After fights over military detention, GOP and White House team up against lawsuit

The Obama administration and Republican Senate hawks have fought tooth and nail over indefinite detention laws, but now they are joining forces to stop a lawsuit that argues military detention is unconstitutional.

Sens. John McCain (R-Ariz.), Lindsey Graham (R-S.C.) and Kelly Ayotte (R-N.H.) have taken the rare step of securing time at oral arguments alongside the administration’s attorneys to defend the law they helped write, which critics say allows U.S. citizens to be detained indefinitely.

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Arguments are being heard in the Second Circuit Court of Appeals in New York Wednesday after a District Court judge ruled last year that some provisions allowing the indefinite detention of terrorism suspects in the 2012 National Defense Authorization Act (NDAA) were unconstitutional.

The senators themselves are not expected at the hearing. But they have been granted time during oral arguments in addition to the Justice Department attorneys defending the case by arguing they wanted to defend the merits of the law itself and not just win the lawsuit.

“The Senate Amici played a leading role in enacting the statutory provision at issue in this case, while the Obama Administration strongly opposed it,” David Rivkin, the attorney representing McCain, Graham and Ayotte, wrote in a brief last month.

“The Senate Amici seek to defend the fullest extent of Congress’s power under the Declare War Clause, as exercised in this instance, while the [Obama administration] Appellants present narrower arguments that, if accepted, are likely to leave the extent of Congress’s power in doubt.”

The GOP senators have a tenuous history with the White House over indefinite detention after the Obama administration threatened to veto the 2012 NDAA.

The Senate debate sparked public outcry over concerns that the U.S. citizens could be held indefinitely under military detention.

Ultimately the White House backed down from the veto threat — though the detention provisions were also watered down — and President Obama issued a signing statement that said the administration would not indefinitely detain U.S. citizens.

McCain, Graham and Ayotte, however, support the detention of all terrorist suspects, including U.S. citizens and those captured on U.S. soil. They say it’s a necessary step in a global war on terror, and argue the administration already has the authority to indefinitely detain U.S. citizens under the 2001 Authorization for Use of Military Force.

Rivkin, a former lawyer in the White House counsel’s office who will argue the senators’ case in court Wednesday, told The Hill he plans to defend the military detention statute as part of Congress’s constitutional authority to declare war.

Rivkin said the provision was a “classical structuring statute that Congress passed in the course of the dialogue between the two branches on the vital issues war and peace, exercising a subset of Congress’ prerogative to declare war.”

The lawsuit was filed last year by a group of journalists, writers and activists — including former New York Times reporter Christopher Hedges, Pentagon papers whistleblower Daniel Ellsberg and Noam Chomsky.

They allege in Hedges vs. Obama their First Amendment rights are being threatened and say they could be subject to indefinite detention under the 2012 NDAA law.

District Court Judge Katherine Forrest ruled in favor of the plaintiffs last year. She said that parts of the detention law were unconstitutional because language allowing the detention of those who “substantially supported” al Qaeda or “associated forces” was overly vague.

Forrest also issued an injunction that could have blocked the detention of some terror suspects across the globe, but an appellate judge stayed the injunction until the case was heard.

Wells Bennett, a fellow at the Brookings Institution, said that it’s common for lawmakers to file amicus briefs in court cases that deal with their legislation, but that it was unusual for them to seek a place at arguments.

“That doesn’t happen every day,” he said.

The case is still much different from the House GOP providing a defense for the Defense of Marriage Act (DOMA) when the Obama administration said it would not. The administration and GOP senators are on the same side, even if they come at the case from different angles, Bennett said. The administration has vigorously defended the NDAA against the lawsuit, he said.

“They haven’t lollygagged on it in the least, and for good reason,” said Bennett, who has blogged about the case for Lawfare.

Bennett said the administration’s attorneys are expected to try and dismiss the case by arguing that the plaintiffs have no standing for bringing the lawsuit because they have not been detained themselves.

When the appellate court granted the stay of the injunction, it cited the government’s argument that said the plaintiffs were “in no danger whatsoever of being captured and detained by the U.S. military.”