“If this were a statute it would be clearly unconstitutional.”

This was from my interview with Bruce Afran, the lawyer for the NDAA challenge case. He is explaining the government lawyers’ argument in their appeal regarding who they say they can arrest — what kinds of activists and journalists can be arrested IN THEIR OWN WORDS under the NDAA:

Bruce Afran: “The government lawyers say in the brief:

…individuals who engage in the independent journalistic activity or independent public advocacy described in plaintiffs’ affidavits and testimony without more are not subject to law of war or detention as affirmed by section 1021 a-c. solely on the basis of such activity.

“Look at all the conditioned layers of this wording. We don’t know what any of these terms mean. We don’t know what ‘independent’ means. We don’t know what ‘without more’ means. And we don’t know what ‘solely on the basis of such activity’ means.

“And the other point I raise is: why should only independent advocacy be protected? Most advocacy is not independent — it is part of a movement or a philosophical group. Rarely is someone an independent speaker — rarely is a politician independent. Many journalists would be seen as not independent. Independent journalism usually means you are not employed by anyone. So this is a nonsense term they are using which would eviscerate a huge amount of first amendment speech.

“This is a major threat to journalism and to journalists. Anyone who is an advocate but who is not independent can be subject to this law. This is totally antithetical — contrary to the First Amendment. Someone who raises money for legal defenses for Guantanamo inmates could easily be said to violate the NDAA.”

Naomi Wolf: “Anti-war protesters could be arrested under this wording?”

BA: “In the 1920s thousands of people were prosecuted for anti war activities — so we have precedent for prosecution of anti war protest. One can hope we wouldn’t go backward to those days. When you have a law that is so broad you can no longer trust government.

“Someone who goes down to Guantanamo and publicizes the prioners’ plight could be ‘substantially supporting’ Al Qaeda under this statute.

“It is unclear why this law is even being offered. There doesn’t seem to be any need for this law to fight terrorism because we have ample laws already. The word ‘support’ usually means advocacy in most definitions. The government admits that advocacy is within the law other than ‘independent’ and you can be arrested for it. So if your advocacy is not ‘fully independent’ — whatever that means — you can be arrested for it. It is a very dangerous law. If you don’t meet the government’s definition of ‘fully independent advocacy’ you are subject to arrest under the NDAA.”

NW: “Is this a worse iteration than the one in the original statute?”

BA: “If this were a statute it would be clearly unconstitutional. You can’t have a law that presumes that non-indepenedent advocacy is criminal. What is ‘public advocacy’? There are so many conditions here it is really giving government a free hand to arrest anyone it wishes.”

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