Hedges NDAA Indefinite Detention Decision Stayed By 2nd Circuit

As much as I, and most who care about Constitutional protections and Article III courts still having a function in balance of power determinations, the recent 112 page ruling by Judge Katherine Forrest in SDNY (see here and, more importantly, here) had fundamental issues that made review certain, and reversal all but so.

The first step was to seek a stay in the SDNY trial court, which Judge Forrest predictably refused; but then the matter would go to the Second Circuit, and the stay application was formally filed today.

Well, that didn’t take long. From Josh Gerstein at Politico, just filed:

A single federal appeals court judge put a temporary hold Monday night on a district court judge’s ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.

U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge’s injunction until a three-judge panel of the court can take up the issue on September 28.

Lohier offered no explanation or rationale for the temporary stay.

Here is the actual order both granting the temporary stay and scheduling the September 28 motions panel consideration.

This is effectively an administrative stay until the full three judge motions panel can consider the matter properly on September 28th. But I would be shocked if the full panel does anything but continue the stay for the pendency of the appeal.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

11 replies
  1. harpie says:


    […] The Justice Department claims that even though the provision didn’t change existing law, blocking causes irreparable harm because blocking any Congressionally-passed statute does so. Forrest said the government’s concession meant there was no urgency to keeping the law enforceable. […]

    This is what had me scratching my head when I read the motion to stay.

    From the signing statement [which, as usual, just says The Executive will interpret the law as best suits The Executive]:

    Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.

    If it’s “unnecessary”, then why does it matter if that section remains?

    Also, I’m just so grateful that to know that:

    Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.

    That’s just as good as anything in the Constitution!

  2. emptywheel says:

    @harpie: The biggest problem is Forrest invited contempt proceedings for anyone held under terms that could be interpreted to affect the AUMF as currently interpreted.

    It might still have been stayed in any case, but that made it easier for the Admin to argue that the injunction covered the AUMF as well as the NDAA.

  3. harpie says:

    @emptywheel: Thanks, Marcy.
    I’m just now catching up the two posts bmaz links to above, and the Vladek 12/13/11 article about the “problematic NDAA”…should have read it all first.

    Also, should have provided this link to the signing statement

  4. harpie says:

    I found What Constitution‘s comment very interesting.

    [partial quote]

    […] There is no statement, no interpretation, no practical history which “establishes” that even under the pre-NDAA AUMF the government might not have taken the position that a journalist could be detained over “unsupportive” reporting — so it is equally true that the NDAA, as written and understood, was intended to preserve such a “right” had the government chosen to assert it.
    Wittes’ arguments over degrees of “substantial” or “material” under statutory terminology in the AUMF, the NDAA and DC opinions is, frankly, misplaced when viewed up against “Congress shall make no law”, and arguing over the Feinstein Amendment only emphasizes — it does not overcome — this fundamental issue. […]

  5. Bob Schacht says:

    From the signing statement [which, as usual, just says The Executive will interpret the law as best suits The Executive]:

    Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.

    (End of quote)
    This provides yet another reason why I think the AUMF is the most damning piece of legislation in the 21st century. It has done more to shred the Constitution and impair civil rights than anything else, except possibly for the Presidential Finding that EW has spotlighted.

    Bob in AZ

  6. What Constitution says:

    …And the government’s insistence that Judge Forrest’s injunction must be stayed pending appeal means what?

    The government has insisted that none of the plaintiff journalists have “standing” because none of them have been injured by a governmental exercise of a statutory right indefinitely and without charges to detain a journalist. If that’s so, what “irreparable injury” to an important power is the existence of an order enjoining exercise of such an “unapplied” power causing? Since the government insists it hasn’t sought to exercise such a power, there is plainly no rational argument that the deprivation of that power pending appellate review creates any actual and remediable “injury” to the government. And, indeed, what the government actually is saying is only that “the court ruled against a congressionally-enacted statute and that is automatically an emergency.” Hardly.

    If this matter was being treated honestly, the government would be telling the Second Circuit that the “irreparable injury” it perceives here is that the effect of the trial court ruling is to deprive the government of the “in terroram threat of detaining journalists” — and that is exactly what this entire NDAA escapade is all about. The government’s stay arguments emphasize that the goal of this law is to create fear and to thereby chill media reporting. It is that plain. Otherwise, the government logically should be seeking to enhance its “lack of standing” position (which many think might be the most efficacious way for the government to argue this case, by the way) by taking all the time in the world to brief and argue the case because, “after all, none of these plaintiffs have any reason to be afeared”.

    That’s not the agenda. This law, and this appeal, isn’t about whether the government can file an action seeking to enjoin a journalist from printing a story (you know, go before an Article III judge and argue about the constitutionality of enjoining the press); it isn’t about arresting and criminally charging a journalist for printing a story (and going before an Article III judge to see how that comes out); it isn’t even about filing a civil action for damages against a journalist for a published story and going before a judge and jury. This case is about whether the government can nab the journalist and “detain” them, cue what that entails. And the government says now that it so badly needs to have the threat of being able to do that — notwithstanding the government’s insistence that those threatened have no “standing” for the precise reason they haven’t actually been so detained — that the Second Circuit needs to preserve that threat pending appellate review. I’m hoping this isn’t lost on the Second Circuit, even as I’m not at all surprised to see the government take this position.

    So there’s a stay. Now face what’s in the case. The very arguments made to seek the stay emphasize the importance of affirming the trial court’s injunction. The main reason that the Obama administration wants this law on the books is because the existence of this congressional “free pass” allows the Executive to try to invoke the congressional pass as reflecting a conscious abdication of congress’ role in the “check and balance” scheme of things: see, the President says he can do whatever he wants under the Unitary Executive theory and, see, congress even agrees with the President’s unilateral authority to detain journalists without charges and without impediment from the First Amendment — and, see, the Courts should defer the hell out of it because, after all, Congress has agreed in the NDAA. The government’s whole approach to this legislation and the ensuing litigation is to try to reduce the likelihood that the contitutional issue of the President’s powers will actually face substantive judicial review. It seems like an appropriate time to mention that this was the “other” prong of Boumediene v. Bush’s majority opinion: specifically rejecting the argument that the President should be allowed to ignore the constitutional right of habeas corpus particularly because Congress had passed a law saying it agreed. People can look it up, that’s the part of the Boumediene opinion where they mustered references to Marbury v. Madison to overrule such unconstitutional acts by invoking and exercising the courts’ authority to say “what the law is.” And when they did that, the constitutional provision preserving habeas corpus (you know, Magna Carta and all that) got respected. Maybe the First Amendment to the Constitution could similarly qualify for judicial respect and protection?

    Maybe the Second Circuit can do that here, too. Judge Forrest did.

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