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Judge Forrest and the NDAA


In 1774 the American patriot John Adams said of John Witherspoon (the Scottish Presbyterian Minister and co-signer of the Declaration of Independence):  “He is as high a Son of Liberty, as any man in America.”

Future generations may well say of United States Federal District Court Judge Katherine B. Forrest that she is as high a Daughter of Liberty as any person in the land.

Judge Forrest, of the Southern District of New York in Manhattan, issued a ruling on May 16 that will be regarded as a watershed moment in reversing a decade-long bi-partisan assault on civil liberties and the Constitution. Her honor took the extraordinary step of issuing a preliminary injunction and striking down as unconstitutional a provision of the National Defense Authorization Act (NDAA) that would have allowed for the indefinite detention of United States citizens in military prisons without trial or counsel.

This so-called “Homeland Battlefield Act” was thought by many to be the latest and most egregious incursion on the liberties of all Americans, coming on the heels of warrantless wire-tapping, the USA Patriot Act, drones flying over American cities and the use by American police of Para-military garb and tactics.

Like John Adams and John Witherspoon, Forrest can hardly be characterized as a radical.  A former entertainment lawyer with the powerhouse corporate law firm of Cravath, Swaine and Moore, Forrest is an Obama appointee.

Nor can her opinion be characterized as precipitous or far-flung.  To the contrary, Judge Forrest’s sober 68-page ruling was firmly rooted in established First Amendment and due process precedent.   Judge Forrest almost had no choice but to strike down the offending statute because its terms were so vague:  the law would have captured anyone accused of giving “substantial support” to Al-Qaeda or “associated forces.”   These terms are not only inherently nebulous and imprecise, but they were not defined in the statute.  Like most lawyers, in all my years of legal practice, I have never encountered a law that does not have a definitional section: the NDAA did not.

To remove any doubt, at trial Judge Forrest cross-examined the United States Government lawyers about whether they could give assurances to the plaintiffs in the case – all of whom were either journalists or activists with no ties to terrorists, other than reporting – that their speech and conduct would not subject them to the provisions of the NDAA.   Repeatedly, Justice Department lawyers refused, in open court, on the record, to offer any such assurances.   As Judge Forrest wrote in her opinion: “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021 [of the NDAA].Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”

The government could appeal Judge Forrest’s ruling, but the plaintiffs in the case have publicly called on the President, a former constitutional scholar himself, to announce that he will abide by the sound reasoning of Judge Forrest, forgo an appeal and voluntarily enter into a permanent injunction that would forever ensure that Americans rights to trial by jury would be secure.

Candidate Romney would be wise to take a similar positions.  Indeed as many Republicans oppose the NDAA as Democrats.   In fact, a coalition of conservative and Republican groups took the extraordinary step of filing an amicus curiae brief in Federal District Court.   The signatories to the brief included a Virginia Republican State Senator, the Conservative Legal Defense and Education Fund, and the Gun Owners of America.

The Congress, just days after Judge Forrest’s ruling,  failed to pass an amendment to the NDAA that would have fixed some of the constitutional problems with the statute.  On May 25, the Friday before the Memorial Day weekend, the Justice Department filed a motion for reconsideration (which are virtually never granted) before Judge Forrest signaling the Administration’s determination to keep fighting to overturn decades of constitutional jurisprudence and enshrine indefinite, undefined detention as the law of the land.

The most astonishing moment at trial before Judge Forrest was the sound of silence.   The government refused to call any witnesses from any of the national security agencies that could have explained why undermining the civil liberties of civilians in this country is necessary to fight terrorism.  The government simply cannot explain why habeas corpus and trial by jury should be jettisoned when these concepts date back hundreds of years and were enshrined by the Supreme Court during active war time as far back as the Civil War.

On June 6, 2012, in another courageous opinion, Judge Forrest denied the Obama administration’s request for reconsideration and made clear that her order is so broad that it applies to every area of the country and by implication protects all journalists and activists in America.

The battle to restore civil liberties in America has begun.

Carl J. Mayer, with Bruce Afran, was lead-counsel representing the plaintiffs in Hedges v. Obama, decided by Judge Forrest on May 16, 2012.  


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