Wednesday, October 3, 2012
A three-judge panel of the Second Circuit extended an earlier temporary stay of district Judge Katherine B. Forrest's ruling that the government's detention authority in Section 1021 of the National Defense Authorization Act was unconstitutional.
The stay means that Judge Forrest's ruling does not go into effect unless and until the Second Circuit affirms it. But the panel ruling also put the case on an expedited briefing schedule, with the government's opening brief due on November 2. The reasons given by the panel suggest that the Second Circuit is all but certain to reverse Judge Forrest's ruling.
We previously posted on Judge Forrest's ruling, with background and analysis. Recall that Section 1021 authorizes detention of any "covered person," defined as follows:
(2) A person who was 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.
But the Section also says that it's not intended to change the scope of detention authority under the AUMF.
Plaintiffs, a group of writers, journalists, and activists, sued, arguing that the Section's language was pliable enough to include them, putting them at risk of detention. The core of their case was that Section 1021 swept more broadly than the government's prior detention authority under the AUMF. They also said it was unconstitutionally vague and violated their First Amendment rights. The government maintained that Section 1021 only codified existing detention authority. Judge Forrest agreed with the plaintiffs and issued a permanent injunction.
Soon after Judge Forrest ruled, however, an applications judge entered a temporary stay. The panel's ruling made that stay permanent, pending appeal.
The panel issued the stay for three reasons. First, it said that the government clarified that the plaintiffs "are in no danger whatsoever of ever being captured and detained by the U.S. military." Next, it said that the Section on its face does not affect existing rights of U.S. citizens or others arrested in the United States. (Compare Judge Forrest's ruling, which held that Section 1021 expanded government detention authority that existed under the AUMF.) Finally, it said that Judge Forrest's injunction "appears to go beyond [Section 1021] itself and to limit the government's authority under the [AUMF]."
The panel's curt reasons suggests that the Second Circuit is quite likely to reverse Judge Forrest's ruling on the merits.