The Freedom 7 Are Beating Obama in Court

While Congress was dickering over doomed amendments to the National Defense Authorization Act (NDAA), the “Freedom 7” have been quietly gaining the upper hand over the federal government.

In fact, their successes so far have been so underreported by the mainstream media that it is hardly known that this small but determined group of plaintiffs has managed to secure a temporary injunction against the controversial NDAA measure that allows for the indefinite military detention of U.S. citizens without trial in so-called terrorism cases.

“I would say it’s been a battle for us to get any mainstream coverage … it’s been a herculean effort to get anyone to pay any attention,” charged Jennifer “Tangerine” Bolen, founder of and a plaintiff in Hedges v. Obama, which essentially challenges Section 1021(b)(2) of the NDAA, passed by Congress and signed by the president late last year. The language authorizes the military detention for those responsible for, or having enabled the 9/11 attacks as well as:

(Any) person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

Despite strident opposition from some Democrats and libertarian Republicans on the Hill, a House amendment that would have carved U.S. citizens out of the detention policy failed miserably this spring. A signing statement by Obama that insists the act would not be used by the military to detain Americans indefinitely without trial is widely considered by critics as meaningless, mostly because there is no guarantee that subsequent administrations won’t do whatever they damn well please anyway.

Point is, the government has not clarified what defines “substantially supported” or “associated forces.” This stands at the heart of the lawsuit, led by Pulitzer-prize winning journalist Christopher Hedges: that there is no guarantee the act won’t be used against reporters and activists who in the course of their work, interview or communicate with persons the U.S. government may at some point consider part of an “associated force,” risking not only the constitutional protections of freedom of speech and a free press, but the right to a fair trial and due process.

Hedges himself has explained that like any effective journalist, his roster of sources has often included players on both sides of the so-called Global War on Terror. “What’s an associated force?” he declared in an April 2 interview with Russia Today. “It could be any organization on [America’s terrorism] list, or lots of other organizations that aren’t on the list that are considered associated forces.

“This is the problem. I spent 20 years as a foreign correspondent, and when we went through that list, there were 17 groups, including al-Qaeda, that I have had, as a reporter, direct contact with. There is no provision in there to protect journalists at all, or anyone. Anybody can be swept up under this. You don’t want to hand these kinds of powers to the state, because history has shown that, eventually, they will use it.”

The rest of the Freedom 7 are famed Pentagon Papers journalist Daniel Ellsberg, author Noam Chomsky, Icelandic parliamentarian Birgitta Jonsdottir, Occupy London activist Kai Wargalla, and activist Alexa O’Brien, who believes she lost her day job because of McCarthyite suggestions her work with Occupy Wall Street/Day of Rage was somehow connected to Islamic radicals.

Bolen said she feared her own work, which has included advocating for WikiLeaks and setting up Web cast panel discussions that in some cases may involve controversial foreign experts, would get her into trouble. So she began canceling prospective guests. “(Interviewing them), I believed, would have put me in the crosshairs of the NDAA and get me and my team arrested,” she told on Thursday.

Since WikiLeaks is the focus of an ongoing federal probe, while in tandem, Pvt. Bradley Manning, who allegedly leaked hundreds of thousands of secure government information to WikiLeaks, is now undergoing a court-martial for in part, “aiding the enemy,” Bolen and others feel as though their association with WikiLeaks founder Julian Assange and/or the organization now puts them at real risk.

“I have had many off the record talks with WikiLeaks people,” Bolen offered. “I felt the fact that I had advocated on their behalf, and talked to them privately, that again, I could be considered an ‘associated force.’

Katherine B. Forrest, the U.S. District Judge in Manhattan presiding over the case, appeared to agree with the plaintiffs about the vagueness of the language and its potential consequences, and in May ordered a temporary injunction over Section 1021 (b)(2).

“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in the 68-page temporary injunction (.pdf), which rejected key arguments by the defendants, mainly that the plaintiffs had no standing because none of them had yet been indefinitely detained, and that the so-called “homeland battlefield” section in the NDAA was no different than the existing detention provisions in the Authorization for the Use of Military Force (AUMF), established by the Bush Administration after 9/11.

Forrest did not buy this, expressing incredulity in previous hearings that Congress would have created new language under the NDAA if these detention powers already existed in the AUMF (in fact, experts point out that Section 1021 is much more expansive in terms of “who” can be targeted than even the AUMF). She also argued that in not defining what “associated forces” and “substantial support” even mean, the government has given weight to the plaintiffs’ fears and has already put a chill on their work preemptively.

“Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O’Brien and Jonsdottir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm,” she wrote.

Some more quotes from Forrest’s temporary injunction:

Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.

There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.

This court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. … However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights. As set forth above, this court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public’s constitutional rights are protected.

Reaction from civil libertarians was swift. “I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges,” author and columnist Glenn Greenwald wrote at the time.

“But this is definitely an exception to that trend. This is an extraordinary and encouraging decision.”

The government responded in its reply (.pdf) to the injunction that if journos and activists are engaging in “independent” reporting or public advocacy, they are not “subject to law of war detention.” This, after repeated attempts by the judge in hearings to distinguish whether the plaintiffs would indeed be considered “associated forces” or their work “substantial support” was the government’s attempt to clarify things in light of Forrest’s May ruling against them:

As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

This is not enough, say plaintiffs and supporters, pointing out the government carefully avoids defining what might be considered “independent” reporting and advocacy.

In their own reply, the lawyers for the plaintiffs wrote that the government’s latest argument:

… lends ever more ambiguity and chill as neither the plaintiffs nor other speakers know what the government considers to be speech that is “solely … independent,” a virtually impossibility since nearly all speech is made in conjunction with interested actors, such as the terrorists that a journalist interviews or the sources a writer consults…

Plaintiffs’ activities are not solely independent and in many ways associative in that they would, but for the NDAA, invite members of disputed groups to appear on Web casts (Bolen and Wargalla), publish interviews with them (O’Brien). Living and working amongst such people while reporting on their activities (Hedges) is certainly a non-independent activity.

The judge continued to push back on the government’s authority to indefinitely detain citizens without trial in the latest hearing on August 7. According to Courthouse News reporter Adam Klasfeld, who was there, Forrest, seemingly unmoved by the government’s earlier arguments, persisted to no avail in trying to nail down government lawyers on what they considered “associated forces” and “substantial support.”

When, Klasfeld reported, the government could not say with certainty if anyone had been detained under the new NDAA measure (the lawyers claimed the government did not differentiate under which authority — AUMF or NDAA — it held prisoners), she reminded that if anyone were held under the NDAA, the government would be in contempt of her temporary injunction.

For their part, the government’s lawyers say indefinite or “perpetual” detention involving militants and their supporters can be justified legally, and that if she were to pursue a permanent injunction, Forrest’s might be overstepping the court’s authority.

“Issuing an injunction regarding the president himself, or restraining future military operations (including military detention) … would be extraordinary,” the lawyers wrote in a brief filed just before the hearing.

Meanwhile, the Freedom 7 appear confident that the judge’s ruling — expected in a manner of weeks, if not days — will go their way. Certainly, in this brief interview outside the courthouse on August 7, attorney counsel Bruce Afran (leaving the courtroom with co-counsel Carl Mayer) acknowledged the positive vibes in their direction. “The judge seemed very understanding of the constitutional problem of the law … I’m hopeful that she will stay with her position, we’ll see.”

Activist and writer Kevin Gosztola, who has also been following the NDAA/Freedom 7 lawsuit, as well as its wider implications for political activists, is confident, too, based on the judge’s questioning of the defendants thus far. “What I think will happen in two weeks time, unless something happens behind the scenes we are not aware of … we’re going to see an incredible event with a permanent injunction,” he told in an interview.

No doubt the government will appeal. “President Obama is trying to keep this law, and he’s not going to let this go,” Afran said. But for now, the Freedom 7 are the only ones forcing the administration to legally defend these dangerous measures that members of Congress have tried and failed to get expunged from the legislation.

Bolen said the government’s counsel “didn’t offer any witnesses, no documentary evidence throughout the entire case.” Perhaps the administration isn’t taking the lawsuit seriously. Perhaps it will if a permanent injunction comes down. If so, maybe big mainstream papers like The Washington Post and The New York Times, whose writers and photographers have just as much to lose if this egregious law is allowed to stand, will start sending their reporters into the courtroom.

“All I can say is, please cover this story,” Bolen exclaimed. “This affects you.”

Follow Vlahos on Twitter @KelleyBVlahos.

Author: Kelley B. Vlahos

Kelley Beaucar Vlahos, a Washington, D.C.-based freelance writer, is a longtime political reporter for and a contributing editor at The American Conservative. She is also a Washington correspondent for Homeland Security Today magazine. Her Twitter account is @KelleyBVlahos.