A federal judge has told the Obama administration that all Americans are protected by her preliminary injunction preventing enforcement of a citizen detention clause in a new federal law supported by Obama.
The federal government had told the judge it concluded that her recent ruling exempted only the named plaintiffs in a lawsuit challenging the constitutionality of the provision.
That interpretation would have enabled the government to enforce the detention provision against all Americans except the plaintiffs.
U.S. District Judge Katherine B. Forrest shot back in a new Memorandum Opinion and Order yesterday that said because the possible injury to Americans includes the loss of their rights, her order was intended to protect everyone.
“The injunction in this action is intentionally expansive because ‘persons whose expression is constitutionally protected [and not party to the instant litigation] may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression,'” Forrest wrote.
On May 16 she issued a preliminary injunction banning enforcement of Section 1021(b)(2) of the National Defense Authorization Act. The section allows indefinite detention of people designated by the government as terrorists or terror-linked.
The law allows them to be held without hearing, charges or bond – essentially without their civil rights. And their detention can be indefinite.
The Obama administration asked for reconsideration and said it was interpreting the injunction as a protection only for the individual plaintiffs.
Wrong, the judge wrote.
“The law has long provided that this type of finding has provided relief to both the parties pursuing the challenge, as well as third parties not before the court,” she lectured. “This court’s preliminary injunction was consistent with that precedent. Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court – or by Congress.”
She continued: “Here, plaintiffs argue that they and others could be subject to indefinite military detention under Section 1021 (b)(2); accordingly, the public interest in ensuring that ordinary citizens understand the scope of such a statute justifies its breadth.”
WND previously has reported on the dispute, which has gathered significant attention already. The law is based on a vague provision that appears to allow for the suspension of civil rights and the detention of citizens linked to terrorism.
Virginia already has passed a law that states it will not cooperate with such detentions, and several local jurisdictions have done the same. Arizona, Rhode Island, Maryland, Oklahoma, Tennessee and Washington also have reviewed such plans.
The case was brought on behalf of Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alex O’Brien, Kai Warg All, Brigitta Jonsottir and the group U.S. Day of Rage. Many of the plaintiffs are authors or reporters who stated that the threat of indefinite detention by the U.S. military already had altered their activities.
Constitutional expert Herb Titus filed a friend-of-the-court brief on behalf of the sponsor of the Virginia law, Delegate Bob Marshall, and others.
Titus, an attorney with William J. Olson, P.C., told WND that the judge’s decision to grant a preliminary injunction halting enforcement of paragraph 1021 “affirms the constitutional position taken by Delegate Marshall is correct.”
The impact is that “the statute does not have sufficient constitutional guidelines to govern the discretion of the president in making a decision whether to hold someone in indefinite military detention,” Titus said.
The judge noted that the law doesn’t have a requirement that there be any knowledge that an act is prohibited before a detention. The judge also said the law is vague, and she appeared to be disturbed that the administration lawyers refused to answer her questions.
Titus said the opinion underscores “the arrogance of the current regime, in that they will not answer questions that they ought to answer to a judge because they don’t think they have to.”
The judge explained that the plaintiffs alleged paragraph 1021 is “constitutionally infirm, violating both their free speech and associational rights guaranteed by the 1st Amendment as well due process rights guaranteed by the 5th Amendment.”
She noted the government “did not call any witnesses, submit any documentary evidence or file any declarations.”
“It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not,” she wrote.
Instead, the administration only responded with, “I’m not authorized to make specific representations regarding specific people.”
“The court’s attempt to avoid having to deal with the constitutional aspects of the challenge was by providing the government with prompt notice in the form of declarations and depositions of the … conduct in which plaintiffs are involved and which they claim places them in fear of military detention,” she wrote.
“To put it bluntly, to eliminate 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.
“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment,” she wrote.
Forrest found that the plaintiffs had a reasonable fear of detention based on the language of the statute. She ordered the provision not to be enforced until further proceedings in her court or “remedial” action by Congress that would restore those protections.
The brief was on behalf of Marshall and other individuals and organizations, including the United States Justice Foundation, Downsize DC Foundation, Institute on the Constitution, Gun Owners of America, Western Center for Journalism, the Tenth Amendment Center and Pastor Chuck Baldwin.
“The government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs – or others – are not within [paragraph] 1021. It did not. This court therefore must credit the chilling impact on 1st Amendment rights as reasonable – and real,” Forrest said.
Marshall’s HB1160 passed the Virginia House of Delegates by a vote of 87-7 and the Virginia Senate 36-1. Since the vote was on changes recommended by Gov. Bob McDonnell, it was scheduled to take effect without further vote.
Marshall then wrote leaders in state legislatures around the country suggesting similar votes in their states.
Marshall’s letter noted Virginia was the first state in the nation to refuse cooperation “with federal authorities who, acting under the authority of section 1021 of the National Defense Authorization Act of 2012 (NDAA), could arrest and detain American citizens suspected of aiding terrorists without probable cause, without the right to know the charges against them, and without the procedural rights guaranteed by the Bill of Rights. Our new law goes into effect on July 1, 2012.”
He told lawmakers, “While we would hope that the U.S. Senate and U.S. House of Representatives would be vigilant to protect the constitutional rights of American citizens, even when addressing the problem of international terrorism, those efforts in Congress failed at the end of last year, and President Obama signed NDAA into law on December 31, 2011.”
Endorsing Marshall’s plan was the Japanese American Citizens League, which cited the detention of tens of thousands of Japanese Americans during World War II on no authorization other than the president’s signature.