Southern District Judge Katherine Forrest was asked by journalists and activists at a March 29 hearing to block enforcement of a law allowing for the indefinite detention and trial by military commission of any person who “substantially supported” al-Qaida, the Taliban or “associated forces” in armed conflict. Fearing the vaguely defined statute would sweep up reporters and advocates who contact the designated terror groups, lawyers for the plaintiffs argued that Judge Forrest should grant a pre-enforcement preliminary injunction against the National Defense Authorization Act §1021.
In Hedges v. Obama, 12-CV-331, journalist Christopher Hedges and activist Alexa O’Brien testified about the effect the law has on their activities. Mr. Hedges said he has “greater reluctance…to associate with any group that embraces acts that could be construed as terrorist.”
Assistant U.S. Attorneys Benjamin H. Torrance and Christopher Harwood defended the bill as a reaffirmation of the power of the executive branch to detain covered persons granted by Congress in the original Authorization for the Use of Military Force following the 9/11 attacks and the traditional laws of war. The lawyers insisted the language only applies to support for groups engaged in armed conflict and said the plaintiffs have no standing because their “fear is not reasonable.”
But Judge Forrest expressed concern that the law’s language was broader than previously used. She peppered Mr. Torrance with questions seeking specific definitions of the terms “substantially supports” and “associated forces.” And she pressed both lawyers to give specific assurances to the plaintiffs that they will not be detained for their activities. The judge told Mr. Harwood that, if he could tell Ms. O’Brien she would not be detained for her activities, “then Ms. O’Brien is out—she has no standing.” She added, “But if you can’t do that, you’re putting us in a tough spot here.”
Plaintiffs’ lawyer Bruce Afran told the judge the word “support” is “too vague in terms of regulating speech,” and the law “can and does encompass various expressive actions.”