The Washington Post has a dangerously misguided editorial strongly defending the Executive's right to indefinitely detain even U.S. citizens under the Section 1021(b)(2) of the National Defense Authorization Act (NDAA) and criticizing Judge Katharine Forrest's recent opinion in Hedges v. Obama, which permanently enjoined Section 1021(b)(2)'s enforcement. WaPo mischaracterizes Section 1021(b)(2) of the NDAA as a well-reasoned compromise appropriately respectful of individual rights when in fact the NDAA grants the Executive branch broad, unchecked power to indefinitely detain Americans.

For those not following Hedges v. Obama, the lawsuit is a challenge to section 1021(b)(2) of the NDAA brought by

a group of writers, journalists, and activists whose work requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

WaPo accuses Judge Forrest of "judicial activism" - a stale accusation thrown out against any number of judges who have stood up to executive power. (Former Supreme Court Justice Earl Warren weathered constant accusations of "judicial activism" as his court consistently ruled for school desegregation).

Contrary to WaPo's cries of "judicial activism," Forrest was acting exactly as judges should act - as safeguards of individual constitutional rights. As the New York Times editorial board said:

The judge's willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority.

Forrest's 112-page opinion is thorough, well-reasoned, and brave.

Some key quotes from Forrest's must-read opinion:

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.

When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.

Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.

First Amendment rights are guaranteed by the Constitution and cannot be legislated away.

The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.

Shortly after Forrest issued her opinion, the Obama administration requested a stay, a request Forrest sharply rebuked. The Obama administration has pledged to file an emergency stay request with the Second Circuit Court of Appeals.

Judge Forrest deserves credit for confronting and correctly deciding the constitutional question presented by indefinite detention of Americans. Indefinite detention without due process is antithetical to a democracy, no matter what spin the Executive or WaPo editorial board puts on it.

This post originally appeared on Radack's Daily Kos blog.

Jesselyn Radack is National Security & Human Rights Director for the Governent Accountability Project, the nation's leading whistleblower protection and advocacy organization.

Reports have surfaced about a new book on the Bin Laden raid by an anonymous Navy Seal who, according to the book's publisher, "was one of the first men through the door on the third floor of the terrorist leader’s hideout and was present at his death."

This latest book (titled No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden and due out next month) did not go through the pre-publication review process. From WaPo:

Officials indicated Wednesday that neither the author nor the publisher had cleared the book’s contents with the Defense Department or the CIA, a step ordinarily required by former service members or spies seeking to write about classified operations.

The Obama administration ought to look in the mirror before expressing too much anger about the book considering the administration is the biggest "leaker" of all, especially when it comes to the Bin Laden raid, a point not lost on WaPo:

It could also raise legal and political issues for the Obama administration, which has carried out an aggressive crackdown on leaks even while it has also been accused of offering access to journalists and moviemakers to exploit the success of the bin Laden operation.

The pre-publication review processes, particularly at intelligence agencies, are notoriously favorable to pro-government publications and unfavorable toward critical writings. Worse, even authors who go through the pre-publication review process – like my clients John Kiriakou and Peter Van Buren – are not protected from retaliation for their books.

CIA whistleblower John Kiriakou submitted his 2009 book, The Reluctant Spy: My Secret Life in the CIA's War on Terror, for pre-publication review and worked with the CIA for years negotiating to get his book approved. Now Kiriakou has been indicted under the Espionage Act - the sixth person to be indicted in the Obama administration's record-braking war on whistleblowers - and is facing decades in prison. One of the charges against him despite his cooperation with the pre-publication review process: lying to the CIA's pre-publication review board. More specifically, Kiriakou is charged with trying to trick the CIA's board, but being unsuccessful – meaning CIA approved the book in its entirety. The charge is based upon an e-mail Kiriakou allegedly sent not to the CIA's board, but to his co-author. (If you find it baffling that the Justice Department has used this as the basis for a felony charge, you are not alone.)

President Jimmy Carter penned a must-read op-ed in today's New York Times, sharply criticizing the current President.  Carter and Obama share more than having held the same office, they are also both Nobel Peace Prize winners.

Here's what one Nobel Peace Prize winner has to say about the policies of another:

The United States is abandoning its role as the global champion of human rights.

Citing the Obama administration's assassination-by-drone program, the National Defense Authorization Act's (NDAA) indefinite preventive detention provisions, increased authorities for government warrantless domestic spying on innocent Americans, and the still-open-for-business and holding 169 prisoners Guantanamo Bay facility, Carter eloquently describes the consequences of the U.S.'s moving backward on human rights.

At a time when popular revolutions are sweeping the globe, the United States should be strengthening, not weakening, basic rules of law and principles of justice enumerated in the Universal Declaration of Human Rights. But instead of making the world safer, America’s violation of international human rights abets our enemies and alienates our friends.

Particularly astute are Carter's descriptions of the drone assassination program, something some Kossacks have actively supported. (See some of the comments to my prior diaries on the program here, here, and here.) Carter was particularly incensed by the number of innocent lives "sacrificed" in drone attacks:

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. . . . We don’t know how many hundreds of innocent civilians have been killed in these attacks, each one approved by the highest authorities in Washington. This would have been unthinkable in previous times.

Prosecute Jose Rodriguez for violating the anti-torture statute (18 U.S.C. § 2340A).

He did it.  Enjoyed doing it. And would do it again.

Rodriguez admitted on 60 Minutes that he organized, ordered, and destroyed evidence of "enhanced interrogation techniques." Yesterday's 60 Minutes featured CIA rendition-supporter/torture proponent/videotape destroyer Jose Rodriguez, giving him a platform to pimp his new book, Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, which discusses CIA black sites and touts torture. (It should not be lost on anyone that Simon & Schuster gave Rodriguez a book contract, 60 Minutes gave Rodriguez a main-stream-media platform, and CBS owns both Simon & Schuster and 60 Minutes.)

Despite Rodriguez admitting his crimes on national television, the only person the Obama administration has criminally prosecuted in connection with the Bush-era torture program is John Kiriakou, who refused to participate in torture and blew the whistle on waterboarding.

How can we be a nation of laws when a former government official can proudly boast about his criminal behavior on national television without consequence?

Rodriguez's callous descriptions of torture do not make his behavior any less criminal:

We made some al Qaeda terrorists with American blood on their hands uncomfortable for a few days.

Rodriguez adopts the Nixonian "logic:" "if the President approves it, it's not illegal." This shouldn't save him from prosecution. "No one is above the law" – at least that is what Attorney General Holder told the Senate under oath during his confirmation hearings. Moreover, despite Rodriguez's stubborn re-naming waterboarding an "enhanced interrogation technique," there is no credible debate about whether waterboarding is torture. We can thank Attorney General Holder for that as well, as he unequivocally agreed under oath that "waterboarding is torture."