WASHINGTON -- Civil liberties groups are asking the Obama administration to stand down and give up defending America's law allowing the indefinite detention of terrorism suspects after a judge Wednesday issued a permanent injunction against it.
The indefinite detention law -- contained in the National Defense Authorization Act of 2012 -- codified the post-9/11 practice of having the military jail suspects, including Americans, and hold them without trial.
Federal Judge Katherine Forrest reaffirmed on Wednesday her May ruling that the provision was unconstitutional, and made the ruling permanent. She had previously found that the law could be used to imprison activists and journalists without trial, noting that it does not define what it means to substantially "support" Al Qaeda or "associated" forces.
The detention provision in the NDAA affirms the administration's right to detain a "person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces."
Forrest found that reporters who talk to and write about someone who could be defined as being part of an "associated force" could be deemed to be substantially supporting them.
"First Amendment rights are guaranteed by the Constitution and cannot be legislated away," Forrest said in Wednesday's new ruling. "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."
Other plaintiffs in the case are Pulitzer prize-winning journalist Chris Hedges, Pentagon papers leaker Daniel Ellsberg and left-wing scholar Noam Chomsky.
It was not immediately clear whether the administration would appeal to a higher court, but civil liberties advocates were asking the White House to quit the case.
"Today is a day to celebrate," one of the plaintiffs, Tangerine Bolen, said in a statement after the ruling. "After eleven years of witnessing a radical departure from democracy and fundamental civil liberties and towards increased authoritarianism -- all under the guise of the war on terror -- we have a ray of hope and reason to keep the faith."
The group Demand Progress, which backed the lawsuit, is launching a petition asking President Barack Obama not to appeal the ruling. They also want the Senate to stop the detention provision from being added to the NDAA for 2013, which has not yet been brought up for a vote.
"It's wonderful to see Judge Forrest -- a recent Obama appointee -- buck the administration and stand up for the Constitution," Demand Progress executive director David Segal said in a statement. "Our members urge Obama to stop defending this obscene abuse of executive authority, and ask our senators to oppose indefinite detention when they vote on the NDAA later this fall."
The detention authority stems from the 2001 authorization to use military force passed by Congress after the Sept. 11 terrorist attacks. Supporters of the law contend that the 2012 NDAA did nothing more than reaffirm that power, and that the law of war supports detentions of anyone in times of conflict.
Forrest did not agree.
"The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity -- it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."
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Interview A Member Of The Taliban
<strong>Scenario:</strong> As a foreign correspondent on assignment in Afghanistan, you successfully contact Taliban representatives who take you to meet a mullah. After you've completed your interview and fact-finding mission, U.S. officials arrest you under suspicion of terrorism. <strong>How:</strong> Section 1021 (2) of the National Defense Authorization Act <a href="http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf" target="_hplink">grants power</a> to indefinitely detain "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." You're not sure if what you did was "substantial" or really "supported" anyone. It's quite possible that nobody does, as the text of the law doesn't define these words. This could take a while to sort out. In the recent hearing on a lawsuit challenging that section of the act, Judge Katherine Forrest asked an Obama lawyer if plaintiff Chris Hedges could be assured that he would not be subjected to detention under Section 1021, journalist Naomi Wolf <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">noted</a>. Hedges is a Pulitzer prize-winning reporter who has worked extensively in Afghanistan and the Middle East. The administration attorney suggested that the specifics of Hedge's situation would make his detention unlikely, but responded, "I cannot say that today." While the Obama administration has said you're entitled to a trial as a U.S. citizen, this won't preclude you from a protracted journey through an encumbered court system charged with figuring out -- based on secret evidence -- why you were picked up. And if it this happens during a future administration, officials might not agree with Obama on your right to a trial.
Attend A Fundraiser
<strong>Scenario:</strong> A local civil liberties group holds a swanky fundraising event and you, a wealthy philanthropist, write a sizable check. Sometime later, the group is placed on a watch list, which results in authorities arriving at your door, hauling you away. <strong>How:</strong> It's possible a portion of your money somehow got funneled to al-Qaeda or a pro-Taliban group or that somehow you became an indirect material supporter of what the National Defense Authorization Act calls an "associated force." But just what are "associated forces"? That question appeared to stump Obama administration lawyers when pressed by Judge Katherine Forrest during a recent hearing. "I don't have specifics," an attorney told her. Answering a later question about whether WikiLeaks could be construed as an "associated force," an administration lawyer suggested that it couldn't, unless there were a connection to the Taliban or al-Qaeda. If someone happens to be wrong about your case, you might sit in detention until the courts figure it out. Or, according to the act, you'll be released when officials determine it is "the end of the hostilities authorized by the Authorization for Use of Military Force."
Write A Book
This hypothetical situation comes straight from this spring's hearing on a lawsuit challenging parts of the National Defense Authorization Act, as captured by <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">Naomi Wolf</a>: <blockquote>Bruce Afran, lawyer for the plaintiffs, presented the hypothetical of a book that did not say how to make a bomb but simply expressed support for the political goals of the Taliban, or that made the case that the Taliban's view that the US government overreaches in occupying other countries, has merit. He and Judge Forrest discussed the hypothetical that such a book could be a bestseller and be on a book tour, generating comment throughout the Middle East. Judge Forrest simplified the example to a hypothetical of a book with only one sentence, and whose only sentence read: "I support the political goals of the Taliban'. She asked the government lawyers if such a book could be read as providing 'material support' for 'associated forces" under the NDAA. They did not rule it out. Judge Forrest pushed: "You are unable to say that [such a book] consisting of political speech could not be captured under [NDAA's Section] 1021?" Obama lawyers: "We can't say that."</blockquote>
Organize A Demonstration
<strong>Scenario:</strong> Some societal injustice is prompting you to start a movement in protest. Hours after a particularly well-attended and rambunctious rally, you're approached by men in black suits who flash their badges and toss you in the back of their unmarked SUV. <strong>How:</strong> It's possible that you or one of your loosely connected crew of associates did something to make you a suspect linked to an "associated force." Or perhaps, according to another part of National Defense Authorization Act's Section 1021 (2), your actions constituted "substantial support" to a "person who has committed a belligerent act or has directly supported such hostilities in aid of [al-Qaeda or the Taliban]." Journalist and "Day of Rage" organizer Alexa O'Brien joined a recent lawsuit challenging sections of the act out of concern that she was being targeted as a potential terrorist threat. But at a hearing on the suit this spring, Obama administration officials did not alleviate such concerns, as <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">Naomi Wolf has documented</a>: <blockquote>O'Brien produced into evidence a [Department of Homeland Security] memo that sought to link US Day of Rage to their cyberterrorism initiative. The government lawyer was given a chance by Judge Forrest to dispute the memo as fraudulent and did not do so.</blockquote>
Help Out A Friend
<strong>Scenario:</strong> A good friend whom you've lost touch with contacts you, asking for help funding his around-the-world trip. You wire money and wait for him to return. Sometime later, there's a knock on your door. The people on the other side of it have questions about a sum of money you sent abroad to someone questionable. They ask you to come with them. <strong>How:</strong> You're finding it impossible to believe that your childhood friend became a terrorist or connected with al-Qaeda, the Taliban or "associated forces." But even if he did manage to get mixed up in some sketchy business, shouldn't there be an exception for you, his well-intentioned friend who was just helping someone in need? Not necessarily. At a recent hearing, Judge Katherine Forrest tried to get the Obama administration to <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">give an assurance that "unwitting" support</a> could be protected, noting that there was no direct reference to such language in the law. Obama's attorney was unable to provide such a safeguard, instead arguing that the new law possessed the same exemptions contained within the Authorization for Use of Military Force Against Terrorists, which was passed by Congress after 9/11. The brief and broadly interpreted <a href="http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm" target="_hplink">authorization</a> makes no mention of the word "unwitting," though.
Accidentally Provide Missiles To Insurgents
<strong>Scenario:</strong> You're a flippant, billionaire playboy or -girl with a cool haircut and two Ph.D.s., one in nuclear fusion and the other in kicking ass. You get bored, so you decide to fight crime in Afghanistan and make a quick jaunt to Kandahar. In the process of taking on an encampment of Taliban insurgents, the firing mechanism for one of your missiles malfunctions, launching it thousands of feet into the air. It returns to Earth undetonated, only to be picked up by an enemy who uses it as the centerpiece of an improvised explosive device. When a U.S. mine-sweeping crew deactivates the makeshift bomb and finds your name emblazoned on the device, you're picked up. <strong>How:</strong> This appears to be a clear-cut case of "substantial support" to the Taliban or at least "associated forces" who wanted to do harm to U.S. troops. So much for your intentions of wanting to help out with a little vigilante justice. Any resulting court case could take ages.
Plan A Terrorist Attack
<strong>Scenario:</strong> You're a total jerk and not a very big fan of America, so you decide that the best course of action is to take out your anger with an act of destruction on a densely populated city. You do some planning and set up your device, but when it comes time to use it, it malfunctions, leaving you injured and going to jail on a stretcher. <strong>How:</strong> You're an American citizen, you'll get your constitutional guarantee of a trial, right? If President Barack Obama's promises are followed, yes. But that doesn't mean you can't undergo some form of indefinite detention while you await trial. During a hearing on the lawsuit challenging parts of the new National Defense Authorization Act, Obama's lawyers were unable to say for sure if the trial promised in his signing statement would be a civilian or military one. This could have a heavy bearing on the nature of your detention. And if you were to commit such actions under the administration of another president, there's no telling how a new commander in chief would interpret the act, making your fate even less certain.