federal Court Rejects NDAA's Indefinite Detention, Issues Injunction 301

Posted by timothy
from the hope-this-change-sticks dept.
First time accepted submitter Arker writes "A federal judge granted a preliminary injunction late Wednesday to block provisions of the 2012 National Defense Authorization Act that would allow the military to indefinitely detain anyone it accuses of knowingly or unknowingly supporting terrorism. The Obama administration had argued, inter alia, that the plaintiffs, including whistleblower and transparency advocate Daniel Ellsberg and Icelandic Member of Parliament Birgitta Jonsdottir lacked standing, but Judge Katherine Forrest didnt buy it. Given recent statements from the administration, it seems safe to say this will be the start of a long court battle."
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Federal Court Rejects NDAA's Indefinite Detention, Issues Injunction

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  • by Hatta (162192) on Thursday May 17, 2012 @11:08AM (#40028023) Journal

    Obama directed the DOJ not to enforce the Defense of Marriage Act. He could do the same with any other law. This is why his argument that "we have to enforce the law" when it comes to Cannabis dispensaries [laweekly.com] is entirely bankrupt.

    In that situation, we put the Justice Department in a very difficult place if we're telling them, "This is supposed to be against the law, but we want you to turn the other way." That's not something we're going to do.

    That's not a difficult place at all, and entirely within his powers as the chief law enforcement officer in the country. He has the power to set priorities for federal law enforcement, including priorities of zero.

    If you're someone who wants to laud Obama for his Civil Rights record, ask yourself how many gay people there are in jail for being gay. Then ask yourself how many Cannabis smokers there are in jail. Why not attack the bigger problem first?

  • by crazyjj (2598719) * on Thursday May 17, 2012 @11:11AM (#40028057)

    Having the DOJ actually dispute it in court

    Where on earth did you get that from? It's the DOJ that's *DEFENDING* this law in court, not opposing it.

  • The actual ruling (Score:5, Informative)

    by Bob the Super Hamste (1152367) on Thursday May 17, 2012 @11:23AM (#40028213) Homepage
    For those who would like to read the actual 68 page ruling from Judge Katherine Forrest [uscourts.gov].
  • by artor3 (1344997) on Thursday May 17, 2012 @11:36AM (#40028389)

    You've been tricked by a summary rife with propaganda.

    The the lying demagogue who wrote the article states, "Given recent statements from the administration, it seems safe to say this will be the start of a long court battle." The deceitful bastard was clever enough to include a hyperlink, knowing you wouldn't click on it but would instead just accept it as gospel. But go ahead, click on it. The recent statements referred to are from a joint letter by several former officials. Their names?

    Edwin Meese - Republican Attorney General under Reagan
    Michael Mukasey - Republican Attorney General under George W Bush
    Michael Chertoff - Republican Secretary of Homeland Security under George W Bush
    Steven G Bradbury - Republican Head of the OLC under George W Bush
    Daniel Dell'Orto - Republican Lawyer for the DOD under George W Bush
    David Rivkin - Republican Legal Counsel to both Reagan and George HW Bush, and the guy behind the lawsuit against the ACA
    Charles Stimson - Republican Deputy Assistant Secretary in charge of "Detainee Affairs" under George W Bush
    Paul Butler - Can't find any details on this guy, but he's definitely not the Democrat of the same name who died in the 60s.
    Seven Engel - One of the lawyers in the anti-ACA lawsuit.
    Paul Rosenzsweig - Member of the Heritage Foundation, a well known right-wing think tank.

    Do you really think anyone on that list is speaking for the Obama administration? Sadly, the truth takes time to dig up, and in that time hundreds of people have no doubt seen the summary and your post, and fallen for the propaganda. What hope does truth have against such well-engineered lies?

  • by Anonymous Coward on Thursday May 17, 2012 @11:37AM (#40028419)

    Actually, she does have standing. As a member of parliament, she could be expected to travel to the US for official state visits. Her records have already been subpoenaed by the DOJ because of her association with WikiLeaks. Therefore, if her simple presence in the US could make her subject to indefinite detention, she does have standing - remember, she was afraid to come to the US to testify for that exact reason. Remember, the US Constitution doesn't apply only to US citizens, it applies to anyone subject to US law, including visitors and foreign nationals wanted by US authorities...

  • by artor3 (1344997) on Thursday May 17, 2012 @11:54AM (#40028645)

    No, it doesn't. I've posted the exact text here a dozen times, but hey, what's one more:

    (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

    http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf [gpo.gov], pg 265. Read it for yourself.

    This is a brilliant lie. A devastating lie. Whoever came up with it deserves accolades, because I've never seen a piece of propaganda so effective.

  • by artor3 (1344997) on Thursday May 17, 2012 @12:02PM (#40028757)

    So it's irrelevant that the summary is a lie? Sure, yeah, who gives a fuck about the truth when you have a political axe to grind.

    Furthermore, Obama did not insist on the addition of "those two sentences for indefinite detainment". The indefinite detention section was already there, but only applied to Al Qaeda. Obama asked for it to be expanded to cover other terrorist groups. But it can't be used to "grab Americans off the streets", as you claim, because it also says:

    (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

    But let me guess... that's also irrelevant. No truth is relevant if it goes against your limitless hatred.

  • by mspohr (589790) on Thursday May 17, 2012 @12:04PM (#40028783)

    Even being a US citizen doesn't protect you.
    Anwar al-Awlaki was a US citizen living in Yemen who was thought to have ties to al-Qaeda. His 16 year old son was killed a few weeks later. They were executed by the US (using unmanned drones) without a trial or even charges being brought in the US.
    The Wikipedia page gives a fairly comprehensive biography. http://en.wikipedia.org/wiki/Anwar_al-Awlaki [wikipedia.org]

  • You're wrong (Score:5, Informative)

    by Anonymous Coward on Thursday May 17, 2012 @12:43PM (#40029387)
    "This is a brilliant lie" Nope, sorry chief, you fail. Read it AGAIN "Nothing in this section shall be construed to affect existing law" EXISITING LAW. Which in this case is the AUMF, already allowed indefinite detention by Presidential fiat. This law just codifies it. You are EXACTLY wrong.

    (a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war. (b) Covered Persons. A covered person under this section is any person as follows . . . (2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. (c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following: (1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

    The AUMF is the "existing law" the NDAA codifies, you simply have chosen to misread the statute.

  • by kilfarsnar (561956) on Thursday May 17, 2012 @12:46PM (#40029411)

    That had nothing to do with the NDAA. And yes, we should have had an in absentia trial first, but then you'd just be complaining it was a show trial.

    Trials in absentia are generally illegal in the United States. In the 1993 case Crosby v. United States, the Supreme Court ruled that federal law "prohibits the trial in absentia of a defendant who is not present at the beginning of trial."

  • by DragonWriter (970822) on Thursday May 17, 2012 @12:48PM (#40029447)

    It was OBAMA who told Congress to add those two sentences for indefinite detainment w/o trial.

    There are more than two sentences about that.

    The "two sentences" the administration fought to have added, once it was clear that the Congress wouldn't pass the NDAA without indefinite detention language, were the ones that provide that the indefinite detention provisions in the NDAA neither "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force" nor affect any "law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States".

    The President stated at the time that the original language would be unconstitutional and unacceptable and require a veto, and -- in his signing statement -- that with the new language the provisions were still undesirable, and unnecessary since they had no effect beyond what had already been done by the AUMF.

    The court in its preliminary injunction disagreed and said that as a principal of construction statutes should be read as doing something, and that the something that the NDAA did on this issue appears to be unconstitutional. The difference between the court on the administration isn't over whether the NDAA doing anything beyond what had been previously been found to be authorized by the AUMF and found constitutional by the Supreme Court in cases challenging actions under the AUMF would be unconstitutional, the difference is over whether the NDAA, on its own terms, actually does anything at all on the issue.

    Note that this has set up a controversy under which a court siding with either the administration or those challenging the law would find no new power under the NDAA -- if the administration is right, the NDAA has no effect on indefinite detention powers regardless of its Constitutionality. If the challengers are right, the NDAA's detention provisions are unconstitutional, and, as such, have no effect.

    (Probably in Guantanamo... the place Obama promised to close but never did.)

    Congress blocking funds from being used for that purpose repeatedly since Obama came to office has nothing to do with that, right?

  • by Vancorps (746090) on Thursday May 17, 2012 @01:08PM (#40029765)
    Except that he's wrong, as others have pointed out. The term existing laws in there is pretty powerful.
  • by R3d M3rcury (871886) on Thursday May 17, 2012 @01:57PM (#40030611) Journal

    It is government that gave Comcast its monopoly over my neighborhood. If government were downsized, the monopoly would be gone. Other companies like Apple or MSN or Time-Warner could enter the market and give us some choice.

    Well, that depends on where you live, doesn't it?

    It's also quite possible that Comcast would come in and build it's network--you know, place their wires under the street--and offer service. Time-Warner would come in, look at the expense on running their own wires, see they have competition which is going to limit how much they can charge and how quickly they will make back that investment and say, "Nah. Not worth it."

    On the other hand, if The Government lays down the wires and allows these companies to use them to deliver services (charging them all an equal fee for use of the wires), then you might actually have quite a bit of competition. Of course, that wouldn't be a good thing because "Government Owning Stuff Is Bad."

    And, depending further upon where you live, Comcast might show up, take one look, and say, "No way would this be worth it." Then you got nothing.

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