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    Federal Judge Strikes Down Part of Terror Law About Indefinite Detention, NDAA

    Federal Judge Strikes Down Part of Terror Law About Indefinite Detention, NDAA

    September 13, 2012
    in Front Page, Government, New York


    By Agence France-Presse
    NEW YORK — A New York federal judge shot down part of a controversial anti-terror law Wednesday that journalists and scholars worry could see them locked up indefinitely for speaking their minds.
    Judge Katherine Forrest issued a ruling that permanently blocked a section of the National Defense Authorization Act signed by President Barack Obama at the end of last year authorizing the detention of US citizens accused of supporting terror groups.



    The suit was brought by activists, including former New York Times journalist Chris Hedges and outspoken academic Noam Chomsky, who said the law was vague and could be used to curtail reporters’ and other civilian citizens’ right to free speech guaranteed under the US Constitution’s First Amendment.

    They also argued that the Fifth Amendment, guaranteeing Americans’ legal rights, was threatened.

    http://libertycrier.com/government/f...etention-ndaa/

    More here:

    Judge Strikes Down Part of Terror Law About Indefinite Detention [continued]

    NY judge strikes down terror law scholars fear

    LARRY NEUMEISTER, Associated Press

    10:38 a.m., Friday, September 14, 2012

    NEW YORK (AP) — An anti-terrorism law was struck down Wednesday by a federal judge who said she saw legitimate fears in claims by journalists, scholars and political activists that they could face indefinite detention for exercising First Amendment rights.
    U.S. District Judge Katherine Forrest in Manhattan said the government has softened its position toward those who filed suit challenging the law, but she said the "shifting view" could not erase the threat of indefinite military detention. She urged Congress to make the law more specific or consider whether it is needed at all.
    "First Amendment rights are guaranteed by the Constitution and cannot be legislated away," Forrest wrote. "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."
    In May, the judge temporarily struck down the law subjecting to indefinite detention anyone who "substantially" or "directly" provides "support" to forces such as al-Qaida or the Taliban. She heard additional arguments last month before issuing the final ruling, likely to be appealed to the 2nd U.S. Circuit Court of Appeals.



    While calling the law "unconstitutionally overbroad," Forrest said the government can use another law to indefinitely detain people connected to the Sept. 11, 2001, terrorist attacks or others picked up on the field of battle. She said the government at some point without additional congressional authorization began interpreting its detention authority more broadly.
    "In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of 'support' as a valid ground for detention," Forrest wrote.

    The judge said the government struggled to explain what the statute means and what and whose activities it was written to cover.

    "That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties," she said.

    She questioned in her 112-page opinion whether a news article perceived as favorable to the Taliban and garnering support for the Taliban could be considered to have "substantially supported" the Taliban?

    "How about a YouTube video? Where is the line between what the government would consider "journalistic reporting" and "propaganda?" she asked. "Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is 'modest' or 'substantial?'"

    Ellen Davis, a U.S. Attorney's office spokeswoman, said the government had no comment.

    Plaintiffs' lawyer Bruce Afran called the ruling "very historic" and said it was rare in the last half century that a judge would declare a federal statute unconstitutional for directly intruding on speech.

    "But it was a very extraordinary attempt by the government to provide punishment for speech," he said.
    Among plaintiffs who testified at a March hearing was Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members, conversed with members of the Taliban during speaking engagements overseas and reported on 17 groups named on a list prepared by the State Department of known terrorist organizations. He testified the law has led him to consider altering speeches where members of al-Qaida or the Taliban might be present.

    The judge said that she was "mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism" and that the high stakes of those efforts and the executive branch's expertise mean the courts owe the political branches "a great deal of deference in the area of national security."

    But she said the Constitution places limits on the president's power to act and requires courts to safeguard core Constitutional rights. She noted that scattered cases during World War II when the Supreme Court sanctioned undue deference to the executive and legislative branches resulted in actions that "are generally now considered an embarrassment," such as the internment of Japanese Americans based on wartime security concerns.

    Forrest called the government's suggestion that the court's role be limited to a post-detention habeas review "without merit and, indeed, dangerous" because cases would take years to be resolved and are reviewed under a lesser legal standard.

    She said if habeas petitions that allow prisoners to challenge their detention are the only way for those detained under the law to gain freedom — even U.S. citizens on U.S. soil — then "core Constitutional rights available in criminal matters would simply be eliminated."
    She added: "No court can accept this proposition and adhere truthfully to its oath."


    Read more: http://www.seattlepi.com/news/articl...#ixzz26T1YcGir
    Last edited by kathyet; 09-14-2012 at 01:46 PM.

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    ATTN US Citizens: You Don’t Have to Fear the NDAA At The Moment

    Posted by J.F. Quackenbush on September 14, 2012
    Picture: Pete Souza (PD)


    The National Defense Authorization Act contains some ugly draftsmanship and some head-scratchingly vague wording on the issue of battlefield captures. That said, my long time professional opinion was that it probably wasn’t something worth worrying overly much about, particularly when their were bigger fish to fry in the realm of warrantless wiretaps and the upcoming sunsetting of FISA provisions. That having been said, others have not been so germane to the problem, and for the moment at least, they have won a major victory in getting a permanent injunction against the section of the NDAA that caused the hubbub.

    From the ruling:
    For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies or whether in light of existing authorization and existing
    criminal statutes § 1021 is needed at all.

    This Court has stated its position as directly presented to it by the Government I that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of “substantially supporting” or “directly supporting” the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.

    Of course a permanent injunction in District Court is one thing, getting the 2nd Circuit and ultimately the Supreme Court to agree is another thing.

    Since the issue presented in this case is what is known as a “pure question of law” the higher courts will be under know obligation of deference to the decision of the trial court. Judge Forrest clearly had that issue at the forefront of her mind, and to that end her opinion contains a bit of a love letter to Justice Antonin Scalia, quoting with great approval the language he has used to condemn some of the case law the Government used to justify it’s position.

    But this fight has only just begun, and as this appeal goes forward there are some very heavy hitting attorneys from the Solicitor General’s office who will now get involved in what should have been a much harder case for the District Court. The Judge’s opinion is littered with coded references to the fact that the Government lawyers had really blown their case and hadn’t made much in the way of the sort of reasonable arguments that the Court would like to have heard. This may be a case of the trial attorneys being lousy, or it may be a result of bad communication about what the government’s actual position on the case was from the White House.

    Either way, however, the next round of litigation will be much more fraught for the litigants.

    ATTN US Citizens: You Don’t Have to Fear the NDAA At The Moment | Disinformation
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    Obama Wins Right to Indefinitely Detain Americans Under NDAA

    A lone appeals judge bowed down to the Obama administration late Monday and reauthorized the White House’s ability to indefinitely detain American citizens without charge or due process.
    Last week, a federal judge ruled that an temporary injunction on section 1021 of the National Defense Authorization Act for Fiscal Year 2012 must be made permanent, essentially barring the White House from ever enforcing a clause in the NDAA that can let them put any US citizen behind bars indefinitely over mere allegations of terrorist associations. On Monday, the US Justice Department asked for an emergency stay on that order, and hours later US Court of Appeals for the Second Circuit Judge Raymond Lohier agreed to intervene and place a hold on the injunction.
    The stay will remain in effect until at least September 28, when a three-judge appeals court panel is expected to begin addressing the issue.
    On December 31, 2011, US President Barack Obama signed the NDAA into law, even though he insisted on accompanying that authorization with a statement explaining his hesitance to essentially eliminate habeas corpus for the American people.
    “The fact that I support this bill as a whole does not mean I agree with everything in it,” President Obama wrote. “In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”
    A lawsuit against the administration was filed shortly thereafter on behalf of Pulitzer Prize-winning journalist Chris Hedges and others, and Judge Forrest agreed with them in district court last week after months of debate. With the stay issued on Monday night, however, that justice’s decision has been destroyed.
    With only Judge Lohier’s single ruling on Monday, the federal government has been once again granted the go ahead to imprison any 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” until a poorly defined deadline described as merely “the end of the hostilities.” The ruling comes despite Judge Forrest’s earlier decision that the NDAA fails to“pass constitutional muster” and that the legislation contained elements that had a ”chilling impact on First Amendment rights”

    Obama Wins Right to Indefinitely Detain Americans Under NDAA [continued]







    Obama Wins Right to Indefinitely Detain Americans Under NDAA

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