Judge Raymond Lohier, a federal appeals judge, has issued a temporary stay of an injunction against section 1021 of the National Defense Authorization Act (NDAA) of 2012 which allows anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces” to be held indefinitely without a trial. This means that not only can accused terrorist be held indefinitely, but his or her supporters as well. The wording is a bit vague and does not clearly outline how to determine if a person “substantially supported” terrorist organizations. Several journalists and activists voiced their concern, stating that they were worried they could be held for simply doing their jobs – and a judge agreed. The injunction was issued by U.S. District Judge Katherine Forrest, who ruled that it violated the First and Fifth Amendments.
This issue may have been lost in the election year shuffle, but it is one of the most important rulings of the year. That portion of the NDAA clearly violates the basic right to due process.
When he signed the NDAA, President Obama stated that he did not want to hold people without trial. He also issued regulations to restrict the practice. Before the injunction was issued, the government’s lawyers said that they did not know if the indefinite detention provision was even being used. But if the way the Department of Justice scrambled to appeal Judge Forrest’s ruling and defend the law is any indication, the federal government was well aware that the provision was still there. The DOJ claimed that the injunction would do “irreparable harm” to the government.
If the DOJ feels confident in saying that stopping the enforcement of section 1021 of the NDAA would cause harm, it is obvious that the provision is being used, and that people are being held without trial. This isn’t just baffling, it’s downright frightening given how vague and open to interpretation the law is.
Chris Hedges, Noam Chomsky, Tangerine Bolen, and others sued the federal government over the law. They were concerned that the wording could cause journalists and activists to be held indefinitely if they worked with groups deemed to be associated with terrorists or if they could be accused of supporting and spreading a terrorist group’s message simply by printing a story or interview with an associated individual. Their concerns are valid: the law is not clear in defining exactly what substantial support means. This opens the door for innocent people to be held without a trial.
A government’s accusation that an individual is a terrorist or associating with terrorist groups does not prove guilt. Those accused are entitled to due process and should be given a trial. Section 1021 of the NDAA violates the basic concept of freedom. It is imperative that President Obama withdraw his support indefinite detention and instead support the basic rights of individuals.