Late Monday, Second Circuit Court of Appeals Judge Raymond J. Lohier granted the government's request to put on hold District Judge Katharine Forrest's recent opinion in Hedges v. Obama permanently enjoining the indefinite detention provision in the National Defense Authorization Act (NDAA).
Unsurprisingly, the government argued that Forrest's ruling compromised national security, specifically
saying that Judge Forrest’s ruling had gone beyond the new statute and jeopardized some of its existing authority to hold certain wartime prisoners under the 11-year-old Authorization for Use of Military Force against the perpetrators of the Sept. 11 attacks.
The government's emergency request to the Second Circuit (
even after Forrest rejected one such request) signals that all the parties recognize that
Hedges v. Obama raises high-stakes separation of powers issues. While Lohier granted only an interim stay until a panel of Second Circuit judges can hear the case on September 28, 2012, his ruling is indicative of a disturbing tendency that too many courts have exhibited since 9/11 - deferring to the government's claims of harm to national security at the expense of individual freedoms.
There are too many Judge Lohiers and not enough Judge Forrests. Forrest rightly broke the mold of deference to the Executive in her courageous and well-reasoned opinion permanently enjoining the NDAA's indefinite detention provision. In the words of the New York Times editorial board:
[Judge Forrest's] willingness to take constitutional claims seriously was a refreshing departure from too many other judges in cases involving national security.
Some key quotes from Forrest's must-read opinion:
Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold . . . Courts must safeguard core constitutional rights.
When squarely presented with an unavoidable constitutional question, courts are obliged to answer it.
Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
First Amendment rights are guaranteed by the Constitution and cannot be legislated away.
The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.
Shortly after Forrest issued her opinion, the Obama administration requested a stay, a request Forrest sharply rebuked. When a panel of Second Circuit judges hears the case on September 28th, the judges should recognize the constitutional issues at stake, and do more than simply defer to the government's claims of national security.