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About That Injunction in Hedges

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Thursday, September 13, 2012 at 12:06 PM

There are a lot of questions one could ask about yesterday’s order in Hedges, to put it mildly.  I’ll limit myself to this one: exactly what is the scope of Judge Forrest’s permanent injunction?  (Steve asked posed a similar question, about the preliminary relief that the district court entered some time back.)

Plaintiffs challenged—and the litigation dealt mostly with–the “substantially supported” language contained in Section 1021(b)(2) of the NDAA.  It thus stands to reason that the government would lose only the powers conferred by that phrase, but not other parts of the law that Plaintiffs did not attack— in particular, the authority conferred by Section 1021(b)(2)’s “part of” language.  (The latter happens to do most of the work in the government’s military detention program.)

Parts of the opinion indeed suggest a narrower injunction, one limited to the “substantially supported” clause only.  For example, early in its ruling, the district court cautions the government that any attempt to detain pursuant to the “substantially supported” phrase could trigger a contempt action—at which the government “will bear a heavy burden indeed.”  There’s also this sentence near the tail end of Judge Forrest’s order: “[m]ilitary detention based on allegations of ‘substantially supporting’ the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2).” So far so good, and apparently not concerned with “part of” detention, or other facets of 1021(b)(2).    

Yet elsewhere in the opinion we find broader language.  Take the order’s concluding section, which begins as follows: “[f]or the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2), in any manner, as to any person” (emphasis added).  Or consider the penultimate sentence in the order—that immediately preceding the Court’s instructions to the Clerk.  This says “[n]o detention based on § 1021(b)(2) can occur” (emphasis added).  That takes “part of” off the table, along with “associated forces” and related language elsewhere in the provision.

So overall, do the circumstances point to a narrower injunction?  Yeah.  But could you make a case for a broader injunction, one that might well lead to the (quite serious) consequences Ben identified?  It sure looks that way: according to yesterday’s ruling, “no” detentions under Section 1021(b)(2) “can occur,” at least not for the time being.  It seems that neither the passage of time, nor the case’s litigation and resolution, have done much to resolve some of the problems that Steve noted during the case’s early stages.

All the more reason for the government to seek some clarity, soon, about what is and what is not enjoined.  Or to get a stay from the Second Circuit, pronto.

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