Judge strikes down terror law scholars fear
Thursday, September 13, 2012
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 the journalists, writers and activists who filed a lawsuit against it, but she said the “shifting view” was not enough to erase the threat that people could face indefinite military detention for using their Constitutional rights.
She said the law “impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.”
In May, the judge temporarily struck down the law that subjects to indefinite detention anyone who “substantially” or “directly” provides “support” to forces such as al-Qaida or the Taliban. She listened to additional arguments last month and then made a final ruling, clearing the way for an almost certain appeal to the 2nd U.S. Circuit Court of Appeals.
While calling the law she rejected “unconstitutionally overbroad,” Forrest noted the government retains its abilities under a separate law to indefinitely detain people connected to the Sept. 11, 2001, terrorist attacks or those who are picked up on the field of battle in the war against terrorism. She said the government at some point without additional congressional authorization began to interpret 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 a lawsuit challenging the law required a determination as to exactly 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.
Ellen Davis, a spokeswoman for the U.S. Attorney’s Office, 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 she was “mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism” and 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 the 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.
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