Federal Judge Clarifies: My Injunction Against NDAA Indefinite Detention Applies To ALL Americans
June 8, 2012 • 7:45AM

As previously reported, Federal District Judge Katherine Forrest, in Manhattan on May 16, 2012 issued a preliminary injunction in Hedges v. Obama, against Government enforcement of a section of the National Defense Authorization Act (NDAA). That section of the NDAA permits detention of any individuals who are viewed as "supporting" or "associated with" terrorists, for the duration of the present, ongoing military hostilities.

On May 25, the Government filed a motion for reconsideration, i.e., asking the judge to change her decision because of important relevant facts or law she had not considered in her ruling. In the normal course of arguing a motion, the plaintiffs are due to file a response to that motion tomorrow, and the Government gets to reply to the plaintiff's arguments a week later.

However, the Government's May 25 brief about their motion stated at the outset, that the Government deems the judge's preliminary injunction order to apply only to the individual plaintiffs in the case, and not more generally, and that it only enjoined enforcement under one sub-section of the NDAA.

On June 6, Judge Forrest issued a new opinion addressing the Government's expressed views about the scope of her order. First, she stated what was implicit in her May 16 ruling, that it indeed only applies to the NDAA sub-section specified by the plaintiffs' Complaint and in the Government's reconsideration brief, the one which permits detention of the poorly-defined "supporting" or "associated with" persons. She then made clear that her injunction applies to NDAA detentions under that sub-section, of all Americans, not just the case's plaintiffs. The new ruling explains that "... court decisions, such as this Court's May 16 Order, enjoining enforcement of overly broad or vague statutes may apply generally — they need not be limited only to the parties to the action." After an extensive discussion of case law contrary to the Government's view, Judge Forrest concluded (we here omit the opinion's case citations):

"In sum, although it is certainly true as a general proposition that 'injunctive relief should be narrowly tailored to fit specific legal violations,' and 'should be no more burdensome to the defendant than necessary to provide complete relief to plaintiffs,' the injunction in this action is intentionally expansive because 'persons whose expression is constitutionally protected [and not a party to the instant litigation] may well refrain from exercising their rights for fear of criminal sanctions susceptible of application to protected expression.' This order should eliminate any doubt as to the May 16 Order's scope."