DOJ Files Appeal: Further Thoughts On Hedges and The Lawfare/Wittes Analysis

Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.

I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.

As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.

I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.

Wittes makes three main critiques. The first:

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.


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.

Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:

Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.

First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any guide. This is what I often refer to as “rambling”, and it is that.

Secondly, I note, significantly, Ben does not mention, much less meaningfully challenge, Forrest’s discussion on, and finding of, standing for the Hedges Plaintiffs. He should, it is every bit as big of an appellate concern as the three areas he does list. Forrest, in effect, used the disdain the Obama DOJ displayed to the court in not affirmatively presenting evidence and otherwise engaging in the initial March hearing on the merits of the plaintiffs’ situation as her basis for finding standing under Lujan v. Defenders of Wildlife.

Forrest does an admirable job laying out a foundation for her finding of standing, but the 2nd will take some issue and it is almost certain the Roberts Court who, are ideologically led by Scalia in their ever more restrictive view of standing, will reverse Forrest. If I am writing the inevitable DOJ appeal, that is where I start. And if an appellate court, as I suspect, starts there and disagrees with Forrest, the inquiry may end right there without getting into further merits. I would not bet against just that happening.

Standing issue aside, Ben Wittes’ demurrers to the Hedges opinion are also salient. Initially, I was going to deconstruct the heart of Ben’s take via some older material from another Lawfare protagonist I very much respect, Steve Vladeck. Due to other duties interrupting the writing of the instant post, Steve has come along and done that for me in a post at Lawfare:

Indeed, I’m not perplexed by the theory behind Judge Forrest’s analysis, but by its application to these facts. Consider section 1021(e) of the NDAA, a.k.a. the “Feinstein Amendment”:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

As Marty and I explained in this post, the entire point of the Feinstein Amendment was to quell concerns that the NDAA might covertly authorize the detention of U.S. citizens or other individuals within the United States. It did so by emphasizing that it merely preserved the (entirely ambiguous) status quo in such cases. This proviso didn’t resolve the scope of the government’s authority to detain such individuals; it merely provided that the NDAA didn’t change that question in any meaningful way.

As such, the Feinstein Amendment appears to necessarily foreclose the argument that what’s “new” in the NDAA could encompass any power to detain individuals covered by section 1021(e), i.e., “United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Such individuals might still be subject to detention under the AUMF, but thanks to the Feinstein Amendment, only under the AUMF. And so, to the extent that Judge Forrest’s analysis turns on the conclusion that the NDAA confers detention authority not provided by the AUMF, one would think she’d have to explain why the Feinstein Amendment doesn’t limit the “newness” of the NDAA exactly to those individuals with less clearly established constitutional rights, e.g., non-citizens arrested and detained outside the territorial United States.

You may say to yourself, well what is there particularly positive about Vladecks’ take? And it is a decent question. The answer is, admittedly, nuanced and somewhat thin. But it starts with the fact Steve is willing to consider Forrest’s “central premise”. And, indeed, contra Ben Wittes, I think it is more than possible to envision the Katherine Forrest framing in a world that is capable of distinguishing between Ex Parte Milligan and Ex Parte Quirin in a more liberal Founding Fathers view as opposed to the militaristic “War On Terror” view such as is the single minded view of the Bush/Cheney to Obama Executive Branch unitary theory.

Secondly, and as Wittes appropriately notes, Judge Forrest is in no way bound by the hideous precedent that has been laid down by the DC Circuit. No, Forrest operates in the 2nd Circuit and is not bound by the crazed opinions of Janice Rogers Brown and the War On Terror Stockholm Syndrome infected DC Circuit that seems to have lost all perspective of that from whence we came. Give Katherine Forrest credit, I think she understands the slippery and craven hill she is heroically trying to climb, and that is why she engages in such rambling attempts to buck up her position.

As to Ben’s last beef, the overbreadth of the permanent injunction, well, yeah, that is the nature of the beast, no? Seriously, when any federal court is interpreting a statutory decree of Congress on a “facial”, as opposed to “as applied” basis, especially one as far reaching and contra to Founding principles as Section 1021(b) of the NDAA, the injunction has to really be that broad to engage the “face” of the statute. So, that one is not really the crux of the consideration in this case.

In conclusion, I have to, regrettably, agree with my friend Ben Wittes, the shelf life of the joy from Katherine Forrest’s decision in Hedges et. al v. Obama is remarkably short. That does not mean it does not have immense value though. Doomed as it may be, it is a significant and principled pushback at the treachery engaged in by the DC Circuit in the “Detainee Cases”. It almost certainly will not hold up, but I have not in recent times (maybe not since Vaughn Walker) had more respect for what a federal judge has tried to do to protect the Constitution and principles this country was built on.

8 replies
  1. pdaly says:

    Point of law question:
    While the appeal is pending, what is the status of the judge’s injunction?

    Enforced? or Suspended pending appeal?

  2. bmaz says:

    @pdaly: That is easy. Forrest is a Federal judge. Her decision is law within her district – which is the SDNY – until specified otherwise by the 2nd Circuit.

    At that point, the 2nd Circuit can put a stay on the entire injunction entered.

    And that is exactly what I envision happening.

    You have no idea how hard that is to say; but there it is.

  3. What Constitution says:

    Of course there will be appeals and of course the government’s position will be that the decision of Judge Forrest is wrong. It would be foolish to suggest otherwise. That doesn’t mean the government’s position is right and it certainly doesn’t justify making dismissive soundbite attacks on the ruling based on biased presumptions and internally contradictory interpretive pronouncements — unless, of course, one agrees with the idea that it should be OK for the government to detain journalists for doing their job since we live in “dangerous times”. For those who don’t agree with that proposition, Judge Forrest’s opinion merits better than analysis of the likes of that Wittes has postulated and, while I applaud bmaz generally, I disagree with rushing to dismiss the ruling as thus far displayed. Since I get bmaz’s assertion of only “regrettably” taking the position that Judge Forrest’s decision is “doomed”, I’ll speak up for the idea that Judge Forrest’s opinion may well withstand appellate scrutiny, particularly if the best anyone can come up with is what Wittes had to say.

    Regarding Wittes’ article, I’m astounded that an actual lawyer person would (1) acknowledge that the series of DC Circuit opinions being alluded to are simply not binding precedent in the Second Circuit (which is absolutely correct) but then (2) nonetheless castigate Judge Forrest for not following the reasoning of those decisions into the new and different facts of this case. I believe it is safe to say that reasonable minds don’t all agree with the series of DC appellate cases bent on locking away all dangerous little brown men who don’t like us — and that some might consider them to be not much more than a series of cases adopting some extraordinary measures “justified” under the guise of extraordinary threats. Thus, it can hardly be suggested that every other court should defer to those conclusions as binding in any other factual circumstance. In other words, distinguishing the DC opinions and having the courage not to blindly adhere to all their professed teachings is not a “failing”, it is the proper role of an independent Federal judiciary. I, for one, have no problem distinguishing cases involving the propriety of detaining “dangerous terraists” from those involving the potential detention of journalists for acts of journalism under a law passed by Congress when the First Amendment says, in part, that “Congress shall pass no law” doing that. I’d appreciate having a court be reluctant to extend dubious and dangerous precedent arising in factually distinct circumstances to a case such as this one, and I certainly wouldn’t announce the judicial action “DOA” because of it, as Wittes rather casually and sanctimoniously seems wont to do.

    Secondly, taking refuge in the Feinstein amendment to the NDAA is very close to scurrilous. In essence, this argument is that the Feinstein Amendment “clarified” that the NDAA did not “change” the law under the AUMF and “therefore” that the NDAA does not justify the plaintiffs’ assertion of concern over detention. The conclusion does not follow from the premise, to put it mildly. The Feinstein Amendment was a truly Orwellian diversion that was designed and presented to keep murky precisely what the scope of detention rights was/is/would be. Read Senator Levin’s comments — basically, that nobody knows what the law is, but whatever it is, the NDAA doesn’t change it. Wholly apart from the stunning admission of legislative malpractice involved in stating you don’t know what the law you’re legislating about actually is, that’s still a very far cry from “the NDAA would not allow the detention of a journalist”. To argue now that the Feinstein Amendment “clarifies” anything to a degree negating the claims of the journalist plaintiffs in this case is sophistry at best, “gotcha” argumentation and nothing more and, if accepted at face value ought to invalidate the detention provisions as unconstitutionally vague. There is no statement, no interpretation, no practical history which “establishes” that even under the pre-NDAA AUMF the government might not have taken the position that a journalist could be detained over “unsupportive” reporting — so it is equally true that the NDAA, as written and understood, was intended to preserve such a “right” had the government chosen to assert it. If there is anyone who thinks that the actions of the Obama administration create less, rather than greater, concern on the part of journalists for reporting what they learn, that person is not paying attention, and to try to argue that Judge Forrest’s opinion is “flawed” in any respect by reason of the Feinstein Amendment is, at least arguably, unpersuasive — and the government’s outright haughty refusal to engage the Judge’s repeated requests to clarify what it would or would not do constitutes an outright invitation to rule that that the journalists in this case have a justifiable, present and unmitigatedly threatening basis for being concerned about what the government might do to them for reporting the news. Wittes’ arguments over degrees of “substantial” or “material” under statutory terminology in the AUMF, the NDAA and DC opinions is, frankly, misplaced when viewed up against “Congress shall make no law”, and arguing over the Feinstein Amendment only emphasizes — it does not overcome — this fundamental issue.

    This case isn’t going to end this issue, since the Obama administration is still holding the “Unitary Executive Card” and will continue to threaten journalists with detention under that chimeric Yoo-inspired myth (yes, this is in fact the basis on which the Obama administration objected to the NDAA, that it would “intrude” upon the President’s “commander in chief powers” and the like). Of course, it would be so much more convenient for Obama (and his successors) to be able to point to a congressional statute as the basis for ignoring the First Amendment in such matters, so it is to be presumed the administration vigorously will pursue an appeal from Judge Forrest’s ruling. I don’t see why anyone should want to acquiesce in that.

    Which brings me to one last point, then I’ll shut up. If Wittes, et al, want to go the route (and he did) of assuming that the Supreme Court will reverse this decision because Scalia is so rabid, etc., would somebody at least have the decency to quote what is, in fact, the actual, current, five-Justice-supported linchpin principle asserted in Justice Kennedy’s majority opinion in Boumediene v. Bush — that the Constitution applies even in dangerous times. I’ll take that as a basis for asking courts to tell us “what the law is” and whether Congress can pass a law containing detention provisions like those in the NDAA — and I’ll take a judicial decision implementing that Supreme Court ruling in this context so that some hardy U.S. President has to weigh that into a calculus about how far the President can go under the gossamer construct of absolute power that is Cheney’s “unitary executive” argument. Scalia’s colorful rants are not the position of the law as announced by the U.S. Supreme Court, regardless of the efforts of the D.C. Circuit, so I’m not ready to forego the defense of Judge Forrest’s decision on any basis that would defer to that fatalism.

    Who’s up next from the neocon pantheon/neocon pantheon wannabe wing to dismiss that wacko terraist-loving librul in the SDNY? I’ve got to admit, I’m more looking forward to a well-briefed appeal and not a two day burial.

  4. JohnLopresti says:

    Thanx for the review, Bmaz. Although, having listened to two of the complainants incidentally on radio over the past four years very rarely and fleetingly, I can understand why it would take SDNY to come to their defense. These are famous people, and I shall not say more.

    Additionally, professor Vladeck’s posts typically are well worth review, too; so the companion link to his post at Lawfare blog is welcome. Lawfare’s standard fare seems to push democracy too far to the right, though; and I avoid that site unless writers like Vladeck and Lederman are making an appearance there.

    Offtopic: The case that puzzled me recently was one concerning the DoJ’s attempted advancement of yet further new regs turning gtmo A/C interviews on their ear; Ew wrote about judge Lamberth’s September 6, 2012 opinion in that matter, as well. Hafetz’s comment on that case appeared there.

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