Lawyers for a group of journalists challenging the indefinite detention provisions of the Fiscal Year 2012 National Defense Authorization Act (NDAA) filed an “Emergency Application” with the U.S. Supreme Court on Wednesday. The motion asks the high court to set aside an appeals court’s stay of the favorable injunction against the NDAA obtained by the journalists/activists turned plaintiffs on September 12.
Specifically, the motion submitted to Justice Ginsburg by attorneys Bruce Afran and Carl Mayer on behalf of Chris Hedges and his co-plaintiffs requests that “the Supreme Court vacate a stay pending appeal entered on October 2, 2012 by the Court of Appeals for the Second Circuit."
Afran and Mayer argue that contrary to the judge’s opinion accompanying the stay of the earlier injunction, the lower court’s block of the enforcement of the NDAA’s indefinite detention provisions does not “interfere with the president’s management of ‘active hostilities.’”
Furthermore, should the stay of the injunction be made permanent and the president be allowed to exercise these extraordinary, historical, and unconstitutional powers, the plaintiffs and many Americans will be placed “in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties.”
On October 2, a panel of three judges heard the motion to block the injunction against exercise of the indefinite detention provisions filed by the Obama administration and in their ruling they point to “flaws within the scope and rationale” of the permanent injunction issued earlier by District Court Judge Katherine Forrest.
"We conclude that the public interest weighs in favor of granting the government's motion for a stay," write Judges Denny Chin, Raymond Lohier, and Christopher Droney in their order fast-tracking the appeal of the earlier injunction.
The appellate court order reads:
First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, "based on their stated activities," plaintiffs, "journalists and activists[,] ... are in no danger whatsoever of ever being captured and detained by the U.S. military."
Second, on its face, the statute does not affect the existing rights of U.S. citizens or other individuals arrested in the United States. See NDAA § 1021(e) ("Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.").
Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force.
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