Yesterday, Loeb stood on the government's argument that, for 10 years following the initial authorization, the government has never considered the activities of journalists like Hedges to fall within the authority to detain.
Kaplan asked whether the government's position was that the "statute does nothing" and that there was "no reasonable fear on behalf of anyone that they will be swept up" by U.S. authorities outside of the United States.
"Absolutely," Loeb said.
But Kaplan and Lohier questioned Loeb more than once on whether the executive branch could change its mind on how it interprets the language in the law.
"From time to time the solicitor general has taken one position and reversed that position and taken the exact opposite position in subsequent cases," Kaplan said.
Loeb insisted that the context was critical—that you have to have a "reasonable fear" and that it was wrong to "speculate" about the possibility the government will change its policy.
"You need to have an imminence requirement," Loeb said.
Mayer urged the judges to subject the law to the most exacting scrutiny and pointed out that, in appearing before Forrest, the government repeatedly refused to say that the statute "would not reach the conduct" of the plaintiffs.
Mayer said it was not enough that §1021(e) of the statute states that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
But Kaplan said, "Mr. Mayer, with all respect" that section states with "pristine simplicity" that the statute "does absolutely nothing to change preexisting law."
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