Federal judge strikes down controversial National Defense Authorization Act provision

A federal judge in New York struck down a controversial provision in the National Defense Authorization Act of 2012 that would allow the U.S. military to indefinitely detain, without charge or trial, American citizens suspected of supporting Al Qaeda or groups that are deemed as hostile against the United States. 

Citing the “chilling impact on First Amendment rights,” U.S. District Court Judge Katherine B. Forrest granted a preliminary injunction prohibiting the government from enforcing Section 1021 of the 2012 NDAA.

Section 1021 authorizes “the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons,” including American citizens “who was 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.” (When President Barack Obama signed the NDAA last December, he issued a statement clarifying that his administration would not authorize “the indefinite military detention without trial of American citizens.”)

The term “substantially supported”, Forrest found, was too vague and could have been applied to journalists and political activists whose works involved interviewing and associating with individuals and groups that have been deemed as hostile against the United States.

“There is 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.”

The lawsuit was brought by a group of prominent journalists, scholars, and political activists, including Noam Chomsky, Daniel Ellsberg, and Christopher Hedges.

Noting the 6-year detention of Sami Al- Hajj, a Sudanese Al Jazeera journalist, as an “enemy combatant” at Guantanamo, the group alleged that Section 1021 has forced them to significantly scale back their research, news gathering, public speaking, and publishing activities for fear of being subjected to indefinite military detention if they are wrongly perceived as “supporting” anti-American groups through their work associations.

This, they argued, violated their First Amendment right to free speech and association and their Fifth Amendment right to due process.

For example, Hedges, a Pulitzer Prize-winning journalist, testified that he has had to change his news gathering and public speaking engagements since the passage of NDAA’s Section 1021.

Hedges has written extensively on the Middle East, including covering the War on Terrorism. Covering wars for 20 years, Hedges has reported on at least 17 groups that the State Department deemed as terrorist organizations, which includes Hamas, the Palestinian Liberation Front, PKA, and Al Qaeda.

But since the Section 1021 was enacted, Hedges feared that his interactions with members of Al Qaeda and the Taliban at public speaking events in Europe could be perceived as “substantially supporting” anti-American terrorist groups, putting him at risk of being placed in indefinite detention.

“When people begin to speak about carrying out acts that are clearly illegal or embracing acts that are violent or talking about terrorism, my reaction so far is to get out as fast as I can because I think under the NDAA [i.e., § 1021], at least as I see it, there is a possibility that those people looking at my activities from the outside would not make a distinction between myself and the person who embraced that kind of activity,” Hedges told the court.

In her ruling, Forrest noted that the government has repeatedly refused to clarify whether or not Section 1021 could be applied to Hedge’s news gathering activities.

“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 S. 1021 did not and would not apply, if indeed it did or would not apply. That would have eliminated the standing of these plaintiffs and their claims of irreparable harm,” Forrest wrote. “In fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by S. 1021.”


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4 Comments on “Federal judge strikes down controversial National Defense Authorization Act provision

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