Obama Justice Department Goes Judge Shopping in NDAA Case

Ann Schneider Sep 28, 2012

Editor's Note: The U.S Second Circuit Court of Appeals will hear legal arguments on Friday, Sept. 28 about whether to overrule a lower court judge's ruling that struck down key provisions in the National Defense Authorization Act as unconstitutional. The law, which radically expands the definition of who could be indefinitely imprisoned without trial for alleged terrorist ties, has been strongly criticized by civil liberties supporters. In this article, The Indypendent's legal columnist Ann Schneider explains some of the latest developments in this ongoing legal battle.

On Sept. 12 U.S. District Judge in Manhattan Katherine Forrest ruled part of the National Defense Authorization Act unconstitutional in a case brought by Chris Hedges, Noam Chomsky and Daniel Ellsberg. The plaintiffs argued that provisions in the NDAA which would allow the military to indefinitely detain anyone who provided “material support” to terrorist groups or “associated forces” were so overly broad that legitimate First Amendment activities could be threatened.

Judge Forrest had said she would, at the government’s request, reconsider her stay on the law’s enforcement on September 19.However, the Obama Department of Justice sought an end-run around the ruling and proceeded directly to the Second Circuit Court of Appeals where one Court of Appeals judge agreed to lift Judge Forrest’s stay.

Judge Forrest had previously made national news on May 16 of this year when she issued a preliminary (pre-trial) injunction against enforcement of section 1021(b) of the NDAA which authorizes the indefinite detention without trial of those who “substantially supported,” or  “directly supported” al-Qaeda, the Taliban and/or other “associated forces,” three phrases that are given no further definition in the law.  Under that section, the detention may last until “the end of hostilities.”

The fact that the Obama administration styled its defense of the 2011 National Defense Authorization Act in the way that it did shows that it is truly seeking the vast expansion of executive power that the vagueness in the law would enable.


Obama’s Department of Justice, it must be concluded, deliberately provoked Judge Forrest to make such a rare, pre-trial constitutional ruling (the convention is to avoid making constitutional rulings if it can be avoided) by refusing to answer her direct questions.  During the May hearing on whether or not to grant a preliminary injunction against the enforcement of the law, Forrest (an Obama appointee) asked the Attorney General’s lawyers to give some definition to the terms that Hedges, et al object to.  The transcript of the hearing reads as follows:

Judge: Give me an example. Tell me what it means to substantially support associated forces.

Government: I'm not in a position to give specific examples.

Court: Give me one.

Government: I'm not in a position to give one specific example.

I. Tr. 226.

Shortly thereafter, Judge Forrest asked again: What does 'directly supported' mean?

Government: We have not said anything about that in our brief.

Court: What do you think it means?

Government: . . . Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, 'substantial support' that I have not thought through exactly and we have not come to a position on what 'direct support' [*40] and what that means.

Judge Forrest tried five times to get the government to state a position such that would allow her to avoid the responsibility of striking down a federal law by posing different journalistic scenarios, like posting a YouTube video of a Taliban leader. The government, both in its oral argument and its written brief, refused to state whether or not published or future works of the plaintiffs would subject them to the Act’s broad coverage.

The government could have done as little as to state that it did not intend to prosecute First Amendment activity under the NDAA.  Then Judge Forrest would have had to hold a full hearing on the suit and determine which side was more worthy of belief.  Instead the DoJ engaged in ipse dixit – simply repeating over and over that the NDAA contains no new powers, in spite of the appearance of these new terms for the first time.  Thus they bet the farm and lost big.

Flipping the Government’s Argument

Showing her intellectual brilliance, Judge Forrest used the government’s arguments to lift the stay against them. She rebuffed the DoJ’s cries of urgency by saying in effect, “since you just argued to me that the NDAA grants the government no new powers, then you don’t need a stay of my injunction.”

In issuing the permanent injunction on the record, Judge Forrest wrote, “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.” Each of the plaintiffs testified that they read the statute and could not understand its meaning.

Jose Padilla

To find an equivalent example of executive face-down with the courts, one must recall when alleged “dirty bomber” Jose Padilla, after being picked up in May 2002 as a supposed “material witness;” and days later had his designation changed to “enemy combatant;” was deprived of his counsel,  sent to a military brig and held in solitary confinement for several years.

Before he became Bush 43's Attorney General, Judge Michael Mukasey presided over the immediate post-9/11 test case where the DOJ similarly baited him and stonewalled his efforts to determine what due process, Padilla, an American with Muslim sympathies might be entitled to.  No one had ever tried to expand the use of the material witness statute beyond mob activities, the context in which it was created.  Ashcroft’s next assertion was that Padilla wasn’t entitled to a lawyer, nor access to civilian courts, because that would – get this— derail ''the military's efforts to develop a relationship of trust and dependency that is essential to effective interrogation.''

Even after six months in the brig when Judge Mukasey ordered the DoJ to permit his lawyers to see him, DoJ refused to comply and instead asked for reargument.  Then-Justice Department spokeswoman, Barbara Comstock, commented, ''In times of war, the president must be able to protect our nation from those who join with our enemies to harm innocent Americans.''

State of War

Padilla was ultimately only charged with amorphous conspiracy charges in 2005, not the original allegation that he was a “dirty bomber,” affiliated with al-Qaeda.  The switch to civilian courts came only on the eve of the case making its way back up to the US Supreme Court, which had ruled in June 2004 (Hamdi v. Rumsfeld) that “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  This last-minute switch-aroo left unresolved the legal questions of  whether the government can pick up anyone anywhere in the world and deprive him or her of counsel, without habeas corpus rights, and subject that person to “enhanced interrogation techniques.”

In 2005, Solicitor General Paul Clement said that the court that rebuffed him did not have the authority to “disregard a presidential directive.”   Responding to Judge Forrest’s issuance of a permanent stay on Sept. 12 the Justice Department stated in a brief, "fundamentally, it is not for plaintiffs – or this Court – to determine which authorities are neceassary or appropriate for the conduct of an ongoing war." 

A full three-Judge panel of the Second Circuit will consider the government’s request to dissolve Judge Forrest’s permanent injunction Sept. 28. 

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