Reply in Support of Permanent Injunction Filed in Hedges

The plaintiffs have filed their reply in support of their request for a permanent injunction in the case of Hedges v. Obama.  (Recall that plaintiffs prevailed on their motion for a preliminary injunction with respect to Section 1021 of the NDAA.) The reply begins as follows:

In its essential thrust the government asserts that since the NDAA merely re-codifies the earlier detention authority of the AUMF and since no civilians have been arrested under such principles since the advent of the AUMF in 2001, plaintiffs, therefore, have no objectively reasonable fear of enforcement under the NDAA and no standing. This argument can be sustained only if the detention authority of the NDAA is truly the same and not materially different than under the AUMF.  Yet, though the Government supports this argument with the claim that the detention authority of the NDAA “codifies a longstanding Executive military-detention authority that has been upheld by the courts…”, see Government Brief (“Gov’t Bf.”) at 11 [emphasis added], after five rounds of briefing, the Government still cannot establish that any court has ever upheld detention authority under the AUMF using the “substantially supported” standard of section 1021 of the NDAA and every court that has been asked to do so has rejected such application.

This appears to complete briefing on the motion for a permanent injunction.  Oral argument is set for August 7.