Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”
The Senate... decided to leave unanswered a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial. ...
After a passionate debate over a detainee-related provision in a major defense bill, the lawmakers decided not to make clearer the current law about the rights of Americans suspected of being terrorists. Instead, they voted 99 to 1 to say the bill does not affect “existing law” about people arrested inside the United States.
Because the section includes no exception for suspects arrested domestically, the provision prompted a debate about whether it would change the law by empowering the government, for the first time, to lawfully arrest people inside the United States and hold them indefinitely in military custody, or whether it would change nothing because the government has that power already.
the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
This Court is left then, with the following conundrum: plaintiffs have put forward evidence that §1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
« Older Jamie Summerlin is running across America.... | David Letterman, Indianapolis ... Newer »
This thread has been archived and is closed to new comments
Buy a Shirt