Court continues conversation over civil liberties

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The National Defense Authorization Act (H.R. 1540) prompted much discussion regarding civil liberties since President Barack Obama hesitantly signed the bill into law on Dec. 31, 2011. Obama issued a statement at the time in which he stated that he was signing the bill “despite having serious reservations with certain provisions that regulated the detention, interrogation and persecution of suspected terrorists.” Obama stated that the main reason he was signing the bill was because it authorized defense funding, crucial services for service members and their families and renewed vital national security programs.

The controversy surrounds Section 1021 of the act, which provides for the indefinite detention of a person suspected of colluding with a terror organization to threaten U.S. national security. The chief complaint is that a terrorism suspect would get just one hearing where the military could assert that the person is a suspected terrorist and could be put to prison without being formally charged. In defense of these provisions, Sen. Lindsey Graham, R-S.C., stated that “[t]hey (terrorism suspects) should not be read their Miranda Rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined Al Qaeda and what they are going to do to all of us.”

It has been argued that this section has two direct implications. The first is that the section is not limited to foreign citizens and so American citizens could be held under the provision. Secondly, the vagueness of Section 1021 could lead to an interpretation that journalists and political activists who interview or support outspoken critics of the Obama administration’s policies could be classed as “covered persons,” meaning that they had given “substantial support” to terrorists or other associated groups. Journalists stated that this was restricting their work overseas as their interviews and communications could be interpreted as substantially supporting or directly supporting groups engaged in hostilities against the U.S. Journalists stated that the provision violates their constitutionally-protected right to free speech.

Pulitzer-Prize winning journalist Chris Hedges challenged the act in the Southern District of New York (Hedges et v. Obama, U.S. District Court for the Southern District of New York, No. 12-cv-331). An injunction was awarded by the court preventing the president from exercising the extraordinary and extraordinarily unconstitutional powers granted to him in the act. The Obama administration filed an appeal immediately. On Sept. 12, 2012, Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued her opinion in favor of the permanent injunction. Forrest stated that that “Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity.” She stated that the act also lacks a requirement that for somebody to be found to be in violation of its provisions, the person must have acted with some level of intent or knowledge of wrongdoing.

In a recent development to this case, a decision handed down by the 2nd U.S. Circuit Court of Appeals on Oct. 2, 2012 granted the government’s motion for a stay. The court stated that journalists and activists are in no danger whatsoever of being captured by the U.S. military. The court stated that the statute does not affect the existing rights of U.S. citizens or others arrested in the U.S. It was also found that the wording of the district court’s injunction goes beyond the act itself to limit the government’s authority under the Authorization for Use of Military Force Act.

Nearly a year after the bill was reluctantly signed into law, we are still unaware as to the extent of the bill or whether it actually affects the rights of American citizens.

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