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Friday, May 18, 2012

Court slaps injunction on Government breach of Constitution

National Defense Authorization Act Section 1021 violates freedom of speech and right to know
Editing by Carolyn Bennett

Writers and activists challenged; U.S. District Court for the Southern District of New York enjoined:
They have demonstrated a likelihood of success on the merits with respect to their constitutional challenges; 

they have put forward specific evidence of actual and threatened irreparable harm; 

the balance of the equities and the public interest favors issuance of preliminary relief (particularly, but not only, in light of the fact that the Government’s entire position is premised on the assertion that §1021 does nothing new — that it simply reaffirms the AUMF; in which case, preliminarily enjoining enforcement should not remove any enforcement tools from those the Government currently assumes are within its arsenal). 

Background: Government acts in frenzied post-9/11 terror wars
The Authorization for Use of Military Force (AUMF) was passed [Public Law 107-40, 115 Stat. 224 (Sept. 18, 2011)]  in direct response to the terrorist event of September 11, 2001, and provides: that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
President [George W] Bush utilized the authorization granted under the AUMF to send U.S. armed forces into Afghanistan “with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.”  The hostilities that commenced in 2001 remain ongoing today.  The Government has captured and detained a number of individuals pursuant to the authority in the AUMF. 
On December 31, 2011, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2012 [Public Law 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”]. 
When he signed the NDAA into law on December 31, 2011, President Obama simultaneously issued a “Signing Statement” a portion of which referred explicitly to Section 1021:
Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF].  This section breaks no new ground and is unnecessary.  The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . 
Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . .  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law. [Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011 DAILY COMP. PRES. DOC. 978 (Dec. 31, 2011) at 1-2 (hereinafter “Signing Statement”), available athttp://www.gpo.gov/fdsys/pkg/DCPD-201100978/pdf/DCPD-201100978.pdf.]
Plaintiffs’ challenge

The plaintiffs, a group of writers and activists, who had brought a lawsuit on January 13, 2012, sought preliminary and permanent injunctive relief with respect to one section of an extensive piece of legislation (§1021).

They asserted that Section 1021 violates free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the Constitution of the United States.

Government answers challenge

Answering the activists' challenge, the Government argued that section 1021 of the NDAA adds “nothing new” and therefore since the type of activities the plaintiffs are engaged in were not subject to legal action under the Authorization for Use of Military Force (AUMF), there was no reasonable basis for plaintiffs to assert that §1021 could suddenly subject them to governmental action now. 
Court responds
If nothing new, nothing more
The Government has assisted the Court in its deliberations with respect to the risks associated with the various interests on each side of the ledger, the Court said.  In light of the Government’s contention that § 1021 does nothing new, that it goes no further than the AUMF, the Court can only assume that the Government believes that preliminarily enjoining enforcement of § 1021 will not expose the public to any increased risk and that § 1021 does not add anything new to law enforcement’s tools.
In the meantime, there are a variety of other statutes which can be utilized to detain those engaged in various levels of support of terrorists--including the AUMF and § 1022.  Thus, preliminarily enjoining the enforcement of § 1021 does not divest the Government of its many other tools.

Congress shall make no law...
Trust me is not enough
As to the president's Signing Statement, the Court said the statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.

Rather, the Signing Statement simply assures the public that the Obama ‘Administration will not authorize the indefinite military detention without trial of American citizens’ and ‘will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.’”

Thus, the question only goes to the constitutionality of the detention authorized by § 1021— not the type of conduct that may fall within § 1021. 
“Accordingly, the Signing Statement does not eliminate the reasonable fear of future government harm that is likely to occur — i.e., the irreparable injury at issue here.”

 Court concerned with balancing hardships
“There is a strong public interest in protecting rights guaranteed by the First Amendment,” the Court said.  “By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information.…

“There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.… 
“Weighed against these public interests is the strong public interest in upholding acts of Congress and thereby maintaining the appropriate separation of powersthere is also a clear public interest which counsels for cautious use of judicial power to enjoin an act of Congress, and the public interest in ensuring protection from terroristic acts — and that law enforcement has the tools necessary to be as effective as possible in that regard.….”

Court rules

This Court credited “the chilling impact on First Amendment rights as reasonable —and real” and preliminarily enjoined enforcement of §1021.”
United States District Court
Southern District of New York
Finally, said the learned judge, “Plaintiffs’ motion  for  preliminary injunction is GRANTED; enforcement  of §1021 of the NDAA is preliminarily enjoined  pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.”

Sources and notes

Constitution of the United States of America (Bill of Rights)

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Judge Katherine Forrest
The Clerk of the Court is directed to terminate the motion for preliminary injunction and the motion to file amicus brief a t Docket Nos. 3 and 31.  SO ORDERED: Dated: New York, New York May 16, 2012 Katherine B. Forrest, UNITED STATES DISTRICT JUDGE
Case 1:12-cv-00331-KBF   Document 36    Filed 05/16/12   Page 68 of 68

Plaintiffs in the case: a group of writers and political activists, seven named plaintiffs; five submitted evidence in connection with this motion:  Jennifer Ann Bolen, Christopher Hedges, Alexa O’Brien, Kai Wargalla, and Hon. Brigitta Jonsdottir.

Defendants in the case: Barack Obama, individually and as representative of the United States of America; Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense, John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, Eric Cantor as representatives of the United States of America 12 Civ. 331 (KBF)
Ruling by the learned judge: Hon. Katherine B. Forrest, United States District Judge
United States District Court Southern District of New York, http://www.nysd.uscourts.gov/judge/Forrest

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise,” www.flickr.com
Nullify the National Defense Authorization Act (NDAA), http://www.allvoices.com/contributed-news/11318627-nullify-the-national-defense-authorization-act-ndaa


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