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writing for godot

Federal Judge Strikes Down Obama’s Assault on the Constitution

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Written by Stephen Wilson   
Monday, 21 May 2012 22:15
by Stephen Wilson, LetsFixThisCountry.org

Under cover of New Years Eve last year, when the fewest Americans would notice, Barack Obama signed into law an act that disgraces his presidency.

In mid-May a federal judge appointed by Obama, Katherine Forrest of the U.S. eastern district in New York, ruled that the law is "facially unconstitutional"and enjoined it from going forward.

Section 1021 of the National Defense Authorization Act (NDAA) signed December 21, 2011 tramples the Constitution’s guarantee of due process, jeopardizes freedom of the press and discards the centuries-old guarantee that a suspect must be released from detention for lack of evidence. It allows the president to turn over to the military, rather than civil authorities, for indefinite detention without trial anyone, including American citizens, who is suspected of being a terrorist, to have had contact with a terrorist, or contact with “associated forces” or is suspected of giving “substantial support” to a terrorist organization.

Judge Forrest called such terminology unacceptably vague. Someone innocently contributing to a legitimate seeming organization that in fact has ties to al Qaeda could be swept off the street and disappear into the system for years — or for good.

The suit was brought by a group of citizen activists horrified by the law’s blatant violation of
the civil rights set forth in the Constitution. Lead plaintiffs included Pulitzer Prize-winner war correspondent Chris Hedges, the outspoken public intellectual Noam Chomsky, and Daniel Ellsberg, best known for exposing the secret Pentagon history of the Vietnam War. The case was brought by lawyers working without fee.

By fighting the group in court, the Obama administration doubled down on its signing the law, and essentially says that the criminal justice system, which has successfully prosecuted and incarcerated hundreds for terrorist activities, is inadequate and needs a parallel system free to ignore the Constitution and the hindrance of its civil rights guarantees. It is difficult to reconcile that a president who was a professor of constitutional law could condone a step toward fascism — where fascism is defined as the state being paramount and citizens must yield their rights for the supposed good of the state.

The government unsuccessfully tried to maintain that the group lacked “standing” to sue because none of them had been detained under the NDAA law — a stunning catch-22 considering that anyone so detained would have no access to the courts. The judge sided with the plaintiffs, who made the case that their most valuable work as journalists could entail contact with the enemy or whatever the government might choose to call “associated forces”, but fear of doing so would “chill” the pursuit of information and infringe on first amendment press freedom.

As example, The Guardian’s Naomi Wolf in this report said she was in court with her own affidavit making this claim, and to read into the record the testimony of Icelandic member of parliament and WikiLeaks activist Birgitta Jónsdóttir, who was absent on her government’s advice, fearful that she would be detained under the NDAA law by a U.S. that had already confiscated her bank records and Twitter account and had refused to give assurance of safe passage in this contrary.

Government lawyers were challenged repeatedly by Judge Forrest to give assurance that members of the press or the other plaintiffs would not be subject to the law, citing a number of hypothetical examples such as (quoting Wolf) a “peaceful best-selling nonfiction writer who had written a hypothetical book criticizing US foreign policy, along lines theater the Taliban might agree with”. In no case could the two government lawyers state that the law would not apply. In her 85-page ruling the Judge wrote:

"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. 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."

DOES CONGRESS UNDERSTAND THE CONSTITUTION?

The judge, however, has left the door open, asking Congress to clarify the vague language and Americans’ rights. Meanwhile, the House was taking up the very same issue — an amendment put forth by Representatives Adam Smith and Justin Amash, a Democrat from Washington and a Republican from Michigan, that would void the NDAA section’s detention without charge and its bypass of due process. The amendment was voted down 238-to-182 — almost all of the Republicans joined by 19 Democrats.

That the law was passed in the first place and now seconded by this vote provides the measure of those who Americans send to Congress. Texas Republican Mac Thornberry presumed to know that the “vast majority” of Americans “do not think telling them they have the right to remain silent … is a wise thing,”. Florida Republican Tom Rooney does not think terrorists should be give extra rights “if they manage to sneak into our country.” The issue is no rights not extra rights, and the vote says that congress members seem to assume that anyone detained under the NDAA law is guilty before the fact else why would they have been detained?

President Obama claims he will not use the law against American citizens, but his word is not the law, and is no defense for signing the law — a law that will outlive his presidency, as we reported in January in “Obama Signs a Terrible Law”. And he has shown elsewhere a disdain for First Amendment freedom as we reported here.

Some legal scholars view overturning the law as problematic because the law derives from Congress’ 2001 use of force authorization that gave the executive branch a free hand against those behind the 9/11 attacks. A war against terrorism that can be said never to end — there are always elements out there that loathe the United States for its unwelcome presence in their countries — gives the executive branch open-ended freedom to impose a parallel legal system to graft onto the war powers authorization. It is eleven years after 9/11 with Congress and the executive branch showing no inclination to relinquish their claim of national security as justification for ignoring the civil liberties protected by the Constitution. Indefinite detention without trial is to protect our freedom, you see.
 

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+3 # Madison Mama 2012-05-22 22:29
I supported the president during his first campaign and am appalled at his move to further squelch freedoms in America. Renewing the Patriot Act was bad enough. I'll vote for him in 2012, but this one will be not by mandate, but by default.
 
 
-1 # Innocent Victim 2012-05-24 09:02
Surprising that your recognition of your error in 2008 does not dissuade you from repeating it in 2012. The same arguments that were used four years ago against voting for Ralph Nader or another independent are being used now: Don't elect a Republican by failing to support Obama!

To me, the lesser of two evils is still an evil. Let's look at the greater evil of 2008: John McCain. If he had been elected, the result with regard to the economy and foreign policy could not have been any worse. Only in the area of gay rights and other "cultural" issues would McCain have been clearly worse than Obama.

On the positive side, a McCain victory would have had two effects: 1. It might have given the Democrats evidence that the progressive vote was necessary to the Party; 2. The Democrats would have remained the opposition party vis a vis the White House. They functioned far better in this role when GWB was president than during the past 4 years.

Finally, from a moral standpoint, I repeat: The lesser of two evils is still an evil.
 
 
+3 # Carbonman1950 2012-05-24 22:31
"Innocent Victim"

"To me, the lesser of two evils is still an evil."

True, but notice the word LESSER.

"Let's look at the greater evil of 2008: John McCain. If he had been elected, the result with regard to the economy and foreign policy could not have been any worse."
I strongly disagree. I could have and I believe would have been worse.Perhaps not a lot worse, but worse is worse.

"2. The Democrats would have remained the opposition party vis a vis the White House. They functioned far better in this role when GWB was president than during the past 4 years."

I am amazed that anyone would make such an assertion. The Dems acquiesced to virtually every hare-brained policy that Shrub wanted. From destructively lower taxes, to wars of choice. On balance the Dems were a spineless and therefore ineffective opposition.

"Only in the area of gay rights and other "cultural" issues would McCain have been clearly worse than Obama."

Is that not enough?

"Finally, from a moral standpoint, I repeat: The lesser of two evils is still an evil."

We were not offered a choice between good and evil. The best candidate on the ballot was merely less evil, so I repeat... consider the word LESSER.
 
 
-4 # Elusive Pimpernel 2012-05-30 16:03
Since we have evil and greater evil, why are we totally disregarding those who are NOT evil?

Ron Paul anyone?
 
 
+3 # jimbeama 2012-06-01 13:35
Ron Paul is evil too.
 
 
+2 # Carbonman1950 2012-05-24 22:31
And you fail to consider other important factors...
1) Sarah Palin might well have ended up as president.
2) The long-term damage that would have been done to the nation by the appointment of not one, but TWO more right-wing extremists to the Supreme Court.
3) The likely deaths of thousands of additional military and civilian personnel by the continuation of the Iraq war.
 
 
+1 # MendoChuck 2012-05-26 12:47
No matter what you say about "LESSER EVIL" you cannot get away from supporting an EVIL.

Sorry but doing so is also EVIL.
 
 
+3 # jimbeama 2012-06-01 13:50
Idealism has its place. But one can cut off their nose to spite their face no? Our country is doing countless evil deeds around the world and in this country. What is a good US Citizen to do? Do you with hold your federal taxes because you can not support EVIL? Do you not vote? or vote for one who can not possibly win because the system is set up to only support two major parties, thus worse than not voting as the one you vote for will likely pull votes from the lesser evil, which is still less evil than the other greater evil.

To use simplistic logic, along the lines of evil is still evil even if one is less. A lesser evil is better than a greater evil. Therefore one is better, which is good. The other is less good. I vote for the greater good.

There of course are other seats of political power that control what our government does, that is congress. There I can see being more idealistic. Especially in the primary. If true progressive dems controlled both houses we would likely see an entirely different Obama. We certainly would see better laws.
 

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