First up: on Monday the Hedges plaintiffs, with the United States’ consent, sought additional time with which to file their response brief. (From the docket, it seems the plaintiffs actually had requested the delay a few days prior; the clerk, however, found that these initial filings had violated certain local rules, and thus refused to recognize them.) The Court of Appeals evidently has not acted on the plaintiffs’ motion—but considering the United States’ position, the odds are great that it will be granted. Hedges and company have asked to push the filing deadline back to next Monday, December 10.
In the meantime—and by that I mean “back in mid-November”—amici the Center for National Security Studies and the Constitution Project submitted a joint brief “in support of neither party and in support of reversal.” The gist of their filing (which I’ve only scanned) is this:
Plaintiff journalists and activists allege that they are subject to the threat of military detention under section 1021 of the NDAA, which provides that Congress affirms that the authority of the President to use all “necessary and appropriate force” under the Authorization for Use of Military Force of September 2001, Pub.L. No. 107-40, 115 Stat. 224 (Sep. 18, 2011) (“AUMF”), the statutory authority for the ongoing war in Afghanistan, includes the authority for the armed forces to detain persons pending disposition under the law of war. Section 1021(e) expressly states that section 1021 shall not 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.” NDAA § 1021(e).
Nevertheless, the district court found that plaintiffs were subject to the threat of military detention under the NDAA and that such military detention would be unconstitutional, and the court entered a wide-ranging injunction. As the government’s brief makes clear, Plaintiffs’ First Amendment protected activities that form the basis for their suit cannot be the basis for military detention pursuant to the law of war under either the NDAA or the AUMF. Amici file this brief to make the additional point that neither the NDAA nor the AUMF authorizes military detention of individuals seized in the United States. As required by canons of statutory construction, this Court should construe the statutes to avoid constitutional conflict and to protect individual rights, and it should also recognize the history of executive branch practice under these statutes. The lack of statutory authority for military detention of individuals seized in the United States is an additional basis for resolving this case.