In a rare move, a federal judge has struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial — including U.S. citizens. Judge Katherine Forrest of the Southern District of New York ruled the indefinite detention provision of the National Defense Authorization Act likely violates the First and Fifth Amendments of U.S. citizens. We speak with Chris Hedges, a journalist who filed the suit challenging the NDAA along with six others, and Bruce Afran, the group’s attorney. “This is another window into … the steady assault against civil liberties,” Hedges says. “What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law.”
Amy Goodman: A federal judge Wednesday struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial, including U.S. citizens. The ruling came in a lawsuit challenging the National Defense Authorization Act, or NDAA, filed by a group of journalists, scholars and political activists including Noam Chomsky, Daniel Ellsberg, Chris Hedges, Naomi Wolf and Cornel West [correction: Wolf and West are not plaintiffs but in the process of becoming plaintiffs]. Judge Katherine Forrest of the Southern District of New York struck down the indefinite detention provision, saying it likely violates the First and Fifth Amendments of U.S. citizens. The judge rejected the Obama administration’s argument that the NDAA merely reaffirmed an existing law recognizing the military’s right to perform certain routine duties.
In late March, Cornel West was among the plaintiffs who appeared in federal court to give testimony.
Cornel West: I am full of joy to be a plaintiff in this particular case. Why? Because we’re at a turning point in the history of this nation. We need to stand for freedom. There’s an escalating authoritarianism and even a creeping fascism. Freedom is precious. If we don’t fight for it, you lose it.
Amy Goodman: The judge’s ruling comes as lawmakers in the House are debating a slew of controversial amendments to the NDAA. A bipartisan group of Congress members are expected to offer an amendment to the NDAA challenging its indefinite military detention provision.
For more, we’re joined now by one of the plaintiffs in the lawsuit, Chris Hedges, senior fellow at the Nation Institute, former foreign correspondent for the New York Times, part of a team of reporters who won the Pulitzer Prize in 2002 for the paper’s coverage of global terror. He’s the author of a number of books, includingDeath of the Liberal Class and The World As It Is: Dispatches on the Myth of Human Progress. And we’re joined by Chris Hedges’ attorney Bruce Afran, who filed the litigation on his behalf.
We welcome you both to Democracy Now! Chris Hedges, were you surprised? And what is the significance of this judge’s ruling?
Chris Hedges: Well, it, in essence, invalidates that provision, Section 1021, that permits the U.S. government to use the military to hold American citizens, strip them of due process, and detain them in military facilities, including our offshore penal colonies, until, in the language of that section, the end of hostilities. So, it’s monumental, because she threw the whole thing out. She invalidated the law. It was quite a courageous decision—I think, clearly, a correct one. But we have watched the federal courts, in particular, file opinion after opinion as to sort of why they can’t implement the law—rather, why they can or why they should. And so, this becomes, yes, a really important decision.
Amy Goodman: Chris, why did you, as a journalist, sue President Obama?
Chris Hedges: Because I, as a foreign correspondent, had had direct contact with—when Bruce and Carl Mayer and I went through the list, the State Department terrorism list—17 organizations that are on that list, from al-Qaeda to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section to exempt journalists. The language is amorphous: anybody who “substantially supports” — whatever that means — not only the Taliban or al-Qaeda, but what they term “associated forces.” And so, the decision to file the lawsuit was made by Bruce and Carl, who came to me because they thought that I would be a particularly credible plaintiff, and it turns out, I think, and the judge acknowledged that that was the case.
Amy Goodman: Bruce Afran, talk about the significance of the extent to which she struck down this statute.
Bruce Afran: Well, it’s quite incredible, in a sense, because it’s rare that statutes are struck down completely. Judge Forrest struck down the entire provision of the NDAA governing indefinite detention of civilians and U.S. citizens. She said this provision is overbroad. She said it clearly embraces speech, even if it doesn’t intend to. And she criticized the government severely, because it refused to acknowledge in court that First Amendment activities would not bring someone into a state of indefinite detention. And five times, Judge Forrest asked the U.S. attorney, “Will you agree that First Amendment activities will not bring someone under the scope of this law?” And the government five times said, “We can’t answer that question.”
Amy Goodman: OK. So, explain what you mean by First Amendment activities.
Bruce Afran: Well, you know, the First Amendment itself protects all speech activities. And speech is absolutely protected, minus very limited categories. So here we have Chris Hedges, we have other plaintiffs, Alexa O’Brien, we have Tangerine Bolen, who are active as advocates and writers. And their conduct is clearly expressive. So that’s what we mean by First Amendment activities. The speaking about other organizations’ activities—not endorsing terrorist groups, but informing people of what they believe—all of this is First Amendment activity. And the government refused to say this will not bring someone within the scope of the statute. And so, the judge reacted very harshly to this.
Amy Goodman: First and Fifth Amendments, she said.
Bruce Afran: That’s right. Well, the Fifth Amendment deals with due process. You can’t lose your liberty, you can’t be detained, unless there’s some clear statute that gives you notice of the wrongful conduct. And that can never happen for protected conduct. So the First Amendment and due process under the Fifth Amendment both work together.
Amy Goodman: Now, who is this judge? She was appointed by President Obama.
Bruce Afran: She was appointed by President Obama. She was a judge in the field of communications—a lawyer in the field of communications law. She’s clearly cognizant of free speech issues, and she took this case to heart. She really accepted our premises, and she was very, very critical of the government’s position, which simply refused to acknowledge the validity of expressive conduct as something that protects a person from incarceration.
Amy Goodman: Earlier this year, Republican presidential candidate Mitt Romney was booed at a Republican debate when he defended Obama’s approval of theNDAA bill.
Kelly Evans: Governor Romney, as president, would you have signed the National Defense Act, as written?
Mitt Romney: Yes, I would have. And I do believe that it’s appropriate to have in our nation the capacity to detain people who are threats to this country, who are members of al-Qaeda. Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country, we have a right to take those people and put them in jail.
Amy Goodman: So that’s Republican presidential candidate Mitt Romney. And, of course, President Obama signed this bill. So, Chris Hedges, talk about the response even behind the scenes that you heard, the booing, that came from probably supporters of several of the presidential candidates.
Chris Hedges: Well, at least two. Rick Santorum and Ron Paul were quite outspoken against the National Defense Authorization Act or this section, Section 1021. And, you know, what’s interesting is, when you look at the polls, there’s almost no support for this piece of legislation at all. I think it’s about 70 percent oppose it. And yet, of course, once again, it passes with bipartisan support. The bill was sponsored by Carl Levin, a Democrat, and John McCain, a Republican. When Dianne Feinstein tried to insert language into the bill that would have exempted U.S. citizens from this process, it was rejected by both the Democratic Party and the Obama White House. And so, I think this is another window into not only the sort of steady assault against civil liberties, whether that’s the use of the Espionage Act, the FISA Amendment Act, the Authorization to Use Military Force Act itself, the PATRIOT Act. And what makes what happened yesterday so monumental is that, finally, we have a federal judge who stands up for the rule of law.
Amy Goodman: Now, President Obama signed it, but he was opposed by key members of his administration—for example, Defense Secretary Leon Panetta—
Chris Hedges: Right.
Amy Goodman: —FBI Director Robert Mueller, Director of National Intelligence James Clapper.
Chris Hedges: That’s what’s so interesting. None of the Pentagon, the FBI, as you—Mueller and everyone else, as you pointed out—none of them supported the bill, even to the extent where Mueller and others were testifying before Congress that it would make their work more difficult. And yet it passes anyway. And it is a kind of—I think it’s a kind of mystery to the rest of us as to what are the forces that—when you have the security establishment publicly opposing it, what are the forces that are putting it in place? And I can only suppose that what they’re doing is setting up a kind of legal mechanism to criminalize any kind of dissent. And Bruce can speak to this a little more. But in the course of the trial, with Alexa O’Brien, US Day of Rage, that WikiLeaks dump of five million emails of the public security firm Stratfor, we saw in those email correspondence an attempt to link US Day of Rage with al-Qaeda. Once they link you with a terrorist group, then these draconian forms of control can be used against legitimate forms of protest, and particularly the Occupy movement.
Amy Goodman: Bruce Afran, a conservative group joined you in filing this lawsuit.
Bruce Afran: A coalition of conservative groups—Downsize DC, the 10th Amendment Foundation, others. And really, there’s a place where liberals and conservatives meet, on these very issues. Conservatives are just as opposed to this as liberals, which is what Chris is saying. And it’s so incredible that the President, you know, and the Democratic Party are deaf to the reality of what is an American value.
Amy Goodman: So, what happens now? I mean, this was struck down by Judge Forrest. Where does it go now?
Bruce Afran: Well, technically, there could be a trial on a full issue of a permanent injunction. That very rarely ever happens. Usually, the government will appeal. They have 60 days to appeal. We don’t know what will happen. We, Carl Mayer and I, my co-counsel, are calling on the government to issue a permanent—agree to a permanent injunction, put this permanently, you know, under a rule that it is unconstitutional and can’t be enforced. Right now it is illegal. The judge has put a hold on it. And we’re calling on the President to agree to make it a permanent injunction.
Amy Goodman: Chris Hedges, where do you go from here?
Chris Hedges: I think that, you know, this is a never-ending battle. The security and surveillance state has already boxed us in, those of us who don’t conform to the official narrative. And this was a tremendous victory, but there are still important issues to be fought. The Espionage Act is a good one, the Authorization to Use Military Force Act itself, the PATRIOT Act, the refusal to restore habeas corpus, of course the FISA Amendment Act, the warrantless wiretapping. There are still other issues that those of us who care about an open democracy have to go out and fight for.
Amy Goodman: I want to thank you both for being with us, Chris Hedges, senior fellow at the Nation Institute, former correspondent for the New York Times; Bruce Afran, lawyer representing Chris Hedges and the other plaintiffs in this lawsuit challenging the National Defense Authorization Act. Judge Forrest has struck down the statute that would allow for the indefinite detention of anyone anywhere considered a terrorism suspect, without charge, without trial, including U.S. citizens.
This is Democracy Now! When we come back, Nobel Prize-winning economist Paul Krugman. He says, stop the depression now. Stay with us.
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