The Washington Post has a dangerously misguided editorial strongly defending the Executive's right to indefinitely detain even U.S. citizens under the Section 1021(b)(2) of the National Defense Authorization Act (NDAA) and criticizing Judge Katharine Forrest's recent opinion in Hedges v. Obama, which permanently enjoined Section 1021(b)(2)'s enforcement. WaPo mischaracterizes Section 1021(b)(2) of the NDAA as a well-reasoned compromise appropriately respectful of individual rights when in fact the NDAA grants the Executive branch broad, unchecked power to indefinitely detain Americans.
For those not following Hedges v. Obama, the lawsuit is a challenge to section 1021(b)(2) of the NDAA brought by
a group of writers, journalists, and activists whose work requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).WaPo accuses Judge Forrest of "judicial activism" - a stale accusation thrown out against any number of judges who have stood up to executive power. (Former Supreme Court Justice Earl Warren weathered constant accusations of "judicial activism" as his court consistently ruled for school desegregation).
Contrary to WaPo's cries of "judicial activism," Forrest was acting exactly as judges should act - as safeguards of individual constitutional rights. As the New York Times editorial board said:
The judge’s willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority.
Forrest's 112-page opinion is thorough, well-reasoned, and brave.
Some key quotes from Forrest's must-read opinion:
Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.
When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.
Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
First Amendment rights are guaranteed by the Constitution and cannot be legislated away.
The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.Shortly after Forrest issued her opinion, the Obama administration requested a stay, a request Forrest sharply rebuked. The Obama administration has pledged to file an emergency stay request with the Second Circuit Court of Appeals.
Judge Forrest deserves credit for confronting and correctly deciding the constitutional question presented by indefinite detention of Americans. Indefinite detention without due process is antithetical to a democracy, no matter what spin the Executive or WaPo editorial board puts on it.