Saying its military operations against Al-Qaida and the Taliban were threatened, the U.S. Justice Department asked a federal appeals court Monday to immediately block a judge's ruling that an anti-terrorism law authorizing indefinite detention of those who support terrorist groups was unconstitutional.
Government lawyers filed papers with the 2nd U.S. ¬Circuit Court of Appeals in Manhattan asking that the ruling by U.S. ¬District Judge Katherine Forrest be suspended until an appeals panel can consider the government's complaints. It said the judge had a "deeply flawed" understanding of the military's detention authority, which had been endorsed by all three branches of government.
The judge had ruled that the law was "unconstitutionally overbroad" because it was impossible for journalists, scholars and activists to know whether their First Amendment activities would subject them to indefinite detention if the government believed their interactions could be construed as supporting terrorists. She said there were other laws the government could use to indefinitely detain those picked up on the battlefield and anyone in the United States who aided terrorist groups.
The government told the 2nd Circuit that the judge's "order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict."
It added: "There should be no mistake: the court's opinion, and its invitation of contempt proceedings, are addressed directly to detention practices in areas of active hostilities."
Bruce Afran, a lawyer for plaintiffs in the lawsuit, said he was surprised the government was acting so hastily given that it had not expressed alarm after the judge made her initial ruling months ago.
"It's a bit of a hysterical reaction from the government," he said. "She's done nothing to interfere with the military operation. ... Suddenly they say this imperils the war effort."
Lawyers for the government wrote that the judge's actions were unprecedented and exceeded her authority and they complained that it seemed to be worldwide in effect, "intruding upon military operations in the ongoing armed conflict against Al-Qaida, the Taliban and associated forces."
They said the judge based her actions on "a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of ever being captured and detained by the U.S. ¬military."
In her written decision, Forrest had criticized the government for failing to state directly that the plaintiffs would not be subjected to indefinite detention for engaging in First Amendment activities.
In May, Forrest had temporarily struck down the law subjecting to indefinite detention anyone who "substantially" or "directly" provides "support" to forces such as Al-Qaida or the Taliban. She heard additional arguments last month before issuing her final ruling.
The government said in its papers Monday that the permanent order by Forrest was "vastly more troubling" than her earlier order because she invited contempt sanctions if the military continued to view its authority as U.S. ¬authorities have done since the Sept. 11, 2001, terror attacks.
Government lawyers said "war authorizations such as this simply do not, cannot, and should not provide the level of specificity that the district court believes they require."
And they added that it "threatens tangible and dangerous consequences in the conduct of an active military conflict."
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