Why Hedges v. Obama is Terribly Perplexing

I've now had more of a chance to read through Judge Forrest's decision Wednesday in Hedges v. Obama, which (seems to) enter a preliminary injunction against some or all of section 1021 of the FY2012 National Defense Authorization Act. [It's getting hard to keep all these NDAAs straight!] Just so we're all on the same page, section 1021 is the provision that deals specifically with the scope of the government's authority to subject individuals to military detention without trial. It appears at pg. 266 (125 Stat. 1562) in this PDF. And on further reflection, the only thing I can say after reading the opinion enjoining it again (twice) is that I am quite perplexed--with some of Judge Forrest's reasoning; with the impact of the decision; with the apparent litigation position of the Obama Administration that precipitated such a result... Here's why: 1.  To Whom Does the Preliminary Injunction Apply? Let's start with the easiest problem to describe: Whose detention does today's decision actually prohibit? No doubt, the injunction necessarily prevents the government from detaining the plaintiffs, at least within the jurisdiction of the Southern District. But does it prevent the government from detaining anyone else under the NDAA? The decision itself is unclear, although Judge Forrest at times refers to the plaintiffs' challenge as "facial" (implying that the relevant provisions of the statute would be unconstitutional as applied to anyone). But that begs the question: what, exactly, does the decision enjoin? 2.  To What Does the Preliminary Injunction Apply? At various points in her opinion, Judge Forrest suggests that "section 1021" is the subject of the injunction, even though the analysis focuses entirely on the scope of that part of section 1021 (section 1021(b)(2)) that authorizes detention based on the provision of "substantial support" to al Qaeda, the Taliban, or "associated forces." In full, section 1021(b)(2) authorizes 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.

But section 1021 has lots of other stuff, too: Section 1021(a) [the reaffirmation-of-AUMF provision]; 1021(c) [delineating the available dispositions of those subject to detention under 1021(b)]; 1021(d) [the construction provision]; 1021(e) [the Feinstein Amendment preserving the status quo for individuals arrested within the United States]; and 1021(f) [requiring periodic briefings to Congress]. Are those provisions also enjoined? Even if they're not, what about section 1021(b)(1), which authorizes detention of "A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks," i.e., those whose detention is arguably authorized by the plain text of the AUMF? If the injunction applies to all of section 1021, or even all of section 1021(b), mightn't there be a case that it thereby enjoins the continuing detentions of non-citizens at Guantanamo? Somehow, I doubt that's what Judge Forrest meant... So is it that the injunction is not really facial? That it's facial only with respect to 1021(b)(2) (which would encompass membership and substantial support)? That it is facial only with respect to detention based solely on "substantial support"? Something else? To be sure, this merges with (1), but the lack of clarity matters, because: 3.  What Does the Decision Actually Stop the Government from Doing? Assuming that Judge Forrest meant only to enjoin the "substantial support" language, whether as applied to these plaintiffs or on its face, the next question is whether it has any immediate effect whatsoever. Certainly, if it's only as-applied, that question answers itself. But even for a facial challenge, the government has, to date, never relied on "substantial support" as the basis for military detention of anyone within the United States or at Guantanamo. Instead, as I've explained before, the cases have relied entirely on "membership" in al Qaeda or associated forces--which is the authority conferred by section 1021(b)(1), not (b)(2). And as Bobby, Larkin, and Ben have explained, the Guantanamo habeas decisions have, for better or worse, effectively embraced a functional conception of membership that sweeps sufficiently broadly to encompass most of the cases that might otherwise rest solely on the "substantial support" prong. So if the injunction in fact only applies to section 1021(b)(2), it stops the government from detaining precisely no one who is currently in U.S. military custody--although it could obviously have an effect in future cases. This point matters because, when (not if) the government appeals this decision to the Second Circuit, it will be interesting to see the urgency and dispatch (or the lack thereof) with which they seek to have this injunction vacated. 4.  Why Did the Government Let Things Come to This? Here, I have to make a confession: I did not put much stock into this lawsuit when it was filed. As Marty Lederman and I wrote when the FY2012 NDAA was enacted, there just isn't anything to the argument that it specifically authorizes domestic detention. All it does is preserve the status quo, which itself was unclear. As for challenges to the NDAA as applied to cases of overseas capture, they are, in effect, challenges to the D.C. Circuit's (and Obama Administration's) interpretation of the AUMF [including in situations where the plaintiffs may not have clearly established constitutional rights]. So without any view as to the merits of the First Amendment claim, I never understood how these plaintiffs would be able to establish standing, i.e., that they credibly feared military detention based on First Amendment-protected speech... If the speech is in fact protected by the First Amendment, doesn't that suggest that this is a case covered by the Feinstein Amendment (and, as such, not covered by the NDAA)? And if the speech is not protected by the First Amendment, well... That said, the most incomprehensible piece of today's decision to me isn't any single aspect of Judge Forrest's First Amendment analysis (although the extraterritorial application question could have benefited from at least some consideration), but the government's position that led Judge Forrest  (in my view, correctly) to conclude that the plaintiffs here do have standing. In short, the government refused to concede at argument that it would not seek to detain individuals like the plaintiffs under section 1021(b)(2), even though such a concession would (probably) have made short work out of the plaintiffs' injury-in-fact. As Judge Forrest recounts at pp. 33-34:

It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.

Put another way, the government could have made this case go away, and it didn't. And so as perplexing as the injunction entered by Judge Forrest is, I'm even more perplexed by why the government allowed things to come to such a pass. Certainly, the government would not need to forswear the ability to detain anyone pursuant to expressive and "associational" conduct to merely suggest that it would not seek to detain these plaintiffs. Could it be that the government doesn't want to open the door to such ex ante litigation of detainability? Could it be that the government actually does believe that individuals engaged in conduct like that of these plaintiffs might actually be subject to military detention? Could it be a simple (but costly) tactical error by government counsel? Whatever the reason for why the government won't take a position, one can hardly blame Judge Forrest (or the plaintiffs, for that matter) for thinking that the government's refusal to disavow such authority bolsters the plaintiffs' standing... 5.  The Elephant in the Room: The Standing Issue in Clapper v. Amnesty International This leads me to my last point: I suspect that, owing to some of the concerns raised above (among others), the opinion in Hedges is not long for this world. But the standing issue raised by the government's (non-)position in Hedges is also at the heart of the cert. petition that the Supreme Court will consider this week in Clapper v. Amnesty International--a constitutional challenge to the key provisions of the FISA Amendments Act of 2008.  In short, the issue in Clapper is whether the plaintiffs can satisfy Article III standing requirements merely by alleging that, because they fear that the government will unlawfully intercept their communications under the FISA Amendments Act, they have taken (cost-incurring) steps to communicate through alternative means. A Second Circuit panel held that such allegations were sufficient to confer standing (and the en banc court divided 6-6 on that question). What's telling about the government's argument for certiorari and against standing is that the same dog doesn't bark: unless I missed something in the cert. petition or the reply, nowhere does the government expressly disavow that it has in fact intercepted plaintiffs' communications in the past and/or that there is a significant likelihood that it might do so in the future. As in Hedges, such a stipulation would presumably go a long way toward vitiating the plaintiffs' standing (and in Clapper, bolstering the case for certiorari). And as in Hedges (indeed, perhaps far more so in Clapper), one can imagine reasons why the Obama Administration is not inclined publicly to take such a position. But just as we can imagine why the government would not want to make such a concession, it seems to me that we must also appreciate the consequences of such a refusal--that plaintiffs can establish an injury in fact for Article III standing purposes if they have a colorable claim that a governmental policy will be applied to them and if the government refuses to concede to the contrary. There are bigger issues with Hedges, but in Clapper, at least, I have to think that this is the whole ballgame.