I mentioned a few days ago a hopeful sign in that a US District Court judge Katherine Forrest had ruled that the NDAA, an awful piece of legislation, was unconstitutional. Glenn Greenwald later wrote also hailing the ruling and examining it in more detail. He highlights the fact that the judge rejected all three of the Obama administration’s objections to the lawsuit challenging the constitutionality.
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.
Note that it was the standing issue that was used to overturn an earlier federal court ruling that the National Day of Prayer was unconstitutional.
The standing requirement makes sense in general. If people could bring lawsuits without having suffered any concrete injury, then we would be even more awash in litigation than we are now. But what constitutes a concrete injury has to be judged differently when the issue involves relative intangibles such constitutionally protected freedoms as opposed to (say) defective products.
It is significant that the judge in the NDAA case threw out the ‘standing’ dodge, rejecting the administration claim that the people bringing the case do not have the right to sue since they have not (as yet) suffered any injury the law. Of course, the government then also invokes national security to argue that they should not be forced to reveal if you are being targeted or not. It is a perfect Catch-22: You can’t complain because you cannot show that the law targets you and we, the only ones who know who is being targeted, are not going to tell you if you are or not.
The government will certainly appeal. Unfortunately, the higher courts have been far too sympathetic to the government whenever it claims national security for its abominable actions.