A federal judge has blocked enforcement of part of a law allowing the indefinite detention and trial by military commission of any person who “substantially supported” al-Qaida, the Taliban or “associated forces” in armed conflict.
Southern District Judge Katherine Forrest granted an injunction sought by journalists and activists who claimed that §1021 of the National Defense Authorization Act for Fiscal Year 2012 would sweep up reporters and advocates who contact designated terror groups. She said the plaintiffs had shown a likelihood of succeeding on the merits on their claims that the section is so vague that it violates their First Amendment associational and free speech rights, as well as their right to due process under the Fifth Amendment.
The law, signed by President Barack Obama on Dec. 31, 2011, is an extension of the original Authorization for Use of Military Force passed by Congress in the wake of the Sept. 11, 2001, terror attacks.
Forrest held a hearing on the preliminary injunction request in March in Hedges v. Obama, 12-CV-331, at which journalist Christopher Hedges testified that, since the passage of the law, he has “greater reluctance…to associate with any group that embraces acts that could be construed as terrorist” (NYLJ, March 30).
New Jersey civil rights lawyer Bruce Afran argued for the plaintiffs at the hearing, but Forrest’s toughest questions were directed at Assistant U.S. Attorney Benjamin Torrance, as she repeatedly asked him to give specific definitions of the phrases “substantially supports” and “associated forces.”
Torrance and fellow Assistant U.S. Attorney Christopher Harwood argued the plaintiffs have no standing because their fear that they might be swept up by the law is not reasonable.
Nonetheless, Forrest expressed concern at the hearing that the law’s language was broader than that previously used.
Yesterday, she rejected the claim of the government that §1021 is merely an “affirmation” of the Authorization for Use of Military Force (AUMF).
The judge said §1021 “lacks the standard definitional aspects of similar legislation that define scope with specificity.”
She said it “lacks the critical component of requiring that one be found to be in violation of its provision must have acted with some amount of scienter—i.e. that an alleged violator’s conduct must have been, in some fashion ‘knowing’.”
The judge took note of the plaintiffs’ argument that the president had expressed doubt about some of the language in the law even as he signed it.
Obama released a “signing statement” assuring the public that his “Administration will not authorize the indefinite military detention without trial of American citizens,” and “will 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.”
But Forrest said in her opinion that the signing statement “does not eliminate the reasonable fear of future government harm that is likely to occur.”
The judge also said that the balance of equities and the public interest favors issuance of a preliminary injunction “particularly, but not only, in light of the fact the Government’s entire position is premised on the assertion that §1021 does nothing new—that it simply reaffirms the AUMF; in which case, preliminary enjoining enforcement should not remove any enforcement tools from those the government currently assumes are within its arsenal.”
Forrest said the injunction will last pending further proceedings before her “or remedial action by Congress mooting the need for such further proceedings.”
She emphasized that she was only blocking enforcement of one section of the law, “indeed one page” of the voluminous legislation.
“It’s a great victory for free speech,” Afran said yesterday. Forrest, he said, “held that the government cannot subject people to indefinite imprisonment for engaging in speech, journalism or advocacy, regardless of how unpopular those ideas might be to some people.”
A spokeswoman for the Southern District U.S. Attorney’s Office declined to comment on the ruling.
@|Mark Hamblett can be contacted at email@example.com. The Associated Press contributed to this report.