Judge Katherine Forrest Is A Modern American Hero

Guest Post: Judge Katherine Forrest Is A Modern American Hero

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Submitted by Tyler Durden on 05/20/2012 13:27 -0400

Submitted by John Aziz of Azizonomics

Judge Katherine Forrest is a Modern American Hero

http://azizonomics.files.wordpress.c...ope1.jpg?w=600 Sometimes, the greatest deeds are done by those who are just doing their jobs, like Judge Katherine Forrest who last week struck down the indefinite detention provision (§1021) of the National Defense Authorization Act (NDAA).


It would be all too easy in this age of ever-encroaching authoritarianism in America for a judge ruling on a matter like this to just go with the government line and throw water over the plaintiffs. After all, telling truth to power has consequences. Forrest was appointed by Obama, but after this ruling one wonders whether she is about to meet a career dead-end. Power — especially narcissistic power — does not like being told uncomfortable truths.

Everything about this case is shameful; it should be obvious to anyone who can read the Constitution that indefinite detention without trial (just like assassination without trial — something else that Obama and his goons have no problem practicing and defending) is hideously and cruelly unconstitutional. It defecates upon both the words and the spirit of the document.

It is directly and completely in contravention to the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is shameful that this law was proposed, it is shameful that any legislator would vote for it, and it is shameful that the President would sign it into law, albeit with a flimsy signing-statement claiming that he would not use the indefinite detention provision against American citizens.

More shameful still is the fact that when this challenge was brought that the Obama administration tried to dismiss it on a technicality — they tried to make the case that because none of the plaintiffs were to be indefinitely detained that they could not challenge the law. Judge Forrest’s investigation of this claim was revealing. Naomi Wolf notes:

Forrest asked repeatedly, in a variety of different ways, for the government attorneys to give her some assurance that the wording of section 1021 could not be used to arrest and detain people like the plaintiffs. Finally she asked for assurance that it could not be used to sweep up a hypothetical peaceful best-selling nonfiction writer who had written a hypothetical book criticizing US foreign policy, along lines that the Taliban might agree with. Again and again the two lawyers said directly that they could not, or would not, give her those assurances. In other words, this back-and-forth confirmed what people such as Glenn Greenwald, the Bill of Rights Defense Committee, the ACLU and others have been shouting about since January: the section was knowingly written in order to give the president these powers; and his lawyers were sent into that courtroom precisely to defeat the effort to challenge them. Forrest concluded: ”At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.“

Very simply, it is now obvious that the NDAA was written not to deal with terrorists or potential terrorists. After all, if the government has evidence that an individual or group is planning to commit a terrorist attack then they do not need an indefinite detention provision; all they need is to arrest such individuals and prove beyond reasonable doubt before a jury of their peers that a crime has been committed. That is how justice works — if the evidence exists you can bring a successful prosecution. After all if they do not have the evidence to prove that a group or individual was planning to commit an act of terrorism then they have no business arresting them or charging them with any offense. Suspects — lest we forget — are innocent until proven guilty.

These new powers have nothing to with combatting terrorism. If the government has no evidence that can stand up in a court of law it has no business detaining anyone. No, this new power grab has an entirely different target — like the plaintiffs in this case: writers, investigative journalists, bloggers, philosophers, dissidents, human rights activists, libertarians, free-thinkers, tax protestors, critics of fractional-reserve banking, whistleblowers — people like Chris Hedges, Noam Chomsky, Daniel Ellsberg, Jennifer Bolen, and Birgitta Jonsdottir. People like Congressman Justin Amash and Congressman Adam Smith who tried to amend indefinite detention out of the bill. People like me — and to some degree, if you are reading this, people like you.

The fact that the Obama administration could not give assurances about those who simply criticise U.S. foreign policy indicates very strongly that this power grab is about shutting-up and frightening critics of the U.S. government and the Obama administration.

But — for now — §1021 of the NDAA, that implement of fascism, has been struck down and thrown out as “facially unconstitutional” as well as having a “chilling impact on First Amendment rights”.

We should thankful for this brave judge’s actions, and for the plaintiffs actions in standing up to tyranny, and vigilant against future incursions.

On the other hand, every politician involved in writing, legislating and authorising this hideous unconstitutional law should be reminded of the words of the Declaration of Independence — it is the right of the people to alter or abolish any government that becomes destructive to liberty.

Guest Post: Judge Katherine Forrest Is A Modern American Hero | ZeroHedge

Federal court enjoins NDAA: Obama-appointed judge rules its indefinite detention provisions likely violate 1st & 5th Amendments

by Glenn Greenwald


Global Research, May 18, 2012
Salon - 2012-05-16

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A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ’s first argument — lack of standing — the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):

In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

The court found that the plaintiffs have “shown an actual fear that their expressive and associational activities” could subject them to indefinite detention under the law,and “each of them has put forward uncontroverted evidence of concrete — non-hypothetical — ways in which the presence of the legislation has already impacted those expressive and associational activities” (as but one example, Hedges presented evidence that his “prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban” proves “he has a realistic fear that those activities will subject him to detention under § 1021″). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that’s because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.

Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”

Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:

Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban. . . .

The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

Perhaps most importantly, the court categorically rejected the central defense of this odious bill from the Obama administration and its defenders: namely, that it did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention. The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers — solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”

The court concluded by taking note of what is indeed the extraordinary nature of her ruling, but explained it this way:

This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.

I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade.

Glenn Greenwald is a frequent contributor to Global Research. Global Research Articles by Glenn Greenwald


Federal court enjoins NDAA: Obama-appointed judge rules its indefinite detention provisions likely violate 1st & 5th Amendments

After NDAA Amendment, Indefinite Detention Still the Law

Posted by Joe Wolverton, II
Originally published at The New American

In a shameful display of disregard for the Constitution and for liberty, on Friday, the House of Representatives voted to perpetuate the president’s power to indefinitely detain American citizens.

By a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Washington) and Justin Amash (R-Michigan) (left and right, respectively in photo montage at left) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the National Defense Authorization Act (NDAA) of 2012.

The Fiscal Year 2013 NDAA retains the indefinite detention provisions, as well as the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate.

Debate on the Smith-Amash Amendment, as well as about 140 others began in the early, pre-dawn hours Friday morning.

In his impassioned speech supporting his amendment, Representative Smith reminded his colleagues that the NDAA granted to the president “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

Smith pointed out that there was no need to transfer suspects into military custody as “hundreds” of terrorists have been tried in federal courts since the attacks of September 11, 2001.

Congressmen — Republicans and Democrats — were not persuaded and they voted against Smith-Amash.

Another amendment offered by Representatives Louie Gohmert (R-Texas), Jeff Landry (R-Louisiana), and Scott Rigell (R-Virginia) passed by a vote of 243-173. The Gohmert Amendment (House Amendment 1126) states that the NDAA will not “deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”

Again, this amendment is yet another indefensible use of vague language that would make it vulnerable to challenge in any court in any state in the Union, but somehow adds to its appeal among the Republicans in Congress.

Smith and those supporting his amendment claimed that Gohmert’s Amendment was unnecessary as it does nothing of any value other than restate what is already settled law: viz., that Americans have the right to a ask for a writ of habeas corpus.

Smith called Gohmert’s amendment “a smokescreen,” arguing that “It doesn’t protect any rights whatsoever.”

But supporters of indefinite detention suggested that the Smith-Amash amendment would incentivize terrorists to come to the United States, because they would receive more rights on U.S. soil than outside the country.

In response to these allegations, Gohmert said that terrorists “supported” Smith’s amendment.

Another influential Republican added to Gohmert’s misrepresentation of the Smith-Amash Amendment:

“We cannot look to guarantee those who seek to harm the U.S. the constitutional rights granted to Americans,” said Rep. Allen West(R-Florida). “If we extend that to them, this war on terror, now it’s a criminal action.”

The real crime is that Allen West and so many of his fellow Republican lawmakers have betrayed not only the Constitution, but their oaths of office to “preserve, protect, and defend” it from all enemies.

Of course, one can hardly expect 243 members of Congress to vote to declare themselves enemies of the Republic as to do such might expose them to arrest and indefinite detention per the terms of the NDAA passed by such a large majority.

It is remarkable that so many on the Right have promoted this hostile and open assault on the Constitution and freedom. Take for example this opinion posted by the Heritage Foundation on its website:

The Smith–Amash amendment would force the government to send any al-Qaeda member captured in the United States directly to federal court. If this amendment becomes law, it would limit a President’s flexibility and take off the table lawful military detention and lawful interrogation for intelligence purposes. For these and other reasons, the proposal is unwise.

Despite over-the-top claims to the contrary, last year’s National Defense Authorization Act (NDAA) does not impact the conditions under which a U.S. citizen may (or may not) be detained. In fact, section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed.

Describing as “over-the-top” the claim that the NDAA authorizes the indefinite detention of American citizens is both irresponsible and inaccurate.

One would reasonably expect the scholars at the Heritage Foundation to have a bit of a better grip on the nuance of language used in the NDAA.

Perhaps these experts should read the words of Section 1021 more closely. This provision says that the military is not “required” to detain American citizens. That is hardly the same as saying that the military is “forbidden” from detaining American citizens.

Congress is full of attorneys who know the importance of specificity of language. They know that vagary in language is contrary to good law. In fact, innumerable laws are struck down by courts for being too vague.

The point is: if these men and women in Congress, so many of whom are trained in the law, meant to forbid the military from arresting and detaining American citizens, then it could have done so. They chose not to. They chose to leave that option open.

More importantly, these key terms so ill-defined that they are ripe for the wresting and within the penumbras of these cleverly crafted provisions could be found lurking the tools of tyranny. Wrenches that one day could force anyone branded as an enemy into a predetermined “terrorist” slot.

It is apropos to recall the timely words written by James Madison in a letter writing to Thomas Jefferson in 1798:

“It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

Representative Gohmert, Representative Allen West, the Heritage Foundation and others are likely unaware that they are the very fulfillment of Madison’s observation-cum-prophecy.

Each of these freedom-phobes invoked the specter of terror (in one way or another: “terrorist,” “al-Qaeda,” “enemies”) to justify the abolition of constitutionally guaranteed civil liberties.

Seemingly, those promoting these provisions would offer Americans as sacrifices on the altar of safety, the fires of which are fed by the kindling of the Constitution.

Despite the denigrating description offered by the Heritage Foundation, what the Smith-Amash Amendment actually did was identify and attempt to close two very large gaps still present in the 2013 NDAA.

First, the Smith-Amash Amendment explicitly forbids the indefinite detention of suspects, as well as the conducting of the trials of such suspects before military tribunals. The language in this amendment makes it clear that any individual arrested in the United States on charges stemming from the NDAA or the AUMF would be tried in a civilian court and be afforded the complete catalog of constitutional protections.

Second, the Smith-Amash Amendment would have absolutely repealed that section of the NDAA which provides that foreigners suspected of committing terrorist acts be held in military custody, unless they have been granted a specific waiver from the President.

Likely, it is that commendable clarity of language and intent that doomed the amendment from the beginning.

Ron Paul, Republican Presidential hopeful and Congressman from Texas, made a rare appearance on the floor of the House to voice his support for the Smith-Amash Amendment:

“I do not believe a republic can exist if you permit the military to arrest American citizens and put them in secret prisons and be denied a trial,” Paul said.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

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After NDAA Amendment, Indefinite Detention Still the Law – Tenth Amendment Center Blog

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Wednesday, May 30, 2012

Government Defies Federal Judge on NDAA

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When 4th District Court Judge Katherine Forrest ruled the NDAA unconstitutional, there was wide rejoicing across the Internet. Posts from prominent civil liberties activists, like journalist David Seaman, rang out with VIICCTOOORRYY! A Russia Today newscast titled the ruling “NDAA Shot Down, But Threats Remain” seemed to imply that the fight was over, or "on hold." But it was only just beginning.

Do you remember, from your high school or college government courses, where they talked about the court having “neither the power of the sword nor the purse?” That means the High Courts of the United States cannot force the government to accept their ruling. They can heavily imply it, but they have no power to force government compliance. When the Supreme Court ruled against the government in Worcester v. Georgia, President Andrew Jackson is famous for having responded: "[Justice] John Marshall has made his decision, now let him enforce it."

The tyrannical U.S. Government has taken the exact same tack with the ruling against them on the NDAA. But first, let’s quickly recap exactly how weak the government case in favor of the NDAA actually was. In Hedges v. Obama, the government routinely avoided the judge’s questions and demands:

The Court: When we are talking about cases which have used the phrase ‘substantially supported’ and said that that is a valid criterion under the AUMF or of the legislation, that’s not the same thing as saying that . . . any court has found, one way or the other, that ‘substantially supported’ has an understandable meaning to an ordinary citizen?

The Government: It’s true that the courts have not expressly ruled that, that’s right.

The Court: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

The Court: Give me one.

Government: I’m not in a position to give one specific example.

Later…

The Court: Assume you were just an American citizen and you’re reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of §1021, and you read the phrase ‘directly supported’. What does that mean to you?

http://lh3.ggpht.com/_qLAIskTQXUc/TU...s/campfema.jpg Government: Again it has to be taken in the context of armed conflict informed by the laws of war.

Court: That’s fine. Tell me what that means?

The Government: I cannot offer a specific example. I don’t have a specific example.

After seeing the ridiculous responses the government had given her, and finding that even the government could not define those terms, Judge Katherine Forrest issued her ruling against the NDAA, stating: “This measure has a chilling impact on first amendment rights.”

She then granted her temporary injunction:

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.

This should be the end of it. This landmark case should be a victory for Americans, the Constitution and the Bill of Rights. The judge clearly states “the public’s constitutional rights” and “the public interest.” Hey, I’m a part of the public, so I’m protected now!

Not so fast. Our tyrannical government, in one sentence, has chosen to defy a ruling by a federal judge.

The government construes this Court’s Order as applying only as to the named plaintiffs in this suit.

Just when you want to believe there are good people in the highest levels of our federal government, statements like this bring you back to reality. The government continued:

Although the Order fails to comply with Fed. R. Civ. P. 58, and the concluding paragraph of the Order is not, on its face, clear as to whom the injunction benefits, the government reads it in light of the well-established principle that courts 'neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants'

Excuse me? Let’s very quickly compare Federal District Court Judge Katherine Forrest’s Order:

Accordingly, this Court finds that the public interest is best served by the issuance of the preliminary relief recited herein.

With the government’s response:

The government construes this Court’s Order as applying only as to the named plaintiffs in this suit.

The Judge said her order was to protect the public interest. No informed human being could read it otherwise. Yet, according to the government, they can still detain you because you are not a named plaintiff. Our government is so entwined in a power grab, they will stop at nothing, even twisting court orders, to strip us of our Constitutional rights.

The government defied the court, the Constitution, and our Founding Fathers. It stops here.

There is no more time for procrastination, for hoping the government will fix itself. There is no more time to rely on the courts.

There is no time to rely on Congress. The time to act is now.

It is now up to “We the People” to take down this tyranny through grassroots activism.

Join the movement to repeal the NDAA: http://www.peopleagainstndaa.com/joinus.php

People Against the NDAA – Unite! http://www.youtube.com/watch?v=_8BBD1v_Ivs

PANDA’s First Victory: http://www.activistpost.com/2012/05/pennsylvania-constable-to-sign.html

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Activist Post: Government Defies Federal Judge on NDAA