Activists Win Preliminary Injunction Blocking Enforcement of NDAA’s Military Detention Provision

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Seven journalists and activists who sued President Barack Obama earlier this year over the controversial indefinite detention provision in the 2012 National Defense Authorization Act (NDAA) were handed a surprise victory Wednesday by a federal court judge who issued a preliminary injunction blocking its enforcement.

Pulitzer Prize-winning war correspondent Chris Hedges, the lead plaintiff in the case, filed a lawsuit against the commander in chief a few weeks after he signed the NDAA into law on New Year’s Eve. Hedges asserted that section 1021 of the bill, which authorized indefinite military detention for “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,” left him, as a working journalist, vulnerable to indefinite detention because neither Congress nor the president defined the terms “substantial support,” “associated forces” or “directly supported.” [Emphasis added.]

US District Court Judge for the Southern District of New York Katherine B. Forrest agreed. In a 68-page opinion, she wrote Hedges’ and his co-plaintiffs fears that section 1021 could impact their First Amendment rights are “chilling,” “reasonable” and “real.”

“This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution,” wrote Forrest, who worked in the Justice Department’s antitrust division as deputy assistant attorney general before Obama nominated her for a federal judgeship last year. “However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights … In the face of what could be indeterminate military detention, due process requires more.”

The other plaintiffs in the case are Pentagon Papers whistleblower Daniel Ellsberg; Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir, Kai Wargalla, an Occupy London organizer, journalist, activist and author Naomi Wolf and Alexa O’Brien, an independent journalist who founded US Day of Rage, a group that coordinated a day of protests on Wall Street last September against the use of corporate money in US elections. The group dubbed themselves the Freedom Seven.

Civil libertarians condemned the legislation and harshly criticized the president for signing a bill that suspends due process into law. Obama attached a signing statement to the bill vowing that his administration would “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.”

Obama’s signing statement related to section 1021 said the provision did not provide him with new executive powers. Rather, he noted that Congress had already granted the president the ability to indefinitely detain individuals without affording them the right to due process when it passed the Authorization to Use Military Force (AUMF) following the 9/11 attacks . Still, the president added that his administration would also not allow for the “indefinite military detention without trial of American citizens,” a point the government highlighted in a motion responding to the lawsuit in March.

But Hedges maintained that, as a reporter who has traveled the world and interviewed people the US government has branded as international terrorists, he could still be detained under section 1021 of the NDAA because of the ambiguity over “substantial support.” Hedges testified in March that since the NDAA was signed into law he has “removed himself from certain situations” due to the uncertainty he now faces as a journalist.

“What would this bill have meant if it had been in place when I and other Americans traveled in the 1980s with armed units of the Sandinistas in Nicaragua or the Farabundo Marti National Liberation Front guerrillas in El Salvador?” Hedges wrote. “What would it have meant for those of us who were with the southern insurgents during the civil war in Yemen or the rebels in the southern Sudan?”

That’s a question Forrest wondered about as well. When oral arguments in the case took place in March, she asked Justice Department attorney Benjamin Torrance whether Hedges, while acting in the capacity as a journalist, could be detained for contacting al-Qaeda or the Taliban?

Torrance, Forrest wrote in her opinion, “was unwilling to commit [at the injunction hearing] that such conduct does not fall within” section 1021’s “ambit.”

When Forrest pressed him to define what it means to “substantially support associated forces” Torrance said he was not “in a position to give specific examples,” not even “one specific example.”

Co-plaintiff O’Brien, the independent journalist and founder of US Day of Rage, testified in March that she had held back publication of at least two reports related to al-Qaeda and the Taliban because she feared she could be subject to military detention for conversing with individuals who may fall under the definition of “associated forces.”

“The government was unwilling to state at the hearing that O’Brien would not be detained under [section 1021] for her expressive conduct in regard to those articles,” Forrest wrote in her opinion, which cited Truthout and documents we obtained under the Freedom of Information Act that showed the Department of Homeland Security was monitoring O’Brien’s US Day of Rage in the run-up to last September’s protests.

The government’s arguments in the case were that the plaintiffs did not have legal standing to sue and they were making a big deal out of section 1021, which is simply an “affirmation” of the powers contained in the AUMF. Moreover, the government contended, since the plaintiffs “have not to date been subject to detention under the AUMF there is no reasonable basis for them to fear detention under” section 1021 of the NDAA.

But Forrest said she was not “convinced that [section 1021] is simply a ‘reaffirmation’ of the AUMF.”

The judge wrote in her opinion that the government’s argument ignores the “obvious differences” between the AUMF and sections 1021 of the NDAA.

“This court assumes, as it must, that Congress acted intentionally when crafting the differences as between the two statutes,” her opinion states. The AUMF “is tied directly and only to those involved in the events of 9/11” whereas section 1021 “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.”

Forrest said Congress could easily address the plaintiffs’ concerns by adding “definitional language” to section 1021 pertaining to “substantial support,” and “associated forces.”

Congress may go a step further. An amendment to the 2013 NDAA introduced by Reps. Adam Smith (D-Washington) and Justin Amash (R-Michigan) would eliminate the provision in the bill that authorizes indefinite military detention without trial for those captured in the US.

O’Brien told Truthout Wednesday she’s elated over Forrest’s decision, but “it’s not over yet.”

“No nation on earth ever found just or stable governance in vague laws with secret interpretations,” O’Brien said. “No executive can ever claim independence or strength when their office is owned by entrenched and corrupt factions, who use financial power to change laws to make themselves richer and silence dissent. Government’s independence derives from its dependence on the people alone. Those are our principles.”

A Justice Department spokesperson was not available late Wednesday to comment on Forrest’s ruling. However, it’s certain the government will appeal her decision.

Writing in the national security blog, Lawfare, Steve Vladeck, a law professor at American University College of Law, said, “the government could have made this case go away and it didn’t.”

“As perplexing as the injunction entered by Judge Forrest is, I’m even more perplexed by why the government allowed things to come to such a pass,” Vladeck wrote. “Certainly, the government would not need to forswear the ability to detain anyone pursuant to expressive and ‘associational’ conduct to merely suggest that it would not seek to detain these plaintiffs …Could it be that the government doesn’t want to open the door to such ex ante litigation of detainability? Could it be that the government actually does believe that individuals engaged in conduct like that of these plaintiffs might actually be subject to military detention? Could it be a simple (but costly) tactical error by government counsel? Whatever the reason for why the government won’t take a position, one can hardly blame Judge Forrest (or the plaintiffs, for that matter) for thinking that the government’s refusal to disavow such authority bolsters the plaintiffs’ standing …”

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