Posted by on May 17, 2012 in Blog

Katherine Forrest, an Obama-appointed judge from New York’s southern district, delivered a brave ruling yesterday on the odious provisions of the National Defense Authorization Act dealing with the indefinite detention of American citizens. Forrest struck down provisions 1021 and 1022 of the NDAA on the basis that journalists, scholars, and political activists could face the prospect of indefinite detention for exercising their First Amendment rights.

The lawsuit was unique in that the plaintiffs — who included Chris Hedges, Noam Chomsky, and Dan Ellsberg — have never been indefinitely detained. Instead, the plaintiffs alleged that they are already suffering considerable injury from the fear that they could be indefinitely detained under section 1021 of the NDAA. The plaintiffs argued that that through this fear the NDAA violates “their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The Court rejected each of the Department of Justice’s three main arguments against the plaintiffs, which were as follows:

(1) none of the plaintiffs has yet been indefinitely detained, therefore they lack “standing” to challenge the statute

(2) the lack of imminent enforcement against them renders injunctive relief unnecessary

(3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides

In response to the first two arguments from the DOJ, Judge Forrest declared the fears of journalists in particular “real and reasonable.” She cited testimony by Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed Al Qaeda members and reported on many groups named on a list prepared by the State Department of known terrorist organizations. He testified that the law has led him to consider altering speeches where members of Al Qaeda or the Taliban might be present.

Judge Forrest wrote in her ruling that the NDAA has a "chilling impact on First Amendment rights." Her ruling argues that the law gives the government authority to detain individuals who engage in political speech with views that "may be extreme and unpopular as measured against views of an average individual.” Forrest pointed out that such speech “is precisely what the First Amendment protects."  While Forrest’s ruling focused on the threat faced by journalists and public figures, ordinary citizens are also at risk of being jailed or detained simply for espousing unpopular political views.

Perhaps the court’s most important rejection of the day was of the DOJ’s argument that the NDAA allows nothing more than the 2001 AUMF, and thus did not expand the Government’s power of indefinite detention. In her ruling, Forrest challenged the DOJ’s reasoning, citing the NDAA’s lack of specificity about individuals and groups subject to its detention provisions and the mechanism by which one can be considered guilty of supporting a terrorist group, whereas the AUMF is quite specific in both who it applies to and what activities constitute support.

Forrest’s ruling is only a preliminary injunction that will likely be appealed and could potentially be reversed. There are also still means by which the US government can detain individuals indefinitely, as well as means by which free speech content can be criminalized (such as in the case of Tarek Mehanna). Judge Forrest’s enjoining of an act of Congress is nonetheless a brave and significant act, and an important step in reversing the historic rollback of our civil liberties codified in the NDAA.

 This ruling comes at an opportune time to have a significant impact on the Hill. House Armed Services ranking member Adam Smith (D-WA) and Rep. Justin Amash (R-MI) have an amendment that goes to vote today that could also repeal sections 1021 and 1022 of the NDAA.

Amash immediately reacted to the New York court’s ruling, sending a “Dear Colleague” letter to House members Wednesday evening, in which he wrote: “If our constituents haven’t sent a clear enough message, tonight’s ruling surely does: Congress must act now to guarantee the constitutional right to a charge and a trial.” Contact your member of Congress today and tell him/her to oppose indefinite detention and support the Smith-Amash amendment to the NDAA.

comments powered by Disqus