The question being argued in federal court in Lower Manhattan yesterday boiled down to this: Is a law authorizing the indefinite military detention of American citizens with only the barest recourse to civil courts constitutional?
The lawsuit against the Obama administration was filed in January by seven journalists and activists, including Chris Hedges, Noam Chomsky, and Daniel Ellsberg. The suit challenges sections of the 2012 National Defense Authorization Act, which authorize the armed forces to detain
“A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
The act would allow citizens to be detained in overseas military facilities like Guantanamo “until the end of hostilities.”
The problem, the plaintiffs argue, is that this language is so vague as to possibly cover all kinds of activity protected by the First Amendment. What is “substantial support?” What are “associated forces?”
For Hedges, a journalist who has spent much of his career meeting and talking with groups and individuals considered terrorists by the U.S. government, the language was chilling.
In his complaint, Hedges argued that the law violated First Amendment protections of speech and association, constitutional guarantees for citizens’ access to a civil court system, and Fifth-Amendment due process guarantees.
Judge Katherine Forrest agreed. In a 68-page May ruling, Forrest granted a preliminary injunction blocking the challenged provisions of the act.
“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in granting the temporary injunction. “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.”
But the temporary injunction of the law was just the first round in the case. Hedges and his fellow plaintiffs were asking the court for a permanent injunction. In a four-hour hearing yesterday, lawyers for the plaintiffs and for the government reargued their cases before Judge Forrest, who interrupted frequently with her own questions and opinions.
Assistant U.S. Attorney Benjamin Torrance repeated his argument that the law signed by Obama on New Year’s Eve doesn’t actually do anything new, but rather reiterates powers already conferred by the Authorization for the Use of Military Force passed by Congress shortly after 9/11.
That argument didn’t persuade Forrest, and she told him so. But it also posed further complications for the administration’s case. If the challenged NDAA provisions really didn’t change anything, why was the government ready to go to the mat to defend them? Perhaps more troubling, Torrance admitted that the government doesn’t specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court’s injunction.
Carl Mayer, one of the plaintiff’s attorneys, said later that he and his colleagues were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction.
Torrance judge Forrest that for her court to overturn congressional legislation on national security matters would be to overstep the role of the judiciary, but Forrest wasn’t so sure. She cited a passage by Alexander Hamilton inFederalist Papers Number 78, “which I’m quite enamored with:”
“Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
Another of the administration’s arguments is that the government hasn’t so far used the law to detain journalists like Hedges, so fear that it might is unreasonable.
David Remes, one of the plaintiff’s lawyers, said that wasn’t the point. “The danger posed by the sword of Damocles is not that it falls, but that it can fall,” he said.
Forrest also appeared unconvinced, noting that a national election could soon install a new administration with a new set of intentions and interpretations. She quoted Chief Justice John Roberts’s ruling in a 2010 case: “The First Amendment protects against the government,” Roberts wrote. “It does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.”
Torrance said the law still allows room for judicial oversight, because people detained under the act can file habeas corpus petitions.
“How long does a petition take?” Forrest asked.
Torrance said he didn’t have the numbers in front of him.
“Several years, right?” Forrest prompted.
Torrance allowed that might be true, but noted that in most habeas petitions in the post-9/11 era, courts have found the detention legitimate.
Forrest closed the hearing with a promise that she had not yet made her mind up, Hedges and his lawyers said her earlier ruling on the temporary injunction and her close questioning of Torrance gave them cause for optimism.
Perhaps sensing which way the wind is blowing with Judge Forrest, the Obama administration has already filed an appeal in higher court.
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