As a preliminary matter, the decision’s entire premise is factually wrong. Judge Forrest simply ignores a wide body of D.C. Circuit case law that makes her conclusion untenable. This is not to say that she is bound by D.C. Circuit precedent. She isn’t. But what the D.C. Circuit has done in the detention space is an important piece of the factual landscape as to the state of the law she is interpreting. To ignore it—as she mostly does—and misstate it—as she does when she’s not ignoring it—creates a fundamental factual error regarding the change that Section 1021 of the NDAA actually brought about.
Judge Forrest’s basic argument is that the NDAA did not—as it purports—merely codify and reaffirm the detention authority in the AUMF but expanded it and expanded it in a fashion that is uncons utionally vague as to mere supporters of enemy forces. Her evidence of this is differences in the statutory texts, which are real, and a purported reading of the NDAA’s legislative history. Having watched the NDAA’s legislative history as closely as anyone—indeed having played some role in it—I can say flatly that there is almost nothing true about her account of how and why this law developed. This is the kind of judicial legislative history, in fact, that makes one get in touch with one’s inner Scalia. But let’s put that issue aside. The far bigger problem is that she almost completely ignores the D.C. Circuit’s history of interpretation of the AUMF in the detention context. And the D.C. Circuit’s work is important because the AUMF that Congress was legislating against when it wrote the NDAA was not the plain text of the AUMF itself. It was the AUMF as interpreted by the D.C. Circuit in roughly a dozen habeas cases. And to put the matter simply, support of enemy forces has been part of this interpretation of the AUMF’s detention authority from the beginning.
Judge Forrest acknowledges at one point very late in the game (see pp. 106-107) that the D.C. Circuit in Al-Bihani seemed to allow detention on the basis of support. But she pretends that this is merely an interpretation of the Military Commissions Act, not the AUMF itself:
In Al-Bihani, the D.C. Circuit . . . found . . . that the 2006 and 2009 MCAs provided for military detention of those individuals who “purposefully and materially supported” enemy belligerents of the United States or its coalition partners (the MCAs are not, however, statutes authorizing the use of military force). At the August hearing in this action, the Government stated that the MCA plays no role in the case before this Court. This Court agrees: the phrase “materially supported” as used in Al-Bihani does not shed light on the interpretation of “substantial support,” as used in § 1021(b)(2). Moreover, even in the MCA there is a requirement that the “material support” be purposeful. Notably, § 1021(b)(2) does not require that the conduct which could subject an individual to detention be “knowing” or “purposeful.”
This is dead wrong. The D.C. Circuit’s invocation of the MCA in Al-Bihani occurs merely as a means of informing its interpretation of the AUMF, not as a standalone detention authority. Here’s what the D.C. Circuit actually said:
The AUMF authorizes 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.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, . XVIII, 123 Stat. 2190, 2575–76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id. § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners (emphasis added).
This interpretation received a fair bit of criticism, including from Steve, as the D.C. Circuit incorporated it into its later cases. But it received criticism as an interpretation of the AUMF–which it plainly was. So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power. (In fact, to the extent the NDAA brought about any change, it was a change limiting detention authority by clarifying that it is, in fact, subject to the laws of war, as Steve and Marty Lederman explained in this post. But that’s a story for another day.)
Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.
Having made these very basic errors—at very great length—Judge Forrest then issues her injunction. But for its text, we might treat her opinion as a form of comic performance art.
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