Detention: Law of

Staying on Top of the Stay in Hedges

By Wells Bennett
Monday, September 17, 2012, 4:30 PM

More on the government's ongoing effort to stay the district court's entry of permanent injunctive relief in Hedges v. Obama: it appears that the government's initial motion before Judge Forrest was for an "administrative" stay only---that is, the Justice Department sought (but the district court rejected), a "stay" pending Judge Forrest's resolution of the government's request to stay her injunction during the government's appeal to the Second Circuit.  In an email to the parties on Friday, Judge Forrest explained that she nevertheless planned to rule on the government's pending motion sometime on Wednesday, i.e. immediately after Rosh Hashanah.

In the meantime (and fulfilling a promise it made by letter Friday afternoon), the government today asked the court of appeals for an emergency stay, during the Second Circuit's consideration of the request and until final resolution of the case.  At the same time, plaintiffs have filed a letter brief with the court of appeals, in which plaintiffs cite the pendency of the stay motion in the district court as a reason for the Second Circuit not to act.  (Plaintiffs also observe that the Justice Department's prior letter had not mentioned Judge Forrest's announced plan to rule quickly.)

Here's the opening part of the government's motion on the court of appeals:

This is a suit brought by a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of ever being captured and detained by the U.S. military.  In accepting plaintiffs’ constitutional challenges, the district court struck down, as unconstitutional on its face, 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 entered a sweeping permanent injunction against invoking it.  Order (September 12, 2012) (attached as Exhibit 1).  That law explicitly affirms the President’s detention authority under the earlier Authorization for Use of Military Force (AUMF), 115 Stat. 224 (2001).  The AUMF was passed by Congress in the immediate aftermath of the attacks on September 11, 2001, and constitutes the President’s central legislative authority for the ongoing military operations against al-Qaeda, the Taliban, and associated forces.