I was pleased to read this Bloomberg article titled Military Detention Law Blocked By New York Judge. This is referring to the Hedges vs. Obama case where several journalists sued that section 1021 of the NDAA violated both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution. They asked for a preliminary injunction to stop enforcement of this article. The article mentioned some interesting stances taken by the government regarding this case, so I decided to go read U.S. District Judge Katherine Forrest’s ruling itself. I scanned through the sections of the ruling detailing the government’s response to the suit, so the meaty comments by Judge Forrest seem to be true.
The section of the ruling that has everyone atwitter begins on page 33 of the ruling (found here), and states:
“It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this 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.
With respect to the witnesses who had appeared in Court, the Court had the following colloquy with the Government:
Court: These people have real things they are saying. These are not speculative or hypotheticals. These are people who have actually written articles that we have here. [The Court then held up the articles written by O’Brien and marked as Court Ex. 3.] We are trying to figure out, are these articles going to subject Ms. O’Brien to risk under § 1021? . . . .
Government: Again, I’m not authorized to make specific representations regarding specific people. I’m saying that ‘associated forces’ cannot extend to groups that are not armed groups at all.
Court: So we don’t know about the articles, it depends?
Government: Maybe they are an armed group.
With respect to Jonsdottir the Court asked:
I’m asking you as a representative of the United States Government here today, can Ms. Jonsdottir travel to the United States without any concern that she will be captured by her current activities under § 1021?
Government: Again, I can’t make representations on specifics. I don’t know what she has been up to. I don’t know what is going on there.
With regard to Hedges the Court asked,
Is it possible, in your view, that Mr. Hedges, any of his activities as he has described them, should they occur in the future, [and also as to his past
to military detention without trial under § 1021?
Government: I’m not prepared to address that question here today, but I would answer that by saying that his concerns that he has raised are addressed by what I have said and he has the burden of showing that his fear as articulated is a reasonable fear.”
Also interesting reading is the conclusion given by Judge Forrester:
“This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.
As set forth above, this Court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.
Accordingly, this Court finds that the public interest is best served by the issuance of the preliminary relief recited herein.
For the aforementioned reasons, plaintiffs’ motion for preliminary injunction is GRANTED; enforcement of § 1021 of the NDAA is preliminarily enjoined pending further order of this Court or amendments to the statute rendering this Opinion & Order moot.”
I don’t know whether to be pleased with the ruling, or profoundly disturbed that a lawsuit brought by these individuals particularly because they were concerned about their first and fifth amendment rights under the Constitution was not immediately dismissed by the government. Since the government did not simply state that the law does not apply to free speech, thus eliminating the plantiff’s standing, I must assume that the government DOES believe that if I speak or write anything that could be construed as supporting terrorism I should disappear into the proverbial black hole.
Chris Hedges may be right – the MRAPs ARE coming for him. How insane.
(I also found an interesting blog asking whether the injunction means anything or not because the injunction itself is a little vague. Worth reading if you have the time. http://www.lawfareblog.com/2012/05/why-hedges-v-obama-is-terribly-perplexing/)