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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