NDAA updates

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On May 16th, a federal judge in the Southern District of New York temporarily enjoined the United States government from enforcing the military detention provisions of the 2012 NDAA. Congress included the controversial detention provisions in last year’s defense authorization bill as a way to codify Bush-era case law that flowed from the Supreme Court’s Hamdi opinion, and from the related Jose Padilla litigation.

The 2012 NDAA includes language that purports to limit the scope of the NDAA’s detention provisions to existing military detention authorities. (These authorities – it should be noted – are far from settled, despite what Congress has indicated in the NDAA.)

Plaintiffs in the case (who included journalist Chris Hedges and professor Noam Chompsky) contended that the NDAA’s ill-defined detention powers were broad enough to chill their First Amendment rights.

According to Judge Forrest’s opinion, the reluctance of government lawyers to articulate any limits on the scope of the state’s powers under the NDAA proved critical to her decision.

Earlier this year, PRM submitted a FOIA request to the Justice Department’s Office of Legal Counsel, seeking legal opinions that described the OLC’s views on the powers authorized by the 2012 NDAA. In March, we received a letter denying our request in its entirety, based largely upon FOIA exemption five. We have since submitted a revised request that seeks similar information – but only information contained in opinions that constitute “final determinations of policy.” Such documents are far more difficult to withhold under exemption five.

PRM also recently recorded a conversation about the NDAA with former FBI agent Coleen Rowley and Peter Erlinder of William Mitchell College of Law. The video will be available on our site soon.