Federal Judge Strikes Down NDAA Detention Powers

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The government may not invoke the bitterly debated National Defense Authorization Act to hold people in indefinite military detention on suspicion that they “substantially supported” terrorism — at least if they had no connection to the Sept. 11 attacks, a federal judge ruled Wednesday.

Judge Katherine B. Forrest of the Southern District of New York clarified a preliminary injunction she issued on May 16 in a lawsuit brought by journalists and activists who challenged the statute — part of the 2011 NDAA — and expressed fear that they could be detained, The New York Times reported.

The Obama administration had asked Forrest to reconsider her ruling, saying that the plaintiffs had no standing to challenge the law and that it was “extraordinary” for her to have restrained future military operations that might be ordered by the commander in chief during wartime.

As part of that request, the government said in a footnote it was interpreting her injunction narrowly as applying only to the handful of people specifically named as plaintiffs, including Chris Hedges, a journalist who interacts with suspected terrorists as part of his reporting work, and several prominent supporters of WikiLeaks.

But Wednesday, Forrest said that her order still stood — and that, contrary to the government’s narrow interpretation of it, her injunction applied broadly and not just to the named plaintiffs.

“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote. “This order should eliminate any doubt as to the May 16 order’s scope.”

In section 1021, Congress spelled out its interpretation of the extent of the military’s authority to hold people without trial, as detailed in its approval — a decade earlier — of the Authorization for Use of Military Force right after the Sept. 11 attacks.

One provision of the statute, which Forrest let stand, said that authorization covered the detention of the perpetrators of the Sept. 11 attacks and those who assisted in them. But another part, which she did block, said it also covered people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies.

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