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New detention law challenge

A group of writers and individuals involved in political action urged the Supreme Court on Wednesday to put back into effect a federal judge’s order to block a sweeping new grant of detention power to the government.  Three months ago, the Second Circuit Court put the judge’s order on hold, thus clearing the way for the new law to operate.  The application to lift that stay is Hedges v. Obama (docket 12A600).  (The filing is not yet available in electronic format.)

In rulings in May and September, U.S. District Judge Katherine B. Forrest in New York City found that the federal government had not justified the use of the broad detention authority that Congress had granted in a defense bill last year.  She rejected the government lawyers’ argument that Congress had added no new powers to those the executive branch already had under the congressional resolution passed right after the terrorist attacks of September 11, 2001.  The new law, she found, will allow the government to seize and hold indefinitely even U.S. citizens who come under the vague terms of the provision.  It is already having a harmful effect on the rights of the individuals who challenged it, the judge concluded.

The new application was filed with Justice Ruth Bader Ginsburg, who handles such emergency matters from the Second Circuit geographic area.  She has the authority to decide the issue on her own, or share it with her colleagues — the more common procedure these days.

Congress specified in the new law that the military’s authority to detain indviduals during the “war on terrorism” extended to anyone who “was part of or substantially supported” terrorist networks or “associated forces” engaged in hostilities with the U.S. or its coalition partners.   Judge Forrest barred its enforcement because she found that the law did not spell out just who is covered, and the circumstances under which anyone would be detained.  Since she decided that the government had offered no explanation of why the law would not reach the activities of journalists, other writers, and “activists,” the judge said, she was obliged to “credit the chilling impact on First Amendment rights” that the challengers had claimed.

In her September 12 ruling, making permanent a temporary order issued in May against enforcement, the judge invited Congress to examine whether it needed the new law at all, or whether it wanted to fix what she had found to be its “deficiencies.”  Congress did not respond.

The Second Circuit, in its October 2 order staying the Forrest ruling in September while a government appeal goes forward, said that one factor in its action was that none of those who sued in the case was in any danger at all of being seized or detained by the U.S. military, an assurance given by the government.  It also said that the law as written by Congress said explicitly that it did not affect existing rights of U.S. citizens or others who might be arrested within the U.S.  Moreover, it said, Judge Forrest’s order went beyond the specifics of the new law, limiting the government’s powers under the 2001 congressional resolution (the Authorization for Use of Military Force).

The Court presumably will take no action on the new application until after it hears from the federal government’s attorneys.

Recommended Citation: Lyle Denniston, New detention law challenge, SCOTUSblog (Dec. 12, 2012, 5:43 PM),