nationalsecuritylaw Hedges v. Obama (S.D.N.Y. May 17, 2012) (enjoining enforcement of NDAA section 1021)

May 17, 2012

The opinion is posted here. Short version: a group of activists, journalists, and others argued that section 1021 of the NDAA FY’12 (which purports to clarify the scope of detention authority) violates the 1st and 5th Amendments as applied to them. They have now obtained a preliminary injunction on those grounds, supported by an opinion that determines that (beware: I’m really generalizing here for brevity’s sake)

(i) they have standing (in that they already are experiencing a chilling effect from the prospect of detention, and that the government at argument declined to say that they were not in fact potentially subject to detention),

(ii) the NDAA is not simply coextensive with the 9/18/01 AUMF (on the theory that the AUMF applies only to persons linked to 9/11 whereas the NDAA encompasses “associated forces”), and

(iii) the AUMF’s “support” and “associated forces” elements are too vague and too likely to encompass protected activities.