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Cutting Through the Hysteria, a Rational Look at the NDAA Ruling
It helps to read a ruling before drawing conclusions about its contents. It helps to recognize the validity of the ruling for the reasons contained in it rather than resorting to headlines that misrepresent the ruling.
The recent ruling by Judge Katherine Forrest in which she enjoined section 1021 of this year’s NDAA is, without question, a positive development.
The ruling means the court has temporarily stopped the government from enforcing section 1021 until a final ruling in this case involving writers and activists who challenged the constitutionality of section 1021 on first amendment and fifth amendment grounds.
In addition to blocking enforcement of section 1021 temporarily, the court ruled:
You may have read such stories that suggest the court ruled on the constitutionality of section 1021. The reality is reflected in the passage above. The court concluded that the plaintiffs will probably succeed in a facial challenge that section 1021 violates the first amendment. Showing a likelihood of success is very different from a ruling that section 1021 is unconstitutional.
Based on the House’s vote of 238-182 defeating an amendment to repeal this odious section in the NDAA bill for 2013, the best chance we have of a real solution to the problems inherent in Section 1021 is with the courts. However, there is an additional problem.
The NDAA is an annual bill, which means the previous version ceases to exist on a certain date. It is replaced with a new version of the bill.
Each time there is a new NDAA it means wondering if the President will sign it, if there will be a similar signing statement (or in fact a more elaborate one to reflect this ruling) and what future presidents would do with this situation. That is why the court commented on the lack of assurance of future government actions in its comments on the President’s signing statement (see below). Assuming the President signs a new NDAA with a section 1021 in it, the facial challenge on any grounds matters. Technically, the court ruling “expires” with the 2012 law. It means, that this would have to be re-litigated with the new law. It is pretty certain to succeed, if this case succeeds on a facial challenge. This happened with laws attempting to ban flag burning, albeit at the Supreme Court level.
It also means we need to cleaning house in Congress, by replacing people who seem to like attacking our constitutional rights repeatedly, regardless of what the courts say.
One of the problems in section 1021 is what the court called vague terminology. In plain English, it was badly written to the point that the average person would be unable to understand what actions are compliant with the law and what actions are not. This vagueness was serious enough for the court to conclude on page 50 of the ruling that a facial challenge on first amendment grounds is appropriate.
“A facial challenge is appropriate here. That does not, however, mean that plaintiffs have necessarily shown a likelihood of success on the merits as to that claim–the Court separately analyzes that below.”
Ultimately, the court concluded a facial challenge on first amendment grounds was likely to succeed. From page 52 of the ruling.
This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
The court did comment on how vague terminology could also compromise our right to due process, as reflected on pages 54-55 or the ruling.
Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.
Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban.”
However, that doesn’t mean that we can conclude a facial challenge on fifth amendment grounds would succeed, as reflected in the following from the ruling (footnote 19, page 47)
Outside the First Amendment context, a facial challenge can generally only prevail when a plaintiff establishes that no set of circumstances exist under which the law would be valid. Washington State Grange, 552 U.S. at 449. In other words, the Court is quite mindful of the nearly infinite bar that applies to facial challenges when something other than the First Amendment is at issue.
Ultimately, the court was silent as to whether a facial challenge on fifth amendment grounds has a likelihood of success for the very fact that it concluded a facial challenge would succeed on first amendment grounds on page 57 of the ruling.
“Because this Court has also found that that plaintiffs have shown a likelihood of success on the merits of their facial challenge under the First Amendment, this Court need not and does not reach the question of whether a facial challenge (versus an as applied challenge) would succeed on the Fifth Amendment claim at this stage.”
This is important to understand. The court concluded that a facial challenge would likely succeed on first amendment grounds. It did note that vague terminology raises serious fifth amendment issues. However, the court did not rule either way on the question of whether a facial challenge on fifth amendment grounds would succeed. As noted earlier, a facial challenge means the provision would be unconstitutional in all applications making it void. However, without a finding that a facial challenge would succeed, we are left to speculate as to whether section 1021 could be constitutional in certain applications.
This is where the court’s comments on the President’s signing statement in a footnote on page 64 offers some insight.
The assertion that President Obama’s Signing Statement erases any reasonable fear of imminent harm does not take into account precisely on what that Signing Statement focuses. It does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute. Rather, the Signing Statement simply assures the public that the Obama “Administration will not authorize the indefinite military detention without trial of American citizens” and “will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.” Singing Statement, 2011 DAILY COMP. PRES. DOC. 978 at 1, 2. Thus, the question only goes to the constitutionality of the detention authorized by § 1021–not the type of conduct that may fall within § 1021. Accordingly, the Signing Statement does not eliminate the reasonable fear of future government harm that is likely to occur–i.e., the irreparable injury at issue here. (my bold for emphasis)
Sarah Jones explained signing statements,their purpose and parameters very well:
A signing statement is something of a public pronouncement a president might make about a bill they are signing into law. They have been used to clarify their positions or elaborate dissent. In modern times, they are used to direct executive agencies to interpret the law according to the President’s interpretation of the Constitution.
The court made three important points about the signing statement issued by the President when he signed the NDAA for 2012.
Ironically, Jason Easley and Sarah Jones reach a similar conclusion on this point in their analysis of the Signing statement, while others faulted the President for issuing a signing statement at all.
“In his signing statement attached to the NDAA, President Obama made it clear that the language about detentions does not apply to US citizens.
In the second paragraph of his NDAA signing statement, Obama stated, “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”
One concern is similar to the restraints the court faced if it attempted to rectify the problems in section 1021 with a limiting construction. A limiting construction means a court can address vague terminology by adopting its own definitions to make it clear enough that a person with average intelligence would understand it.
Second, it runs afoul of the separation of powers between the Executive and Legislative branches at it imports a construction provided by the Executive, and not Congress. Doing so would strip Congress of its power to legislate–and to give statutes the meaning it intends.” (my bold for emphasis)
As noted by Sarah Jones in early January this year.
The President may not circumvent, disobey, or ignore any enacted Congressional Law. The President is granted three options: sign it into law, veto it in its entirety and return to the body responsible, or do nothing.
It is very possible that the Administration didn’t anticipate that section 1021 would adversely affect our first amendment rights.
If individuals like Glenn Greenwald, who welcome any opportunity to attack the president, saw that section 1021 was a threat to the first amendment, they would have been as vocal about it as they were about indefinite detention. Since Greenwald and others didn’t appear to notice a potential compromise to the first amendment, it seems reasonable to assume that the President didn’t notice that possibility either.
In the final analysis, the signing statement did fall short.
There were some critics who faulted the President for signing the NDAA and issuing a signing statement. They overlooked certain political realities.
Doing nothing was not an option since the military would have gone unfunded. If the president exercised the veto, the constitutional issues would remain a reality since an override was likely as noted in Jason Easley and Sarah Jones’ analysis.
Luckily the President got the language changed, because even if he chose to veto it, it would be for naught, as the Senate had 83 votes for it and it takes only 67 to override a Presidential veto.
In the House the first NDAA vote was 322-96. The final vote was 283-136 with 43 Republicans voting no. If Obama would have vetoed and 35 of those 43 Republicans flipped to yes, the House would have had the votes to override a presidential veto.
At the time, the primary concern was section 1021’s ability to subject Americans indefinite detention. That is why the President issued the signing statement. While it fell short on other serious and valid issues, including a violation of the first amendment, the court recognized that, at least under the Obama Administration, the signing statement did address the constitutional issue of indefinite detention.
One limitation of a signing statement is the absence of an assurance that future Administrations will recognize or concern themselves with the issues addressed by the Administration that issued the signing statement. That is always the case, but definitely a matter of primary concern in this case. With this bill, there is the added limit that the signing statement is only applicable to the 2012 version of the NDAA. There is no guarantee that a signing statement would accompany all subsequent versions of the NDAA.
The only real assurance we have that section 1021 will not be used as a vehicle to detain Americans indefinitely is with a court ruling that would render section 1021 void.
Since Congress seems determined to preserve Section 1021, despite the Court’s ruling, we are left with hoping that the courts will see reason, where Congress can’t or won’t.