NDAA: did Chris Hedges case make matters worse?
In a surprise ruling, Obama-appointed US Judge Katherine Forrest of the Southern District of New York agreed with plaintiffs who had challenged provisions of the 2012 National Defense Authorization Act that Section 1021—concerning indefinite detention of (poorly defined) terror suspects. Judge Forrest found that Section 1021 fails to "pass constitutional muster" because its broad language could be used to squelch political dissent. Forrest rejected the contention in Obama's signing statement that the language in Section 1021 "breaks no new ground" and merely recapitulates the 2001 Authorization to Use Military Force (AUMF). "[T]his court finds that § 1021 is not merely an 'affirmation' of the AUMF," Forrest wrote. "To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning. To find that § 1021 is merely an 'affirmation' of the AUMF would require this court to find that § 1021 is a mere redundancy—that is, that it has no independent meaning and adds absolutely nothing to the government's enforcement powers." The suit was first brought by journalist-turned-talking-head Chris Hedges, and later joined by Noam Chomsky, Pentagon Papers whistle-blower Daniel Ellsberg, Icelandic parliamentarian Birgitta Jonsdottir, Kai Wargalla of Occupy London and Alexa O'Brien of US Day of Rage. The plaintiffs call themselves the "Freedom Seven."
Section 1021 of the NDAA, signed by Obama on Dec. 31, allows the president to use "all necessary and appropriate force" to detain any person, including US citizens, who "was part of or substantially supported al-Qaeda, the Taliban, or associated forces, under the law of war until the end of hostilities." Those "associated forces" are never defined. Forrest's ruling may, in fact, help define it. She states that the NDAA "has a non-specific definition of 'covered person' that reaches beyond those involved in the 9/11 attacks by its very terms." Her opinion—online as a PDF at SDNY Blog, which monitors New York's Southern District—reveals that Hedges invoked his "association" with groups that are very far afield from al-Qaeda, in terms of both tactics and ideology. Wrote Forrest:
Hedges also testified that he has previously associated with a group called Bob Avakiam Revolutionary Party, a Maoist group, which he stated he understands endorses the use of violence towards revolutionary ends--a philosophy to which Hedges stated he did not ascribe. Tr. 177. Despite that fact, Hedges understands § 1021 as potentially encompassing his association with the Avakiam Revolutionary Party and thus, the statute already has had a chilling effect on his associational activities.
Hedges testified that prior to the passage of § 1021 he had never feared military detention for his activities.
This is truly extraordinary. First, this passage contains two obvious errors, although we do not know if they originate in Hedges' testimony or Forrest's paraphrase thereof. The Maoist leader in question is Bob Avakian, not "Avakiam"; and his party is the Revolutionary Communist Party (RCP), not the "Bob Avakiam [sic] Revolutionary Party." They are cultish, but they aren't that cultish. And while they have cheered on the Shining Path and Nepalese Maoists in unseemly manner, RCP does not have a history of actually engaging in violence themselves. And this is the critical point: Has Forrest just established a precedent for a domestic radical-left group in the US—which does not engage in armed actions, is not associated with al-Qaeda, and is not even vaguely aligned with Islamist extremism—being included in Section 1021's (or the AUMF's) "covered persons"? And since her blocking of the provision seems based on 1021's "chilling effect" on Hedges as a journalist (although his co-plaintiffs are not journalists), could her ruling paradoxically legitimize indefinite detention without charge of a broader class of political dissidents? Will this logic extend to anarchist Black Blocs? Monkey-wrenching radical environmentalists? Supporters of Black Panthers, Puerto Rican independentistas and other domestic political prisoners?
For the moment, Section 1021 is enjoined. But it will be interesting to watch how this elasticity in the definition of terrorism suspects plays out in the appeals process, or if Congress decides to tweak the law to address the vagueness. In a phone conference with reporters, plaintiffs' attorneys Bruce Afran and Carl Mayer hailed what they called a "complete victory." Said Mayer: "America is more free today than it was yesterday due to the courageous and righteous and very sound ruling by Judge Forrest." We aren't convinced.
Another thing we don't get. When Hedges brought his case back in January, we predicted he would be laughed out of court on the basis of a.) his own statement which boasted he was challenging provisions for "domestic policing"; and b.) Glenn Greenwald's analysis of 1021's text, which he said included an exemption for US citizens "captured or arrested in the United States." Now it appears (as we should have gleaned from the actual text of his complaint) that the crux of Hedges' case was elsewhere—the "chilling effect" on him as a writer. (In his testimony he even invoked a talk he gave in Paris "at which he expected members of al-Qaeda or the Taliban to be present," according to Forrest's opinion.) But, adding to the confusion, now the accounts of the ruling on Courthouse News Service and Reuters refer to Section 1021 as the "Homeland Battlefield" provisions.
The text of the NDAA reveals that the actual title of Section 1021 is the "Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force," and it does state: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
Greenwald on Salon hails Forrest's "amazing ruling," of course.
See our last post on the detention state.