Plaintiffs, who won a preliminary injunction in May against a provision of the Homeland Battlefield Act or the National Defense Authorization Act (NDAA), are pushing for a permanent injunction to this provision of the NDAA. Citing recent statements made by the United States government that it made in a filed brief to a federal court, plaintiffs now have a heightened fear that that the provision—specifically known as Section 1021, which Judge Katherine B. Forrest temporarily enjoined—could potentially be used against them for engaging in First Amendment activities.
The plaintiffs bringing the case include: Chris Hedges, a journalist; Daniel Ellsberg, who is known for releasing the Pentagon Papers; Noam Chomsky, a well-known writer; Icelandic MP Birgitta Jonsdottir; Tangerine Bolen, founder of RevolutionTruth.org; Kai Wargalla, deputy director of Revolution Truth and founder of Occupy London; and Alexa O’Brien, journalist and founder of US Day of Rage. All have done work on civil liberties and human rights and, according to Bolen, are concerned that the law’s language is “dangerously vague” and grants the US government the power to “arrest any American citizen (or anyone, anywhere) without warrant and to indefinitely detain them without any charge” for engaging in work as an activist or journalist.
In a reply brief recently filed, it outlines one key development in the lawsuit where the government is invoking an “independent expression” standard that plaintiffs’ attorneys consider to be one of the clearer indications to date that the provision could be used against those who engage in advocacy or journalism:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.
The attorneys home in on the terms, “independent,” “without more,” and “solely” to suggest this only inserts more “ambiguity and chill as neither the plaintiffs nor other speakers know what the government considers to be speech that is ‘solely…independent,’ a virtually [sic] impossibility since nearly all speech is made in conjunction with interested actors, such as the terrorists a journalist interviews or the sources a writer consults.” In other words, the plaintiffs who are journalists are not from establishment media organizations and there exists the possibility that the government would dispute whether they were a legitimate media organization by calling into question their independence from the views or ideology espoused by individuals the government considers to be “terrorists” or, as described in the NDAA, “associated forces” of “terrorist groups.”
The brief goes on to detail a footnote that shows Hedges, as an “accredited New York Times correspondent,” was once detained in Saudi Arabia because the US decided “he had been reporting outside of the press pool system.”
Such evidence buttresses Plaintiffs’ contention that there is no clearly delineated zone of protection under U.S. policy for what the Government calls “independent” advocacy. The court itself found that Mr. Hedges’s ordinary activities as a journalist have him “all over” groups that “could be under the law construed as co-belligerents”. The Court further found that Mr. Hedges’s ordinary work causes him to be identified with forces that are “potentially considered associated forces”. The record shows he was detained by the U.S. routinely at airports for no reason other than having performed his “independent” journalism. Nowhere has the Government offered a basis on which to refute such findings.
O’Brien, who founded US Day of Rage, has had her group associated with Muslim extremist groups by individuals in the US government (Homeland Security issued an “investigative alert”). The government has subpoenaed the “communicative records” of Jonsdottir. Thus, it is clear these are people who engage in First Amendment activities of which the government finds to not be ”independent” enough to not investigate or target them.
The government’s mention of this “independent” standard makes it seem like “only ‘independent expression’ or ‘independent advocacy’ is safe, leaving open the vast array of associated, non-independent speech to be subject to detention.” And, while the government has maintained the NDAA does not “implicate speech,” they now put forward this standard of which the plaintiffs’ attorneys ask, why is there “a need for an assurance that the law will not punish ‘independent’ expression or advocacy?”
Attorneys for the plaintiffs contend the government has, by mentioning this “standard,” acknowledged it will “seek detention based on the speech of those who are not independent of al Qaeda, the Taliban or their associated forces.” It has, in fact, “invested” the NDAA with the “untrammeled power to detain those it believes speak in a manner that is not ‘independent’ of such groups.” They add that employing such a “standard” is “nothing less than an evisceration of the First Amendment.”
For now, Judge Forrest has temporarily blocked the government’s ability to enforce the Section 1021 provision. In her ruling, she found the plaintiffs had put forward “specific evidence of actual and threatened irreparable harm” and determined it was in the “public interest” to rule in favor of the plaintiffs and issue a preliminary injunction. She specifically homed in on an argument the government was making that the Homeland Battlefield Act provision is simply an “affirmation” of the Authorization of Use of Military Force (AUMF). She declared it is not a “mere redundancy” that “has no independent meaning and adds absolutely nothing to the Government’s enforcement powers.” Moreover, she determined it lacked “what are standard definitional aspects” that “define the scope of specificity.” [I intend to revisit this issue over whether the NDAA detention authority is the same and not different than the authority under the AUMF in a future post.]
A final note worth making is the government actually wrote in its brief to the court against a permanent injunction that “it is not enough for plaintiffs to simply ‘put forward evidence’…or to ‘put forward uncontroverted proof’ in order to establish standing to bring the case in court. The attorneys incredulously ask, “If ‘evidence’ and ‘uncontroverted proof’ are not sufficient to establish standing, then what should the plaintiffs offer?”
The plaintiffs’ attorneys ask the appropriate question, but, given the scale of pretzel logic that the government is relying on to prop up its arguments, one doubts the government could ever give a straight answer to this question.
In the coming week, the judge is scheduled to hear oral argument and decide whether to permanently enjoin this section of the NDAA or not. Additionally, I’ll be participating in a panel sponsored by Revolution Truth that will feature Carl Mayer & Bruce Afran (Legal Team), Daniel Ellsberg, the Honorary Birgitta Jónsdóttir, David Segal of Demand Progress, filmmaker Laura Poitras, Jacob Appelbaum, Margaret Flowers and Kevin Zeese. To tune into the panel, which is scheduled for 6 pm EST, go here.