The Judicial juggling of our most fundamental rights of liberty and due process – in this case, to not be kidnapped and imprisoned indefinitely with no trial or charge pursuant to the NDAA — continues. And, unfortunately, as with pretty much all review of Legislative and Executive actions, the judiciary continues to presume those actions valid; even now, when the soul of our constitutional republic is at stake.
Many groups and organizations have stood up against the NDAA. TAC has been leading – with much success – state and local nullification throughout the Country (http://tenthamendmentcenter.com/nullification/ndaa/). A group of activists and reporters, led by Pulitzer Prize winning journalist, Christopher Hedges, opted to work within the Federal judicial system and sued president Obama in the U.S. District Court for the Southern District of New York.
TAC communication director Mike Maharrey has provided a great summation of events as of September 18, 2012 (http://blog.tenthamendmentcenter.com/2012/09/judge-reinstates-federal-kidnapping-powers/). Briefly, Judge Katherine Forrest of the District Court permanently enjoined the President from utilizing NDAA section 1021. In an incredibly reasoned and brave decision, she found that NDAA section 1021 is unconstitutional because it has actually and unreasonably infringed on the 1st Amendment expressive and journalistic activities of the Plaintiffs. Moreover, the NDAA section 1021 is void on its face as a violation of the 5th Amendment’s Due Process clause because section 1021 is effectively a criminal statute with no mens rea requirement (“knowing” “willful” “recklessly”, etc…) where one cannot determine what conduct is prohibited (The NDAA broadly outlaws the undefined “substantial support” of terrorist groups or “associated forces”).
Judge Forrest also aptly noted the limited process those detained under NDAA section 1021 would have; a right to administrative hearing without a jury, where hearsay is admissible (there is no 6th Amendment right to face accusers) and the standard for indefinite detention is the much-lower-than-beyond-a-reasonable-doubt standard of “clear and convincing evidence.” Any judicial review in a habeas corpus proceeding conducts an analysis with this same limited Constitutional protections, pro-Executive, review.
Upon Judge Forrest’s Order enjoining the use of NDAA section 1021, Obama Administration lawyers immediately petitioned both Judge Forrest and the Second Circuit Court of Appeals for a temporary stay of the Order. Judge Forrest declined, but the Second Circuit’s duty judge, Raymond Lohier, issued a temporary stay of the order pending further decision by the Second Circuit.
Well, today, a three-judge panel of the Second Circuit has extended the temporary stay of Judge Forrest’s order pending final resolution of