12 Civ. 00331

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Today, Judge Forrest permanently enjoined enforcement of a portion of the National Defense Authorization Act, a federal law President Obama signed on December 31, 2011, authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” Judge Forrest had issued a preliminary injunction in May, and the ruling today, which is 112 pages, follows similar reasoning. She was particularly forceful in rejecting the Government’s argument that the 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”:
Continue Reading Judge Forrest Issues Permanent Injunction Against Detention Law

As we reported last month, the government moved Judge Forrest to reconsider her order preliminarily enjoining enforcement of a federal law authorizing the government to detain U.S. citizens who provide “substantial support” for Al-Qaeda, the Taliban or their “associated forces.” In a footnote to its motion for reconsideration, the government stated its view as to the scope of the injunction — it applied only to the specific plaintiffs in the case, and did not enjoin enforcement of the law generally. At a telephonic hearing on June 1, Judge Forrest indicated that she did not agree with the government’s reading of the order, and today she issued a written order so as to “leave no doubt as to that issue.” Contrary to the government’s contention, Judge Forrest held that, because the plaintiffs’ challenge was to a law that was facially vague and violated their constitutional rights, the government is enjoined from enforcing the law against anyone.
Continue Reading Judge Forrest “Leaves No Doubt” that Government Is Enjoined from Enforcing Indefinite Detention Law Against Anyone

This evening, the government moved to reconsider Judge Forrest’s order preliminarily enjoining the government from enforcing a federal law authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” As summarized in a prior post, Judge Forrest’s ruling was heavily influenced by the fact that the government would not agree at the injunction hearing that the conduct of the plaintiffs, a group of journalists and civic activists, would fall outside the law. The government’s motion’s first explains that, as a general matter, the conduct the plaintiffs described in their affidavits would not subject them to detention:

To eliminate any doubt, the government wants to be as clear as possible . . . . As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.

But the government states that it should not be required to give more specific assurances than that:
Continue Reading Government Moves Judge Forrest to Reconsider Injunction Against Detention Authority

In an opinion issued this afternoon, Judge Forrest preliminarily enjoined enforcement of a portion of the National Defense Authorization Act, a federal law President Obama signed on December 31, 2011, authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” The plaintiffs are a group of journalists who claim their activities have been chilled by the broad and vague scope of the detention authority contained in § 1021 of the law. Judge Forrest first rejected the government’s argument that the plaintiffs lacked standing:
Continue Reading Judge Forrest Enjoins Enforcement of Federal Law Authorizing Indefinite Detention of U.S. Citizens Who Provide “Substantial Support” to Terrorist Groups