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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsLink to the Actual Injunction of Section 1021 of the NDAA and Discussion
For clarity, here is a PDF link to the actual injunction issued by Judge Forrest, which rules Section 1021(b)(2) of the NDAA unconstitutional.
http://www.courthousenews.com/2012/06/07/Hedges%20v.%20Obama%20Reconsideration.pdf
This Order, issued June 6, 2012, clarified the scope of the Injunction issued on May 16, 2012. The June 6 order states that the the previous order applies only to Section 1021 (b)(2), but that the injunction covers everyone, not only the named plaintiffs.
Here is a link to the May 16, 2012 order: http://www.courthousenews.com/2012/05/16/Hedges%20v.%20Obama.pdf
This Order states that Section 1021 is not simply an "affirmation of the AUMF", that it is new legislation and too vague. It enjoined the government from enacting this section as violative of the 1st Amendment and the 5th Amendment due process clause.
This is the section at issue, the definition of "covered persons": 1021(b)(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
The NDAA allows for any "covered persons" to be detained "without trial until the end of hostilities authorized by the [AUMF]."
President Obama in his signing statement and a presidential directive explicitly stated that “covered persons” applies only to a person who is not a citizen of the United States and who is a member or part of al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and “who participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” But, the Court disagreed.
Interestingly, the government could have disposed of the case easily. Judge Forrest wrote: "To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so--thereby ensuring standing and requiring this Court to reach the merits of the instant motion."
The government was not prepared to state that the journalists and activists bringing the suit their conduct was not within the scope. Forrest held: "Nevertheless, with respect to § 1021, and particularly in light of the Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute, plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment."
And: "Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights."
On the vagueness: "Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct."
The Court could not limit the construction, so enjoined enforcement of the section: "Because this Court cannot fashion an appropriate limiting construction, it finds that preliminarily enjoining enforcement of § 1021 is the only appropriate remedy at this stage."
And, finally: "For the aforementioned reasons, plaintiffs' motion for preliminary injunction is GRANTED; enforcement of § 1021 of the NDAA is preliminarily enjoined pending further order of this Court or amendments to the statute rendering this Opinion & Order moot."
All quotes from the May 16 Order.
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morningfog
(18,115 posts)
sabrina 1
(62,325 posts)such as the plaintiffs in this case and others, doing their jobs as citizens, I have faith that this democracy will survive. But shame on anyone who, for political reasons, would attempt to prevent the American people from getting the information they need in order to protect those rights.
It looks like since Congress has been so derelict in its job over the past decades, that we are increasingly dependent on the courts to protect the rights of the American people.
morningfog
(18,115 posts)it expanded the situations in which indefinite detention without a trial could occur. The judge agreed with us that the language was too vague and put too many US citizens at risk. They didn't buy the word of Obama that it wouldn't be enforced that way. Thankfully.
sabrina 1
(62,325 posts)defended before they are gone completely, it will be too late.
I am glad that these issues are getting to the courts now where actual legal opinion trumps partisan politics.
sabrina 1
(62,325 posts)I have yet to see them wrong on major news stories, btw. And if anyone wants news that counters the MSM right leaning bias, RT is one of the best places to get it.
boppers
(16,588 posts)They were wrong.
One tiny subsection was the problem, not the whole of the NDAA.
sabrina 1
(62,325 posts)We have a Constitution and we have laws, these Bush 'policies' were merely attempts to grab more power for the executive branch and take away the power of the people's representatives.
How quickly we forget.
As I said, RT was right.
From the Judge:
Uncontroverted proof that it was unconstitutional. Unless the 1st Amendment is not part of the constitution.
boppers
(16,588 posts)Every single one.
Not a *single* one has ever been found, as a whole, unconstitutional, as the RT suggested.
I am guessing you don't know what it is?
sabrina 1
(62,325 posts)boppers
(16,588 posts)The NDAA bill stands.
Subsection 1021(b)(2) does not.
Do you understand the difference?
http://en.wikipedia.org/wiki/National_Defense_Authorization_Act
In addition, the judge made it clear that it is still perfectly legal to arrest and detain US citizens, and hold them in military confinement, without a jury trial, until hostilities cease.
sabrina 1
(62,325 posts)I wasn't arguing "for" anything. I just don't like it when people (like RT) use vague handwaving to mislead people, and make statements like "NDAA ruled unconstitutional", in a blatant disregard of the actual details.
sabrina 1
(62,325 posts)I recall you defending it then. I don't recall you, as I do others here, arguing that the section of the bill now ruled to be unconstitutional, was in fact unconstitutional.
Can you direct me to where you joined the rest of us, who it turns out were correct, who opposed the passage of the bill at the time, for all the reasons stated by the judge? Seems to me you were defending it in its entirety.
boppers
(16,588 posts)...as demonstrated by the strum and drang (and fundraising, and PR games) over a tiny piece of it.
The bill itself still stands. Still viewed as constitutional, for 99.99% of it.
The judge has also agreed that it's totally legal, and constitutionally valid, to lock up american citizens in military facilities, without jury trial, under some circumstances. Same as before.
I cannot direct you to anywhere that I opposed the entire bill's passage, because the bill was bigger than a single nit used to pump up some egos for people who really didn't have much standing.
You see, the world is more complex than "for", or "against", based on paranoia about something that isn't happening, and hasn't happened, but the judge wanted the language changed so it cannot happen.
I assume the next bill will have slightly changed wording, and still acknowledge that it's legal to to lock up american citizens in military facilities, without jury trial, under some circumstances. Same as before.
sabrina 1
(62,325 posts)And that is that NO ONE should be held indefinitely without charges and without trial and just labeling someone an enemy combatant doesn't pass the test of either Domestic Law or International Law.
I guess you're saying that until this ruling you were okay with what has now been declared unconstitutional. So you were wrong.
Challenges to these draconian laws will continue until we restore this country to being a country of laws. And anyone who supports them now, will once again be proven wrong. Just as Bush supporters were proven wrong re Habeas although they were so certain they were right.
Odd though to see any argument in favor of any of this here I have to say.
boppers
(16,588 posts)That's what was resolved with Hamdi and Padillia.
"NO ONE should be held indefinitely without charges and without trial and just labeling someone an enemy combatant doesn't pass the test of either Domestic Law or International Law. "
Wrong. That's not what was said. Being held with tribunal review is enough, no trial is required.
"I guess you're saying that until this ruling you were okay with what has now been declared unconstitutional."
Nope, it was, and is, constitutional to hold US citizens, in military custody, without a jury trial, before, and it *still* is, according to the judges ruling.
The sub-section was declared as possibly unconstitutional because it *could* be abused, with it's current wording, in ways not intended.
sabrina 1
(62,325 posts)How many charges against have been filed against those detained in that gulag, out of the hundreds who were kidnapped and thrown into that limbo?
How many trials have there been? How many convictions?
'Might be abused'?? You've got to be kidding.
Keep on defending these draconian 'laws', some of us will keep on challenging them, and as you can see, WHEN they are challenged, as in Hamdi, and now, they do not stand up to the challenge.
boppers
(16,588 posts)"How many charges against have been filed against those detained in that gulag, out of the hundreds who were kidnapped and thrown into that limbo? "
A few hundred.
"How many trials have there been? How many convictions? "
A few hundred.
Some got released, some did not.
sabrina 1
(62,325 posts)boppers
(16,588 posts)You said hundreds had been tried and convicted. I asked if you wanted to stick with those numbers.
Those links not only do not prove your contention, they show how due process was abused.
But no, hundreds were not charged, tried and convicted. Why? Mainly because the vast majority of detainees were innocent, kidnapped and sold to the US for bounty. Starting there, their rights were abused, using the NDAA to do so.
But it didn't stop there. Hundreds were held without charges, some were tortured, others died in custody, and others committed suicide. You are surely not defending any of this I hope.
Several Military Prosecutors walked away from the trials, because they came to see that there was no evidence against these people.
At least one of the detainees was a Journalist, held for six years without charges, abused and finally released because of worldwide pressure.
Hundreds, over five hundred, were eventually released with no charges, but not before being held unlawfully, under that wonderful bill you are so fond of, the NDAA. More were released for the same reasons, no evidence against them.
Since there was a total of 779 detainees altogether, that didn't leave many to be tried and convicted, nor were they.
Guantanamo By The Numbers
Seems to me you have zero knowledge of how that law has been used and abused. I don't know where you were during the Bush Administration when all these actual facts were revealed and when Constitutional attorneys were trying to get some justice for those who were so wronged, under that law.
The cost is staggering, in money, but even more so in human suffering. I am hopeful that this ruling is just one of many that will result from challenges to something that never should have existed in this country. Ten years late, but better late than never. Too late for those who died, or were tortured to death.
International Laws and Domestic laws have been violated, by the Bush war criminals. The NDAA is open to abuse, and Guantanamo is a spectacular and shameful demonstration of why it should be abolished. History will not be kind to those who supported any of this. The victims are now making sure of that, as they should.
boppers
(16,588 posts)And that's evidence of due process being in place.
Had nothing to do with the 2012 defense budget bill, though.
Keep railing on about the defense bill though, if you want, I'm just not sure you know what you're arguing about.
sabrina 1
(62,325 posts)You call that due process? AND, they were tortured, they were defamed, they were called the 'most dangerous men in the world'. All lies! They were refused access to any court, HABEAS CORPUS. Do you know what that means? For years.
Now, if you cannot defend your claims that 'hundreds were tried and convicted' don't try to deflect with more incorrect claims, especially since their detention has become a shameful stain on this country's reputation, all over the world.
You made a claim. You said 'hundreds were tried and convicted'. You were wrong about that and you are now wrong to claim they received 'due process'. Not even a 'nice try'.
Sometimes I don't really think there is any hope for this country. To see this attempt to try to justify what happened at Guantanamo on this board, frankly it is shameful.
boppers
(16,588 posts)"They were refused access to any court"
So, what, their guards just decided to release them because the guards were bored? No.
"Now, if you cannot defend your claims that 'hundreds were tried and convicted'"
That's your claim, not mine. Here's a hint: Punctuation matters. Hundreds were tried, few were convicted.
"You said 'hundreds were tried and convicted'".
Nope. I did not.
Upthread, post #21:
""How many trials have there been? How many convictions? "
A few hundred.
Some got released, some did not. "
A few hundred trials. Unless you're assuming that the convicted are released, I would assume the context would lead you to understand that there weren't a few hundred convictions. Mea cupla. Maybe you're used to a system where convictions result in a release.
sabrina 1
(62,325 posts)Your own words:
You: few hundred.
Yes, you did say there were hundreds of trials and convictions.
You idea of 'due process' scares me. To see someone after being informed that innocent people were held WITHOUT CHARGES, do you see that, still call those, now infamous, detentions, 'due process'? I wrote in capital letters, again. No charges, NO TRIALS. Please post links to the 'tribunals' that were held that resulted in the release of over 500 detainees YEARS after being held without any access to any court.
Do you know anything about this subject? Your posts are rambling, no links, just support for the wrongful treatment of hundreds of innocents who were labeled as the 'most dangerous men in the world' Where did that come from? What 'tribunal' determined that they were the 'most dangerous men in the world' for YEARS? The VP of the US and the POTUS himself assured us that is what they were. How did they come to such a wrong conclusion??
Thankfully your opinions, if they can even be called that, have all been proven wrong due to the heroic efforts of over 100 Constitutional attorneys who themselves were demonized along the way.
Scary, that is the only word to describe anyone calling what happened to the now famous Guantanamo Detainees as 'due process'. I sure hope, and I mean this sincerely, that you are never treated to that kind of 'due process' or anyone else for that matter.
boppers
(16,588 posts)"rambling", that's funny.
boppers
(16,588 posts)Good on ya.
limpyhobbler
(8,244 posts)Thanks for posting it.
bhikkhu
(10,715 posts)...while the whole controversy seems at times to be a tempest in a teapot thing - vast outrage over possible misuse of potential unintended misinterpretations - there is still the basic thing that civil liberties can be harmed by an unclear law, and people need to know for sure that they shouldn't be prosecuted or fear prosecution for something the law isn't clear about. A good ruling.
sabrina 1
(62,325 posts)abuse as a result of these 'laws'. Nearly ten years of abuse. People kidnapped and sold to the US for bounty, sent to Guantanamo, never charged, tortured and held with no access to any kind of judicial system, some dying, tragically, while being held wrongfully in that now historically infamous Gulag.
All because Bush disposed of Habeas Corpus, claiming the right to do so, a right we on the Left vehemently challenged to no avail.
And rather than restore the rule of law, it has now been made even stronger in terms of abuse, of violations of International Law, but mostly of Human Rights.
This ruling is a beginning hopefully of a slow return to the rule of law in this country and hopefully there will many more challenges to these so-called laws.
The judge was worried about abuse, maybe because there has been so much abuse that finally a judge decided to take a stand.
