Written by Joe Wolverton, II
On September 12 a federal district court judge made permanent an earlier order temporarily blocking enforcement of provisions of the National Defense Authorization Act (NDAA) purporting to empower the president to deploy the U.S. military to apprehend and indefinitely detain people suspected of “substantially supporting” al-Qaeda, the Taliban, or “associated forces.”
On May 16 Judge Katherine Forrest of the U.S. District Court for the Southern District of New York had issued a preliminary injunction preventing the Obama administration from exercising the indefinite detention authority granted the president by Section 1021 of the NDAA.
The temporary block has now been made permanent. In the opinion handing down the injunction issued yesterday, Judge Forrest wrote:
The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from § 1021(b)(2).
This is similar to the language she used in the 68-page opinion accompanying the temporary injunction order. In that order Judge Forrest disagreed with the federal government’s argument that the relevant provisions of the NDAA merely restate existing law. She wrote: “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].”
Pointing out that were Section 1021 and the AUMF identical then the former would be redundant, Judge Forrest held:
Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.
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