Circuit Panel Probes Threat of Detention to Journalists

Mark Hamblett

New York Law Journal

02-07-2013

Journalists and activists who fear they could be swept up by a law allowing for the indefinite detention of people who have "substantially supported" al Qaida, the Taliban or "associated forces" in armed conflict with the United States tried to convince a federal appeals court yesterday that they have standing to challenge the law.

Above, attorneys Bruce Afran, left, and Carl Mayer appear at a rally against detention provisions in the National Defense Authorization Act after oral argument at the U.S. Court of Appeals for the Second Circuit yesterday. Below, opponents of the law rally in front of the Federal Courthouse in Foley Square.   NYLJ/Rick Kopstein

In closely watched arguments before the U.S. Court of Appeals for the Second Circuit, attorneys Carl Mayer and Bruce Afran said that journalist Christopher Hedges and others have a reasonable fear that they could be detained under the 2011 law merely by reporting on al Qaida and presenting the terror group's opinions and positions.

The statute in question is the National Defense Authorization Act for Fiscal Year 2012 (NDAA), 18 U.S.C. §1021 et seq.

In a courtroom filled with hundreds of opponents of the law, Judges Amalya Kearse (See Profile), Raymond Lohier (See Profile) and Southern District Judge Lewis Kaplan (See Profile), sitting by designation, repeatedly pressed Mayer and Afran on whether the plaintiffs have standing.

Kaplan told Mayer, that, at least with respect to U.S. citizens, "you have an insurmountable problem" here.

When Kaplan asked Afran for his "best argument for standing," Afran said the law "seems to strongly suggest that people can be detained in the United States."

Arguing for the government, Robert Loeb of the U.S. Department of Justice, said the law did not alter the president's authority to detain that was encapsulated in the original 2001 Authorization for the Use of Military Force passed by Congress in the wake of the Sept. 11, 2001, terrorist attacks.

Last May, Southern District Judge Katherine Forrest (See Profile) disagreed and issued a preliminary injunction against the law (NYLJ, May 17, 2012). She found the language in the National Defense Authorization Act much broader and more vague than the language used by Congress in 2001.

Forrest followed that ruling by making the injunction permanent in September ( NYLJ, Sept., 14, 2012). Lohier stayed that ruling pending the appeal in Hedges v. Obama, 12-3176, 12-3644 (NYLJ, Sept. 19, 2012).

Yesterday, Loeb stood on the government's argument that, for 10 years following the initial authorization, the government has never considered the activities of journalists like Hedges to fall within the authority to detain.

Kaplan asked whether the government's position was that the "statute does nothing" and that there was "no reasonable fear on behalf of anyone that they will be swept up" by U.S. authorities outside of the United States.

"Absolutely," Loeb said.

But Kaplan and Lohier questioned Loeb more than once on whether the executive branch could change its mind on how it interprets the language in the law.

"From time to time the solicitor general has taken one position and reversed that position and taken the exact opposite position in subsequent cases," Kaplan said.

Loeb insisted that the context was critical—that you have to have a "reasonable fear" and that it was wrong to "speculate" about the possibility the government will change its policy.

"You need to have an imminence requirement," Loeb said.

Mayer urged the judges to subject the law to the most exacting scrutiny and pointed out that, in appearing before Forrest, the government repeatedly refused to say that the statute "would not reach the conduct" of the plaintiffs.

Mayer said it was not enough that §1021(e) of the statute states that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."

But Kaplan said, "Mr. Mayer, with all respect" that section states with "pristine simplicity" that the statute "does absolutely nothing to change preexisting law."

Another problem, Kaplan said, was that, should the court declare the statute unconstitutional, there remains the "preexisting law."

Lohier said still another problem was that "what you are discussing is hypotheticals," and he wanted to know whether there was any "clear statement" from Congress.

Afran said it was not clear exactly what Congress meant and he urged the court to look at "reasonably objective fear" that journalists and others will be caught up by the statute.

"It's not the likelihood of actual detention," he said. "It's whether the nature of the statute reasonably chills expression."

Hedges, he said, has traveled with al Qaida and associated with the group and the government could interpret as "substantial support" Hedges' reporting on the views of al Qaida and their "modus operandi."

"It's sufficiently broad that Mr. Hedges could be brought under the statute," Afran said. He added that a journalist should not have to prove he is engaged in "independent expression."

"To suggest that the First Amendment puts the burden on the speaker to show his independence [is contrary to] 200 years of jurisprudence," he said.

Mayer practices with the Mayer Law Group. Afran is a solo practitioner in Princeton, N.J.

The panel took the matter under advisement.

@|Mark Hamblett can be contacted at mhamblett@alm.com.