Detention: Law of: Other

The Construction of the NDAA in Hedges

By Benjamin Wittes
Thursday, July 18, 2013, 12:11 PM

Judge Lewis Kaplan's excellent Second Circuit opinion in Hedges yesterday should end the controversy over whether the 2012 NDAA expands or merely codifies the government's AUMF detention authority---though it almost surely won't. The key discussion begins on page 33 and represents as lucid and straightforward an account of how to read the detention language of Section 1021 as I have seen. I commend to readers who may have doubt about what the NDAA did and did not do:

The AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Section 1021(a) “affirms” that the AUMF authority includes the detention of a “covered person[],” which under Section 1021(b) means (1) a “person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or (2) 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.”

At first blush, Section 1021 may seem curious, if not contradictory. While Section 1021(b)(1) mimics language in the AUMF, Section 1021(b)(2) adds language absent from the AUMF. Yet Section 1021(a) states that it only “affirms” authority included under the AUMF, and Section 1021(d) indicates that Section 1021 is not “intended to limit or expand the authority of the President or the scope of the [AUMF].”

Fortunately, this apparent contradiction—that Section 1021 merely affirms AUMF authority even while it adds language not used in the AUMF—is readily resolved. It is true that the language regarding persons who “planned, authorized, committed, or aided” the 9/11 attacks (or harbored those who did) is identical in the AUMF and Section 1021(b)(1). The AUMF, however, does not merely define persons who may be detained, as does Section 1021(b). Instead, it provides the President authority to use “force” against the “nations, organizations, or persons” responsible for 9/11. Section 1021(b)(1) (read with Section 1021(a)) affirms that the AUMF authority to use force against the persons responsible for 9/11 includes a power to detain such persons. But it does not speak to what additional detention authority, if any, is included in the President’s separate AUMF authority to use force against the organizations responsible for 9/11.

This is where Section 1021(b)(2), a provision concerned with the organizations responsible for 9/11—al-Qaeda and the Taliban—plays a role. Section 1021(b)(2) naturally is understood to affirm that the general AUMF authority to use force against these organizations includes the more specific authority to detain those who were part of, or those who substantially supported, these organizations or associated forces. Because one obviously cannot “detain” an organization, one must explain how the authority to use force against an organization translates into detention authority. Hence, it is not surprising that Section 1021(b)(2) contains language that does not appear in the AUMF, notwithstanding Section 1021(d). Plaintiffs create a false dilemma when they suggest that either Section 1021 expands the AUMF detention authority or it serves no purpose.

Indeed, there are perfectly sensible and legitimate reasons for Congress to have affirmed the nature of AUMF authority in this way. To the extent that reasonable minds might have differed—and in fact very much did differ—over whether the administration could detain those who were part of or substantially supported al-Qaeda, the Taliban, and associated forces under the AUMF authority to use force against the “organizations” responsible for 9/11, Section 1021(b)(2) eliminates any confusion on that particular point. At the same time, Section 1021(d) ensures that Congress’ clarification may not properly be read to suggest that the President did not have this authority previously—a suggestion that might have called into question prior detentions. This does not necessarily make the section a “‘legislative attempt at an ex post facto “fix” . . . to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF,’” as plaintiffs contend. Rather, it is simply the 112th Congress’ express resolution of a previously debated question about the scope of AUMF authority.

It remains to consider what effect Section 1021(e) has on this understanding. That provision states that “[n]othing 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.” Although this provision may appear superficially similar to Section 1021(d), nuances in the text and the legislative history make clear that Section 1021(e) actually is a significantly different provision.

As discussed above, in stating that Section 1021 is not intended to limit or expand the scope of the detention authority under the AUMF, Section 1021(d) mostly made a statement about the original AUMF—that is, it indicated that the specific power to detain those who were part of or who substantially supported the enumerated forces had been implicit in the more generally
phrased AUMF. By contrast, in saying that Section 1021 shall not be construed to affect “existing law or authorities” relating to citizens, lawful resident aliens, or any other persons captured or arrested in the United States, Section 1021(e) expressly disclaims any statement about existing authority. Rather, it states only a limitation about how Section 1021 may be construed to affect that existing authority, whatever that existing authority may be.

This understanding is reinforced by the legislative history. As discussed above, Senator Feinstein and others feared that Section 1021 would greatly expand the power of the government with particular reference to the authority to detain American citizens captured domestically. Senator Feinstein explained that she did not believe the government had such authority while Senators Graham and Levin, perhaps among others, believed that the government  already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured that—as to those covered by Section 1021(e)—courts would decide detention authority based not on Section 1021(b), but on what the law previously had provided in the absence of that enactment. This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens from its requirements. Rather, Section 1021(e) provides that Section 1021 just does not speak—one way or the other—to the government’s authority to detain citizens, lawful resident aliens, or any other persons captured or arrested in the United States.

We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s AUMF authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.