May 17, 2012
A federal district court in New York has ruled that the federal government cannot enforce the domestic military detention provisions of the National Defense Authorization Act (NDAA) of 2012 because it unconstitutionally infringes on the rights of journalists and activists to associate with people the government might consider terrorists—exposing them to arrest and indefinite detention without a trial.
“This court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution,” wrote U.S. District Judge Katherine B. Forrest, in a 68-page decision handed down on Wednesday. “However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.”
The judicial suspension of the most controversial provision in the NDAA was a major and unexpected civil liberties victory. The government must now return to court and argue anew for the contested provisions, or Congress must pass new legislation if it wants the military to arrest and hold terrorism suspects on U.S. soil without trial, including U.S. citizens.
Plaintiff and Pulitzer Prize-winning journalist Chris Hedges called the ruling "courageous" in one report
, but said that Judge Forrest "did what she was supposed to do" because "the law is so clearly unconstitutional."
“It’s an extremely frightening step backwards for American democracy,” Hedges told
Democracy Now. “As someone who’s spent 20 years overseas and has lived in countries where the military has that kind of power, I have friends who have disappeared into these military gulags. We have unleashed something that I think is truly terrifying.”
Congress passed the 565-page NDAA in December amid much criticism from the civil libertarians over the domestic military detention provisions. The White House and top administration officials lobbied against the domestic military sections, saying they were unnecessary and unworkable. But Congress ignored those protests and passed the bill. When President Obama signed it into law, he issued a statement saying he would not enforce that part of the law without offering detained U.S. citizens access to American courts.
That pledge did not satisfy civil libertarians, activists and journalists covering the U.S.’s global war on terror. Many in Congress had called Wikileaks a "terrorist" group. Ex-private Bradley Manning’s harsh military incarceration and charges for the Wikileaks disclosures, and government efforts to extradite Wikileaks founder Julian Assange to the U.S. to face charges, were seen as showing the government’s truer intentions—in contrast to Obama’s signing statement. The NDAA’s vague wording essentially said that anyone thought by the government to be colluding with terror suspects could be arrested and detained by the U.S. military.
Two weeks after NDAA became law, seven journalists, writers and anti-war activists sued, seeking to overturn NDAA’s military detention section as unconstitutional because it impinged on their freedom of association under the First Amendment. They also claimed their due process rights were violated, because the law’s ambiguous wording threatened their free speech activities.
The government’s lawyers treated the lawsuit with scorn and barely mounted a defense, expecting it to be thrown out on the simplest of legal grounds—that the plaintiffs lacked standing to sue because they were unharmed. They claimed the law’s domestic detention provisions were “nothing new,” and didn’t even call any witnesses in its defense.
Judge Forrest’s ruling turned the government's response on its head. Since it claimed that NDAA’s contested parts did nothing new, she said that stopping them from taking effect as the trial went ahead would not impact any anti-terror actions.
“They [the plaintiffs] have demonstrated a likelihood of success on the merits with respect to their constitutional challenges; they have put forward specific evidence of actual and threatened irreparable harm; the balance of the equities and the public interest favors issuance of preliminary relief (particularly, but not only, in light of the fact that the Government’s entire position is premised on the assertion that §1021 [the military detention section] does nothing new--that it simply reaffirms the AUMF [Congress’s 2001 Authorization to Use Military Force]; in which case, preliminarily enjoining enforcement should not remove any enforcement tools from those the Government currently assumes are within its arsenal).”
The big-picture issue in the case was how far the federal government can go to suspend the Constitution in wartime. The NDAA’s contested provisions treat the terror threat similar to the first year of the 9/11 attacks, which was more than a decade ago.
During the early stages of responding to the attacks on 9/11, the Congress gave the Bush administration wide authority to wage war on Al Queda terrorists. Part of the administration’s response was to create extra-judicial procedures, in which accused terrorists and their suspected supporters would be placed in military custody, avoiding interaction with civilian U.S. courts. Essentially, the administration declared that the entire world was a military battlefield, including U.S. territory.
In the years following the 9/11 attacks, the Congress, Supreme Court and White House have pushed back and forth with defining how the war on terror was to be conducted and what rights detainees had overseas and on U.S. shores. NDAA resurrected the ambiguities of the early war-on-terror responses and codified the president’s authority to arrest and to indefinitely hold anyone suspected of being a terrorist in military custody, including American citizens. The bill’s language came from GOP hardliners in Congress. Obama threatened a veto, but signed it anyway.
Hedges, a former New York Times foreign war correspondent and a Pulitzer Prize-winner, testified that some of the people he has interviewed in tracing terrorist plots have ended up in U.S. military custody. He had reported on 17 groups on the U.S. government’s terrorist list, he told the court, and feared that under NDAA he could be held even if he was a public speaker in Europe at an event where Taliban or Al Queda members attended. Thus, he charged NDAA restrained his freedom of association, chilled his press freedoms and violated his due process rights.
Another plaintiff, Alexa O’Brien, told the court she had written 50 articles about war on terror detainees at Guantanamo Bay and was the founder of a Web site called U.S. Day of Rage. She testified that she had been followed and contacted by people working for the federal government who sought to link her site to fundamentalist Islamic groups. Some had left threatening messages to intimidate her, she told the court. These communications forced her to stop working as a journalist, she said, coupled with NDAA’s vague wording that made someone seen as “supporting” terrorists susceptible to military arrest and detention.
Another plaintiff, Kai Wargalla, is an activist who lives in London and conducts online forums related to Wikileaks. Because several U.S. politicians have called Wikileaks a terror group, she did not know if she would be considered a “covered person” under the law and susceptible to arrest. Another plaintiff associated with Wikileaks was Brigitta Jonsdottir, a member of parliament in Iceland, who expressed similar fears in her prepared testimony from abroad.
Judge Forrest said the government was uncooperative in court and its stonewalling helped the plaintiff’s case.
“The Government therefore knew well before the hearing the types of expressive and associational conduct in which each plaintiff would testify he/she engaged, and the conduct he/she asserted had already been or would imminently be chilled. In short, plaintiffs’ positions should have come as no surprise to the Government.
“Nevertheless, when confronted with what the Court assumed was certainly among the critical questions likely to be posed at the hearing--i.e., whether plaintiffs’ activities fell within § 1021’s scope, the Government responded, “I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything.”
The government could have presented an argument that would have resulted in the court throwing out the case, she said. But instead it made the court believe that the journalists were national security threats and could be arrested.
“It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm.
“Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.”
The ruling first declared that the defendants who testified did have standing to sue the federal government.
“Each of the four plaintiffs who presented evidence in connection with this motion therefore have specific, concrete past actions which they fear may already have brought them within the ambit of § 1021, to which the Government has not represented--and will not represent--otherwise. Each have also already experienced a chilling of specific associational and expressive conduct. On the record before the Court on this motion, those plaintiffs have shown actual, as well as imminent and particularized, invasion of legally-protected interests.”
The plaintiffs then sought a preliminary injunction to stop enforcement of the NDAA’s indefinite detention provisions. Judge Forrest said that was not to be taken lightly, but because the case involved protected First Amendment activities that it was called for in this case.
“This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.”
Further, the court held that the NDAA’s wording was so vague that it violated constitutional due process protections.
“Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.”
Judge Forrest also said that Obama’s signing statement was insufficient against potential constitutional abuses.
“Rather, the Signing Statement simply assures the public that the Obama 'Administration will not authorize the indefinite military detention without trial of American citizens' and 'will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.'”
Thus, in light of the government’s arrogant defense, the court concluded it was appropriate to enjoin the detention provisions from taking effect until there was a further court hearing or until Congress acted to amend the law.
Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).