- The Washington Times - Thursday, May 17, 2012

A federal judge this week blocked enforcement of a section of federal law that critics say allows unlawful and indefinite detention of terrorism suspects — a case that Virginia Delegate Robert G. Marshall supported with his own legal brief.

Pulitzer Prize-winning journalist Christopher Hedges, who has covered and traveled with terrorist groups, filed the original lawsuit in January. He said he’s altered his behavior since the 2012 National Defense Authorization Act (NDAA) was passed for fear of overhearing conversations that could potentially subject him to provisions in the law.

Mr. Marshall, Prince William Republican, along with a host of other groups, filed their support known as an amicus brief last month because they “share Plaintiffs’ concerns that, as members of the press or organizations which exercise First Amendment freedom of press rights, they could be targeted due to the nature of the work that they do and opinions they express,” wrote Judge Katherine Forrest of the U.S. District Court for the Southern District of New York.

Judge Forrest wrote that parts of Mr. Marshall’s filing reiterate arguments already made in the lawsuit. “[T]he Court does not find the amicus brief necessarily helpful,” she wrote in her decision. “However, the Court accepts the amicus brief for filing in order to have a full record on this motion.”

Mr. Marshall, though, said the brief “absolutely” could help bolster arguments against the act in potential future lawsuits, as it was the only amicus brief filed in the case.

Mr. Marshall also led the fight in the state against the NDAA provision and introduced a bill during the 2012 General Assembly session stating that Virginia would not participate in unlawfully detaining residents under the act.

Gov. Bob McDonnell amended the bill to specify that no state agency or employee can “knowingly” aid in detaining residents under the act and that state law enforcement cannot participate in joint task forces formed for the purpose of participating in such detainment. Mr. Marshall accepted both changes.

For the brief, Mr. Marshall reached out to advocates who had their eye on that fight within the state, such as the Tenth Amendment Center.

“I got some notorietywith my bill, so it was just a matter of contacting the people I had lobbied with on my bill,” he said.

President Obama issued a statement when he signed the NDAA on New Year’s Eve saying he disagreed with provisions in the law, and also issued a statement saying he would not authorize the indefinite military detention of U.S. citizens without trial. He nevertheless drew fire for leaving open the possibility for future administrations to make nefarious use of the law.

In February, however, he issued waivers to exempt a number of categories of terrorism suspects from being forced into the custody of the military. For example, suspects arrested by local or state law enforcement officials are exempt, as are suspects who would be less likely to confess or provide information if detained. The attorney general can also provide exemptions on a case-by-case basis, and has to check with top national security personnel to see whether there is enough evidence to justify a suspect being handled by the military.

U.S. Rep. Adam Smith, Washington Democrat, with bipartisan support from other representatives, said this week he is pushing an amendment to the 2013 NDAA that would require terrorism suspects caught in the United States to be tried in civilian courts.

Mr. Marshall, one of the most conservative members of House of Delegates, has also dominated the headlines earlier this week for helping derail the nomination of Tracy Thorne-Begland, Richmond’s chief deputy commonwealth’s attorney and a former Navy pilot, to a judgeship in the city. He said Thursday on CNN that he objected to an “activist” becoming a judge, citing Mr. Thorne-Begland’s appearance on national television to declare he was gay as one example. Mr. Marshall also said that “sodomy is not a civil right” in the context of a discussion about the repeal of the “don’t ask, don’t tell” military policy and of the civil rights and women’s suffrage movements.