Federal Judge Bans NDAA From Allowing Indefinite Detention of Americans


On Thursday, U.S. Federal Judge Katherine Forrest shot down the indefinite detention section of the National Defense Authorization Act (NDAA). Forrest was clarifying a decision made last month confirming that the government cannot use the NDAA to indefinitely detain Americans. The biggest news is that instead of the injunction only applying to those who were included in the original lawsuit, it now applies to every American citizen. 

The NDAA came under heavy criticism almost immediately after it was signed into law December 31, 2011. Critics of the law pointed to the vague and generalized language in Sections 1021 and 1022, which allow for the detainment of anyone, including American citizens, “who were part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." It also stated “anyone who commits a belligerent act against the U.S. or its coalition allies in aid of such enemy forces.” Critics believe that this generalized description in fact allows for anyone to be detained by the military with no substantiated charges.

Originally, in a lawsuit directed at the Obama administration and the Department of Justice, the entire provision was struck down, but Judge Forrest was requested by the Obama administration to undo her ruling. In a footnote to the request, the administration claimed, "The government construes this Court’s Order as applying only as to the named plaintiffs in this suit." 

In an opinion and order filed June 6, 2012, Judge Forrest clarified her statement saying that, contrary to the government's narrow interpretation, her injunction does not only apply to the named plaintiffs in the suit. She wrote, “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 ... This order should eliminate any doubt as to the May 16 order’s scope.”

While this may seem like a victory for libertarians nationwide, a small problem does exist: The House of Representatives has already passed the 2012-2013 version of the NDAA, and even rejected an amendment to the law that would have removed the indefinite detention clause. The new NDAA contains the same vague language that was originally shot down by Judge Forrest, and activists are already planning to challenge the new law.