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DOJ requests emergency stay to continue enforcement of indefinite detention law

The US Department of Justice [official website] on Monday filed a motion for an emergency stay [text] in the US Court of Appeals for the Second Circuit [official website] in an attempt to lift last week's permanent injunction [opinion, PDF; JURIST report] of portions of the National Defense Authorization Act (NDAA) [text, PDF]. The DOJ argued that Judge Katherine Forrest's ruling interpreted the Authorization for Use of Military Force (AUMF) [text] unnecessarily and may have done "irreparable harm to national security and public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict." The DOJ also argued that "[t]his is a suit brought by a handful of journalists and activists, who, based on their stated activities, are in do danger whosoever of ever being captured and detained by the US military" and thus could suffer no harm. The motion called the injunction to limit the president's military powers "unprecedented" and stated that any act of Congress should be presumed Constitutional until the US Supreme Court [official website] reviews it. Section 1021(b)(2) of the NDAA affirms the authority of the president under the AUMF to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Forrest struck down the law as vague and ambiguous in its terms as well as "unconstitutionally overbroad" in that it "purports to encompass protected First Amendment activities."

Forrest issued an injunction against the law in May, and clarified in the following weeks that her injunction should be interpreted broadly [JURIST reports]. Several civil rights groups have praised her decision and have circulated petitions [advocacy website] arguing that the government should not appeal the injunction. Lawyers for the government filed their appeal [JURIST report] with the US Court of Appeals for the Second Circuit [official website] in August. US President Barack Obama signed the NDAA into law [JURIST report] on December 31, 2011.

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