Federal Judge Suspends NDAA Detention Provision, Citing The First Amendment

Yesterday, a federal judge in Manhattan struck down a portion of the National Defense Authorization Act (NDAA), ruling in favor of a group of activists, journalists and writers who say the act puts them in danger of indefinite military detention for activities including news reporting on terrorist organizations and political activism.

U.S. District Judge Katherine Forrest found that a section of the NDAA which gives the government powers to regulate the detention, interrogation and prosecution of suspected terrorists could be used against journalists, scholars and activists to curtail their first amendment rights. The judge’s opinion [PDF] found:

The statute at issue places the public at undue risk of having their speech chilled for the purported protection from al-Qaeda, the Taliban, and ‘associated forces’ — i.e., ‘foreign terrorist organizations.’ The vagueness of Section 1021 does not allow the average citizen, or even the government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope.

Opponents of the law, which include Pulitzer Prize winning New York Times journalist Christopher Hedges, contend that the law permits the detention of U.S. citizens and permanent residents taken into custody in the U.S. who are suspected of providing “substantial support” to people or organizations engaged in violence against the U.S., such as al Qaeda. Journalists testified that they feared their associations with certain individuals overseas, as part of reporting assignments, could result in their arrest or even indefinite detention.


“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” the judge said. She also said the law gave the government the ability to detain individuals who engage in political speech that “may be extreme and unpopular” but “That, however, is precisely what the First Amendment protects.”

Hedges testified that while, in the past, he had interviewed al Qaeda members, spoken with members of the Taliban and reported on 17 groups named on the State Department’s list of known terrorist organizations, the law has forced him to consider altering speeches where a member of al Qaeda and the Taliban might attend.

Hedges celebrated the ruling, telling ABC News, “Ever since the law has come out, and because the law is so amorphous, the problem is you’re not sure what you can say, what you can do and what context you can have,” and called Forrest’s ruling “a tremendous step forward for the restoration of due process and the rule of law.”