it's sis
on the phone bruce afro and he is the
professor of law at rutgers university
a civil rights uh...
attorney and constitutional attorney the
m
well you may uh... recognize his name
from his lawsuit uh...
against uh... the telecom uh... some
telecom players in the n_s_a_ spying
case
uh... during the bush year
earth's uh... he is representing
plaintiffs in an action against the
national defense authorization act uh...
welcome to the program burns
thank you pam greta bier ait so uh...
leading japanese
lou the plaintiffs are and what the
uh...
what did you get what exactly are you of
assuming the government for
well we have a variety of planets script
hedges the uh... well-known pulitzer
prize winning writer
italy planet dan ellsberg norms promptly
jennifer ballin who's a young activists
from revolution truth
elect cobra i am who's one of the
leaders reoccupy movement and uh... u_s_
beverage and icelandic parliamentarian
brigadier you have to tar who uh... has
really has been subpoenaed investigated
by the u_s_ in connection with wiki
leaks
and finally a woman from england karwa
kiowa collar was one of the leaders of
occupy london
have all of them
will be brought under this law which
makes it
enough and
simply to give substantial support for
some group that the government beans
uh... sociated without idea or the
taliban
there's no definition in the law and
anyone of these people because of their
associations
like millions of people could
potentially be brought under the law
okay sir um... before we we we get we
break that down because we're talking
about a couple of specific sections of
this uh...
in national defense authorization or
homeland battlefield law
uh... what is it exactly uh...
what what is it exactly that the
plaintiffs are seeking here
to uh... to overturn this law
what we're thinking toothpick ultimately
to overturn the wall because it's
unconstitutional
in that it would put civilians and
citizen into military detention
and because it unconstitutionally
invaded up and tell anyone what
does it mean to substantially support
and who are the associated groups
and more immediately were asking the
court to put a temporary stay on the law
until it can be fully addressed in court
and on that
last thursday there was a hearing
uh... i guess uh...
essentially to deal with the kit with
the issue of standing whether or not the
plane s
have uh...
the ability
to challenge this line is that right
that potentially the issue with this
stage you know whether they have a close
enough connection to this scope of the
war
to give them a right to be a court and
i'm pretty convinced that the judge fees
that
as as already present based on her
comments
you know the next question would be you
know how far does she have to go at this
stage to prevent the law firm having
this farm
before there's a full hearing
okay so let's
let's go into and what we're talking
here about uh... sections of whirl one
zero two one and one zero two two the
law
but let's first uh... tell us uh... the
first planets to testify was alexis or
brian she uh... you mentioned her that
she uh... is involved in the occupied
movement chief co-founded the u_s_ day
of rage
wanted to tell us about her story and
why that uh... that
why is she would have standing in your
eyes and challenges law
well elect cobra and found that u_s_
dave rate which is really a campaign
finance group anna soonish
she became active
she was contacted by various security
vendors who provide services to the u_s_
suggesting she's linked with islamic
jihad
informing her that her group is now
appeared on islamic jihad website
department of homeland security actually
put her on an alert her group on alert
along with occupy and operating
and so if the the beef compaq have just
come out of blue
uh... towards her and her group which
makes one clearly don't think that their
targets of a government that uh...
government terrorism investigation
and that puts a reasonable fear of being
put into indefinite detention
and and and it because he did
it because of the wording of the law
on section d uh...
uh... ten twenty one
uh... it
secret the scene as header
substantially supporting al-qaeda
or as associated forces
uh... because
their protest lou we're being sort of
uh... um...
featured on a website that is associated
with the al-qaeda is that it
well a government the government is put
on an investigation amber visas security
experts to work on the contract with the
government have been contacting her
act part of their investigations so we
think she's already targeted ever group
is already targeted
to be a substantially supporting group
and ups would be brought under the law
so we think she has standing to bring
this challenge ok and so uh...
the next witness it was ka
i work dala
uh... and she uh... is a member of
occupy london
uh... what was the first ori debt made
uh...
that would uh... argue too
her being uh...
having standing in this case
well apparently very interesting person
she studied her master's degree in
germany but it living in england welch a
right to pieces
she's one of the founders of occupy
london
and occupy london was put on a terrorist
watch list by the metropolitan police
simplicity of london
right under archive
you know therefore groups listed and
we're the fourth for just under a cutter
and so clearly occupied one has been
targeted already by the host government
as this sociated without kaiser so we
don't think that koi enter organization
pick would be brought under the scope of
this law
that some part of this
and is actually no definition to limit
it
application
and uh... then chris hedges uh...
uh... spoke uh... waddell
what what's the argument that he has
standing
uh... under law
well craig has you've been in contact
with many many terrorist organizations
insurgent organizations war correspond
he's got to get back on the field
without crying or the taliban
because they are in conflict with the
u_s_ but he's been on the field with
many other groups including a mop
he'd actually been at the home of the
one of the leaders of the month rent
t_v_ before he was killed in a in
israeli attack
and so hedges is someone who has
assisted with dozens
of people who the government normally
regard hysterics
now half the stuff it with him outside
of his
role of the journalist as a war
correspondents
both the traditions of so close that we
think he could be linked in addition
he's been detained several times
by the u_s_ once by the military saudi
arabia the u_s_ military
all working outside of the press pool
which they had no legal right to do
since he was admitted by the county
government
and one in the u_s_ we he was told he
was on a watchlist
and the only thing the government puts
people on a watchlists forays some
linkage with some terrorist group now
chris is a journalist
he'd never had any linkage
with any terrorist group accepted his
work and that's why this
ordnance
will invoke first amendment rights and
privileges answer chris is a plaintiff
because of
the government's own actions towards him
during his work as a journalist
now uh...
uh... so ones
with stabs at least
or there's an attempt to be established
that uh... these people have standing
uh... until i can bring it uh...
uh... this case
um... there was an interesting exchange
between uh... the district judge
to catherine frog of forest
and the uh... government lawyer as to
the scope of the states and other words
you know what that definition of
substantially supported needs or what
the definition of associated forces
means
um... tell us about that because
uh... it's rather
written insert speaks to the heart of
what is problematic about this law
you know i i should before i forget just
mention might might lead co-counsel call
mayor has been honest with me from the
beginning
uh... works with system i david needs
but karla by have have
it's spearheaded this adweek sap their
dumbfounded
at the government refused by my count
six times
to enter the judge's question
each time she asked well dot sent the
work of chris hedges dust of the tie-in
of the police would work dollar dustin
o'brien's contact by the government
from the government
reasonably make them targeting can use
today
that they're expressive conduct will not
bring them under the law
and six times the government attorneys
refused to answer
and and by that they maybe they
literally and said basically said wheat
wheat we can say that
they said we have no answer for you
essentially
repair we cannot answer
we are not permitted to enter also they
were answering and so
the definitions of this law our secret
as opposed to
unknown
well the definition building here
if the government interpretation that
they're keeping secret
and uh... you know that's really the
crux of the constitutional issues that
if you can't
see what the law means from its plain
language
and are no definition
and no limiting prevention
that i'll be free touches
first-amendment committee
and after the judge with asking and six
times the government refused to give the
judge's assurance
that they're expressive activities would
not bring them under the statute finally
the judge said
i don't have difficulty
finding that could be constitutional if
the government can't give me any a like
that
if the government can't given assurances
expressive conduct is not going to bring
them under the statute
there was a fascinating exchange
yeah that's that's amazing because
there's really no way to know and and
uh... the argument at least from the
from chris hedges is this going to have
a tremendous chilling effect because if
i don't know where that line is
is five don't know that i fall under
this law if i interview a uh...
uh... leader of hamas
that i'm not going to do it
for fear of being detained
uh...
but military forwarded death occurred
well i have and actually mail me walton
the woman journalist has bebitch he held
me wanna join the case precisely because
of that factor that she's already
held back on from journalistic
interviews of this nature
because the fear of the law
uh... you know increase hedges has said
he will not be silenced in the work he
does but he's already been forced to
change how we interviewed people
he's unwilling to interview certain
people by phone
aspects to go and feed them
personally to do is work
answer this murdered expressive conduct
so michael echo brian who's essentially
a private citizen
you know working as a journalist uh...
at
on occasion
if you know in a position where she
feared being detained indefinitely
simply for writing
about issues involving people going to
have amal
because the government has already
flagged for a group
as a token with these organizations
this is a an immense threat to the first
amend
if these type of data laws that
undermine democracy
so is this uh... i mean
ultimately if if the plaintiffs are
found to have standing in the case goes
forward is the challenge going to be
on it's chilling effect on the first
amendment on its encroachment and what
specifically
uh... you know helpers
uh... those of us who
uh... either went to only law school for
one year uh... or her
herb for
will go to law school at all the
specifically howled
what aspects of the law will be will you
argue are unconstitutional
will you focus in place on the first
amendment issue
use or other items
whether to and actually most legal
issues are not terribly complex
from travelers may compound that way
really lost said that he was
substantially support any group of
sociated without tighter
can be subject to indefinite military
detention without trial
and even moved too far in government
depart countries
that the first thing because those words
substantially supported and if sociated
forces are still greg
and camille virtually anything to anyone
and the government's refusal to issue a
judge for us that
and expressive activity and not within
that category and that
their appropriation by the government
without hydea will not bring them under
it
i demonstrate how broad and dangerous is
it so that substantially supporting
language which is not to find
associated forces which could mean
virtually any group that the government
deems appropriate idioms spirit even
uh... will bring these people under and
many others this second point
is that
it had never been recognized by a court
that eight
unison
can be put into military company if
they're not engaged in armed conflict
against the u_s_
this law allows
civilians and for the fifth
who had not engage in any combat with
the united state
to be put in military company
that the cream cordova hummed a decision
in two thousand four said
that only wear
a citizen is engaged in actual long
conflict with the u_s_ can they be
subject to military detention
as far back as a civil war that supreme
court held the government cannot put it
through the city
into military craft
and so it'd be the statute on the second
grounded presumed it could take a
citizen
who's not in the military who is not a
conflict with the u_s_
but it simply engaging first amendment
activity and put them in military
custody
violates one of the most sacred
principle
of aqua coast
and uh... was that specifically
addressed by uh...
of the government attorneys that second
grounds
the government has virtually ignore that
argument
they pretend it doesn't exist
we have the drafted very at great length
antigovernment groups are virtually
silent on this point because there's no
answer to it
mister prine court is clearly stated
a citizen can occupy military craft
and the and the government pete you know
had completed silent on the question
uh...
these at one point i think uh... the
judge said are you telling me that no
u_s_ citizen can be detained under
ten twenty one
and the government lawyers who is a
that's not a reasonable fear and send
um... when do
the judge continued on so it's a
reasonable to fear you'll be unlike
insisted tension trial
what is directly supported me
and we've not said anything about that
said the uh...
government ernie so
uh...
how easy that we hear
year uh... from there are some of uh...
legal experts there certainly
uh... politicians who voted for this act
that it dosn't allow
u_s_ citizens to be detained how was it
the right here that
because people glossed over what
politicians sent president say the judge
pointed to the president signing
statement and the judge
pointed to comment on the part
i've heard nothing about this yet the
judge said
look at president obama's son equipment
it only says
citizens will not be subject to military
detention without
without trial under the actor
and she pointed out to the government
differ from face citizens won't be
arrested and put into military custody
it simply because they won't be
put into military cuts the without trial
so the judge just felt that the
government the president signing
statement does not even protect it
from being brought into military custody
and i've had no ethics that's aside
alysha make this clear that the law
passed that
the uh... the president signs assigning
statement which it is essentially is
an expression of his intent on how
of the law will be executed
but that's not necessarily binding it's
certainly not necessarily binding on
future presidents
um...
in
picked up by the even on president obama
is retention pond
and in fact the findings statement does
not face citizens won't be arrested
under this law
it simply because they want to put a
military custody without a trial
but they can still be putting even under
the president's signing statement into
military detention
and and that's one of the fundamental
wrongfully citizen should be tried only
in a proper federal court
with proper due process protection so is
it ok should sum that signing statement
that
we won't know what a relief to tame
anyone without some form
of trial we won't say what that trial
mediate is the application at the trial
as a military commission using
implication a hat
trial
all in a
civilian court is
and then it seems to me the implication
is also is that they are serving one way
or another that there is the authority
to
militarily detain people
poets worsen that sam section ten twenty
two government recapturing a partners
in foreign countries
congress in passing that section
ordered that the president's setup rules
governing their detention and their
trial in the military
at the section ten twenty one which is
what governs citizens in the u_s_
congress did not require that any rules
be created an evite out of the state
there are no rules
so the president signing statement does
not stop to the stand from
be taken into the military it's i think
they did not even binding on him much
less later president
and there are no regulations to protect
american citizens
even though congress paradoxically you
order that they be regulations to
protect foreigners taken in foreign
countries
is the fact that the congress uh...
ordered uh... for specific regulations
about foreigners
a uh...
uh... perhaps
an indication that
the congress didn't quite know what it
was passing
i mean in other words that they presume
them to do that
under this law
civilians would not be able to be
detained by military but because of the
away that it was written that it
provided for that
properly what congress understood the
way these for repair their russian
through they drafted very quickly
it was tacked onto the military
appropriations bill
very little fo was given to a and it was
rushed through the political act
and so like the patriarch before it
they are universally no thought given
to most members of congress festivities
implication to create an extraordinarily
serious stap
to suggested through this and can be put
into military perfidy to to get anyone
can be him up there in an armed conflict
and he had very little for was given by
congress
to the step
and that's what you throw tragic about
our modern system of legislation i will
play this
uh... but there are republicans in
congress right now who are introducing
this week changes to the war to
eliminate money many of these problems
answer did not going to be a callback
question hopefully this will get
legislatively addressed
but at the moment this is a grossly
unconstitutional and very violative act
hit on the book
and so what happens next in the legal
case
well we're committing brief
the job that you know not the issues
arise bofa actually legally that the
judge one of the additional briefs
uh... we have full day here in the
fascinating legal argument but now we
have additional brief though do within
the next two weeks
at that point the judge will decide
whether she will put it in junction on
the law and to what extent
she might uh... issued an injunction
only have two expressive activity
and leave the statute stamping you know
our position is that that give the
measure of protection of course
but we'll always so vague that allows
for the possibility of arrests for first
amendment civilly
the war itself should be declared
unconstitutional let congress rewrite it
m_i_t_ should say that we're only
dealing with a very small part of this
fall
you know one small section
none of our challenge has anything to do
with people who are in a combatant fee
with u_s_ who were arrested on a
battlefield we dealing only with a very
small section dealing with people in
this country who were civilians
unserious she was too
uh... provide injunctive relief for
or expressive activities what is the
scope of expressive activities
well that's what we were red plaid with
the court
uh... and it's a very difficult for me
to define
because expressive activity from a
family
their their interviews with people in
terrorist organizations there's
commentary that
discussion of their ideology
there are protest that end up being the
sociated by governments with the islamic
groups
any the range of expression a demo which
is really why congress need to take care
when it right these laws
you know i'll play that one thing in the
uh... nineteen ninety-six act
patrick and material support for
terrorist groups
added to find it very very specifically
and that's computational because you're
clear definition
here congress rusted through i didn't
even bother ecw operating those
definitions into this law
and so we have
that they were folks will leave congress
stuff and put the definition cn
it must be intending to regulate more
conduct
more expressive activity
and that's why this new law was passed
i was going to ask you i mean uh...
because it's not often that i have a
uh... constitutional law professor on
the phone
if it's uh... if uh...
we've established in the past that money
is speech uh... how uh...
how is it
such that is fire was to donate money to
hum osx
uh... that would be considered material
support as opposed to
simply expressive activity
well i think we not all speech
it constitutionally protected
if you give money to work uh... in
organized crime syndicate purchase
weaponry clearly that is not speech
personal
if you give money to come up that just
goes into a hamas treasury in the youth
that to buy weapons
congress can regulate that type of
donation
if you give money to hobart hospital
it's less clear
whether that that outside of the first
amendment private sophia two
activity
uh... you know i would fit if none of
our client
indoors
giving any financial support or assisted
to any terrorist group and we have
lawyers don't
this is the ballot the contact
inform the world of their activities
and about ideas that you know trade
around all of these conflict
our prime don't necessarily agree with
these groups
but as journalists believe they need to
be
the public need to be informed
that can't be done the last one p these
people and free to interview them
you know so i i would do the best
difference between speaking to people
and reporting on them and giving money
to help a group like that
which clearly can be that so uh...
briscoe within two weeks and then uh...
do you have a sense of what the timeline
is for the judge to consider this
and uh...
secondarily is there
is there any chance that we're going to
see take washing of this case because of
some type of state secret dark diop
trainer some such
uh... work for the first question i
think the gradual besides sometime in
may
because at the preliminary injunction
proceeding in normal either handled
fairly quickly if she denied that the
cable simply go to trial you know some
months later on the main issue who won't
get this nest
uh...
at far as you know whether it could be
quashed on state secrets cramped
daffodil of mint second line of defense
in all these cases perfect say the
planet understanding
secondly they pay if they have standing
sorry judge we can't discuss this case
because of state secrets
even in the event they cases the
district judge vaughn walker in
california rejected that argument
he said that the reason we can't discuss
the legal issues
and so that case will proceed to get the
government
uh... mc you know in the in a situation
i don't see that it happening because
the statute is the issue it's not their
policy
right interesting there's no facts in
contention there's nothing that needs to
be revealed about what's going on and we
simply
are doing is to the validity of the law
but i think that's very will cut
professor
oh professor
uh... abreu saffron and the attorney for
representing uh... these plaintiffs in
this uh...
to suit about the uh... national defense
authorization act appreciate you taking
the time today
