Drawing on the Supreme Court’s decision in Hamdi vs. Rumsfeld, the US District Court of the Southern Region of New York has granted a permanent injunction against the exercise of the indefinite military detention powers claimed by the United States government in section 1021 of the National Defense Authorization Act.
The 112 page decision goes into great detail on how the threat of indefinite detention without due process of law imposes a chilling effect on the free speech rights of critics of the government, as exemplified by the plaintiffs who include prominent government critics and radicals like Noam Chomsky.
During the Congressional debate over the passage of the NDAA many in Congress claimed that the bill did not contain provisions for the indefinite detention of civilians in violation of their Constitutional rights. The proponents of the bill went to some lengths to rearrange the text and obscure the presence of those provisions to give them grounds for denying their existence. As demonstrated in the video accompanying this article, some supporters of the bill like Rep. Allen West (R-FL) were insultingly dismissive of those who complained about the NDAA. The court’s ruling definitively refutes any contention that the NDAA does not include these provisions, confirming the opinions of many civil rights lawyers and explaining in detail how section 1021 of the NDAA could be used to deprive citizens of their liberty at the whim of the Executive Branch.
At the time the NDAA was being debated groups like the American Civil Liberties Union and the Republican Liberty Caucus went to great lengths to provide legislators with detailed and up to date information on the dangerous content of the bill and organized extensive write-in and call-in campaigns opposing its passage. These efforts were coordinated with the efforts of legislators like Sen. Rand Paul (R-KY) who spoke up against the bill in Congress.
There is really no excuse for those legislators who voted for the NDAA. The flaws in the content were too well known and well publicized for them to plead ignorance. Voters are unlikely to find the self-serving arguments of the bill’s authors that terrorism is such a threat that we need to give up our basic civil liberties to be persuasive now that the court has issued this injunction.
Those who claimed the NDAA did not include this provision should read the detailed explantion of the content of the bil in this ruling and at the very least they should publicly apologize. It would not be unreasonable for some of the more outspoken advocates of the bill like Rep. West to resign. The ruling is absolutely unequivocal that the NDAA does give the President the power to suspend due process and allow the military to arrest civilians and hold them indefinitely without charges or trial.
If you have time to read the ruling, the summary of the arguments made by lawyers from the Justice Department is eye-opening. Their presentation of their position is so arrogant and they seem to be so callous in their disdain for the rights of citizens that they raise questions about their fitness and public servants and the failure of Attorney General Eric Holder to uphold his responsibility as the chief advocate for the people and their rights. He seems to have forgotten that he is the people’s lawyer and become nothing but a mouthpiece for the government.
The ruling concludes:
“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.”
In granting an injunction the court not only makes clear that the NDAA contains these powers, but also blocks their exercise, protecting the rights of citizens. It is a travesty that we should have to rely on the courts to protect us from such a clear violation of our rights. Our elected representatives ought to be looking out for our interests and should never have passed the NDAA in its current form. Far too many of them failed in this basic responsibility to their constituents.
For the time being we are free of this gross abuse of government power, but it is likely that Attorney General Holder will appeal the ruling and attempt to reclaim this power, and it’s probably inevitable that the Tweedle Dum and Tweedle Dee of Senatorial malfeasance, John McCain (R-AZ) and Carl Levin (D-MI) will look for new ways to incorporate indefinite military detention powers in the NDAA when it comes up for review next year.