A federal judge on Wednesday permanently blocked the U.S. military from enforcing a law allowing it to indefinitely detain anyone accused of aiding or participating in terrorism. The order can be read here.
In May, U.S. District Judge Katherine Forrest issued a preliminary injunction barring the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.
“When the government was asked by the court what the words ‘substantially supported’ mean, it was unable to provide a definition; the same was true for ‘directly supported,'” she wrote in her new order, which makes the preliminary injunction permanent. “There can be no doubt, then, these terms are vague.”
That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.
During the evidence phase, four of them — Icelandic Parliamentarian Birgitta Jonsdottir, reporter Alexa O’Brien, activist Kai Wargalla, and Hedges — testified that fear of the NDAA made them change how they worked, traveled and associated.
Their testimony convinced the judge that the law had a “chilling effect” on free speech, making the law impermissible under First Amendment grounds.
“Courts must safeguard core constitutional rights,” she wrote. “A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases — primarily decided during World War II — in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.”
“Presented, as this court is, with unavoidable constitutional questions, it declines to step aside,” Forrest wrote.
She blasted the government’s position that federal courts should provide habeus, rather than judicial, review to military detainees as “without merit” and “dangerous.”
“Habeas petitions (which take years to be resolved following initial detention) are reviewed under a ‘preponderance of the evidence’ standard (versus the criminal standard of ‘beyond a reasonable doubt’) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous,” Forrest wrote (parentheses in original). “If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.”
The judge refused to “abdicate” her duty to protect constitutional rights out of deference for executive power.
“The court is mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security,” the order states. “Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this court’s responsibility to safeguard the rights it has sworn to uphold.”