Journalists harmed by terrorist law that chills speech activities, federal judge rules

A federal judge in New York Wednesday blocked enforcement of a provision of a statute that would allow the U.S. government to indefinitely detain Americans who give “substantial support” to terrorists groups, finding that journalists' and others' fears of detention under the law are reasonable.

U.S. District Judge Katherine Forrest in Manhattan ruled that the controversial provision of the National Defense Authorization Act (NDAA) violates the First, Fifth and Fourteenth Amendments. The clause allowed the government to detain citizens indefinitely and without a legal remedy if they “substantially supported” terrorist groups or other “associated forces.”

President Obama signed the NDAA into law Dec. 31. Pulitzer Prize-winning journalist Christopher Hedges, along with other writers and activists, filed a federal lawsuit in January challenging the provision. Forrest temporarily blocked enforcement of the provision after a March hearing and permanently blocked it Wednesday after a hearing in August.

In the two hearings, the government was unable to define key terms in the provision, including what constituted “substantial support” and “associated forces,” according to the judge's 112-page opinion. The plaintiffs were concerned that the work they did — associating with and reporting on members of terrorist organizations — could allow the military to detain them under the vague language of the provision.

“If a plaintiff does not know what ‘substantially support’ means, could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have ‘substantially supported’ the Taliban?,” Forrest said. “How about a YouTube video? Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda’?"

Plaintiffs testified that the provision chilled their activist and journalistic activities, which oftentimes include an association with the terrorist groups. Hedges, for example, said he has spent time with members of Al Qaeda during his time covering the group as a war correspondent.

“It’s sort of freaky because it’s so nebulous,” he said in an interview today. “If you are associating with those groups, as I have done, you don’t know how you’re considered in this bill.”

Lawyer Steven Harfenist, who filed a friend-of-the-court brief on behalf of several organizations in support of the plaintiffs, said in an interview today that there was always a possibility that a journalist could be detained under the provision, although the case probably would not hold up in court.

Forrest ruled that the plaintiffs have already been harmed and will continue to be harmed by the potential enforcement of the provision and encouraged Congress to amend the provision or consider whether it is needed at all.

“She hit the nail on the head,” Harfenist said. “The provision stepped outside the scope of accepted constitutionality. Judge Forrest navigated through a complicated constitutional issue and conducted a well-reasoned analysis of it.”

Hedges said the decision is momentous, especially for journalists.

“There was no exemption in this legislation for journalists,” Hedges said. “As somebody who has spent time with members of Al Qaeda, if I was detained by the state, I would want to at least explain why I was building relationships with those groups as a reporter. If I was picked up under the provision, I would never have that chance in court.”