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3 senators want in on detention arguments

Three Republican senators are asking that their lawyer be allowed to make a presentation when a federal appeals court hears oral arguments on the scope of a provision regarding law-of-war detention that Congress passed last year.

Sens. John McCain of Arizona, Lindsey Graham of South Carolina and Kelly Ayotte of New Hampshire filed a formal motion Wednesday asking the U.S. Court of Appeals for the Second Circuit to allocate them argument time in the case of Hedges v. Obama.

In September, U.S. District Court Judge Katherine Forrest granted a motion by several American journalists, scholars and human rights advocates to block the use of Section 1021 of the National Defense Authorization Act against them. They said they feared the provision opened the door to indefinite detention of Americans who have contact with groups or individuals considered to be terrorists by the U.S. Government. However, the 2nd Circuit blocked Forrest's order pending an appeal.

In the motion filed Wednesday (and posted here), lawyers for the three senators argue they have a different perspective on the issue than the Obama Administration.

"Section 1021 was intended as an affirmation of a portion of the President’s detention authority under the 2001 Authorization for the Use of Military Force ('AUMF'). This provision was strongly opposed by the Administration, which viewed it (correctly) as a rebuke to the President’s choices regarding detention in several high-profile incidents," lawyers David Rivkin, Lee Casey and Andrew Grossman wrote.

"Although [Justice Department lawyers for the Obama Administration], in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions," the senators' attorneys wrote. "Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired."

Unmentioned in the motion is that the three senators may not necessarily represent the views of the Senate as a whole or even a majority of that body. It has shown itself to be divided on some detention-related issues and in some cases senators voting for the same measure have publicly disagreed about its effect.