Saturday, September 22, 2012

Left Side of the Aisle #74 - Part 4

Update on challenge to NDAA

The other bad news update is one that should concern us all, no matter where we live.

Back around the beginning of the year, I warned you about the National Defense Authorization Act, or the NDAA, because it includes a particular provision that would allow the government to imprison people indefinitely, without trial or even charge, based solely on the president's deciding that you are a suspected terrorist. This would even include US citizens seized on US soil.

On May 16, Federal Judge Katherine Forrest found that the law is unconstitutional and violates rights to free speech and due process.

She did so, as I've told you before, after a Kafka-esque hearing in which lawyers for the government repeatedly refused to explain what the law's terms like "associated forces" and "substantial support" mean and instead tried to argue that the plaintiffs did not have "standing" to sue. That is, they couldn't sue because the law hadn't affected them: They hadn't be indefinitely detained. So the government was arguing that the only folks with standing would be those already beyond the reach of the judicial system.

Last month, August, the feds were back in court, where they filed an appeal of Judge Forrest's ruling with the Second Circuit Court of Appeals. Hilariously, despite its failure to be able even to define basic terms of the law, the government argued in the appeal that it is neither too broad nor overly vague.

But here's something: The appeal argues that the plaintiffs, who include academics, a Pulitzer Prize-winning journalist, and a member of the Icelandic parliament, "cannot point to a single example of the military's detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention."

Fine. Then say that. Say those sorts of activities are not covered by the law. Say "that's not what we meant." But they won't. They want the law broad, they want it vague, they want to use as broad a brush as possible. They want this law, they want it in place, they want it in force, and they want it with no hint of any legal or constitutional restrictions on its reach.

Well, this week they took a step toward getting their wish. A federal appeals judge issued a temporary stay of Judge Forrest's ruling, thus giving the Obama administration clearance to enforce the indefinite detention policy. The stay lasts until Sept. 28, when a three-judge appellate panel will hear the case.

Now, President Hopey-Changey issued a statement when he signed the National Defense Authorization Act that said he wouldn't use the powers of indefinite detention without trial and later issued regulations to that effect. Which is all well and good. But never forget, that is just a promise, a regulation, one he could be reversed, revoked, at any time. Even granting him the best of intentions, even assuming Barack Obama would never use this power, the fact is that his promise binds no future president. And despite waiving his authority under the law, his Justice Department has vigorously defended it, filing immediate appeals after each loss in Forrest's court.

I'll say it again: They want this law, they want it in force, and they want it with no hint of any legal or constitutional restrictions on its reach.

When I talked about this last month, I raised the possibility that we are becoming what I called a "soft" police state, one where the outward trappings of democracy, including elections, free speech, and so on, are allowed to continue only because - and only to the extent that - they don't threaten the positions and perks of the powerful.

It's hard to imagine how or why a truly free people, a free nation, is supposed to look at a law that gives a president - any president - the power, essentially, to imprison anyone they want for as long as they want without trial or even charge based on activities that can't be specified and terminology that can't be defined with the only protection being the hope that such power will never ever be abused - how a free people can look at such a law and not feel that there is a dark cloud over that freedom is something I can't understand.

If you're never any kind of troublemaker, you don't need to worry. But if you're never any kind of troublemaker, you don't need freedom.


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