Lawfare › Why Hedges v. Obama is Terribly Perplexing

Update 5/26/2012  The government must have been reading the criticisms for they filed for reconsideration explaining .... http://www.lawfareblog.com/2012/05/government-motion-for-reconsideration-in-hedges/

More on Hedges v Obama

Quote: In short, the government refused to concede at argument that it would not seek to detain individuals like the plaintiffs under section 1021(b)(2), even though such a concession would (probably) have made short work out of the plaintiffs’ injury-in-fact. As Judge Forrest recounts at pp. 33-34:

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

Put another way, the government could have made this case go away, and it didn’t. And so as perplexing as the injunction entered by Judge Forrest is, I’m even more perplexed by why the government allowed things to come to such a pass.

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