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Posted by wmmbb in Human Rights.

Judge Forrest of the United States District Court, Southern District of New York, has issued a permanent injunction on Section 1021 (b) (2) of the National Defense Authorization Act signed on 31 December 2011.

The plaintiffs included Chris Hedges, Daniel Ellesberg and Noam Chomsky. The judgement, which can be anticipated will be subject to appeal before more friendly eyes, is careful. If it were to prove successful it would show the value of set of encoded human and democratic rights. It is encouraging to read that while the Executive and the Legislature may regard Habeas Corpus as a dead letter, at least this court does not. The summary statement suggests bad law.

From the judgement today (allowing for the time difference):

The Government also argues that, at most, the Court’s role
should be limited to a post-detention habeas review. See Tr. II at 118. That argument is without merit and, indeed, dan gerous. Habeas petitions (which take years to be resolved following initial detention) are reviewed under a preponderance of the evidence” standard (versus the criminal standard of “beyond reasonable doubt”) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous. If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.

In conclusion, this Court preliminarily found that plaintiffs showed a likelihood of success on the merits with respect to their claims that § 1021(b)(2) is overbroad as well as impermissibly vague. The Government has presented neither
Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 13 of 11214 evidence nor persuasive legal argument that changes the Court’s preliminary rulings. The case law this Court cited in its May 16 Opinion remains good law. The factual record and case law now presents this Court with a matter ready for final resolution. The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.

Chris Hedges will be saying shortly this decision is even more “monumental” than the preliminary injunction:

The Government lawyers will have to find arguments to overturn this decision, but they will have to do so before the Court of  Appeals and ultimately perhaps the US Supreme Court. They will probably succeed, but their case will not be behind closed doors, and open to inspection by those who know about such matters.

Could a similar law in Australia be subject to judicial review and overturned, even temporarily?


Shocked. Surprised. Dismayed. No. As expected, the provisions of the NDAA were no mistake or oversight. Kevin Gosztola writes at Firedoglake:

On the appeal I said this just shows that this administration believes government should have the tool of preventive and/or indefinite military detention in its arsenal. It also shows how the administration does not want to let a member of the Judicial Branch check the power of the Executive Branch. It wants unconstrained power to carry out the “war on terrorism” however it pleases, regardless of whether it sets precedents that infringe upon the rights or liberties of the people.

He quotes plaintiff, Tangerine Bolan:

“It’s significant for all of us and actually anyone on this planet because no one anywhere at this point can be indefinitely detained on the NDAA.”


Apparently the Constitution is no longer the supreme law. According to a report by Michael McAuliff in The Huffington Post:

Friday, in a stay request signed by New York’s Southern District U.S. Attorney Preet Bharara, Assistant Attorney General Stuart Delery and Department of Defense General Counsel Jeh Johnson, the government argued that the injunction was an “unprecedented” trespass on power of the president and the legislature that by its very nature was doing irreparable harm.

The request also argued that the injuction places an undue burden on military commanders in a time of war while the plaintiffs — among them pulitzer-prize-winning reporter Chris Hedges and noted left-wing academic Noam Chomsky — had no reasonable fear of ever being detained “in the foreseeable future.”

“The Court’s injunction against application of section 1021 ‘in any manner, as to any person,’ … combined with its mistaken view that section 1021 goes beyond reaffirming the authority contained in the AUMF, could impose entirely unjustified burdens on military officials worldwide, complicating the ability to carry out an armed conflict authorized by Congress in the public interest,” the stay request says.

“Given the absence of any risk of impending harm to plaintiffs, the serious injury to the government and the public interest in the invalidation of a statute enacted by public representatives, and the possible effect on an ongoing armed conflict and the Executive’s prerogatives in military affairs, a stay is necessary,” it concludes.

The request is seeking both an immediate temporary stay so that the matter can be argued, and a permanent one lasting until higher courts resolve the case, which the administration announced Thursday it would appeal. A hearing was set for Wednesday next week. Forrest denied the short-term stay, so the law cannot currently be used.

A lawyer for the plaintiffs, Bruce Afran, noted that the government’s lawyers told Judge Forrest during arguments after she issued her first temporary injunction in May that they did not know if the administration was using the detention provision. If the government is now arguing that stopping the practice would cause irreparable harm, it shows the administration was indeed using the law and violating the injunction, Afran said.

“The only way they could be done irreparable harm is if they’ve been using this all along,” Afran said.

“It just shows the lawlessness of this, even under the Obama administration,” he added.


Apparently one of the panel of judges of the Circuit Court of Appeal is sufficient to unblock the unblock the injunction placed by Judge Forrest on the part of the NDAA without providing detailed reasons. The Court Panel will take up the issue on 28 September.

The art of judge shopping is fully in operation, and the DOJ have the resources that private citizens and their legal advisers do not have. It is not surprising that appeals to judicial officers from the Government to prevent terrorism are view favourably, but this is a specific question of constitutional law and the upholding of the Bill of Rights. Nonetheless it seems extraordinary lengths to go for ten days grace, other than to shape the arguments by changing the starting position, which presumably is important to the Government’s argument. Or there is something more relevant that I am missing.

Amy Goodman interviews Marcy Wheeler on Democracy Now:



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