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Judge Finds NDAA Unconstitutional: Will Second Circuit Agree?

By Robyn Hagan Cain | Last updated on

Is the National Defense Authorization Act (NDAA) unconstitutional?

Wednesday, U.S. District Judge Katherine Forrest agreed with plaintiffs -- including Daniel Ellsberg of Pentagon Papers fame -- that the NDAA might have a chilling effect on free speech and violate due process. The Manhattan-based judge permanently enjoined enforcement of the Act, and found that it did not "pass Constitutional muster," Reason reports.

The Obama administration will appeal the decision, according to Business Insider.

Before the Second Circuit Court of Appeals dives into the NDAA, let's discuss what the law says and why it's causing controversy.

The 565-page NDAA contains a short paragraph which allows the military to detain anyone it suspects "substantially supported" al-Qaida, the Taliban or "associated forces." The indefinite detention would last until "the end of hostilities," and would not allow for standard forms of recourse, Courthouse News Service reports.

Judge Forrest concluded that the terms of the indefinite detention plan were unconstitutionally vague.

In a 110-page opinion, Judge Forrest wrote:

The Government did not -- and does not -- generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

Should the feds seek a Second Circuit review of Judge Forrest's ruling, or should they follow Edie Windsor's lead and skip straight to the Supreme Court?

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