Amicus briefs in Hedges v. Obama inform indefinite detention lawsuit

Law BooksThe Bill of Rights Defense Committee recently coordinated the filing of three amicus (friend of the court) briefs in Hedges v. Obama, a lawsuit in the Second Circuit Court of Appeals challenging domestic military detention under the National Defense Authorization Act (NDAA) of 2012.

The suit was brought by journalists and activists concerned about being subjected to indefinite military detention if they interview subjects hostile to the US, and secured a permanent injunction earlier this year from Judge Katherine Forrest of the US District Court for the Southern District of New York.

The briefs coordinated by BORDC support the position of the plaintiffs and provide additional arguments to inform the court's decision. One brief was filed on behalf of BORDC, arguing that when the government has previously used military domestic detention it has taken extreme steps to evade the oversight of the federal courts, and thus it is now especially important for the Second Circuit to decide the constitutionality of the NDAA, so that the government does not later avoid the courts' oversight.

The other briefs were filed on behalf of the Government Accountability Project, which defends whistleblowers, and the the Korematsu Center, which seeks to combat discrimination and to support communities in advocating for themselves. Both of these briefs were recently highlighted by the Huffington Post, in an article that also points out "7 Ways to Get Yourself Indefinitely Detained."

Oral argument in the case is anticipated to be before the Second Circuit Court of Appeals in New York City in January. Updates can be found on BORDC's blog and at You can also find others organizing across the country against the NDAA on BORDC's national map of anti-NDAA movements. Read more about each brief after the jump.

 BORDC's amicus brief

BORDC's amicus brief, drafted by attorneys at Arnold & Porter, traces the history of the two domestic military detention cases to reach federal courts, Padilla v. Hanft and Al-Marri v. Spagone.  The brief argues that:

 Over the last decade, the government has detained U.S. citizens and foreign nationals without criminal charges, for years at a time, while preventing judicial review of the facts supposedly justifying these detentions.

Padilla v. Hanft involved an American citizen, Jose Padilla, who was initially arrested on a material witness warrant at O'Hare Airport in Chicago in 2002.  The US District Court for the Southern District of New York scheduled a hearing on the legality of the warrant, setting in motion a persistent series of government attempts to deny the courts' ability to review Padilla's detention, and even his right to counsel.

After first designating Padilla as a material witness, the government charged him as enemy combatant, moved him from New York to South Carolina, indicted him on unrelated charges and then moved him to Florida. Each step had the effect of avoiding review on the merits by various federal courts.

In Al-Marri v. Spagone, Ali Al-Marri, a lawful permanent resident, was initially arrested as a material witness, and then subjected to similar tactics over the course of a seven year period as the government evaded court rulings on the merits.

 Although foreign detainees have, counterintuitively, had more success than domestic detainees in securing judicial review, the government has evaded review in that situation as well.

The brief then highlights how the government's historical behavior in the preceding cases requires the court to rule on the merits of the NDAA's indefinite detention provisions.

As in Padilla, Al-Marri, and Kiyemba, the government here seeks to avoid substantive review of its detention practices. Although the government now states that it would not wield section 1021 against Plaintiffs, its track record in this case undermines confidence in that late-stated position. At each juncture, the government has shifted its position by only the tiniest increment that it hoped would suffice to negate Plaintiffs’ standing or to moot this case:

The brief concludes:

Whatever power the United States Constitution envisions for the Executive in . . . times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi, 542 U.S. at 536. Indeed, “the very essence of [the] judicial duty” is determining whether laws violate the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). This Court should perform its constitutional role, evaluate the constitutionality of section 1021, and reject the government’s attempt to evade judicial scrutiny of its detention policies.

The Government Accountability Project's amicus brief

The Government Accountability Project's brief, filed by Reem Salahi of  Hadsell, Stormer, Richardson & Renick in Pasadena, CA, argues that:

[W]histleblowers’ historical treatment serves as a harbinger of what whistleblowers may face should this Court uphold §1021(b)(2)’s constitutionality: capricious and aggressive prosecutions with some of the gravest charges that can be brought against American citizens, including the Espionage Act.

Whistleblowers already lack meaningful protections. Those who seek to expose government fraud, waste or illegality have limited avenues to do so and face serious retaliation, up to criminal investigations and even prosecutions. In public forums, including at hearings and in the media, the Justice Department has defamed these whistleblowers as “terrorist sympathizers” and “enemies of the state.”

The brief particularly draws on the examples of Thomas Drake and Jesselyn Radack, government whistleblowers who were respectively charged and blacklisted by the government for revealing wrongdoing by national security agencies.

The Korematsu Center's amicus brief

The Fred T. Korematsu Center for Law and Equality at Seattle University Law School also filed a brief on behalf of:

the children of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui, three American citizens of Japanese ancestry who, as young men during World War II, challenged the constitutionality of the military orders subjecting Japanese Americans to curfew and forced removal from the West Coast.

The brief argues that:

[F]ederal courts, especially the Supreme Court, failed to accord the internment of Japanese Americans the exacting scrutiny the government’s wholesale deprivation of constitutional liberties demanded. Had it done so, the lack of bona fide factual justification for the internment-–as well as the government’s fraud on the courts, the Japanese American community, and the nation-–would likely have been revealed. The NDAA’s indefinite detention scheme echoes the indefinite detention that characterized the internment, and, similarly, it is factually unsubstantiated as well as ill-defined and overbroad in scope, as Judge Forrest found.

The threshold issue here is whether this Court will exactingly review the government’s legal and factual defense of the NDAA’s indefinite detention provision, as Judge Forrest did, or will instead uncritically defer to the government’s position, as the Court did in the internment cases. Given the constitutional liberties at stake here, and in the spirit of their fathers’ defenses of those same freedoms, amici urge this Court to draw upon the revelations of the Japanese American internment and coram nobis cases and affirm Judge Forrest’s application of heightened scrutiny to her review of the NDAA’s indefinite detention provisions.

We'll report on the case again in January, following oral argument.

Follow Michael on Twitter @Michael_Figura.

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