Sunday, September 16, 2012

Injunction against enforcement of National Defense Authorization Act (NDAA) of 2012, S. 1021(b)(2)

Congress passes updates to the NDAA every year to authorize military readiness and action for national defense.  The bogus war on terror has led legislators to lose their senses and direction in a sea of absurd political correctness and onerous aggression against US Citizens.  Their behavior amounts to little more than a Chicken Little pogrom that lumps Islamic terrorists together with "Sovereign Citizens" - somewhat informed Americans who feel fed up with the touchy-feely relationship  with American wallets and rights that the US Government has evolved over the past 30 years.

In short, Congress has failed to cognite as Sunday Funnies character Pogo did:  "We has found the enemy, and he is US."

One provision has caused alarm among bloggers like myself and news writers.  It makes them subject to arrest and detention for making government functionaries "nervous," for lack of a better term.  See § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011), below.


Subtitle D—Counterterrorism


(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).


These words have us quaking in our boots:

"including any person who has committed a belligerent act"

Apparently they made a New York judge quake too when a group of writers sued Obama over them.  See Hedges v. Obama, No. 12 Civ.331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012).  The judge issued a temporary injunction against enforcement of 1021(b)(2).  Early this week USDC Judge Katherine Forrest made the injunction permanent.  Here is the salient text:



On May 16, 2012, this Court preliminarily enjoined enforcement of § 1021(b) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011)(“the NDAA”). See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting preliminary injunction) (the “May 16 Opinion”). On June 6, 2012, in response to a footnote contained in the Government’s motion for reconsideration suggesting an unduly narrow interpretation of that ruling, this Court issued a summary order stating that the injunction was intended to–and did apply to–any and all enforcement of § 1021(b)(2), not simply to plaintiffs in this lawsuit.

On August 7, 2012, the Court held oral argument on the request for a permanent injunction (the “August hearing”). At the commencement of that argument, the Court confirmed that the parties agreed that the evidentiary record developed at the March 29, 2012, preliminary injunction hearing (the “March hearing”) would constitute the trial record for this matter. Hr’g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt. See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565, at *1 (S.D.N.Y. June 6, 2012) (summary order). On June 8, 2012, the parties agreed that neither side would seek to add to the evidentiary record presented in support of the preliminary injunction and that they would proceed directly to a hearing on plaintiffs’ request for a permanent injunction. (See Order (June 8, 2012) (Dkt. No. 43) at 1.) Accordingly, the parties submitted additional legal memoranda but no additional factual materials.

On August 7, 2012, the Court held oral argument on the request for a permanent injunction (the “August hearing”). At the commencement of that argument, the Court confirmed that the parties agreed that the evidentiary record developed at the March 29, 2012, preliminary injunction hearing (the “March hearing”) would constitute the trial record for this matter. Hr’g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt. No. 59) (“Tr. II”) at 3. The Court bases its findings of fact on that record.

For the reasons set forth below, this Court grants plaintiffs’ motion and permanently enjoins enforcement of § 1021(b)(2) of the NDAA (referred to herein as “§ 1021(b)(2)”).

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, and have as their sole remedy a habeas petition adjudicated by a single decision-maker (a judge versus a jury), by a "preponderance of the evidence" standard. That scenario dispenses with a number of guaranteed rights.

Accordingly, the respective meanings of the terms at issue are unknown; the scope of § 1021(b)(2) is therefore vague; but the penalty of running afoul of it is severe. Section 1021(b)(2) is, therefore, impermissibly vague under the Fifth Amendment.

Section § 1021(b)(2) violates rights guaranteed by the First, Fifth, and Fourteenth Amendments of the United States Constitution. The Court turns finally to the question of appropriate relief. Plaintiffs have sought only injunctive relief.


The balance of the hardships also clearly weighs in plaintiffs' favor. The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes (referred to above) that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF—a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government's arsenal. Most importantly, since Congress may pass no law abridging rights guaranteed by the First Amendment, enjoining enforcement of a statute that does just that cannot deprive Congress or the executive branch of that which they have no right to have.
The last element relates to the weighing of the public interest: does the public have a greater interest in preservation of its First Amendment and due process rights that are infringed by § 1021(b)(2), or in having the statute potentially available for use by law enforcement authorities? Here too, the fact that, according to the Government, § 1021(b)(2) adds nothing new to their authority, is decisive. Enjoining the statute will therefore not endanger the public. The Government did not put forward any evidence at trial that it needed the statute for law enforcement efforts; in contrast, plaintiffs did present evidence that First Amendment rights have already been harmed and will be harmed by the prospect of § 1021(b)(2) being enforced. The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.
Accordingly, this Court finds that plaintiffs have met the requirements for issuance of permanent injunctive relief.


I find it amazing, almost amusing, that the DOJ even showed up for either the temporary or the permanent injunction hearing.  Why would they waste our money trying to defend such an untenable, blatant effort to stomp the Firs Amendment into the dust?  Congress are idiots for allowing such language in a public law, the DOJ are idiots for arguing in favor of it, and the FBI are idiots for trying to enforce it.

I have not forgotten the friendly visit from an FBI Agent a few months ago over my articles about Gerps (Government Perpetrators of Crimes), particularly the one in which I suggested Americans should take the Gerps out one by one.  The agent said he thought others might construe that as marching orders to start assassinating Gerps.  Well the problem boils down to this. Maybe he and his associates considered my writing those words a "belligerent act" within the meaning of the NDAA for 2012.  If Gerps operate in Government and the public and FBI know about it, but the FBI has not taken them under arrest, and the DOJ won't prosecute them, and the courts won't convict them, then who remains to do the dirty, nasty job of excising the Gerp?  Let's realize:  no Gerp has a "right" to work for Government.

I wrote a follow up article explaining that a person ought to give the Gerp a good talking to over his Gerpitude.  But let's get real here.  Would you feel safe talking to a Gerp about his Gerpitude when you know he can ring the sheriff, FBI, DEA, CID, CIA, FEMA, HLS, or some other other alphabet soup entity, and have its operatives launch a pogrom against you and your family for your implied threat to expose or excise him?

And what about the IDIOT legislators who voted for that NDAA for 2012 public law with that terrible First Amendment bashing provision in it?  Why should ANY of them remain in office another DAY?  Had the news writers not sued, the FBI would aggressively enforce 1021 (b)(2).  Maybe that enforcement explains why the FBI agent came to visit me, a meek and mousy, harmless blogger.  Thank you, Ye Idiots in Congress.

And what about the overwrought FBI agent who has seen so much crime that everybody seems criminal to him, even his kids?  If he would terrorize them, why wouldn't he terrorize you, in the name of the law, just because you voice complaints about Gerps and encourage others to take decisive action to excise them?

The danger here lies in the fact that most Americans, including me, don't read important laws like the NDAA, Patriot Act, and Affordable Health Care Act, so we cannot nip Government crookedness in the bud. We idiotically trust our feckless legislators to operate without our micromanagement. All of us need to call up from hidden recesses within ourselves the patriotism to demand simpler laws, fewer laws, and clearer laws, demand that the legislators read them and attest to finding them constitutional, on pain of summary excision, before voting for them, and to read the proposed laws ourselves BEFORE the Congress passes them.  Why should a group of writers have to pay the cost of litigating such messes.

Maybe in time we will pressure Congress for laws that put fangs in the loyalty oaths that all public employees must swear prior to taking employment with government.   Right now no law punishes violation of those oaths.  We need laws that do.  And many laws oppress the public.  For example, Government operatives may lie to the public with impunity, but they may charge the public with misdemeanor or felony perjury for lying to them. 

Whatever happened to the First Amendment?


Bob Hurt
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Clearwater, FL 33766-4712
(727) 669-5511
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