The Justice Department Monday filed an emergency petition asking a New York appeals court to block a five-day-old federal judge's ruling on President Obama's detention authority that it said was interfering with ongoing military operations.
The decision last week by Manhattan U.S. District Judge Katherine Forrest held that laws allowing the president to order the military detention of anyone who "substantially supported" al-Qaida, the Taliban or "associated forces" were so broad and vague that they threatened Americans exercising free speech rights with indefinite imprisonment.
"The District Court order," government lawyers Monday told the 2nd U.S. Circuit Court of Appeals, "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."
The presidential detention power had its origin in the 2001 law authorizing retaliation for the Sept. 11 attacks. It was renewed by Congress in 2011 without specific reference to those involved in the attacks. A group of journalists and writers sued, arguing that they feared their First Amendment activities could qualify as "support."
The judge worried in her 112-page opinion that a news or opinion article perceived as helpful to a terrorist group could trigger action by the government against the writer for supplying propaganda, and said detention without trial of American citizens was not ruled out.
"Where is the line between what the government would consider 'journalistic reporting' and 'propaganda?'" she asked. "Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is 'modest' or 'substantial?' "
The Justice Department, in its request for a stay, said that in the eleven years since Sept. 11 no journalists had been detained, and that the fears of the plaintiffs were exaggerated.
Because the judge struck down use of the law against anyone, government lawyers said, individuals detained overseas as part of a military action could potentially seek to hold government officials in contempt.
"The court has placed the military in a difficult and burdensome position rife with confusion," the government said. " . . . To be clear: the court's opinion, and the invitation of contempt proceedings, may impact detention practices in areas of active hostilities."
Lawyers for the plaintiffs did not return calls for comment.