In an opinion issued this afternoon, Judge Forrest preliminarily enjoined enforcement of a portion of the National Defense Authorization Act, a federal law President Obama signed on December 31, 2011, authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” The plaintiffs are a group of journalists who claim their activities have been chilled by the broad and vague scope of the detention authority contained in § 1021 of the law. Judge Forrest first rejected the government’s argument that the plaintiffs lacked standing:
Here, each of the four plaintiffs who testified . . . has shown an actual fear that their expressive and associational activities are covered by § 1021; and each of them has put forward uncontroverted evidence of concrete–non-hypothetical–ways in which the presence of the legislation has already impacted those expressive and associational activities. For instance, [plaintiff Christopher] Hedges has testified that he is currently concerned about associating with certain individuals and in fact has now removed himself from certain situations in the course of his professional activities because of that concern. In addition, given his prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban, as well as others that are denominated terrorist organizations by the U.S. State Department (e.g., associating with these individuals in these groups as part of his investigative work, reporting on the groups in the press), he has a realistic fear that those activities will subject him to detention under § 1021. That fear cannot be said to be ill-founded when, at the injunction hearing itself, the Government was unwilling to commit that such conduct does not fall within § 1021’s ambit.
Judge Forrest found that the plaintiffs were likely to succeed on the merits, in large part because the government would not agree that the plaintiffs’ conduct fell outside the statute:
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.