Supporting Terrorism?

Due Process and Indefinite Detention

Last New Year’s Eve, President Obama signed into law the “National Defense Authorization Act for Fiscal Year 2012.” Intended to reinforce the 2001 law that empowered the president to respond to the crimes of 9/11, the new statute grants him powers that may go beyond constitutional limits.

The 2001 law gave the president broad power to use force against those who were responsible for that year’s terrorist attacks. The 2012 law gets specific: the President is authorized to detain “covered persons” under the law of war. Who are “covered persons?” Those who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States.” Such forces include anyone “who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Here’s where the trouble starts: such persons may be detained “without trial until the end of hostilities.” In short, the new law permits the arrest and indefinite detention without trial of anyone who can be described as a supporter of the criminals who perpetrated the 9/11 attacks. Given the gravity of the consequences, a more precise standard of “support” might have been devised. Without such a definition, the 2012 law may cause a good deal of mischief.

Recently, a group of plaintiffs, anxious about their status as possible “supporters,” formed to challenge the new law on constitutional grounds. Their individual concerns are set out in the complaint filed in Hedges v. Obama in Manhattan’s federal district court.

The plaintiffs faced an immediate hurdle. Not everyone opposed to a law is in a legal position to challenge it: the challenger must show that he is personally at risk. This rule satisfies a constitutional requirement that federal courts deal only with real controversy, lest the judiciary become a revisory legislature.

The plaintiffs in Hedges were prepared for this problem. Consider, for example, the claims of the lead plaintiff, Christopher Hedges, a journalist who has conversed with members of al-Qaeda, the Taliban, and other terrorist groups as part of his investigative and reporting work. Hedges feared he might be deemed an “associate” of terrorists. A judge agreed this was possible and sustained Hedges’s “standing” (and that of the other plaintiffs) to bring the suit.

Courts then turned to the substantive claim that the 2012 law impairs free expression and is too vague with regard to due process.

On May 16, U.S. District Judge Katherine Forrest, having found that the statute failed both tests, granted a preliminary injunction. She found that, while some of the plaintiffs had expressed views that were political, extreme, and unpopular, these views could not be shown to have incited violence. She also agreed with the plaintiffs that the new law “has in fact chilled” their expressive conduct. Because the law failed to define with precision the offenses at which it was directed, the plaintiffs had good reason to worry they were at risk of detention. The vagueness of the statute meant that a person could be seen to “support” forces “associated” with al-Qaeda “without even being aware that he or she was doing so.” That would violate due process. The court decided that these concerns warranted a preliminary injunction against the statute.  Further proceedings will determine whether a permanent injunction is justified.

Detention without trial is indeed a remarkable departure from American norms. Congress is our usual source of policy, to which courts must defer, but legislation that authorizes so radical a procedure must be given the closest scrutiny. However dangerous the post-9/11 world may be, the United States is not North Korea or China.

The writ of habeas corpus, protected by the Constitution (article one, section nine), may be used to challenge the validity of any detention. Unlike the Hedges complaint, which preceded possible detention of the plaintiffs, a suspect arrested by the government and confined without trial may challenge his detention by a petition for the writ of habeas corpus. An Algerian detainee at Guantanamo invoked the writ and, pursuant to the Supreme Court decision Boumediene v. Bush (2008), was eventually released to France. Prisoners in more recent cases, decided in federal court, have not been so lucky. If the government can show—by a mere “preponderance” of the evidence, not proof beyond a reasonable doubt—that the prisoner is justly confined, the habeas petition will fail. If the trend of recent dismissals of such suits continues, it will confirm a remarkable departure from American legal tradition.

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About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).