Written by Joe Wolverton, II

On Monday lawyers representing the Obama administration filed an appeal challenging an injunction issued by a federal judge in May barring the enforcement of the indefinite detention provision of the National Defense Authorization Act (NDAA).

This was likely a premature response to a ruling expected on a hearing held Tuesday to make the temporary injunction permanent.

Oral arguments on a request filed by plaintiffs to permanently enjoin the federal government from enforcing the indefinite detention provisions of the NDAA  were heard Tuesday during four hours of questions and answers, but at press time the court had issued no ruling.

Curiously, not a single outlet of the mainstream media reported this important event.

On May 16 Judge Katherine Forrest (left photo, above) of the U.S. District Court for the Southern District of New York issued a preliminary injunction preventing the Obama administration from exercising the indefinite detention authority granted the President by Section 1021 of the NDAA.

In the 68-page opinion accompanying the temporary injunction order, Judge Forrest disagreed with the federal government’s argument that the relevant provisions of the NDAA merely restate existing law. She wrote: “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].”

Pointing out that were Section 1021 and the AUMF identical then the former would be redundant, Judge Forrest held:

Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.

Scienter is defined as “a state of mind often required to hold a person legally accountable for his or her acts.” In other words, the indefinite detention provisions of the NDAA are too vague and aren’t specific enough to permit a person to know whether he or she has violated the law.

While admitting that preventing the federal government from enforcing a congressional act is a sober matter that must be attended to with caution, Judge Forrest writes that “it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.”

Continue reading: http://www.thenewamerican.com/usnews/item/12390-obama-admin-files-a...