Lawfare

Announcing Lawfare's First E-Book: Lawfare on the National Defense Authorization Acts

By Benjamin Wittes, Alan Z. Rozenshtein
Monday, June 24, 2013, 6:02 AM

We are very pleased to announce Lawfare's first e-book, Lawfare on the National Defense Authorization Acts, which is now available in Kindle format on Amazon for $4.99. The book, edited and with a narrative introduction by Alan, is a collection of 114 of Lawfare's previously published posts on the 2011–2013 NDAAs and the Southern District of New York's decision in Hedges v. Obama. We hope that by bringing together our most important posts in one convenient, easy-to-read format, we'll be able to bring Lawfare's analysis and commentary to new readers and make it more useful to our existing ones. And because the NDAAs and the caselaw and executive-branch practice surrounding them are constantly evolving, we plan on releasing periodic updates to this book as events warrant. Please send any corrections, comments, and suggestions to [email protected].

Below the fold, we've included a copy of the introduction (with internal links removed), to give you a sense of the book's contents and organization. Words and phrases in bold represent links to the actual posts included in the book. We hope you like it!

 

Introduction

The National Defense Authorization Act (NDAA) is an annual federal law that specifies the budget of the Department of Defense (DOD) and the armed forces. NDAAs often have a wide scope (the 2013 NDAA runs over 680 pages) and impact civil liberties. In particular, recent battles over military detention have been waged within the legislatives confines of NDAAs. For example, the Military Commissions Act of 2009,1 which completely overhauled the Guantánamo Bay military commissions, was passed as Title XVIII of the 2010 NDAA.2 Likewise, the 2011–2013 NDAAs' detention provisions—the main subject of this book—generated far more controversy and attention than the surrounding thousands of pages of appropriations provisions.

The debates about the NDAAs have often created more heat than light, however. Critics have often focused on the wrong parts of the legislation, latching onto provisions that seem alarming on their face but in fact leave the status quo unchanged. And they have frequently ignored those provisions that create real, and often damaging, changes. During the Senate debates over the 2012 NDAA, an exasperated Lindsey Graham (R-SC) all but begged detractors to "please read the damn bill."3 At the minimum, we at Lawfare have tried to do just that. Over the past two-and-a-half years, we have published over a hundred posts on the NDAAs and related legal developments, including the Southern District of New York's important decision in Hedges v. Obama enjoining part of the 2012 NDAA. We have sought first and foremost to provide accurate and unbiased description and analysis. Lawfare on the National Defense Authorization Acts is our attempt to bring the most important of these posts together into one convenient format. This book is not meant to be the definitive guide to the legislative history of the NDAAs (though Lawfare covered virtually all of it), nor does it capture every single debate commentators had about the laws. Rather, it surveys what we consider to be the most important counterterrorism issues surrounding the NDAA. We hope it will be useful to policymakers, journalists, academics, students, and the general public—anyone interested in the war on terror's legal regime, and who values facts and analysis over rhetoric and bluster.

How To Use this Book

You can navigate this book in two ways. The best option is to use this introduction. It is both a narrative table of contents as well as a backgrounder that provides both the history and context behind the NDAAs. Because this book contains many (114) entries, the most important ones have been marked off in bold and asterisked. If you're short on time, start with these posts. You can also use the list of posts. Because the list of posts is meant more as a reference index than the primary navigation tool, you'll find it easier if you start with this introduction and read the posts that interest you as you come across them listed here. Both the list of posts and the posts themselves are listed in chronological order within each section of the book. This introduction, by contrast, tries to bring narrative coherence to the posts, and so deviates a bit from strict chronological order.

A note on the formatting of these posts: Inline hyperlinks to other Lawfare posts that are themselves included in the book have been preserved. Just click on them to go to the referenced post's location in the book. All other hyperlinks have been turned into endnotes, which follow each post. In addition, each post has three links following it: (1) to the online version of the post, (2) to the location in the introduction where the post is mentioned, and (3) to the post's location in the list of posts. The posts have also been (very) lightly edited for typos, spelling mistakes, etc. They are otherwise unchangd.

Because Congress passes a new NDAA each year, and because the executive branch and the courts will continue to interpret, implement, and add to the law, this book is a perpetual work in progress. We at Lawfare plan to release periodic updates as events warrant. Please send corrections, comments, and suggestions to ND[email protected].

The 2011 NDAA

The 2011 NDAA4 imposed a number of restrictions on the President's power to detain terrorists.5 These restrictions grew out of three developments.6

First, President Obama promised during the campaign and announced shortly after his inauguration that he would close the detention camp at Guantánamo Bay. Congress responded by prohibiting the transfer or release of Guantánamo detainees to the United States. Congress made an exception, however, for criminal prosecution, reflecting the Obama Administration's public intention to try the 9/11 terrorists in federal court.7

Second, the federal government suffered what many considered to be a defeat in its prosecution of Ahmed Ghailani, an al-Qaeda terrorist and the first Guantánamo detainee to be tried in federal court. Ghailani—who was prosecuted for his involvement in the 1998 U.S. embassy bombings in Dar es Salaam and Nairobi that killed hundreds of people—was convicted by a jury of conspiracy to destroy government property, but was acquitted on the rest of the more-than-280 charges the government brought.8 This surprising result was due in part to the trial judge's exclusion of a key government witness's testimony that he had supplied Ghailani explosives, on the grounds that the government had been led to the witness when Ghailani offered up his name while being tortured.9 Although Ghailani was ultimately sentenced to life in prison, the government's difficulties in prosecuting him—both in admitting evidence tainted by torture and then ultimately convincing a jury of his guilt—cast doubt on the Obama administration's larger goal of trying Khalid Sheikh Mohammed, the "mastermind" behind the 9/11 attacks, in civilian court.10

Third, shortly after the Ghailani verdict, the Director of National Intelligence released a report to Congress that stated that nearly a quarter of all detainees released from Guantánamo were either confirmed to have or suspected of having reengaged in terrorist activities.11 The report gave further ammunition to those opposed to President Obama's plan to close Guantánamo. As then–Senate Intelligence Committee Vice Chairman Kit Bond (R-MO) argued, "It is unacceptable to continue transferring these dangerous detainees when we know that one in four are confirmed or suspected of returning to the fight."12

These factors, combined with the precedent of previous Guantánamo-detainee restrictions, culminated in the first real battle between President Obama and Congress over Guantánamo detention: the 2011 NDAA. The law imposed a blanket ban on expending DOD funds to transfer Guantánamo detainees to the United States, and sharply restricted transfers to foreign countries. It implemented an onerous certification process, including requiring the host country to share intelligence information with the United States and monitor the transferred detainees indefinitely.13 These restrictions meant that many of the detainees, even those the government no longer viewed as dangerous, had no realistic chance of ever leaving Guantánamo.

Lawfare commented on these and other features of the statute. When Congress passed the 2011 NDAA, Jack Goldsmith evaluated President Obama's options. He concluded that President Obama's least-bad option, and the only he would most likely take, would be to accept the transfer restrictions while attaching a signing statement expressing policy disagreement with them. Goldsmith's prediction proved correct, and President Obama signed the 2011 NDAA with a signing statement that supported trying terrorists in civilian courts, criticized the foreign-country transfer restrictions, and expressed his "strong objections" to the detention provisions. President Obama promised to "work with the Congress to seek repeal of these restrictions, . . . seek to mitigate their effects, and . . . oppose any attempt to extend or expand them in the future."14 Benjamin Wittes considered* the broad question of whether signing statements are appropriate, and was overall unimpressed with the President's message, calling it a "whining statement" and a "show of extraordinary weakness." Goldsmith agreed* with Wittes's assessment and noted that, despite the "sharp rhetoric of the policy objections," the Obama Administration had not "expended any real political capital in support of its supposed commitment to close [Guantánamo] and conduct civilian trials for terrorists." He compared the Obama Administration's lackadaisical approach with the Bush Administration's vigorous defense of executive power during negotiations over signature war-on-terror laws like the Detainee Treatment Act of 200515 and the Military Commissions Act of 2006.16

The 2012 NDAA

In January 2011, Representative Buck McKeon (R-CA), the new chairman of the House Armed Services Committee (HASC), began pushing to expand Guantánamo, as Wittes noted with surprise. But the fight over detention policy began in earnest in March, when McKeon and Senator John McCain (R-AZ) introduced the Detainee Security Act and the Military Detainee Procedures Improvement Act in the House and Senate, respectively. These bills were designed to shift responsibility for detaining terror suspects from domestic law enforcement to the military. As one commentator noted, "[t]he clear goal of the two bills was to require that suspected terrorists either be tried before military commissions or be held in indefinite detention without charge."17 The bills accomplished this goal by extending the 2011 NDAA's transfer restrictions and, subject to a waiver by the Secretary of Defense, mandating military detention for prisoners captured pursuant to the 2001 Authorization for Use of Military Force (AUMF).18 The bill also contained what was essentially a reauthorization of the AUMF. The language that ultimately passed in the House explicitly identified al-Qaeda, the Taliban, and "associated forces" and "direct[] supporte[rs]" as within the scope of congressionally authorized military force and granted the President the authority to "detain belligerents . . . until the termination of hostilities."

When McKeon introduced his version of the bill, Wittes praised* its AUMF reauthorization but criticized the mandatory-detention provisions and the detainee-transfer restrictions. By early May, the House bill had undergone substantial changes. While the detainee-transfer restrictions remained, the mandatory-detention provisions had been removed, for which Wittes commended McKeon. Wittes also emphasized, in a post* criticizing what he called the New York Times's "shrill and ill-informed" position, that the bill's AUMF reauthorization would not dramatically expand the scope of the original AUMF. For his part, Bobby Chesney noted that, while adding al-Qaeda and the Taliban didn't change the status quo, the language regarding associated forces and supporters could be a substantial shift. Human Rights First lawyer Daphne Eviatar wrote in* to rebut Wittes and argue that the House AUMF reauthorization was in fact a considerable increase in the AUMF's scope. This occasioned two responses from Wittes, followed by responses from Chesney and Daphne Eviatar. Chesney also wrote two posts imagining some plausible counterterrorism and military scenarios that would require an updated AUMF, while Wittes concluded the discussion with some final thoughts. Chesney also surveyed the House bill's cybersecurity and cyberwarfare provisions.

Two days before the House vote, the White House threatened a veto, citing the detention and AUMF-reauthorization provisions.19 (As Wittes noted, however, the administration curiously did not threaten to veto identical detainee-transfer restrictions in a Department of Homeland Security appropriations bill that came along at the same time.) Wittes saw the veto threat as unwarranted, given that the House bill "largely codifies the administration's existing positions." On May 26, 2011, despite the President's veto threat, the House bill, which had been added to the 2012 NDAA, passed by a vote of 322 to 96, with Democrats split and all but 12 Republicans voting yes.

Meanwhile, the Senate bill began its own road to passage. While similar to the original House bill, Wittes noted that it "actually outflank[ed] Obama from his Left—probably unintentionally," by requiring additional procedural protections for detainees held anywhere, not just at Guantánamo. By late June, it had lost its AUMF reauthorization but kept the mandatory-detention provisions and detainee-transfer restrictions, both of which Wittes criticized*. Wittes also wrote a series of posts in which he went through the Senate bill in detail, focusing on how its detainee-transfer restrictions compared to the House version, as we all as its military-detention requirement and its process for long-term-detainee status determinations. Trevor Morrison questioned how mandatory the mandatory-detention provisions really were, and Guantánamo habeas lawyer David Remes wrote in to declare the detainee-transfer restrictions "irredeemably flawed."

With the House bill passed and the Senate bill moving in that direction, Wittes offered* the Obama Administration some advice: tell Congress what you want, prioritize your objections, and put out a strong veto threat. Meanwhile, the HASC held a hearing on detainee legislation, at which Chesney testified.20 Chesney left that hearing feeling much better about the possibility of compromise between the administration and Congress on detainee legislation.

All was quiet on the NDAA front through the rest of the summer and early fall. (Though, as Wells Bennett noted, McKeon tried to jump the gun in mid-July by complaining that the Obama Administration's decision to try terror-suspect Mohammed Warsame in civilian court "contradict[ed] pending legislation.") The battle was rejoined in October, when DOD General Counsel Jeh Johnson gave a speech criticizing the detainee-transfer restrictions in the 2012 NDAA bills.21 Wittes read Johnson's speech as suggesting that the Obama Administration might be willing to accept an updated AUMF. Soon after, McKeon sent President Obama a letter defending the House NDAA's detainee-transfer restrictions.22 At the same time, attention began to focus on the NDAA provisions (specifically § 1031) that would expand the government's existing detention power, both at home abroad. Steve Vladeck (before he joined Lawfare) argued that the NDAA dramatically expanded the government's detention authorities.23 Chesney disagreed, prompting responses from Vladeck24 as well as from Human Rights First lawyer Raha Wala.

The Senate continued its slow march toward passage. In mid-November, the Senate Armed Services Committee released a new version of the NDAA, which Chesney analyzed in two posts. Wittes wasn't the only one who was unimpressed with the mandatory-detention provisions and detainee-transfer restrictions. The Obama Administration threatened to veto the Senate bill, stating, "Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto."25 Wittes commended the Administration for finally putting its money where its mouth was, while Goldsmith doubted* the veto threat's credibility. Meanwhile, Daphne Eviatar criticized the NDAA's detention provisions, connecting them to what she characterized as the detention system's "complete lack of due process," as demonstrated in the D.C. Circuit's decisions in Latif v. Obama.26

The Senate passed the NDAA on December 1 by a vote of 93 to 7. The prior week saw a flurry of amendments, almost all of which failed. Senator Mark Udall (D-CO) offered one that would strip away the detention-related provisions of the NDAA pending further review. Wittes reluctantly supported it, noting:

While I would prefer good legislation to such a binary choice, if you force me to take or reject as a package the civic housekeeping value of having Congress finally put its name behind American detention operations—which is considerable—and the very practical damage of shackling the executive branch in its handling of difficult cases, I reject the package.

The Udall amendment failed, 37 to 61. Senate Intelligence Committee Chairman Dianne Feinstein (D-CA) offered another amendment, which clarified that "[a]n authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention." It failed 45 to 55. Feinstein also offered a fallback option, which modified the mandatory-detention provisions to specify, "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States." In other words, as Chesney noted*, the amendment simply preserved the status quo, implicitly putting the burden on the courts to interpret the AUMF. This amendment passed by a vote of 99 to 1, with Arizona Republican Jon Kyl the only dissenting vote.

In the wake of the Feinstein amendments, and as the NDAA moved to conference, substantial focus turned to whether the NDAA did in fact authorize the indefinite detention of U.S. citizen, and whether it required mandatory military detention for certain non-citizen terrorist suspects. Chesney wrote a series*of*articles exploring this question. His ultimate conclusion was that the "Senate version of the NDAA is neutral regarding US citizens in the U.S., but certainly can be read to provide clearer statutory authority to encompass citizens abroad."

The detainee-transfer restrictions remained a target of criticism. Roger Williams School of Law professor Peter Margulies wrote in to predict that the provisions would hamper extradition effort. John Bellinger posted a summary of an article27 he had written with Matt Waxman for the Council on Foreign Relations, arguing:

This year's National Defense Authorization Act so far has been a missed opportunity for the Executive branch and Congress to work together and put U.S. detention policy on sounder footing for the long term. . . . This legislation, if enacted, will make it even harder for this and the next president to achieve lasting solutions.

Meanwhile, Wittes offered two side-by-side*comparisons* of the House and Senate NDAAs. The conference committee released its report on December 13, which Wittes summarized. The most important changes were: (1) a watered-down AUMF reauthorization that only covered law-of-war detention; and (2) substantially weakened mandatory-detention provisions (which, as Chesney observed, would still permit civilian trials of captured terrorist suspects). The detainee-transfer restrictions survived. Wittes predicted that the changes in the conference report were "just enough to avoid a veto," and he was right; Press Secretary Jay Carney released a statement the next day, in which the Administration pulled its veto threat, citing the "removal of problematic provisions." However, Vladeck criticized* the conference report for not resolving the ambiguity around detention authorities. Chesney wrote an in-depth analysis* of the bill's regulation of military activities in cyberspace.

The House and Senate passed the conference report in short order—the House on December 14 and the Senate on December 15. On the same day that the Senate passed the NDAA, Feinstein, still concerned about the detention of U.S. citizens and permanent residents, introduced the Due Process Guarantee Act of 2011.28 The bill provided, "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention." Both Vladeck and Wittes approved of the law. Although the Senate Judiciary Committee held a hearing on the bill in February (at which Vladeck testified29 and about which he later wrote), it ultimately went nowhere.

Once Congress sent the 2012 NDAA to President Obama, the Lawfare team went to work evaluating its ultimate form. Wittes and Chesney wrote a widely read FAQ*, and Vladeck and former Office of Legal Counsel attorney Marty Lederman wrote two*posts* on the NDAA and the laws of war.30 Wittes and Chesney's FAQ prompted responses from Raha Wala* and Stephen Voss, a professor of philosophy at Bogazici University is Istanbul.

President Obama signed the NDAA into law on New Year's Eve, 2011. He attached a signing statement outlining his objections to the law.31 These included policy objections to various portions of the law, including to the mandatory-detention provisions, which President Obama vowed to "interpret and implement . . . in the manner that best preserves the same flexible approach" taken prior to the 2012 NDAA. President Obama also raised constitutional objections, including one targeted at the Guantánamo detainee-transfer restrictions. The restrictions, according to President Obama, "would, under certain circumstances, violate constitutional separation of powers principles."32 Bennett noted that President Obama raised these constitutional objections for the first time in his December 25 signing statement accompanying the 2012 budget bill, which contained detainee-transfer restrictions similar to those in the 2012 NDAA. Wittes praised the NDAA signing statement as "adopt[ing] plausible interpretations" of the NDAA.

Now that the 2012 NDAA had been signed into law, it was time to implement its provisions. Chesney analyzed how a planned transfer of five Taliban detainees from Guantánamo to Qatar would work under the newly enacted detainee-transfer restrictions. And, in a move that surprised no one, the Administration released a set of procedures33 that, as Wittes noted* and approved of*, read the NDAA's mandatory-detention provisions virtually out of existence.

April saw two interesting moves from the right to limit the 2012 NDAA's domestic-detention authorization. First, a group of House Republicans proposed the "Right to Habeas Corpus Act," the purpose of which was "[t]o state that nothing in the [AUMF] or [2012 NDAA] shall be construed to deny the availability of the writ of habeas corpus for any person" detained under the AUMF. Although conceding that it was "well-intentioned," Vladeck called the bill "silly, utterly unnecessary, and perhaps even counterproductive." Second, the Virginia legislature passed a bill prohibiting any member of Virginia law enforcement or government from assisting the federal government with domestic detention under the 2012 NDAA. This prompted Wittes to wonder if the Virginia General Assembly had forgotten about the Supremacy Clause. Wittes's post generated some responses, including a partial defense from Waxman. Virginia Governor Bob McDonnell signed a slightly narrowed version of the General Assembly bill, which occasioned a debate between attorney David Rivkin and former Bush Department of Defense official Cully Stimson on the one hand and, and David Remes on the other.

And with that, the long, complicated, and often-bizarre saga of the 2012 NDAA came to a close. Until, that is, the battle over detention policy moved to the courts.

The Hedges Decision

On January 13, 2012, a group of journalists and human-rights activists sued in the Southern District of New York to enjoin § 1021(b)(2) of the 2012 NDAA. That section "affirm[ed]" the government's detention authority under the AUMF as to any "person who was 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." Christopher Hedges, a well-known war correspondent for the New York Times and other news outlets, led the lawsuit. Other plaintiffs included Daniel Ellsberg, the former RAND analyst who leaked the Vietnam War Pentagon Papers in 1971, and MIT professor and influential left-wing intellectual Noam Chomsky. The plaintiffs argued that, because § 1021(b)(2)'s language—in particular "substantially supported" and "associated forces"—was vague, they had a legitimate fear that the U.S. government could indefinitely detain them in violation of the Fifth Amendment. And because this legitimate fear had a chilling effect on their speech, § 1021(b)(2) also violated their First Amendment rights.

On May 16, 2012, in Hedges v. Obama,34 Judge Katherine B. Forrest issued a preliminary injunction to § 1021(b)(2) (which she later clarified applied globally and was not limited to the named plaintiffs35). She held that the NDAA's detention-authorization provisions went beyond the AUMF, rather than merely affirming it. Finding that the plaintiffs had a well-founded fear of detention and therefore had standing to challenge the law, Judge Forrest held that they had established a likelihood of success on the merits of their First and Fifth Amendment claims and that an injunction would be in the public interest. She especially criticized the government for refusing to rule out § 1021(b)(2)'s application to the plaintiffs' conduct, which would have disposed of the case:

The Court's attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs' standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so—thereby ensuring standing and requiring this Court to reach the merits of the instant motion.36

As to the merits of the First Amendment claim, Judge Forrest noted:

The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs—or others—are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable—and real.37

The Lawfare contributors who wrote about the Hedges decision—Vladeck, Chesney, Wittes, and Bennett—all had a similar response: confusion at both Judge Forrest's decision and the government's handling of the case. Vladeck called* the decision "terribly perplexing" given the lack of clarity as to whom and what the injunction applied, and the government's refusal to make the case go away by stipulating that § 1201(b)(2) did not apply to the plaintiffs' conduct. Vladeck also noted that whether the plaintiffs had standing in Hedges would depend on the Supreme Court's decision in the then-pending case Clapper v. Amnesty International USA.38 Chesney was puzzled as to why Judge Forrest refused to view § 1021 as coextensive with the AUMF, especially given "cases construing the AUMF to include 'associated forces,' just like the NDAA, and plenty of dicta from the DC Circuit endorsing the 'support' test as well." He also questioned why Judge Forrest didn't interpret § 1021(b)(2) so as to protect First Amendment conduct as well as impose a scienter (intent/knowledge) requirement to the "substantial support" element. Wittes called* the decision "a particularly shoddy piece of judicial craftsmanship" and criticized Judge Forrest in particular for ignoring the D.C. Circuit's extensive interpretation of the AUMF, which he argued made clear that "there is virtually no difference at all between the detention authority authorized by the NDAA and the detention authority authorized by the AUMF as interpreted by the D.C. Circuit." Wittes also observed that the government's positions outside the litigation made clear that it would not detain individuals captured domestically at all. (In a follow-on post, Wittes noted that the government's brief referenced, however briefly, this point.) Bennett, calling the decision a "a leading candidate in the contest for 'Weirdest National Security Law Decision of the Year,'" observed that Hedges brought the suit because he felt that the NDAA augmented the government's pre-existing detention authority, but that this conflicted with Congress's "instruction that 'nothing in [Section 1021] is intended to limit or expand . . . the scope of the Authorization for the Use of Military Force.'"

On September 12, 2012, Judge Forrest issued a lengthy opinion permanently enjoining § 1021(b)(2).39 Judge Forrest reiterated many of the points she made in her May preliminary injunction—in particular § 1021(b)(2)'s vague language. She held that the plaintiffs had standing to challenge the detention provisions because the government had still not adequately clarified that § 1021(b)(2) would not apply to them. She rejected the government's argument that the NDAA merely reaffirmed, rather than expanded, the government's existing detention authorities under the AUMF. And she rebuffed, in strong language, the government's suggestion that the courts should defer to the political branches in times of war. Noting that such an approach had resulted in now-repudiated cases like Korematsu, Judge Forrest stated:

Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this Court's responsibility to safeguard the rights it has sworn to uphold. . . . [D]ue deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights.40

Judge Forrest similarly rejected habeas, as opposed to merits, review as sufficient, since habeas petitions "take years to be resolved following initial detention" and are reviewed under a lower standard of proof than are criminal proceedings.41

Bennett noted potential ambiguity in the permanent injunction's scope, and Wittes criticized* the decision as "shockingly bad." He argued it that it ignored key D.C. Circuit interpretations of the AUMF and the applicability of the laws of war to detention authority, and was dangerously overbroad in globally enjoining § 1021(b)(2). (Wittes was supported in his criticism by a government attorney who was involved with the relevant D.C. Circuit litigation, and who explained what the attorney viewed as Judge Forrest's error in more detail.) Raha Wala responded with a defense of Judge Forrest's treatment of the D.C. Circuit's detention cases, and David Remes applauded Judge Forrest's "outspoken defense of the courts as guardians of the Constitution." Wittes's response to Raha Wala (contained in the same post) was that he found Judge Forrest's ignorance of the D.C. Circuit's cases to be the opinion's most objectionable aspect.

Vladeck largely agreed with Wittes's analysis of the injunction, noting further that § 1021(e) of the NDAA (Feinstein's amendment to the 2012 NDAA)—which clarified that the NDAA's reauthorization of detention authority was not meant to alter the government's pre-existing powers with respect to U.S. citizens, lawful residents, or anyone captured domestically—seemed to foreclose Judge Forrest's expansive reading of § 1021(b)(2). Vladeck also proposed* that, while Judge Forrest's injunction might have been overbroad, "there may in fact be plausible basis on which the Second Circuit could vacate and remand [the] ruling with instructions to consider a more narrowly tailored injunction." Building on Vladeck's post, Wittes argued* that § 1021(b)(2) violated neither the First nor Fifth Amendments, and that the case would have been clearer had a plaintiff with actual standing sued. Chesney argued that the NDAA's "substantial support" language should be interpreted in the same way that "material support" is pursuant to 18 U.S.C. §§ 2339A and 2339B, and perhaps even more narrowly given the potential applicability of the law of armed conflict. Vladeck wondered if the government would be willing to accept such a limiting construction of § 1021(b)(2).

The government successfully petitioned the Second Circuit for a stay of the injunction pending appeal.42 In December 2012, the Hedges plaintiffs filed a petition for an emergency stay with Justice Ruth Bader Ginsburg, which was denied.43 They then refiled the petition with Justice Antonin Scalia. The petition, which was circulated to and considered by the entire Supreme Court, was again denied.44 The Second Circuit heard oral argument on February 6, 2013, and as of this writing has not yet announced its opinion. As Peter Margulies argued in late February, after the Supreme Court issued its decision in Clapper,45 the Court's decision "signal[s] skepticism about the challenge to the NDAA in Hedges . . . , whose lead plaintiff also figured in Clapper."

The 2013 NDAA

While the Hedges litigation challenging the detention-authorization provisions of the 2012 NDAA wound its way through court, Congress began work on the 2013 NDAA. The HASC released a draft in early May. Chesney surveyed the detention-related provisions and highlighted two requirements for executive-branch notice to Congress: when the government used ships as detention facilities (inspired by the Warsame case46) and when it transferred detainees out of the detention facility in Parwan, Afghanistan (inspired by the case of Ali Musa Daqduq47). Chesney also discussed the draft's cyber-warfare provisions. After the NDAA passed the HASC, the House considered an amendment, proposed by ranking HASC member Representative Adam Smith (D-WA), that would have repealed the mandatory-detention provisions and clarify that all individuals in the United States could only be detained pursuant to a civilian trial. (Several admirals and generals endorsed the amendment.) Morrison approved* of the Smith amendment and rebutted some objections to it. Vladeck, however, criticized* both the amendment and the 2013 NDAA as not getting at the heart of domestic detention authority, and Wittes in particular had harsh words* for the "cowardly" approach of the drafters, especially with regards to clarifying that neither the AUMF nor the 2012 NDAA were to be construed as denying habeas corpus. He also noted that the Smith amendment might have unintended consequences: preventing the closure of Guantánamo. Bennett noted* an argument against the amendment from the right, advocated by HASC Vice Chairman Mac Thornberry (R-TX): that it would take away the President's flexibility in dealing with detainees. Bennett pointed out, however, that this argument against the Smith amendment was too often advocated by people who had previously urged a limitation on the executive's detention options—e.g., by restricting the availability of civilian trials.

The Smith amendment ultimately failed on a 238-to-182, largely party-line vote. Instead, the House adopted, 243 to 173, a competing amendment sponsored by Representative Louie Gohmert (R-TX), which also clarified that the NDAA did not restrict habeas corpus, but, as Vladeck noted, created uncertainty as to whether non-citizens illegally in the United States could get access to habeas. The Gohmert amendment also potentially let the government deny detainees counsel for thirty days. Although the White House threatened to veto the House NDAA bill—largely over the detainee-transfer restrictions48—the House passed the draft 2013 NDAA on May 18 by a vote of 299 to 120.

The Senate took up the NDAA in mid-November. As Bennett noted, the Senate bill contained only two counterterrorism provisions, both extensions of two Guantánamo-related provisions in the 2012 NDAA that were due to expire at the end of 2012: the restriction on expenditures for U.S. facilities to house Guantánamo detainees, and continued restriction on transfers to foreign countries subject to the rigorous certification requirements. Oddly, though, the Senate bill did not also extend the 2012 NDAA's restrictions on releasing Guantánamo detainees into the United States. (This was later fixed via amendment.) As with the House NDAA bill, the White House objected to the detainee-transfer restrictions and threatened to veto the NDAA on those grounds.

Various senators also proposed amendments to the NDAA. Wittes noted a draft amendment by Senator Rand Paul (R-KY) circulating in mid-November that would have explicitly provided that the Sixth Amendment applied to individual captured in the United States under the AUMF. Chesney pointed out that this kind of amendment, while purporting to restrict military detention, merely imposed a set of procedural safeguards (which were in any case already guaranteed by the Constitution), and Bennett dared members of Congress opposed to citizen detention to actually restrict it, rather than simply "paint about the issue's edges." And in late November, Feinstein introduced an amendment which would clarify that authorizations for use of military force would not be construed to "authorize the detention without trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention." The Senate approved the Feinstein amendment by a vote of 67 to 29. However, as Bennett noted, senators including Armed Service Committee Chairman Carl Levin (D-MI) took the position that, despite the amendment's clear language, Congress could nevertheless authorize the detention of citizens or permanent residents captured in the United States through implication—just as the Supreme Court in Hamdi v. Rumsfeld49 had read the AUMF to implicitly give the executive branch detention authority. Vladeck took issue with Levin's argument and explained* why it was incompatible with the amendment's language. Vladeck and Marty Lederman also defended* the amendment from criticisms from the left that it would undermine protections for non-permanent-resident aliens in the United States. Waxman noted some of the risks of the amendment's citizenship-based distinctions, and Seton Hall law professor Jonathan Hafetz responded to Vladeck and Marty Lederman's post, arguing that the amendment could cause courts to construe the AUMF so as to permit the domestic detention of non-permanent-resident aliens.

The Senate considered a number of other amendments (including an unsuccessful attempt by Senator Kelly Ayotte (R-NH) to have the President either commit to Guantánamo as the long-term detention site or replace it with some other foreign substitute) before ultimately approving the NDAA bill by a unanimous, 98-to-0 vote. House and Senate negotiators soon drafted a conference bill that kept the Guantánamo-transfer restrictions but did not include the Senate version's Feinstein amendment. One notable feature of the conference version was § 1025: the House bill's notice requirement for transfers out of the Parwan detention facility in Afghanistan. Chesney argued* that this represented a "congressionalization of detention operations in Afghanistan."

The House approved the bill on December 20 by a vote of 315 to 107, and the Senate passed the bill a day later, 81 to 14. Wittes summarized the counterterrorism provisions in the 2013 NDAA and explained why it deserved a veto: "The problem with the transfer restrictions is less that they would prevent the Guantanamo closure than that they prevent reasonable dispositions of detainee cases and restrict executive flexibility in handling detainees for whom one wants all options on the table" (emphasis omitted). Nevertheless, Wittes recognized that the President would likely sign the bill. The President did so in early January, attaching what Wittes called a "meek kind of signing (whining?) statement."

 

Endnotes

1 Military Commissions Act of 2009, Pub. L. No. 118-84, tit. XVIII, 123 Stat. 2574.

2 National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 2190 (2009).

3 Raffaela Wakeman, "Please Read the Damn Bill" (Senate Debate on the NDAA), Lawfare (Nov. 21, 2011, 2:31 PM), /please-read-damn-bill-senate-debate-ndaa.

4 Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, 124 Stat. 4137.

5 The 2011 NDAA was the not the first to impose such restrictions. The 2010 NDAA, for example, prohibited using DOD funds to transfer detainees out of Guantánamo to the United States until 45 days after the President sent Congress a transfer plan for each detainee. See National Defense Authorization Act for Fiscal Year 2010, Pub. L. 114-84, § 1041, 123 Stat. 2190, 2454. The restrictions in the 2010 NDAA were, however, significantly less onerous than those in future NDAAs.

6 For a useful history of the events leading up to the 2011 NDAA detainee restrictions and from which this paragraph is drawn, see William M. Hains, Commment, Challenging the Executive: The Constitutionality of Congressional Regulation of the President's Wartime Detention Policies, 2011 B.Y.U. L. Rev. 2283, 2285–88.

7See Michael John Garcia, Cong. Research Serv., R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress 3–4 (2011).

8 Benjamin Weiser, Detainee Acquited on Most Counts in '98 Bombings, N.Y. Times (Nov. 17, 2010), http://www.nytimes.com/2010/11/18/nyregion/18ghailani.html.

9 Benjamin Weiser, No Appeal in Exclusion of Witness in Terror Trial, N.Y. Times (Oct. 10, 2010), http://www.nytimes.com/2010/10/11/nyregion/11terror.html.

10 Charlie Savage, Terror Verdict Tests Obama's Strategy on Trials, N.Y. Times (Nov. 18, 2010), http://www.nytimes.com/2010/11/19/nyregion/19detainees.html.

11 Dir. of Nat'l Intelligence, Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba (2010), available at http://www.dni.gov/files/documents/Intelligence%20Reports/120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.

12 Sara Sorcher, DNI Says 1 in 4 Prisoners Released From Guantanamo Bay Return to Terrorism, Nat'l J. (Dec. 8, 2010, 11:46 AM), http://www.nationaljournal.com/nationalsecurity/dni-says-1-in-4-prisoners-released-from-guantanamo-bay-return-to-terrorism-20101208/.

13 Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, §§ 1032–1033, 124 Stat. 4137, 4351–52.

14 Statement on Signing the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, 2011 Daily Comp. Pres. Doc. 201100010 (Jan. 7, 2011), available at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523/.

15 Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739.

16 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600.

17 Joanne Mariner, The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act, Justia (Dec. 21, 2011), http://verdict.justia.com/2011/12/21/the-national-defense-authorization-act-explained/.

18 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

19See Office of Mgmt. & Budget, Statement of Administrative Policy: H.R. 1540—National Defense Authorization Act for FY 2012 (May 24, 2011), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr1540r_20110524.pdf.

20Ten Years After the 2001 AUMF: Current Status of Legal Authorities, Detention, and Prosecution in the War on Terror: Hearing Before the H. Armed Servs. Comm., 112th Cong. (2011) (written testimony of Prof. Robert Chesney), available at http://armedservices.house.gov/index.cfm/files/serve?File_id=dd0064b1-7416-44ab-bb0c-233d20cee4ef/.

21 Jeh C. Johnson, Gen. Counsel, Dep't of Def., Speech at the Heritage Foundation (Oct. 18, 2011), available at //lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2011/10/20111018_Jeh-Johnson-Heritage-Speech.pdf.

22See Letter from Howard P. "Buck" McKeon, Chairman, House Armed Servs. Comm., to Barack Obama, President (Oct. 20, 2011), available at //lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2011/10/McKeon-Letter.pdf.

23 Stephen I. Vladeck, The War on Terrorism Congress Never Declared—But Soon Might, Am. Const. Soc'y (Nov. 1, 2011), http://www.acslaw.org/acsblog/the-war-on-terrorism-congress-never-declared-%E2%80%94-but-soon-might/.

24 Steve Vladeck, Bobby Chesney on Me on the NDAA, PrawfsBlog (Nov. 4, 2011, 9:45 AM), http://prawfsblawg.blogs.com/prawfsblawg/2011/11/bobby-chesney-on-me-on-the-ndaa.html.

25 Office of Mgmt. & Budget, Statement of Administrative Policy: S. 1867—National Defense Authorization Act for FY 2012 (Nov. 17, 2011), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf.

26 666 F.3d 746 (D.C. Cir. 2011).

27 Matthew C. Waxman & John B. Bellinger III, A Problematic Terrorist Detention Bill, Council on Foreign Rel. (Dec. 5, 2011), http://www.cfr.org/counterterrorism/problematic-terrorist-detention-bill/p26676/.

28 S.2003, 112th Cong. It was also introduced on December 16 in the House by Representative John Garamendi (D-CA) as the Due Process Guarantee Act of 2011, H.R. 3702, 112th Cong.

29The Due Process Guarantee Act: Banning Indefinite Detention of Americans: Hearing on S. 2003 Before the S. Judiciary Comm., 112th Cong. (2012) (written testimony of Prof. Stephen I. Vladeck), available at http://www.judiciary.senate.gov/pdf/12-2-29VladeckTestimony.pdf.

30 For an additional, non-Lawfare overview of the 2012 NDAA, see Mariner, supra note 16; Joanne Mariner, The NDAA Explained: Part Two in a Two-Part Series of Columns on the National Defense Authorization Act, Verdict (Jan. 2, 2012), http://verdict.justia.com/2012/01/02/the-ndaa-explained/.

31 Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011 Daily Comp. Pres. Doc. 201100978 (Dec. 31, 2011), available at http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540/.

32Id. For my argument that the 2012 NDAA's detainee-transfer restrictions do not violate the separation of powers, see Recent Legislation, 125 Harv. L. Rev. 1876 (2012).

33See Raffaela Wakeman, NDAA Fact Sheet and Presidential Policy Directive on &1022, Lawfare (Feb. 28, 2012), /ndaa-fact-sheet-and-presidential-policy-directive-§1022.

34 No. 12 Civ. 331(KBF), 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting preliminary injunction).

35 Hedges v. Obama, No. 12 Civ. 331(KBF), 2012 WL 2044565 (S.D.N.Y. June 6, 2012) (order clarifying preliminary injunction).

36Hedges, 2012 WL 1721124, at *19.

37Id.

38 133 S. Ct. 1138 (2013). Clapper, which was decided in March 2013, held that a group of plaintiffs lacked standing to challenge the NSA's warantless-wiretapping program on Fourth Amendment grounds because they could not establish that they were being surveilled. See id. at 1143.

39 Hedges v. Obama, No. 12 Civ. 331(KBF), 2012 WL 3999839 (S.D.N.Y. 2012).

40Id. at *4–5.

41Id. at *5.

42 Hedges v. Obama, Nos. 12-3176 (L), 12-3644(Con), 2012 WL 4075626 (2d Cir. Sept. 17, 2012).

43 Sup. Ct. U.S. (docket entry), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12a600.htm (last visited June 17, 2013).

44 Hedges v. Obama, 133 S. Ct. 1307 (2013).

45See supra note 37.

46See generally Benjamin Weiser, Terrorist Has Cooperated With U.S. Since Secret Guilty Plea in 2011, Papers Show, N.Y. Times (Mar. 25, 2013), http://www.nytimes.com/2013/03/26/nyregion/since-2011-guilty-plea-somali-terrorist-has-cooperated-with-authorities.html?ref=ahmedabdulkadirwarsame&_r=0/.

47See generally Michael R. Gordon, Against U.S. Wishes, Iraq Releases Man Accused of Killing American Soldiers, N.Y. Times (Nov. 16, 2012), ,http://www.nytimes.com/2012/11/17/world/middleeast/iraq-said-to-release-hezbollah-operative.html.

48See Office of Mgmt. & Budget, Statement of Administrative Policy: H.R. 4130—National Defense Authorization Act for FY 2013 (May 15, 2011), available at http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr4310r_20120515.pdf.

49 542 U.S. 507 (2004).