Detention & Guantanamo

Senators Ask for Argument Time in Hedges

By Benjamin Wittes
Wednesday, December 26, 2012, 10:34 AM

Senators John McCain, Lindsey Graham, and Kelly Ayotte---who jointly filed an amicus brief in the Hedges appeal---are asking for argument time in the coming Second Circuit oral argument. They argue:

Senate Amici played a leadership role in the drafting and enact- ment of Section 1021 of the National Defense Authorization Act for Fis- cal Year 2012 (“NDAA”), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war. While the Senate Amici join the Appellants in seeking reversal of the decision below and dismissal of this litigation, their interests and arguments are distinct from those of the Appellants and may aid the Court in resolution of this matter.

1. The Senate Amici’s participation in oral argument is warranted in light of their unique understanding of the meaning and purpose of NDAA § 1021. As described in the Senate Amici’s brief, Section 1021 was intended as an affirmation of a portion of the President’s detention authority under the 2001 Authorization for the Use of Military Force (“AUMF”). This provision was strongly opposed by the Administration, which viewed it (correctly) as a rebuke to the President’s choices regarding detention in several high-profile incidents. This policy disagreement drove the enactment of Section 1021 and, filtered through negotiations with the Administration and vigorous congressional debate, shaped its ultimate language and structure. This context and history is essential to understanding how the NDAA applies (or, rather, how it does not apply) in this instance, and why the interpretation of the Plaintiffs-Appellees and court below is incorrect.

Although the Appellants, in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions.

2. The Senate Amici’s participation in oral argument is also warranted due to their unique institutional interest in the Court’s possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants’ chief interest is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.