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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT Docket Number(s): Motion for:

12-3176, 12-3644

Caption [use short title]

leave to participate in oral argument

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

Set forth below precise, complete statement of relief sought:

Leave for Amici Curiae Senators John McCain,

Lindsey Graham, and Kelly Ayotte to participate

in oral argument and be allotted 10 minutes of oral argument time.

MOVING PARTY: Amici Senators 9 Plaintiff 9 Defendant 9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY: OPPOSING PARTY:

(1) Obama, (2) Hedges

David B. Rivkin, Jr.

OPPOSING ATTORNEY: (1) [name of attorney, with firm, address, phone number and e-mail]

Robert Loeb, (2) Carl Mayer

1050 Connecticut Ave., N.W. Suite 1100 Washington, D.C. 20036 (202) 861-1731 / drivkin@bakerlaw.com
Court-Judge/Agency appealed from: Please check appropriate boxes: Has movant notified opposing counsel (required by Local Rule 27.1): 9 Yes 9 No (explain): Appellants take no position,

(1) Room 3613, 950 Penn. Ave NW, Wash., DC 20530 (202) 514-4332, robert.loeb@usdoj.gov (2) 1040 Ave of the Americas, Ste2400, NY, NY 10018 (212) 382-4686, carlmayer@aol.com

United States District Court for the Southern District of New York, Hon. Forrest
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has request for relief been made below? 9 Yes 9 No Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency:

appellees did not respond to inquiry

Opposing counsels position on motion: 9 Unopposed 9 Opposed 9 Dont Know Does opposing counsel intend to file a response: 9 Yes 9 No 9 Dont Know Is oral argument on motion requested? Has argument date of appeal been set?

9 Yes

9 No (requests for oral argument will not necessarily be granted)

9 Yes 9 No If yes, enter date:__________________________________________________________

Service by: 9 CM/ECF

Signature of Moving Attorney: 12/26/2012 /s/ David B. Rivkin, Jr. ___________________________________Date: ___________________

9 Other [Attach proof of service]

ORDER IT 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)

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Nos. 12-3176, 12-3644

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CHRISTOPHER HEDGES, Daniel Ellsberg, Jennifer Bolen, 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 Panetta, individually and in his capacity as the executive and representative of the Department of Defense, Defendants-Appellants. On Appeal from the United States District Court for the Southern District of New York, Case No. 12-cv-331 Motion for Leave for Amici Curiae Senators John McCain, Lindsey Graham, and Kelly Ayotte To Participate in Oral Argument DAVID B. RIVKIN, JR. LEE A. CASEY ANDREW M. GROSSMAN BAKERHOSTETLER LLP 1050 Connecticut Ave., NW Suite 1100 Washington, D.C. 20036 (202) 861-1731 Fax: (202) 861-1783 drivkin@bakerlaw.com

Counsel for Amici Curiae

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Pursuant to Federal Rule of Appellate Procedure 29(g), Amici Curiae 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 Declare War Clause.1 Senate Amici played a leadership role in the drafting and enactment of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest 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

Appellants take no position on the relief sought in this Motion. On December 19, 2012, counsel for the Senate Amici asked counsel for the Appellees for their position on this Motion but have received no response.
1

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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 purpose of NDAA 1021. As described in the Senate Amicis brief, Section 1021 was intended as an affirmation of a portion of the Presidents 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 Presidents choices regarding detention in several high-profile incidents. This policy disagreement drove the enactment of Section 1021 and, filtered through negotiations with the Administration and vigorous congressional debate, shaped its ultimate language and structure. This context and history is essential to understanding how the NDAA applies (or, rather, 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 possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congresss power to authorize exercise of the Presidents war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants 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 institutional interests. The Senate Amici also have a direct and distinct interest in the issues, 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 canon, 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 Appellants, 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 action 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 substantial interests in the casefor example, when interpretation of an agencys regulations is raised in a private matterthe Court should allow 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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CONCLUSION 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. LEE A. CASEY ANDREW M. GROSSMAN BAKERHOSTETLER LLP 1050 Connecticut Ave., NW Suite 1100 Washington, D.C. 20036 (202) 861-1731 Fax: (202) 861-1783 drivkin@bakerlaw.com

Counsel for Amici Curiae

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was filed electronically with the Court by using the CM/ECF system on the 26th day of December 2012. Participants in the case who are registered CM/ECF users will be served through the CM/ECF system.

Dated: December 26, 2012

/s/

David B. Rivkin, Jr. David B. Rivkin, Jr.