President Obama cannot tell a lie — at least not according to his Department of Justice. The department changed tactics after a dramatic Sept. 12 ruling by U.S. District Judge Katherine Forrest declar•ing unconstitutional the portion of the National Defense Authorization Act (NDAA) that authorizes indefinite detention without trial of those who “substantially support ... forces engaged in hostilities against the U.S. or its coalition partners.” Forrest had granted a permanent injunction against the enforcement of this statute in a First Amendment suit brought by Chris Hedges, Noam Chomsky, Daniel Ellsberg and other activists against the 2012 NDAA. Judge Forrest was forced to issue this unusual constitutional ruling at a pre-trial stage of the lawsuit because of the tactics of the administration lawyers, who flatly refused to address Judge Forrest’s questions about who might be subject to detention under the vague wording of the act. After being stone•walled five times by the Department of Justice lawyers, she reluctantly concluded that Hedges, who has interviewed and quoted members of Hamas and other designated terror•ists for his books, faced the possibil•ity of running afoul of the law without knowing how to avoid its provisions.
However, in its pre-trial appeal of Forrest’s injunction, the government changed tactics and asserted that it had no inten•tion of prosecuting journalists or organizers such as Kai Wargalla, an activist on behalf of Julian Assange. The fact that the DoJ of•fered this assertion only on appeal, only af•ter District Judge Forrest held a hearing on the constitutional dangers, is unbecoming at best. It is unseemly for government lawyers to change their theory of the case mid-stream, and it is improper for any lawyer to offer new facts at the appeals stage, as it is the trial judge’s role to determine facts and decide who is telling the truth.
As previously reported on The Indypen•dent’s website (Sept. 28), Judge Forrest gave the government ample opportunity to state that it did not interpret the NDAA as au•thorizing the detention of persons engaged in classic First Amendment activities like reporting and demonstrating. This ques•tion was clearly before Judge Forrest who, as a federal judge, was well aware of the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project and its potential for criminalizing even legal advice as “mate•rial support.” So it must be concluded that the DoJ’s refusal to answer her question of what “substantially support” means in this case was deliberate strategy on the part of the Obama Administration.
This should give us all pause as it means the administration is truly seeking the vast expansion of executive power that the vagueness in the law would enable.
This unusual showdown between the ex•ecutive branch and the judiciary is all the more galling be•cause of the bait-and-switch, forcing a constitutional ruling from the Dis•trict Judge and then backpedaling in the Appeals Court. As a practical matter, Judge Forrest, to whom the case will be returned for further development of the record, will now be very hard pressed to hold the government’s earlier assertions (or, in the face of the stakes at hand, non-assertions) against it. She will almost certainly have to give Obama a pass and accept its belated statements of good intentions. Unfortunately for the plaintiffs and for activists and journalists, the government’s “switch in time” will deprive Judge Forrest of a basis to issue a constitutional ruling. What the government had allowed to develop into a clear confrontation will now likely fail for lack of proof that the jour•nalists are likely be detained in the future.