U.S. Itching to Overturn Detention Ban
A federal judge refused late Friday to immediately stay her ban on the military's expansive, new indefinite detention powers.
U.S. District Judge Katherine Forrest has banned the government, twice, from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.
That paragraph, Section 1021(b)(2), lets the military hold anyone accused of having "substantially supported" al-Qaida, the Taliban or "associated forces" until "the end of hostilities."
President Barack Obama signed the bill on New Year's Eve, over what he called "serious reservations" with the indefinite detention provisions.
Pulitzer Prize-winning journalist Chris Hedges also had reservations with this statute, and he sued Obama and members of Congress for allegedly exposing political dissidents to legal limbo for accusations they cannot contest.
Six other journalists, activists and public figures joined in, and they convinced Judge Forrest that the statute violates free-speech rights and due-process guarantees.
Forrest issued a preliminary injunction in May, and she made it permanent on Wednesday.
Apparently overcoming prior reservations, the Obama administration has opposed the court every step of the way, and requested an immediate stay on Friday.
Government lawyers have long argued that the law represents no change from prior legislation.
Nevertheless, they argue that blocking the new one would imperil the nation's security.
"That is particularly the case given that the statute is addressed to the president's exercise of his commander-in-chief power in the context of the United States' current combat operations against al-Qaeda, the Taliban, and their associated forces," according to a motion for stay authored by Assistant U.S. Attorney Benjamin Torrance. "The court's injunction against the exercise of those war powers gives rise to separation of powers concerns of the first order, and should be stayed. At the very least, there are compelling reasons to grant an interim stay pending consideration of the government's motion for a stay pending appeal by this court, or, if necessary, by the court of appeals."
A clerk for Judge Forrest told Torrance that she would respond to the motion on Wednesday, after the Jewish New Year.
Torrance replied that this would not be fast enough.
"Absent an interim stay, the government may determine that it must seek a stay from the court of appeals prior to that ruling," Torrance wrote in an email to chambers.
The email exchange, which Courthouse News acquired late Friday, shows that, Bruce Afran, an attorney for Hedges and the co-plaintiffs, disputed the pressing need to alter an injunction that is "virtually identical (if not precisely identical)" to the one that has been in effect since May.
Afran's co-counsel, Carl Mayer, told Courthouse News in a phone interview: "The president is doubling down on American civil liberties. More than doubling down, tripling down."
He speculated that the maneuver smacks of an election-year effort to act tough on national security.
"Either they've been detaining people all along under the NDAA, in which case they're in contempt," Mayer said. "Either that, or they want to be really aggressive for political reasons."
Government lawyers filed a notice of appearance at the 2nd Circuit late in the day.