A decade of war on terror has created a culture of deference in which U.S. officials may restrict American civil liberties in the name of national security. This Wednesday, U.S. District Judge Katherine Forrest bravely challenged that culture.
President Obama is a former constitutional lawyer and sworn defender of the U.S. Constitution. If anyone knows about due process in the treatment of criminal suspects, he does. But on New Year’s Eve of 2011 he signed into law a bill that empowered the government to indefinitely detain without charge or trial anyone it suspects of providing “substantial support” to terrorists, including U.S. citizens, anywhere in the world.
Within weeks of the signing, Truthdig columnist Chris Hedges and a small group of journalists, activists and scholars filed a lawsuit against Obama and the U.S. government. Attorney Bruce Afran led the group to challenge Section 1021 of the law, which they argued restricted their First Amendment rights by making them question whether or not they could be jailed for associating with terrorist groups during the course of their work.
The United States District Court for the Southern District of New York held a preliminary hearing in late March. At that time Forrest, appointed to the position by President Obama, said she was “extremely skeptical” that the plaintiffs could demonstrate that the law curtailed their freedom of speech. She also made it clear she was compelled by a previous Supreme Court decision to “tread carefully” with cases concerning national security.
The case she referred to was Holder v. Humanitarian Law Project of 2010. At that time, the Supreme Court declared “material support” of terrorist groups, defined as giving “training,” “expert advice or assistance,” “service” and “personnel” to groups designated as terrorists, to be illegal. The decision had high-profile critics, including former President Jimmy Carter, who said:
“The ‘material support law’—which is aimed at putting an end to terrorism—actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”
Taken in conjunction with the indefinite detention clause of the NDAA, that decision puts more than just activists and journalists at risk. High-ranking officials such as Howard Dean, Fran Townsend, Wesley Clark, Ed Rendell, Rudy Giuliani, Tom Ridge could be jailed indefinitely for their associations with the Iranian dissident group MeK, which has been designated a terrorist group by the State Department for the last 15 years. The severity of the consequences of charges that could be brought against those officials may explain why they are lobbying to have MeK removed from the State Department’s terrorist list.
In a reversal of her initial reservations, on May 16, Forrest struck the indefinite detention part of the bill down, saying that language referring to “substantial support” of terrorism and individuals or groups deemed to be “associated forces” of terrorist organizations was too vague to ensure the law would not be used to silence American citizens whose speech could be interpreted as sympathetic to such groups. When asked to guarantee that such arrests would not be made, the government lawyer involved in the case five times said he could not answer.
Forrest rightly asked how the American public could be expected to follow the law if the government itself could not say whether such arrests would be made.
As Hedges said in a recent interview with “Democracy Now!”: “What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law.” The federal government will most likely appeal Forrest’s decision, and it is possible that the Obama administration will find a judge who could reverse the injunction. We will have to wait and see. But right now, we want to recognize Forrest for resisting the pressures of the age and of the official institutions everywhere around her, and for standing up for the rights of ordinary Americans. And so we honor her as our Truthdigger of the Week.
Read an extensive report on Forrest’s ruling here.
—Alexander Reed Kelly
James Cridland (CC BY 2.0)