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Judge Rules Indefinite Detention Sections of NDAA Unconstitutional



Finally, some good news! I relish the opportunity to report truly positive news whenever possible, and recently U.S. District Judge Katherine Forrest of New York’s Eastern District gave me such an opportunity.

For those who are unfamiliar with the tyrannical and ludicrously unconstitutional sections in question, please read my articles on the subject, especially my article debunking the myths surrounding these portions of the legislation.

I have covered this disturbing legislation in considerable detail, all the way back to the precursor bill in the Senate and through to Barack Obama’s New Year’s gift to America: the signing of this liberty-crushing legislation into law.

Judge Forrest, who heard the case being put forth by a coalition of individuals including Pulitzer Prize winning journalist Chris Hedges, ruled that the indefinite detention sections of the National Defense Authorization Act for Fiscal Year 2012 (NDAA) have a “chilling impact on First Amendment rights.”

The Judge ruled that the group of reporters and activists who filed the lawsuit had no way of knowing if they could be indefinitely held in military custody without charge or trial.

In her written opinion, Judge Forrest stated that these sections are an unconstitutional infringement not only on our right to free speech as protected by the First Amendment but also our right to due process, protected by the Fifth Amendment.

This is precisely what I have been saying since I first wrote about S.1867 last year. It is quite wonderful to see a judge with federal jurisdiction standing up for the Constitution and our most essential rights.

Chris Hedges and the other plaintiffs – including Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, US Day of Rage, Kai Warg Alla and Honorable Brigitta Jonsdottir M.P. – argued that under section 1021 they could potentially be held indefinitely in military detention simply because they deal with sources who might fall under the government’s absurdly vague definition.

Under the law, suspects can be detained if they are determined to be a “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces.”

As I have been pointing out for far too long now, this is so insanely vague that just about anyone could be detained, especially since all that is required is suspicion, not proof.

Keep in mind, the government’s narrative is increasingly shifting from terrorism being associated with foreign forces to Americans.

There is also a clear effort to associate the “spread of the [terrorist] entity’s narrative” with actual terrorism, as I reported in my detailed breakdown of a report from the Homeland Security Police Institute last year.

I wrote at the time:

“The report doesn’t specifically explain what the narrative is or why it is so dangerous, but one could assume that any anti-government, anti-war, anti-corporatist and pro-human rights speech could be squeezed under this umbrella. Essentially, anything that criticizes or questions the United States could easily be demonized because it is allegedly spreading ‘the entity’s narrative’.”

Furthermore, since there would never be charges or a trial, the government need never present any evidence to substantiate their suspicion. Even more worrisome, under the NDAA they can transfer you to any foreign country or entity if they decide to do so.

Thankfully, Judge Forrest recognized how ludicrously vague the language in the legislation really is and after repeatedly attempting to get government attorneys to state that the plaintiffs’ fears were unfounded to no avail, she took action.

“At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021,” Judge Forrest wrote in her ruling.

“Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years,” she added.

Much like the USA PATRIOT Act, which could actually turn someone into a terrorist for engaging in humanitarian activities which would otherwise be fully protected by the First Amendment, Judge Forrest points out that someone could be determined to be “substantially supporting” an “associated force” without even knowing.

“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,” Forrest wrote. “In the face of what could be indeterminate military detention, due process requires more.”

One somewhat confusing aspect of this suit is the plaintiff identified in the official record as Jennifer Bolen, who is identified by the Huffington Post as Tangerine Bolen, the Executive Director of RevolutionTruth.

I assume that they are the same person, although Jennifer Bolen seems to be a lawyer who is a member of the American Society of Pain Educators and head of “The Legal Side Of Pain,” which is a division of the J. Bolen Group, LLC out of Knoxville, Tennessee.

Tangerine Bolen, on the other hand, lives in Portland, Oregon, according to her Google Plus profile and according to RevolutionTruth “has a background in integrative medicine and health policy.”

It is far from clear why Jennifer Bolen is listed and Tangerine Bolen is seemingly the one who is part of the lawsuit as indicated not only by the Huffington Post but also by her Twitter account and this tweet in particular which reads in part, “WE WON TODAY!!!!!!!! Judge could not have ruled more in our favor. WOW!!!!!!! #NDAA.”

“We dealt a pretty big blow to two branches of Congress and President Obama,” said Tangerine Bolen to Michael McAuliff of the Huffington Post, who wrote, “Bolen got involved in the lawsuit because she worked extensively on the Wikileaks and Bradley Manning cases, and used her website to expose where the war on terror has gone tragically wrong, including interviewing Iraqis and Afghans with damning tales to tell.”

“Given that I engage in those two activities and I have an entire team around the world, I really felt that under the vague language of the NDAA, someone like me could easily get in trouble,” Bolen added.

“If I start showing that we’re behaving in such an egregious manner in this country in our alleged war on terror, and I become a thorn in the side of the U.S government in fighting for our rights — the phrase material support, I’m talking to, quote, alleged terrorists or people around the world who may be questionable — just by talking to them and interviewing them on a platform, am I providing them material support?” Asked Bolen.

“That was my fear,” she said.

Naomi Wolf, well-known activist and author of “The End of America: Letter of Warning to a Young Patriot,” “Give Me Liberty: A Handbook for American Revolutionaries,” among other works, also commented on the landmark ruling.

Referring to the judge repeatedly asking Obama administration lawyers who could be detained under the law – a question which they repeatedly refused to answer – she wrote:

“Lawyers for the US government, given several chances by Judge Forrest to do so, would not rule out detaining Chris Hedges under the NDAA for reporting,; they would not rule out defining a political book as providing ‘material support’ for terrorists. The Government, given multiple chances by Judge Forrest to do so, also would not or could not give any direct definition of who is included in the phrase ‘associated forces’, or what any example of what it means to ‘provide material support.” And the government did not dispute the validity of a DHS memo that tried to target Occupy Wall St as cyberterrorists.”

Wolf was understandably relieved by hearing the judge’s decision. In an interview she stated, “To hear those words — it’s so true, it’s so obvious — it puts in glaring relief the hideousness, the unconstitutionality, the darkness of this legislative effort and others like it.”

“She [Judge Forrest] is so completely, obviously right. It’s nothing short of treason to have put forward legislation like this, let alone to have had most of the people who represent us and our president sign off on this clearly, obviously criminally unconstitutional — unconstitutional is inadequate. It’s anti-constitutional. It’s dictatorial,” she added.

Thus far – at least as far as I have been able to find through lengthy research – the White House has not commented on the ruling.

Furthermore, Bloomberg reports, “Ellen Davis, a spokeswoman for U.S. Attorney Preet Bharara in Manhattan, declined to comment on the ruling.”

It’s not difficult to understand why they have been tight-lipped over this ruling, as it is likely thoroughly embarrassing due to the fact that it exposes all who voted in favor of it – not to mention Obama, who signed it into law – as nothing less than anti-constitutional traitors in gross violation of their oath of office.

Remember, every individual in the House of Representatives and all Senators are bound by the following oath:

“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God” (5 U.S.C. §3331).

It doesn’t take a genius to see that they are not supporting or defending the Constitution.

In fact, I might point out that they could very well be considered domestic enemies of the Constitution of the United States who in no way have “well and faithfully discharge[d]” their duties.

It seems that some of our so-called representatives have realized that this is painfully clear and are now taking steps to push back against the indefinite detention provisions of the NDAA.

Both Reps. Adam Smith, a Washington Democrat, and Justin Amash, a Michigan Republican have put forth an amendment to the National Defense Authorization Act for Fiscal Year 2013 which would block the indefinite detention of individuals arrested on U.S. soil.

Interestingly, as you can see in this Congressional roll call from December 14, 2011 on “Agreeing to the Conference Report,” which was H.R. 1540, Adam Smith actually voted in favor of the NDAA with all of the indefinite detention provisions intact.

This makes me wonder if Smith had a change of heart since he voted or if he realized that these sections do actually apply to Americans (although that has always been clear, as I have pointed out countless times), or even more likely, if he realized that he egregiously violated his oath of office and engaged in traitorous activities.

Whatever his reasoning may be, Smith appears to be taking a stand, stating on the House floor on Wednesday, “We have a justice system that’s more than adequate to handle the threat. We do not have to undermine the Constitution to do that.”

On his Facebook page, Amash wrote:

“The amendment I’m offering with Rep. Adam Smith is the ONLY amendment that ensures that persons arrested on U.S. soil aren’t detained indefinitely without charge or trial. Voting against the Smith-Amash amendment allows the government to retain the power to detain Americans, picked up in the U.S., for life, on the suspicion that they “substantially supported” forces “associated” with our enemies.”

“If our constituents haven’t sent a clear enough message, tonight’s ruling surely does: Congress must act now to guarantee the constitutionally protected right to a charge and a trial,” he added.

The federal government now has 60 days from the date of the ruling to decide if they are going to appeal the decision.

I find these developments incredibly encouraging. To me, it signifies that our nation is not completely lost to the forces of tyranny and lost in the haze of the sham that is the so-called “War on Terror.”

I applaud Judge Forrest for standing up for our rights, the Constitution, and everything that America was built on. I sincerely hope that this trend will continue and now that the precedent has been established, that very well might happen.

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1 Response to " Judge Rules Indefinite Detention Sections of NDAA Unconstitutional "

  1. David Rubinson France says:

    You will be reading a lot about a so-called “victory” over some of the worst abuses of the NDAA. Its self-congratulatory and self-deluding BS.
    Chris Hedges and others filed a lawsuit against the detention of US citizens, and have a win- in court.
    This is all very well and good, and we applaud Hedges and his fellows, but of course, neither Congress nor the US Government cares a speck what some dumb court has to say. The next day after this decision was handed down, The House of Representatives passed a law negating it, and even the NY Times had to puke. http://www.nytimes.com/2012/05/19/opinion/a-new-a
    “…On Wednesday, a federal judge struck down a law allowing the indefinite detention of anyone suspected of terrorism on American soil as a violation of free speech and due process. Two days later, the House made it clear it considered those to be petty concerns, voting to keep the repellent practice of indefinite detention on the books.
    House Vote Upholds Indefinite Detention of Terror Suspects (May 19, 2012)
    “On a 238-to-182 vote, it rejected a proposal for something so basic that it is hard to believe there was an argument about it: a formal charge and trial for anyone arrested in the United States. You might have thought that was guaranteed in the Constitution, but that right was stripped away in last year’s military policy bill, signed by President Obama, which made an exception for terror suspects. By giving the military the power to deal with domestic terrorists, the bill essentially allowed presidents to brand anyone a terrorist and lock them up for life without a trial…”
    As far as putting the NDAA into practice, one need only look to this weekend in Chicago for confirmation that Judge Forrest and the entire system of Constitutional protections have simply been made irrelevant – as our similarly inclined pals put it: by the facts on the ground.

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