Supreme Court rejects hearing on military detention case

[struggle4progress]

15. I'm afraid you wouldn't be a good lawyer. The legislative history of the NDAA, as described

in the 2nd Circuit decision, is this: the rightwing wackadoodles in the Senate wanted the NDAA to explicitly codify their view of the law (namely, that the President had vast and sweeping indefinite detention powers); the saner civil libertarians wanted the NDAA to explicitly codify their view of the law (namely, that the President had no such indefinite detention powers); and finally, Feinstein proposed compromise language, saying that the NDAA didn't change the law with respect to US citizens, lawful resident aliens, or persons arrested or captured in the US (whatever that law is); the President's signing statement asserted the Executive view that the compromise language was superfluous and really said nothing helpful whatsoever. In other words, the NDAA effectively left that particular stalemate to the courts

So the NDAA does not, in fact, authorize what you claim with respect to anyone who is not a U.S. citizen and who is simply accused of aiding Al Qaida: it certainly does not authorize it (for example) with respect to lawful resident aliens or persons arrested or captured in the US -- the NDAA simply says (unhelpfully) that the NDAA does not change current law, whatever the current law might be

With regard to other persons -- that is, those who are arrested or captured abroad but are neither US citizens nor lawful resident aliens -- the NDAA applies to

(b) Covered Persons.-- A covered person under this section is any person as follows: (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. (2) A person who was a 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

The 2nd Circuit did indeed say Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad but pointed out that the matter remains unsettled: federal judges reached divergent conclusions about the scope of AUMF detention authority. For this reason, the court conceded that the foreign plaintiffs in Hedges v Obama might have an argument but noted that those plaintiffs had failed to make their argument: presumably those plaintiffs may refile if they wish to argue that there is some good cause to suspect they could be detained indefinitely on suspicion of being part of or substantially supported al-Qaeda, the Taliban, or associated forces .. engaged in hostilities against the United States or on suspicion of having committed a belligerent act or .. directly supported such hostilities in aid of such enemy forces

It is, of course, true that the legal theory of indefinite detention, that you advance, is not a product of your own feverish imagination -- but that theory is not settled law: it is merely the rightwing wackadoodle theory of detention. This is why I say you wouldn't be a good lawyer: nobody of sound mind goes into court, with the law unsettled, and argues in favor of the legal theory s/he opposes. Hedges v Obama was an appallingly stupid suit. Had the court had adopted the plaintiffs' interpretation of the NDAA but found the NDAA constitutional, under that interpretation, we would face an opinion that did allow arbitrary indefinite detention. Fortunately, the Executive and others argued against the plaintiffs' interpretation

The accurate and informative assertion is not the NDAA allows for arbitrary indefinite detention, but rather We are concerned that the courts will adopt the rightwing theory that the AUMF allows arbitrary indefinite detention -- which, at least, puts the emphasis back on genuine issues, such as the unsettled scope of indefinite military detention authority under the AUMF, and the fact that interpretation of the law depends somewhat on who has political control

Of course, arbitrary indefinite detention should matter to us, and we should make every possible effort to avoid any repeat of the idiocies and horrors of the Bush era -- but we can only be effective if we think about such topics clearly and accurately