By Adam Klasfeld
Courthouse News Service
MANHATTAN
(CN) - A federal judge granted a preliminary injunction late
Wednesday to block provisions of the 2012 National Defense
Authorization Act that would allow the military to indefinitely
detain anyone it accuses of knowingly or unknowingly supporting
terrorism.
Signed
by President Barack Obama on New Year's Eve, the 565-page NDAA
contains a short paragraph, in statute 1021, letting the military
detain anyone it suspects "substantially supported"
al-Qaida, the Taliban or "associated forces." The
indefinite detention would supposedly last until "the end of
hostilities."
In
a 68-page ruling blocking this statute, U.S. District Judge Katherine
Forrest agreed that the statute failed to "pass constitutional
muster" because its broad language could be used to quash
political dissent.
"There
is a strong public interest in protecting rights guaranteed by the
First Amendment," Forrest wrote. "There is also a strong
public interest in ensuring that due process rights guaranteed by the
Fifth Amendment are protected by ensuring that ordinary citizens are
able to understand the scope of conduct that could subject them to
indefinite military detention."
Weeks
after Obama signed the law, Pulitzer Prize-winning journalist Chris
Hedges filed a lawsuit against its so-called "Homeland
Battlefield" provisions.
Several
prominent activists, scholars and politicians subsequently joined the
suit, including Pentagon Papers whistle-blower Daniel Ellsberg;
Massachusetts Institute of Technology professor Noam Chomsky;
Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an
organizer from Occupy London; and Alexa O'Brien, an organizer for the
New York-based activist group U.S. Day of Rage.
They
call themselves the Freedom Seven.
In
a signing statement, Obama contended that the language in Section
1021 "breaks no new ground" and merely restates the 2001
Authorization to Use Military Force (AUMF).
Government
lawyers whistled the same tune to swat away the lawsuit, but they
failed to convince the judge that no changes had been made.
"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,"
Forrest wrote.
Scienter
refers to a person's knowledge that a law is being
violated.
"For the reasons set
forth below, this court finds that § 1021 is not merely an
'affirmation' of the AUMF," Forrest wrote. "To so hold
would be contrary to basic principles of legislative interpretation
that require Congressional enactments to be given independent
meaning. To find that § 1021 is merely an 'affirmation' of the AUMF
would require this court to find that § 1021 is a mere redundancy -
that is, that it has no independent meaning and adds absolutely
nothing to the government's enforcement powers."
Brushing
aside that argument, Judge Forrest took aim at government arguments
that the NDAA did not affect Hedges and his co-plaintiffs
personally.
"Here,
the uncontradicted testimony at the evidentiary hearing was that the
plaintiffs have in fact lost certain First Amendment freedoms as a
result of the enactment of § 1021," Forrest wrote.
At
a hearing in March, three of the plaintiffs testified that the
possibility of government repression under the NDAA made them
reconsider how they approached their journalism and activism.
Guardian
journalist Naomi Wolf read testimony from Jonsditir, who prepared a
statement saying that she would not visit the U.S. for fear of
detention.
Forrest alluded to this
testimony in her decision.
"Hedges,
Wargalla, and Jonsdottir have changed certain associational conduct,
and O'Brien and Jonsdittir have avoided certain expressive conduct,
because of their concerns about § 1021. Moreover, since plaintiffs
continue to have their associational and expressive conduct chilled,
there is both actual and continued threatened irreparable harm,"
she wrote.
"In addition, it is
certainly the case that if plaintiffs were detained as a result of
their conduct, they could be detained until the cessation of
hostilities - i.e., an indeterminate period of time," Forrest
continued. "Being subjected to the risk of such detention,
particularly in light of the Government's inability to represent that
plaintiffs' conduct does not fall with § 1021, must constitute a
threat of irreparable harm. The question then is: Is that harm
immediate? Since the Government will not say that the conduct does
not fall outside of §1021, one cannot predict immediacy one way or
the other. The penalty we know would be severe."
The
judge added that she did not make the decision lightly.
"This
court is acutely aware that preliminarily enjoining an act of
Congress must be done with great caution," she wrote."
"However,
it is the responsibility of our judicial system to protect the public
from acts of Congress which infringe upon constitutional rights. As
set forth above, this court has found that plaintiffs have shown a
likelihood of success on the merits regarding their constitutional
claim and it therefore has a responsibility to insure that the
public's constitutional rights are protected."
In
a phone conference, the plaintiffs' attorneys Bruce Afran and Carl
Mayer hailed what they called a "complete victory."
"America is more free today than it was yesterday due to the
courageous and righteous and very sound ruling by Judge Forrest,"
Mayer said. "I think this is a hugely significant development...
I think it's also a testament to the courage of the plaintiffs
here."
One
of those plaintiffs, O'Brien, was also jubilant in a separate
interview.
"I am extremely happy
right now, and what I'm most happy about it is that this ruling has
given me trust," O'Brien said, "Trust is the foundation of
just and stable governments, and this ruling gives me hope that we
can restore trust in the foundations of government."
While
the U.S. Attorney's office declined comment on the ruling, Mayer
urged the Obama administration to "drop it," and forego an
appeal.
"They have to come to
terms with the fact that it's wholly unconstitutional," Mayer
said.
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