Wednesday, March 22, 2023 | Back issues
Courthouse News Service Courthouse News Service

Feds Say WikiLeaks, Press & More Are Safe Under NDAA

MANHATTAN (CN) - Supporters of WikiLeaks, Occupy Wall Street and muckraking journalism will not be swept up under the 2011 National Defense Authorization Act, government lawyers told the federal judge poised to scale that law back.

On Thursday morning, U.S. District Judge Katherine Forrest will hear arguments for a preliminary injunction against certain provisions of the NDAA, which became law on New Year's Eve.

Weeks after President Barack Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called "Homeland Battlefield" provisions, which he believes allow for the indefinite detention of journalists who report the views of groups the U.S. government considers terrorists.

Hedges, a former war correspondent, says he has reported on many such organizations in his travels throughout the Middle East.

Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers source Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic Parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O'Brien, an organizer for the New York-based activist group U.S. Day of Rage.

Chomsky, a harsh critic of U.S. foreign policy, has met with Hezbollah officials in Lebanon. Ellsberg, Jonsdottir and Wargalla believe their vocal support of WikiLeaks might land them in indefinite detention should the U.S. government classify the anti-secrecy website as a terror group, according to court filings.

Government attorneys claimed Monday that activists' position derives from "misunderstandings" of the NDAA, which they insist will not chill free speech.

"The NDAA is not a statute 'specifically addressed to speech' but (as relevant here) to the detention of individuals who are part of or substantially supported al-Qaeda, Taliban, or associated forces engaged in hostilities against the United States and its coalition partners," according to a memorandum the government filed with the court.

The phrase "associated forces" raised the alarm of civil libertarians concerned with the apparent vagueness of the phrase.

But the government says that "associated forces" must be "armed" by definition.

"Accordingly, the term 'associated forces' cannot be viewed as a mere synonym for terrorist groups - and it could never reach groups, such as WikiLeaks or Occupy Wall Street, that are not armed groups at all," the memo states.

"Here, many of the expressive activities described in plaintiffs' affidavits and the complaint (and in the case of the non-citizen plaintiffs, all of the activities described) relate to organizations other than al-Qaeda, the Taliban, or any other armed group. Indeed, they relate to WL Central, WikiLeaks, U.S. Day of Rage, Occupy Wall Street, Occupy London, or Revolution Truth."

Carl Mayer, who represents Hedges and the others, told Courthouse News that the "armed group" requirement is absent from the text of the statute. "If it only targeted armed groups, it would say that," Mayer said in a phone interview, adding that the phrase "substantially support" is also problematic.

"Those definitions are so broad and vague that they can encompass, journalists, lawyers, or even the judge, and they are undefined in the statute," he added.

Meanwhile, he says, the U.S. military undermined the alleged "armed group" requirement during hearings for the court-martial of alleged WikiLeaks source Pfc. Bradley Manning. Prosecutors recently claimed that Manning supported al-Qaida in the Arabian Peninsula by allegedly leaking 700,000-plus files to WikiLeaks.

"It gives the lie to what they're doing," Mayer said. "Now, they're prosecuting Manning, who did not give armed support but leaked documents [to WikiLeaks], allegedly."

Judge Forrest, an Obama appointee, can enjoin the Homeland Battlefield Law as unconstitutional if she thinks that Hedges and the others can reasonably fear being indefinitely detained for free speech.

Government lawyers, meanwhile, hope to play down what they call the "alleged fear" of their courtroom opponents.

"Plaintiffs claim to fear that their expressive activities will be considered 'substantial support' provided to al-Qaeda, the Taliban, or an 'associated force[ ]' of al-Qaeda or the Taliban under section 1021," the memo states, referring to a section that they say "reaffirms" an earlier Authorization to Use Military Force.

"As established above, those terms (or broader ones) have been in place for years, and plaintiffs have not identified a single instance where an individual was detained for engaging in journalism or advocacy of the sort described in plaintiffs' affidavits - notwithstanding that plaintiffs have for years engaged in such activities."

Mayer maintains that those fears are "obviously reasonable given the vagueness of the NDAA."

"The statute is as clear as mud, it would be as reasonable for any journalist to have that fear," Mayer told Courthouse News. "Each of these plaintiffs has come under the radar screen of the U.S. government."

Hedges spoke about his detention by U.S. officials in Saudi Arabia when he reported away from the press pool as a war correspondent, in a recent article titled "The Polite Conference Rooms Where Liberties are Saved and Lost."

Jonsdottir, the Icelandic parliamentarian, said that the U.S government's subpoena of her Twitter account shows that she may be targeted for detention.

Wargalla, O'Brien and Hedges will likely talk about these fears on the witness stand Thursday. Jonsdottir will not be in the courtroom, but her testimony will be read into the record.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.