Criminal Justice & the Rule of Law Executive Branch

Hedges Plaintiffs Ask SCOTUS to Vacate CA2 Stay

Wells Bennett
Thursday, December 13, 2012, 9:39 AM
Yesterday, plaintiffs in Hedges v.

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Yesterday, plaintiffs in Hedges v. Obama asked Justice Ruth Bader Ginsburg to vacate the stay entered by the Second Circuit.  The district court permanently enjoined enforcement of Section 1021(b)(2) of the NDAA, but the Second Circuit quickly blocked that ruling, pending resolution of an appeal by the United States.  Thus plaintiffs---a group of journalists, activists, and academics, as well as a member of Iceland's parliament---filed, with the Supreme Court, yesterday's "Emergent Application to Vacate Temporary Stay of Permanent Injunction." From the application's introductory section:
This is an emergent motion, submitted to Justice Ginsburg, pleading that the Supreme Court vacate a stay pending appeal entered on October 2, 2012 by the Court of Appeals for the Second Circuit. The stay freezes a permanent injunction issued by the United States District Court Judge the Hon. Katherine B. Forrest sitting in the Southern District of New York on September 12, 2012. District Judge Forrest’s order permanently enjoined a provision of a statute that allows, for the first time since the internment of Japanese-Americans during World War II, the indefinite detention of civilians, including United States citizens, in military prisons. The same statute would subject civilians, including American citizens, to military trials rather than civilian trials and permits the detention of civilians and American citizens anywhere in the world; said statute would even permit the deportation of civilians and American citizens to foreign countries or “entities.” This statute violates the nearly 200 year-old principle that the military does not police our streets. The effect of the Second Circuit stay is to place the plaintiffs in this action and many United States civilians and citizens in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties. The stay actually upends the status quo that has been in place for most of our nation’s history: that the military cannot detain civilians. District Judge Forrest was clear on this point:

A key question throughout these proceedings has been, however, precisely what the statute means --- what and whose activities it is meant to cover. This 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 not 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). [The statute at issue here][Ex. A, Opinion and Order of Judge Forrest, dated 9/12/12 at p. 4 (“Order”).]

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.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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