Per Ben‘s and Bobby‘s responses to my post from earlier this week, I think one point needs to be made crystal clear: If Ben and Bobby are correct, then the phrase “substantial support” in the March 13 brief and section 1021(b)(2) of the FY2012 NDAA should be understood as a proper subset of “material support” in those situations in which the laws of war would authorize detention. That’s why it’s not vague–in their view, it is relatively easy to understand the outer parameters of the definition, especially after the Supreme Court’s discussion of the relationship between “material support” and the First Amendment in Holder v. Humanitarian Law Project. (Otherwise, i.e., if “substantial support” is not a subset of “material support,” the logic of their analyses breaks down, and the vagueness of “substantial support” remains a very real and serious issue in Hedges.)

To be sure, I’m not sold that this logical relationship is what the Obama Administration or Congress intended; in my view, these two terms of art may well be ships crossing in the night. But if Ben and Bobby are right then it must necessarily follow that the government can only detain individuals based upon “substantial support” to (as opposed to membership in) al Qaeda, the Taliban, or associated forces if two things are true: (1) the government can prove that the individual’s conduct constitutes “material support” as defined in 18 U.S.C. 2339A(b); and (2) the individual’s conduct subjects him to military detention under the laws of war. [Of course, other qualifications would come into play if the individual is a U.S. person, including the other potential statutory and constitutional limits on such detention and the HLP issue, i.e., whether the "material support" is independent advocacy protected by the First Amendment.]

If that‘s what section 1021(b)(2) means by “substantial support,” then I’m with Ben and Bobby that Hedges really starts to look like the wrong case, since the conduct at the heart of the plaintiffs’ complaint is, per HLP, not subject to prosecution under 2339B. But is the government willing to accept this (potentially significant) limitation on the scope of “substantial support”? And even if the government isn’t, is the Second Circuit?

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