Detention: Law of: D.C. Circuit Development

Second Circuit Stays Hedges Decision

By Benjamin Wittes
Tuesday, October 2, 2012, 2:45 PM

The Second Circuit Court of Appeals has has just stayed Judge Katherine Forrest's decision in Hedges:

For the following reasons, we conclude that the public interest weighs in favor of granting the government's motion for a stay. 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." (Mot. for Stay 1). Second, on its face, the statute does not affect the existing rights of United States 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, Pub L. 107-40, 115 Stat. 224 (Sept. 18, 2011). In light of these and other factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that the interests of justice would best be served by granting a stay of the district court's permanent injunction.