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Initial Thoughts on <em>Hedges</em>

Benjamin Wittes
Thursday, September 13, 2012, 9:04 AM
I have now read through Judge Forrest's opinion in Hedges---all 112 pages of it. I have done so only briskly, and I have surely missed things in my haste. But here are some initial thoughts. The opinion is shockingly bad. As a matter of simple judicial craftsmanship, it is among the worst pieces of recent district court workmanship I have read. It utterly ignores key authorities. It grossly misinterprets those it does invoke.

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I have now read through Judge Forrest's opinion in Hedges---all 112 pages of it. I have done so only briskly, and I have surely missed things in my haste. But here are some initial thoughts. The opinion is shockingly bad. As a matter of simple judicial craftsmanship, it is among the worst pieces of recent district court workmanship I have read. It utterly ignores key authorities. It grossly misinterprets those it does invoke. And it comes to a legal conclusion that is, as best as I can see, factually incorrect. I wouldn't spend a lot of time on it, for the simple reason that its half life is likely to be very short---at least, it should be very short---except for one big thing. The scope of the injunction Judge Forrest has issued is incredibly dangerous in ways I am certain she does not understand. If the Second Circuit does not reverse Judge Forrest on this one, I'll eat this post with a sauce of Christopher Hedges's and Noam Chomsky's choosing. But it needs to act quickly or there may be implications for U.S. forces in Afghanistan. As a preliminary matter, the decision's entire premise is factually wrong. Judge Forrest simply ignores a wide body of D.C. Circuit case law that makes her conclusion untenable. This is not to say that she is bound by D.C. Circuit precedent. She isn't. But what the D.C. Circuit has done in the detention space is an important piece of the factual landscape as to the state of the law she is interpreting. To ignore it---as she mostly does---and misstate it---as she does when she's not ignoring it---creates a fundamental factual error regarding the change that Section 1021 of the NDAA actually brought about. Judge Forrest's basic argument is that the NDAA did not---as it purports---merely codify and reaffirm the detention authority in the AUMF but expanded it and expanded it in a fashion that is unconstitutionally vague as to mere supporters of enemy forces. Her evidence of this is differences in the statutory texts, which are real, and a purported reading of the NDAA's legislative history. Having watched the NDAA's legislative history as closely as anyone---indeed having played some role in it---I can say flatly that there is almost nothing true about her account of how and why this law developed. This is the kind of judicial legislative history, in fact, that makes one get in touch with one's inner Scalia. But let's put that issue aside. The far bigger problem is that she almost completely ignores the D.C. Circuit's history of interpretation of the AUMF in the detention context. And the 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. Judge Forrest acknowledges at one point very late in the game (see pp. 106-107)  that the D.C. Circuit in Al-Bihani seemed to allow detention on the basis of support. But she pretends that this is merely an interpretation of the Military Commissions Act, not the AUMF itself:
In Al-Bihani, the D.C. Circuit  . . . found . . . that the 2006 and 2009 MCAs provided for military detention of those individuals who “purposefully and materially supported” enemy belligerents of  the United States or its coalition partners (the MCAs are not, however, statutes authorizing the use of military force). At the August hearing in this action, the Government stated that the MCA plays no role in the case before this Court. This Court agrees: the phrase “materially supported” as used in Al-Bihani does not shed light on the interpretation of “substantial support,” as used in § 1021(b)(2). Moreover, even in the MCA there is a requirement that the “material support” be purposeful. Notably, § 1021(b)(2) does not require that the conduct which could subject an individual to detention be “knowing” or “purposeful.”
This is dead wrong. The D.C. Circuit's invocation of the MCA in Al-Bihani occurs merely as a means of informing its interpretation of the AUMF, not as a standalone detention authority. Here's what the D.C. Circuit actually said:
The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2575–76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id. § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners (emphasis added).
This interpretation received a fair bit of criticism, including from Steve, as the D.C. Circuit incorporated it into its later cases. But it received criticism as an interpretation of the AUMF--which it plainly was. So put simply, Judge Forrest's entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage---law which unambiguously supports the government's contention that the NDAA affected little or no substantive change in the AUMF detention power. (In fact, to the extent the NDAA brought about any change, it was a change limiting detention authority by clarifying that it is, in fact, subject to the laws of war, as Steve and Marty Lederman explained in this post. But that's a story for another day.) Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority's determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I'm not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF---precisely the opposite of the Al-Bihani panel's assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores---indeed misrepresents---Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law. Having made these very basic errors---at very great length---Judge Forrest then issues her injunction. But for its text, we might treat her opinion as a form of comic performance art. But it reads: "this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person" (emphasis added). And that, as I said above, makes the opinion potentially very dangerous. Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, "in any manner and as to any person" would seem by its terms to cover U.S. detention operations in Afghanistan. Indeed, reading the opinion, I'm not sure that Judge Forrest has not enjoined the detention of non-citizen substantial supporters of ongoing Taliban operations in theater. In the post to which I linked above, Steve and Marty ruminate on the kinds of support that might give rise to detention under the NDAA:
What types of “support” to al Qaeda would justify military detention, in light of “longstanding law-of-war principles”?  The habeas courts have not yet had to analyze such questions, because they have resolved each case thus far based upon whether the detainee in question was “part of” enemy forces covered by the AUMF.  It is possible, however, to hazard a bit of speculation on how courts might view at least a handful of such cases if they were ever to be adjudicated.  For example, the 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,” see Warafi (discussed above), 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.  Cf. Third Geneva Convention, art. 4(4).  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.) These speculations hardly cover the waterfront of potential “supporters,” of course.  Thus, for the most part, and as DOJ argued, the “contours” of the “substantial support” basis for detention would have to be developed by the Executive and by the habeas courts in discrete application to concrete facts in individual cases, if there ever are any; and if such cases arise, they “may require the identification and analysis of various analogues from traditional international armed conflicts.”  (The same is true with respect to identifying the “associated forces,” or co-belligerent forces, of al Qaeda and the Taliban to which section 1021 refers.  See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 & n.17 (D.D.C. 2009) (agreeing with the government that “associated forces” in the DOJ March 13th standard means “‘co-belligerents’ as that term is understood under the law of war,” i.e., a “‘fully fledged belligerent fighting in association with one or more belligerent powers,’” and does not include organizations that “merely share an abstract philosophy or even a common purpose with al Qaeda—there must be an actual association in the current conflict with al Qaeda or the Taliban”).)  Although there may well be some uncertainty and disagreement about how that approach cashes out in individual cases, the larger point going forward is the central role that such law-of-war analysis should play, in marked contrast to the views of Judges Brown and Kavanaugh, when the Executive and the courts construe the detention authority the AUMF confers upon the President.
I don't know whether U.S. forces are currently holding anyone under this sort of support theory---as opposed to their being "part of" enemy forces. The government has been very careful to avoid litigating Guantanamo cases on the basis of support. So I don't know whether and to what extent this injunction will actually have an impact on current detention practices. But here's the rub: Neither does Judge Forrest. She has issued a sweeping injunction without any evidence regarding its potential impact in Afghanistan---where, of course, free speech rights of aliens under the First Amendment are hardly the issue. Memo to the Second Circuit: Stay this decision quickly.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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