The National Defense Authorization Act contains some ugly draftsmanship and some head-scratchingly vague wording on the issue of battlefield captures. That said, my long time professional opinion was that it probably wasn’t something worth worrying overly much about, particularly when their were bigger fish to fry in the realm of warrantless wiretaps and the upcoming sunsetting of FISA provisions. That having been said, others have not been so germane to the problem, and for the moment at least, they have won a major victory in getting a permanent injunction against the section of the NDAA that caused the hubbub.
From the ruling:
For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies or whether in light of existing authorization and existing
criminal statutes § 1021 is needed at all.
This Court has stated its position as directly presented to it by the Government I that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of “substantially supporting” or “directly supporting” the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.
Of course a permanent injunction in District Court is one thing, getting the 2nd Circuit and ultimately the Supreme Court to agree is another thing. Since the issue presented in this case is what is known as a “pure question of law” the higher courts will be under know obligation of deference to the decision of the trial court. Judge Forrest clearly had that issue at the forefront of her mind, and to that end her opinion contains a bit of a love letter to Justice Antonin Scalia, quoting with great approval the language he has used to condemn some of the case law the Government used to justify it’s position.
But this fight has only just begun, and as this appeal goes forward there are some very heavy hitting attorneys from the Solicitor General’s office who will now get involved in what should have been a much harder case for the District Court. The Judge’s opinion is littered with coded references to the fact that the Government lawyers had really blown their case and hadn’t made much in the way of the sort of reasonable arguments that the Court would like to have heard. This may be a case of the trial attorneys being lousy, or it may be a result of bad communication about what the government’s actual position on the case was from the White House. Either way, however, the next round of litigation will be much more fraught for the litigants.