If you don’t know exactly what the NDAA is, shame on you.  The National Defense Authorization Act of 2012 is a terrifying law that allows the federal government to kick down my door, drag me away, take me to a prison or gulag anywhere on the planet, torture me, never charge me with a crime, never tell my family or loved ones where I am and refuse to give me access to a court, judge or any legal process.

The federal government and Barack Obama desperately wanted the power to do just that….they waged a fierce battle in federal court demanding that they be allowed to freely exercise those rights and have continued to fight back against everyone…including a federal judge…who asserted that such actions were violations of basic Constitutional protections.

Forget all the crazy internet chatter about what the NDAA says and the terrifying powers it gives the government…read the Order. The federal judge’s interpretation of the broad powers the feds have sought to exercise are terrifying…

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).
At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known–and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.
In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would
Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 3 of 112
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not subject plaintiffs to military detention under § 1021. 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.
A key question throughout these proceedings has been, however, precisely what the statute means–what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent from § 1021(b)(2).

At the August hearing, the Government stated that preliminary enjoining § 1021(b)(2) had not altered its detention practices in any way since in its view, the executive branch maintains identical detention authority under the AUMF. See Tr. II at 138. As set forth herein, however, that position is unsupported by the AUMF itself, has been rejected by other courts (including the Supreme Court), and is rejected by this Court. (THE FEDERAL GOVERNMENT DEFYING A FEDERAL JUDGE)

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of “substantially or directly supporting” associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. Id. at 245. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. Tr. II at 142.1

At the March hearing, the Government was unable to represent that the specific activities in which plaintiffs had engaged would not subject them to indefinite military detention under § 1021. See, e.g., Tr. I 223, 226, 229-30. The Government changed its position several weeks later in a motion for reconsideration of the May 16 Opinion. In its memorandum submitted in support of that motion (which was subsequently denied as moot in light of the parties’ agreement to proceed directly to a hearing on a permanent injunction), the Government changed its position entirely–from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.”

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