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Op-Ed Thu Aug 23 2012

Op-Ed: Protect Free Speech from the National Defense Authorization Act

By Jason Neill

A tactic employed by TV attorneys, maybe even real ones, entails burying their opposition in paperwork when they want to conceal the important facts. I think a lot of us can understand how effective such a tactic would be, with the proliferation of constant news feeds and information of all varieties available at all times, it's hard to consume information responsibly. This is especially true when the loudest voices — mainstream media — are sucking up all the bandwidth with easily digested and polarizing drivel.

On the last day of 2011 President Obama, whom I voted for and may again, signed into law the National Defense Authorization Act (NDAA) [PDF]. Who isn't for national defense?... that's being authorized for sure. The problem lies with section 1021 of this law described by the ACLU:

"The NDAA's dangerous detention provisions would authorize the president — and all future presidents — to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield."

The wording of this law is so vague as to who may be detained and why, such that prolific author Noam Chomsky, former NYT foreign correspondent and Pulitzer recipient Chris Hedges and several other professors and journalists filed a lawsuit against the US government back in January 2012. The suit sought to clarify that by doing their jobs they wouldn't be considered to be "associates of terrorists" or "substantially supporting" terror, as the NDAA allows for indefinite incarceration without trial in these cases. An article dissenting against the government might be interpreted as substantially supportive based on sources or the stories themselves simply because the terms "supporting" and "associated" are never defined. The attorneys representing the government could make no such assurances. In fact they argued that section 1021 is of no consequence because prior law had already stripped the protections the journalists were seeking to assure.

In May, Federal District Judge Katherine Forrest of the Eastern District of the US Circuit Court stood up and ruled section 1021 unconstitutional, reasoning:

"Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator's conduct must have been, in some fashion, "knowing." Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster."

This ruling effectively prevents the law from being enforced as it is currently written, although two weeks ago, without any noticeable media attention, the US government began an appeal hearing to overturn Judge Forrest's decision.

Why is no major media covering what is possibly the single greatest removal of a citizen's right to free speech? Why is no major media reporting on a citizen's freedom to present their own dissenting viewpoint? Whatever the reason may be, it leaves independent media and people like me and you to shout loudly.


Jason Neill is the co-founder of a small software company involved in futures industry in Chicago, who has two dogs and one lovely woman in his life.

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Patrick Fuhrman / August 24, 2012 3:08 PM

I sure wish I knew why the media doesn't cover this. I am glad to see that you are among us in spreading the word about this dangerous precedent that threatens our democracy and our U.S. Constitution. Thank you.

Rhea Anderson / August 29, 2012 10:01 AM

Re: '...section 1021 is of no consequence because prior law had already stripped the protections the journalists were seeking to assure.' Do you know which section of which legislation has already stripped the protection from journalist? I would like to add it to my list of legislation that needs to be corrected to uphold the constitution.

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