NEW YORK (AP) — A judge on Wednesday
struck down a portion of a law giving the
government wide powers to regulate the detention,
interrogation and prosecution of suspected terrorists, saying it left
journalists, scholars and political activists facing the prospect of indefinite detention for
exercising First Amendment rights.
U.S. District Judge Katherine Forrest in
Manhattan said in a written ruling that a single page of the law has a
"chilling impact on First Amendment rights." She cited testimony by
journalists that they feared their association with certain individuals
overseas could result in their arrest because a provision of the law subjects
to indefinite detention anyone who "substantially" or
"directly" provides "support" to forces such as al-Qaida or
the Taliban. She said the wording was too
vague and encouraged Congress to change it.
-- Federal judge:
Terror law violates 1st Amendment, Larry Neumeister, today
I wrote
about this case on AB back in January and said that there's no question but
that that part of the law is unconstitutional. I said back then that the only real question in that
case is whether the plaintiffs, Truthdig columnist Chris Hedges and a few other
journalists, have “standing” at this point to challenge the constitutionality
of the law—that is, that they could show that things they themselves want to do
are things for which, under the statute, they possibly could be detained. According
to today’s AP report, the government’s lawyer effectively acknowledged at the
oral argument in the case in March that that’s possible.
That clarified that the
statute is as broad and as amorphous as the plaintiffs say it is—that there is
no way even to know whether certain activities could result in detention (a
violation of due process, which requires that laws be specific about what is
proscribed), and also that the statute authorizes detention for activities that
are protected by the First Amendment, including activities of the sort that
these plaintiffs had engaged in and plan to engage in in the future.
This
ruling is almost certain to be affirmed on appeal in the Second Circuit Court
of Appeals, based in New York. But ultimately, the Supreme Court
will have to hear the case. If, as I expect, the appellate court
affirms the trial judge’s ruling striking down the law as unconstitutional, the
Supreme Court will hear the case, because the Court always agrees to hear cases
in which a lower appellate court has invalidated a federal statute. And
in the unlikely event that the appellate court reverses the trial judge’s
ruling, the Court will hear this case because the First Amendment and due
process issues are just too clear and too important here, and because the law
so clearly does violate the First Amendment speech and assembly clauses and (because
of its vagueness) Fifth Amendment due process rights. I have no
doubt that the Supreme Court will strike it down as unconstitutional.
It
should be noted here that the only reason that Obama signed the law last
December is that it was
a poison pill that the House Republicans inserted into a Defense Department appropriations
bill that was passed under deadline and that was necessary in order to avoid an
interruption in salary to military personnel, among other things, if I recall
correctly. The Republicans’ purpose, of
course, was to try to fabricate a Dems-are-soft-on-terrorism issue for the
November elections. As I said in my
January post, Republican pols think it’s still 2002. Or at least 2004. Or maybe even 1980. Or 1968. It’s not; they don’t realize
that that well’s finally run dry, but it has.
Obama should have stood his ground, although some congressional Dems voted
for the appropriations bill, for fear of political repercussions. When Obama signed it, he said he thought that
part of the law may well be stricken down as unconstitutional, and I do think
that that’s what he expected. Still ….
