DOJ asks federal judge to reconsider NDAA ruling
The Justice Department has asked a federal judge to reconsider a recent ruling prohibiting the government from enforcing Section 1021 of the National Defense Authorization Act of 2012.
Last month, U.S. District Court Judge Katherine B. Forrest struck down Section 1021, citing the controversial provision’s “chilling impact on First Amendment rights.”
Section 1021 authorizes the President to order the indefinite military detention, without charge or trial, of American citizens suspected of supporting Al Qaeda or organizations that are deemed hostile against the United States.
Concerned that the provision’s vague language could be applied to news-gathering or similar associational activities, a group of prominent journalists, scholars, and political activists sought – and were granted – a court injunction to stop the government from enforcing Section 1021.
The federal court decision was widely praised by free speech and civil liberty advocates. However, their triumph may be short-lived given that the Justice Department, in its reconsideration motion, claimed the injunction applies only to the “named plaintiffs” in Hedges v. Obama.
The plaintiffs – including Noam Chomsky, Daniel Ellsberg, and Christopher Hedges – blamed Section 1021 for forcing them to significantly scale back their research, news gathering, public speaking, and publishing activities in fear of being subjected to indefinite military detention if they are wrongly perceived as “supporting” anti-American groups through their work associations.
While the Justice Department maintained that “the claimed fear of detention here based solely on the independent journalistic activities or independent public advocacy alleged by plaintiffs is without any factual or legal foundation”, the government repeatedly refused to state in court whether the work-related activities described by the plaintiffs – including news gathering and interviews with members of terrorist groups such as Al Qaeda – would be covered under Section 1021.
For example, when asked whether Hedges’ news gathering and public speaking engagements would fall under Section 1021, the government attorney responded: “I’m not prepared to address that question here.”
“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 Section 1021,” Forrest concluded.
But the Justice Department argued that it was “inappropriate to shift the burden to the government to disprove a plaintiff ’s speculative fear of future harm.”
“The government cannot be expected to make assurances regarding individuals who file a suit in a context such as this, based solely upon their allegations and without knowledge of other facts that might be relevant to determining whether the individuals fall within the scope of the detention authority affirmed by section 1021,” according to the reconsideration motion. “But consistent with law-of-war principles, constitutional limitations, and the government’s unambiguous past practice, we can reiterate that the detention authority provided in the AUMF and affirmed by section 1021 does not encompass the independent journalistic activities or independent public advocacy identified here standing alone.”
Given that clarification, the government argued, the plaintiffs won’t suffer “irreparable harm” and, thus, do not have any legal standing to challenge Section 1021.
- Department of Justice: Government’s Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order for Hedges v. Obama (PDF)
- United States District Court Southern District of New York: Hedges v. Obama ruling on May 16, 2012 (PDF)
- WhatTheFolly.com: Federal judge strikes down controversial National Defense Authorization Act provision
Category: Analysis, Civil Liberties, Criminal Justice, Current Events, Government, Human Rights, News, U.S. · Tags: Al Qaeda, Barack Obama, Christopher Hedges, citizenship, Congress, Daniel Ellsberg, detainee, detention, due process, enemy combatant, federal government, first amendment, free speech, Government, Guantanamo Bay, habeas corpus, journalists arrested, Judge Katherine B. Forrest, Justice Department, military, military tribunal, National Defense Authorization Act, New York, Noam Chomsky, Preet Bharara, terrorism, terrorists, U.S., U.S. District Court