Detention & Guantanamo

Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces

By Robert Chesney
Thursday, May 17, 2012, 1:44 AM

A few reflections on Hedges v. Obama, enjoining at least some aspects of section 1021 of the NDAA:

A Self-Inflicted Wound? Let me begin by saying that I agree with Steve: it does seem from the opinion that the government brought this headache upon itself, in no small part, by refusing at oral argument to state clearly that support must be knowing (i.e., you must know that you are providing support to al Qaeda, for example) and that of course conduct protected by the First Amendment cannot be the basis for a support determination (relying on HLP, perhaps).  Indeed, the whole thing reminds me very much of the famous Little Old Lady in Switzerland moment long ago in front of Judge Greene, in In re Guantanamo Detainees Litigation (a predecessor case to Boumediene, in which the goverment attorney refused to foreswear the use of detention in a hypo where the judge imagined a little old lady in Switzerland unwittingly sending a check to a group that turned out to be al Qaeda).   That is, this seems like a situation that might have more to do with an unduly obstinate, or overly cautious, oral argument strategy -- a give-no-ground-just-to-be-safe approach --rather than evidence that the government is ready to turn the NDAA on Wikileaks supporters (see the explanations in the opinion as to the activities of some of the plaintiffs involved - we are talking about activities pretty far removed from the al Qaeda scenario).  But like that Little Old Lady, the scenarios of these plaintiffs will now become part of the proof that the government is indeed up to no good with the NDAA, fueling all sorts of paranoia.  Very, very unfortunate, and so far as I can tell totally, completely unnecesary.

Refusing to treat the NDAA as coextensive with the AUMF:

I am puzzled, very much, by the judge's refusal to construe the NDAA as no more and no less broad than the AUMF.  At page 3, she asserts that she is forced to construed them to be different out of deference to the principle that a separate statute must be presumed to have "independent meaning."  Yet Section 1021(d) makes painfully clear that Congress indeed intended the two to be coextensive.  Why bother?  Because the AUMF famously says nothing about detention as such, and the point of section 1021 was to try ot put into statute what the past two administrations had worked out and what had then been repeatedly blessed by the courts in the habeas litigation -- including 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.  I actually agree that both terms ought to have been defined in the NDAA, but the idea that their inclusion breaks with the AUMF just doesn't hold water in my view.   Now, that's not to say that therefore the plaintiffs were out of luck.  Given the strange refusal of the government to foreswear use of detention in their particular cases, it seems to me that the 1st Amendment issue would have to be treated anyway.

Seriously, why not just read the statute to include 1st Amendment protections, and also a scienter requirement in re support?  The judge claimed it just was too much to read such protections into the statute.  As to the First Amendment...that can't possibly be right.  Surely it is always open, indeed required if possible, to construe statutes so as not to encompass conduct that cannot constitutionally be criminalized.  As to reading the statute to contain an unspoken requirement of scienter, I note that the Supreme Court in Scales didn't hesitate to read stronger elements into the Smith Act's membership prohibition.

OK, but what about uncertainty as to the meaning of Associated Forces?  I found the court's treatment of this issue confusing.  The government predictably argued that the notion of an associated force is defined, as much as it can be, by analogy to co-belligerency principles.  The judge plainly found that inadequate, but I cannot actually determine what argument the judge relied on to justify rejecting that position.  Yes, I know, some scholars (most prominently Kevin Jon Heller) dispute the relevance of invoking co-belligerency.  But my point is that the relevant passage on pp 55-56 seems to flag the government's position, and then rejects it without a clear explanation as to why.

Section 1022 as a stand-alone detention authorization for a subset of persons.  I was surprised to find the court mentioning at the end that 1022 should be thought of as a stand-alone detention authorization, one that would be ok precisely because it does not include non-member support or associated forces.  I suppose that is consistent with the logic of the attack on 1021, which only goes after those terms.  Makes much more sense, however, to say that 1021 continues to apply beyond the support and associated forces scenarios.  Unless of course the court also meant to say that even the portion of 1021 that encompasses members of al Qaeda are problematic.  As Steve notes, the opinion is unclear as to just what is being enjoined.

Fast Track to Amendments to the Pending NDAA FY'13: I think it likely that Hedges may spark some quick action in the form of amendments offered to the detainee provisions in the pending NDAA bill, for FY '13.  Should be very interesting to see that unfold.  I can imagine borrowing from 2339B's language in relation to the First Amendment and scienter issues, for one thing.  Addressing concerns about the definition of associated forces, however, remains a tough nut to crack when it comes to drafting legislative language.  I'd actually love to see it done, and will happily post reader suggestions for statutory language that would do the trick.