April 1, 2012
At the start of the first hearing on a lawsuit challenging the Homeland Battlefield Act, a federal judge appeared to be “extremely skeptical” that those pursuing the challenge had grounds to sue the US government. However, by the end of the hearing, the judge acknowledged plaintiffs had made some strong arguments on why there was reason to be concerned about the Act, which passed as part of the National Defense Authorization Act (NDAA) on New Year’s Eve last year.
Adam Klasfeld of Courthouse News, one of the few media organizations that actually covered the hearing yesterday, reported that Judge Katherine B. Forrest cited the lack of definition of terms such as “substantial support” or “associated forces,” which appear in the law. Without clearly knowing what “substantial support” for terrorism or “associated forces” of terrorist groups could be, Forrest asked, “How does the common citizen know?”
The government lawyers contended that the Homeland Battlefield Law “affirms” the Authorization to Use Military Force passed under President George W. Bush. But, according to Klasfeld, Forrest asked why language had changed. “Congress writes legislation for a reason, right?” There must be a purpose for the change.
There are seven plaintiffs trying to sue right now. Dubbed the “Freedom Seven” by their attorneys, the plaintiffs include: Chris Hedges, a journalist; Daniel Ellsberg, who is known for releasing the Pentagon Papers; Noam Chomsky, a well-known writer; Icelandic MP Birgitta Jonsdottir; Tangerine Bolen, founder of RevolutionTruth.org; Kai Wargalla, deputy director of Revolution Truth and founder of Occupy London; and Alexa O’Brien, journalist and founder of US Day of Rage.
Paul Harris of The Guardian also covered the hearing. His report indicates that the government did not block Icelandic MP Birgitta Jonsdottir’s testimony from being entered into the record.
Jonsdottir, whose past association with WikiLeaks led the Justice Department to subpoena her Twitter account, had been warned that the State Department might prevent her testimony from being read in court, but author Naomi Wolf was permitted to read Jonsdottir’s statement.
Noting that many US political leaders have labeled WikiLeaks a “terrorist” organization, the statement read by Wolf explained why Jonsdottir had refused to come give lectures in the United States for fear of being detained.
[The NDAA] provisions create a greater sense of fear since now the federal government will have a tool with which to incarcerate me outside of the normal requirements of the criminal law. Because of this change in the legal situation, I am now no longer able to travel to the US for fear of being taken into custody as as having ‘substantially supported’ groups that are considered as either terrorist groups or their associates.
Bolen and Ellsberg did not testify on Thursday, but Hedges, O’Brien and Wargalla each appeared in person to testify. Harris reported that Hedges said he ”feared he might be subject to arrest under the terms of NDAA if interviewing or meeting Islamic radicals could constitute giving them ‘substantial support’ under the terms of the law.” O’Brien described in detail how a private intelligence firm was trying to link US Day of Rage to “Islamic fundamentalists.” And, Wargalla testified on how the City of London had listed Occupy London alongside al Qaeda and extremist groups from Belarus and Colombia.
Lawyer Benjamin Torrance, who was in court to represent the government, declined to answer if any of the plaintiffs concerned about the law could be targeted. He said he could not “make specific representations regarding specific plaintiffs.” He could not say if Icelandic MP Birgitta Jonsdottir “would have been detained had she flown in from Iceland.” All he could say was that “an association with WikiLeaks alone would not make her subject to the NDAA.”
The reluctance to answer specifically, though routine, led Forrest to state that the government was not helping its case that citizens do not have any reason to fear the law. The judge said, “If people weren’t worried before those series of questions, they could worry about it now,” she said. And, with regards to Hedges, who filed the lawsuit against the government, she added, “It sounded like Mr. Hedges was all over co-belligerents.”
The hearing that played out in court yesterday was held to determine if any of the plaintiffs had grounds to sue. Klasfeld noted, “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.”
Back in December, Congress passed the law but there wasn’t unanimous support. There was a level of consternation over what the Obama Administration was asking members of Congress to do. Much of that dismay came from a broad political spectrum of Americans that found the law to be an assault on civil liberties. Amendments were proposed but failed to pass.
The aftermath has not seen outrage among citizens relent. President Barack Obama may have issued a signing statement to the law, but it did little to change the fact that indefinite detention was codified into law. It did nothing to prevent future administrations from wielding the power of the Homeland Battlefield Act. And, as a result, members of Congress and state officials bolstered by anger at the grassroots level are mobilizing to ensure provisions of the NDAA are stripped or neutralized.
The plaintiffs are realistic about the chance they have to actually advance this lawsuit, but they also are convinced they have to push back against unchecked executive power in the United States. They see this as a beginning and intend to add many more plaintiffs to lawsuit in the coming weeks.