DOJ Defends Controversial Military Detention Provision

As presidential election returns rolled in Tuesday night, the U.S. Justice Department filed its opening brief defending a controversial military detention provision that a trial judge in Manhattan declared unconstitutional earlier this year.

The suit, filed in Manhattan federal district court by a group of journalists and activists, challenges a section of the National Defense Authorization Act that DOJ lawyers said reaffirms presidential detention authority under the Authorization for Use of Military Force, or AUMF. That authorization was passed in response to the Sept. 11 terror attacks.

Government lawyers said in the papers filed last night in the U.S. Court of Appeals for the Second Circuit that the plaintiffs "are in no danger whatsoever of being subject to capture and detention by the U.S. military." The provision in question allows the detention of people who "substantially supported" al-Qaeda or "associated forces."

"The district court nonetheless issued an extraordinary and sweeping injunction at their behest," DOJ lawyer August Flentje of the Civil Division said in the brief filed last night. Flentje said the trial judge, Katherine Forrest of U.S. District Court for the Southern District of New York, "entered a sweeping and permanent injunction against the president."

President Barack Obama signed the NDAA last December. He said then that the detention law "breaks no new ground and is unnecessary" because its authority was included in the 2001 enactment of the AUMF.

The DOJ legal team argued several main points in their submission in the appeals court, which agreed to expedite the review of the dispute. The government argued, among other things, that the trial judge's injunction blocking enforcement of the law wasn't "an appropriate exercise of a court's equitable powers."

DOJ also said the plaintiffs don't have a legal foundation to sue in the first place because, according to the government, they face no threat of military detention under the law.

"Rather than interpret the law in a reasonable way, the district court purported to enjoin the President from carrying out his responsibilities under the law as Commander in Chief in an ongoing military conflict," Flentje wrote. "This suit should have been dismissed at the outset for a simple and straightforward reason: plaintiffs lack standing because there is absolutely no basis for concluding that they would be detained under the challenged military force authorization."

Forrest wrote in a decision in May that the plaintiffs, who include former New York Times correspondent Christopher Hedges, "have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment."

The judge entered a permanent injunction in September. The Second Circuit put Forrest's ruling on hold, at least temporarily, to review the case. The plaintiffs, represented by Carl Mayer of Princeton, N.J.'s Mayer Law Group, fought the government's request for a stay, arguing that the trial judge's ruling "trods no new ground."

Hedges testified at a hearing in the trial court that he fears detention based on his work as a journalist. He called certain terms in the statute—including "substantial support" of terror-related groups—vague. The law, Hedges said, can be misapplied to "American citizens on American soil."

DOJ lawyers said none of the plaintiffs were "detained or threatened with military detention" since the inception of the AUMF. "Indeed, plaintiffs offered no evidence of any military detentions by the United States based upon independent journalism or advocacy," Flentje said in yesterday's filing.

DOJ, citing complications from Hurricane Sandy, received extra time to file the government brief. The deadline was extended to November 6. The challengers are expected to file their court papers, responding to the government, by early December.

Comments

[Brandon]

Let me get this straight.

The plaintiffs are not under any threat of military detention, so they don't have standing to challenge this.

However, if they were detained under this law, they would be unable to even make a phone call, let alone a legal challenge.

So you can't challenge it until it's too late, and then... you can't challenge it.

Does this remind anyone of the Salem witch trials? To find out if someone was a witch, tie them up and put them in deep water. If they float, they are a witch... if not, they're dead.

[PandaUnite]

Did anyone read the transcript from the case in District Court?

The Court: “When we are talking about cases which have used the phrase ‘substantially supported’ and said that that is a valid criterion under the AUMF or of the legislation, that’s not the same thing as saying that . . . any court has found, one way or the other, that ‘substantially supported’ has an understandable meaning to an ordinary citizen?”

The Government: “It’s true that the courts have not expressly ruled that, that’s right.”

The Court: Give me an example. Tell me what it means to substantially support associated forces.

Government: I’m not in a position to give specific examples.

The Court: Give me one.

Government: I’m not in a position to give one specific example.

Later…

The Court: “Assume you were just an American citizen and you’re reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of §1021, and you read the phrase ‘directly supported’. What does that mean to you?”

Government: Again, it has to be taken in the context of armed conflict informed by the laws of war.

Court: That’s fine. Tell me what that means?

The Government: “I cannot offer a specific example. I don’t have a specific example.”

Even now, the government refuses to define "substantial support" "direct support" and "belligerent act."

It's absurd that the DOJ can say these plaintiffs have no case, the law practically applies to any and everyone.

[Coleen Rowley]

I don't understand how the Obama DOJ can in one breath prosecute under the 1917 Espionage Act more than twice the number of government whistleblowers than all other presidents combined, characterizing the whistleblowers' disclosures to the media not as spying but as "communicating with the enemy"--subject to the death penalty-- but in their other breath (in this case), say that Chris Hedges and other reporters have nothing to fear in terms of being indefinitely detained by the military.

[Avon]

DOJ may think they can surely file a brief on time, but if Sandy intervenes, they can re-think - and the court will hear their plea for an extension.

DOJ may think Chris Hedges surely has no risk of detention for abetting terrorism if he hangs out with terrorists, but if an attack intervenes, they can re-think and detain him wherever he is - but then they'll say he has no right, as a terrorist, to habeas corpus. No court will hear his plea, at least not if he's abroad at the time and the detaining authority conducts an extraordinary rendition.

What DOJ may think can happen should bear absolutely zero weight on the issue! Not only is it speculative, but it's simply untrue.