What <i>Hedges</i> Could Have Said...

Based on the voluminous media and blog coverage of last week's decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things is true: Either Judge Forrest was exactly right, or she was utterly, if not egregiously, wrong (or both). Now that the appeal is bound for the Second Circuit with a bullet, I thought I'd try to take a step back and summarize the problems that I suspect Judge Forrest was grappling with in her decision. Importantly, that Judge Forrest's analysis (and corresponding injunction) may have been overbroad and otherwise unconvincing does not take away from these concerns. Instead, as I explain below, rather than merely reversing Judge Forrest's decision, there may in fact be plausible basis on which the Second Circuit could vacate and remand last week's ruling with instructions to consider a more narrowly tailored injunction... In other words, what follows is an effort to crystallize the precise issue at the heart of the dispute in Hedges, in an effort to separate the opinion's obvious shortcomings from its more defensible conclusions going forward. Problem #1: Does the Government Have the Power to Detain U.S. Persons Captured off the Battlefield? We've written about this issue ad nauseum. Other than in circumstances analogous to those at issue in Hamdi v. Rumsfeld (i.e., a U.S. citizen captured fighting for the Taliban in the context of active combat operations in Afghanistan), there is no settled precedent governing the circumstances in which U.S. persons (by which I mean U.S. citizens and non-citizens lawfully present within the territorial United States--those with clearly established constitutional rights) may be subjected to long-term military detention. [Even the Fourth Circuit's Padilla decision largely shoehorns Padilla into Hamdi's facts.] To be sure, I continue to believe, as I wrote last week (and long before that), that the Feinstein Amendment to the NDAA preserves whatever the pre-NDAA status quo was with respect to this category of individuals. But all that means for present purposes is that such individuals cannot be detained pursuant to any authority conferred solely by the NDAA. They may still be subject to detention under the original AUMF. Even if that's not a big concern at the moment given the apparent policy preferences of the Obama Administration, it's not hard to imagine a set of facts (or election results) that could make this a live issue again, and rather quickly, at that. And so, even though I criticized Judge Forrest last week for totally ignoring the Feinstein Amendment (and the extent to which it undermines the claim that U.S. persons can be detained under the NDAA), the larger concern--that the government may continue to claim the authority to subject U.S. persons captured off the battlefield to long-term military detention in at least some cases--remains. Problem #2: What Does it Mean to "Substantially Support" al Qaeda & Associated Forces? The heart of the issue in Hedges is section 1021(b)(2) of the NDAA ,which authorizes the long-term military detention of:

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.

Whatever else may be said about the D.C. Circuit's post-Boumediene jurisprudence, it is now settled (and was well before the NDAA was enacted) that the AUMF authorizes the detention of anyone who is "part of" al Qaeda or the Taliban. I think there is an issue to raise about individuals who are "part of . . . associated forces . . . that are engaged in hostilities against . . . coalition partners," since that could presumably encompass individuals showing no aggression whatsoever toward the United States, but leaving that aside for the moment, the real issue is the breadth of "substantial[] support." Here's what the Obama Administration argued in its "March 13" brief--the origins of the formulation Congress enacted into law in the NDAA (and itself a result of fairly complex internal battling within the Obama Administration):

There are cases where application of the terms of the AUMF and analogous principles from the law of war will be straightforward. It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the precise characteristics of “associated forces,” that are or would be sufficient to bring persons and organizations within the foregoing framework. Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts. Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases.

As Marty Lederman and I wrote back when the NDAA was enacted, this does not mean that the NDAA did nothing to elaborate upon the meaning of "substantial[] support." Instead, it is quite clear that Congress meant to peg "substantial[] support" to the laws of war, and to only authorize the detention of those individuals who are analogous to those persons whose "support" would justify detention, consistent with the laws of war, in a traditional armed conflict. As we explained:

[T]he March 13th DOJ brief itself stated that those who provide unwitting or insignificant support to the organizations identified in the AUMF are not subject to the AUMF detention authority.  And there likely are significant detention limits with respect to persons who provide medical support to enemy forces while “permanently and exclusively engaged as a medic,” . . . since such limits traditionally apply to such persons (indeed, even if they are part of an enemy force) in an international armed conflict, under article 24 of the First Geneva Convention and article 33 of the Third Geneva Convention.  On the other hand, perhaps substantial supporters of enemy forces who are apprehended while accompanying such forces can be detained on roughly the same terms as the forces themselves, just as they can be in an international conflict.  And Ryan Goodman has suggested that perhaps the AUMF could be construed to permit the U.S. to detain, in an internment capacity, civilians whose support for al Qaeda makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible detention of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention.  (As Goodman notes, the U.S. used such an internment option in the war in Iraq.)

This analysis in turn raises the critical question of whether it is clear what will (and, more importantly, will not) constitute "substantial support" under the laws of war--whether in a traditional armed conflict or otherwise? And as the March 13 brief itself concedes, "the contours of the 'substantial support' and 'associated forces' bases of detention will need to be further developed in their application to concrete facts in individual cases." In other words, the answer to the second question is "no." It is unclear just what will constitute the "substantial support" that triggers detainability under the laws of war. Of course, for individuals with no First (or Fifth) Amendment rights, the lack of clarity with regard to the scope of the government's detention authority shouldn't pose a constitutional problem (or, at least, a First or Fifth Amendment problem). It's not a difficult proposition that those not protected by the First Amendment can't have their speech unconstitutionally chilled by the vagueness of the government's detention authority. To the same extent, there should be some conduct that, even when undertaken by U.S. persons, is so clearly not within the scope of substantial support as to not subject the individuals in question to even a possibility of detention remotely sufficient to raise serious First Amendment concerns... But for individuals with First and Fifth Amendment rights who do undertake at least some work that comes anywhere near the substantial support line, the vagueness of the definition actually does appear to raise a serious constitutional question--not insofar as the Constitution forbids detention of such individuals, but insofar as the vagueness of the government's detention authority raises the specter of chilling the constitutionally protected speech of U.S. persons not subject to detention. Put another way, if the outer parameters of substantial support are unclear, isn't it possible that the lack of clarity could chill otherwise protected speech of individuals who aren’t subject to detention under the laws of war, entirely because neither the Executive Branch nor the courts can clearly articulate the specific line that these individuals can’t cross? That, to me, is the heart of the matter, and should be the central question on the merits in the Second Circuit (and/or the district court on remand). More to the point, although one might argue that the plaintiffs in Hedges instead fall into the group described in the previous paragraph, i.e., U.S. persons engaged in conduct that comes nowhere close to the line, the government hasn't exactly embraced that proposition in its briefing, arguing that these plaintiffs can't credibly fear detention without offering an explanation of the limits of its detention authority. [And even to the extent that this is the correct answer, it would suggest only that the plaintiffs lack standing--not that their claim fails on the merits.] In its brief to the Second Circuit, the government suggests that substantial support is no vaguer a concept (and in many ways more specific) than a declaration of war, which in no way identifies the scope of who may be detained in that conflict (and which, we assume, would never raise First Amendment issues). But a declaration of war doesn't just trigger an international armed conflict under the laws of war, with the detention criteria that apply to an IAC; it also triggers other detention authorities--including the Alien Enemy Act--that presumably impose a wider net on the types of conduct and/or individuals who may be subject to extracriminal detention because it is wartime. The same can't be said in a context in which the sum total of the government's military detention authority is a sole statutory phrase... Just to be clear, I'm not convinced that the vagueness of substantial support does violate the First Amendment insofar as it may chill the constitutionally protected speech of U.S. persons. But it's a close enough question as to warrant serious attention, whatever other shortcomings one might find in Judge Forrest's analysis. With that in mind, let's return to the Feinstein Amendment. As noted above, section 1021(e) preserves the pre-NDAA status quo for "United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." If one assumes this provision thereby covers all U.S. persons, then the only way the vagueness of the "substantial support" language could affect individuals with First and Fifth Amendment rights is if the scope of the government's pre-NDAA detention authority included those who provide "substantial support" to al Qaeda, the Taliban, or associated forces. Problem #3: Does the AUMF Itself Authorize Substantial Support-Based Detention? That begs the strangest issue here: If it's true, as I believe it is, that the Feinstein Amendment preserves the pre-NDAA status quo, then the constitutional issue identified above only arises if that status quo also encompassed detention based upon "substantial support," i.e., if section 1021(b)(2) of the NDAA merely codified what was already true of existing law. Here, things get murky in a hurry. The D.C. Circuit had recognized the government's power to detain based on "material support," and the district courts had, for the most part, adopted the government's March 13 definition--which included "substantial support." So it's certainly not a frivolous argument that, on the day before the NDAA was enacted, the government already had the authority to detain individuals based upon "substantial support," and the amorphousness of that definition would raise the constitutional concerns identified by the district court in Hedges. It's just that no cases ever actually arose--thanks largely to the breadth of the D.C. Circuit's understanding of "membership," which allowed it to shoehorn even the close cases under the less-controversial prong of the government's approach. If so, then it strikes me as not nearly as obviously flawed for the district court to enjoin substantial support-based detention of U.S. persons under pre-NDAA law. Problem #4: If the AUMF is the Source of the Problem, is There a Laches Issue? This leads to one of the most confusing aspects of Judge Forrest's analysis. The heart of her opinion is devoted to explaining why the substantial support language is "new," and so the First Amendment issue on which she ultimately enjoined section 1021(b)(2) is only raised by the NDAA. As I wrote last week, it's very hard to square this analysis with the Feinstein Amendment. Insofar as the NDAA is conferring "new" authority, it seems crystal clear that such "new" authority cannot be applied to U.S. persons. And yet, it does seem that the pre-NDAA judicial gloss on the AUMF did include "substantial support"-based detention--and therefore raises the very constitutional question at the core of Hedges. So why did Judge Forrest go this way? Part of it may have been to avoid the argument that the plaintiffs' suit is "late." There's certainly no statute of limitations on a claim like this one, but there might nevertheless be a laches claim--if the government has had this authority since September 18, 2001, it seems a little late in the day to litigate this issue. Candidly, this strikes me as unpersuasive. Even if the pre-NDAA judicial gloss on the AUMF encompassed "substantial support," there had never been a case in which that understanding was directly implicated. As such, one could hardly claim that this was the settled scope of the government's detention authority until at least March 13, 2009 (when the government first formally proposed this definition)--and perhaps even later, since the Supreme Court's cert. denials in the cases challenging the breadth of the D.C. Circuit's interpretation of the AUMF didn't take place until April of this year. I'm oversimplifying, but given these concerns, I have a hard time seeing why the plaintiffs' suit would now be untimely or otherwise barred by laches. And so there was no reason for Judge Forrest to focus her analysis on the (irrelevant) text of the NDAA, in contrast to the (very relevant) judicial gloss of the AUMF as applied to these plaintiffs (if not all U.S. persons). What Hedges Could Have Said: In light of the above, what if Hedges had instead held that:

The government may not subject any U.S. person to long-term military detention under the 2001 Authorization for the Use of Military Force if the sole basis for such detention is the determination that said person substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.

This formulation leaves intact (1) the government's power to detain U.S. persons who were either directly responsible for the 9/11 attacks or are part of al Qaeda, the Taliban, or associated forces; and (2) the government's power to detain any non-U.S. person under the AUMF and/or the NDAA. In other words, it leaves intact the government's power to detain every single person whose detention it has had to defend in court under the AUMF/NDAA. More to the point, it tailors the injunction to the precise scope of the problem, i.e., "substantial support"-based detention of U.S. persons under the AUMF. There's still the question of whether district courts have the power to constrain the government's conduct as against those other than the actual plaintiffs, but to the extent that's the concern, it can be ameliorated by changing "any U.S. person" in the formulation above to "any of the plaintiffs." If that's what the district court had held, would folks be so apoplectic? Would the government have appealed--and so quickly, to boot? Would the Second Circuit be so likely to reverse? The answer may still be yes... as I said above, I'm not totally convinced that the First Amendment vagueness argument is a winner. But I do think it's a serious, close question--far closer than the commentary and other analyses of Judge Forrest's opinion have thus far suggested.