Raha Wala on Hedges---And My Response

By Benjamin Wittes
Friday, September 14, 2012, 8:39 AM

Raha Wala of Human Rights First writes in with the following response to my comments on Hedges. My thoughts follow his critique and very-cautious defense of Judge Forrest:

Ben’s post on Judge Forrest’s opinion in Hedges I think provided a lot more heat than light, so I wanted to try to address what I think are some core issues here in a few paragraphs.  In my view, Judge Forrest’s opinion, however wrong it might have been on any number of points, gets much closer to the true relationship between the AUMF, the D.C. Circuit’s interpretation of the AUMF, and the detention provisions of the 2012 NDAA than Ben does.

Ben initially notes, correctly, that Judge Forrest is not “bound by D.C. Circuit precedent” in her review of Section 1021 of the NDAA.  But then Ben basically goes on to argue that Judge Forrest should be bound by D.C. Circuit precedent.  Here’s the crux of Ben’s argument:

“[T]he D.C. Circuit’s work is important because the AUMF that Congress was legislating against when it wrote the NDAA was not the plain text of the AUMF itself. It was the AUMF as interpreted by the D.C. Circuit in roughly a dozen habeas cases. And to put the matter simply, support of enemy forces has been part of this interpretation of the AUMF’s detention authority from the beginning.”

Yes, the D.C. Circuit might view the AUMF as authorizing detention of mere supporters of al Qaeda, the Taliban, and associated forces, and Congress did surely codify that view into Section 1021 of the FY 2012 NDAA.  But so what?  If Ben concedes that Judge Forrest isn’t bound by the D.C. Circuit’s interpretation of the AUMF, then why does it matter that it’s that interpretation that Congress codified into law?  Indeed, the only reason it could or should matter is if one believes that D.C. Circuit and, more importantly, the 112th Congress, interpreted the AUMF exactly as it was intended, and not an iota more expansively.

Many---myself included---don’t believe that the D.C. Circuit or the 112th Congress did that; they took a more expansive view of detention authority, introducing the “substantial support” and “associated forces” concepts, and potentially divorcing it from the 9/11 attacks for which the AUMF was intended.   If you don’t believe me, just ask the 112th Congress!  Here are the two categories of persons the 112th Congress said, in Section 1021 of the FY 2012 NDAA, are detainable pursuant to the AUMF:

(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.

(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.

Subsection (1) should sound very familiar to those who have been following national security law in the post-9/11 context; it is text taken verbatim from the 2001 AUMF.  Subsection (2) is purportedly designed to incorporate the D.C. Circuit’s jurisprudence.  In other words, according to the 112th Congress, you can detain anyone that the 2001 AUMF said you can detain, and you can detain this “other” category of persons that the D.C. Circuit believes the 2001 AUMF said you can detain.

The only way you can maintain that the D.C. Circuit, and the 112th Congress, did not expand the category of individuals detainable under the 2001 AUMF is if you believe that everyone detainable pursuant to Subsection (2) is necessarily detainable pursuant to Subsection (1), but that would beg the question as to why even have Subsection (2) in the first instance.  It’s possible that Subsection (2) is supposed to outline the detention standard of the broader AUMF-based authorities, but then why include in Subsection (1) the exact text of the 2001 AUMF as a separate standard for detention?  Judges are supposed to assume that Congress doesn’t intend to be redundant or superfluous when drafting legislative provisions, so I don’t fault Judge Forrest for coming to the conclusion that Section 1021 expanded the category of people detainable vis-à-vis the 2001 AUMF.

Further, Ben more fundamentally overstates the importance of D.C. Circuit precedent to this case.  This case is, at its core, not about whether Section 1021 expands or contracts the detention authority in the AUMF (notwithstanding Judge Forrest’s extensive discussion on this point, and recognizing that the injunction request brings this question in more centrally).  It’s about whether the standards in Section 1021, even if endorsed by the D.C. Circuit and Congress, are constitutionally vague and/or overbroad.  I don’t think the D.C. Circuit in the dozen or so habeas cases to which Ben referenced purported to definitively answer these questions.  And Congress, of course, can’t answer these fundamental constitutional questions, even if it can tip the constitutional balance by unifying the political branches.

I want to be clear that I am not commenting one way or the other on the underlying merits of Judge Forrest’s legal reasoning or decision in this case, though on first read I share some of Ben’s concerns about the way in which Judge Forrest discusses D.C. Circuit case law and the laws of war.  There are a lot of complex constitutional issues at play, and I haven’t read the opinion thoroughly enough to form a considered view.   However, I do want to emphasize that despite Ben’s scathing treatment of Judge Forrest’s opinion, he doesn’t actually address or take issue with her analysis on those issues at all.  I think a more useful treatment of the opinion would not insist on inapposite deference to the D.C. Circuit precedent, but actually address the fundamental issues as they were presented in this case.

Let me start by saying that had Judge Forrest's opinion engaged the issue as directly and honestly as Raha's note does, we'd be having a very different conversation about it. He has managed, in a few paragraphs, to make a far better case for her position than she did in more than 100 pages. Here's my response.

There's a difference between deferring to D.C. Circuit precedent and alternately ignoring and misrepresenting it. I would not be criticizing Judge Forrest had she written an opinion predicated on the notion that the executive branch and the D.C. Circuit had expanded the scope of the AUMF through interpretation, Congress had codified this understanding in Section 1021, and that she believes this interpretation---which does not bind her---mischievous and, insofar as it is codified in statute, unconstitutionally vague and overbroad. I would be disagreeing, but I wouldn't be, as Raha puts it, "scathing" about it.

But that's not what Judge Forrest did. What she did instead was to ignore several years of relevant case law, flatly misstate that law when she had to address it, invent a legislative history and purpose for the legislation before her, and thus imply that Congress's action in codifying a fairly settled executive-judicial understanding of an extant statute was a radical expansion of it. This is, in my prudish judgment anyway, just not kosher judicial behavior.

Judge Forrest's fantasy about the history of the NDAA is particular telling on this point. Because she can't bring herself honestly to describe how the law came about---as Raha does here in a few short sentences---she is left with a hole in her story. Here's how she fills it:

The AUMF and § 1021 have significant differences, discussed below. Those differences can be traced to the legislative history and case law surrounding the AUMF. Section 1021 appears to be a legislative attempt at an ex post facto “fix”: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF. That attempt at a “fix” is obscured by language in the new statute (e.g., “reaffirmation”) that makes it appear as if this broader detention authority had always been part of the original grant. It had not.

Elsewhere, she actually suggests that Congress passed the NDAA to fix the problem of the D.C. Circuit's refusal in Al Bihani to apply the laws of war---a problem that, as I explained in my initial post and as this post fleshes out, she gravely misunderstands: "clear reference to the 'law of war' in § 1021(b)(2) is an attempt to solve legislatively the issue referred to in Al Bihani. Based upon the Court’s review of the AUMF and the NDAA, as well as other relevant statutes, and controlling law, calling § 1021 a 'reaffirmation' implies a type of retroactive fix to what was by then a developed problem of executive branch usage encountering judicial resistance."

I was pretty deeply enmeshed in the legislative machinations around the NDAA---which Lawfare covered exhaustively. I think I can safely speak on behalf of every executive and legislative official involved in the process---House, Senate, majority, minority, Pentagon, Justice Department, pro-legislation, anti-legislation, it doesn't matter: Absolutely nobody who worked on this law thought they were "fixing" a problem of "judicial resistance" to the incorporation of the laws of war into U.S. domestic law. Nobody. Everyone, rather, thought they were doing exactly what Raha describes: " the D.C. Circuit [viewed] the AUMF as authorizing detention of mere supporters of al Qaeda, the Taliban, and associated forces, and Congress did surely codify that view into Section 1021 of the FY 2012 NDAA." There was disagreement over whether and how such codification should happen. There was disagreement over whether the specific draft texts did more than was intended. But the legislative purpose Judge Forrest imagines was simply not part of the equation.

I am happy to discuss all day whether the Executive's and the D.C. Circuit's interpretation of the AUMF has been mischievous, whether Congress--by adopting it--ultimately expanded the AUMF's scope, and whether in doing so it might have crossed First Amendment lines. I will write a separate post responding to Raha on this point and explaining why I don't think Section 1021 of the NDAA has a First Amendment problem. But we have antecedent problem if a judge, in more than 100 pages, can't bring herself even to acknowledge the most basic facts about what this law is, how it developed, and how it relates to prior statutes and case law. It's very hard under such circumstances to have a serious conversation about the law's constitutionality.