Privacy SOS

Judge holds the line against indefinite detention

On June 6, US District Judge Katherine Forrest defied the government and upheld her own preliminary injunction against part of Section 1021 of the National Defense Authorization Act (NDAA) of 2012. 

Remember Section 1021?  In ambiguously worded language, it holds out the potential for anyone deemed to be associated somehow with terrorism   – including American citizens seized  within the United States – to be consigned to indefinite military detention.

While exempting perpetrators of the 9/11 attacks and those who assisted them from the injunction, Judge Forrest declared that “the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court – or by Congress.” Among those who are covered by the injunction are people thought to have “substantially supported” al Qaeda, the Taliban or “associated forces” in hostilities against the US. 

Judge Forrest’s action is remarkable in age when the judiciary is usually is eager to defer to the executive branch and/or Congress on ‘national security’ matters. It is even more remarkable for a judge who has been on the bench for less than a year to refuse to modify her position when pressed to do so by the executive branch.

Formerly a deputy assistant attorney general doing anti-trust law in the Justice Department, attorney Katherine Forrest was nominated to the Southern District of New York Court by President Obama – who happens to be the chief defendant in the lawsuit challenging part of the Section 1021 indefinite military detention provision brought by journalist Chris Hedges, Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Alex O’Brien, US Day of Rage, Kai Wargalla and the Icelandic MP Brigitta Jonsdottir.

It is also remarkable that after President Obama put distance between himself and Section 1021 in the signing statement he appended to the NDAA of 2012, his Justice Department would decide that 1021 had to be defended at all costs – and would do such an inept job in its defense. 

To see that ineptitude in action, you should have a look at Judge Forrest’s preliminary injunction enjoining enforcement of Section 1021(b)(2) issued on May 16. She reports that the government did not call any witnesses or submit any documentary evidence.  It simply insisted that the plaintiffs lacked standing to bring a claim under Section 1021 and that anyway, Section 1021 did nothing new since it was merely an “affirmation” of the 2001 Authorization of the Use of Military Force (AUMF).

By contrast, four of the plaintiffs gave compelling testimony about how their First Amendment and due process rights were being compromised by the vagueness of 1021.

Because the new law nowhere defined “associated forces” or what was meant by “substantial support” or “direct support” to groups that would be subject to indefinite military detention, the Pulitzer Prize-winning journalist Chris Hedges wondered if the fact that he has interviewed Al Qaeda members, stayed with Hamas members in Gaza, reported on 17 groups that are listed on the State Department’s terrorism list and had some of his writings posted on jihadist websites could put him on a 1021 target list.

Plaintiff Alexa O’Brien, the co-founder of US Day of Rage, is a senior editor at the WLCentral website which focuses on Assange and Wikileaks. She has published several articles about Guantanamo.  In her testimony, she gave very concrete reasons why fear of government surveillance had made her curtail some of her activity and decide not to publish recent Guantanamo pieces. She said that she learned in February 2012 “that an individual employed by a private security firm had allegedly been asked to tie US Day of Rage to Islamic fundamentalist movements.” She also reported being told by a federal agent that US Day of Rage was going to be infiltrated by the DHS to link it to Anonymous and “cyberterrorism.” 

Kai Wargalla, a London-based activist and deputy director of Revolution Truth, was appalled to find Occupy London listed in a “terrorism and extremism” update put out, it appeared, by the London police. She claimed because of the Section 1021 chill factor, Revolution Truth has decided not to invite Hamas to join its internet panel discussions. 

Both Wargalla and the Icelandic Member of Parliament Brigitta Jonsdottir were very troubled by the association of Wikileaks and “terrorism.” After her Twitter account was the subject of a subpoena relating to Julian Assange and Bradley Manning, Jonsdottir reported being afraid to travel to the US and turning down several speaking engagements. 

After the plaintiffs had their say, Judge Forrest asked the Obama Administration to help clarify the language of Section 1021. What, she asked, does it mean “to substantially support associated forces”? She asked for one “specific example.” The government lawyer could not provide one. Neither could he give an example of what it meant to “directly support” such groups, stating that “We have not come to a position on what ‘directly supported’ means.” 

The government’s inability/refusal to respond to the court’s queries did not end there.  The Administration refused to give the plaintiffs the assurance that 1021 did not apply to them – even though government lawyers knew ahead of time what they would say in their testimony. Judge Forrest stated that this refusal forced the 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 1021.”

For all these reasons, she found the plaintiffs’ credible fears gave them standing to challenge 1021 and that its language was unconstitutionally vague and overbroad. 

Rather than allow Judge Forrest’s preliminary injunction enjoining the government from enforcing Section 1021 to stand, the Obama Administration went back to court, asking her to reconsider her ruling. 

This time the government argued that her injunction violated the Constitution’s separation of powers, as it challenges the President’s constitutional authority as Commander-in-Chief in a time of war.  It then repeated its original argument, stating that the plaintiffs lacked standing as Section 1021 “does not apply to them.”

Why doesn’t it? Here we finally got a few answers.  

“As a matter of law, 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 detention as affirmed by Section 1021 (a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.”

Furthermore, “unarmed groups” like WikiLeaks or Occupy, WLCentral, US Day of Rage and Revolution Truth would not qualify. “Nor could a group like Hamas qualify as an ‘associated force’ under the statute solely for committing acts of terrorism”  – do you follow that?

Judge Forrest was unmoved by these assertions. In her June 6th ruling upholding the preliminary injunction, she stated that her order applied broadly, not just to the named plaintiffs whose particular concerns the government had belatedly addressed.  

Her ruling may soon be overturned. But since Congress has recently refused to pass legislation exempting American citizens from the reach of 1021, it offers us a glimmer of hope that the due process protections guaranteed by the Bill of Rights can survive the “war on terror.” 

© 2021 ACLU of Massachusetts.