Sens. McCain, Graham & Ayotte Seek Oral Argument Time in NDAA Lawsuit

[struggle4progress]

Gale Courey Toensing
January 12, 2013

Senators John McCain, Lindsay Graham and Kelly Ayotte have filed a joint amicus brief – a friends of the court brief – asking for oral argument time in an upcoming appeals court hearing of a lawsuit against the Obama administration that challenges the indefinite detention provision of the National Defense Authorization Act. Although the Senate amici – referred to in court documents as the three amici – agree with the administration that the lawsuit should be dismissed, their request to participate is based on protecting their congressional turf against encroachments by the administration ...

The three amici filed their motion December 26, requesting for 10 minutes of argument time. They argue that their participation is warranted for two reasons: because they have a “unique understanding of the meaning and purpose of” the indefinite detention section of the NDAA and will be able to “address the broader policy dispute that led to the provision” and because they have “a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit” – as opposed to the executive branch’s interest, which “is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.” ...

The administration’s attorneys filed a brief opposing the inclusion of the Senate amici in the oral argument hearing on January 3. They argue that the senators have no standing as individual members of the Senate to intervene and argue orally in the case and that they aren’t authorized to speak for the legislative body, which has shown itself to be sharply divided on several issues. The administration also argues that the three amici are offering policy views “that should properly be aired in the political branches, not the judiciary,” and that their brief reiterates the administrations. But the administration’s most cogent argument against allowing the senators to intervene is that their comments on the Senate floor actually substantiate Hedges’ claims and undermine the administration’s position. “Senator Graham acknowledged on the floor of the Senate that under the text of the NDAA a citizen may well fear ‘being picked up by a rogue executive branch’ – not just by a rouge ‘official’ but by a ‘rogue executive branch’ – for protected political activities, under Section 1021,” the administration’s attorneys write in a huff. “In this regard, Senator Grahams’ remarks actually endorse the points raised by the plaintiffs and recognized by the district court.” ...

http://indiancountrytodaymedianetwork.com/2013/01/12/sens-mccain-graham-ayotte-seek-oral-argument-time-ndaa-lawsuit-146927