Judge Katherine Forest has upheld her previous ban on the use of the National Defense Authorization Act (NDAA) provisions that allowed the president to summarily detain “terror suspects” in military custody for indefinite periods of time with no legal oversight.
In her initial ruling, Forest had accepted the arguments from a number of political dissidents, including Noam Chomsky and Daniel Ellsberg, that they had a reasonable fear that they could be disappeared off the street and held in military custody for constitutionally protected political speech. The Administration did not argue that they wouldn’t be detained, but insisted that since they hadn’t been detained yet they had no standing to contest the law.
The Administration responded by demanding that Forest reverse last month’s preliminary ruling, insisting that it was unreasonable for a court to restrict the president’s potential use of military detention “during wartime.” The Administration went on to say that it only planned to interpret the ruling as a specific ban on detaining the dissidents in the lawsuit, and not a broad ban on detaining dissidents as such.
In her ruling, Forest conceded that the lawsuit only applied to one portion of the NDAA military detentions law, and didn’t cover those directly involved in 9/11. On the other hand, she did insist that the ruling was not restricted to just keeping Ellsberg, et al. out of the brig, and that she was declaring the whole provision regarding summary detention outside of the 9/11 attackers unconstitutional.