A Few Thoughts on Hedges

By Benjamin Wittes
Thursday, May 17, 2012, 8:14 AM

I am as perplexed by yesterday's Hedges decision as either Steve and Bobby--and largely agree with both of their posts on the subject. As they have both beaten me to the punch, I will not reiterate their several points both about the government's inexplicable litigation strategy and about the vices of--I'll say it more strongly than either of them did--a particularly shoddy piece of judicial craftsmanship. I have three additional thoughts, however:

First, the decision contains virtually no discussion of the D.C. Circuit case law that should be pivotal to it. The D.C. Circuit has repeatedly endorsed a scope of detention authority that includes both associated forces and support. Ironically, the D.C. Circuit's pre-NDAA definition of detention authority as encompassing purposeful and material support was considered by some commentators, including Steve, to be less protective than the substantial support language argued by the Obama administration and ultimately incorporated into the NDAA. But leave that point aside. The key point missed by Judge Forrest is that while the language of the NDAA differs substantially from the language of the AUMF, 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.

This error is particularly bad, in my view, because Judge Forrest at one point notes specifically that the now-famous March 13, 2009 definition of the Obama administration's view of its detention authority does not have the force of law. That's true, but the D.C. Circuit's adoption of a very similar standard does have the force of law. So if you're evaluating the situation of people like the plaintiffs in this case under the NDAA and you're using as your baseline the mere text of the AUMF--not the text as interpreted in a dozen or so appeals court decisions the government regards as binding--your evaluation will inevitably misstate the degree of jeopardy the plaintiffs suffer under the new law relative to under the baseline.

Second, while the government appears to have bungled the hearing by not conceding that the conduct of the specific plaintiffs in this case could not give rise to detention under the AUMF or NDAA, it has made statements that nonetheless should have made the standing inquiry far more difficult for Judge Forrest. Its global position, after all, is that it will not engage in any detention with respect to domestic captures at all. Consider  the speech that the White House's top terrorism adviser gave at Harvard Law School last year:

That said, it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.  Our military does not patrol our streets or enforce our laws—nor should it. . . .

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system. . . .

I don't know whether such statements--and there are others--were brought to Judge Forrest's attention. If not, the error seems to me egregious on the part of government counsel. Because whatever counsel could or could not say about the individual fact patterns at issue in the case, there is something the government has said publicly that is directly relevant to the concerns of both U.S. citizens and Icelandic parliamentarians and British activists who purport to fear U.S. military detention under either the AUMF or the NDAA: Whatever the law may theoretically allow, we don't do that.

Judge Forrest reports that she repeatedly asked government counsel whether the plaintiff's conduct could subject them to detention under the NDAA and that government counsel refused to address the question, saying each time some variant of  “I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything.” Why didn't counsel each time instead simply say "it is the firm position of the Obama administration that suspected terrorists arrested inside the United States will be processed through our Article III courts and that U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, will be prosecuted in our criminal justice system"? At a minimum, such statements should complicate the standing inquiry--making standing a function of some hypothetical change in policy that would allow what is now forbidden.

Finally, this opinion highlights a point I made yesterday in connection with the Smith-Amash amendment: "The even-theoretical availability of detention powers domestically gives rise to legitimacy problems for detention more broadly." This decision is a perfect illustration of the point. A federal judge, responding to the fears of people who will not be detained, has now facially invalidated a law codifying a long chain of judicial and executive lawmaking concerning detention authority more broadly.