Military Detention Authority

Scope of Military Detention Authority: Hedges v. Obama in 2013

United States views on international law [1] in relation to Scope of Military Detention Authority: Hedges v. Obama: On July 17, 2013, the U.S. Court of Appeals for the Second Circuit issued its decision in Hedges et al. v. Obama et al., 724 F.3d 170 (2d Cir. 2013). The case was brought by activists and journalists who allegedly feared they could be detained under the authority affirmed by the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”). The lower court granted both preliminary and permanent injunctions against enforcement of Section 1021(b) of the NDAA. The Court of Appeals for the Second Circuit vacated the injunction and remanded the case. The opinion of the appeals court reviews the history of the military detention authority, beginning with the Authorization for the Use of Military Force (“AUMF”) following the September 11, 2001 attacks. The opinion reviews litigation regarding the scope of the executive's detention authority, including the Hamdi, Padilla, and al-Marri cases. And the opinion surveys developments in the law relating to Guantanámo detainees, including Boumediene; the Obama administration memorandum to the D.C. District Court (the “March 2009 Memo”) stating the government's position regarding its detention authority for detainees at Guantánamo; subsequent D.C. District Court rulings; and the D.C. Circuit's decision in al-Bihani and subsequent cases.

Some Aspects of Scope of Military Detention Authority: Hedges v. Obama

Viewing the NDAA against this backdrop, the Second Circuit held that the plaintiffs lacked Article III standing to challenge the NDAA. First, the U.S. citizen plaintiffs lacked standing because the NDAA said nothing about application to U.S. citizens. Second, the non-citizen plaintiffs lacked standing because they face a sufficient threat that the detention authority affirmed by the NDAA would be exercised against them. Excerpts follow from the opinion of the court of appeals (with footnotes omitted). For background on Hamdi, see this world legal encyclopedia (in relation to issues that took place in the year 2004) at 1001-15; for Padilla, see this world legal encyclopedia (in relation to issues that took place in the year 2005) at 1018; for al-Marri, see this world legal encyclopedia (in relation to issues that took place in the year 2008) at 917-18; for Boumediene, see this world legal encyclopedia (in relation to issues that took place in the year 2008) at 891-903; for the March 2009 memo, see this world legal encyclopedia (in relation to issues that took place in the year 2009) at 732-40; for al-Bihani, see this world legal encyclopedia (in relation to issues that took place in the year 2010) at 75456 .

Developments

The AUMF authorized 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.” Section 1021(a) “affirms” that the AUMF authority includes the detention of a “covered person[ ],” which under Section 1021(b) means (1) a “person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or (2) a “person who was a part of or substantially supported alQaeda, 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.”

Details

At first blush, Section 1021 may seem curious, if not contradictory. While Section 1021(b)(1) mimics language in the AUMF, Section 1021(b)(2) adds language absent from the AUMF. Yet Section 1021(a) states that it only “affirms” authority included under the AUMF, and Section 1021(d) indicates that Section 1021 is not “intended to limit or expand the authority of the President or the scope of the [AUMF].”

More

Fortunately, this apparent contradiction—that Section 1021 merely affirms AUMF authority even while it adds language not used in the AUMF—is readily resolved. It is true that the language regarding persons who “planned, authorized, committed, or aided” the 9/11 attacks (or harbored those who did) is identical in the AUMF and Section 1021(b)(1). The AUMF, however, does not merely define persons who may be detained, as does Section 1021(b). Instead, it provides the President authority to use “force” against the “nations, organizations, or persons” responsible for 9/11. Section 1021(b)(1) (read with Section 1021(a)) affirms that the AUMF authority to use force against the persons responsible for 9/11 includes a power to detain such persons. But it does not speak to what additional detention authority, if any, is included in the President's separate AUMF authority to use force against the organizations responsible for 9/11.

More

This is where Section 1021(b)(2), a provision concerned with the organizations responsible for 9/11—al-Qaeda and the Taliban—plays a role. Section 1021(b)(2) naturally is understood to affirm that the general AUMF authority to use force against these organizations includes the more specific authority to detain those who were part of, or those who substantially supported, these organizations or associated forces. Because one obviously cannot “detain” an organization, one must explain how the authority to use force against an organization translates into detention authority. Hence, it is not surprising that Section 1021(b)(2) contains language that does not appear in the AUMF, notwithstanding Section 1021(d). Plaintiffs create a false dilemma when they suggest that either Section 1021 expands the AUMF detention authority or it serves no purpose.

Resources

Notes

1. Scope of Military Detention Authority: Hedges v. Obama in the Digest of United States Practice in International Law