Summary: American history can be seen as a series of tests to our judges. From Dred Scott to Citizens United their responses to these challenges has shaped America. The expansion of government power far beyond the limits of the constitution provides another test of our judges. So far most have failed. Today we look at a star: Katherine Forrest (a too-rare bit of good news on the FM website).
Glenn Greenwald describes this important Court ruling (Salon, 16 May 2012; deserves to be read in full)
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:
- because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute;
- even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and
- 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.
… 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.
About that vagueness. To obey the law citizens must know what the law forbids. To enforce the law, officials must know. Let’s look at this brave Judge’s strong questioning of government officials (something few Judges will do these days, preferring craven obsequiousness). It’s like something from a play by Kafka.
The Court then asked: What does ‘directly supported’ mean?
Government: … Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, ‘substantial support’ that I have not thought through exactly and we have not come to a position on what ‘direct support’ and what that means.
… The Court then asked: “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?”
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 then returned to the Laws of War and finally stated, “I cannot offer a specific example. I don’t have a specific example.”
Perhaps these violations are like pornography: government officials know it when they see it. This would be funny except for the people rotting in our prisons around the world, imprisoned on the basis of these increasingly un-American law. Or imprisoned for little or no reason, except that the government will not admit it was wrong (for an example see “Abu Zubaydah, the man justice has forgotten“, Joseph Margulies, op-ed in the Los Angeles Times, 16 May 2012 — “Arrested in 2002 and tortured repeatedly, he was never charged, and the U.S. no longer believes he was even a member of Al Qaeda. But he remains in prison.”
For More Information
- Another American judge weakens the Republic’s foundation, 8 August 2010
About the National Defense Authorization Act:
- Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
- RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011
- “Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress), 22 December 2011