Posted by Kromey at 12:23pm May 17 '12Well, specifically against the indefinite detention provisions, on the basis that they violate both the First and Fifth Amendments. This is huge -- not the least because the ruling against the Obama administration came from an Obama-appointed federal judge -- but it's only a preliminary injunction, the case has yet to be decided.
That's worth re-stating: The Obama administration refused to state that exercising your First Amendment rights would not subject you to indefinite detention!!
Point (3) is also worth looking at, as it severely undermines one of the cornerstones of Obama's defenders: That the 2011 NDAA did not grant any new powers (at least where indefinite detention is concerned). The problem with that argument is that it is false -- the AUMF was specifically about the perpetrators of 9/11, whereas the NDAA is much more broad.
Meanwhile in a related article, more ice water is thrown on Obama's defenders. Specifically, we find that over this year's NDAA -- that "must-pass" legislation that Obama would be foolish to even threaten to veto, even over important matter like civil liberties -- Obama is threatening veto!
The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ's three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack "standing" to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.What I find most telling -- and most chilling! -- is that on point (1) here, the judge explicitly and repeatedly gave the Obama administration the opportunity to have the case totally dismissed if only they would state categorically that the First Amendment activities of the plaintiffs would not subject them to indefinite detention under the NDAA -- and they refused to do that!
That's worth re-stating: The Obama administration refused to state that exercising your First Amendment rights would not subject you to indefinite detention!!
Point (3) is also worth looking at, as it severely undermines one of the cornerstones of Obama's defenders: That the 2011 NDAA did not grant any new powers (at least where indefinite detention is concerned). The problem with that argument is that it is false -- the AUMF was specifically about the perpetrators of 9/11, whereas the NDAA is much more broad.
First, "by its terms, the AUMF is tied directly and only to those involved in the events of 9/11," whereas the NDAA "has a non-specific definition of 'covered person' that reaches beyond those involved in the 9/11 attacks by its very terms." Second, "the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021" of the NDAA; that's because the AUMF covered those "directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and 'associated forces'." Moreover, "the Government has not provided a concrete, cognizable set of organizations or individuals that constitute 'associated forces,' lending further indefiniteness to § 1021." Third, the AUMF is much more specific about how one is guilty of "supporting" the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.
The court also decisively rejected the argument that President Obama's signing statement -- expressing limits on how he intends to exercise the NDAA's detention powers -- solves any of these problems. That's because, said the court, the signing 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."
Meanwhile in a related article, more ice water is thrown on Obama's defenders. Specifically, we find that over this year's NDAA -- that "must-pass" legislation that Obama would be foolish to even threaten to veto, even over important matter like civil liberties -- Obama is threatening veto!
The White House threatened to veto a new House version of the National Defense Authorization Act on Wednesday, objecting in part to a measure that would tighten the requirements for transferring detainees. The administration said in a statement that the provision would "threaten to compromise the executive's ability to act swiftly and flexibly," but made no mention of separate amendments aimed at reining in indefinite detention.So much for "must-pass" and "can't be vetoed"! Interesting that Obama will take a stance when his powers are being threatened, but not when yours and my civil liberties are under assault, no?
Preliminary injunction issued against NDAA - Kromey