Court Permanently Blocks a Section of Military Detention Law

09/13/12

On Wednesday, U.S. District Judge Katherine Forrest in Manhattan made permanent her order blocking the enforcement of Section 1021 of the National Defense Authorization Act's “Homeland Battlefield” provisions. The provision authorizes persons of nonprofit groups or reporters, or anyone for that purpose, to be indefinitely detained upon suspicion of having “substantially supported” outlawed organizations like the al Qaeda, Taliban, or “associated forces.”

The lawsuit had been filed in January by NY Times reporter Christopher Hedges and others who contended that the Section 1021(b)(2) of the law allows detention of citizens and permanent residents simply on “suspicion of providing substantial support” to groups hostile to U.S. The preliminary injunction against enforcement of the section was granted in May, while, lacking substantial opposition, the judge made the injunction permanent now.

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According to the court, the lawyers of the Justice Department failed to explain adequately the ambiguous wording of the legislation. However, government attorneys maintained that the Executive is entitled to broad powers when it comes to cases of national security and the law is not vague.

But the judge said, “This court does not disagree with the principle that the president has primacy in foreign affairs, (but) the government has not stated that such conduct – which, by analogy, covers writing, journalistic and associational activities that involve al Qaeda, the Taliban or whomever is deemed “associated forces” – does not fall within § 1021(b)(2)."

The judge said that the plaintiffs had “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention.” She wrote, “Could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have ‘substantially supported' the Taliban? … How about a YouTube video?”

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Concerning the ambiguity in wording, the judge wrote, “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 … The Constitution requires specificity – and that specificity is absent.”

In her 112-page judgment, Forrest wrote, “The Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war … Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold.”

In her opinion, the judge invited the U.S. Congress to consider amending or repealing Section 1021 in light of its vague wording.

The case is Hedges et al v. Obama et al, U.S. District Court for the Southern District of New York, No. 12-cv-331.