Government Files Emergency Appeal of NDAA Decision

By Charlie Savage, The New York Times

18 September 12

he Obama administration warned Monday that a judge's ruling last week blocking a statute authorizing the indefinite detention of terrorism suspects has jeopardized its ability to continue detaining certain prisoners captured during the war in Afghanistan.

In an emergency appeal of the ruling, the government asserted that United States District Court Judge Katherine B. Forrest went beyond enjoining the statute - enacted last year as part of the National Defense Authorization Act - and potentially curtailed detention powers it has been exercising for years under its interpretation of the authorization to use military force against the perpetrators of the Sept. 11, 2001, attacks.

Judge Forrest's 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," the government wrote in a 38-page filing with the federal appeals court in New York.

The motion focused on language used by Judge Forrest that rejected interpreting the original use-of-force authorization as including the ability to detain "substantial supporters" of Al Qaeda and the Taliban, as opposed to people who are actually part of those groups. The judge also called into question the idea that the United States could detain members or supporters of "associated forces" that had no involvement in the Sept. 11 attacks.

"If, following issuance of this permanent injunctive relief, the government detains individuals under theories of ‘substantially or directly supporting' associated forces, as set forth in" the National Defense Authorization Act, "and a contempt action is brought before this court, the government will bear a heavy burden indeed," she wrote.

The United States is holding about 50 non-Afghan prisoners, most of them Pakistani, at the Parwan detention facility at Bagram Air Base in Afghanistan, as well several hundred Afghans. The legal imbroglio comes during a diplomatic tussle with the government of President Hamid Karzai over control of the Afghan prisoners.

The indefinite detention provision in the version of the annual National Defense Authorization Act enacted last year was contentious because lawmakers did not make clear whether American citizens could also be held without trial as wartime prisoners, and they did not specify what kinds of conduct constituted the "support" that could make someone detainable, nor which "associated forces" were off-limits.

Judge Forrest raised the question of how to interpret the original Authorization for Use of Military Force, or AUMF, passed by Congress in 2001 because the government argued that the National Defense Authorization Act did not expand the scope of its detention authority. But she disagreed, saying that the government's interpretation went beyond the text of the 2001 authorization.

The 2001 authorization and the new statute, she wrote, "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 the National Defense Authorization Act."

The lawsuit that led to the ruling by Judge Forrest, whom President Obama appointed to the Southern District of New York last fall, was brought by several journalists and activists, including Chris Hedges, a former reporter for The New York Times who interacts with terrorist groups as part of his reporting work, and several prominent supporters of WikiLeaks.

They say the statute's existence harms their First Amendment rights by creating a basis to fear that they might be detained under it. The Justice Department contends that they lack standing because they would not be detained under the statute for their activities – although earlier in the case, it initially refused to make such assurances.

The legal dispute in New York has opened a new chapter in years of wrangling by executive branch attorneys and judges in the District of Columbia circuit over the outer bounds of the government's authority to hold people, indefinitely and without trial, as wartime prisoners. The issue turns on how much and what kind of contact with Al Qaeda is sufficient to make someone on the fringes detainable - and, in some cases, targetable - a knotty problem in a war against a loose-knit, far-flung terrorist network.

The executive branch has long relied upon the authorization to use military force against the perpetrators of the Sept. 11 attacks, and those who harbored them, as the basis for its ability to detain people. It has applied judicial rulings about the scope of that authority from habeas corpus cases brought by detainees at Guantánamo Bay, Cuba, to its detention operations in Afghanistan, where courts do not have jurisdiction.

Last year, Congress wrote a new statute codifying a definition of the scope of detention authority derived from the Guantánamo litigation. It said the United States could detain not only members of Al Qaeda and the Taliban, but also their substantial supporters as well as associated forces engaged in hostilities against the United States and its allies.

In issuing its ruling rejecting some of those categories, the administration said, 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. 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 that authority."

Judge Forrest had previously issued a preliminary injunction against enforcing the statute. While the government had appealed, it did not seek a stay of her preliminary order, which lacked the more expansive language.

But after she made the injunction permanent last week, the Obama administration immediately asked her for an emergency stay, arguing that she was making an "unprecedented" judicial intrusion into wartime matters. When she declined, the government signaled it would go straight to the appeals court.

Robert Chesney, a professor at University of Texas, Austin, who specializes in the laws of war, said that if the Second Circuit appeals court upholds the injunction - even if by narrowing its scope - rather than overturning it on standing grounds, it could potentially set up a split on detention authority with the more conservative District of Columbia appeals court.

That outcome could persuade the Supreme Court to intervene again on detention matters, something he said executive branch officials "don't want at this point because they can't do any better than they've done" with the District of Columbia circuit.

In an e-mail, Bruce Afran, one of the attorneys representing the plaintiffs, argued that the government's "concern is unfounded" because Judge Forrest's actual injunction "does not touch" the government's separate powers under the authorization to use military force.

"The general thrust of their argument seems to be that the president and the Congress are immune from judicial review," he said.