Arbitrary Detention Suffers First of Perhaps Many Blows

On New Year's Eve last year, Barack Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year 2012. Among many other provisions, the Act authorized indefinite arbitrary military detention on American soil for people suspected of ties with al-Qaeda or affiliated groups. According to Section 1021 of the NDAA, among those potentially subject to indefinite detention without trial are persons who w[ere] a part of or substantially support al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." In a courageous opinion delivered Wednesday, U.S. District Court Judge Katherine Forrest issued a permanent injunction against enforcing Section 1021. The decision faces an uphill climb in the higher courts, but it is a powerful reminder of how much the federal government has overreached since 9/11.

The decision in Hedges v. Obama arose out a lawsuit filed by five journalists and activists seeking an injunction against the enforcement of 1021. After granting a preliminary injunction, Judge Forrest heard arguments about a permanent injunction against the act. The journalist Christopher Hedges argued that because of the vagueness of the terms "associated forces," "engaged in hostilities," and "substantially supported," it was possible that reporting involving contact with members of Al-Qaeda and affiliated groups could be perceived as violating the NDAA, and hence leave he and his fellow plaintiffs potentially subject to indefinite detention. Because the vagueness of the statutory language potentially criminalizes ordinary journalistic and political activities, the plaintiffs argue, it violates their First Amendment free speech and Fifth Amendment due process rights.

Judge Forrest found these arguments about vagueness persuasive. Intensifying the concern over vagueness for Forrest was the government's refusal at the initial hearing in March to say whether the actions of the five plaintiffs would violate the statute. While the government did shift gears at the second hearing and suggest that the actions of the five plaintiffs could not subject them to indefinite detention, this new reassurance was both heavily qualified and seemed an opportunistic shift that was necessary to argue that Hedges et al. lacked "standing" and therefore could not bring a lawsuit. (The doctrine of "standing" requires people bringing a suit to prove that they have an individual stake in the case being litigated.) Hedges and his colleagues had a reasonable fear that the legislation would subject them to indefinite detention for engaging in journalistic and political activities that are protected by the First Amendment, which is unconstitutional.

Forrest also rejected arguments by the government that the plaintiffs could not seek an injunction prior to being detained because the appropriate remedy would be to seek habeas corpus relief if they were illegitimately detained. The problem with waiting until after the fact is that it fails to alleviate the chilling effect that the statutory language is likely to have on protected First Amendment activities. Moreover, the habeas process is notoriously inefficient; some detainees in Guantanamo Bay have been waiting more than ten years to get their cases heard. "If only habeas review is available to those detained under § 1021(b)(2)," Judge Forrest correctly points out, "even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated."

Regrettably, it's hard to be optimistic about the chances of Judge Forrest's opinion being upheld by higher courts. The judiciary rarely intervenes into issues of national security when the executive and legislative branches are unified. And the Supreme Court's 2010 decision in Holder v. Humanitarian Aid Project suggests a Court willing to give wide discretion to anti-terrorism efforts even when the potential for infringing on First Amendment freedoms is significant.

It is also true that, as he indicated in his signing statement, so far President Obama has not abused the legislation by deploying the indefinite detention powers. But this does not settle the issue. As long as the statutory language exists, the potential for substantial abuse is there. We cannot be confident that a future administration won't use this law to detain political dissidents. President Obama made a mistake when he signed this legislation, and the judiciary played its designated role in our constitutional order by preventing Section 1021 from being enforced.

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