Court Permanently Enjoins NDAA Detention Authority

Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague.  Judge Forrest issued a permanent injunction against its enforcement.

The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case.  The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead.  Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along.  According to Judge Forrest, it didn't.  And still doesn't.  The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself.  Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.

Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment.  That Section provides:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was 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.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."

Judge Forrest agreed.  She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority.  Here are some key points from the ruling:

• Standing.  Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment.  Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention.  For Judge Forrest, this wasn't enough.  The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
• AUMF Authority.  Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF.  Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces."  She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021.  (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."  Compare that language to the language of Section 1021(b)(2), above.)
• Alternative Use of AUMF.  Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention.  She wrote,

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

Op. at 14.

• Habeas.  Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court.  She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.

SDS