For a day or two at least, people who are alarmed at Orwellian legal trends can jump up and down and get excited. Katherine Forrest, an Obama-appointed judge (yes, you read that right), has enjoined any enforcement of Section 1021 of the NDAA because she was concerned that the Government was implying speech may equal terrorism (and be subject to indefinite detention)!
This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”
A couple of quotes to give flavor of the caliber (and arrogance) of the government’s lawyers:
The Court then asked: 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.
Adam Serwer, filling in for Kevin Drum, and a good thing too:
When Forrest asked the government lawyer charged with defending the statute whether the journalists, who said their work has brought them into contact with groups like Hamas or the Taliban, could be indefinitely detained, the government’s lawyer wouldn’t say….
When asked again whether one of the journalists’ activities would qualify as “substantial” support for a terrorist group, the government attorney said, “I don’t know what she has been up to.”
Behind all of this looms the case of Yemeni journalist Abdulelah Haider Shaye, who continues to be locked up at Obama’s personal insistence, basically for the crime of being an intrepid and independent journalist.
But of course that couldn’t happen here….
And apparently, this could conceivably get (partially) sorted out today, in Congress with passage of the Smith-Amash Amendment.
That would be something. Yesterday, we had a rare instance of the Judicial Branch (an Obama-appointed judge, no less) doing its job and acting as a check on a grotesque power grab by the Executive Branch. Today, Congress has a chance to do something similar.