Federal judge rules part of new anti-terrorism statute unconstitutional

NEW YORK (AP) — A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.

U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a “chilling impact on First Amendment rights.” She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.

I wrote about this case on AB back in January and said that there’s no question but that that part of the law is unconstitutional.  I said back then that the only real question in that case is whether the plaintiffs, Truthdig columnist Chris Hedges and a few other journalists, have “standing” at this point to challenge the constitutionality of the law—that is, that they could show that things they themselves want to do are things for which, under the statute, they possibly could be detained.  According to today’s AP report, the government’s lawyer effectively acknowledged at the oral argument in the case in March that that’s possible.  

That clarified that the statute is as broad and as amorphous as the plaintiffs say it is—that there is no way even to know whether certain activities could result in detention (a violation of due process, which requires that laws be specific about what is proscribed), and also that the statute authorizes detention for activities that are protected by the First Amendment, including activities of the sort that these plaintiffs had engaged in and plan to engage in in the future.

This ruling is almost certain to be affirmed on appeal in the Second Circuit Court of Appeals, based in New York.  But ultimately, the Supreme Court will have to hear the case.  If, as I expect, the appellate court affirms the trial judge’s ruling striking down the law as unconstitutional, the Supreme Court will hear the case, because the Court always agrees to hear cases in which a lower appellate court has invalidated a federal statute.  And in the unlikely event that the appellate court reverses the trial judge’s ruling, the Court will hear this case because the First Amendment and due process issues are just too clear and too important here, and because the law so clearly does violate the First Amendment speech and assembly clauses and (because of its vagueness) Fifth Amendment due process rights.  I have no doubt that the Supreme Court will strike it down as unconstitutional.

It should be noted here that the only reason that Obama signed the law last December is that it was a poison pill that the House Republicans inserted into a Defense Department appropriations bill that was passed under deadline and that was necessary in order to avoid an interruption in salary to military personnel, among other things, if I recall correctly.  The Republicans’ purpose, of course, was to try to fabricate a Dems-are-soft-on-terrorism issue for the November elections.  As I said in my January post, Republican pols think it’s still 2002. Or at least 2004.  Or maybe even 1980.  Or 1968.  It’s not; they don’t realize that that well’s finally run dry, but it has.  Obama should have stood his ground, although some congressional Dems voted for the appropriations bill, for fear of political repercussions.  When Obama signed it, he said he thought that part of the law may well be stricken down as unconstitutional, and I do think that that’s what he expected.  Still ….