federal judge permanently enjoins section of counterterrorism law allowing indefinite detention

by Tim Phillips

On May 16, 2012, U.S. District Judge Katherine Forrest preliminarily enjoined enforcement of the section of the National Defense Authorization Act (NDAA) allowing indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Yesterday Judge Forrest permanently enjoined enforcement of that section. The plaintiffs in the case are writers, journalists, and activists who, according to Forrest’s order, “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention” pursuant to the section of the law at issue.

The government did not provide Forrest with any assurance that First Amendment-protected activities could not subject an individual to such detention. In addition to limiting the Constitutional right to free speech, Forrest wrote that the section was overly broad:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. … The statute’s vagueness falls short of what due process requires.

Forrest therefore found the section to be “facially unconstitutional,” as “it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.” This was a victory for the plaintiffs – Chris Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, U.S. Day of Rage, Kai Wargalla, and Birgitta Jónsdóttir. Yet the government will almost certainly appeal, having already appealed the temporary injunction.