Home / Culture and Society / Federal Court Blocks Indefinite Military Detention in the NDAA

Federal Court Blocks Indefinite Military Detention in the NDAA

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Drawing on the Supreme Court’s decision in Hamdi vs. Rumsfeld, the U.S. 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 probbly 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.



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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.
  • Clav

    It’s horrifying to realize that the only thing which got bi-partisan support from our government in a time of great stress was how to oppress the citizens.

    Horrifying, yes.

    Surprising? No.

  • It is very annoying but there is nothing I can do about it. It even happens to me too sometimes.

    I am regularly pushing the site managers for all kinds of improvements, in the comments space, in how we work, in how we engage with the writers, readers, commenters and even the editors but it is an incredibly slow process and bafflingly unentrepreneurial for an American business.

    I agree that you and indeed all of us, to say nothing of the site itself, deserve better and I will keep on pushing as best I can.

  • pablo

    Well thats all fine and dandy Chris, but I can’t tell you how many times my comments have been rejected out of hand. Usually I will maybe contribute 1-5 posts then the bot will come in and reject me.

    The people who do contribute to this site, and I mean in this context commenters deserve to be treated better than that.

    If it had happened once twice three times over the last several years fine, for me it has happened well over 40 times, and that is just lame.

  • Hi Pablo,

    Just wanted to inform you that I deleted your “test” comment and reassure you that you are not being censored.

    You wouldn’t get banned for a single transgression of our very understanding comments policy, nor even for several. It takes a lot of wilful stupidity and bad intentions to get banned permanently from the site and you are nowhere near that.

  • Igor

    Too true. Alas.

  • pablo

    And from Chris Hedges one of the litigants in this law suit:

    “This demented “war on terror” is as undefined and vague as such a conflict is in any totalitarian state. Dissent is increasingly equated in this country with treason. Enemies supposedly lurk in every organization that does not chant the patriotic mantras provided to it by the state. And this bill feeds a mounting state paranoia. It expands our permanent war to every spot on the globe. It erases fundamental constitutional liberties. It means we can no longer use the word “democracy” to describe our political system.

    “The supine and gutless Democratic Party, which would have feigned outrage if George W. Bush had put this into law, appears willing, once again, to grant Obama a pass. But I won’t. What he has done is unforgivable, unconstitutional and exceedingly dangerous. The threat and reach of al-Qaida—which I spent a year covering for The New York Times in Europe and the Middle East—are marginal, despite the attacks of 9/11. The terrorist group poses no existential threat to the nation. It has been so disrupted and broken that it can barely function. Osama bin Laden was gunned down by commandos and his body dumped into the sea. Even the Pentagon says the organization is crippled. So why, a decade after the start of the so-called war on terror, do these draconian measures need to be implemented? Why do U.S. citizens now need to be specifically singled out for military detention and denial of due process when under the 2001 Authorization for Use of Military Force the president can apparently find the legal cover to serve as judge, jury and executioner to assassinate U.S. citizens, as he did in the killing of the cleric Anwar al-Awlaki in Yemen? Why is this bill necessary when the government routinely ignores our Fifth Amendment rights—“No person shall be deprived of life without due process of law”—as well as our First Amendment right of free speech? How much more power do they need to fight “terrorism”?”

    Supine and gutless certainly sums it up.

  • pablo

    Also in another of a series of blatantly police state unconstitutionality, after the initial ruling that the NDAA was unconstitutional, the government refused to disclose if they were abiding by the ruling. YOU GO OBAMA!!

    “Obama’s attorneys refused to assure the court, when questioned, that the NDAA’s section 1021 – the provision that permits reporters and others who have not committed crimes to be detained without trial – has not been applied by the US government anywhere in the world after Judge Forrest’s injunction,” Tangerine tells Daily Cloudt. “In other words, they were telling a US federal judge that they could not, or would not, state whether Obama’s government had complied with the legal injunction that she had laid down before them.”
    Source Russia Today

  • pablo

    And yes I am a cheeky bastard.

  • pablo

    Actually it was the administration itself that insisted that american citizens be included in the NDAA legislation. Just youtube search Carl Levin NDAA.

    I entered the word “test” in the above comment because all too frequently when I post on this site, I get censored very quickly by the censor bot. If I were paranoid I would take it personally. However I know that the staff at blogcritics are far too honorable to do that. I mean if I crossed a line editorially I know that they would tell me so and ban me accordingly. Its just a glitch in their system that I am a victim to.

  • Igor

    Excellent article, Dave! Thanks for publishing it.

    It’s clear that a bi-partisan claque of anti-constitution dictators from both Congress and Administration joined together in the NDAA travesty.

    It’s horrifying to realize that the only thing which got bi-partisan support from our government in a time of great stress was how to oppress the citizens.

  • Glenn Contrarian

    Grrrr…you’re right – NDAA had nothing to do with Gitmo. My bad – must’ve OD’ed on stupid pills this morning. And I’ve got pretty much nothing left with which to argue concerning your article. I’m wrong, you’re right, and now I’ll go drown my sorrows with some 1% milk now.

    My problem with the NDAA isn’t that I think Obama himself will go overboard with misuse of power (though most Republicans would assume precisely that); instead, I’m afraid that in the future, someone like Nixon might try to realize its potential for tyranny.

    Good article, Dave – well said and done!

  • GITMO has nothing to do with this particular issue. And do you know WHY Obama had reservations? It doesn’t get much publicity, but the reason he had reservations was that he felt the NDAA actually gave him less power to detain people illegally than he already had under the AUMF and PATRIOT Act.


  • Glenn Contrarian

    Dave –

    It doesn’t matter what Holder or Obama tried to do because the House Republicans – who as you know have the strongest hold on the purse strings of government – defunded any and all attempts to close the prison at Guantanamo Bay, give the prisoners proper trials, and – if found not guilty – freed as they should have been a long, long time ago. The Republicans promised that they would keep the prisoners in Gitmo despite all efforts of the Obama administration to free them, and Politifact counts it as a “Promise Kept”.

    When it comes to the prisoners’ continued detention as part of the NDAA, the same reference points out that on Dec. 31 of last year President Obama said, “The fact that I support this bill as a whole does not mean I agree with everything in it…. I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

    BUT Obama signed it, and because he signed it, he owns it. There were many war crimes by the Bush administration that were richly deserving of prosecution in The Hague, and by signing the NDAA that continues their unjust detention, Obama makes himself party to several of those crimes. It’s just sad that the House Republicans put him in the position where he felt that he had no real choice in the matter.