September 20, 2012

The Sept. 17 editorial “Detention wars, continued,” criticizing U.S. District Judge Katherine B. Forrest’s decision to enjoin Section 1021(b)(2) of the National Defense Authorization Act (NDAA), is a disturbing stance for a news organization that has foreign correspondents. The act, among other things, allows the military detention of persons who “substantially supported” al-Qaeda or the Taliban.

Foreign reporting, which I practiced for two decades, often requires journalists to have direct contact with individuals or groups deemed to be terrorists or members of terrorist organizations. The law has no provision to exempt journalists.

I initiated this lawsuit in January in large measure because I understood, as did Judge Forrest, as shown in her 112-page opinion, that those of us who report on these groups, and who present to the public facts and opinions that challenge official narratives, can become prey to the draconian measures of military detention and the stripping of due process outlined in the NDAA.

As Judge Forrest wrote: “The Government was unable to offer definitions for the phrases ‘substantially support’ or ‘directly support.’ ... When the Court asked for one example of what ‘substantially support’ means, the Government stated, ‘I’m not in a position to give one specific example.’ When asked about the phrase ‘directly support,’ the Government stated, ‘I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.’ In its pre-trial memoranda, the Government also did not provide any definitional examples for those terms.”

Judge Forrest also asked in her opinion whether a news article deemed by authorities as favorable to the Taliban could be interpreted as having “substantially supported” the Taliban.

“How about a YouTube video?” she wrote. “Where is the line between what the government would consider ‘journalistic reporting’ and ‘propaganda?’ “Who will make such determinations?” she wrote. “Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is ‘modest’ or ‘substantial?’ ”

Enlightened self-interest alone should have prompted The Post to celebrate, rather than condemn, Judge Forrest’s ruling.

Chris Hedges, Princeton, N.J.

The writer is lead plaintiff in Hedges v. Obama, which challenged Section 1021(b)(2) of the National Defense Authorization Act.