Sunday, May 27, 2012

The Injunction On The NDAA

This is an example of the system working.

I'm a bit late to the party on this one, but there's been much freaking out about the National Defense Authorization Act (that's the "NDAA") - specifically what's being called the "indefinite detention" section(s). For those of you who haven't been keeping up with this (and it's been in the news surprisingly little), that's a combination of a few different provisions in the bill. It's super long, so I'll summarize.

Section 1021(c)(1) permits "detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force." That authorization applies to "covered persons," which this law defines under Section 1021(b) as a person directly involved in the 9/11 attacks or “a person who was a 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.” 

This section also specifies that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” There has been a lot of debate about this, mostly revolving around grammatical interpretation. I have argued that this means the indefinite detention provision doesn't apply to (1) U.S. citizens; (2) permanent residents; or (3) anyone else captured in the United States. Other people argued that it means the provision doesn't apply to citizens, permanent residents, or anyone else - but only if any of those people are captured in the US. So it still applies to anyone, citizen or otherwise, if captured outside the US. (Of course, as I'm reminded often by friends, it's bad that anyone can be indefinitely detained at all - but that's beside the point.)

So, moving on, the other relevant provision is Section 1022, which makes indefinite detention is not only allowed, but mandatory, for “a member of, or part of, al-Qaeda or an associated force” who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners" (according to the president).  This mandatory detention provision expressly doesn't apply to US. citizens (under Section 1022(b)(1)). Permanent residents and anyone else captured on US soil are not exempted.

Finally, the president issued a signing statement saying a lot of stuff, but most relevantly, indicating that the administration doesn't read the indefinite detention provision as applying to citizens or permanent residents (like I said). 

Now, down to business. Recently, seven different people sued the administration over this law, arguing that it violates their right to free speech (First Amendment) and due process of law (Fifth Amendment).  Glenn Greenwald (with whom I often disagree, but whom I also respect greatly for always providing his sources and generally being an extremely smart guy) wrote a terrific article about it, and I'm liberally cribbing from that for my facts here. If you're a law nerd like me or you just want more detail, I recommend that you check it out. Anyway, in an unexpected and bold move, a federal judge issued a preliminary injunction against the indefinite detention provision.

Let's back up for a minute, in case you don't know what that means. An injunction is just a court order forbidding something. In this case, it means, the government can't enforce the law that's enjoined. To get a preliminary injunction, you have to show that you're in danger of imminent harm that can't be undone, and that you're likely to win. So, getting a preliminary injunction doesn't mean you win the case, but it means you probably will. 

What this all means is that a federal judge decided that (1) the NDAA detention provisions (section 1021) will probably harm these plaintiffs; and (2) the plaintiffs will probably be able to show that the law violates their constitutional rights. Specifically, the judge found that the plaintiffs - journalists, and the like - have a "realistic fear" that the law will "interfere with their expressive and associational activities" (by treating them as supporting terrorism by interacting with terrorists to write about them or publishing stuff that could seem favorable to them, I guess) and that the law is too vague to be fair under the due process clause (because you can't tell in advance whether you'd be violating the law or not). 

In reaching this decision, the judge threw out several technical procedural challenges - law nerds, that's standing and lack of imminent enforcement necessary for a preliminary injunction - that usually get stuff like this knocked out of court before the issues are even reached. This happened in part because the government refused to promise that the law wouldn't apply to the journalistic stuff these folks do. So the court said that in that case, yes, the journalists are currently being injured because they are afraid to act, given that the law could apply to them. The government couldn't actually give a definition of "direct" or "substantial" support, either, which makes it impossible to know what that actually means, and whether or not legitimate journalistic activity would fall within that definition. So, there's your First Amendment problem and your Fifth Amendment problem. The court also said that the president's signing statement didn't help, because it didn't clear up any of these problems.

This is, if it isn't obvious, a big deal. Courts often duck these issues with technicalities, or wave their hands and say that security is really important, and who are they to interfere? In my opinion, that's a big problem. Our system of checks and balances is supposed to ensure that when a law is passed, if it's unconstitutional, the courts fix it (either by saying, "you can only enforce this law if it's read narrowly to mean '_____,' which is constitutional" or "we have to strike down this law because there's no way to read it constitutionally").  That's their job. So when a law like this comes out, and I say, "It doesn't mean you can detain journalists indefinitely for being journalists, or if it does, the courts will strike it down," I'm really being pretty optimistic.

In this case, I wasn't. This is how it's supposed to work. And the more often a court does something like this, the more it sends a signal to other courts that it's ok - they won't lose their legitimacy by interfering. Rulings like this say, "This is the role of the court. We'll only do it if we have to, but at this point, we have to."  Like, you know, replacing your transmission. You wish you didn't have to do it, but if it's broken, it has to be fixed, no matter how costly. 

Now, that's not to say that this ruling is perfect and wonderful and without problems. An argument can be made that this is a political decision; that the law can't really be read this way, and that these folks haven't been injured at all because they wouldn't be affected by the law. This is a broad interpretation of the rules, and it may not stand up on appeal, given the Supreme Court's stingy views on who can and can't show "injury in fact" to bring a lawsuit like this. But, at the moment, what I'm seeing is an example of the system working.