Federal Judge Strikes Down ‘Indefinite Detention’ Provision of NDAA
An anti-terrorism law was struck down Wednesday by a federal judge who said she saw legitimate fears in claims by journalists, scholars and political activists that they could face indefinite detention for exercising First Amendment rights.
U.S. District Judge Katherine Forrest in Manhattan ruled that the law, passed as part of the National Defense Authorization Act for 2012, was unconstitutional. She said the government has softened its position toward those who filed suit challenging the law, but she said the “shifting view” could not erase the threat of indefinite military detention. She urged Congress to make the law more specific or consider whether it is needed at all.
“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest wrote. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”
In May, the judge temporarily struck down the law subjecting to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She heard additional arguments last month before issuing the final ruling, likely to be appealed to the 2nd U.S. Circuit Court of Appeals.
While calling the law “unconstitutionally overbroad,” Forrest said the government can use another law to indefinitely detain people connected to the Sept. 11, 2001, terrorist attacks or others picked up on the field of battle. She said the government at some point without additional congressional authorization began interpreting its detention authority more broadly.
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Back in 1986, Justice Antonin Scalia was excoriated as a hate-monger and extreme doomsayer when he wrote the dissent on Lawrence et al. v. Texas, a case which basically overturned sodomy laws on the grounds sexual behavior could not be legislated by appealing to traditional morality. Scalia wrote:
On her 
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