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The government has moved for reconsideration in the Hedges case. The government summarizes its argument as follows:
Defendants in the above-captioned action (the “government”) respectfully submit this memorandum of law in support of their motion for reconsideration of this Court’s Opinion and Order dated May 16, 2012 (the “Order”), pursuant to Fed. R. Civ. P. 54(b), 59(e), and 60(b), and Local Civil Rule 6.3. This Court’s Order enjoins the government from enforcing section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011), against the plaintiffs in this action, but expressly notes that the government’s detention authority under the 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) (“AUMF”) is unaffected. Although the government respectfully disagrees with the Order on a number of grounds that the government may raise should it choose to appeal, this motion for reconsideration is limited to one aspect of the Court’s reasoning. As explained below, the Court should revisit its decision regarding plaintiffs’ standing in light of the fact that the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021, and that it would in any event be improper to shift the burden of proof on this issue to the government. Reconsideration of the injunction is also supported by the Constitution’s separation of powers. Issuing an injunction regarding the President himself, or restraining future military operations (including military detention) under the President’s constitutional authority as Commander-in-Chief during a time of war would be extraordinary. Even assuming an order restraining future military operations could ever be appropriate, it is plainly unwarranted here given the absence of any imminent or credible threat of harm to plaintiffs.
In the body of the brief, the government essentially repudiates its decision at oral argument not to state clearly that people like the plaintiffs have no fear of detention under the NDAA:
the government wants to be as clear as possible on that matter. As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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