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Federal Court Rules NDAA2012 Violates First and Fifth Amendment.


US Politics & Gov't  (tags: United States, Federal Court, NDAA Enjoined, Bill of Rights, First Amendment, Fifth Amendment, Indefinite detention )

Betsy
- 855 days ago - informationclearinghouse.info
May 17, 2012 "Salon' -- A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of ......



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Betsy Bee (1058)
Thursday May 17, 2012, 6:20 pm
of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.
 

Bianca D. (86)
Thursday May 17, 2012, 6:46 pm
Yeah!
Tx Green Bee!
 

Pat B. (354)
Thursday May 17, 2012, 6:53 pm
Way to go!!! Thanks, Betsy for this one.
 

Barbara W. (342)
Thursday May 17, 2012, 7:01 pm
The Nation Defense Authorization Act is also an offense against good old American common sense! These fools who voted for and signed this bill into law are themselves treasonous American's. If they don't get it they better do their good old Constitutional homework.

Excellent post Green Bee.. We're on the same page.. Military Detention Law Blocked By New York Judge
http://www.care2.com/news/member/101960828/3343763
 

Fran F. (111)
Thursday May 17, 2012, 7:12 pm
It's a relief that this case came up before a judge who respects the entire Constitution rather than one who likes just the Second Amendment! Thanks, Betsy!
 

Past Member (0)
Thursday May 17, 2012, 7:24 pm
Federal Court Rules NDAA2012 Violates First and Fifth Amendment.


Katherine Bolan Forrest (born February 13, 1964) is an American lawyer and judge, serving on the United States District Court for the Southern District of New York.

Forrest earned a bachelor's degree with honors in 1986 from Wesleyan University and a law degree in 1990 from New York University School of Law.[1

On May 16, 2012, Forrest issued a ruling enjoing enforcement of the highly controversial provisions for indefinite detention of suspects in the National Defense Authorization Act. Forrest's ruling was issued as part of a lawsuit brought by seven plaintiffs which challenges the NDAA as a violation of "their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution."[5]

http://en.wikipedia.org/wiki/Katherine_B._Forrest


I suggest that New York is the United States of America's financial culture.
 

Freya H. (307)
Thursday May 17, 2012, 7:26 pm
There may be hope for this nation yet!
 

Betsy Bee (1058)
Thursday May 17, 2012, 8:16 pm
Thank you for your research, Catherine, and I agree that New York is the United States of America's financial culture.

Barbara, we are indeed on the same page. However, I do not hold Obama to be a traitor for signing this law. As a professor of constitutional law, Obama would have known that this egregious law would be ruled unenforceable within less than a year (this ruling came short of six months). As commander in chief, Obama would have known that not signing the National Defense Authorization Act before the end of 2011, would have caused no military pay checks for our service men and women and thus hunger for their families in mid January.

I do hold Obama and his attorney general, Holder, guilty of crimes against humanity for declining to prosecute GW Bush and Cheney and their cronies for war crimes.
 

Mary T. (186)
Thursday May 17, 2012, 8:28 pm
Thanks Green Bee, I agree with your above comment.
 

Michael Carney (209)
Thursday May 17, 2012, 9:10 pm
Bravo Judge, Forrest...I guess, the Tea Party and Republicans, will be forming a lynch mob for Judge Forrest...
 

Kevin A. (68)
Friday May 18, 2012, 12:00 am
Hooray!
 

Abdessalam Diab (154)
Friday May 18, 2012, 12:36 am
Wonderful news finally. Thanks Betsy.
 

ellen m. (222)
Friday May 18, 2012, 5:05 am
And the Teabuggering fools want to declare war on women....
I say O gets rid of Biden post haste and sign this gal up, and then let her loose on them!

And Bee, i sent you a star for your comment rather than the story itself as it was spot on and my sentiments also...THANK YOU :-)
 

Carmen S. (611)
Friday May 18, 2012, 5:46 am
Great news, thanks Betsy for posting this
 

Tamago Kitty (0)
Friday May 18, 2012, 6:23 am
Thanks for caring :)
 

Suzy F. (94)
Friday May 18, 2012, 6:34 am
That is good news!
 

Russell R. (87)
Friday May 18, 2012, 7:31 am
Our Right to Protest- a Back Door Deal - passed 399 - 4

This Judge declared this law unconstitutional, what about a little known bill designated H.R. 347 and titled the "Federal Restricted Buildings and Grounds Improvement Act of 2011." The law, signed by the president in mid-March, expands an existing statute that criminalizes certain activity in and around areas that are restricted by the Secret Service.

Given the approaching protests, it may be worth providing a more detail on how exactly the law works, and what protesters can expect. Preliminarily, it's important to define one particular term in the law: "restricted buildings or grounds." These are specific geographic zones that have been designated by the Secret Service, and can be located under H.R. 347 in three places:

• The White House or the vice president's residence.
• A building or area where any individual under Secret Service protection is visiting.
• A building or area at which a National Special Security Event (or "NSSE") is taking place (more on that in a second).

Under the existing statute, four types of activities were illegal with respect to these zones, and remain so under the new law:

• You cannot "knowingly" enter or remain in a restricted zone without lawful authority.
• You cannot "knowingly" engage in "disorderly or disruptive" conduct in or near a restricted zone. A prosecutor would have to show, however, that you intended to disrupt government business and that your conduct actually did cause a disruption. Troublingly, the term "disorderly or disruptive conduct" is undefined.
• You cannot "knowingly" block the entrance or exit of one of these restricted zones. Again, however, the prosecutor would have to show that you did so with the intent to disrupt government business.
• Finally, you cannot "knowingly" engage in an act of physical violence against person or property in one of these restricted zones.

You'll notice that "knowingly" is in quotation marks above. This is one of the two major changes to existing law (the other is the extension of the statute to the White House and VP's residence). Previously, the law required someone to act "willfully and knowingly." This is the state of mind the government has to prove you had to establish your guilt (the "intent standard"). "Willfully and knowingly" means that you need to know you're committing a crime. "Knowingly" just means you need to be aware you're in a restricted zone, but not necessarily that it's unlawful.

(Incidentally, the punishment can be relatively severe. If you commit the offense with a weapon or if you cause injury (a felony), it can carry a maximum sentence of 10 years in prison and a fine of $250,000. Otherwise, the maximum is one year in prison and a fine of up to $100,000.)

There are a couple of other details worth noting to understand the full scope of the law. First, the Secret Service does not just protect the president and vice president. Rather, the agency has the responsibility for protecting the president, vice president and their immediate families; former presidents, vice presidents and certain family members; certain foreign dignitaries; major presidential and vice presidential candidates (within 120 days of an election); and other individuals as designated by a presidential executive order. If any of these individuals are temporarily visiting a location, this law kicks in.

Also, lots of attention has been paid to the National Special Security Events, which include things like presidential inaugurations, nominating conventions and even large spectacles like the Super Bowl. The Department of Homeland Security has massive discretion (which in and of itself is a problem) to designate one of these events as an NSSE based on things like the expected number of attendees and the presence of dignitaries.
 

Christopher Fowler (84)
Friday May 18, 2012, 7:34 am
If the Fascists in the GOP had allowed the president to have line item veto powers, as Nixon (a Republican) had, this would not be an issue, but these GOP traitors are too busy playing politics to care about obeying their oaths to the people or to protect the people.
 

Past Member (0)
Friday May 18, 2012, 7:58 am
we are change
knowledge is not power its empowering lets be empowered
life has value beyond measure
Peace and Love
 

Jason S. (57)
Friday May 18, 2012, 8:08 am
thanks, good posting
 

Terrie Williams (769)
Friday May 18, 2012, 9:04 am
Thank Dawg someone in the Judiciary still has a brain and a conscience.
 

tasunka m. (334)
Friday May 18, 2012, 9:13 am
was waiting for a legal test case, and was truly hoping that this would set a precedent. Now to kill the no trespass law.Thanks Betsy
 

Vicky P. (464)
Friday May 18, 2012, 10:32 am
Most of the laws that are being passed in the US lately are infringing on people's rights in the name of "protection from terrorism".
 

TomCat S. (286)
Friday May 18, 2012, 11:07 am
Great minds fall in the same ditch, Bee! My first yesterday too,
 

JL A. (275)
Friday May 18, 2012, 11:34 am
No surprise, but good news nonetheless.
 

Jill P. (70)
Friday May 18, 2012, 11:57 am
Here is an interview with Chris Hedges about it. Judge Strikes Down Indefinite Detention in NDAA
Sorry Green Bee but obama is very much responsible for signing this. The Obama Administration is fighting this. Watch the interview. They refused to assure the Judge that American citizens would not be affected by this law. Five times they refused. It made the judge mad. So she struck it down. It is very important for obama and his cronies to have total control over the citixens to squash dissidence. You cannot have a dictatorship with Free speech and protests. Obama has been systematically shutting down our open society, picking up where Bush left off.
You are right, he knows better...but did it anyway. That says a lot about his character.
 

Norm C. (74)
Friday May 18, 2012, 12:31 pm
Christopher, The line item veto was declared unconstitutional by the courts decades ago..
_______

The position of the administration points out very clearly just how much the actions of past administrations determine the actions of future administrations. The institutional inertia is frequently, almost always impossible to overcome and reverse course. That is why it is as important to keep an eye on with whom the presidential candidate surrounds himself during primaty season as it is on the candidate, him/herself. Unfortunately, in '08 the advisors for both Hilary and Barack were ex-Bill Clinton retreads. Nothing I've said here is meant to exonerate this president for his administration's actions.

Unfortunately, the pluck Obama demonstrated while in the Illinois Senate in opposing the war in Iraq, completely vanish once he took the oath of office. I guess principle only lasts so long when sitting in the Oval Office. His Attorney General has mostly been a complete failure as a protector of the Constitution. Obama should have fired him years ago. He should have stopped the increasingly authoritarian creep of the Bush II (not to mention of the LBJ, Nixon, Ford, Carter, Reagan, Bush I, Clinton) policies.

BTW, the picture for this story is historically inaccurate or is bending reality for the following reasons: George Washington, while he presided over the Constitutional Convention, said nothing during the debates except to call the meetings to order and adjourning them. Ben Franklin said nothing during the debates as far as we can tell; although he did host many after hours discussions and strategy sessions attempting to find acceptable compromises. Thomas Jefferson did not attend at all because he was in France serving as our ambassador that hot and humid Philadelphia summer of 1787. The faces that should be there are James Madison, James Wilson and the Pinckneys or the Morrises (which, except for Madison, almost no one would recongnize on sight).
 

Larry D Grazier (1407)
Friday May 18, 2012, 2:19 pm
TO ALL THE CONGRESS PEOPLE, LEAVE MY FREEDOM AND THIS COUNTRY ALONE. YOU SHOULD TRY TO FIX WHAT IS BROKEN NOT ANYTHING ELSE. LARRYDG
 

Betsy Bee (1058)
Friday May 18, 2012, 4:07 pm
Jill, the link takes me to Democracy now and less than 1 minute on NDAA and then a lot more general news. Chris Hedges was sitting across from Amy Goodman.

The Justice Department which is part of the executive department defends the government in a law suit against the government. That is always what happens. I cannot blame Obama for a part of the executive department defending the government's position. That is the job of this governmental department. One could almost say that the refusal of the justice department to assure the judge that this law would not affect American citizens and reiterating this refusal five times brought the judge to make this favorable ruling. Truly, the justice department seems to be putting next to no effort in defending this law. The three reasons the justice department said the plaintiffs lacked standing are worn out, used repeatedly and inappropriately so the judge struck all three down. Again, the justice department was not making much of an effort to defend this law.

The federal government, the justice department and Obama have done some bad and questionable things but I am not anxious to lay blame.

It is a triumph that this law cannot no longer threaten and harm American citizens. The plaintiffs in this case, led by Chris Hedges are heroic.
 

Past Member (0)
Friday May 18, 2012, 4:16 pm
A judge who is really on the side of the people. Hooray!
 

Roseann D. (178)
Friday May 18, 2012, 4:34 pm
Not a peep out of the GOP on this. Could it be that they are in favor of it? Why the silence on this single issue since they come down on Obama about everything else. Seems like they would have made it a campaign issue...you know...Freedom being at stake and all.
 

Betsy Bee (1058)
Friday May 18, 2012, 4:43 pm
Well, Roseann, the only position left for the GOP is anti Constitution. They may not want to make that public.
 

Jill P. (70)
Friday May 18, 2012, 6:26 pm
sorry about that. Here is the correct link.
Journalist, Plaintiff Chris Hedges Hails "Monumental" Ruling Blocking NDAA Indefinite Detention
It is not over.They are calling on the President to make it a permanent injunction. I'll place my money he won't becasue I don't think he is good, or clever, or strategic. If he had any morality not one bit of this nightmare the last 3 years would be happening. he is just following through with the Bush cheney agenda which is the corporate rich elite agenda for the last 30 years or so. I'll place my money that they will appeal this. It is important to hold down and silence the citizens in order to have a dictatorship and absolute rule, and subserviant slave labor. All of which obama supports whole heartedly. I have never seen him stand up for the American people even once.
As for the GOP they fully support this disgusting NDAA. Just like Obama supported Bush's legislation for illegal wiretapping and the Patriot Act while in the Senate, Romeny supports the NDAA. Therefore you won't hear any objections for the conservatives. both sides want the same thing. no freedom of speech, strike down the rights granted by the Constitution and absolute, unquestined rule and obedience. Once you understand that all their actions on both sides are completely predictable.
 

Betsy Bee (1058)
Friday May 18, 2012, 7:07 pm
Thank you for the link, Jill. I am glad I could watch this. Everyone is ready for the government to appeal. If our side had lost, I am sure an appeal would be made.

Christ Hedges said so well that defense of all of our liberties is an ongoing struggle while stating that this ruling was a triumph.

I agree that while in the courts, all actions on both sides are completely predictable.

The constitution was written to bind the government. Never liked by the government. This is an ongoing struggle, as Chris Hedges.

Of course, everyone thought Lincoln was an arch fiend when he took away all of the protections of the Bill of Rights and did not even allow the Justices of the Supreme Court to enter the District of Columbia in order to protect a government by and for the people (double speak at it best).

We still have our constitution and protecting our constitution is rightfully an ongoing struggle and a duty. Our supreme law of the land is a precious law.
 

Yvonne White (232)
Friday May 18, 2012, 7:39 pm
Wow, who could have foreseen?;)
 

Past Member (0)
Friday May 18, 2012, 10:42 pm
Nothing could have made me happier today.
Thanks so much Betsy.
If history repeats itself, we should watch for this judge to be removed for disagreeing with the Police State.
This is SOP for the NWO.
I wholly support this judge and hope Katherine Forrest is supported by the Supreme Court, this will surely end up there.
If every politician, complicit in this Fascist takeover of the U.S. government by the Fascist Police State, were jailed for their crimes against the U.S. people and the U.S. Constitution - we would be seeing justice done for the first time in this century.
It has been overwhelming, the numbers of people shamelessly violating and flaunting the laws regarding he U.S. Constitution and the banking laws, to watch America's population being robbed and leally raped in broad daylight.
From the Presidents to the local loan officers and accountants, all are guilty and none fear ever being held responsible.
A teenager, smoking a joint, is more likely to do jail time than a banker who robs his own bank (and is given a bonus for the act) or a Senator who signs away the Constitutional rights of his constituients.
Something is really rotten in our U.S. government and the whole world has followed our example. Big Brother has been a horrible role-model...
NOBODY is "too big to jail."
It is time we saw some examples!
The DOJ should be raiding the Whitehouse and Congress.
Why aren't they?
Becaue they are the enforcers for this criminal gang.
If they don't act, they should also be jailed.
RESPONSIBILITY, the first duty of public officials.
Violations are crimes, criminals go to jail - period.
We are a nation of (out)laws.
Put 'Big Brother' in his own 'Big House' - NOW!
 

mary f. (180)
Saturday May 19, 2012, 4:40 am
a ray of hope thanks Betsy
 

Judy C. (106)
Saturday May 19, 2012, 6:22 am
Katherine Forrest, Chris Hedges, et.al. totally kick butt! Thanks for this, Betsy!
 

Betsy Bee (1058)
Saturday May 19, 2012, 9:17 am
Thank you, Mary, a ray of hope.

Thank you, Judy, totally kick butt!
 

Caitlin Mac Iver (103)
Saturday May 19, 2012, 5:38 pm
Thank goodness there's a glimmer of hope that this ruling will stand through whatever processes may be thrown at it next. This is good news that there's still hope that someone in a seat of influence has the guts to rule honestly and righteously! This is a section of the article that struck me as important:

"Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation."

So the Government would not provide such assurance to the likes of Chris Hedges, Daniel Ellsberg, and Noam Chomsky that their writings would not put them in jeopardy of indefinite detention if the Government so determined that it didn't like what they wrote. Just how much more do we need to hear than that our government wants the right to quash such respected people just on its own sayso and without due process. Unbelievable!

Thank goodness this ruling is on the right track. Let's make sure it continues by keeping on top of this with our protests and petitions. Thanks, Betsy Bee! Good choice!

I think Russell has a good point, too, on the next issue that ought to be addressed. I wonder if there are plans for adjudicating the question he brought up. I tried to give green stars to Betsy and John C. (who speaks for my feelings pretty darned well), but 'tis too soon.
 

Nancy Black (302)
Tuesday January 8, 2013, 11:45 am
Noted, tweeted, read, tweeted and shared. Wonder what the decision would have been if it had reached our conservative Supreme Court of the US? This goes to show the importance of a check and balance government. This type of balance is how we retain our freedom.


























 
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