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2nd Circuit Hearing on Indefinite Detention Focuses on Press Rights

MANHATTAN (CN) - Press rights dominated a 2nd Circuit hearing Wednesday concerning the indefinite military detention of U.S. citizens with suspected ties to al-Qaida or "associated forces."

Pulitzer Prize-winning journalist Chris Hedges sued President Barack Obama for signing the 2012 National Defense Authorization Act, or NDAA, which he claimed has dangerously vague language that could be used against reporters, activists and human-rights workers.

One paragraph nestled in the 565-page doorstopper, Section 1021(b)(2), lets the military indefinitely incarcerate anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."

Six other dissenters, including Massachusetts Institute of Technology professor Noam Chomsky and Pentagon Papers source Daniel Ellsberg, joined as co-plaintiffs.

In blocking the law later that year, U.S. District Judge Katherine Forrest found that the plaintiffs, who nicknamed themselves the Freedom Seven, had a "reasonable fear" that the law would trample on their rights to free speech and due process.

The Obama administration immediately filed an appeal, claiming that Forrest's ruling misread the statute and that her injunction would harm military operations in Afghanistan.

Judge Raymond Lohier of the 2nd Circuit stayed the injunction late last year, effectively allowing the military to detain suspected terrorists under the NDAA until an appeal could be heard.

That judge remained on the panel for oral arguments debating the fate of the injunction on Wednesday.

Speaking first before a packed courtroom, government attorney Robert Loeb claimed that journalists had nothing to fear from the NDAA because it represented no change in law since the Sept. 11, 2001, attacks.

A few paragraphs down from the disputed statute, Section 1021(e) states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

Loeb claimed that "existing law" is reflected in the Authorization to Use Military Force, or AUMF, passed shortly after the attacks on the World Trade Center and the Pentagon.

"We have about a decade of experience, and we have nobody being held for acts of independent journalism," Loeb said.

U.S. District Judge Lewis Kaplan, sitting on the panel by designation from the Southern District of New York, asked whether a documentary filmmaker conveying al-Qaida's point of view could be targeted under the law.

He compared that hypothetical to the case of filmmaker Joseph Berlinger, whose documentary "Crude" recorded a court battle between Chevron and indigenous Ecuadoreans over oil contamination in the Amazon.

Kaplan forced Berlinger to turn over outtakes of his footage to the court, finding that he acted as an advocate for the Ecuadoreans.

The controversial decision stripped protections for journalists whom a judge finds to be partial.

Loeb responded to this example by pointing to the case of Sami al-Hajj, a former al-Jazeera cameraman shipped to Guantanamo for allegedly helping arm Chechen rebels.

Though he was eventually released without charges, Loeb defended the allegations against al-Hajj, claiming the cameraman used his journalistic affiliation as a "cover" for extremism.

"He was a member of al-Qaida and he was providing Stinger missiles to the enemy," Loeb said.


Reporters Without Borders, Amnesty International and other groups brought attention to his case as reports trickled out of the prison that al-Hajj was being beaten and denied cancer medication in Guantanamo.

In lobbying for his release, the groups said that prosecutors never produced evidence tying him to al-Qaida.

In 2007, the Sudanese Foreign Ministry said that the U.S. acknowledged that al-Hajj was an "average Sudanese citizen with no extreme religious affiliation," according to an Al Jazeera report.

A year later, al-Hajj was released and flown back to Sudan, but the United States still officially insists that its claims were legitimate.

Kaplan noted that the Justice Department could decide to treat journalists as enemy combatants, even if it does not currently do so.

"The executive branch has been known on occasion to change its mind, isn't that true?" he asked.

After Loeb replied that the laws of war would prevent that from happening, Kaplan shot back: "In what statute book do I find that in?"

Insisting he did not mean to be "facetious," the judge added that Congress never enshrined international law's standard.

"The government is perfectly free to change that policy and head off in a different direction tomorrow," Kaplan said.

Acknowledging that was a "theoretical possibility," Loeb said that Hedges and his colleagues did not have standing to challenge the NDAA until that time.

In an unorthodox opening statement, a lawyer for the law's challengers, Carl Mayer, dedicated his remarks to victims of World War II-era Japanese interment who were seated in the courtroom, the Matsui family.

Robert Matsui, who died in 2005, had been sent to California's Tule Lake internment camp in 1942 before eventually serving the state as a congressman for more than a decade.

Mayer said the congressman's family came to the courtroom because they believed that the NDAA could revive the internment era.

Lohier appeared unmoved by Mayer's dedication.

"The government's argument is that the NDAA does nothing like that," Lohier said. "So why don't you address that?"

Meyer noted Judge Forrest's finding that the NDAA bucks the status quo.

"I think Judge Forrest addressed that very well," he said. "She said there would be no reason for a law to codify existing law."

Kaplan appeared to side with the government's position that the law does just that.

Pointing to Section 1021(e) language, he said, "It seems to me you might have an insurmountable problem."

Taking over for his co-counsel, the plaintiffs' other lawyer Bruce Afran noted how the bill's primary sponsor acknowledged the possibility that the military would detain innocent activists, if only briefly.

During Senate debate, Sen. Lindsey Graham, R-S.C., testified: "In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't go to a political rally."

Afran said: "There is no reason for the sponsor to make that statement, if he does not realize that the statute causes that chilling fear."

The fate of the case may hinge upon the outcome of the Supreme Court's resolution of Clapper v. Amnesty International, involving a challenge from human rights groups to a warrantless wiretapping law.

In a reverse trajectory of the NDAA case, a federal judge threw out the challengers' suit before the 2nd Circuit revived it on appeal.

The Supreme Court heard the Amnesty case late last year, and the court's highly anticipated decision will shape how laws passed in the so-called War on Terror can be challenged on civil libertarian grounds.

Until rulings in both cases, warrantless wiretapping and indefinite military detention remain legal in the United States.

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