Judge Katherine Forrest Denies Government’s Attempt to Limit Ruling
By Charlie Savage/ New York Times / June 6, 2012
The government may not rely on a disputed law enacted last year to hold people in indefinite military detention on suspicion that they “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 terrorist attacks, a federal judge said on Wednesday.
In an eight-page memorandum opinion and order, Judge Katherine B. Forrest of the Southern District of New York clarified a preliminary injunction she issued on May 16 in a lawsuit brought by journalists and activists who challenged the statute — a provision of the National Defense Authorization Act of 2011 — and expressed fear that they could be detained.
The Obama administration had asked Judge Forrest to reconsider her ruling, saying that the plaintiffs lacked legal standing to challenge the law and that it was “extraordinary” for her to have restrained future military operations that might be ordered by the commander in chief during wartime.
As part of that request, the government said in a footnote that it was interpreting her injunction narrowly as applying only to the handful of people specifically named as plaintiffs in the lawsuit, including Chris Hedges, a journalist who interacts with terrorists as part of his reporting work, and several prominent supporters of WikiLeaks.
But on Wednesday, Judge Forrest said that her order still stood — and that, contrary to the government’s narrow interpretation of it, her injunction applied broadly and not just to the named plaintiffs.
“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote. “This order should eliminate any doubt as to the May 16 order’s scope.”
Ellen Davis, a spokeswoman for the United States attorney’s office in the Southern District of New York, declined to comment on the new order.
In section 1021, Congress laid out its interpretation of the extent of the military’s authority to hold people without trial, as detailed in its approval — a decade earlier — of military force shortly after the Sept. 11 attacks.
One provision of the statute, which Judge Forrest’s order did not block, said that authorization covered the detention of the perpetrators of the Sept. 11 attacks and those who assisted in them.
But another provision, which she did block, said it also covered people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies.
Enactment of the statute was controversial, in part, because it did not lay out what conduct could lead to someone’s being detained, and because it was silent about whether it extended to American citizens and others arrested on United States soil.