Yesterday, the very Honorable Katherine B. Forrest, of the Southern District of New York, continued her commendable stand against the legalization of indefinite detention included in the NDAA of 2011, specifically section 1021(b)(2). (Complete recap of the NDAA here) Judge Forrest had previously issued an injunction of the indefinite detention section of the Act based on the 1st Amendment and Due Process Clause of the 5th Amendment. However, the Obama Administration, in a continuance of it’s disregard for the order of law and separation of powers, took the brazen stand that this injunction only applied to the named plaintiffs, notably the venerable Noam Chomsky, flaunting it’s notion that it will refrain from imprisoning a few journalists and academics indefinitely, without trial but that it is free to do the same to every other person on earth. Judge Forrest explained that the Obama Administration’s had relied on inappropriate and inapt reasoning to reach these conclusions.
The learned Judge Forrest was forced to provide Barack Obama, Leon Panneta, John McCain et. al, a primer in Constitutional law:
“The Supreme Court has made it clear that when a plaintiff claims that a law is facially vague and violates his or her Constitutional right to due process, that “party seeks to vindicate not only his [or her] own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing.” City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A similar standard governs facial First Amendment challenges to overly broad statutes. See, Sec’y of State of Md. v. Joseph H. Munson CQL, 467 U.S. 947, 958 (1984) (“Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society–to prevent the statute from chilling the First Amendment rights of other parties not before the Court.”) full opinion
In her opinion Judge Forrest gave an insight into why she is taking such an important stand in this case, “the public interest in ensuring that ordinary citizens understand the scope of such a statute justifies its breadth.” Obviously, Judge Forrest understands the extreme danger that is latent in the NDAA of 2011 and this has emboldened her to slap down the very administration that put her on the bench of the S.D.N.Y. barely 9 months ago. Bravo, Judge Forrest.