This past Wednesday, U.S. District Court Judge Katherine Forrest put a screeching halt to the provision of the National Defense Authorization Act (NDAA), which would allow the military to capture and "indefinitely detain" any American citizen who was merely suspected, even in secret, of aiding terrorists or other "associated forces." While the language of the NDAA was vague and broad, and led some to say that the bill did not strip Americans of the Fifth Amendment right to due process of law, others thought the bill attempted to do exactly that. Those who read these unconstitutional powers into the bill include advocates and sponsors of the bill, as well as Congressmen who decried it as unconstitutional. The bill was hurriedly passed in Congress over the holidays, and signed into law by the President on 31 December, 2011.
Now the judiciary has weighed in. Federal Judge Forrest heard the case of Hedges v. Obama, and issued an injunction on the government employing its claimed power to arrest and indefinitely imprison Americans without charge or trial. The government did not call any witnesses, or offer any documentation, but it did oppose the plaintiff's seeking of an injunction based on standing. Unlike the father of an American who sought a similar injunction to keep the government from assassinating his son, the court found the plaintiff in this case did have standing. The government argued, as did some legal commentators, that the NDAA did nothing new. The government did not explain, however, why new legislation was required if it actually did nothing new. Judge Forrest wrote in her opinion that the government's position was that the law was mere "redundancy" and did not add anything to the government's powers. She was not swayed, stating that the law, "tries to do too much with too little--it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster."
She found that the American plaintiffs had "a reasonable fear of future government action" and "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)."
Judge Katherine Forrest deserves a great deal of credit for doing her job correctly, in accordance with her oath to support and defend the Constitution. An oath that is equally required by the Constitution of executive and judicial officers. The judge's opinion can be found here.