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Obama Administration Lawyers Argue NDAA Indefinite Detention Injunction Does Irreparable Harm

via Michael McAuliff, The Huffington Post

Lawyers for the Obama administration are arguing 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.

The lawyers made the argument on Friday in seeking a stay of the ruling, issued earlier this week by Judge Katherine Forrest in the Southern District of New York.

Forrest had ruled on behalf of a group of journalists and activists who said they feared the government could grab them under section 1021 of the National Defense Authorization Act of 2012. That section affirms the administration’s right to detain any “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces,” including U.S. citizens.

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.

Forrest also argued that in passing the law, Congress had dramatically expanded the categories of people that can be detained, although the legislation itself and the administration asserted that the provision was doing nothing more than reasserting the White House’s authority originally granted under the 2001 Authorization to Use Military Force that lawmakers passed after the 9/11 attacks.

Friday, in a stay request signed by New York’s Southern District U.S. Attorney Preet Bharara, Assistant Attorney General Stuart Delery and Department of Defense General Counsel Jeh Johnson, the government argued that the injunction was an “unprecedented” trespass on power of the president and the legislature that by its very nature was doing irreparable harm.

The request also argued that the injuction places an undue burden on military commanders in a time of war while the plaintiffs — among them pulitzer-prize-winning reporter Chris Hedges and noted left-wing academic Noam Chomsky — had no reasonable fear of ever being detained “in the foreseeable future.”

“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,” the stay request says.

“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,” it concludes.

The request is seeking both an immediate temporary stay so that the matter can be argued, and a permanent one lasting until higher courts resolve the case, which the administration announced Thursday it would appeal. A hearing was set for Wednesday next week. Forrest denied the short-term stay, so the law cannot currently be used.

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 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.

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