Guantanamo Bay prison.

Source: Adam Serwer, “New NDAA’s Loopholes Make Its Military Detention Provisions Almost Pointless,” www.motherjones.com, Dec. 13, 2011 =”font-family:> A controversial section of the National Defense Authorization Act of 2012 (NDAA) authorizing indefinite detention of US citizens suspected of supporting terrorism was ruled unconstitutional on May 16, 2012. Section 1021 of the NDAA, a US federal law specifying the budget and expenditures of the Department of Defense passed on Dec. 31, 2011, was struck down by US District Judge Katherine Forrest, in New York City’s Eastern District. Forrest in her ruling found Section 1021 – affirming the authority of the President to detain US citizens indefinitely, without charge or trial – “facially unconstitutional.” Forrest’s preliminary injunction prevents the US government from enforcing Section 1021 pending further order of the court or a Congressional amendment to the statute.



In her written opinion, Forrest said that she had been persuaded by the arguments of seven lead plaintiffs, including Nation Institute Senior Fellow and Pulitzer Prize-winner Chris Hedges, MIT Professor of Linguistics Noam Chomsky, Pentagon Papers leaker Daniel Ellsberg, and Occupy London Co-Founder Kai Wargalla. In their court and affidavit testimonies, the plaintiffs claimed that they had “standing” to sue because they could be detained indefinitely under Section 1021 due to frequent contact with sources the US government might assert were part of “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Forrest sided with the plaintiffs, concluding that “…the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.” Forrest further said that “An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so. In the face of what could be indeterminate military detention, due process requires more.” In his Signing Statement of the bill on Dec. 31, 2011, President Obama explained: “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” The American Civil Liberties Union (ACLU) responded: “While President Obama issued a signing statement saying he had ‘serious reservations’ about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA… [T]he statute contains a sweeping worldwide indefinite detention provision… [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield… [T]he breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.”



In light of Judge Forrest’s ruling, Representatives Adam Smith (D-WA) and Justin Amash (R-MI) presented an amendment on May 17, 2012 to the NDAA’s 2013 bill clarifying language protecting the First Amendment’s right to trial and protections on speech and assembly for suspected terrorists detained in the United States. The amendment was voted down 238 to 182. Rep. Jeff Landry (R-LA) spoke out against the amendment, saying: “This amendment turns the global war on terror into a CSI investigation… Our law enforcement system in this country is by nature an after-the-fact deterrent. What deters a person from driving a plane into a building? We have to understand that we are in a war. We are not in a police action.” NDAA 2013 passed the House of Representatives 299-120 on May 18, 2012. The Senate will begin marking up its own version next week. Sources: =”http:>David Nakamura, “Obama Signs Defense Bill, Pledges to Maintain Legal Rights of US Citizens,” www.washingtonpost.com, Dec. 31, 2011 Bob Van Voris and Patricia Hurtado, “Military Detention Law Blocked by New York Judge,” www.bloomberg.com, May 16, 2012



Naomi Wolf, “The NDAA’s Section 1021 Coup D’etat Foiled,” www.guardian.co.uk, May 17, 2012 Austin Wright, “Defense Bill Passes House, Faces Veto,” www.politico.com, May 17, 2012

