[Vision2020] A Post-9/11 Conundrum

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

<http://www.nytimes.com/adx/bin/adx_click.html?type=goto&opzn&page=www.nytimes.com/printer-friendly&pos=Position1&sn2=336c557e/4f3dd5d2&sn1=6c46ff2e/878a3ce7&camp=FSL2012_ArticleTools_120x60_1787510c_nyt5&ad=Sessions_120x60_Aug20_NoText&goto=http%3A%2F%2Fwww%2Efoxsearchlight%2Ecom%2Fthesessions>

------------------------------
September 13, 2012
A Post-9/11 Conundrum

For 11 years, Americans have struggled to reach a sensible legal balance
that protects both national security and civil liberties — an existential
challenge made harder by the last president’s wild excesses and abuses of
power in the name of combating terrorism. This week, a vote in Congress and a
decision by a federal
judge<http://www.nytimes.com/2012/09/13/us/judge-blocks-controversial-indefinite-detention-law.html>,
Katherine Forrest, made starkly clear how much that remains a work in
progress.

With little in the way of real debate or scrutiny, the House voted 301 to
118 to extend the FISA Amendments
Act<http://www.govtrack.us/congress/bills/112/hr5949>for five years,
an unfortunate law passed in 2008 that expanded the
government’s power to conduct surveillance without warrants in the future.
It also retroactively approved the George W. Bush administration’s unlawful
snooping in broad violation of Americans’ constitutionally protected
privacy.

Moving in the other direction, Judge Forrest, of the Southern District of
New York in Manhattan, on Wednesday permanently enjoined a controversial
provision of a 2011 law in which Congress codified expansive
interpretations of a president’s authority to detain individuals
indefinitely, beyond the real needs of the war in Afghanistan, the campaign
against Al Qaeda or legitimate counterterrorism efforts in general.

The judge was right to challenge government’s claims of ever-expanding,
unsupervised detention authority around the world, but her ruling seemed
overly broad in points and could be overturned by a higher court.

The ruling follows a temporary
injunction<http://www.nytimes.com/2012/06/07/us/terrorism-detention-provision-is-blocked.html>granted
in May against the law, which goes beyond the perpetrators of the
Sept. 11, 2001, attacks to people who are part of or “substantially”
supported Al Qaeda, the Taliban or “associated forces” hostile to the
United States or its allies. Chris Hedges, a journalist who formerly worked
for this newspaper, and several supporters of WikiLeaks said it was too
imprecise about the conduct that could lead to someone’s detention and
exactly who could be detained.

The plaintiffs said the statute chilled their First Amendment rights
because they feared the government might claim their activities made them
supporters of an enemy force and subject to detention.

Judge Forrest agreed, saying the Constitution requires more specificity
when “defining an individual’s core liberties.” She was especially troubled
by the government’s inability to define terms like “substantially
supported” and “associated forces,” despite ample opportunity to do so
during the course of the lawsuit. She also was swayed by what she saw as
the government’s failure to eliminate the plaintiffs’ fears by
unequivocally stating that no First Amendment-protected activities would
subject them to indefinite military detention.

The judge makes plain that the outcome would likely have been different had
the government offered an authoritative official statement that “protected
First Amendment activities occurring by Americans on American soil.” The
failure to do so, she found, bolstered both the plaintiffs’ standing to
sue, as well as their claims.

The judge’s willingness to take constitutional claims seriously was a
refreshing departure from too many other judges in cases involving national
security. If the government is unhappy with the ruling, it can largely
blame its failure to adequately limit and define detention authority.

Unfortunately, the ruling does not fully address existing case law on
detention authority or an amendment to the 2011 law that should be read to
protect Americans and others in the United States from indefinite
detention. Those issues, and the breadth of the injunction seem certain to
be appealed.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/vision2020/attachments/20120914/0b90e2f3/attachment-0001.html>