Detention: Law of

David Remes on Hedges

By Benjamin Wittes
Saturday, September 15, 2012, 8:53 AM

David Remes---who, in addition to representing several Guantanamo detainees, is a member of the plaintiffs' legal team in Hedges v. Obama---sent in this note yesterday:

The debate on this blog about Judge Forrest's decision has focused almost entirely on her treatment of the NDAA/AUMF issue and related procedural questions. I encourage readers to savor the judge's outspoken defense of the courts as guardians of the Constitution, whose duty is to check executive and legislative overreach, and her solicitude for First Amendment and Due Process rights even in time of war, in keeping with Justice O'Connor's opinion for the Hamdi plurality. Whatever your view of her resolution of other matters in the case, her approach to these issues, as the New York Times recognized in an editorial [yesterday] morning, "was a refreshing departure from too many other judges in cases involving national security." Here is what the Times said:

The plaintiffs said the statute chilled their First Amendment rights because they feared the government might claim their activities made them supporters of an enemy force and subject to detention.

Judge Forrest agreed, saying the Constitution requires more specificity when “defining an individual’s core liberties.” She was especially troubled by the government’s inability to define terms like “substantially supported” and “associated forces,” despite ample opportunity to do so during the course of the lawsuit. She also was swayed by what she saw as the government’s failure to eliminate the plaintiffs’ fears by unequivocally stating that no First Amendment-protected activities would subject them to indefinite military detention.

The judge makes plain that the outcome would likely have been different had the government offered an authoritative official statement that “protected First Amendment activities occurring by Americans on American soil.” The failure to do so, she found, bolstered both the plaintiffs’ standing to sue, as well as their claims.

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.

[Yesterday] morning, Ben and Raha Wala rang the opening bell in a debate about the First Amendment issues in the case. I especially await the First Amendment discussion that Ben has warned us to expect.