The Constitution Project and the Center for National Security Studies have asked the U.S. Court of Appeals for the Second Circuit for permission to file an amicus brief in the Hedges case. Earlier this year, the district court issued an injunction in this case prohibiting the government from enforcing Section 1021 of the National Defense Authorization Act (NDAA) of 2012, which provides for military detention of certain individuals. The brief raises an argument overlooked by the district court and not addressed by the parties, namely that neither the NDAA nor the Authorization for the Use of Military Force (AUMF) adopted in the aftermath of the 9/11 attacks provides the executive with the authority to place individuals in military detention without charge or trial if the individuals are arrested in the United States.
“Nothing in section 1021 [of the NDAA] or the AUMF compels a reading authorizing military detention of individuals arrested in the United States. For this reason alone, the district court should not have construed section 1021 and the AUMF to authorize military detention of such individuals,” the two groups asserted in their brief submitted on November 13. The case is Hedges et al v. Obama, U.S. Court of Appeals for the Second Circuit, No. 12-3176.