Journalists and activists who fear they could be swept up by a law allowing for the indefinite detention of people who have "substantially supported" al Qaida, the Taliban or "associated forces" in armed conflict with the United States tried to convince a federal appeals court yesterday that they have standing to challenge the law.
Above, attorneys Bruce Afran, left, and Carl Mayer appear at a rally against detention provisions in the National Defense Authorization Act after oral argument at the U.S. Court of Appeals for the Second Circuit yesterday. Below, opponents of the law rally in front of the Federal Courthouse in Foley Square. NYLJ/Rick Kopstein
In closely watched arguments before the U.S. Court of Appeals for the Second Circuit, attorneys Carl Mayer and Bruce Afran said that journalist Christopher Hedges and others have a reasonable fear that they could be detained under the 2011 law merely by reporting on al Qaida and presenting the terror group's opinions and positions.
The statute in question is the National Defense Authorization Act for Fiscal Year 2012 (NDAA), 18 U.S.C. §1021 et seq.
In a courtroom filled with hundreds of opponents of the law, Judges Amalya Kearse (See Profile), Raymond Lohier (See Profile) and Southern District Judge Lewis Kaplan (See Profile), sitting by designation, repeatedly pressed Mayer and Afran on whether the plaintiffs have standing.
Kaplan told Mayer, that, at least with respect to U.S. citizens, "you have an insurmountable problem" here.
When Kaplan asked Afran for his "best argument for standing," Afran said the law "seems to strongly suggest that people can be detained in the United States."
Arguing for the government, Robert Loeb of the U.S. Department of Justice, said the law did not alter the president's authority to detain that was encapsulated in the original 2001 Authorization for the Use of Military Force passed by Congress in the wake of the Sept. 11, 2001, terrorist attacks.
Last May, Southern District Judge Katherine Forrest (See Profile) disagreed and issued a preliminary injunction against the law (NYLJ, May 17, 2012). She found the language in the National Defense Authorization Act much broader and more vague than the language used by Congress in 2001.
Forrest followed that ruling by making the injunction permanent in September ( NYLJ, Sept., 14, 2012). Lohier stayed that ruling pending the appeal in Hedges v. Obama, 12-3176, 12-3644 (NYLJ, Sept. 19, 2012).