Sens. McCain, Graham & Ayotte Seek Oral Argument Time in NDAA Lawsuit

Gale Courey Toensing
1/12/13

 

Senators John McCain, Lindsay Graham and Kelly Ayotte have filed a joint amicus brief – a friends of the court brief – asking for oral argument time in an upcoming appeals court hearing of a lawsuit against the Obama administration that challenges the indefinite detention provision of the National Defense Authorization Act. Although the Senate amici – referred to in court documents as the three amici – agree with the administration that the lawsuit should be dismissed, their request to participate is based on protecting their congressional turf against encroachments by the administration.

The lawsuit is Hedges v. Obama and oral arguments will be heard in the 2nd Circuit Court of Appeals in New York City on February 6. But the three Republican senators will have to wait for the court’s panel of judges to decide whether to grant their request, according to a court order.

Former New York Times reporter and Pulitzer Prize winner Chris Hedges, MIT professor Noam Chomsky and others filed the lawsuit in early 2012 after President Obama signed into law the National Defense Authorization Act of 2012 (NDAA). The plaintiffs say a provision of the act – Section 1021 – that gives the government power to seize “terror suspects” and detain them indefinitely in military custody without charge or trial, including United States citizens on American soil, violates their rights of free speech and free assembly. They argue that the language of the law is so vague it “provokes fear” that they could be seized and subjected “to indefinite or prolonged military detention” for exercising their constitutionally protected right to political speech. The indefinite detention provision remains in the 2013 NDAA.

Last June a federal district court judge responded in the plaintiff’s favor and issued an injunction against the indefinite detention provision. The administration’s attorneys appealed the injunction and in September a 2nd Circuit judge granted their motion to put a hold on the injunction.

The three amici filed their motion December 26, requesting for 10 minutes of argument time. They argue that their participation is warranted for two reasons: because they have a “unique understanding of the meaning and purpose of” the indefinite detention section of the NDAA and will be able to “address the broader policy dispute that led to the provision” and because they have “a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit” – as opposed to the executive branch’s interest, which “is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.”

The administration’s attorneys filed a brief opposing the inclusion of the Senate amici in the oral argument hearing on January 3. They argue that the senators have no standing as individual members of the Senate to intervene and argue orally in the case and that they aren’t authorized to speak for the legislative body, which has shown itself to be sharply divided on several issues. The administration also argues that the three amici are offering policy views “that should properly be aired in the political branches, not the judiciary,” and that their brief reiterates the administrations. But the administration’s most cogent argument against allowing the senators to intervene is that their comments on the Senate floor actually substantiate Hedges’ claims and undermine the administration’s position. “Senator Graham acknowledged on the floor of the Senate that under the text of the NDAA a citizen may well fear ‘being picked up by a rogue executive branch’ – not just by a rouge ‘official’ but by a ‘rogue executive branch’ – for protected political activities, under Section 1021,” the administration’s attorneys write in a huff. “In this regard, Senator Grahams’ remarks actually endorse the points raised by the plaintiffs and recognized by the district court.”

If the three amici are granted oral argument time, the administration’s attorneys say it shouldn’t come out of their allotted time. “Fundamental fairness requires that an equal amount of additional time should be added to [our] time for arguments,” they say.

Hedges did not respond to an e-mail request for comment.

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