MANHATTAN (CN) - Invoking the mass detention of Japanese-Americans during World War II, a federal judge on Tuesday appeared ready to uphold her injunction against the law that lets the U.S. military detain indefinitely anyone it suspects of committing or aiding terrorism.
At a Tuesday hearing, U.S. District Judge Katherine Forrest pointed to the potential consequences of such authority, citing a dissent in Korematsu v. United States
, which initially upheld the constitutionality of internment.
"[E]ven if they were permissible military procedures, I deny that it follows that they are constitutional," Justice Robert Jackson wrote in dissent in 1944. "If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it."
In May, Judge Forrest forbid
the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.
That paragraph, Section 1021(b)(2), lets the military hold anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."
Despite "reservations," President Barack Obama signed the bill on New Year's Eve. Pulitzer Prize-winning journalist Chris Hedges sued to stop it weeks later.
Six other reporters, professors and activists joined as co-plaintiffs to form the self-styled "Freedom Seven," saying the law could chill their speech and strip political dissidents of due process.
Their arguments apparently convinced Forrest, an Obama appointee, who temporarily blocked the statute on First and Fifth Amendment grounds this spring.
Government lawyers and their challengers met again Tuesday for 4 hours of arguments over whether to make the injunction permanent.
Although Judge Forrest reserved decision, her citations and vigorous questioning of the government lawyers left little doubt about her leanings.
In their briefs, U.S. attorneys called it "truly extraordinary" for a district judge to overturn legislation involving issues of national security.
But Forrest cited a 1787 essay in which Alexander Hamilton wrote that judges must place "the power of the people" over legislative will.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power," Hamilton wrote in Federalist No. 78. "It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Hamilton wrote Federalist No. 78 under the pseudonym Publius. It has become one of the most-cited essays in the U.S. Supreme Court.
Lawyers for Hedges and his co-plaintiffs also steeped their arguments in U.S. history.
Carl Mayer, who calls himself "The People's Attorney," pointed to a World War I-era case affirming the sedition convictions of people who distributed leaflets calling to end the war by stopping munitions manufacturing.
Justice Oliver Wendell Holmes wrote a passionate dissent against the decision that he said undermined the Constitution, a document he called "an experiment, as all life is an experiment."
"While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country," Mayer said, citing Holmes' words of 1919.
He said the government, not the judge, overstepped its powers.
"The essential thrust of the NDAA is to create a system of justice that violates the separation of powers," Mayer said. "You've taken detention out of the judicial branch and put it under the executive branch."
His co-counsel, Bruce Afran, cited the Supreme Court ruling in Ex parte Milligan
, which held that Civil War-era military tribunals for citizens were unconstitutional when civilian courts are still operating.
Afran called that ruling "an absolute barrier" to the NDAA.
But Assistant U.S. Attorney Benjamin Torrance cited the military commission and execution of Nazi saboteur Richard Quirin during World War II as an example of a person who lived as a New Yorker, but lost access to his civilian rights under wartime authority.
Calling that case "completely within the Constitution," Torrance said, "That has never been controversial throughout our nation's history."
He later drew a line between that case and the Authorization to Use Military Force, or AUMF, which allowed the government to kill or detain suspected Sept. 11, 2001, plotters days after the attacks.
The government claims that judicial interpretations of the AUMF made it identical to the NDAA.
Torrance asserted that the United States does not differentiate under which authority it holds military detainees, even in its current policy.
Judge Forrest said that if this claim is true, the government could be found in contempt of court for violating orders prohibiting detention under the NDAA.
She prodded Torrance about the differences between the two statutes.
For example, the AUMF targets those involved in the Sept. 11 attacks; the NDAA covers all suspected of joining or "substantially supporting" the Taliban, al-Qaida and "associated forces," she said.
Asked whether that language would chill the right to associate, Torrance replied that nobody would be detained for "peacefully standing in Afghanistan" while "Osama bin Laden walks by."
"He can't walk by any more," Forrest noted dryly.
Torrance acknowledged that disseminating propaganda could lead to military prosecution, as in the case of Ali al-Bahlul, convicted as a press flack for al-Qaida; he called the issue a "gray area."
Bahlul's attorneys are appealing his conviction on free speech grounds, the Miami Herald reported.
Another attorney for plaintiffs, David Remes, said the NDAA's free speech threat could not be measured by individual cases.
"The danger posed by the sword of Damocles is not that it falls, but that it can fall," Remes said.
Forrest gave the last word to Afran, who said there is no need for a "Homeland Battlefield" law, as the NDAA has been called.
"We had one horrible, tragic day," Afran said. "That does not turn the United States into a battleground."
At an impromptu press conference after the hearing, Chris Hedges appeared pleased with what he saw.
"It didn't appear to me by the end that [the government] had any argument to stand on," Hedges said. "The judge eviscerated them."
Perhaps anticipating defeat, the Obama administration filed an appeal
to the 2nd Circuit on Monday.
Mayer lamented that Obama, a former constitutional professor who promised to strengthen civil liberties, seems so intent on fighting to keep "the most anti-civil rights statute in memory."