MANHATTAN (CN) - Invoking the mass detention of Japanese-Americans during World War II, a federal judge on Tuesday appeared ready to uphold her injunction against the law that lets the U.S. military detain indefinitely anyone it suspects of committing or aiding terrorism.
At a Tuesday hearing, U.S. District Judge Katherine Forrest pointed to the potential consequences of such authority, citing a dissent in Korematsu v. United States, which initially upheld the constitutionality of internment.
"[E]ven if they were permissible military procedures, I deny that it follows that they are constitutional," Justice Robert Jackson wrote in dissent in 1944. "If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it."
In May, Judge Forrest forbid the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.
That paragraph, Section 1021(b)(2), lets the military hold anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."
Despite "reservations," President Barack Obama signed the bill on New Year's Eve. Pulitzer Prize-winning journalist Chris Hedges sued to stop it weeks later.
Six other reporters, professors and activists joined as co-plaintiffs to form the self-styled "Freedom Seven," saying the law could chill their speech and strip political dissidents of due process.
Their arguments apparently convinced Forrest, an Obama appointee, who temporarily blocked the statute on First and Fifth Amendment grounds this spring.
Government lawyers and their challengers met again Tuesday for 4 hours of arguments over whether to make the injunction permanent.
Although Judge Forrest reserved decision, her citations and vigorous questioning of the government lawyers left little doubt about her leanings.
In their briefs, U.S. attorneys called it "truly extraordinary" for a district judge to overturn legislation involving issues of national security.
But Forrest cited a 1787 essay in which Alexander Hamilton wrote that judges must place "the power of the people" over legislative will.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power," Hamilton wrote in Federalist No. 78. "It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Hamilton wrote Federalist No. 78 under the pseudonym Publius. It has become one of the most-cited essays in the U.S. Supreme Court.
Lawyers for Hedges and his co-plaintiffs also steeped their arguments in U.S. history.
Carl Mayer, who calls himself "The People's Attorney," pointed to a World War I-era case affirming the sedition convictions of people who distributed leaflets calling to end the war by stopping munitions manufacturing.
Justice Oliver Wendell Holmes wrote a passionate dissent against the decision that he said undermined the Constitution, a document he called "an experiment, as all life is an experiment."
