Forum Post: Link to the Actual Injunction of Section 1021 of the NDAA and Discussion

For clarity, here is a PDF link to the actual injunction issued by Judge Forrest, which rules Section 1021(b)(2) of the NDAA unconstitutional.

http://www.courthousenews.com/2012/06/07/Hedges%20v.%20Obama%20Reconsideration.pdf

This Order, issued June 6, 2012, clarified the scope of the Injunction issued on May 16, 2012. The June 6 order states that the the previous order applies only to Section 1021 (b)(2), but that the injunction covers everyone, not only the named plaintiffs.

Here is a link to the May 16, 2012 order:

http://www.courthousenews.com/2012/05/16/Hedges%20v.%20Obama.pdf

This Order states that Section 1021 is not simply an "affirmation of the AUMF", that it is new legislation and too vague. It enjoined the government from enacting this section as violative of the 1st Amendment and the 5th Amendment due process clause.

This is the section at issue, the definition of "covered persons": 1021(b)(2) A person who was 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 NDAA allows for any "covered persons" to be detained "without trial until the end of hostilities authorized by the ."

President Obama in his signing statement and a presidential directive explicitly stated that “covered persons” applies only to a person who is not a citizen of the United States and who is a member or part of al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and “who participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” But, the Court disagreed.

Interestingly, the government could have disposed of the case easily. Judge Forrest wrote: "To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so--thereby ensuring standing and requiring this Court to reach the merits of the instant motion."

The government was not prepared to state that the journalists and activists bringing the suit their conduct was not within the scope. Forrest held: "Nevertheless, with respect to § 1021, and particularly in light of the Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute, plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment."

And: "Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights."

On the vagueness: "Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct."

The Court could not limit the construction, so enjoined enforcement of the section: "Because this Court cannot fashion an appropriate limiting construction, it finds that preliminarily enjoining enforcement of § 1021 is the only appropriate remedy at this stage."

And, finally: "For the aforementioned reasons, plaintiffs' motion for preliminary injunction is GRANTED; enforcement of § 1021 of the NDAA is preliminarily enjoined pending further order of this Court or amendments to the statute rendering this Opinion & Order moot."

All quotes from the May 16 Order.

Source: http://www.democraticunderground.com/1002784840