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.
— Federal judge: Terror law violates 1st Amendment, Larry Neumeister, today
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 ….
Judge Forrest I lift my happy hour pint to you in salute! Kudos to the plaintiffs as well!
too bad…it’s been somewhat entertaining watching the tea-baggers fret about the way obama was gonna round em all up & disappear them to the gulags…
Beverly
once again i agree with you, but i’m gonna moan anyway.
“the judge encouraged them to make the working less vague.”
great, now we will be sent to gitmo based on highly specific accusations, without of course any further due process.
and… it’s funny the law has to be specific about what it proscribes… but i can imagine a SC saying it’s not proscribing anything… it’s allowing the Defense Dept to round up terrorists. note the cynicism here..the law is directed at the Defense Dept, not proscribing any behavior on the part of those rounded up.
don’t think i see much here to be glad about.
and Obama should have “stood his ground” if he had any ground. if he has any “stood”. you don’t sign a bad law because the bad guys are going to make politics about it and “hope” the SC will “change” it.
I’ll take highly specific for $500 Alex. I have been following the case with interest – the government’s lawyer refused to answer the most basic questions regarding how a person of normal intelligence could manage to stay clear of this law. IIRC there was one point where it was asked if a person who wrote a book that sympathized with the political goals of Al Qaeda would be violating the law, the government’s lawyer declined to answer the question.
Reasonably defining proscribed behavior or speech is a minimal standard for both legislators and would be protestors. Without that definition no person could possibly expect to keep themselves within the law which I expect was sort of the point. This government already has enough arcane power without this “double super secret because we said so” crap.
Well, what’s at issue in this case is just the First Amendment question (whether this statute allows detention for activities that are protected by the First Amendment) and the vagueness question (whether it is even clear how broad this statute is—what the full range of activities are that are grounds for detention), coberly. These plaintiffs are asking the court to enjoin enforcement of the statute on those grounds, before they commit acts for which they might be detained under the statute. The issue of procedural due process for people once they are under detention is a separate issue, to be litigated only after someone is actually detained under this statute.
But you’re right, coberly, that the judge apparently almost bought the government’s argument that the statute doesn’t change already-existing law, and that that’s weird and scary.
No, one thing the Court won’t do is say that the law is directed at the Defense Dept., rather than at any behavior on the part of those rounded up. That would be the same as saying that criminal laws are directed at the police dept. or the U.S. Marshals Service, rather than at the people they arrest. That would be a bridge too far even for the tea bag crowd.
As for Obama, I don’t think he signed it because the bad guys were going to make politics about it—although some Dems voted for it for that reason. He made clear that he was strongly against it, and did force some too-minor changes in it before he agreed to sign it. He signed it because the Defense appropriations bill was being held hostage to it, and a failure to have a Defense appropriations bill enacted by the deadline would have caused serious havoc, especially for military families. But he should have drawn the line anyway. The Repubs would have to have backed down a day or two after the deadline. Again, though, he also was counting on the courts to strike it down, and that probably will happen.
Beverly
not being a lawyer i don’t have your faith (or “amateur socialist’s”) that after they arrest me for clearly defined act… such as wearing a blue hoodie on Friday… that “due process” will get me out of jail before i do something else crazy and, you know, try to escape, which is a crime even if you were jailed unjustly.
not sure about the Marshals Service and the criminal law. the criminal law says … “thou shalt not…” and then the marshal gets to arrest you on a charge that you did that which you shalt not. this law seems to give the Sec’y the “right” to arrest you on his own say so. so it’s not a matter of what you did, but of what the Sec’y can do. maybe i am morbidly sensitive in these manners.
nevertheless in my neighborhood we know what to make of a creep who sells his sister to the gangsters because they say they might take away his business license if he doesn’t, but he is just sure the hall monitors will say that gangsters did a bad.
Don’t—DON’T—misunderstand: I have absolutely no faith—none whatsoever—that if you’re arrested and charged with anything, you’ll necessarily actually get due process. But the question here is whether the statute itself is constitutional, not whether under the statute, you were supposed to have been accorded due process but weren’t. You’re right that the statute seems to give the executive branch the authority to detain you indefinitely on nothing more than the Secretary’s or the president’s say-so. That part of the law will be challenged down the road by someone who’s already been detained.
I kinda like your gangster-extortionist analogy. Funny. And I agree that Obama should not have given in on this. But he didn’t support that law and wasn’t afraid of being tagged soft on defense for being against it, which was my point. He just gave in to the extortion.
Don’t worry Bev
I think I can still tell the good guys from the bad. But it worries me when the good guys think the bad guys “could have been worse.”
The Constitution won’t protect us if we have given up any sense of right and wrong… or deferred to the “experts” how to protect the right from the wrong.
My apologies to any reader for my near incoherence on this subject. the fact is that it makes my heart sick to see America come to this.
it reminds me of the case of John Walker Lindh, and so I will remind you.
John was a teenager who could not find God in a suburban church in Marin county. for some reasons he thought he might have better luck studying Islam in Pakistan.
I would not have done this myself, but I can understand how a quite sincere young man might think the way he did.
While in Pakistan he got drawn into a relationship with “students” (aka Taliban) who convinced him the way to God was Jihad and he decided to join them to fight the warlords… who were notoriously bad people.
again, i would not have done this. but several hundred thousand young men in my part of the country made the same decision in 1861. young men are stupid and old men are crafty. those young men fought directly against “America”, but Lincoln forgave them.
Lindh did not fight against America. It is unlikely he even knew that the Taliban were on a list of people you were not supposed to “aid” unless you were an American oil company looking for a place to run a pipline.
Nor is it likely he even knew that America had declared war against the Taliban, because of course, American did not declare war. Just dropped bombs from a high altitude.
After the Taliban were driven into hiding, Lindh was captured by one of the warlords and turned over to the Americans who were so glad to rescue him they stripped him naked and put him in a storage crate for safe keeping.
then they brought him home and called him a terrorist. said he should be executed. tried him for “aiding the Taliban.” found him guilty and sentenced him to ten years. but a learned and wise judge noted that since he was “carrying explosives” while aiding the taliban , he was entitled to havin another ten years tacked on his sentence.
he is still in jail. it’s going on twelve years.
it make a fellow proud to be an American.
Forcing the government into increasingly ridiculous proscriptions ( no blue hoodies on Fridays! ) is exactly the point. I’m old enough to remember when wearing black armbands to protest the vietnam war in school was considered radical and then summarily proscribed.
Once you force the authorities to take increasingly ridiculous measures to try to stifle dissent you start helping everybody see how pitiful their position is. The Tinkers understood this too.
so did the Nazis.
Exactly. He should have drawn the line because the GOP would have had to back down. his failure to draw lines is the reason there is a very good chance we will have a bully in the White House come January.
there are two ways to run societies–by the rule of law or by the whim of the most powerful. Of all the disappointments of Obama’s presidency, his failure to move the needle very far in the rule of law direction is one of the biggest.
Terry
I agree with you, but here is a caveat about “the rule of law.” A story told by Thomas More who was about to be beheaded by the law:
A certain Roman emperor decided to punish his enemy by feeding his family to the lions. But Rome had a law that forbade feeding virgins to lions, and one of the family was a young girl. What to do? So he called his lawyers. No prob, said the lawyers. First deflower her, then devour her.
And they did.
More thought he could avoid the law by refusing to testify against himself. But Henry knew a trick worth two of that.
It’ll be overturned. I’m inclined to agree w/ Wittes @ Lawfareblog and Kerr @ Volokh that the decision was bizarre and will be overturned in short order.
We already know, thanks to decisions in Hamdan etal, that the President’s war time powers (triggered by the AUMF) include the right to detain. So that part of the law *has* been challenged and found constitutional.
Note also that this case wasn’t about due process; we know from the initial AUMF cases that the system as it exists and as codified by the NDAA is constitutional. The only question here is whether the detention authority is overbroad and sweeps within its scope protected first amendment speech.
“I don’t know whether such statements—and there are others—were brought to Judge Forrest’s attention. If not, the error seems to me egregious on the part of government counsel. Because whatever counsel could or could not say about the individual fact patterns at issue in the case, there is something the government has said publicly that is directly relevant to the concerns of both U.S. citizens and Icelandic parliamentarians and British activists who purport to fear U.S. military detention under either the AUMF or the NDAA: Whatever the law may theoretically allow, we don’t do that.” A Few Thoughts on Hedges By Benjamin Wittes
Thursday, May 17, 2012 at 8:14 AM
As a part of my routine work activities I have customers sign finance contracts with one of several nationally known banks. One of those banks requires two signatures. The second signature is the borrower’s acknowledgement of the terms of the loan contract. In effect the borrower’s recgonition of the terms of the agreement. The first signature, preceding the signature of agreement of terms, is itself preceded by this statement. “This contract contains the entire agreement between you and us relating to this contract. Any changes to this contract must be in writing and we must sign it. No oral changes are binding. Buyer signs___________________.” In other words, only what is written couonts.
Wittes is suggesting that because Obama and/or members of his administration have stated that they won’t seek to apply the full potential of the law then the law is not binding in those parts that they state will not be applied. Is he kidding. In the law only what is written counts. I can see it in the future. Hedges or some other person is on trial for violating the provisions of NDAA. As a part of his defense his attorney files documents demonstrating that the Obama said he wouldn’t do this or that. Hedges will be lucky if his family is informed as to his where abouts. By their silence on the issue government counsel made it clear enough that only what is written counts.
Thanks Jack.
otherwise i would not have known what jpe thought was bizarre.
scary.
jpe
good thing we aren’t worried about America the land of the free any more.