Judge Enjoins NDAA Section 1021 because Government Implies Speech May Equal Terrorism

The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

When Judge Katherine Forrest asked the government, repeatedly, for both generalized clarification and descriptions specific to plaintiffs like Chris Hedges and Brigitta Jonsdottir explaining the scope of Section 1021 of the NDAA, the government refused to give it. Not only was the government unwilling to reassure that even a Pulitzer Prize winning journalist like Hedges would not be indefinitely detained as “a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces” if he reported on any number of terrorist groups, but it also refused to explain the meaning of the section generally.

Which is the core reason why Forrest not only ruled that the plaintiffs have standing and the case should go forward, but also enjoined any enforcement of Section 1021. In explaining this, she noted that she was forced by the government’s refusal to give clarification to assume that the government believes First Amendment speech is included in the orbit of “substantially supported” that might be indefinitely held under 1021.

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

[snip]

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

I spent much of the day explaining to people why Obama’s Yemen EO is so troubling. I’ve had to describe all the things that have transpired that have criminalized speech since Obama issued a similar EO in 2010–the decision in Holder v. Humanitarian Law Project, the conviction of Tarek Mehanna, and the charging of Bradley Manning with aiding the enemy.

Now I can point to Forrest’s opinion to show that the proposition that journalists might be prosecuted for material support of terrorism for their First Amendment speech–to the extent it’s an extreme proposition–it is the government’s extreme proposition.

Forrest used the government’s stubbornness against it in one other way, too–to get past the rather high bar on whether to issue a preliminary injunction or not. The decision on whether to issue an injunction or not depends on a lot of things. But ultimately, it requires a balancing test between the hardships imposed on the plaintiff and the defense. And since–Forrest explained–the government repeatedly insisted that Section 1021 does no more or less than what the AUMF already does, then enjoining the enforcement of 1021 would not harm the government at all.

In considering whether to issue a preliminary injunction, the Court must consider, as noted above, “the balance of the hardships between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.

The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation–which is nil–then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.

While most of Forrest’s ruling involved hoisting the government on its own obstinate petard, she also left a goodie in her ruling for the higher courts that will surely review her decision after the government surely appeals (unless Congress passes a fix to the NDAA tomorrow, as they might). Forrest established the importance of speech by pointing to … Anthony Kennedy’s opinion in Citizens United.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.

If corporations can avail themselves of unlimited campaign speech, then mere journalists and activists ought to be able to engage in political speech without being indefinitely detained.

And yet, it took a judge to make that argument to the government.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

16 replies
  1. P J Evans says:

    In other news – a district court apparently has told the Baltimore police (again) that they can’t stop people from filming them, and the people doing the recording are exercising their Constitutional rights.

  2. MadDog says:

    I found the US government’s arguments (and many non-argument arguments) as repeatedly documented by Judge Forrest to be about as silly a thing I’ve read in quite a long time.

    These surely can’t be real lawyers working for our Department of Justice, can they?

    This was all meant to be a comedy opening real soon way, way off Broadway, right?

    Yes, nobody says that lawyers have to pass an IQ test. Just the bar evidently.

    Judge Forrest laid bare for all the world to see just how duplicitous and underhanded the US government has been in construing that the 9/11 AUMF covers persons and groups that weren’t even in existence at the time of 9/11 much less had anything to do with it.

    The only thing lacking from the ludicrous defense these US government lawyers put up was trying to convince the Judge that all their legal provisions were actually really written in the 9/11 AUMF, but with invisible ink.

    Shorter DOJ: “If you just squint a little bit harder Judge Forrest, we’re sure you’ll be able to make out those extra provisions…and a picture of Jeebus in this exclamation mark as well.”

  3. MadDog says:

    @emptywheel: Makes a wet noodle look rigid. *g*

    And an update: I figured it wasn’t my place to jump in, so I didn’t in that other post of yours.

    If I had jumped in, I was planning to say something like: Oh oh! Looks like somebody got into the catnip again.

  4. Scarecrow says:

    So, if this does nothing more than the prior statute, so the govt suffers no harm if it goes, then logically the prior statute is unconstitutional for the same reasons.

  5. MadDog says:

    @Scarecrow: My thought is similar.

    If a Federal judge is saying that there is no “associated forces” thingie in the 9/11 AUMF as the Executive branch has magically construed, and Congress has deliberately “heads in the sand” gone along with this without having the fortitude to explicitly to say so, then it seems to logically follow that the US is conducting warfare and assassinations, and indefinitely detaining people on a global battlefield without a legal leg to stand on.

  6. joanneleon says:

    Yes, you did spend a lot of time explaining things and providing background today and I thank you for it.

    And now I really get it — re: the new Executive Order.

    Wow, the timing on these two things could not be more perfect. At first I saw no real relation between the NDAA and this EO and then when I was loading this page I realized how closely the two are tied. I’m still holding onto too much naivete in that it doesn’t occur to me that journalism is, in any way, any kind of support for the terr’ists or “associated forces” (whoever the heck that is).

    Love how the judge tucked that Citizens United quote in there.

    One last thing. All of this is so important and I don’t think that even a tiny fraction of Americans even realize what’s going on. Are these blog posts and comments potentially covered by either or both the EO and NDAA? That would be absurd. But all of this is absurd.

  7. joanneleon says:

    They can assassinate you with no due process, not a peer or a judge or a court in sight. But they can’t even give you a clear example of what violates the law, of what act might get you detained or blown to bits by your own government.

    And yet, our Congress passed that law and our president signed it. Furthermore, some zealous partisans on some (formerly?) progressive blogs have been pounding their fellow commenters, insisting that NDAA does not allow American citizens to be locked away or killed by their own government without due process. But if that were so, why is Congress revisiting the NDAA?

    Look at that hubris. Look at what they think they can do and get away with against the people who voted them into office to be their voices in a representative government.

  8. Nox Ninox says:

    Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

    A rare case where a procedural pleading (or lack thereof) could actually be evidence of a constitutional violation.

    The government could have made the whole case disappear simply by declaring the allegations all just a big roll of tin foilism. Yet it categorically refused to state that the plaintiffs would not be subject to indefinite detention for the specific activities outlined in the complaint.

    By this refusal, the plaintiffs now know (rather than just surmise) that the government intends the NDAA to apply to their activities, so isn’t it reasonable to assume the plaintiffs would now feel even more intimidated about exercising their 1st Amendment rights than they felt prior to filing the lawsuit?

    I know I would.

  9. bmaz says:

    I too am taken with the parallels between Forrest’s decision in Hedges and the new EO and have been surprised more people are not making that connection for argument.

    I sympathize with the thoughts of Scarecrow and MadDog but, ultimately, there are paths to discrimination between AUMF and the NDAA that a reviewing court could very easily hang their hat on; most notably the fact that AUMF presents a less vague and wide open set of targets for coverage and subject activity.

    Lastly, as much as I relish this decision, I think it pretty likely that it is short lived. The 2nd Circuit may be behind only DC Circuit in hostility toward parties challenging the govt position on terrorism cases. I think Forrest’s decision will get a rather chilly reception on appeal, and I think that if past is prologue, the govt will move fairly quickly with that appeal. On the positive side though, important points in relation to the critical standing issue were made and bolstered with a court finally calling out the govt for their obstinate arrogance.

  10. Jeff Kaye says:

    The endless war against a rhetorical object, but whose victims are all too real and are made of flesh, must end, before the assault on democratic rights enters its final stage. Repeal the AUMF.

    We need a new political party whose leaders will not genuflect to the military and the intelligence agencies, and their corporate overlords.

    This is not hyperbole. Anyone alive who is over 50 knows the changes that have taken place already are profound. (Think about this, bmaz.)

    First they came for the Muslims…

  11. MadDog says:

    @bmaz: When I read the posts today of the legal beagles (as opposed to Legal Eagles) over at Lawfare regarding Judge Forrest’s decision, I was not surprised.

    Like the DC Circuit itself, the vast majority of Lawfare bloggers are either dyed-in-the-wool conservatives or at the very least, government-supportive.

    I take your view on the 2nd Circuit as typically well-informed, so it may be that Judge Forrest’s decision will not stand for long.

    However, I must still applaud Judge Forrest’s clarity of vision.

    She too has seen the Emperor, but unlike most at Lawfare and most in the DC Circuit, she has come right out and stated the Emperor has no clothes.

    The folks over at Lawfare seem unable to or unwilling to admit that not every federal judge is a toady to Executive branch preferences, and I find the positions of those at Lawfare who can’t understand why Judge Forrest didn’t display more fealty to the DC Circuit’s assistance in creating those Executive Branch’s clothes out of whole cloth more tiresome than laughable.

    The Executive Branch’s and DC Circuit’s construction of “associated forces” out of thin air, and Ben Wittes’ insistence that Judge Forrest of the 2nd Circuit should automatically and blindly be subservient to the DC Circuit’s imaginary constructions seems to have Ben in a tizzy.

    It seems in Ben’s world, there is a ruling tier of judges right below that of the Supreme Court that all other Districts must defer to, and that is the DC Circuit.

  12. Joe Giambrone says:

    Unending assaults on civil liberties must be stopped, but how? What are the prospects of creating a permanent independent prosecutor to serve as a watchdog on executive branch violations of the constitution? Would not there be a chilling effect on presidential malfeasance if an independent eye was keeping track of every overstep and mockery of the Bill of Rights?

    Right now, it’s more of a joke than a system of “checks and balances.”

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