Detention: Law of

Stay Briefing Completed in Hedges

By Wells Bennett
Friday, September 28, 2012, 9:45 AM

Briefing is now complete on the government’s motion to stay pending appeal in Hedges v. Obama.  (You’ll recall that a circuit judge already stayed the district court’s order temporarily, pending resolution of the government’s stay request. )  The plaintiffs' opposition is here; the government's reply is here.

A three-judge motions panel will consider the government's stay request at 10:00 a.m. today. 

The opposition begins as follows:

The government seeks an emergency stay of the permanent injunction entered on September 12, 2012 pending appeal, arguing that the district court’s order is an “unprecedented” intrusion into the President’s powers under the 2001 Authorization for the Use of Military Force (AUMF). In reality, Judge Forrest’s decision trods no new ground and relies on well-established precedent as to the President’s delineated constitutional powers barring military jurisdiction over civilians, a power that has long been denied to the Executive. Hamdi v. Rumsfeld, 542 U.S. 507, 521-522 (2004), citing Ex Parte Milligan, 4 Wall., at 125, 71 U.S. 2, 18 L. Ed. 281 (1866). Judge Forrest’s decision is directly in line with this Court’s holding in Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), where the Court held that Congress intended the AUMF to be a limited conveyance of authority, particularly as to detention measures.

Similarly, in Hamdi the Supreme Court took pains to note the limited range of detention authority available to the government under the AUMF and that such authority was limited to the “narrow circumstances” of preventing “a combatant’s return to the field of battle.” 542 U.S. at 519, 521 [emphasis added]. Thus, Judge Forrest’s comments as to the scope of the AUMF are not “unprecedented” but are directly in line with this Court’s interpretation of the AUMF in Padilla and the Supreme Court’s holding in Hamdi recognizing the limited nature of the AUMF and with the Supreme Court’s repeated holding, Hamdi citing Milligan, supra, that the Executive has no authority to detain civilians or hold them in military jurisdiction.

In reply, the government opens with this:

We explained in our motion for a stay that the district court improperly struck down as facially unconstitutional a duly-enacted Act of Congress, Section 1021(b)(2) of the National Defense Authorization Act of 2012 (NDAA), Pub. L. No.112-81, 125 Stat. 1298 (Dec. 31, 2011), and erroneously entered a sweeping permanent injunction against its application. Order at 112 (September 12, 2012).  Section 1021(b)(2) explicitly affirms the President’s detention authority under the earlier Authorization for Use of Military Force (AUMF), 115 Stat. 224 (2001), which is the central legislative authority for the ongoing military operations against al-Qaeda, the Taliban, and associated forces. Plaintiffs’ opposition to the stay motion fails to provide any basis for allowing that sweeping injunction to go into force pending appeal, notwithstanding the unprecedented scope and inadequate legal foundation of the underlying ruling. Indeed, plaintiffs’ motion focuses almost entirely on war powers with respect to U.S. Citizens and individuals apprehended in the United States, but as we explained repeatedly, Section 1021(b)(2) has absolutely no impact on that issue, see NDAA Section 1021(e), and the President has made clear that he “will not authorize the indefinite military detention without trial of American citizens.” Statement by Pres. Obama, 2011 U.S.C.C.A.N. at S12.

As we explained, the district court’s injunctive order causes harm in several ways. First, the court rejects the Executive Branch’s long-standing interpretation of the AUMF – with respect to the concepts of “substantial support” and “associated forces” – that has been endorsed by two Presidents, by the D.C. Circuit in habeas litigation brought by Guantanamo detainees, and by the Congress in Section 1021(b)(2). And the court invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with this deeply flawed understanding. See Order at 14. This invitation encompasses detention practices in areas of active hostilities. In doing so, the order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict.