The Government's Litigating Position in Hedges

In my post this morning on Hedges, I wondered whether government counsel had made the court aware of the Obama administration's strong position against military detention for citizens and for anyone captured domestically. The answer appears to be that it did so, at least in part. In response to my post, someone sent me one of the government briefs, in which it made the point I had flagged with respect to citizens. On page 25, the brief reads:

Fourth, the subjective fears of the five plaintiffs who are United States citizens . . . that section 1021 will be applied to subject them to military detention, are especially ill-founded and unreasonable. As explained above, the President has made clear that U.S. citizens will not be placed in indefinite military detention. Indeed, the day he signed section 1021 into law, the President stated:

Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

NDAA Signing Statement, 2011 U.S.C.C.A.N. at S12. Thus, the case here is once again distinguishable from Amnesty Int’l. There, according to the Court, a policy that authorized the feared injurious conduct bolstered the argument that the injury was likely to occur. 638 F.3d at 137. In this case, as to U.S. citizens, the government’s policy is inconsistent with plaintiffs’ fears. Accordingly, none of the plaintiffs in this case have established that there is an “objectively reasonable likelihood” that §1021 will be applied against them.

This passage does not, of course, flag the other key component of the Brennan speech I quoted: that the White House has also stated clearly that it will use Article III trials exclusively for domestic captures even of non-citizens. This point is important, because not all of the plaintiffs in Hedges are U.S. citizens. 

The brief also makes it all the more puzzling that counsel in the argument quoted by Judge Forrest refused to say that these plaintiffs--even the citizens--had nothing to fear detention-wise under the NDAA.

At least the government didn't completely ignore the point.