In New York Aug. 6, federal prosecutors filed a notice of appeal to reinstate a provision of the National Defense Authorization Act that authorizes the president to indefinitely detain “under the law of war without trial” any person the president deems to have engaged in or “substantially supported” terrorist acts against the U.S. The same provision also grants the president the power to extra-judicially relocate and surrender American citizens to foreign jurisdiction.
Earlier this year a civil suit was filed by a group calling themselves the “Freedom 7”. They included Pulitzer Prize-winner Chris Hedges and linguist, philosopher and social activist Noam Chomsky. Plaintiffs argued that section 1021 violated their rights to free speech, due process and freedom of association. Journalists would be in danger of losing their liberty just for doing their jobs.
District Judge Katherine Forrest agreed and ruled section 1021 was unconstitutional on May 16, deeming that it was too vague, threatened the plaintiffs’ right to due process and would have a “chilling impact on First Amendment rights.”
Assistant U.S. Attorney Benjamin Torrance had argued that the NDAA doesn’t give the president or military any new powers, but merely reiterates powers granted under Authorization for the Use of Military Force adopted shortly after Sept. 11. He also said the law still allows room for judicial oversight, because people detained under the act can file habeas corpus petitions.
“How long does a petition take?” Forrest asked.
Torrance said he didn’t have the numbers in front of him.
“Several years, right?” Forrest offered.
Now the Department of Justice seeks to overturn Forrest’s preliminary injunction. Listed as defendants on the motion are President Barack Obama and Secretary of Defense Leon Panetta. The Obama administration seems determined in this despite Torrance’s assurances that section 1021 does not grant the president any new authority, whether to abrogate free speech, free press, habeas corpus, trial by peer or due process of law. These concerns are cited in Forrest’s written opinion.
Federal prosecutors have also argued that the “Freedom 7” has no standing to bring a case against the NDAA. Plaintiffs’ activities do not fall under section 1021.
Furthermore, the plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention,” said prosecutors in a court filing.
“The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs—or others—are not within Section 1021. It did not,” Forrest stated in her written opinion.
The 2nd U.S. Circuit Court of Appeals will decide the merits of the appeal and the standing injunction.