JURIST Guest Columnist Tung Yin of Lewis & Clark Law School says that the government’s unwillingness to clearly define which activities would make someone a ‘covered person’ under section 1021 of the NDAA likely resulted in a US District Court ruling that the section was unconstitutional…

T he case of Hedges v. Obama will probably go down in history as one of the prime examples of how the oral argument can rarely help salvage a losing cause, but it can definitely sabotage an otherwise winning one. As a result of the government’s refusal to state clearly that the plaintiffs’ activities would not subject them to military detention, US District Judge Katherine Forrest granted the plaintiffs’ motion for a preliminary injunction against a controversial provision of the National Defense Authorization Act of 2011 (NDAA).

In Hedges, a group of journalists and activists challenged section 1021 of the NDAA on First and Fifth Amendment grounds. The key provision in section 1021 at issue reads:

Congress affirms that the authority of the president to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (AUMF) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

“[C]overed persons” is a defined term that includes:

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 plaintiffs argued that the broad, ambiguous scope of the terms “substantially supported,” “associated forces” and “directly supported” left them fearful that their activities — such as “me[eting] with members of Hamas’ leadership, stay[ing] in their homes, and socializ[ing] with them;” publishing journalistic articles about US military misconduct; and organizing discussion panels that include Hamas members as speakers — would leave them vulnerable to classification as “covered persons” subject to military detention. Furthermore, they argued that this fear only arose after the passage of the NDAA because they understood the NDAA as conveying to the president detention authority beyond that implied by the congressional AUMF of September 18, 2001.

In Hamdi v. Rumsfeld, the US Supreme Court held that the AUMF provided the president with the statutory authority to detain enemy combatants — including those who were US citizens — under the laws of war. The critical difference between Yaser Esam Hamdi and the plaintiffs in Hedges was that Hamdi was presumed to have been fighting with the Taliban against the United States and its allies. These plaintiffs contended that they had altered their non-fighting activities as a result of the NDAA’s broader scope, and thus their First Amendment rights had been infringed.

One would not have thought much of the plaintiffs’ chances to survive a motion to dismiss for lack of standing or ripeness, especially the ones who are US citizens. The only two US citizens to have been detained indefinitely as enemy combatants were Hamdi and Jose Padilla — both captured within the first six months of armed conflict against al Qaeda and the Taliban. Hamdi was released in late 2004 to Saudi Arabia, and Padilla was transferred to the criminal justice system in 2006 and later convicted and sentenced to prison. Thus, no American citizen had been detained pursuant to the AUMF in six years.

Moreover, similar types of challenges to counterterrorism efforts by the federal government have foundered on standing and ripeness grounds. For example, during the civil rights movement in the 1960s, a group of plaintiffs argued in Laird v. Tatum that the US Army’s practice of monitoring their public gatherings produced a “chilling effect”; the Supreme Court held that these plaintiffs failed to allege an actual or threatened injury because they were complaining about speculative future government action. More recently — and more closely related to this case — in American Civil Liberties Union v. National Security Agency the US Court of Appeals for the Sixth Circuit threw out a challenge to the legality of the National Security Agency’s (NSA) post-9/11 warrantless electronic surveillance program for lack of standing. There, the plaintiffs included journalists and activists who alleged that they refrained from taking certain actions (contacting foreign sources and the like via telephone and email) to avoid having their communications intercepted by the NSA, thereby incurring additional expenses to communicate with those sources. The court observed that plaintiffs framed their harm this way so as to claim a concrete and imminent harm, but that such harm was only incidental to the alleged wrong.

To be sure, there are differences between those cases and this one. One might also note that the US Court of Appeals for the Second Circuit did find standing in Clapper v. Amnesty International — a case challenging the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) — where the plaintiffs raised similar arguments about being injured by having to alter their activities to avoid being subjected to warrantless surveillance. But even if the standing issue was at least debatable, what should have been damaging, if not fatal, to the plaintiffs’ case was President Barack Obama’s signing statement for the NDAA, in which he stated “my Administration will not authorize the indefinite military detention without trial of American citizens.”

Yet, the district court found that the plaintiffs indeed had standing to pursue the case. Why? The answer is that Judge Forrest emphasized the government’s ample opportunity to destroy the plaintiffs’ standing by:

[S]tat[ing] unambiguously that the type of expressive and associational activities engaged in by plaintiffs — or others — are not within §1021.

It did not. In fact, this was the backbone of her opinion — she reiterated this point a total of five times.

What remains unknown is why the government was unwilling to concede that the specific conduct identified by the plaintiffs was not substantially supportive of al Qaeda, the Taliban or associated forces engaged in hostilities against the US or coalition partners; or, at a minimum, why the government didn’t concede that the American citizen plaintiffs’ weren’t “covered persons” no matter what conduct they engaged in.

Occam’s razor suggests that the answer is probably an excessive degree of unwillingness to be pinned down — a somewhat understandable concern — especially given the Obama administration’s targeted killing of American citizen Anwar al-Awlaqi without a trial (a decision seemingly inconsistent with the principle behind the president’s signing statement). But it was also ultimately fatal to the government’s motion to dismiss.

Tung Yin is a Professor of Law at Lewis & Clark Law School. His scholarly work has focused primarily on domestic legal issues arising out of the US military and prosecutorial responses to the 9/11 attacks and has examined such matters as the jurisdiction of the federal courts to entertain habeas petitions by Guantanamo Bay detainees, the theory of unilateral executive branch war powers and the potential constitutional rights available to alien detainees outside the country.

Suggested citation: Tung Yin, Hedges v. Obama: Defining ‘Covered Persons’ under the NDAA, JURIST – Forum, May 28, 2012, http://jurist.org/forum/2012/05/tung-yin-hedges-v-obama.php.

This article was prepared for publication by Caleb Pittman, head of JURIST’s academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org