Hedges' Appeal and Why the Permanent Injunction Against Indefinite Detention Should Be Upheld

Last May, Judge Katherine Forrest of the District Court for the Southern District of New York heard Hedges v. Obama. A group of

writers and activists, among them Christopher Hedges (a former New York Times war correspondent and Pullitzer Prize Winner), Kai Wargalla (Deputy Director of Revolution Truth and founder of Occupy London), Alexa O’Brien (founder of U.S. Day of Rage), and Hon. Brigitta Jonsdottir M.P. (an Icelandic parliamentarian and activist), sued the Obama administration over Section 1021(b)(2) of the National Defense Authorization Act of 2012 (“NDAA”). This section in particular describes “covered persons,” those that, under subsection (a) may be detained “pending disposition under the law of war” based on the authority provided to the Executive under the Authorization for Use of Military Force of 2001 (“AUMF”). Such covered persons include those that appeared in the original AUMF, but subsection (b)(2) added:

A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. 

              Terms such as “substantially supported” and “associated forces” were left undefined, alarming the Plaintiffs that the activities they engaged in – for instance, interviewing terrorists – would cause them to be picked up by U.S. authorities and be detained indefinitely. A main argument of the Plaintiffs’ case was that this section would chill speech and speech-related activities protected under the First Amendment to the Constitution. They also argued that the section, lacking proper definitions and scope, violated the Fifth Amendment right to due process, as it was void for vagueness.

Judge Forrest’s May ruling found that section 1021(b)(2) was unconstitutional based on the above grounds and issued preliminary injunction preventing the Executive from enforcing the section pending a future order of the court or Congressional action. Judge Forrest clarified her order in early June, stating that the section was enjoined not just towards the Plaintiffs but also in any and all applications. The government appealed the preliminary injunction, and after oral arguments in August, the SDNY, chaired by Judge Forrest, decided to permanently enjoin section 1021(b)(2) on September 12, 2012. The government notified its decision to appeal just a few days after the decision came out and requested a stay pending the appeal, the latter of which the court denied.

The government recently filed its opening brief to the Second Circuit Court of Appeals on Wednesday, November 7, 2012. The brief directly rebuts Judge Forrest’s findings that the Plaintiffs do have standing (despite the government’s revised position over the summer that none of the Plaintiffs’ activities prior to the March 2013 oral arguments would subject them to section 1021(b)(2)) and argues that war authorizations have historically been broad and that section 1021(b)(2) is more specific than other authorizations, therefore it should not be subject to a First Amendment or due process vagueness challenge.

The government’s brief, however, fails to reach the core of the issue presented: that there are no definitions and virtually no limits and to the scope of the Executive’s detention power, as to those persons who “substantially support” al-Qaeda and “associated forces.” As Judge Forrest mentions in her September 2012 decision, the consequence is potentially indefinite detention, and a habeas corpus suit, once in detention, is no “solution,” as those cases have been dragging on for years following 9/11.  The liberty stakes at interest are high, to say the least. Further, it is not enough, after having a lawsuit filed, to simply state that the plaintiffs past activities would not subject them to section 1021(b)(2). This change of position gives no parameters to others whose activities are related to those of the plaintiffs and may put them in grey areas, as far as the government in its fight against terrorism is concerned. To add to the problem, not every journalist or person whose liberty and constitutional rights may be affected can bring suit against the government and pray that the government will issue a statement that they are in the clear, again only for past activities but without guarantees moving forward, nor would this be the most effective use of judicial resources.

For these reasons, the permanent injunction of section 1021(b)(2) should be upheld on appeal. To allow it to stand is to perpetuate and expand the role of an ever-growing national security-type state, one that is inconsistent with a country that respects civil rights.  As the government has stated, section 1021(b)(2) added “nothing new” to its toolkit; thus, in accordance with the broadly worded AUMF, and its jurisprudence, the government is in the same place without this section on the books.