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Hedges and the Feinstein Amendment

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Thursday, September 13, 2012 at 10:58 AM

I don’t have a lot to add to Ben’s analysis of Judge Forrest’s decision yesterday in Hedges v. Obama, permanently enjoining section 1021(b)(2) of the FY2012 NDAA (Just to refresh our memories, that section authorizes the detention of “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”) I wrote back in May that I found the initial ruling entering a preliminary injunction “terribly perplexing,” and, to be frank, I’m still perplexed.

But suppose for a moment that, contra Ben, one accepts the central premise of Judge Forrest’s analysis, i.e., that section 1021(b)(2) of the NDAA confers detention authority not previously conferred by the AUMF (as interpreted by the D.C. Circuit). To be sure, I think this is quite a stretch as applied to the membership (“part of”) prong of 1021(b)(2). At the same time, I’m far more sympathetic–and certainly more sympathetic than Ben–with respect to the “substantially supported” prong. Indeed, I’ve written before about some of the bigger problems raised by this language, and Judge Forrest’s opinion does a very thorough job of articulating those concerns–and how they’re exacerbated by the government’s unwillingness to take a meaningful position on the potential scope of “substantial support.”

Indeed, I’m not perplexed by the theory behind Judge Forrest’s analysis, but by its application to these facts. Consider section 1021(e) of the NDAA, a.k.a. the “Feinstein Amendment”:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

As Marty and I explained in this post, the entire point of the Feinstein Amendment was to quell concerns that the NDAA might covertly authorize the detention of U.S. citizens or other individuals within the United States. It did so by emphasizing that it merely preserved the (entirely ambiguous) status quo in such cases. This proviso didn’t resolve the scope of the government’s authority to detain such individuals; it merely provided that the NDAA didn’t change that question in any meaningful way.

As such, the Feinstein Amendment appears to necessarily foreclose the argument that what’s “new” in the NDAA could encompass any power to detain individuals covered by section 1021(e), i.e., “United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Such individuals might still be subject to detention under the AUMF, but thanks to the Feinstein Amendment, only under the AUMF. And so, to the extent that Judge Forrest’s analysis turns on the conclusion that the NDAA confers detention authority not provided by the AUMF, one would think she’d have to explain why the Feinstein Amendment doesn’t limit the “newness” of the NDAA exactly to those individuals with less clearly established constitutional rights, e.g., non-citizens arrested and detained outside the territorial United States.

To be fair, the Feinstein Amendment is mentioned in the opinion–in footnote 40 on pages 95-96. But that footnote dismisses the amendment merely as a “saving clause,” and, without analysis, concludes that it doesn’t apply to First Amendment claims because “That saving clause . . . relates only to detention, specifically.” To my mind, this misses the point: properly read, the Feinstein Amendment expressly disavows the very power Judge Forrest holds to implicate the First Amendment, i.e., the power to detain “United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

I still think the substantial support language causes other problems as applied to non-citizens picked up overseas, especially insofar as it un-tethers detention authority from those directly responsible for the September 11 attacks. But those are mostly policy concerns, and not concerns grounded in the First Amendment–the basis on which Judge Forrest has enjoined section 1021(b)(2). And to the extent that this issue will continue to be the focus of the conversation over the NDAA, it will only further distract everyone’s attention from the very real and serious questions the NDAA raises with regard to the extraterritorial geographic and substantive expansion of the authority conferred by the AUMF… Yesterday’s decision is certainly a victory for those who believe the NDAA does authorize the detention of individuals like the Hedges plaintiffs. For the rest of us, it is unfortunate insofar as it wrongly suggests that that’s where the debate is–and should be.