The Obama administration on Wednesday urged a federal appeals court to overturn a sweeping ruling by a district judge that blocked the government from enforcing a statute related to the indefinite detention without trial of terrorism suspects.
Appearing before a three-judge panel of the Court of Appeals for the Second Circuit, in Manhattan, Robert M. Loeb, a Justice Department lawyer, said a lawsuit challenging the statute should be dismissed because those who brought it — including a former reporter for The New York Times, Christopher Hedges, who interacts with terrorist groups for his reporting, and several supporters of the antisecrecy group WikiLeaks — had no real-world risk of being detained.
“The plaintiffs’ claims all fail at the outset,” Mr. Loeb said, asserting that the plaintiffs had failed to show an “objectively reasonable fear of being placed in long-term detention.”
But lawyers for the plaintiffs, Carl J. Mayer and Bruce Afran, insisted that their clients had legal standing to challenge the statute — a provision of the National Defense Authorization Act of 2012 — because it interfered with their right to free speech by creating a basis to fear that they might be placed in military detention on the basis of their activities.
The provision authorizes the detention of people who are part of or “substantially supported” Al Qaeda or “associated forces.” When Congress enacted it, lawmakers said the statute merely reaffirmed, and did not expand, the existing detention powers granted a decade earlier in the authorization to use military force against the perpetrators of the Sept. 11, 2001, terrorist attacks.
But lawmakers did not specify whether Americans could be detained without trial and were vague about what kind of conduct was off limits. In September, Judge Katherine B. Forrest of Federal District Court ruled that Congress had expanded the government’s detention powers, saying the 2001 version did not cover mere supporters. A portion of her ruling suggested that the government could be held in contempt if it detained anyone under that theory.
The Obama administration appealed, arguing that her ruling was wrong and put a cloud over its existing detention authority for prisoners picked up in the Afghanistan war zone.
On Wednesday, Judge Raymond J. Lohier, an appellate court judge, pressed Mr. Loeb about whether there had been any authority before the 2011 statute that allowed the government to detain people based upon “substantial support” of a terrorist group.
“To my knowledge it has never been applied that way,” Mr. Loeb replied.
Another judge on the panel, Lewis Kaplan, questioned whether there could be any guarantee that the current policy limits on powers would always be in place.
“The executive branch has been known occasionally to change its mind, isn’t that true?” he asked.
David Rivkin, a lawyer representing three lawmakers, including Senator John McCain, Republican of Arizona, argued that the statute should be upheld because Congress, presidents of both parties and other judges had agreed that the government has, and should have, indefinite detention powers in the war against Al Qaeda.
“The political branches are speaking in unison,” Mr. Rivkin said.
This article has been revised to reflect the following correction:
Correction: February 7, 2013
An earlier version of this article misstated the fiscal year of the National Defense Authorization Act whose indefinite detention provision is being challenged. It is 2012.
Court Urged to Reverse a Ruling on Terror
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Court Urged to Reverse a Ruling on Terror
