A provision for indefinite military detention in the NDAA (National Defense Authorization Act) was struck down Wednesday by U.S. District Judge Katherine Forrest in Manhattan who ruled that the law was unconstitutional. She stated that she saw legitimate fears in claims by journalists, scholars and political activists that they could face indefinite detention for exercising First Amendment rights.
First Amendment rights are guaranteed by the Constitution and cannot be legislated away. This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.
Within 24 hours this historic court ruling, the Obama administration has appealed the ruling in an attempt to reinstate the indefinite detention provisions. Despite issuing a signed statement promising not to indefinitely detain U.S. citizens, the Obama administration specifically pushed for those provisions to be applied to U.S. citizens in the first place.
The disputed paragraph [Section 1021(b)(2)] in the NDAA allows the military hold anyone accused of having “substantially supported” al-Qaida, the Taliban or “associated forces” until “the end of hostilities.” Government lawyers were unable to define several of these phrases at hearings.
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.’ 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. Forrest questioned whether a news article perceived as favorable to the Taliban and garnering support for the Taliban could be considered to have “substantially supported” the Taliban.
How about a YouTube video? Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda?’ Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is ‘modest’ or ‘substantial?’
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. 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.
The balance between national security and civil liberties is still being waged, 11 years after the terrorist attacks of Sept. 11. Beginning with policies established during the George W. Bush administration like the Patriot Act, and continuing through Obama’s administration with an extension of the Patriot act and the National Defense Authorization Act (2012), the US government has been systematically eradicating our freedoms, reducing personal privacy and increasing security measures, domestic police presence and foreign military action.
An increase in military presence in the Middle East, Drone strikes, covert operations and assassinations have been the norm over the last decade, with no end in sight. At home, peaceful demonstrations like the ‘Occupy’ movement have been met by the ever-tightening, authoritarian grasp of federal government.
By establishing a state of permanent ‘war’ and claiming to be for our own safety and security, our government is seemingly intent on reducing our constitutional rights to free speech. And we the people seem determined to oblige them. But how many freedoms will we surrender in our efforts to feel safe? At what point do we find the balance?
Middle eastern or African countries have been operating in much the same way “under a state of emergency” for decades on end, allowing their “governments” to use whatever means necessary to retain power. The result is chaos and a never-ending stream of “revolutionaries” or “resistance fighters” who, if successful in assuming control (typically through violent rebellion or bloody coups) are wont to surrender it. It is a never-ending cycle, transitioning from one despot to another while the people suffer and starve.
Gaius Julius Caesar was asked to bequeath his powers back to the people when the Senate deemed the threat faced by the Roman Empire had abated, but he refused. The result of his defiance was a Civil War, from which he emerged as the unrivaled leader of Rome, proclaiming himself “dictator in perpetuity.”
When we surrender our liberties willingly, we invite certain factions to assume control and their very nature encourages them to maintain it, even when such authority is no longer necessary.
Now that we have granted the government such extreme authority, to take military action with impunity, will they ever willingly cede that measure of control? Who defines when exactly the “emergency” or “hostilities” are over, the people, or the government which derives its authority from propositions valid only in such a state?