The Audacity of an Imperial President

After Judge Katherine Forrest, on Sept 12th, ruled part of the National Defense Authorization Act unconstitutional on its face in the case brought by Chris Hedges, Noam Chomsky, and Daniel Ellsberg, the Obama Department of Justice sought an end run around the ruling and proceeded directly to the Second Circuit Court of Appeals.  Although Judge Forrest had said she would, at the government’s request, reconsider her stay on the law’s enforcement on September 19th, the DoJ could not wait those seven days, and managed to convince a Court of Appeals judge to lift Judge Forrest’s stay on September 17th.

Judge Forrest made national news on May 16 of this year when she issued a preliminary injunction against enforcement of section 1021(b) of the NDAA which authorizes the indefinite detention without trial of those who “substantially supported” or “directly supported” al-Qaeda, the Taliban, and/or other “associated forces,” three phrases that are given no further definition in the law.  Under that section, the detention may last until “the end of hostilities.”

The fact that the Obama administration styled its defense of the 2011 National Defense Authorization Act in the way that it did shows that it is truly seeking the vast expansion of executive power that the vagueness in the law would enable.

Obama’s Department of Justice, it must be concluded, deliberately provoked Judge Forrest to make such a rare, pre-trial constitutional ruling (the convention is to avoid making rulings on constitutionality if it can be avoided) by refusing to answer her direct questions.  During the May hearing on whether or not to grant a preliminary injunction against the enforcement of the law, Forrest (an Obama appointee) asked the Attorney General’s lawyers to give some definition to the terms that Hedges, et al. object to.  The transcript of the hearing reads as follows:

Judge: Give me an example.  Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

Court: Give me one.

Government: I’m not in a position to give one specific example.

Tr. 226.

Shortly thereafter, Judge Forrest asked again: What does ‘directly supported’ mean?

Government: We have not said anything about that in our brief.

Court: What do you think it means?

Government: . . . Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, ‘substantial support’ that I have not thought through exactly and we have not come to a position on what ‘direct support’ and what that means.

Tr. 229-230.

Judge Forrest tried five times to get the government to state a position such that would allow her to avoid the responsibility of striking down a federal law by posing different journalistic scenarios, such as posting a YouTube video of a Taliban leader.  The government, both in its oral argument and its written brief, refused to state whether or not published or future works of the plaintiffs would subject them to the Act’s broad coverage.

The government could have done as little as to state that it did not intend to prosecute First Amendment activity under the NDAA.  Then Judge Forrest would have had to hold a full hearing on the suit and determine which side was more worthy of belief.  Instead the DoJ engaged in ipse dixit — simply repeating over and over that the NDAA contains no new powers, in spite of the appearance of these new terms for the first time.  Thus they bet the farm and lost big.

Showing her intellectual brilliance, Judge Forrest used the government’s arguments to lift the stay against them.  She rebuffed the DoJ’s cries of urgency by saying, “Since you just argued to me that the NDAA grants the government no new powers, then you don’t need a stay of my injunction” (paraphrase).

In issuing the permanent injunction on the record, Judge Forrest wrote: “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”  Each of the plaintiffs testified that they read the statute and could not understand its meaning.

To find an equivalent example of executive facedown with the courts, one must recall when Jose Padilla, after being picked up as a supposed “material witness;” days later had his designation changed to “enemy combatant,” was deprived of his counsel, sent to a military brig, and held in solitary confinement.

Before he became Bush 43’s Attorney General, Judge Michael Mukasey presided over this immediate post-911 test case where the DOJ similarly baited him and stonewalled his efforts to determine what due process Padilla, an American with Muslim sympathies, might be entitled to.  The material witness statute had never been used to hold an American without charge, except in mafia cases.  Ashcroft’s next assertion was that Padilla wasn’t entitled to a lawyer, nor access to civilian courts, because that would — get this — derail ”the military’s efforts to develop a relationship of trust and dependency that is essential to effective interrogation.”

Even after six months in the brig when Judge Mukasey ordered the DoJ to permit his lawyers to see him, DoJ refused to comply.  Then-Justice Department spokeswoman Barbara Comstock commented: ”In times of war, the president must be able to protect our nation from those who join with our enemies to harm innocent Americans.”

Padilla was ultimately only charged with amorphous conspiracy charges in 2005, not the original allegation that he was a “dirty bomber,” affiliated with al-Qaeda.  The switch to civilian courts came only on the eve of the case making its way back up to the US Supreme Court, which had ruled in June 2004 (Hamdi v. Rumsfeld) that “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  This last-minute switcheroo left unresolved the legal questions of whether the government can pick up anyone anywhere in the world and deprive him or her of counsel, without habeas corpus rights, and subject that person to “enhanced interrogation techniques.”

In 2005, Solicitor General Paul Clement said that the court that rebuffed him did not have the authority to “disregard a presidential directive.”  Obama’s lawyers similarly argued to Judge Forrest that “Fundamentally, it is not for plaintiffs — or this Court — to determine which authorities are necessary or appropriate for the conduct of an ongoing war.”

A full three-judge panel of the Second Circuit will consider the government’s request to dissolve Judge Forrest’s permanent injunction on September 28th.

Ann Schneider, Esq., is a member of the NYC Chapter of the National Lawyers Guild.

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