NDAA Update

[Oniya]

I found this to be encouraging news.  The Southern District court of NY has handed down a ruling that enjoins enforcement of section 1021 of the NDAA (i.e., the Indefinite Detention clause).  I could be wrong, but I think that the SDNY covers New York City, adding a bit of extra significance with the continuing activity there.

http://sdnyblog.com/wp-content/uploads/2012/05/12-Civ.-00331-2012.05.16-Opinion-Granting-PI.pdf

From the end portion of the page 66 to 68:

There is a strong public interest in protecting rights guaranteed by the First Amendment. [citation snipped - me] (“The constitutional guarantee of free speech serves significant societal interests . . . . By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information.”)  There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention. [citation snipped - me]

Weighed against these public interests is the strong public interest in upholding acts of Congress and thereby maintaining the appropriate separation of powers; there is also a clear public interest which counsels for cautious use of judicial power to enjoin an act of Congress, and the public interest in ensuring protection from terroristic acts--and that law enforcement has the tools necessary to be as effective as possible in that regard.

The Government has assisted the Court in its deliberations with respect to the risks associated with the various interests on each side of the ledger. In light of the Government’s contention that § 1021 does nothing new, that it goes no further than the AUMF, the Court can only assume that the Government believes that preliminarily enjoining enforcement of § 1021 will not expose the public to any increased risk and that § 1021 does not add anything new to law enforcement’s tools. [Footnote:  The Court disagrees with this scope argument, as set forth above, but refers to it as an indication of the expected impact on the Government.]

This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.  As set forth above, this Court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public's constitutional rights are protected.

Accordingly, this Court finds that the public interest is best served by the issuance of the preliminary relief recited herein.