On December 31st, 2011, in the dead of night, President Obama signed the National Defense Authorization Act (NDAA) into law. On that day, the Bill of Rights was shattered in the interest of the “War on Terror.” He also wrote a signing statement saying that “my administration will not detain American Citizens” and was very hesitant to sign the bill into law.
A few days ago, the 2nd Circuit Court of Appeals placed Section 1021 of the NDAA back into effect.
The NDAA is typically a mundane bill that appropriates funding for the military for the current year. However, Section 1021 (b) (2) in the 2012 NDAA allows anyone, including American citizens, to be detained indefinitely by the military…no trial, no charges, no day in court.
When the NDAA was signed into law, I, along with many others, took notice and took action. Tangerine Bolen (founder of Revolution Truth), Journalist Chris Hedges, Birgitta Jónsdóttir, Professor Noam Chomsky, Daniel Ellsberg, Kai Wargalla, and Alexa O’Brien filed a lawsuit against the NDAA within 30 days of its signing. They would become known as the “Freedom 7” and were immediately launched into the spotlight.
In May, Federal Judge Katherine Forrest, in the strongest ruling for civil liberties since 9-11, agreed with the plaintiffs and declared the NDAA unconstitutional placing an temporary injunction on the law. In her ruling, she specifically stated: “This measure has a chilling impact on First Amendment rights.” In that same ruling, she specifically stated that her ruling applied to and protected the general public:
As set forth above, this Court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.
Accordingly, this Court finds that the public interest is best served by the issuance of the preliminary relief recited herein.
As I wrote in “Government Defies Federal Judge on NDAA,” the government response was swift. In a 10 page Motion for Reconsideration, the government stated:
The government construes this Court’s Order as applying only as to the named plaintiffs in this suit.
This Motion directly defied Judge Forrest’s ruling, which clearly applied to the public, and her response was just as swift. She told the government lawyers “to put it bluntly” her order most definitely applied to the public. This should have been the end of it, but the government appealed the ruling…setting the stage for what was to come.
On Wednesday, September 12th, Judge Forrest once again took a stand for civil liberties by ruling that the temporary injunction against the enforcement of the NDAA’s detention provisions is now permanent. Much like after her preliminary injunction, the internet rejoiced. That evening, “People Against the NDAA” put out a press release stating:
Based on her earlier temporary injunction, this ruling was expected. However, it is not time to celebrate. Based on the Obama Administration’s previous action an Appeal or a Motion for Reconsideration will likely be filed. The administration has also not said whether or not it is enforcing the NDAA, according to a letter from lawsuit organizer Tangerine Bolen. The case will then go to an appeals court.
Sure enough, within 24 hours, the Obama Administration appealed the ruling. The Administration’s lawyers said that this injunction could cause “irreparable harm” to the national security of the United States and the war on terrorism. This appeal flies in the face of the President’s signing statement, his statements to reporters, and the Constitution.
On top of the appeal, on Monday, Judge Raymond Lohier of the 2nd Circuit Court of Appeals granted a temporary stay of Judge Katherine Forrest’s injunction against the NDAA. On the 28th of September, the Court will hear arguments on whether to make that stay permanent or not.
Since May, Judge Forrest had prevented the NDAA from being used anywhere in the world. Now, the NDAA is back in full effect, and you can be indefinitely detained without a trial or a day in court. Thanks to the Obama Administration, America is again the battlefield.
Happy Constitution Week!
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