In Hedges Case, Crucial Court Ruling on NDAA Up in the Air

After being trounced in federal district court last week, the Obama Administration won a stay Monday night in the case of Hedges vs. Obama. This is the case, brought by journalist Christopher Hedges, Daniel Ellsberg, Noam Chomsky, and five other plaintiffs, that challenges the constitutionality of a central part of the National Defense Authorization Act, which President Obama signed into law last New Year’s Eve.

The question at the heart of the case is whether the government, including the military, may indefinitely detain any person who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

Hedges and the other plaintiffs allege that this section of the law unconstitutionally chills their speech and associational rights and deprives them of due process because of the vagueness of such terms as “substantially supported” and “associated forces.”

On Sept. 12, U.S. District Judge Katherine Forrest agreed with them and issued a stinging rebuke to the government in a 112-page ruling.

“The statute’s vagueness falls short of what due process requires,” she wrote. She issued a powerful permanent injunction against the enforcement of this section of the law, S1021(b)(2). “No detention based upon 1021(b)(2) can occur,” she wrote.

The Obama Administration immediately appealed this decision, and Monday night, Judge Raymond Lohier of the U.S. Court of Appeals for the Second Circuit, issued a stay on Forrest’s decision at least until Sept. 28 when a three-judge panel is expected to rule on it.

If it stands, Judge Forrest’s decision will be a landmark in curtailing the overreach of executive power. Carl Mayer, one of the attorneys who brought the suit, likens it to the Pentagon Papers case. (Full disclosure: Mayer is a friend of mine.)

“The Court finds that S1021(b)(2) is facially unconstitutional: It impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process,” Judge Forrest ruled.

She pointed out the ludicrousness of the government’s position. “If a plaintiff does not know what ‘substantially support’ means, could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have ‘substantially supported the Taliban? How about a YouTube video? . . . Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is ‘modest’ or ‘substantial’?”

“Actual chilling has occurred” already, she concluded, noting that “Hedges testified that he changed speeches he planned to make, avoided certain associations, and was concerned about articles or writing he expected to undertake. . . . Such chilling of speech constitutes actual injury.”

She rebutted the Justice Department’s claim that the plaintiffs should have waited until the government had gone after them before challenging the law. “These plaintiffs need not wait until they have been detained and imprisoned to bring a challenge,” she wrote. “The penalty is simply too severe to wait.”

And she warned the government that she would likely hold it in contempt if it went ahead and tried to detain anyone under this section.

If you liked this story by Matthew Rothschild, the editor of The Progressive magazine, check out his story “Free Speech Advocates Defiant in Madison, WI."

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