Judge Katherine B. Forrest of the Southern District of New York, a freshly-appointed Obama nominee, issued a surprising ruling on Wednesday preliminarily enjoining Congress’s recent law providing the President with the authority to detain individuals indefinitely as part of the war on terror. I find Judge Forrest’s analysis quite puzzling, so I thought I would blog a bit about the opinion.
The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:
(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 un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:
Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.
In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.
In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:
Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.
Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
. . .
This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:
[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.
Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”
Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.
My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.
Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)
UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.