Moral Low Ground

US Government

‘The Moral High Ground’: Federal Judge Katherine Forrest Strikes Down NDAA Indefinite Detention Provision, Cites “Chilling Impact on First Amendment Rights”

Under the NDAA, this could be you.

A federal district judge in New York has struck down a highly controversial portion of a law that gives the government the power to indefinitely detain even US citizens if they are suspected of supporting terror groups.

The Associated Press reports that US District Judge Katherine Forrest in New York City issued a written ruling Wednesday asserting that the provision, tucked into the 2012 National Defense Authorization Act (NDAA) quietly signed by President Barack Obama on New Year’s Eve, has a “chilling impact on First Amendment rights.”

Judge Forrest cited testimony by journalists who said that they operated under a cloud of fear that their association with certain unsavory or unpopular individuals could get them arrested under a provision of the law which allows for the indefinite military detention of anyone– including Americans– who “substantially” or “directly” supports groups designated as terrorist organizations.

“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” Forrest wrote.

Forrest also said she was concerned that the government could target people who express views that “may be extreme and unpopular as measured against views of an average individual.”

“That, however, is precisely what the First Amendment protects,” she wrote.

Judge Forrest cited the March testimony of Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaeda members and spoken with Taliban members during various foreign speaking events. Hedges has also covered 17 different groups on the State Department’s terror list. Hedges said that the new law has caused him to consider altering speeches where al-Qaeda or Taliban are present.

Hedges hailed the judge’s ruling as “a tremendous step forward for the restoration of due process and the rule of law.”

“Ever since the law has come out, and because the law is so amorphous, the problem is you’re not sure what you can say, what you can do and what context you can have,” he told the Associated Press.

President Obama, who originally threatened to veto the ominous measure as it made its way through the House and Senate, signed the bill into law when few were paying attention on New Year’s Eve. The president’s change of heart came after the bill’s language was altered so that instead of mandating the indefinite military detention of US citizens, it merely allows for such detentions.

Obama, who expressed his “serious reservations” about the bill even as he signed it into law, vowed never to subject any Americans to indefinite detention. But that was small comfort to those who noted that A) there’s no telling what future administrations would apply the law, and B) that Obama has broken many of his past promises.

Judge Forrest had been more understanding of the government’s point of view, which was that the seven plaintiffs in this case (including Hedges) had no legal grounds to sue and that the government had not changed its practices since the September 11, 2001 terror attacks. But when she asked a government lawyer if he could guarantee that the plaintiffs would not face indefinite detention under the NDAA for doing their jobs, the attorney could grant no such assurance.

The government’s failure to do so, Forrest wrote, means she can only assume that it believes the law applies to “a wide swath of expressive and associational conduct.”

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