MANHATTAN (CN) – Overcoming an initially “skeptical” federal judge, opponents of the 2012 National Defense Authorization Act – which allows the military to indefinitely detain anyone it suspects “substantially supported” al-Qaida, the Taliban or “associated forces” – brought strong arguments Thursday to a case once believed to be quixotic.
Prominent writers and activists – led by Pulitzer Prize-winning journalist Chris Hedges – met in court for the first time for a hearing challenging the law, which President Barack Obama signed on New Year’s Eve. The bill is also known as the Homeland Battlefield law.
Buried within the 565-page statute, opponents said, is a short paragraph that makes political activists and muckraking journalists susceptible to indefinite military detention for exercising free speech.
Section 1021 (b)(2) allows the military to detain anyone it suspects “substantially supported” al-Qaida, the Taliban or “associated forces,” and to keep them detained until “the end of hostilities.”
Hedges and others claim those words are so vague they could justify indefinite detention of political dissidents without due process.
As the hearing began, U.S. District Judge Katherine Forrest said she was “extremely skeptical” that the opponents could challenge the law on its face, but she put the government lawyers on the defensive as the proceedings closed late in the day.
The first plaintiff to testify, Alexa O’Brien, co-founded the U.S. Day of Rage, a group whose “one purpose,” she said, is to “reform our corrupt elections.”
Though its website lists “nonviolence” as its founding principle, O’Brien said she found out that agents of a private intelligence firm tried to link U.S. Day of Rage to Islamic fundamentalists.
The revelations came when Wikileaks released 5 million emails from Stratfor, under the name “Global Intelligence Files,” O’Brien said. Stratfor describes itself as a geopolitical intelligence firm.
The documents, O’Brien said, included an Aug. 18, 2011, email from Thomas Kopecky, stating, “I was looking into that US Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements.
“Thus far, I have only hear[d] rumors but not gotten any substantial connection.
“Do you guys know much about this other than its US Domestic fiscal ideals?”
Kopecky is or was then director of operations for Investigative Research Consultants / Fortis Protective Services, according to the email.
The email was sent to Fred Burton, whom O’Brien said was an agent with the U.S. Diplomatic Security Service.
Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movement at this point,” according to the email, as reported by Wikileaks.
O’Brien said another private intelligence firm, Provide Security, sent her a threatening message via Twitter: “Now you are really in over your head with this.”
She said Provide Security sent her follow-up tweets saying she would encounter “problems” from forming a relationship with Anonymous, the hacker collective that brought the Stratfor files to light. O’Brien said Anonymous, which she describes as an “Internet swarm,” has no relationship to the U.S. Day of Rage.
She said she later learned that two of the Provide Security employees, Kevin Schatzle and Thomas Ryan, had government ties.
In September 2011, O’Brien said, a man identifying himself as a federal agent told her confidentially that a classified Department of Homeland Security memo showed plans to infiltrate the group.
O’Brien said the government scrutiny became overwhelming to Lime Energy, where she was working at the time as a digital media architect. The company contracts with the government and major businesses.
“I became, essentially, a liability,” O’Brien said.
She said the company’s director of government contracts, a family friend, told her candidly that “contacts of the government” had approached him about her.
O’Brien said she tried to explain that she knew that U.S. Day of Rage was being monitored, but her boss said the problem was not only with her association.
“No, Alexa, you,” he said, according to O’Brien. “Multiple times, multiple individuals.”
Now an independent journalist, O’Brien testified that she shelved two investigations about Guantanamo detainees for fear of reprisal under the National Defense Authorization Act (NDAA).
The next witness was Kai Wargalla, 27, who said she “dropped everything” to bring her graduate studies from Germany to a tent in Occupy London.
London Police last year sent businesses a memo labeled “Terrorism / Extremism,” listing the local Occupy movement alongside al-Qaida and militant groups from Columbia and Belarus, Wargalla said.
Wargalla says she also got involved in advocacy groups for Wikileaks, Julian Assange and Bradley Manning, and a movement called Revolution Truth.
Revolution Truth broadcasts “Live Panels” over the Internet on various topics, and considered inviting “groups like Hamas,” a U.S.-designated terrorist organization, Wargalla said.
She said that she and other organizers shelved that idea after the NDAA was passed.
“It’s not about me,” she said. “It’s about the whole group.”
Asked if the British government threatened her, Wargalla replied, “Other than describing my group as a terrorist group, no,” to laughter in the courtroom.
The hearing’s only other non-U.S. citizen, Icelandic Parliamentarian Birgitta Jonsdottir, would not travel to New York for fear of being detained, according to a statement that Guardian columnist Naomi Wolf read into the record.
“I am acutely aware that WikiLeaks has been classified by elected political leaders and members of the Obama Administration as a terrorist organization,” Jonsdottir said, citing remarks by House Homeland Security Chairman Peter King and Sarah Palin.
Jonsdottir said she pushed for broad transparency laws allowing WikiLeaks’ operations in Iceland and helped produce a video of the July 12, 2007 Baghdad airstrike that killed 11 people, including two journalists.
Wikileaks and Jonsdottir called it “Collateral Murder.”
Hedges, who was the first to sue, was the last to testify.
A former war correspondent, Hedges read the U.S. State Department’s list of designated terrorist groups on the witness stand, and said he met with 17 of them as a reporter.
Hedges described “piecing together the movements” of Sept. 11 ringleader Mohammed Atta, and having dinner with Hamas co-founder Abdel Aziz Al-Rantissi before Rantissi was killed in an Israeli airstrike. He also testified about being attacked by warplanes from Turkey, a U.S. ally, while traveling with Kurdish militants.
Hedges said some of his articles remain on radical Islamist websites, and he worries that U.S. government officials may not differentiate between reporting the views and activities of these groups and joining them.
“If you are countering the official narrative, there is no difference between you and the people you are covering,” Hedges said.
He said he was detained during the first Gulf War for straying from the press pool – a detention he attributes to government efforts to control public perception.
Every time he gets a call from Iran, he says, it drops after the first ring, which he said reminded him of the Salvadoran government’s tapping of his phone when he covered that conflict.
Hedges said the Foreign Intelligence Surveillance Act authorizing warrantless wiretapping dried up some of his sources, but the NDAA affects him directly.
“The NDAA is about me,” he said.
During cross-examination, Hedges interrupted a government lawyer who asked whether the law made him “skittish.”
“Skittish is one word,” Hedges said. “Fear is another.”
The remaining plaintiffs, Pentagon Papers source Daniel Ellsberg, M.I.T. Professor Noam Chomsky, and Revolution Truth founder Jennifer “Tangerine” Bolen, did not testify Thursday.
Government lawyers did not offer any witnesses in support of the law, which they said merely “affirmed” the decade-old Authorization to Use Military Force.
But Judge Forrest said the language had changed, and she must assume a purpose behind that.
“Congress writes legislation for a reason, right?” she asked.
Government lawyer Benjamin Torrance refused to answer a barrage of questions from Forrest about whether any of the witnesses could be detained for the actions they spoke about on the stand.
“I can’t make specific representations regarding specific plaintiffs,” Torrance said.
He said he had not been authorized to say whether Jonsdottir would have been detained, had she flown in from Iceland.
Torrance said he could only say, generally, that association with Wikileaks alone would not make her subject to the NDAA.
The judge said Torrance’s answers did not help his case that common citizens do not need to fear the new law.
“If people weren’t worried before those series of questions, they could worry about it now,” she said. “It sounded like Mr. Hedges was all over co-belligerents.”
To win the right to sue, only one of the seven plaintiffs needs to establish a “reasonable fear” of being detained for free speech.
The plaintiffs that remain standing can then challenge the law on constitutional grounds.
Government attorneys claimed that the phrases in the law that the plaintiffs consider vague have meanings in case law and briefs describing the executive branch’s changing positions.
But Carl Mayer, an attorney for the plaintiffs, said “constantly moving” law is the “definition of vagueness.”
Ultimately, the judge said she is bound by the Supreme Court’s instructions in Holder v. Humanitarian Law Project, which warn her to “tread carefully” before changing national security law.
But citing the difficulty of determining what “substantial support” or “associated forces” may mean, Forrest asked: “How does the common citizen know?”
Attorneys must deliver written arguments in April.
CORRECTION: An earlier version of this article misstated the basis for the judge’s stated skepticism at the beginning of the hearing. She made no definitive findings as to standing. Courthouse News regrets the error.
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