Hedges v. Obama

Hedges v. Obama
Court	United States Court of Appeals for the Second Circuit
Full case name	Christopher Hedges, Daniel Ellsberg, Jenifer Bolen, Noam Chomsky, Alexa O’Brien, US Day of Rage, Kai Wargalla, Hon. Brigitta Jonsdottir, M.P. (Plaintiffs-Appelles) v. Barack Obama (individually and as a representative of the United States of America), Leon Panetta (individually and as a representative of the Department of Defense) (Defendant-Appellants), John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, Eric Cantor as representatives of the United States of America (Defendants)
Decided	July 17, 2013
Case history
Prior action(s)	District Court granted plaintiffs request for a permanent injunction of the indefinite detention powers of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), permanently enjoined enforcement of § 1021(b)(2) of the NDAA by the U.S. Government and struck down § 1021(b)(2) as unconstitutional.
Subsequent action(s)	District Court holding vacated and permanent injunction/enjoinment granted by District Court lifted
Holding
None of the challengers had a right to pursue their claim because they could not show that they were harmed by the NDAA.[1][2]
Court membership
Judge(s) sitting	Amalya Lyle Kearse, Raymond Lohier and Lewis A. Kaplan
Keywords
Detention Law, Indefinite detention

Hedges v. Obama^{[note 1][3][4]} is a lawsuit filed January 13, 2012 against the Obama administration and members of the U.S. Congress^[5] by a group including former New York Times reporter and current Truthdig columnist Christopher Hedges, challenging the National Defense Authorization Act for Fiscal Year 2012 (NDAA).^[6] The legislation permits the U.S. government to indefinitely detain people "who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States".^[7]

The plaintiffs contend that Section 1021(b)(2) of the law allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban^[6] respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations.^[8]

The principal allegation made by the plaintiffs against the NDAA is that the vagueness of critical terms in the NDAA could be interpreted by the U.S. federal government in a way that authorizes them to label journalists and political activists who interview or support outspoken critics of the Obama administration's policies as "covered persons," meaning that they have given "substantial support" to terrorists or other "associated groups".^[9]

A federal court in New York has issued a permanent injunction blocking the indefinite detention powers of the NDAA but the injunction was stayed by the Second Circuit Court of Appeals pending appeal by the Obama Administration. On July 17, 2013, the Second Circuit Court of Appeals overturned the district court's permanent injunction blocking the indefinite detention powers of the NDAA because the plaintiffs lacked legal standing to challenge the indefinite detention powers of the NDAA. The Supreme Court declined to hear the case on April 28, 2014, leaving the Second Circuit decision intact.^[10]

History summary

In May 2012, a federal court in New York issued a preliminary injunction which temporarily blocked the indefinite detention powers of the NDAA (section 1021(b) (2)) on the grounds of unconstitutionality.^[11] On August 6, 2012 federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a notice of appeal with the 2nd US Circuit Court of Appeals hoping to eliminate the ban.^[12][13] The following day arguments from both sides were heard by U.S. District Judge Katherine B. Forrest during a hearing to determine whether to make her preliminary injunction permanent or not.^[14] On September 12, 2012, Judge Forrest issued a permanent injunction,^[15] but this was appealed by the Obama Administration on September 13, 2012.^[3][6] A federal appeals court granted a U.S. Justice Department's request for an interim stay of the permanent injunction, pending the Second Circuit's consideration of the government's motion to stay the injunction throughout its appeal.^[16][17][18] The court also said that a Second Circuit motions panel will take up the government's motion for stay pending appeal on September 28, 2012.^[16][17][18] On October 2, 2012, the Second Circuit Court of Appeals ruled that the ban on indefinite detention will not go into effect until a decision on the Obama Administration's appeal is rendered.^[19] The U.S. Supreme Court refused on December 14, 2012 to lift the stay pending appeal order issued by the U.S. Second Circuit Court of Appeals on October 2, 2012.^[20] Oral arguments were heard before the U.S. Second Circuit Court of Appeals on February 6, 2013.^[21][22] The U.S. Supreme Court refused again on February 19, 2013 to lift the stay pending appeal order issued by the U.S. Second Circuit Court of Appeals on October 2, 2012.^[23][24] The Second Circuit Court of Appeals overturned on July 17, 2013 the district court's ruling which struck down § 1021(b)(2) of NDAA as unconstitutional because the plaintiffs lacked legal standing to challenge it.^[25] The Supreme Court denied certiorari in an order issued April 28, 2014.^[1][26]

Background

Lt. Col. Barry Wingard, a military attorney representing prisoners at Guantanamo Bay Detention Camp, noted that under the National Defense Authorization Act for Fiscal Year 2012 (NDAA) U.S. Citizens can be detained indefinitely without trial, while they cannot contest the allegations against them because they have no right to be notified of the specific charges against them.^[27] According to the text of Section 1021 of the NDAA, the US President may authorize the armed forces to indefinitely detain the following persons set forth in § 1021(b)(2) of the NDAA:

A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.^[28]

Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint^[29][30] January 13, 2012, in the Southern U.S. District Court in New York City on the behalf of Chris Hedges against Barack Obama and Secretary of Defense Leon Panetta in the case Hedges v. Obama, 12-cv-00331, U.S. District Court, Southern District of New York (Manhattan)^[3][6] to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31, 2011.^[31] Plaintiffs beside New York Times war correspondent Christopher Hedges were Pentagon Papers whistleblower Daniel Ellsberg, writer and linguist Noam Chomsky, Icelandic parliamentarian Birgitta Jónsdóttir, Founder of the activist media group RevolutionTruth Jennifer Bolen, Occupy London activist Kai Wargalla, journalist and founder of "US Day of Rage" Alexa O'Brien, and American academic Cornel West.^[32][33][34] Besides Barack Obama and Leon Panetta other defendants are John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor.^[35][36]

The plaintiffs said the NDAA chills speech by threatening constitutionally protected activities such as news reporting, protest and political organizing in defense of controversial causes such as the Wikileaks case. They claim that the law not only put them at risk of arrest but also allows indefinite detentions of U.S. citizens on U.S. soil, and that the provisions are too vague.^[33] The principal allegation made by the plaintiffs against the NDAA was that the vagueness of critical terms in the NDAA could be interpreted by the federal government in a way that authorizes them to label journalists and political activists who interview or support outspoken critics of the Obama administration's policies as "covered persons," meaning that they have given "substantial support" to terrorists or other "associated groups." Fearing that section 1021(b)(2) of the NDAA could be applied to journalists and that the specter of such a scenario would have a chilling effect on free speech and freedom of the press in violation of the First Amendment, Hedges filed his lawsuit on January 12, 2012. Naomi Wolf wrote for example in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA.^[34]

"My activities as a civil liberties, democracy advocate and independent journalist definitely leave me under the purview of the vague language of the NDAA [National Defense Authorization Act]," said Jennifer "Tangerine" Bolen, one of seven current plaintiffs, along with Hedges, in the suit. A host of live panel discussions with what she called "activists and revolutionaries" as part of independent media outlet Revolution Truth, Bolen has had ongoing contact with Wikileaks activists in an effort to get information to the public.^[33] "I believe that could leave me in imminent danger of harm," she said.^[33]

Hedges' complaint claimed that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a "covered person" who, by way of such writings, interviews and/or communications, "substantially supported" or "directly supported" "al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, ... under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]." Specifically, Hedges alleged in his complaint that it is precisely the existence of these "nebulous terms" — terms that are critical to the interpretation and execution of the immense authority granted to the president by the NDAA — that could allow him or someone in a substantially similar situation to be classified as an enemy combatant and sent away indefinitely to a military detainment center without access to an attorney or habeas corpus relief.^[34]

District Court Proceedings

During a hearing on March 29, 2012 plaintiffs Alexa O'Brien, Kai Wargalla and Christopher Hedges testified. O'Brien for example testified that she shelved two investigations about Guantanamo detainees for fear of reprisal under the National Defense Authorization Act (NDAA). Wargalla said that she and other organizers from the Revolution Truth movement, which broadcasts "Live Panels" over the Internet on various topics, shelved the idea of inviting "groups like Hamas," a U.S.-designated terrorist organization, after the NDAA was passed. Hedges stated the National Defense Authorization Act affects him personally. Government lawyers in return did not offer any witnesses in support of the law.^[37]

In a post-hearing memorandum^[38] the lawyers for the plaintiffs rejected the U.S. governments repeated position that the NDAA is merely an "affirmation" of the Authorization for Use of Military Force Against Terrorists (AUMF). "This court need not and should not indulge the fiction that section 1021 merely acknowledges authority latent in the AUMF," the memo stated.^[39] The plaintiffs outlined the NDAA and AUMF in the memorandum. "AUMF authority is linked to the 9/11 attacks, and the purpose of AUMF authority is 'to prevent any future acts of international terrorism against the United States' by those involved in the 9/11 attacks, and those that harbored them," the memorandum states.

By contrast, Section 1021(b)(2) authority is linked to no event, states no specific purpose, and extends to 'covered persons' who 'substantially support' those 'that are engaged in hostilities against the United States or its coalition partners,' a far broader 'catchment' than the AUMF.^[39]

Lawmakers, free-press advocates, small-government partisans, conservative think tanks, pro-gun groups, border-control activists, civil libertarians, a pastor and a professor, acting as amici curiae, stated in this context that the constitutionality of the AUMF authorization merits review^[39][40] and that the NDAA violates the Treason Clause of the U.S. Constitution.^[40]

Preliminary injunction against enforcement of § 1021(b)(2) of the NDAA

A federal court in New York City issued an order blocking the indefinite detention powers of the NDAA for American citizens after finding it unconstitutional. On May 16, 2012, in response to the lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,^[41] US District Judge Katherine B. Forrest ruled in a 68-page opinion that Section 1021 of the NDAA was unconstitutional because it violates the 1st and 5th Amendments. Judge Forrest agreed with the plaintiffs that § 1021(b)(2) of the NDAA was "constitutionally infirm, violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution," also noting that the United States government "did not call any witnesses, submit any documentary evidence or file any declarations" in the case, and that "the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021," putting them at risk.^[42]

Judge Forrest therefore issued a preliminary injunction which prevented the US government from enforcing section 1021 of the NDAA's "Homeland Battlefield" provisions pending further order of the court or an amendment to the statute by US Congress.^{[42][43][44][45]} "There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in granting the temporary injunction. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention."^[14]

Judge Forrest chided the U.S. Government for the handling of the case. Judge Forrest provided the U.S. government "with prompt notice in the form of declarations and depositions of the ... conduct in which plaintiffs are involved and which they claim places them in fear of military detention."^[46] But in return no witnesses were called nor any documentary evidence submitted nor any declarations filed by the U.S. government according to Forrest.^[46] "It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not," she said.^[46] Forrest went on: "To put it bluntly, to eliminate these plaintiffs' standing simply by representing that their conduct does not fall within the scope of 1021 would have been simple. The government chose not to do so – thereby ensuring standing and requiring this court to reach the merits of the instant motion."^[46] According to Forrest plaintiffs demonstrated "a more-than-plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment."^[46] Forrest observed and concluded:

The government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs – or others – are not within [paragraph] 1021. It did not. This court therefore must credit the chilling impact on 1st Amendment rights as reasonable – and real.^[46]

Judge Forrest was requested by the Obama administration to undo her ruling.^[47] In a footnote of the request, the Administration claimed "The government construes this Court's Order as applying only as to the named plaintiffs in this suit".^[48] In an opinion and order^[49] filed June 6, 2012, Judge Forrest clarified her statement, saying that her injunction applies not just to the named plaintiffs in the suit, contrary to government's narrow interpretation. She wrote, "Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress ... This order should eliminate any doubt as to the May 16 order's scope". The detention provision was not blocked for any persons connected to the September 11 attacks,^[47] as Section 1021(b)(1), which essentially restates the scope of the AUMF, was not blocked.^[50]

U.S. government appeal of preliminary injunction

The U.S. government appealed Judge's Forrest preliminary injunction which prevents the U.S. government from enforcing section 1021 of the National Defense Authorization Act's "Homeland Battlefield" provisions on August 6, 2012. The Manhattan U.S. Attorney's office, which represents the government in this case, along with named defendants Obama and Defense Secretary Leon Panetta filed its notice of appeal with the 2nd U.S. Circuit Court of Appeals. The federal government argues in its appeal that in cases dealing with "militants" and those offering "substantial support" to them indefinite detention without due process is appropriate.^[14][51][52] According to Reuters the US government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment.^[12] On November 6, 2012, the U.S. government noted that "[g]iven the district court's entry of a permanent injunction, the government's appeal of the preliminary injunction ... is moot". See page 12 in^[53]

Permanent injunction against enforcement of § 1021(b)(2) of the NDAA

In a court hearing chaired by Judge Forrest on August 7, 2012 the plaintiffs were asking the court for a permanent injunction of the indefinite detention powers of the NDAA. During this hearing Assistant U.S. Attorney Benjamin Torrance admitted that the government doesn't specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court's injunction. One of the plaintiff's attorneys, Carl Mayer, said later that he and his colleagues Bruce Afran and Zachary J. Liszka^[54][55] were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction. Judge Forrest closed the hearing with a promise that she had not yet made her mind up i.e. that she had not yet reached a decision regarding making her preliminary injunction permanent.^[14][52]

On August 9, 2012 Tangerine Bolen, one of the plaintiffs in the trial, reported that the attorneys for the US government were unwilling or unable to answer whether or not the US government has complied with Judge Forrest's court order:

in this hearing, Obama's attorneys refused to assure the court, when questioned, that the NDAA's provision – one that permits reporters and others who have not committed crimes to be detained without trial – has not been applied by the US government anywhere in the world – AFTER Judge Forrest's injunction. In other words, they were saying to a US judge that they could not or would not state whether Obama's government had complied with the legal injunction that she had lain down before them. To this, Judge Forrest responded that if the provision has indeed been applied, the United States government itself will be in contempt of court.^[56]

U.S. District Judge Katherine Forrest granted the plaintiffs request for a permanent injunction of the indefinite detention powers of the NDAA on September 12, 2012 and permanently enjoined enforcement of § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 in a 112-page opinion.^{[28][57][58][59][60][61][62][63][64][65][66][67][68]} Forrest issued a permanent injunction barring the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they "substantially supported" Al Qaeda or its allies — at least if they had no connection to the Sept. 11 attacks.^[62] The Judge said the law is unconstitutionally vague and violates rights guaranteed by the First, Fifth and 14th Amendments to the U.S. Constitution.^[6][66] Forrest found that the definitions of "substantially supported" and "associated forces" were so vague that a reporter or activist could not be sure they would not be covered under the provision if they worked with a group deemed to be associated with terrorists, or perhaps circulated the message of an associated individual by printing an interview. The judged ruled that such a circumstance violated the First Amendment right to free speech, as well as the Fifth Amendment right to due process that holds that a person must be able to understand what actions would break the law.^[69][70]

Forrest acknowledged the importance of the government's efforts to safeguard the country from terrorism, but said the act is overly broad and vague. She said the First Amendment of the U.S. Constitution prohibits any law curtailing free speech, and that the Fifth Amendment requires that individuals understand what conduct could warrant to criminal or civil penalties.^[71] "First Amendment rights are guaranteed by the Constitution and cannot be legislated away," Forrest said in her new ruling. "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."^[72] "When the government was asked by the court what the words 'substantially supported' mean, it was unable to provide a definition; the same was true for 'directly supported,'" she wrote in her order, which makes the preliminary injunction permanent. "There can be no doubt, then, these terms are vague."^[73] That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.^[73]

A key question throughout these proceedings has been..precisely what the statute means—what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity—and that specificity is absent from Section 1021(b)(2). Understanding the scope of Section 1021(b)(2) requires defining key terms.^[74]

Forrest also rejected the US government's position that federal courts should provide habeas corpus, rather than judicial, review to military detainees as "without merit" and "dangerous".^[73] The government argued that the issue is not the court's business and that courts could consider individual habeas corpus petitions from prisoners who have been detained. "That argument is without merit and, indeed, dangerous," wrote Judge Forrest. "Habeas petitions (which take years to be resolved following initial detention) are reviewed under a 'preponderance of the evidence' standard (versus the criminal standard of `beyond a reasonable doubt') by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous."^[71] "If only habeas review is available to those detained…even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated," she wrote. "No court can accept this proposition and adhere truthfully to its oath."^[71]

Forrest refused to "abdicate" her duty to protect constitutional rights out of deference for executive power.^[73] "Courts must safeguard core constitutional rights," she wrote.

A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases – primarily decided during World War II – in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.^[73]

The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.^[73]

The court is mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch's expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security ... Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold.^[73]

Forrest declared that the NDAA cannot be used to hold people in indefinite military detention on suspicion of having "substantially supported" al-Qaeda or its allies.^[15] "The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity – it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."^[72] Forrest also argued that in passing the law, Congress had dramatically expanded the categories of people that can be detained.^[69] The U.S. government had argued that the NDAA was a reassertion of powers provided by Congress in the 2001 Authorization for Use of Military Force, which targeted perpetrators of the September 11 attacks and those who helped them. Judge Forrest said the new measure was broader, because it covered people beyond those connected to the 9/11 attacks.^[67]

In sum Judge Forrest ruled:

For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies or whether in light of existing authorization and existing criminal statutes § 1021 is needed at all.

This Court has stated its position, as directly presented to it by the Government, that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly supporting" the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.^[75]

In her permanent injunction order Judge Forrest invited Congress to examine whether it needed the NDAA at all, or whether it wanted to fix what she had found to be its "deficiencies." As of December 12, 2012 Congress did not respond.^[76]

U.S. government appeal and stay of permanent injunction

On September 13, 2012 federal prosecutors in Manhattan, acting on behalf of the U.S. government, appealed^[77][78][79] the judge's permanent injunction.^[3][6] In court papers on September 14, 2012, they also asked the judge to immediately freeze her order until it is taken up by the 2nd U.S. Circuit Court of Appeals in New York.^{[3][5][7][80]} More precisely the U.S. government sought both an immediate temporary stay on Judge Forrest's September 12, 2012 ruling so that the matter can be argued, and a permanent one lasting until higher courts resolve the case.^[69]

In their court papers on September 14, 2012^[81] government lawyers said the plaintiffs had no basis to fear being locked up for their activities, and that the judge's order interfered with the president's powers at a time of war.^[3] Government attorneys argue that the executive branch is entitled to latitude when it comes to cases of national security and that the law is neither too broad nor overly vague.^[3] Judge Forrest's opinion is "unprecedented, and the government has compelling arguments that it should be reversed," prosecutors said. They called the permanent injunction an "extraordinary injunction of worldwide scope."^[3] Lawyers for the Obama administration also argued that the United States will be irreparably harmed if it has to abide by a judge's ruling that it can no longer hold terrorism suspects indefinitely without trial in military custody.^[69] The government said that the injunction was an "unprecedented" trespass on power of the president and the legislature that by its very nature was doing irreparable harm.^[69] They also argued that the injunction places an undue burden on military commanders in a time of war while the plaintiffs had no reasonable fear of ever being detained "in the foreseeable future."^[69]

The Court's injunction against application of section 1021 'in any manner, as to any person,' ... combined with its mistaken view that section 1021 goes beyond reaffirming the authority contained in the AUMF, could impose entirely unjustified burdens on military officials worldwide, complicating the ability to carry out an armed conflict authorized by Congress in the public interest ... Given the absence of any risk of impending harm to plaintiffs, the serious injury to the government and the public interest in the invalidation of a statute enacted by public representatives, and the possible effect on an ongoing armed conflict and the Executive's prerogatives in military affairs, a stay is necessary.^[69]

Plaintiffs said the U.S. court filing was the government's latest attempt to undo the judge's rulings. "The Obama administration is doubling down in their effort to chill civil liberties, reporter activities and activists in the United States by hyper aggressively trying to overturn an opinion by a federal judge," Carl Mayer, an attorney for the plaintiffs, said on September 13, 2012.^[3] A lawyer for the plaintiffs, Bruce Afran, noted that the government's lawyers told Judge Forrest during arguments after she issued her first temporary injunction in May 2012 that they did not know if the administration was using the detention provision. If the government is now arguing that stopping the practice would cause irreparable harm, it shows the administration was indeed using the law and violating the injunction, Afran said.^[69] "The only way they could be done irreparable harm is if they've been using this all along," Afran said.^[69] "It just shows the lawlessness of this, even under the Obama administration," he added.^[69]

Judge Forrest denied on September 14, 2012 the government's request for an immediate stay of her injunction^{[5][7][69][82]} so that § 1021(b)(2) of the NDAA law cannot currently be used and said she would rule on September 19, 2012 on whether to suspend it from then on.^[3][69] At that juncture the U.S. Justice Department said it would not wait until September 19, 2012 and will file emergency papers on September 17, 2012 morning.^[68][83]

The U.S. Department of Justice (DOJ) had asked on September 17, 2012 the U.S. Second Circuit Court of Appeals to place an emergency stay on the permanent injunction made by Judge Forrest on September 12, 2012 so that the U.S. president's power to indefinitely detain without charge people accused of providing substantial support to terrorist groups is reaffirmed immediately.^{[84][85][86][87][88][89]} The Justice Department wanted the U.S. Second Circuit Court of Appeals to put the judge's ruling on hold while they challenge her decision on appeal.^[84][90] The DOJ contended that Judge Katherine Forrest's ruling incorrectly interpreted the Authorization for Use of Military Force (AUMF).^[89] The Justice Department also said Forrest's decision not only invalidated the NDAA, but went further: rejecting the White House's long-standing interpretation of the President's and the military's authority to detain terror suspects.^[84] "The district court has taken it upon itself to disagree with an interpretation of the military's detention authority that had previously been endorsed by all three branches of government," Justice Department lawyer August E. Flentje said in a 42-page court filing.^[91][92] "What is more, the district court expressly invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with the court's deeply flawed understanding of the scope of that authority."^[84] In their filing, prosecutors said 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."^[84] Lawyers from the Justice Department under Barack Obama argued they needed an emergency stay because the permanent injunction appears to be "worldwide in its effect, intruding upon military operations in the ongoing armed conflict against al-Qaeda, the Taliban, and associated forces."^[93] In arguing for the stay, the government also questioned the appropriateness of issuing an injunction against the president – "the courts have recognized that any injunction running against the President would be extraordinary," the government attorneys wrote – and also stated, that "an Act of congress is entitled to a presumption of constitutionality."^[74]

On September 17, 2012, Carl Mayer – a lawyer for Hedges and six other plaintiffs – described the government's request for an emergency stay as "going to go to the mat to protect the right to put even U.S. citizens in military custody.^[87] "A Constitutional showdown between the President and the Judicial Branch of Government is now at hand. This may be the most significant Constitutional stand-off since the Pentagon Papers case," said Mayer.^[83] "The Administration of President Obama within the last 48 hours has decided to engage in an all-out campaign to block, intimidate and overturn an order of a federal judge," said Bruce Afran, co-lead counsel for the plaintiffs. "As Judge Forrest noted in her opinion, nothing is more fundamental in American law than the possibility that journalists, activists and citizens could lose their liberty, potentially forever, and the Obama administration has now lined up squarely with the most conservative elements of the Republican Party to undermine American's civil liberties."^[83] Christopher Hedges, the lead plaintiff in Hedges v. Obama, stated: "The request by the government to keep the law on the books during the appeal process raises a disturbing question. If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?"^[68] Hedges wrote that Barack Obama "wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention."^[85] Chris Hedges expressed his determination to continue fighting as well as concern with the Obama Administration's insistence on challenging the rulings. In his column Hedges wrote "We won't stop fighting this, but it is deeply disturbing that the Obama administration, rather than protecting our civil liberties and democracy, insists on further eroding them by expanding the power of the military to seize U.S. citizens and control our streets."^[68]

Second Circuit Proceedings

2012-09-17 Emergency stay order and further developments

The U.S. Department of Justice (DOJ) had asked on September 17, 2012 the U.S. Second Circuit Court of Appeals to place an emergency stay on the permanent injunction made by Judge Forrest on September 12, 2012^{[17][84][85][87]} The Justice Department wanted the U.S. Second Circuit Court of Appeals to put the judge's ruling on hold while they challenge her decision on appeal.^[84][90] This request by the DOJ was granted on September 17, 2012 when a single federal appeals court judge put a temporary hold on the district court judge's permanent injunction ruling made by judge Katherine Forrest on September 12, 2012.^{[4][16][18][74][94][95]} U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order^[96] by which he granted the Justice Department's request for an interim stay of the permanent injunction in Hedges, pending the Second Circuit's consideration of the government's motion to stay the injunction throughout its appeal. Judge Lohier's order further said that a Second Circuit motions panel will take up the government's motion for stay pending appeal on September 28, 2012.^[16] Lohier offered no explanation or rationale for the interim stay.^[94] The Lohier order basically a.) temporarily stayed Judge Forrest's 2012-09-12 ruling^[97] b.) puts the whole matter i.e. the permanent injunction on hold^[74][98] c.) allows enforcement of the blocked NDAA section pending appeal^[89] and d.) means that the interim stay will remain in effect until at least September 28, 2012 when a three judge panel of the Second Circuit is expected to begin addressing the issue of a longer-term stay^[99][100](The September 28, 2012 hearing won't go over the merits of the case, but only deal with the U.S. government's motion to stay the permanent injunction throughout its appeal of the permanent injunction.).^[101] The appeal of the permanent injunction date is not yet set.^[100]

Procedurally, the Lohier order also seemed to obviate an earlier stay motion (i.e. an "stay" pending Judge Forrest's resolution of the government's request to stay her injunction during the government's appeal to the Second Circuit),^[102] which the government filed in the district court—but which the district court said it would not resolve until September 19, 2012.^[16][102] Court papers clarified later this issue. The lawyers for Hedges & Co, Carl J. Mayer and Bruce I. Afran, wrote on September 27, 2012:

The district court ... never ruled on the government's motion for a stay pending appeal because the Government insisted to the District Court judge that if the judge did not grant an interim stay, it would immediately seek an interim or administrative stay from the Second Circuit Court of Appeals. This demand was made by letter on Friday, September 14, 2012 after Judge Forrest granted a permanent injunction on Wednesday February 12, 2012. Though Judge Forrest denied the government's request for what the government originally in its papers described as an "interim" stay (now characterized as an "administrative" stay) of the injunction, Judge Forrest issued an order by email on Friday, September 14 informing the government and all parties that she would decide the government's motion for a stay pending appeal on Wednesday, September 19, 2012 and setting a briefing schedule for all parties. The government neglected to inform this Court of that fact ... After neglecting to inform this Court of that development, the government sought both an administrative stay and a stay pending appeal from this Court and this Court granted an interim stay on September 17, 2012. Because of the government's action and this Court's decision, Judge Forrest concluded that she could not rule on a stay pending appeal.^[103]

The U.S. government dismissed this neglect alligation by putting forward an email from Judge Forrest to Bruce Afran. Four days after Forrest's 2012-09-14 Mail Forrest informed on September 18, 2012 Bruce Afran by email that "All issues, including the stay, are now before the Second Circuit. Nothing further should be filed in this Court until further notice."^[104]

Carl Mayer, a lawyer for Hedges, said it was "astounding" that Lohier's order was issued before evidence was presented. "The government hasn't put in any evidence. They just keep making these broad assertions," Mayer said. "It's all a 'trust us' proceeding."^[105] Mayer stated however also that the Second Circuit order was procedural and "we are confident the district court opinion will be vindicated."^[4] Jerika Richardson, a spokeswoman for the U.S. Attorney's office in Manhattan, declined to comment.^[4][105]

One day before the September 28, 2012 U.S. Second Circuit Court of Appeals hearing, plaintiff Christopher Hedges expressed his opinion that the NDAA's indefinite detention clause is already being used to imprison Americans because the Obama Administration filed an emergency appeal.^[106][107] "If the Obama administration simply appealed it, as we expected, it would have raised this red flag," Hedges said. "But since they were so aggressive it means that once Judge Forrest declared the law invalid, if they were using it, as we expect, they could be held in contempt of court. This was quite disturbing, for it means, I suspect, that US citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home."^[108][109] Hedges renewed his opinion on September 28, 2012 by stating with reference to the Obama Administration: "the issuance of an emergency stay or temporary stay until the appeal is heard I think essentially is to cover them legally for already putting the NDAA into use."^[110] It was noted by Ben Swann from Reality Check that President Obama is against detention of U.S. Citizens and yet the Obama Administration has at every turn fought to keep the indefinite detention clause of the NDAA in place.^[111]

2012-10-02 Stay pending appeal order and further developments

A three-judge motions panel of the Second Circuit considered on September 2012, 28 the U.S. government's motion to stay the injunction throughout its appeal.^{[110][112][113]} First the plaintiffs stated their opposition to the U.S. government's stay motion on September 27, 2012^{[114][115][116]} and the U.S. government replied to it on September 28, 2012.^[116][117] On October 2, 2012, the Second Circuit Court of Appeals ruled that the ban on indefinite detention will not go into effect until a decision on the Obama Administration's appeal is rendered.^{[70][76][118][119][120][121]} The appeals court ruled that, since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of the NDAA, it was unnecessary to block the enforcement of § 1021(b)(2) of the NDAA.^{[8][9][122][123]} The court said it would consider arguments in the case on an "expedited schedule" and extended the stay pending its decision.^[19] Judges Denny Chin, Raymond Lohier and Christopher Droney said all legal briefs must be submitted by mid-December. Oral argument would be scheduled soon after, the judges said.^[19]

"On its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States," the 2nd Circuit judges wrote in their October 2, 2012 order. "The public interest weighs in favor of granting the government's motion for a stay."^[19] The judges continued:

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.'

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 ...^{[124][125][126]}

Carl Mayer, an attorney for the plaintiffs, said they disagree with the decision to stay the case but that "the appeals court is obviously taking this very seriously."^[19]

The government filed its opening brief^[53] November 6, 2012 in Hedges v. Obama before the Second U.S. Circuit Court of Appeals.^[127] The U.S. government stated that the plaintiffs lack standing because they've never been detained and face no threat of detention. In its brief the government also criticized Judge Forrest for her interpretation of the term "associated forces". "The term is well understood to cover cobelligerent groups that fight together with al-Qaeda or Taliban forces in the armed conflict against the United States," and it is not and cannot be "read to cover the types of unarmed advocacy organizations involved in this suit," the defendants said.^[127] They also noted that none of the plaintiffs allege having a fear of detention, nor have they offered any evidence of the U.S. military detaining journalists or advocates.^[128] "There is no actual or imminent injury to be redressed," the brief said.^[127] The defendants added that there is no precedent for hearing a lawsuit to block the president in advance from conducting an armed conflict using congressionally conferred authority.^[127] The government also argued that war authorizations have historically been broad and that section 1021(b)(2) is more specific than other authorizations, therefore it should not be subject to a First Amendment or due process vagueness challenge.^[129]

The lawyers for Hedges filed their appeal brief on December 10, 2012.^[130][131] After the passage of the National Defense Authorization Act for Fiscal Year 2013 by the U.S. House of Representatives Chris Hedge wrote with respect to the lawsuit: "The fate of some of our most basic and important rights—ones enshrined in the Bill of Rights as well as the Fourth and Fifth amendments of the Constitution—will be decided in the next few months in the courts. If the courts fail us, a gulag state will be cemented into place."^[132] He further voiced his opinion, provided that the Second Court of Appeals upholds Judge Forrest's ruling, the case will most likely be before the Supreme Court within weeks.^[132]

2013-02-06 Oral arguments hearing and further developments

Oral arguments in the case were heard before the Second Circuit Court of Appeals on February 6, 2013.^[133] The dominating topic during 2nd Circuit hearing were press rights.^[22] According to Attorney Bruce Afran the three-judge panel of the Second Circuit (composed of the judges Raymond J. Lohier, Lewis A. Kaplan and Amalya Lyle Kearse)^[134][135] conducting the hearing challenged the government to prove that the NDAA provision is nothing more than an "affirmation" of the laws regarding indefinite detention already established by Authorization for Use of Military Force.^[21] US government attorney Robert Loeb claimed that journalists had nothing to fear from the NDAA because it represented no change in law since the Sept. 11, 2001, attacks. Loeb claimed that "existing law" in NDAA Section 1021(e) (which states: "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.") is reflected in the Authorization to Use Military Force.^[22] Loeb however stated that independent journalists would be treated as enemy combatants, if there was evidence independent journalists were only using journalism as a cover and were in fact members of a designated enemy group.^[136] He however didn't explain to the court who defines an "independent journalist."^[135]

According to Loeb U.S. citizens are exempted from detention by subsection 1021(e) of the NDAA.,^[135][137] but Judge Lohier expressed skepticism by saying that the subsection "doesn't exempt anything" since it claimed not to change the law.^[137] In speaking to the court Afran said of 1021(e): "It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?"^[135] This was a question Judge Lohier, at Afran's urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.^[135]

The lawyers for the Hedges group noted that under the NDAA provision, a number of ostensibly protected activities could fall under the bill's ill-defined "substantial support" for terrorism language. "For example, raising money for Guantanamo inmates. Is that substantial support? … Hosting a webcast with al-Qaida members. Is that substantial support?" asked Afran.^[21] The government arguments stressed that it was "not reasonable" for independent journalists or activists to expect detention under NDAA.^[21] "We have about a decade of experience, and we have nobody being held for acts of independent journalism," Loeb said.^[22] He said that this is the reason for plaintiff's lack of standing i.e. the plaintiffs had failed to show an "objectively reasonable fear of being placed in long-term detention."^[134] Justice Department attorney Robert M. Loeb claimed the journalists/activists bringing the case have to demonstrate "injury" or "active injury." They have not demonstrated that they will be detained indefinitely by the military in the immediate future so they should not be able to bring their case.^[138] But the plaintiff's lawyers rejected this. They argued plaintiffs had legal standing to challenge Section 1021(b)(2) of the National Defense Authorization Act of 2012 because it interfered with their right to free speech by creating a basis to fear that they might be placed in military detention on the basis of their activities.^[134]

A critical issue in the lawsuit has been what the words "substantially supported" mean in the provision because the government claims it can detain people who are suspected of "substantially supporting" Al Qaeda. Loeb said the AUMF provided detention authority and then, after Lohier asked a follow-up, he said the question about whether the AUMF granted authority to detain "substantial supporters" would be subject to further litigation.^[138] A representative from Congress sent by U.S. Senator Lindsey Graham and U.S. Senator John McCain stepped up to provide testimony on why Congress had passed the NDAA and included the "substantially supported" provision. The representative suggested that it is typical for Congress to use words that are "general in nature" so that the Executive Branch can have the latitude to decide how to interpret them.^[138] One critical issue was addressed by the judges, as Lohier took the opportunity to ask if this was the first time Congress had passed a law "affirming an already existing authority" involving detention. The representative said yes.^[138]

Plaintiff lawyer Carl Meyer told a panel after the hearing that the case importance emanates from the case outcome i.e. whether the United States justice system will be in the long run a civil or a military justice system. "The civil justice system is something that's ingrained in the Constitution and was always very important in combatting tyranny and building a democratic society. And what the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America, to detain U.S. citizens, to detain residents in the United States in military prisons, and — probably the most frightening aspect of the NDAA — it allows detention 'until the end of hostilities.'"^[139]

According to Afran and fellow attorney Carl Mayer, the Second Circuit judges woild likely not rule on the injunction for some months, awaiting the result of the Supreme Court case Clapper v. Amnesty International USA^[22][135] challenging the government's use of electronic surveillance. Following the USSC decision in favor of the government, several legal experts expressed that "Clapper also hints at a rocky reception for the challenge to the NDAA in Hedges."^[140] After the U.S. Supreme Court handed down its ruling in Clapper v. Amnesty International on February 26, 2013, Mayer stated that the impact of the Supreme Court ruling would be limited because Clapper and Hedges are "very distinct" cases. "The Hedges case is a much greater harm: the possibility of detention at the hands of the military, potentially forever," Mayer wrote in an email on February 26, 2013.^[141] "The type of harm alleged in the wiretapping case was indirect; in Hedges the threat is directly to journalists because they are the ones who could be rounded up by the military, whereas in the wiretapping case decided today, the people under surveillance are not the journalists but the people they report on, presumably."^[141] Further decision over the NDAA provision injunction may not come until June 2013, according to news website Salon.^[21]

Following the Supreme Court decision in Clapper v. Amnesty International USA on February 2013, 27 the U.S. government filed a Rule 28j letter^[142] the very next day arguing that, like the Clapper plaintiffs, the Hedges plaintiffs could not "establish a present or ‘certainly impending' injury-in-fact" and that the NDAA's detention provisions, like the NSA warrantless wiretapping authorization, merely permitted rather than required the government to take a particular action. Thus, Clapper required the Second Circuit to dismiss the Hedges suit on standing grounds, the government contended.^[143]

The Hedges plaintiffs responded in mid-March,^[144] requesting additional briefing and oral argument on Clapper‘s effects. They argued that "Clapper's factual and legal predicates differ dramatically from those in the instant appeal and have only superficial similarities to Hedges." They noted that the Hedges statute, unlike in Clapper, is "self-executing [and] does not require the government to seek permission of an independent body [i.e., the FISA court] before acting under its provisions." In addition, the Hedges court explicitly found that the plaintiffs fell under the scope of the detention provisions, whereas "the Clapper plaintiffs . . . were never the intended targets of the [warrantless wiretapping] act." Finally, the Hedges statute implicated First Amendment speech rights in a way that the Clapper statute did not. On the basis of these distinctions, the Hedges plaintiffs argued that the Rule 28j procedures the government used to inform the Hedges court of the intervening Clapper decision were insufficient to settle the issue, and that further briefing and oral argument was necessary.^[143]

The government responded on April 4, 2013,^[145] arguing that Clapper clearly requires the Second Circuit to dismiss Hedges for lack of standing, and that in any case the government's Rule 28j letter and the Hedges plaintiffs' response provides all the supplemental briefing that may be necessary.^[143]

2013-07-17 Ruling

The Second Circuit Court of Appeals overturned in 3-0 ruling^[146] on July 17, 2013 Judge’s Forrest ruling which struck down § 1021(b)(2) of the controversial U.S. military-detention law NDAA as unconstitutional because the plaintiffs lacked legal standing to challenge it.^{[25][147][148][149]} The Court of Appeals overturned Forrest’s decision in a 60-page ruling^[150] and lifted her injunction, saying that Christopher Hedges and another plaintiff weren’t eligible to challenge the law because it “simply says nothing about the government’s authority to detain citizens.”^[25] The court held that under their interpretation the government could not use the particular law challenged by the citizen plaintiffs to militarily detain them, so they had no basis for the court to hear their case. But the court acknowledged that this doesn’t mean that the government could not rely on other laws, including the AUMF to the events of September 11, to justify indefinite military detention of citizens.^[151] The court concluded that the non-citizen plaintiffs had no reasonable fear of being detained and thus could not have their challenge of the law adjudicated by the court.^[151] “And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021,” the court said.^[25]

The appeals court wrote that Hedges and his American co-plaintiffs lack standing to challenge the indefinite detention provisions since a subsection of that rule, 1021(e), frees US citizens from detention under the NDAA. “We recognize that Section 1021 perhaps could have been drafted in a way that would have made this clearer and that the absence of any reference to American citizens in Section 1021(b) led the district court astray in this case. Perhaps the last-minute inclusion of Section 1021(e) as an amendment introduced on the floor of the Senate explains the somewhat awkward construction,” wrote the court. “But that is neither here nor there. It is only our construction, just described, that properly gives effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.”^[146]

“Section 1021(e) provides that Section 1021 just does not speak — one way or the other — to the government’s authority to detain citizens, lawful resident aliens or any other persons captured or arrested in the United States,” the court ruled.^[146] “We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens and are not captured or arrested within the United States, the President’s AUMF authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners — a detention authority that Section 1021 concludes was granted by the original AUMF.”^[146] “But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all,” it concluded.^[146]

The appeals court acknowledged that Iceland’s Jónsdóttir, co-plaintiff Kai Wargalla of Germany and other foreign persons could be detained indefinitely under the NDAA. “The claims of Jónsdóttir and Wargalla stand differently. Whereas Section 1021 says nothing about the government’s authority to detain citizens, it does have real meaning regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad,” the court ruled.^[146] “One perhaps might fear that Jónsdóttir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well,” wrote the court. “The government rejoins that the term ‘substantial support’ cannot be construed so in this particular context. Rather, it contends that the term must be understood — and limited — by reference to who would be detainable in analogous circumstances under the laws of war.”^[146] Because “plaintiffs have provided no basis for believing that the government will place Jónsdóttir and Wargalla in military detention for their supposed substantial support,” the court has rejected their lawsuit.^[146] “In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens,” concluded the court. “While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jónsdóttir and Wargalla have not established standing on this record. We vacate the permanent injunction and remand for further proceedings consistent with this opinion.”^[146]

U.S. District Judge Lewis Kaplan, who sat with the 2nd Circuit by designation and wrote the decision, said section 1021 nonetheless "does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens," citing as an example Yaser Esam Hamdi, a U.S. citizen detained after allegedly fighting alongside the Taliban in Afghanistan in 2001.^[147] The 2nd Circuit vacated the permanent injunction returned the case to Forrest for further proceedings consistent with its ruling.^[146][147]

Plaintiffs intend on taking their case to the Supreme Court.^[146][147] "The Second Circuit panel did not distinguish itself in upholding civil rights in America," said Carl Mayer, an attorney for the plaintiffs. "I think the decision is imminently appealable because it reverses a very solid and comprehensive lower court opinion, and frankly I think it's time for the Obama administration to stop supporting these statues like the indefinite detention law."^[148]

Bruce Afran, a lawyer for Hedges, said the ruling "continues a distressing trend in which American federal courts are refusing to rule in cases where the U.S. government is over-reaching and violating civil liberties."^[147] The Manhattan U.S. Attorney's Office, which represents the government in the case, declined to comment.^[147] Tangerine Bolen, a co-plaintiff in the case alongside Hedges, said: “Losing one battle is not losing the war. This war is an assault on truth itself. It flaunts reason, sanity and basic decency. We will not stand down in the face of these egregious assaults on our rights and liberties.”^[146] Hedges called the ruling “distressing” and said, “It means there is no recourse now either within the Executive, Legislative or Judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights.”^[146]

U.S. Supreme Court Proceedings

2012-12-12 Emergent Application to Vacate Temporary Stay of Permanent Injunction

The group of journalists, activists, and academics, as well as a member of Iceland's parliament around Christopher Hedges filed an application, a so-called "Emergent Application to Vacate Temporary Stay of Permanent Injunction"^[152] (docket 12A600,^[153] with the U.S. Supreme Court on December 12, 2012. With the application the group asked the Supreme Court to lift the stay pending appeal order issued by the U.S. Second Circuit Court of Appeals on October 12, 2012 and thus to put back into effect District Judge Forrest's order from September 12, 2012 which permanently enjoined enforcement of § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012. 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.^[20][76] The application submitted by plaintiff attorney Bruce Ira Afran stated: "Unless this Court lifts the stay, core constitutional rights will continue to be violated and the status quo that the military cannot detain civilians will be upended pending an appeal process that could take many months if not years."^[20] It also said that Americans are "in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties."^[154] The application was denied by Justice Ginsburg in her individual capacity as a Circuit Justice on December 14, 2012.^[155][156] In her order Ginsburg pointed out to the case Doe v. Gonzales,^[20] in which Ginsburg said that the Court should hesitate to interfere with an appeals court that was proceeding on an expedited schedule to review a ruling against a federal law, and that, in any event, the Court should be cautious when such a law had been nullified in a lower court.^[20]

2012-12-21 Refile of Emergent Application to Vacate Temporary Stay of Permanent Injunction

The 2012-12-12 Emergent Application to Vacate Temporary Stay of Permanent Injunction (Application 12A600) was refiled by the plaintiff's lawyers to the U.S. Supreme Court Justice Antonin Scalia on December 21, 2012. The entire Supreme Court held a conference in which it considered to lift the 2012-1012 U.S. Second Circuit Court of Appeals stay and to restore Judge Forrest permanent injunction. Application 12A600 was denied On February 19, 2013 meaning the Supreme Court didn't lift the U.S. Second Circuit Court of Appeals stay and indefinite detention under the NDAA stands.^{[23][24][157]}

Appeal of 2013-07-17 Second Circuit Court of Appeals ruling

On September 2, 2013, Christopher Hedges announced he, along with attorneys Carl Mayer and Bruce Afran, who originally brought the lawsuit against Obama, would again file papers asking the U.S. Supreme Court to hear an appeal of the Second Circuit Court of Appeals 17 July 2013 ruling on the act’s Section 1021. In an article titled Last Chance to Stop the NDAA, Hedges writes in his Truthdig column, "I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the [NDAA] that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities ... If Section 1021 stands it will mean, as Forrest pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention." ^[158] The U.S. Government filed in March 2014 a brief arguing that petition for a writ of certiorari should be denied by U.S. Supreme Court.^[159] Hedges responded to this that he and his attorneys would respond within 10 days.^[160]

The Supreme Court denied certiorari in an order issued April 28, 2014.^[1][26]

Notes

1. Hedges et v. Obama, U.S. District Court for the Southern District of New York, No. 12-cv-331 and Hedges et v. Obama, 2nd U.S. Circuit Court of Appeals, No. 12-3176

See also

• National Defense Authorization Act for Fiscal Year 2012
• National Defense Authorization Act for Fiscal Year 2013

References

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External links

• Hedges v. Obama Lawsuit - Case Documents
• Mayer Law Group

Files

District Court Proceedings

• Judge Forrest's opinion granting preliminary injunction in Hedges v. Obama, No. 12-CV-331 (S.D.N.Y. May 16, 2012)
• 2012-05-25 U.S. Government's Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order
• Judge Forrest's June 6, 2012 order and opinion expanding scope of preliminary injunction beyond plaintiffs in Hedges v. Obama in response to U.S. Government's Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order (see file above) , Hedges v. Obama, No. 12-CV-331 (S.D.N.Y. June 6, 2012)
• Forrest's opinion granting permanent injunction in Hedges v. Obama, No. 12-CV-331 (S.D.N.Y. September 12, 2012)

U.S. Second Circuit Court of Appeals Proceedings

• Plaintiffs' 2012-09-27 Hedges plaintiffs Brief in Opposition to Defendants' Emergency Motion for Stay Pending Appeal
• Defendants' 2012-09-28 U.S. Government Reply in Support of Motion to Stay Permanent Injunction, Pending Appeal
• U.S. Second Circuit Court of Appeals 2012-10-02 Order to Stay District Court's Permanent Injunction, Pending Appeal
• U.S. Department of Justice 2012-11-06 Appellant Brief
• Appellees' 2012-12-12 Brief in Opposition to Government's Appeal
• 2013-07-27 U.S. Second Circuit Court of Appeals ruling in case no. 12-3176 (L) Hedges v. Obama

U.S. Supreme Court Proceedings

• 2012-12-12 Emergent Application to Vacate Temporary Stay of Permanent Injunction also known as U.S. Supreme Court Motion to Lift Stay by Hedges plaintiffs
• Hedges v. Obama - No 13-758 in the Supreme Court of the United States: March 2014 Brief for the Respondents in opposition as authored by the U.S. government Lawyer Donald B. Verrilli, Stuart F. Delery, August E. Flentje and Benjamin H. Torance