activist defense

on the intersection of activism and legal systems

Tag: national defense authorization act

year-end wrap-up: updates on 2012 posts

NDAA: On January 13, a group of journalists and activists sued President Obama regarding the National Defense Authorization Act of 2012, which Obama signed on December 31, 2011. Four months later, U.S. District Judge Katherine Forrest granted a preliminarily injunction barring enforcement of the NDAA section that allows indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Another four months passed before Judge Forrest granted a permanent injunction barring enforcement of that section; but the U.S. government appealed, and in October the Second Circuit Court of Appeals granted the government’s motion for a stay of Forrest’s injunction pending a decision on the government’s appeal. Meanwhile, the NDAA of 2013 could further expand the government’s power to hold people in military detention indefinitely.

RNC: The 2012 Republican National Convention protests were surprisingly calm. According to an August 31 New York Times article, no one broke windows, no tear gas filled the air, and only two people were arrested:

The lack of disturbances stood in stark contrast to the last three Republican conventions, when street battles between the police and protesters resulted in numerous arrests and prompted a flurry of court fights about police actions.

The number of protesters at this year’s RNC was smaller than expected due in part to Hurricane Isaac, the storm that caused Republican officials to cancel most proceedings scheduled for the first day of the convention.

Domestic Workers Bill of Rights: California Governor Jerry Brown displayed a lack of empathy predictable only among politicians by vetoing a bill of rights for domestic workers on September 30. Michelle Chen, a contributing editor at In These Times, describes what exactly Brown axed:

The highly anticipated Domestic Workers Bill of Rights would have enacted major protections for tens of thousands of housekeepers, nannies and other caregivers and closed loopholes ignored by federal labor law. It would have extended California’s policies for overtime pay and workers’ compensation, and helped ease in-house workers’ arduous, sometimes-abusive work routines by providing for a set amount of sleep and the ability to cook one’s own food.

Tim DeChristopher: After serving 15 months in prison, Utah climate activist Tim DeChristopher was admitted to a halfway house in Salt Lake City at the end of October. The local First Unitarian Church offered him a job with its social justice ministry. Yet a Bureau of Prisons official said he couldn’t work at the church because the job involved social justice, which was related to DeChristopher’s crime; so he accepted a job at a bookstore instead.

Pussy Riot: Two of the three infamous members of the punk collective Pussy Riot are now serving the rest of their two-year sentences at some of the harshest women’s penal colonies in Russia. (An appeals court released the third woman on bail in October.) They were transported there around October 23. According to an October 29 New York Times post by Masha Gessen, discussing several recent incidents of political repression in Russia,

Anyone can be arrested for legal, peaceful protest — and any one of those arrested can be chosen, at random, to spend days, months or years in prison.

One month later, on November 29, a Moscow court ruled that videos of Pussy Riot performances fell under a law meant to control hate speech. The New York Times reported the following:

The court called for limiting public access to Web sites and blogs displaying the videos. But the ruling is unlikely to cut off access to them, since it applies only to servers in Russia. … Thursday’s ruling cited “psycho-linguistic research” proving that the videos “humiliate various social groups based on their religious beliefs” and contain “hidden calls to rebellion and nonsubmission to authority.”

Jeremy Hammond: After anarchist hacker Jeremy Hammond was put in solitary confinement for five days around the time Hurricane Sandy hit New York City, U.S. District Judge Loretta Preska denied him bail. He has been incarcerated for more than nine months. A release from Anonymous subsequently reported that Judge Preska is married to a client of Stratfor, the very intelligence contractor whose servers Hammond allegedly gained access to, costing the company millions and focusing “worldwide attention on the murky world of private intelligence,” according to a November 2012 Rolling Stone article. Hammond’s attorneys are trying to get Preska removed as the judge in his case, because of her apparent bias.

federal judge permanently enjoins section of counterterrorism law allowing indefinite detention

On May 16, 2012, U.S. District Judge Katherine Forrest preliminarily enjoined enforcement of the section of the National Defense Authorization Act (NDAA) allowing indefinite detention of anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Yesterday Judge Forrest permanently enjoined enforcement of that section. The plaintiffs in the case are writers, journalists, and activists who, according to Forrest’s order, “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention” pursuant to the section of the law at issue.

The government did not provide Forrest with any assurance that First Amendment-protected activities could not subject an individual to such detention. In addition to limiting the Constitutional right to free speech, Forrest wrote that the section was overly broad:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. … The statute’s vagueness falls short of what due process requires.

Forrest therefore found the section to be “facially unconstitutional,” as “it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.” This was a victory for the plaintiffs – Chris Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, U.S. Day of Rage, Kai Wargalla, and Birgitta Jónsdóttir. Yet the government will almost certainly appeal, having already appealed the temporary injunction.

governments have passed counterterrorism laws in droves since september 11, 2001

Human Rights Watch reports that 144 countries passed counterterrorism laws since the events of September 11, 2001. According to researcher Letta Tayler, such measures “represent a dangerous expansion of powers to detain and prosecute . . . political opponents.” Many governments have used the laws to prosecute protesters for the ostensible purpose of preventing terrorism.

As counterterrorism laws are used for politically-motivated purposes, it should come as no surprise that each of the 130 measures Human Rights Watch reviewed – all enacted or revised since September 11, 2001 – included one or more provisions that invited misuse. Such provisions include unclear definitions of terrorism, which potentially cover a wide range of activities, and permission to search premises or arrest people without a warrant.

The National Defense Authorization Act of 2012 (NDAA), in the U.S., exemplifies another troubling trend by allowing prolonged detention of terrorism suspects without charge. Indefinite detention without charge, according to the Human Rights Watch press release announcing yesterday’s report, “has not been part of the US legal code since the McCarthy era anti-communist sweeps in the 1950s.” Attorney Lauren Regan, Executive Director of the Civil Liberties Defense Center, explains the relevance of the NDAA to activism:

As we saw in the Green Scare persecutions, the government will label activists as terrorists for sabotaging corporate or government property without ever harming a single living creature.

Regan reasonably asks whether Daniel McGowan or Jonathan Paul would have been subjected to indefinite detention had the NDAA been in effect five years ago. Significantly, Federal District Judge Katherine Forrest already ruled twice that the section of the NDAA allowing indefinite detention is likely unconstitutional. This was only a preliminary injunction, however, and Glenn Greenwald says Judge Forrest’s decision “will certainly be appealed.”