In May, something extremely rare happened: a federal court applied the US constitution to impose some limits on the powers of the president. That happened when federal district court judge Katherine Forrest of the southern district of New York, an Obama appointee, preliminarily barred enforcement of the National Defense Authorization Act (NDAA), the statute enacted by Congress in December 2011 with broad bipartisan support and signed into law by President Obama (after he had threatened to veto it).
That 2011 law expressly grants the president the power to indefinitely detain in military custody not only accused terrorists, but also their supporters, all without charges or trial. It does so by empowering the president to indefinitely detain not only al-Qaida members, but also members of so-called "associated forces," as well as anyone found to "substantially support" such forces -- whatever those terms might mean. I wrote about that decision and the background to this case when it was issued.
What made Judge Forrest's ruling particularly remarkable is that the lawsuit was brought by eight journalists and activists, such as former New York Times reporter Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Birgitta Jonsdottir, who argued that their work, which involves interactions with accused terrorists, could subject them to indefinite detention under the law's broad and vague authority, even for US citizens on US soil. The court agreed, noting that the plaintiffs presented "evidence of concrete -- non-hypothetical -- ways in which the presence of the legislation has already impacted those expressive and associational activities." The court was particularly disturbed by the Obama DOJ's adamant refusal to say, in response to being asked multiple times, that the law could not be used to indefinitely detain the plaintiffs due to their journalistic and political activities.
Last week, Judge Forrest made her preliminary ruling permanent, issuing a 112-page decision explaining it. Noting that the plaintiffs "testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention," she emphasized how dangerous this new law is, given the extremely broad discretion it vests in the president to order people detained in military custody with no charges: