Judge Forrest v. Indefinite Detention and Congress

By The New York Times | Editorial

14 September 12

or 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.