What Makes our NDAA Lawsuit a Struggle to Save the US Constitution

What Makes our NDAA Lawsuit a Struggle to Save the US Constitution

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This is a discussion on What Makes our NDAA Lawsuit a Struggle to Save the US Constitution within the The Debate Forum forums, part of the Topics of Interest category; ...

  1. #1

    What Makes our NDAA Lawsuit a Struggle to Save the US Constitution

    What Makes our NDAA Lawsuit a Struggle to Save the US Constitution

    I am one of the lead plaintiffs in the civil lawsuit against the National Defense Authorization Act, which gives the president the power to hold any US citizen anywhere for as long as he wants, without charge or trial.

    In a May hearing, Judge Katherine Forrest issued an injunction against it; this week, in a final hearing in New York City, US government lawyers asserted even more extreme powers – the right to disregard entirely the judge and the law. On Monday 6 August, Obama's lawyers filed an appeal to the injunction – a profoundly important development that, as of this writing, has been scarcely reported.

    In the earlier March hearing, US government lawyers had confirmed that, yes, the NDAA does give the president the power to lock up people like journalist Chris Hedges and peaceful activists like myself and other plaintiffs. Government attorneys stated on record that even war correspondents could be locked up indefinitely under the NDAA.

    Judge Forrest had ruled for a temporary injunction against an unconstitutional provision in this law, after government attorneys refused to provide assurances to the court that plaintiffs and others would not be indefinitely detained for engaging in first amendment activities. At that time, twice the government has refused to define what it means to be an "associated force", and it claimed the right to refrain from offering any clear definition of this term, or clear boundaries of power under this law.

    This past week's hearing was even more terrifying. Government attorneys again, in this hearing, presented no evidence to support their position and brought forth no witnesses. Most incredibly, 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. 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.

    To this, Judge Forrest responded that if the provision had indeed been applied, the United States government would be in contempt of court.

    I, like many in this fight, am now afraid of my government. We have good reason to be. Due to the NDAA, Chris Hedges, Kai Wargalla, the other plaintiffs and I are squarely in the crosshairs of a "war on terror" that has been an excuse to undermine liberties, trample the US constitution, destroy mechanisms of accountability and transparency, and cause irreparable harm to millions. Several of my co-plaintiffs know well the harassment and harm they have incurred from having dared openly to defy the US government: court testimony has included government subpoenas of private bank records of Icelandic parliamentarian Birgitta Jónsdóttir; Wargalla's account of having been listed as a "terrorist group"; and Hedges' concern that he would be included as a "belligerent" in the NDAA's definition of the term – because he interviews members of outlawed groups as a reporter – a concern that the US attorneys refused on the record to allay.
    Other advocates have had email accounts repeatedly hacked, and often find their electronic communications corrupted in transmission (some emails vanish altogether). This is an increasing form of pressure that supporters of state surveillance and intervention in the internet often fail to consider.

    I've been surprised to find that most people, when I mention that I am suing my president, Leon Panetta, and six members of Congress (four Democrats and four Republicans), thank me – even before I explain what I'm suing them over! And when I do explain the fact that I and my seven co-plaintiffs are suing over a law that suspends due process, threatens first amendment rights and takes away the basic right of every citizen on this planet not to be indefinitely detained without charge or trial, their exuberance shifts, and a deeper gratitude shines through newly somber demeanors. But this fight has taken a personal toll on many of us, including myself.

    If that makes us their "enemies", then so be it. As long as they cannot call us "belligerents", lock us up and throw away the key – a power that, incredibly, this past week US government lawyers still asserted is their right. Against such abuses, we will keep fighting.
    I'm glad to see people are still fighting this thing.

    What are your opinions?

    Remember, no matter how I die: It was murder; should I be tried for a criminal offense, I probably didn't do it as I'm pretty straight laced and don't even have a speeding ticket; should I mysteriously disappear -- it wasn't voluntary…

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    timeless, Peripheral, Beyond_B and 1 others thanked this post.

  2. #2

    Here's some additional information here

    I was on the 15th floor of the Southern U.S. District Court in New York in the courtroom of Judge Katherine Forrest on Tuesday. It was the final hearing in the lawsuit I brought in January against President Barack Obama and Secretary of Defense Leon Panetta. I filed the suit, along with lawyers Carl J. Mayer and Bruce I. Afran, over Section 1021 of the National Defense Authorization Act (NDAA). We were late joined by six co-plaintiffs including Noam Chomsky and Daniel Ellsberg.

    This section of the NDAA, signed into law by Obama on Dec. 31, 2011, obliterates some of our most important constitutional protections. It authorizes the executive branch to order the military to seize U.S. citizens deemed to be terrorists or associated with terrorists. Those taken into custody by the military, which becomes under the NDAA a domestic law enforcement agency, can be denied due process and habeas corpus and held indefinitely in military facilities. Any activist or dissident, whose rights were once protected under the First Amendment, can be threatened under this law with indefinite incarceration in military prisons, including our offshore penal colonies. The very name of the law itself—the Homeland Battlefield Bill—suggests the totalitarian credo of endless war waged against enemies within "the homeland" as well as those abroad.

    "The essential thrust of the NDAA is to create a system of justice that violates the separation of powers," Mayer told the court. "[The Obama administration has] taken detention out of the judicial branch and put it under the executive branch."
    Make sure you read that and understand this clearly.

    Barack Obama's administration has appealed Judge Forrest's temporary injunction and would certainly appeal a permanent injunction. It is a stunning admission by this president that he will do nothing to protect our constitutional rights. The administration's added failure to restore habeas corpus, its use of the Espionage Act six times to silence government whistle-blowers, its support of the FISA Amendment Act—which permits warrantless wiretapping, monitoring and eavesdropping on U.S. citizens—and its ordering of the assassination of U.S. citizens under the 2001 Authorization to Use Military Force, or AUMF, is a signal that for all his rhetoric Obama, like his Republican rivals, is determined to remove every impediment to the unchecked power of the security and surveillance state. I and the six other plaintiffs, who include reporters, professors and activists, will most likely have to continue this fight in an appellate court and perhaps the Supreme Court.
    I'm not sure how well this will work as Kagan was picked because she actually agreed with the Administration's attitude that the whole world is a battlefield (even the US) and the President can use full battlefield authority (even the use of the military) anywhere.

    The language of the bill is terrifyingly vague. It defines a "covered person"—one subject to detention—as "a person who was a 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 bill, however, does not define the terms "substantially supported," "directly supported" or "associated forces." In defiance of more than 200 earlier laws of domestic policing, this act holds that any member of a group deemed by the state to be a terrorist organization, whether it is a Palestinian charity or a Black Bloc anarchist unit, can be seized and held by the military.
    The Justice Department's definition of a potential terrorism suspect under the Patriot Act is already extremely broad. It includes anyone with missing fingers, someone who has weatherproof ammunition and guns, and anyone who has hoarded more than seven days of food. This would make a few of my relatives in rural Maine and their friends, if the government so decided, prime terrorism suspects.
    Plus protesters...

    In May, Judge Forrest issued a temporary injunction invalidating Section 1021 as a violation of the First and Fifth amendments. It was a courageous decision. Forrest will decide within a couple of weeks whether she will make the injunction permanent.
    Forrest quoted to the court Alexander Hamilton, who argued that judges must place "the power of the people" over legislative will.
    I'd like to be clear that with the surveillance capabilities our government possesses, as do most first world countries -- if we do cross the line into totalitarianism, there isn't any going back from the abyss.

    Remember that no matter how I die, it was murder; if I am arrested for a criminal offense, I didn't do it, and should I disappear without a trace, there wasn't anything voluntary in that!

    BTW: For those who do not wish to receive updates, please send me a PM and I'll take you off the list

    Members such as @Ace Face @Angelic Gardevoir @Arclight @Alpengeist19 @Aqualung @Beyond_B @Brainteaser @Brainfreeze_237 @Cover3 @DarkWarrior @Feral sheep @gestalt @Holgrave @jeffbobs @JungyesMBTIno @KINGoftheAMAZONS @mariogreymist @NotSoRighteousRob @Persephone @Psychosmurf @Paradox1987 @Promethea @pretty.Odd @Razare @Robopop @sly @sprinkles @Swordsman of Mana @Svensenberg @The Proof @timeless @wuliheron might wish to read this message
    JYFly thanked this post.

  3. #3

    U.S. Appeals Judge Grants Stay of Ruling on Detention Law

    It's pretty amazing when you think about it and really break it down. Effectively, journalists wanted assurances that they would not be indefinitely jailed under the NDAA for their use of the First Amendment and the government refused to agree, indicating that they very likely do have intentions to jail people for activities that are Constitutionally protected!

    Now a Judge declares this unconstitutional, and the government appeals it and manages to get a stay on the law so they could if they so desired, jail a person for using their Constitutionally protected rights.

    Does anybody realize how outrageous and dangerous this is?

    BTW: For those who don't want to receive updates, please send me a PM and I'll stop

    Members such as @Ace Face @Arclight @Alpengeist19 @Aqualung @Bear987 @Beyond_B @Brainteaser @Brainfreeze_237 @Cover3 @DarkWarrior @Feral sheep @gestalt @gammagon @Holgrave @jeffbobs @JungyesMBTIno @KINGoftheAMAZONS @mariogreymist @NotSoRighteousRob @Persephone @Psychosmurf @Paradox1987 @Promethea @pretty.Odd @Razare @Robopop @sly @Swordsman of Mana @Svensenberg @The Proof @timeless @Waiting @wuliheron might to read this message
    Last edited by RobynC; 09-25-2012 at 05:38 PM.
    Beyond_B thanked this post.

  4. #4
  5. #5

    I just no longer thing fighting legal battles from within the government is going to fix anything.... the judges at the top work for the beast, as evident by their ruling on obama's healthcare legislation, effectively granting the federal government a whole host of new powers it never had before.

    So I don't see why making a lawsuit against something the federal government does will change anything, unless it somehow plays into the political game of red vs. blue, and such a lawsuit gives one side an advantage over the other. If both red and blue stand to lose, then all legal action against the federal government will assuredly fail in the highest court.
    Peripheral thanked this post.

  6. #6


    I just no longer thing fighting legal battles from within the government is going to fix anything.... the judges at the top work for the beast, as evident by their ruling on obama's healthcare legislation, effectively granting the federal government a whole host of new powers it never had before.
    I believe we cannot entirely rely on the courts and must protest in a non-violent manner -- even in the face of violence. Certain non-violent civil disobedience must also be looked into. The courts can be useful sometimes if they happen to rule in the favor of the public.

    So I don't see why making a lawsuit against something the federal government does will change anything
    Unless short term -- even if something good comes of the ruling, the fact is the government will think of some new way to erode our rights.

    unless it somehow plays into the political game of red vs. blue, and such a lawsuit gives one side an advantage over the other. If both red and blue stand to lose, then all legal action against the federal government will assuredly fail in the highest court.
    What would be of slight benefit to both and protect the public?

  7. #7

    Everything about this makes me sick.

    One of the worst thoughts is that those who call themselves freethinking and progressive will be happily voting to keep the man who signed this POS in office. Though they claimed to be anti-war in the last decade, they were really just anti-Bush/anti-Republican. As their silence regarding Obama shows, any Democrat who did what Bush did would have barely gotten a peep out of them.

  8. #8

    Here is the opposing argument to the NDAA...
    The government seeks an emergency stay of the permanent injunction entered on September 12, 2012 pending appeal, arguing that the district court’s order is an “unprecedented” intrusion into the President’s powers under the 2001 Authorization for the Use of Military Force (AUMF). In reality, Judge Forrest’s decision trods no new ground and relies on well-established precedent as to the President’s delineated constitutional powers barring military jurisdiction over civilians, a power that has long been denied to the Executive. Hamdi v. Rumsfeld, 542 U.S. 507, 521-522 (2004), citing Ex Parte Milligan, 4 Wall., at 125, 71 U.S. 2, 18 L. Ed. 281 (1866). Judge Forrest’s decision is directly in line with this Court’s holding in Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), where the Court held that Congress intended the AUMF to be a limited conveyance of authority, particularly as to detention measures.

    Similarly, in Hamdi the Supreme Court took pains to note the limited range of detention authority available to the government under the AUMF and that such authority was limited to the “narrow circumstances” of preventing “a combatant’s return to the field of battle.” 542 U.S. at 519, 521 [emphasis added]. Thus, Judge Forrest’s comments as to the scope of the AUMF are not “unprecedented” but are directly in line with this Court’s interpretation of the AUMF in Padilla and the Supreme Court’s holding in Hamdi recognizing the limited nature of the AUMF and with the Supreme Court’s repeated holding, Hamdi citing Milligan, supra, that the Executive has no authority to detain civilians or hold them in military jurisdiction.
    Here is the government's counter argument
    We explained in our motion for a stay that the district court improperly struck down as facially unconstitutional a duly-enacted Act of Congress, Section 1021(b)(2) of the National Defense Authorization Act of 2012 (NDAA), Pub. L. No.112-81, 125 Stat. 1298 (Dec. 31, 2011), and erroneously entered a sweeping permanent injunction against its application. Order at 112 (September 12, 2012). Section 1021(b)(2) explicitly affirms the President’s detention authority under the earlier Authorization for Use of Military Force (AUMF), 115 Stat. 224 (2001), which is the central legislative authority for the ongoing military operations against al-Qaeda, the Taliban, and associated forces. Plaintiffs’ opposition to the stay motion fails to provide any basis for allowing that sweeping injunction to go into force pending appeal, notwithstanding the unprecedented scope and inadequate legal foundation of the underlying ruling. Indeed, plaintiffs’ motion focuses almost entirely on war powers with respect to U.S. Citizens and individuals apprehended in the United States, but as we explained repeatedly, Section 1021(b)(2) has absolutely no impact on that issue, see NDAA Section 1021(e), and the President has made clear that he “will not authorize the indefinite military detention without trial of American citizens.” Statement by Pres. Obama, 2011 U.S.C.C.A.N. at S12.As we explained, the district court’s injunctive order causes harm in several ways. First, the court rejects the Executive Branch’s long-standing interpretation of the AUMF – with respect to the concepts of “substantial support” and “associated forces” – that has been endorsed by two Presidents, by the D.C. Circuit in habeas litigation brought by Guantanamo detainees, and by the Congress in Section 1021(b)(2). And the court invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with this deeply flawed understanding. See Order at 14. This invitation encompasses detention practices in areas of active hostilities. In doing so, the order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict.
    I personally think the government wants to lock-up American citizens indefinitely.

    This whole issue is about the whether the government could guarantee that journalists and possibly all citizens would not be jailed indefinitely under military detention for exercizing their 1st Amendment Rights. The government said it either could not or would not. That is simply not acceptable as that would gut the 1st Amendment.

    When a judge had declared this was unconstitutional, this should have been no problem as the First Amendment depends on people to speak their mind without fear of reprisal. There are already exceptions such as screaming fire in a crowded theater, inciting imminent violence and posing a clear and present danger -- additionally, there's also the issue of adhering to a nation's enemy, and giving aid and comfort to the enemy (treason) which is specifically defined.

    Instead the President appeals this -- this indicates they want to lock up Americans indefinitely

  9. #9

    I'm surprised nobody has anything to say about this..

    BTW: For those who don't want to receive updates, please send me a PM and I'll stop

    Members such as @Ace Face @Arclight @Alpengeist19 @Bear987 @Beyond_B @Brainfreeze_237 @Cover3 @DarkWarrior @Feral sheep @gammagon @jeffbobs @JungyesMBTIno @KINGoftheAMAZONS @mariogreymist @Persephone @Psychosmurf @Paradox1987 @Promethea @pretty.Odd @Razare @Robopop @sly @Swordsman of Mana @Svensenberg @The Proof @timeless @Waiting @wuliheron might wish to read this message

  10. #10

    Soon Michigan may join the list of other states who have passed legislation checking the president’s power under the National Defense Authorization Act (NDAA) to indefinitely detain American citizens.

    On Monday, September 24, constitutionalists and friends of liberty gathered at the Oakland County (Michigan) General Government Committee Meeting to support Commissioner Jim Runestad’s Liberty Preservation Resolution. Blake Filippi of the Tenth Amendment Center (TAC) originally drafted this measure with the assistance of the Rhode Island Liberty Coalition.

    Reports to The New American from those attending the meeting indicate that many residents attended the meeting, as well, and passionately defended the right of Americans to live without the specter of an all-powerful police state looming over their every action.

    One citizen, Anna Janek, stood at the meeting and recounted a childhood living in fear of government and police in communist Czechoslovakia.


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