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Federal Judge’s Injunction Finds NDAA Is Worse Than Material Support Law

Campaign logo from the lawsuit/campaign's website

(update below)

Activists and journalists who brought a lawsuit against a Homeland Battlefield Act provision in the National Defense Authorization Act (NDAA) passed in Congress and signed by President Barack Obama last December are celebrating this morning as a federal judge ruled yesterday that the provision likely violates the First and Fifth Amendments of the United States Constitution.

The NDAA, as it stands, could potentially allow the government to hold a US citizen in detention indefinitely without charge or trial if they believe the person was involved in providing “material support” to “terrorism.” Critics had warned that the standards were too vague and could impact an activist or journalist’s work by infringing upon First Amendment and Fifth Amendment rights.

The ruling granted journalist Chris Hedges, Occupy London co-founder Kai Wargalla, WL Central writer Alexa O’Brien, and Icelandic parliamentarian Birgitta Jonsdottir the legal standing to bring this lawsuit before the court as they had demonstrated “actual” as well as “imminent and particularized, invasion of legally-protected interests.”

Judge Katherine B. Forrest found that the plaintiffs put forward “specific evidence of actual and threatened irreparable harm” and determined it was in the “public interest” to rule in favor of the plaintiffs and issue a preliminary injunction. She specifically homed in on an argument the government was making that the Homeland Battlefield Act provision is simply an “affirmation” of the Authorization of Use of Military Force (AUMF). She declared it is not a “mere redundancy” that “has no independent meaning and adds absolutely nothing to the Government’s enforcement powers.” Moreover, she determined it lacked “what are standard definitional aspects” that “define the scope of specificity.”

The key part of the provision at issue, Section 1021, is as follows:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection

(b)) pending disposition under the law of war.

(b) Covered Persons. A covered person under this section is any person as follows. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

What is revealing is how the judge’s decision invokes “material support” for “terrorism” case law (specifically Holder v. Humanitarian Law Project) to justify her decision to enjoin the NDAA. The Supreme Court found that the “material support” statute had definitions that indicated specifically who could be accused of violating it.

Applying the statutory terms in this action ‘training,’ ‘expert advice or assistance,’ ‘service,’ and ‘personnel’–does not require similarly untethered, subjective judgments . . . Congress took care to add narrowing definitions to the material-support statute over time. These definitions increased the clarity of the statute’s terms . . . and the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.

Comparatively, the judge noted this challenge being brought by the plaintiffs was a “pre-enforcement challenge” to the NDAA provision. The NDAA has not been implemented. No person has been detained under the NDAA yet. Yet, as a precedent, Holder was a case where a “pre-enforcement challenge to a criminal statute” was being brought by plaintiffs who believed they faced a “credible threat of prosecution” and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”

There, plaintiffs claimed that they had provided certain support to the PKK and LTTE before the enactment of the statute at issue and would do so again if the “statute’s allegedly unconstitutional bar were lifted.” Id. The Supreme Court noted that “[t]he Government has not argued to this Court that plaintiffs will not be prosecuted for what they wish to do.” Id. Thus, the Court concluded that the case before it presented a justiciable case or controversy (with plaintiffs who had standing)

It is important to recall that the Holder decision is considered by a number of lawyers and civil liberties advocates to be a constitutional atrocity. The government, according to David Cole, wrote the “material support” statute prohibited “even speech that advocates only lawful, nonviolent activity, including speech designed to discourage violence by encouraging lawful alternatives.” The Supreme Court ruled for the first time that “speech advocating only lawful, nonviolent activity can be subject to criminal penalty, even where the speakers’ intent is to discourage resort to violence.”

The “material support” statute has been used to preemptively prosecute a number of Muslims. It has been invoked to charge Muslims involved in the Holy Land Foundation charity that was donating money to “charitable” committees in the Palestinian territory (committees that the UN and USAID were supporting) with “material support” for Hamas. It has been invoked to charge Dr. Sami Al-Arian with “material support” for providing “nonviolent services” to Palestinians that included money for book bags and ambulances. It has been invoked to charge Syed Fahad Hashmi with “material support” for not knowing an acquaintance would be storing a bag of clothing in his home that would eventually go to a terrorist. It has been invoked to charge Tarek Mehanna with “material support” for translating a document titled, “39 Ways to Serve and Participate in Jihad,” an act historically covered under the First Amendment. It has been invoked to target and subpoena twenty-three antiwar and solidarity activists in the Midwest (some who have traveled to Palestine and Colombia) to appear before a federal grand jury. And, more recently, the use of “material support” provisions to curtail First Amendment activities appears to be expanding even further through a recently signed Executive Order by President Obama against those that would continue to provide “support” to the Yemen uprising.

The judge determined the NDAA was more ambiguous and more subject to interpretation than the Holder decision or the “material support” statute itself. The judge determined that a statute that is being used by the Obama administration to curtail people’s First Amendment rights and preemptively prosecute individuals is worse. And it is pretty obvious because the NDAA conceivably takes the “material support” statute a step further and allows authorities to go beyond repressive pre-trial confinement measures and outright indefinitely detain a person for as long as necessary to conduct whatever business or operation the government decides it would like to conduct (i.e. attempting to force a confession, false or not, that incriminates or provides intelligence on another person or suspect).


As mentioned, the judge did not accept what the government was saying about the NDAA being essentially a replica of the AUMF. Shahid Buttar, Executive Director of the Bill of Rights Defense Committee (BORDC), adds no one contemplated the AUMF would be used to justify military detention. The case of Jose Padilla is an example where he was held for three years in a military brig and lost his mind from solitary confinement and other inhumane treatment. He was held indefinitely without charge and set to have a hearing before the Supreme Court. The Bush administration decided on the eve of the hearing that they would try Padilla in civilian court instead of having this case of indefinite detention go before the Supreme Court. So, Buttar finds, “No court at any point has had a chance to actually construe if the AUMF allows domestic military detention or not.”

The US government has indefinitely detained people and evaded judicial review by moving the case when it became inconvenient to sustain, Buttar says. This shows both the Executive Branch’s disingenuity as well as the opportunism with which the Executive Branch will use these type of powers and it is precisely why a case like the NDAA lawsuit where judicial review is properly exercised is important.

For example, Buttar contends the “state secrets privilege” should not exist and should never have become a “wholesale immunity doctrine” that has allowed the Executive Branch to insulate itself from revealing information related to the NSA’s warrantless wiretapping scheme, extraordinary rendition and corporate participation and facilitation of human rights abuses. But, in the past decade (especially), the courts have not done their duty and have been extremely reluctant to rule against the Executive Branch on national security matters.


Previously, I covered this lawsuit and interviewed two of the plaintiffs. I spoke with Alexa O’Brien and another plaintiff, Tangerine Bolen.

Bolen, who helped launch this lawsuit with multiple plaintiffs, told me in March she felt prompted to sue the US government because of her work “defending WikiLeaks and Bradley Manning.” She also has hosted panels with Middle East revolutionaries and activists. “Given the language of the law under the NDAA,” she believed she would be accused of being an “associated force.”

O’Brien signed on as a plaintiff because she believed her work as a journalist and activist had made her a target of the United States government.

“Because of the passage of the Homeland Battlefield Act, which gives the government frightening new powers, I’ve had to curtail my journalism and activism,” she stated. And, as a founder of US Day of Rage, she had been subject to false allegations of connections to Al Qaeda that had deeply impacted her ability to conduct her work openly and freely. These allegations had been taken seriously by US government agencies.

The judge’s decision includes detailed descriptions of the work that Hedges, O’Brien, Wargalla and Jonsdottir have engaged in that would now make them subject to possible targeting under the NDAA. She determined, “There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.” It is precisely people who express extreme and unpopular views who are typically targeted under provisions aimed at people providing alleged “material support.”

The government does not help their case. The attorneys for the Justice Department defending the NDAA give vague answers that increase fear over when a citizen can be targeted under the NDAA:

Court: 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.


Court: These people have real things they are saying. These are not speculative or hypotheticals. These are people who have actually written articles that we have here. [The Court then held up the articles written by O’Brien and marked as Court Ex. 3.] We are trying to figure out, are these articles going to subject Ms. O’Brien to risk under § 1021? . . . .

Government: Again, I’m not authorized to make specific representations regarding specific people. I’m saying that ‘associated forces’ cannot extend to groups that are not armed groups at all.

Court: So we don’t know about the articles, it depends?

Government: Maybe they are an armed group

The decision comes at the right time. The House is deliberating over amendments to the NDAA today that would address issues, which stem from the authorization of military detention without due process. The judge, in her decision, appears to be signaling to Congress that they should step up and address the key issues within the NDAA. Whether Congress will address the judge’s decision in this lawsuit or not remains to be seen.

The NDAA lawsuit was something that none of the activists and journalists thought would get to the next stage. It is incredibly surprising that the judge granted the plaintiffs legal standing to keep advancing their case. As a result, many who were outspoken against the NDAA discounted the lawsuit and this is the first time that they are paying attention to the fact that people in this country had launched a measured effort in the courts to check Executive Power.

There are other ways that local communities and grassroots action is making an impact against Executive Power. In Virginia, Hawaii and Arizona, state legislatures have forbidden cooperation with any “federally sanctioned kidnapping” of individuals, who might be indefinitely detained under the NDAA in their state. There have been a number of rallies at congressional offices and the amendments being brought in the House and Senate are a product of pressure from both progressives and libertarians.

This is the state of the rule of law in America. The Executive Branch will ingeniously and opportunistically expand its powers to undermine the Bill of Rights and advance the so-called “war on terrorism.” The Judicial Branch will abdicate its duty and watch without intervening. The Legislative Branch will provide “oversight,” but that essentially means getting reports from people on the status of business. Few senators or congressmen challenge the Executive Branch on issues pertaining to national security. The Fourth Branch – the media – reports on the lawlessness and inhumanity being encouraged by the expansion of Executive Power very rarely. All the United States has to stop the complete erosion of civil liberties or constitutional rights are the grassroots actions of citizens. And cynically tuning those efforts out because one believes they will have no impact cedes power to the players who are taking America in a distinctly horrifying trajectory.

Update 1

Tangerine Bolen, a plaintiff signed on to the lawsuit, sends this comment:

Judge Forrest’s ruling was a boon to every journalist, and every activist in this nation. She made it clear – the US government cannot be vague about ‘expressive’ or ‘associational’ activities. She protected a beleaguered republic yesterday. One that is supposed to be founded on democratic rights and principles. We’ve been losing those rights for 12 years. Judge Forrest stood squarely in the way of the juggernaut war on terror, and essentially said ‘no – you cannot do this to people.’ I have great respect for this judge. This decision may well prevent this nation from going off a cliff, where our rights are concerned.

And, the Bradley Manning Support Network has a reaction from Jonsdottir:

Those who criticize their government should never be made to fear the prospect of life in prison.  And yet, a judge has just agreed that I have a legitimate reason to be concerned for doing nothing more than helping Bradley Manning to expose the unjust killing of civilians and journalists.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."