Editorial / The New York Times & Jennifer Peltz / The Associated Press – 2012-09-16 00:25:15

Freedom vs. ‘Security’: A Post-9/11 Conundrum
Editorial / The New York Times

NEW YORK (September 13, 2012) — For 11 years, Americans have struggled to reach a sensible legal balance that protects both national security and civil liberties — an existential challenge made harder by the last president’s wild excesses and abuses of power in the name of combating terrorism. This week, a vote in Congress and a decision by a federal judge, Katherine Forrest, made starkly clear how much that remains a work in progress.

With little in the way of real debate or scrutiny, the House voted 301 to 118 to extend the FISA Amendments Act for five years, an unfortunate law passed in 2008 that expanded the government’s power to conduct surveillance without warrants in the future. It also retroactively approved the George W. Bush administration’s unlawful snooping in broad violation of Americans’ constitutionally protected privacy.

Moving in the other direction, Judge Forrest, of the Southern District of New York in Manhattan, on Wednesday permanently enjoined a controversial provision of a 2011 law in which Congress codified expansive interpretations of a president’s authority to detain individuals indefinitely, beyond the real needs of the war in Afghanistan, the campaign against Al Qaeda or legitimate counterterrorism efforts in general.

The judge was right to challenge government’s claims of ever-expanding, unsupervised detention authority around the world, but her ruling seemed overly broad in points and could be overturned by a higher court.

The ruling follows a temporary injunction granted in May against the law, which goes beyond the perpetrators of the Sept. 11, 2001, attacks to people who are part of or “substantially” supported Al Qaeda, the Taliban or “associated forces” hostile to the United States or its allies.

Chris Hedges, a journalist who formerly worked for this newspaper, and several supporters of WikiLeaks said it was too imprecise about the conduct that could lead to someone’s detention and exactly who could be detained.

The plaintiffs said the statute chilled their First Amendment rights because they feared the government might claim their activities made them supporters of an enemy force and subject to detention.

Judge Forrest agreed, saying the Constitution requires more specificity when “defining an individual’s core liberties.” She was especially troubled by the government’s inability to define terms like “substantially supported” and “associated forces,” despite ample opportunity to do so during the course of the lawsuit.

She also was swayed by what she saw as the government’s failure to eliminate the plaintiffs’ fears by unequivocally stating that no First Amendment-protected activities would subject them to indefinite military detention.

The judge makes plain that the outcome would likely have been different had the government offered an authoritative official statement that “protected First Amendment activities occurring by Americans on American soil.” The failure to do so, she found, bolstered both the plaintiffs’ standing to sue, as well as their claims.

The judge’s willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority.

Unfortunately, the ruling does not fully address existing case law on detention authority or an amendment to the 2011 law that should be read to protect Americans and others in the United States from indefinite detention. Those issues, and the breadth of the injunction seem certain to be appealed.

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Feds Seek Stay of Anti-Terrorism Law Ruling in NYC
Jennifer Peltz / The Associated Press & ABC News

NEW YORK (September 15, 2012) — Feds ask judge in NY to stay ruling striking down law dealing with suspected terror supporters. The federal government asked a judge on Friday to suspend a ruling that bars enforcement of an anti-terrorism law that she called unconstitutional in its provisions for indefinite military detention.

The law allows detention of people suspected of “substantially” or “directly” providing support to groups such as al-Qaida or the Taliban. Some journalists, scholars and political activists sued over the law, saying they feared they could end up being held for exercising First Amendment rights.

Government lawyers called such concerns unfounded, but US District Judge Katherine Forrest said in her ruling Wednesday that she found them legitimate.

In court papers filed Friday, the US attorney’s office in Manhattan asked for a stay of the decision while the government appeals.

The law concerns “the president’s exercise of his commander-in-chief power in the context of the United States’ current combat operations against al-Qaida, the Taliban and their associated forces,” Assistant US Attorneys Benjamin Torrance and Christopher Harwood wrote. “The court’s injunction against the exercise of those war powers … should be stayed.”

One of the plaintiffs’ lawyers, Bruce Afran, said the judge’s ruling should stand. He noted that enforcement has been on hold since May, when the judge issued an earlier decision.

“There’s no basis for the government to get permission now to use the law,” Afran said, saying he was concerned that the government might plan to start making immediate use of the law. A spokeswoman for the US attorney’s office declined to comment.

The judge, in her ruling this week, said she realized the gravity of the government’s anti-terrorism work and said courts should afford the administration considerable deference on national security.

But she called the law that’s under scrutiny “unconstitutionally overbroad,” questioning whether it could be applied to a news article if it were perceived as favorable to the Taliban.

“Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda?'” the judge wrote. “Who will make such determinations?”

Pulitzer Prize-winning journalist Christopher Hedges, who has interviewed al-Qaida members and reported on 17 groups named on a Department of State list of known terrorist organizations, testified at a March hearing that the law was so vague that it was impossible to know what might be illegal.

The judge noted that the government can use another law that permits indefinite detention of people connected to the Sept. 11 terrorist attacks or others picked up on the field of battle.

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