Detention: Law of: District Court Development

Court Documents in Hedges et al v. Barack Obama

By Raffaela Wakeman
Wednesday, April 4, 2012, 5:15 PM

Yesterday we mentioned that a suit had been filed in the Southern District of New York by a number of commentators and public figures, arguing that the NDAA's detention provisions will apply to them in their "daily professional work" and that they could be detained under the provisions.

The plaintiffs include Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, U.S. Day of Rage, Kai Wargalla, and the Hon. Brigitta Jonsdottir (a member of parliament in Iceland). They've even got a website dedicated to their cause, which describes this initial lawsuit as "Round One":

Round One is a group of individuals who have stepped forward because we have reason to believe we face the potential for serious harm under the NDAA. However, while the language of this law is so broad and vague, it could affect anyone. For this reason, In Round Two, we will be opening this lawsuit up to the entire US public and citizens of other nations. Then, you can either sign up to publicly support this lawsuit, or consider becoming an actual plaintiff. We are offering both options because we need to make sure our legal case is as strong as possible. More info soon, so stay tuned!

We've pulled together all the court documents that have been filed so far, including the complaint, the plaintiffs' initial brief in support of the motion for a temporary restraining order as well as their supplemental brief on standing, the government's memo in opposition to the injunction, and the declarations of Kai Wargalla, Alexa O'Brien, and Brigitta Jonsdottir.

The plaintiffs have two main arguments, which they summarize:

    1. The Act improperly authorizes that civilians in the United States be detained indefinitely by the military, that they be tried by military commission or military court and that they may be subject to removal to other jurisdictions in violation of the Amendments V and VI of the Constitution.

    2. The Act fails to give reasonable notice of the acts and conduct that will render a person liable to military detention and is overbroad thereby chilling and impinging upon protexted expressive and associative acts.

The government summarizes its counterargument in the following way:

Plaintiffs’ challenge to section 1021 must be rejected. Properly understood, section 1021 merely restates the detention authority that the government already had under the AUMF. In the statute’s own words, it “affirms” the AUMF’s detention authority while expressly not “expand[ing]” it, and defines those “covered persons” who may be detained in terms no more broad than the government has advanced before the courts—and that the courts have upheld—for years.

Based on their misunderstandings of the law, plaintiffs now purport to fear that they will be subjected to indefinite military detention simply for their political views and expression. But those fears are baseless. Plaintiffs do not assert that they or anyone similarly situated have ever been detained or threatened with detention under the identical preexisting authority provided by the AUMF. Nor can they demonstrate that their subjective fears are reasonable in light of the government’s implementation of its detention authority under the AUMF. For those reasons, plaintiffs lack standing, and therefore are unable to demonstrate a likelihood of success in this action, irreparable harm, or a balance of the equities involved that tips in their favor. Plaintiff’s motion for a preliminary injunction, therefore, should be denied.

Southern District of New York Judge Katherine B. Forrest has not yet issued a decision on the plaintiff's motion.