Why the National Defense Authorization Act of 2012 Is Unconstitutional

Earlier this week, Judge Katherine B. Forrest (U.S. District Court for the Southern District of New York) ruled that the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA) is unconstitutional. Forrest issued an injunction prohibiting the government from enforcing the provision.

In celebration of this decision, we will publish an excerpt of Forrest’s opinion — but first, a bit of background…

The provision in question dates back to an earlier version in the Authorization for Use of Military Force Against Terrorists (AUMF) resolution passed by Congress on September 14, 2001. The AUMF states:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In interpreting this law, the government took a controversial position:

The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

This interpretation was widely considered to be an illegal expansion of powers granted under the AUMF, and therefore Congress expanded the language in this year’s NDAA. Notice the new powers granted under Section 1021(a):

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

This section gives the military to detain prisoners indefinitely without a trial. Next, Section 1021(b) defines who those prisoners may be:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

Okay, nothing new yet. That’s the same language we saw in the AUMF. But wait, there’s more:

(2) 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

If you’re wondering what some of these terms mean, join the club. The NDAA doesn’t define them. And that’s what caused the lawsuit:

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).

…which brings us to a lightly edited excerpt from Judge Forrest’s opinion:

As the Second Circuit recently stated in Commack Self-Service Kosher Meats v. Hooker, “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute. Section 1021(b)(2) is devoid of the required specificity.

At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.

Several weeks later, 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.”

The Government did not put forth a witness to explain the difference between its first, March position and its second. Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” There is no guarantee that the position will not — or cannot — change again.

In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.”

The Government could have offered that no one has in fact been detained for any activities protected by the First Amendment. The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement determinations — namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. [It did not.]

The Government quite carefully avoids arguing that § 1021(b)(2) does not encompass activities protected by the First Amendment. Not once in any of its submissions in this action or at either the March or August hearings has the Government said, “First Amendment activities are not covered and could never be encompassed by § 1021(b)(2).”

In United States v. Stevens, Justice Roberts wrote, “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American  people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.

The Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it” — that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. [But] the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

In Hamdi v. Rumsfeld, the Supreme Court stated:  “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

In rejecting the Government’s view of its sweeping detention authority, the Supreme Court stated in Hamdi: “[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of a threat.” Citing O’Connor v. Donaldson, the Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.‘”

In Ex parte Merryman, the Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government.

In the Brig Amy Warwick, the Government had similarly argued that the judiciary should not — or perhaps could not — rule on certain issues. There, the Supreme Court stated, “The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger… It comes to a plea of necessity. The Constitution knows no such word.”

In United States v. Curtiss-Wright Export Corp., while acknowledging the President’s pre-eminent role in foreign affairs, the Supreme Court also acknowledged that that power does not extend to all domestic affairs. He cannot, for instance, determine whom to arrest domestically; the scope of the arrest authority is determined by criminal statutes.

There are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations. As a criminal statute, those prosecuted pursuant to it are entitled to full due process under the Constitution.

Moreover, there are a variety of criminal statutes that capture speech or associational activities which are involved in criminal activities.  There is no reason for § 1021(b)(2) to encroach on protected First Amendment rights.