One of the most troubling aspects of the so-called ‘war on terror’ has been the unwillingness of the federal judiciary to rein in the excesses of the administration in its assault on civil rights and constitutional protections.
Fortunately there are a few rare exceptions and US District Court Judge Kathleen Forrest is one of them. She ruled in favor of the plaintiffs who challenged the odious NDAA (National Defense Authorization Act) provision that allows the US government to indefinitely detain without trial anyone, even US citizens, by making the entire world part of the ‘battlefield’ in the war on terror. This means that anyone can be picked up anywhere and declared to be an enemy combatant and thus stripped of all their rights. She ruled that this was unconstitutional. (See here and here for previous posts on this topic.)
Of course, the administration will appeal her ruling to the higher courts, but in a footnote to a request to the judge to reconsider her ruling, the administration exhibited once again how it feels it has the right to make novel, unilateral, and self-serving interpretations of the law that overturn long standing practice.
As part of that request, the government said in a footnote that it was interpreting her injunction narrowly as applying only to the handful of people specifically named as plaintiffs in the lawsuit, including Chris Hedges, a journalist who interacts with terrorists as part of his reporting work, and several prominent supporters of WikiLeaks. [My italics-MS]
So the government says that a law that was ruled to be unconstitutional still applies to everyone other than those who actually brought the suit. In the eyes of the government, each one of us, if we wish to avoid the risk of being arbitrarily detained indefinitely without trial, have to file a lawsuit against the government and also win it.
But Judge Forrest was having none of this sophistry and was emphatic in her rejection of the government’s extraordinary assertion.
But on Wednesday, Judge Forrest said that her order still stood — and that, contrary to the government’s narrow interpretation of it, her injunction applied broadly and not just to the named plaintiffs.
“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote. “This order should eliminate any doubt as to the May 16 order’s scope.”
Good for her. I wish more judges were like her.