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Two Cents on Hedges

Wells Bennett
Thursday, May 17, 2012, 3:43 PM
By now you've gotten the lowdown - from Steve, Bobby, Ben or from some or all of them - about yesterday's puzzling decision in Hedges v.

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By now you've gotten the lowdown - from Steve, Bobby, Ben or from some or all of them - about yesterday's puzzling decision in Hedges v. Obama.  I won’t reiterate their points, other than to say that I agree with them - particularly those regarding the government’s steadfast refusal, during oral argument, to disclaim any intention to detain the plaintiffs for engaging in core First Amendment activity.   I’ll add only these two cents: Plaintiffs just won a preliminary victory, in their suit to enjoin the government from detaining pursuant to the “substantially support” and related language in section 1021 of the NDAA.  They claim, among other things, that the provision chills them from engaging in expressive or associational conduct.  But as we know, the NDAA itself, the President, and the government's lawyers all say that the NDAA only affirms power already conferred by a much vaguer, far more laconic statute - the AUMF - which was enacted in 2001, did not mention detention, and evidently did not deter plaintiffs from robustly exercising their First Amendment rights.  (The lead plaintiff is Chris Hedges, a Pulitzer-winning journalist who has written extensively on terrorism issues; another plaintiff is a self-described “Content Strategist” for Wikileaks-related websites.)  So how did the NDAA really change the facts on the ground?  At argument on the preliminary injunction, Hedges testified that he was familiar with the AUMF, which – in his view - authorized detention of “enemy combatants on foreign soil that are engaged in direct hostilities with the United States and are linked directly with those who carried out the attacks of 9/11.” (Padilla, al-Marri, Suleiman, and so many others, we hardly knew ye.)  Yet Hedges also told the court that he had “read” Section 1021 and believed that the NDAA could have altered the AUMF’s reach - by adding, among other things, the murky “substantially supported” phrase.  Odd: I guess Hedges disbelieved Congress’s instruction that “nothing in [Section 1021] is intended to limit or expand . . . the scope of the Authorization for the Use of Military Force,” and for that reason also elected to not to meet with his sources or to write on terrorism matters?      Whatever the answer, Hedges is for now a leading candidate in the contest for “Weirdest National Security Law Decision of the Year" - though, of course, there's plenty of year left . . .

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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