Federal Judge Blocks Enforcement of NDAA's Indefinite Detention Provisions

By:  Joe Wolverton, II
05/17/2012
       
Federal Judge Blocks Enforcement of NDAA's Indefinite Detention Provisions

Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued a preliminary injunction on Wednesday preventing the Obama administration from exercising the indefinite detention authority ostensibly granted the President by Section 1021 of the National Defense Authorization Act for 2011.

 Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued a preliminary injunction on Wednesday preventing the Obama administration from exercising the indefinite detention authority ostensibly granted the President by Section 1021 of the National Defense Authorization Act for 2011.

In the 68-page opinion, Judge Forrest disagreed with the federal government’s argument that the relevant provisions of the NDAA merely restate existing law. She wrote: “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].”

Pointing out that were Section 1021 and the AUMF identical then the former would be redundant, Judge Forrest held:

Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.

Scienter is defined as “a state of mind often required to hold a person legally accountable for his or her acts.” In other words, the indefinite detention provisions of the NDAA are too vague and aren’t specific enough to permit a person to know whether he or she has violated the law.

While admitting that preventing the federal government from enforcing a congressional act is a sober matter that must be attended to with caution, Judge Forrest writes that “it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.”

When asked about his response to the judge’s ruling, plaintiff and Pulitzer Prize-winning journalist Chris Hedges called the ruling "courageous" but added that Judge Forrest "did what she was supposed to do" in light of the fact that "the law is so clearly unconstitutional."

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