Federal Judge: Controversial Section of NDAA Likely Unconstitutional

by Matthew L. Schafer

Federal District Judge Katherine Forrest on Wednesday ordered a preliminary injunction preventing the government from enforcing a section of the National Defense Authorization Act (NDAA) permitting indefinite detention of individuals.

The plaintiffs argued a portion of the law violated their constitutional rights under the First and Fifth Amendments.

“[T]his Court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim,” Judge Forrest wrote in her 68-page opinion.  “[I]t therefore has a responsibility to insure that the public’s constitutional rights are protected.”

The plaintiffs, writers and political activists, included Christopher Hedges, a Pulitzer prize winning reporter; Alexa O’Brien, founder of U.S. Day of Rage and a contributor to the journalism website WL Central; Kai Wargalla, an organizer and political activist; and Brigitta Jonsdottir, a member of the Icelandic Parliament.

Plaintiffs challenged a controversial section of the NDAA, Section 1021, that critics said codified indefinite detention.  Section 1021 of the NDAA states that the Armed Forces have “the authority . . . to detain [indefinitely] covered persons.”

That section defines a “covered person” as one “who . . . substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners . . . .”

The plaintiffs argued the term “covered person” is vague.  A law is unconstitutionally vague when it fails to inform the reasonable person what conduct is prohibited.

The plaintiffs further stated the statute’s vagueness caused them to change their reporting and newsgathering routines and political activism.

Hedges, for example, testified he “altered his . . . speech activities . . . due to his concern that those activities might bring him within the ambit of [section] 1021, thereby subjecting him to indefinite military detention.”

Jonsdottir told the court she was afraid to return to the United States out of fear of being detained for her work with WikiLeaks.

Relying, in part, on Hedges’ and Jonsdottir’s testimony, Judge Forrest concluded it was reasonably likely the law abridged the plaintiffs’ freedom of speech and association.

“There is a societal interest against requiring official approval for protected speech . . ., resulting in virtually unreviewable prior restraints on First Amendment rights,” Judge Forrest wrote.

Having found the law threatened the plaintiffs’ First Amendment rights, the court did not decide whether the statute infringed the plaintiffs’ Fifth Amendment rights to due process.  Judge Forrest, however, expressed doubts as the statute’s constitutionality under that Amendment.

“The vagueness of [Section] 1021 does not allow the average citizen, or even the Government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope,” Judge Forrest wrote.

With doubts as to the law’s effect on the plaintiffs’ rights, Judge Forrest issued a preliminary injunction that prevents the government from indefinitely detaining people under Section 1021 until the court can revisit the constitutionality of the law.

Daniel Ellsberg, the activist who leaked the Pentagon Papers, Jennifer Bolen, an activist, and Noam Chomsky, a professor emeritus at MIT and political dissident were also listed as plaintiffs.  The court did not consider the NDAA’s effects on those plaintiffs, as they failed to appear and testify.


Flickr/Brooke Anderson

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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