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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): Caption [use short title]

Motion for:

et forth below precise, complete statement of relief sought:

MOVING PARTY: OPPOSING PARTY:

9 Plaintiff 9 Defendant

9 Appellant/Petitioner 9 Appellee/Respondent

MOVING ATTORNEY: OPPOSING ATTORNEY:

[name of attorney, with firm, address, phone number and e-mail]

Court-Judge/Agency appealed from:

lease check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? 9 Yes 9 N

9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes 9 N

Requested return date and explanation of emergency:

Opposing counsels position on motion:

9

Unopposed9

Opposed9

Dont KnowDoes opposing counsel intend to file a response:

9 Yes 9 No 9 Dont Know

s oral argument on motion requested? 9 Yes 9 No (requests for oral argument will not necessarily be granted)

Has argumentdate of appeal been set? 9 Yes 9 No If yes, enter date:_______________________________________________________

ignature of Moving Attorney:

__________________________________Date: ___________________ Service by: 9 CM/ECF 9 Other [Attach proof of service]

ORDER

T IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

CATHERINE OHAGAN WOLFE, Clerk of Court

Date: _____________________________________________ By: _____________________________________________

Form T-1080 (rev. 7-12)

Case: 12-3176 Document: 154 Page: 1 12/26/2012 801464 8

12-3176, 12-3644

leave to participate in oral argument

Leave for Amici Curiae Senators John McCain,Lindsey Graham, and Kelly Ayotte to participate

Hedges, et al., v. Obama, et al.

n oral argument and be allotted 10 minutes of oral

argument time.

Amici Senators (1) Obama, (2) Hedges

1050 Connecticut Ave., N.W.

(1) Robert Loeb, (2) Carl Maye

(1) Room 3613, 950 Penn. Ave NW, Wash., DC 20Suite 1100 (202) 514-4332, [email protected], D.C. 20036 (2) 1040 Ave of the Americas, Ste2400, NY, NY 10(202) 861-1731 / [email protected] (212) 382-4686, [email protected]

United States District Court for the Southern District of New York, Hon. Forrest

Appellants take no position,a ellees did not res ond to in uir

av . v n, r.

s/ David B. Rivkin, Jr. 12/26/2012


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CHRISTOPHER HEDGES, Daniel Ellsberg, JenniferBolen, Noam Chomsky, Alexa OBrien, US Day of Rage,

Kai Wargalla, Hon. Birgitta Jonsdottir M.P.,Plaintiffs-Appellees,

v.BARACK OBAMA, individually and as

representative of the United States of America, Leon Pan-etta, individually and in his capacity as the executive and

representative of the Department of Defense,Defendants-Appellants.

On Appeal from the United States District Courtfor the Southern District of New York, Case No. 12-cv-331

DAVID B.RIVKIN,JR.LEEA.CASEY

ANDREW M.GROSSMANBAKERHOSTETLER LLP1050 Connecticut Ave., NWSuite 1100

Washington, D.C. 20036(202) 861-1731Fax: (202) [email protected]

Counsel for Amici Curiae



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Pursuant to Federal Rule of Appellate Procedure 29(g), Amici Cu-

riae Senators John McCain, Lindsey Graham, and Kelly Ayotte (the

Senate Amici) respectfully move the Court for leave to participate in

oral argument in this case and request that they be allotted 10 minutes

oral argument time to address, in particular, the two issues presented

in their brief before the Court: the history and purpose of the statutory

provision under review and the scope of Congresss power under the De-

clare War Clause.1

Senate Amici played a leadership role in the drafting and enact-

ment of Section 1021 of the National Defense Authorization Act for Fis-

cal Year 2012 (NDAA), making them uniquely qualified to explain its

history and purpose. And as Senators, Senate Amici have a strong in-

terest in safeguarding Congresss constitutionally-prescribed role in

matters of national security and war. While the Senate Amici join the

Appellants in seeking reversal of the decision below and dismissal of

1 Appellants take no position on the relief sought in this Motion. OnDecember 19, 2012, counsel for the Senate Amici asked counsel for the

Appellees for their position on this Motion but have received no re-sponse.



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this litigation, their interests and arguments are distinct from those of

the Appellants and may aid the Court in resolution of this matter.

1. The Senate Amicis participation in oral argument is war-

ranted in light of their unique understanding of the meaning and pur-

pose of NDAA 1021. As described in the Senate Amicis brief, Section

1021 was intended as an affirmation of a portion of the Presidents de-

tention authority under the 2001 Authorization for the Use of Military

Force (AUMF). This provision was strongly opposed by the Admin-

istration, which viewed it (correctly) as a rebuke to the Presidents

choices regarding detention in several high-profile incidents. This poli-

cy disagreement drove the enactment of Section 1021 and, filtered

through negotiations with the Administration and vigorous congres-

sional debate, shaped its ultimate language and structure. This context

and history is essential to understanding how the NDAA applies (or, ra-

ther, how it does not apply) in this instance, and why the interpretation

of the Plaintiffs-Appellees and court below is incorrect.

Although the Appellants, 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



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(quite understandably) find it awkward in oral argument to address

such issues in thorough fashion. Senate Amici, however, have no such

inhibitions.

2. The Senate Amicis participation in oral argument is also

warranted due to their unique institutional interest in the Courts pos-

sible resolution of the constitutional question of the scope of congres-

sional power under the Declare War Clause. As members of the Senate,

the Senate Amici have a direct and distinct interest in preserving Con-

gresss power to authorize exercise of the Presidents war powers in

such detail and in such ways as Congress sees fit. By contrast, the Ap-

pellants chief interest is preservation of the Presidents flexibility in

the interpretation and execution of war powers authorizations, a quite

different matter and one that is in some conflict with Congresss institu-

tional interests.

The Senate Amici also have a direct and distinct interest in the is-

sues, should the Court reach them, of the limitations on Congresss

powers under the First and Fifth Amendments, the proper application

of the constitutional construction rule and constitutional avoidance can-

on, and the proper interpretation and application of congressional au-



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thorization of exercise of the war power. In other words, should the

Court move beyond the threshold justiciability issues raised by the Ap-

pellants, the Senate Amici have a unique position on Section 1021s

constitutionality, one that is distinct, and potentially in conflict with,

the Appellants argumentation. Absent participation by Senate Amici,

the views of the co-equal branch of the Federal Government whose ac-

tion is the subject of this case will go unaired.

3. Consistent with this Courts regular practice of permitting

amici to participate in oral argument where they have distinct and sub-

stantial interests in the casefor example, when interpretation of an

agencys regulations is raised in a private matterthe Court should al-

low the Senate Amici to participate in this instance. See, e.g., Kuhne v.

Cohen & Slamowitz, LLP, 579 F.3d 189 (2d Cir. 2009); New York State

Restaurant Assn v. New York City Bd. of Health, 556 F.3d 114 (2d Cir.

2009); Industrial Risk Insurers v. Port Authority of N.Y. and NJ, 493

F.3d 283 (2d Cir. 2007); Lopez Torres v. New York State Bd. of Elec-

tions, 462 F.3d 161 (2d Cir. 2006); Eastman Kodak Co. v. STWB, Inc.,

452 F.3d 215 (2d Cir. 2006); Gerosa v. Savasta & Co., Inc., 329 F.3d 317

(2d Cir. 2003).



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For the foregoing reasons, the Senate Amici respectfully request

that the Court grant leave for their participation in oral argument and

allot them 10 minutes of oral argument time.

Respectfully submitted,

/s/ David B. Rivkin, Jr.DAVID B.RIVKIN,JR.LEEA.CASEY

ANDREW M.GROSSMANBAKERHOSTETLER LLP1050 Connecticut Ave., NWSuite 1100Washington, D.C. 20036(202) 861-1731Fax: (202) [email protected]

Counsel for Amici Curiae



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I hereby certify that a true and correct copy of the foregoing Mo-

tion was filed electronically with the Court by using the CM/ECF sys-

tem on the 26th day of December 2012. Participants in the case who

are registered CM/ECF users will be served through the CM/ECF sys-

tem.

Dated: December 26, 2012 /s/ David B. Rivkin, Jr.David B. Rivkin, Jr.


nda a senator sarg mot n

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