Showing posts with label NDAA. Show all posts
Showing posts with label NDAA. Show all posts

Thursday, May 17, 2012

Federal Judge: NDAA may violate 1st, 5th Amendments; Issues Injunction

A federal district judge...Katherine Forrest of the Southern District of New York, issued a preliminary injunction against enforcement of the highly controversial indefinite holding provisions of the National Defense Authorization Act ("NDAA"), 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 Brigitta 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.

(Adapted from an original by Glenn Greenwald)

Thursday, February 23, 2012

BREAKING: Senate Schedules Hearing to Reverse NDAA, invites Gitmo Attorney to Testify



The U. S . Senate Judiciary Committee has posted notice that it will hold a hearing on the “Due Process Guarantee Act: Banning Indefinite Detention of Americans,” a bill sponsored by California Senator Dianne Feinstein. The bill aims to reverse certain provisions of the recently passed National Defense Authorization Act of 2012 (“NDAA”) permitting the indefinite detention of American citizens without charge or trial. This provision of the NDAA has created a social media firestorm, and support for Feinstein’s bill is bi-partisan...but one never knows when the Republican minority in the Senate will pull a filibuster.

In what can only be viewed as a positive sign that the Committee is sympathetic to Feinstein’s bill, Committee Chair Sen. Patrick Leahy (D-VT) has issued a direct invitation to renowned civil liberties attorney Stewart “Buz” Eisenberg to offer testimony on the bill.

Under Section 1021 of the NDAA, the President is authorized to permit the military to detain 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," and anyone who commits a "belligerent act" against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities.” The law further authorizes trial by military tribunal or transfer of the detainee to "any other foreign country, or any other foreign entity.”

Before NDAA was passed, Americans took to social media, opposing this wholesale destruction of almost all of the provisions of the U.S. Bill of Rights addressing criminal procedure, particularly the 6th Amendment, which states,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

The provisions were included in a bill that was primarily meant to fund the military, so some legislators voted for the bill while expressing misgivings about the indefinite detention provision. In response, the Due Process Guarantee Act of 2011 was introduced as S.2003 in the Senate on December 15, 2011, and referred to the Judiciary Committee. (It has since also been introduced in the House where it is known as H.R. 3702, where it has already garnered 50 co-sponsors.) The bill specifically prohibits the indefinite detention of American citizens as permitted under NDAA.

The Committee has scheduled its first hearing for Wednesday, February 29 at 10:00 am in Room 226 of the Dirksen Senate Office Building. As is typical of Committee hearings, various experts have been invited to testify at the hearing; the invitation of Attorney Stewart “Buz” Eisenberg suggests that the Committee is willing to listen to the horrors of indefinite detention. Eisenberg is Of Counsel to Weinberg & Garber, P.C. of Northampton, MA, serves as President of the International Justice Network, and is a Professor of Civil Liberties at Greenfield Community College. Since 2004 he has provided direct representation to four detainees at Guantánamo Bay.

A March 22, 2008 article in the Daily Hampshire Gazette entitled “Mission: Guantanamo Justice ('Hell's Lobby')” by Kristen Palpini describes Eisenberg’s work with the people indefinitely detained in Guantanamo:

“ ‘There is torture at Guantanamo Bay’, said Eisenberg.

He claims to have seen the results - a crippled hand, men walking with permanent limps, others with physical disfigurements and mental scars.

‘There is little access to doctors for detainees,’ said Eisenberg.

One of his clients has a skin disease. Eisenberg suspects it is pellagra, a disease often associated with a lack of niacin or protein in a person's diet. The man's skin flakes off into small piles on the desk as Eisenberg talks with him.

There is no human contact for detainees beyond orders from soldiers, said Eisenberg. Detainees are kept in isolated cells almost 24 hours a day. Captives' cells are staggered so men are not within speaking distance of someone who would understand their language.

There is no rest at Guantanamo, said Eisenberg. The buzzing bulbs that light detainee cells and prison halls are never turned off.

This is hell's waiting room, as Eisenberg sees it, and he wants it shut down for good.

'The best way to close Guantanamo is to open Guantanamo,' said Eisenberg, who often speaks at colleges and forums about his Guantanamo Bay experience. 'Americans don't want this done in their name.'”

A year later, while still representing these clients, Eisenberg wrote an article for the Spring 2009 edition of the Northeastern Law Journal, Vol. 1, No. 1, entitled “Guantanamo Bay: Redefining Cruel and Unusual”

He writes,

“Representing Guantánamo detainee Mohammed Abd Al Al Qadir (Guantánamo Internee Security Number 284) has been an experience unlike any other of my legal career. While serving as counsel for Mr. Al Qadir (also known as Tarari Mohammed), …I encountered numerous obstacles unique to Guantánamo cases. Convoluted administrative procedures, allegedly implemented to protect national security, made representation difficult for lawyer and client alike.

In 2004, the U.S. Department of Defense issued procedures to assess the need to continue detaining enemy combatant detainees. Three years later, Tarari Mohammed was cleared for release or transfer. Nevertheless, he was still detained in Guantánamo Bay’s Camp 6 as of our March 20, 2008 visit. …[W]e saw our client shackled to the floor, as always, and immediately noticed he was wearing a white respirator on his face. The respirator was of the sort a contractor wears when working with toxic materials.”

Eisenberg continues to write about how Tarari had met with a representative of the International Committee of the Red Cross three weeks earlier, who brought a letter from his sister.

The letter was the first and only communication our client received from any member of his family in over six years of detention. In the letter, Tarari’s sister informed him of their mother’s death…[she] had been distraught over her son’s detainment…At the conclusion of their meeting, the [Red Cross] representative told Tarari that his family had not received any letters from him. Tarari explained he had written and sent many letters during his detainment. The military never forwarded the letters.”
Cut off from his family and the outside world, Guantanamo guards accused him of spitting (a charge denied by Tarari), and then made him change from his white clothing (signaling a compliant prisoner) to an orange suit (signaling non-compliance) and forced him to wear the respirator as punishment for the supposed act of spitting.

Such is the nature of 7 years in detention, without charge, without trial, without access to the outside world.

This is the fate that could await any American citizen, at the hands of its own government, under the provisions of NDAA. And this is why the Due Process Guarantee Act is so critical to pass.

Call the Judiciary Committee Members. Insist that they pass DPGA.

Patrick Leahy (D-VT) [Chairman] 202-224-4242
Herb Kohl (D-WI) 202-224-5653
Dianne Feinstein (D-CA) 202-224-3841
Charles E. (Chuck) Schumer (D-NY) 202-224-6542
Dick Durbin (D-IL) 202-224-2152
Sheldon Whitehouse (D-RI)202-224-2921
Amy Klobuchar (D-MN) 202-224-3244
Al Franken (D-MN) 202-224-5641
Christopher Coons (D-DE) 202-224-5042
Richard Blumenthal (D-CT) 202-224-2823
Chuck Grassley (R-IA) 202-224-3744
Orrin G. Hatch (R-UT) 202-224-5251
Jon Kyl (R-AZ) 202-224-4521
Jeff Sessions (R-AL) 202-224-4124
Lindsey Graham (R-SC) 202-224-5972
John Cornyn (R-TX) 202-224-2934
Mike Lee (R-UT) 202-224-5444


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