U.S. District Judge Katherine Forrest did the right thing for the second time in four months when she permanently affirmed an earlier ruling that blocked a statute giving the government detention powers that could put journalists and activists behind bars.
“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest wrote in her ruling. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”
Forrest ruled in favor of a group of journalists, scholars and political activists, including Truthdig columnist Chris Hedges, who argued that the National Defense Authorization Act passed in the final minutes of 2011 could be used to indefinitely imprison anyone suspected by the government of having “substantially supported” terrorists or “associated forces.”
She questioned in her 112-page opinion whether a news article perceived as favorable to the Taliban and garnering support for the Taliban could be considered to have “substantially supported” the Taliban?
“How about a YouTube video? Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda?’” she asked. “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?’”
Ellen Davis, a U.S. Attorney’s office spokeswoman, said the government had no comment.
Forrest subsequently found the statute in question to be unconstitutional, the language too vague to guarantee the protection of Americans’ freedom of speech. She left lawmakers to cut or reform that section of the law.
Congress might have scrambled to do just that had the government not been granted a temporary freeze on Forrest’s ruling days after the injunction was made permanent. President Barack Obama’s Justice Department lost no time in attempting to overturn the decision. A higher appeals court declared that the suspension would harm the U.S. government’s ability to fight wars overseas. That court was satisfied by government lawyers’ assurances that the plaintiffs in the lawsuit had no reason to fear being imprisoned for their work. Obama had indicated as much in a signing statement written on the night he executed the law. Hedges and the other plaintiffs were not comforted, however, understanding that even if the president kept that promise, there was no guarantee that his successors would do the same.
Disagreement with Forrest’s decision extended beyond the appeals court. An opinion piece appearing in The Wall Street Journal in the days after the ruling, written by an apologist for untrammeled executive power, said the plaintiffs’ suit “ought to have been tossed on standing grounds alone.” Why? Because Hedges and company had not yet been detained, and in the author’s apparently prophetic view, were “never likely” to be detained, as the Obama administration had guaranteed that “As a matter of law, individuals who engage in independent journalistic activities or independent public advocacy ... are not subject to law of war detention.” The president is infallible and should be taken at his word.
To bring the matter to court, the author wrote, Forrest had to “invent … a potential risk.”
Such credulous reasoning, which nowhere acknowledges that when asked directly by Forrest government lawyers could not guarantee journalists would not be imprisoned under the law, is the well-intentioned rhetoric that tyrannies that come to replace civilly concerned democratic republics are made of. And it is reasoning that the U.S. Supreme Court, with its record of sympathy for executive power, shares and would most likely confirm, should it ever see the NDAA case.
For frustrating a government, however briefly and quixotically, that seeks to do away with due process and take for itself the power to decide guilt and innocence that our Constitution gave to the judiciary, and that is run by an administration that put her in her current seat, we once again honor Judge Katherine Forrest as our Truthdigger of the Week.