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.
