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A Judge Who Judges

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By William Fisher

The Judicial Branch of our Government gets batted around for all kinds of shortcomings. Judges have enemies on the Left. Judges have enemies on the Right. Judges are accused of favoring their ideologies over the law -- activist judges, they're called. Others are  are bashed for believing that the Constitution is a "living document." Those believers are excoriated for "rewriting" the Constitution.
At the other end of the judicial spectrum, judges have supporters who plumb the depths of centuries-old originalism to fathom what the Founding Fathers really meant.
So it's more than a little refreshing when we find a judge driven neither by personal ideology or jurisprudential geology.
Well, I found one, and that's why I feel refreshed today. The New York Times must have felt OK too; they wrote an editorial.
The Judge's name is Katherine Forrest of the Southern District of New York in Manhattan. Last week, Judge Forrest did what judges are supposed to do. She adjudicated. Two cases. Both, in my view, according to the US Constitution.
Here's how they went down:   
    In one case, Judge Forrest slapped down a provision of a 2011 law in which Congress set out expansive interpretations of Presidential authority -- specifically the authority to detain individuals indefinitely. Such detention, according to the judge , went "beyond the real needs of the war in Afghanistan, the campaign against Al Qaeda or legitimate counterterrorism efforts in general."
I frequently disagree with the New York Times, but this time I'm in their corner. The Times said the judge "was right to challenge government's claims of ever-expanding, unsupervised detention authority around the world..."
In May, the Judge issued a temporary injunction. The plaintiff was Chris Hedges, a journalist who formerly worked for The Times, and several supporters of WikiLeaks.
They argued that the law was too imprecise about the conduct that could lead to someone's detention and exactly who could be detained.  They said the statute chilled their First Amendment rights because they feared the government might claim their activities made them supporters of an enemy force and subject to detention.
Judge Forrest agreed. She ruled that the Constitution requires more specificity when "defining an individual's core liberties." She took issue with the use of inexact terms like "substantially supported" and "associated forces." 
The government also failed to state unequivocally that no First Amendment-protected activities would subject them to indefinite military detention, the judge said, and this troubled her. As it should have.
The second case heard by Judge Forrest dealt with the 2008 FISA Amendments law that expanded the government's power to conduct surveillance without warrants in the future. According to The Times, it also retroactively rejected the George W. Bush administration's unlawful snooping in broad violation of Americans' constitutionally protected privacy.
Judge Forrest also slammed provisions of the FISA law which, in combination with the National Defense Authorization Act, could result in indefinite detention.
Privacy and civil rights advocates, like the American Civil Liberties Union, have spoken out against the reauthorization act. The ACLU criticized the law for allowing monitoring of "American communications without meaningful judicial oversight and without probable cause or any finding of wrongdoing."
This not the end of the story. The Obama Administration will doubtless appeal these judgments and, given the current jurisprudential environment, may win.
Still, it's heartening to find a judge -- an Obama appointee -- who is willing to take on heavy Constitutional issues and possibly face opprobrium from the half the Congress, half the public, a lot of colleagues on the bench, the Department of Justice, and the White House.
Or, as The Times editorial puts it, "The judge's willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security. If the government is unhappy with the ruling, it can largely blame its failure to adequately limit and define detention authority."

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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