Calls law ‘unconstitutionally overboard’
By Larry Neumeister
Associated Press
NEW YORK (AP) — An anti-terrorism law was struck down Wednesday by a federal judge who said she saw legitimate fears in claims by journalists, scholars and political activists that they could face indefinite detention for exercising First Amendment rights.
U.S. District Judge Katherine Forrest in Manhattan said the government has softened its position toward those who filed suit challenging the law, but she said the “shifting view” could not erase the threat of indefinite military detention. She urged Congress to make the law more specific or consider whether it is needed at all.
“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Forrest wrote. “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.”
In May, the judge temporarily struck down the law subjecting to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She heard additional arguments last month before issuing the final ruling, likely to be appealed to the 2nd U.S. Circuit Court of Appeals.
While calling the law “unconstitutionally overbroad,” Forrest said the government can use another law to indefinitely detain people connected to the Sept. 11, 2001, terrorist attacks or others picked up on the field of battle. She said the government at some point without additional congressional authorization began interpreting its detention authority more broadly.
“In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention,” Forrest wrote.
The judge said the government struggled to explain what the statute means and what and whose activities it was written to cover.
“That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties,” she said.
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.
Plaintiffs’ lawyer Bruce Afran called the ruling “very historic” and said it was rare in the last half century that a judge would declare a federal statute unconstitutional for directly intruding on speech.
“But it was a very extraordinary attempt by the government to provide punishment for speech,” he said.
Among plaintiffs who testified at a March hearing was Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members, conversed with members of the Taliban during speaking engagements overseas and reported on 17 groups named on a list prepared by the State Department of known terrorist organizations. He testified the law has led him to consider altering speeches where members of al-Qaida or the Taliban might be present.
The judge said that she was “mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism” and that the high stakes of those efforts and the executive branch’s expertise mean the courts owe the political branches “a great deal of deference in the area of national security.”
But she said the Constitution places limits on the president’s power to act and requires courts to safeguard core Constitutional rights. She noted that scattered cases during World War II when the Supreme Court sanctioned undue deference to the executive and legislative branches resulted in actions that “are generally now considered an embarrassment,” such as the internment of Japanese Americans based on wartime security concerns.
Forrest called the government’s suggestion that the court’s role be limited to a post-detention habeas review “without merit and, indeed, dangerous” because cases would take years to be resolved and are reviewed under a lesser legal standard.
She said if habeas petitions that allow prisoners to challenge their detention are the only way for those detained under the law to gain freedom — even U.S. citizens on U.S. soil — then “core Constitutional rights available in criminal matters would simply be eliminated.”
She added: “No court can accept this proposition and adhere truthfully to its oath.”
