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Judge Forrest sticks up for the US Constitution, strikes down indefinite detention

Image of protest courtesy the Bradley Manning Support Network

“Courts must safeguard core constitutional rights.”

Using such unwavering language, US district judge Katherine Forrest has refused to bend to the Obama Administration that appointed her to the federal bench.

On September 12, she made permanent her earlier preliminary injunction against the indefinite detention (Section 1021) provision of the National Defense Authorization Act (NDAA) of 2012.

The case before Judge Forrest had been brought by Chris Hedges, Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Alex O’Brien, US Day of Rage, Kai Wargalla and the Icelandic MP Brigitta Jonsdottir. Many of these plaintiffs provided vivid testimony about the chilling impact of Section 1021 on their First Amendment rights and work which could, they believed, make them vulnerable to indefinite military detention given the vague language of the statute.

As Hedges subsequently wrote about the NDAA,

The law was, after all, not about foreign terrorism. It was about domestic dissent. If the state could link Occupy and other legitimate protest movements with terrorist groups, then the provisions in the NDAA could, in a period of instability, be used to ‘disappear’ US citizens into military gulags, including the government’s offshore penal colonies. And once there, stripped of due process, detainees could be held until, in the language of the law, ‘the end of hostilities.’ In an age of permanent war that would be a lifetime.

In concluding that the language of Section 1021 is “unconstitutionally broad,” Judge Forrest chides the government for its refusal to state that “activities protected by the First Amendment could not subject an individual to indefinite military detention.” In fact, she writes, the government failed to say “precisely what the statute means – what and whose activities it is meant to cover.”

Lawyers for the Obama Administration failed to provide definitions for such terms as “associated forces” and “substantially supported.” And in different hearings they took different positions on whether the plaintiffs’ activities could subject them to indefinite detention under Section 1021.

At first, they refused to say. And then they temporized, throwing in words that suggested that at the moment, the plaintiffs were in the clear but this could change in the future:

“As a matter of law,” the government had asserted, “individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detentions as affirmed by Section 1021 (a) – (c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in Section 1021."

Implication: if there is “more,” or if the description is not “accurate,” military detention could well be on the agenda.

As Judge Forrest writes, it is not just First Amendment rights that are at stake. “The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention – potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever.”

If ever. And during that time, the executive branch expects to get a pass from the courts that, the Obama Administration had argued, should exercise “due deference” and not interfere with its pursuit of the war on terror.

Judge Forrest begs to differ. “Due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions.”

She points to cases where the courts had stood aside at a time of war, such as the Korematsu case upholding the World War II internment of Japanese Americans, and stated that they are now generally seen as embarrassments.

And she is withering about the government’s claim that Section 1021 does nothing new, but is “clearly the same” as the Authorization for the Use of Military Force (AUMF). As she writes, unlike the AUMF, Section 1021 could apply to persons unconnected to 9/11 or any battlefield.

Her conclusion? “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”

Stay tuned to see if Section 1021 is gone for good, or if the Obama Administration decides to appeal Judge Forrest’s ruling to a higher court.

© 2021 ACLU of Massachusetts.