Tag Archives: Judge Forrest

Judge Blocks NDAA – One Small Constitutional Victory

“The government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs — or others — are not within Section 1021,” Forrest said. “It did not. This court therefore must credit the chilling impact on First Amendment rights as reasonable — and real.” (this morning from Bloomberg)

Katherine Forrest would be the federal judge that blocked – if only temporarily – the law that allows for the indefinite detention of pretty much anyone the U.S. Govt. wants to say is associated with terrorism – including Americans and permanent residents of America. Chris Hedges, Pulitzer Prize winner and foreign journalism correspondent (featured in my post on Monday here) along with RevolutionTruth were the lead plantiffs – both argued that the language of the National Defense Authorization Act was so ambiguous that they themselves could be considered to be a “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces” as the law states. Hedges has done reporting on many foreign entities that could be considered to be al-qaeda, the Taliban, or associated forces, RevolutionTruth has worked with wikileaks and whistleblowers in such a way that their work could fall under a governmental determination of “support” even though the government will not define any prosecutable actions. To refresh yourself on the NDAA you can check my blob post here.

The quote above sums up the case, the government called no witnesses, offered no evidence, but did cross examine the plaintiffs. It was an unusual case because the plaintiff’s didn’t really have complaints yet about what the government was doing, but they both knew that once they did have a complaint, that there would be little chance of a fair trial as they normally knew it in this country. They would be silenced. They could be whisked through the looking glass and find themselves in an orange jumpsuit without trial – FOREVER! They might never even be told why they were detained.

This report from the Huffingtonpost:

Forrest found the language too vague, and repeatedly tried to get government attorneys to say that the reporters’ fears were unfounded. The lawyers declined.

“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,” Forrest wrote. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.

“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,” Forrest wrote. “In the face of what could be indeterminate military detention, due process requires more.”

Whew! At least one judge has her constitutional principles intact.

Since the House is debating amendments to the NDAA today, perhaps they will take note that a federal judge has blocked a portion of the law. I did skim through the proposed 142 amendments to the law to be sure that at least one of them dealt with the issue of indefinite detention and/or more clearly defining the objectionable behavior.

Ironically, last week I titled a post “Obama as Progressive“, because he made the announcement about gay marriage. I think for the less politically obsessed, Democrats roughly equal liberals who roughly equal progressives – I would not be so generous. Democrats do not always propose and support progressive ideas, many times their affiliations, establishment, and corporate ties do not enable them to publicly support ideas that are progressive. While I think Obama certainly thought of his statement politically, I do feel that he made it due to more of a personal obligation to the GLBT community, to recognize their contributions to society at large and to acknowledge their normalcy. Also, not making a statement at that time would have also made a statement.

The laws and ideas that are put forth in the NDAA were born out of the fear following 9/11. Those fears birthed many institutions that used to be an insult to Americans – increased surveillance, increased infringement on liberty, increased invasions of privacy, and increased false accusations of terrorism. Bush/Cheney were wrong to implement them and Obama is wrong to uphold them as if he is proud (or afraid) of the culture they promote. Hey, with a name like Patriot Act, only wholesome American activities can result, right? Is your eagle/flag pin on the correct lapel? George Orwell would approve.

The Patriot Act and the NDAA are not the same, but they work together to cinch down the freedoms, curiosities, expressions, explorations, and accountability we have as US citizens. Upon learning about the Patriot Act, before it was actually passed – in a teach-in at a local library by a constitutional atty – I was shocked at what was being done in the name of America. I was even more shocked to learn that because the constitutional atty. teaching about the Patriot Act was, in fact, on a governmental watch list as an activist, I was automatically his “associate” for listening to him and could be treated the way any other “terrorist suspect” was treated. This was compounded by the fact that at least one other audience member was knowingly being tracked by a govt. task force. He emphasized that the likelihood was low, but according to the new way of unconstitutional law, the language written was purposefully written in such a vague manner that lil’ ol’ me sitting in a public library conference room on a Saturday afternoon could be construed as a terrorist operative. The NDAA could – if unblocked – provide the legal means to vanish me forever from general society.

Obama has failed us on his constitutional scholar credentials, why he did not take a constitutional stand, we may never know. Hedges and RevolutionTruth have every right to worry about indefinite detention – the government won’t even deny it. What used to be the unspoken 4th estate of our country – a free press – is quietly being chilled. It seems that the government would be quite happy to freeze them out totally  so they will stop digging for any contradictory information to what the state is reporting.

I for one would like to thank Judge Katherine Forrest for being brave and making a ruling that will make some waves. Thanks for knowing our Constitution and taking a stand with it.

 

 

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