The American Bear


NDAA Indefinite Detention Opponents File Supreme Court Emergency Motion

From Wednesday:

Opponents of the post-9/11 use of indefinite military detention have filed an emergency motion with the U.S. Supreme Court, seeking to block a law they say allows innocent American citizens to be locked away without trial.

The motion, submitted on Wednesday, asks the Supreme Court to reinstate an injunction against a key portion of the National Defense Authorization Act of 2012. Unless the court does so, the motion argues, Americans are “in actual and imminent danger of losing their core First Amendment rights and fundamental Equal Protection liberties.”

Since January, former New York Times reporter Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg and other activists have been waging a legal battle against the U.S. government, arguing that the NDAA gives the military far too much leeway to imprison journalists or activists on vague accusations of supporting terrorism.


In September, NDAA opponents won a permanent injunction from a district judge against the detention provision, but it was quickly overturned by a circuit court.

Now the activists have taken their fight to block military detention to the Supreme Court. Their motion will be considered by Ruth Bader Ginsburg, who by herself or with the rest of the justices could make a ruling within a matter of days. No matter what happens with the Supreme Court motion, the NDAA lawsuit itself will continue to be argued in the 2nd U.S. Circuit Court of Appeals, where NDAA opponents filed a new legal brief on Monday.

But yesterday, (Friday):

Emergency Motion Denied in Hedges via Lawfare

According to a notation on the Supreme Court’s docket, Justice Ruth Bader Ginsburg has denied the plaintiffs’ motion to vacate the stay entered by the Second Circuit in Hedges v. Obama. Thus the Court of Appeals’ interim order—which blocked a permanent injunction entered by the district court—remains in force pending resolution of an appeal by the United States.

The Supreme Court’s docket entry reads, in full:

Dec 14 2012 Application (12A600) denied by Justice Ginsburg. The application to vacate the order entered by the United States Court of Appeals for the Second Circuit staying a permanent injunction entered by the United States District Court for the Southern District of New York is denied. See Doe v. Gonzales, 546 U.S. 1301, 1308-1309 (2005) (GINSBURG, Circuit Justice).

You can find additional coverage by SCOTUSblog’s Lyle Denniston here.