Posted by Brad @ 12:50 am on September 15th 2012

Judge Blocks NDAA – Obama Administration Appeals

We wrote briefly about the NDAA here. Basically, it’s a law that allows America to include Americans, arrested in America, in that category of people who don’t have rights to due process. If the executive decides that any particular American “was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces” – and the government doesn’t have to prove that, just say, and they get to define, without telling anybody how they define it or having to justify it, what “part of or substantially supported” or “associate forces” means – then that American they pick up joins the Gitmo prisoners in terms of legal rights.

The Obama administration initially opposed this law – because, in essence, they argued that this is something they believe they already can do, but putting it to paper by making it law opens them up to judicial review, and that sucks, so better to just let them have the power without writing it down. That was literally their argument.

Now, however, they figured that since the law has passed, they’re better off defending it than letting it get smashed upon judicial review. Because even if they believe they have this power, that gets put in jeopardy if, say, a federal judge decides that such a power is patently, flagrantly, offensively unconstitutional.

Which is what happened Wednesday, when a federal judge blocked the most odious section of the law – the one that allows the administration to indefinitely detain it says “was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces.”

Predictably, however, the Obama administration has appealed.

A very telling piece of this last court case: one of the plantiffs – joined by Daniel Ellsberg and Noam Chomsky – was Pulitzer Prize-winning journalist Chris Hedges, who regularly interviews terrorists, Al Queda and Taliban members, and other undesirables. He argued that the law, as written, could potentially subject him to indefinite detention. The judge, Forrest, asked the Obama administration to refute that hypothetical.

They refused.

The real threat of the NDAA, if not in practice for now, then definitely in precedent, was further strengthened by the fact that the government repeatedly refused to address Forrest’s concerns and confirm that the NDAA can or cannot be used against journalists like Hedges.

So there you have it.

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