NDAA Detention Provisions Struck Down By Obama Appointed Judge

Author: September 13, 2012 8:42 am

On a day filled with sadness, a bright moment of hope appeared for those concerned about the erosion of liberties in the US. In a clever constitutional maneuver perpetrated by the Obama administration, US Federal Judge Katherine Forrest, appointed by President Obama late last year, struck down the controversial indefinite detention provisions of the 2012 National Defense Authorization Act (NDAA).

These provisions, found in section 1021, would have allowed for detaining US citizens without the right of Habeas Corpus. Habeas Corpus is one of the most important issues which the Continental Congress held the British government and King George accountable for the failure to enforce, leading to the American Revolution. Simply put, Habeas Corpus (latin for “we demand that you have the body”) is the right that if you are thrown into jail, you must be charged with a crime and brought before a judge. Indefinite detention is a direct attack on Habeas Corpus, so when congress passed the USA PATRIOT act, allowing for the suspention of Habeas Corpus, civil liberty advocates all took notice. However, the provision was part of military code, not US civil code, limiting the legal options for recourse, effectively, to a Supreme Court decision, bypassing the entire federal court system. With a heavily conservative court, the chances for a civil suit to reach the court was slim to none and for them to side against the law was even more remote.

When President Obama signed the 2012 NDAA (a necessary bill to keep the military functioning), people decried that it contained an affirmation for these provisions. It even was discussed that Obama insisted that this language be put into the bill. This of course turned a large section of civil liberty advocates against him.

But then, once signed, suddenly those provisions were part of US Civil Code, moved there from military code due to the new language which Obama insisted be included.

Immediately the  United States District Court for the Southern District of New York had lawsuits filed to overturn these provisions. Issuing the case was Justice Forrest, the freshly appointed judge on the bench, appointed by President Obama on May 4, 2011. Her nomination and affirmation by the Senate on October 17, 2011 (part of a deal Obama had struck back in June of 2011) all but guaranteed that this case would land in her lap, as being the new judge in an already backlogged court, new cases would fall to her. In short order, she had issued an injunction on the order, to let all sides make their cases. Before the case was even decided, the administration made a fruitless appeal to overturn the injunction, hurting their chances for any appeals after the case.

In issuing her judgement Justice Forrest called the Obama defense “vague” and “overly broad.” She concluded “The government has not stated that such conduct – which, by analogy, covers any writing, journalistic and associational activities that involve al Qaeda, the Taliban or whomever is deemed “associated forces” – does not fall within § 1021(b)(2)”

Not that they did not make a good enough case, but that they did not even make a case at all.


The Obama administration, with the clear and obvious option to at least drag out the case, failed to even try. And they used an appeal already, on August 6th. Had they not done so, should the President be defeated in November, the new President would have been within the window in order to file an appeal based on the judgement date of the case, which would have been on February 12th of next year. Instead, that window closes on January 6th, due to this earlier action, closing the window for appeal before the end of President Obama’s first term.

What we are looking at here is a strategic maneuver by the President to strip away these provisions. The USA PATRIOT act put them where the courts could not easily touch them, so he worked hard to make sure that they were attached to the NDAA in just the right way to open up the door. He cut a deal to get certain judges in on certain dates, which put a judge he selected in to the correct court at just the right time for the NDAA signature. Then, he gave a strong enough defense to make sure that Congress could not go after him for failing to do his job as President, but not strong enough to drag out the case. Then the administration prematurely executed their appeal, ensuring that getting another appeal opportunity would be more difficult, and even then it would not be in the hands of any successor.

This is playing political chess. Without ever exposing himself to liability, the President, a constitutional lawyer before entering into politics, used the system in order to overturn one of the most easily abusive and abhorrent provisions which has ever been signed into law, the suspension of Habeas Corpus.

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  • This was one of the things that irked me about the signing statements he made to the NDAA, that another president could simply change them. But he was indeed playing Jedi chess as I had hoped. I love him.

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