Supreme Court rejects hearing on military detention case

[struggle4progress]

11. It seems you still haven't read the 2nd Circuit decision:

... Defendants-appellants seek review of a district court decision permanently enjoining enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on the government’s authority to detain the American citizen plaintiffs and that those plaintiffs therefore lack Article III standing ...

... The controversy over Section 1021 was immediate. The government contends that Section 1021 simply reaffirms authority that the government already had under the AUMF, suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They are journalists and activists who allegedly fear that the government may construe their work as having substantially supported al-Qaeda, the Taliban, or associated forces ... The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021 ...

To reach this, the 2nd Circuit examined both case law and the legislative history:

... Senator Feinstein observed that the dispute over Section 1031 boiled down to “different interpretations of what the current law is.” Specifically, she noted that

“the sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ‘the end of the hostilities’ which, in my view, is indefinitely.

“Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted
could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.”

Senator Feinstein went on to state that, through her second proposed amendment, the two camps would agree to disagree:

“So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide” ...

Section 1031 of the Senate bill became the conference report’s Section 1021 ...

(Emphasis added)
http://legaltimes.typepad.com/files/hedges.pdf