Sens. Lindsey Graham & John McCain in Kabul, Afghanistan in October 2009 (U.S. Navy photo by Mass Communications Specialist 3rd Class Jeffrey M. Richardson)

Senators from the Republican Party have asked a federal appeals court to permit them to participate in oral argument in a lawsuit against the indefinite detention provision of the 2012 National Defense Authorization Act (NDAA).  Through their lawyers, according to Josh Gerstein of POLITICO, they filed a motion requesting ten minutes to give a presentation on the intent of the provision and how the court’s resolution of this matter could affect or impact Congress.

The provision at issue in the lawsuit, Hedges v. Obama, is Section 1021, which affirmed the “authority” of the US military to “detain covered persons pursuant to the Authorization for Use of Military Force (AUMF).” It defined “covered persons” as anyone who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.” It also went a step further and also included:

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.

Activists, journalists and whistleblowers signed on to this lawsuit because of the vagueness of the provision. “Substantially supported,” “directly supported” and “associated forces” are not defined. As such, the plaintiffs have contended the law violates the First, Fourth, Fifth, Sixth and Eighth Amendments of the US Constitution.

The plaintiffs won a victory in September when Judge Katherine Forrest issued a permanent injunction against the indefinite detention provision in the 2012 NDAA. The Obama administration immediately filed an appeal at the Second Circuit Court of Appeals and pushed for a stay of Forrest’s decision to restore indefinite detention powers that had been enjoined. The stay was granted.

Now, Sen. Kelly Ayotte of New Hampshire, Sen. Lindsey Graham of South Carolina and Sen. John McCain want to present an argument to the court if the case is heard next year. Lawyers for the senators write in their motion:

…Section 1021 was intended as an affirmation of a portion of the President’s detention authority under the 2001 Authorization for the Use of Military Force (‘AUMF’). This provision was strongly opposed by the Administration, which viewed it (correctly) as a rebuke to the President’s choices regarding detention in several high-profile incidents…

This indicates the senators intend to play a key role by attempting to weigh in on whether the indefinite detention provision is an affirmation of powers in the AUMF or an unconstitutional expansion of powers. If they were permitted to present argument, it could serve lawyers for the Obama administration well (even though they were opponents of one another when the law was proposed, passed and eventually signed into law nearly one year ago).

The government argues the indefinite detention provision contains no new “concepts” for why the government should have the power to indefinitely detain someone that were not in the AUMF. The government has cited a legal interpretation, a March 2009 memo, that has been used in numerous cases—in “habeas litigation brought by the Guantanamo detainees” and claimed it has been accepted in the courts:

The President has the authority to detain persons that the President determines planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces 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 hostilities, in aid of such enemy armed forces. 

Apparently, Congress adopted this interpretation in 2011, when it passed the 2012 NDAA. This interpretation from the Justice Department was different from the AUMF. The AUMF never used the terms “substantially supported,” “directly supported,” “directly supported” or “associated forces.” In fact, none of these terms appear in any laws involving detention powers before the passage of the 2012 NDAA.

Forrest acknowledged this in her ruling, where she concluded the indefinite detention provision did not merely affirm what was in the AUMF:

…The AUMF and § 1021 have significant differences, discussed below. Those differences can be traced to the legislative history and case law surrounding the AUMF.  Section 1021 appears to be a legislative attempt at an ex post facto “fix”:  to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF.  That attempt at a “fix” is obscured by language in the new statute (e.g., “reaffirmation”) that makes it appear as if this broader detention authority had always been part of the original grant.  It had not…

She also found there had been no “law of war” language in the AUMF. “Section 1021 explicitly incorporates disposition under the law of war,” she wrote:

(c) DISPOSITION UNDER THE LAW OF WAR. The disposition of a
person under the law of war as described in subsection (a)
may include the following:
(1) Detention under the law of war without trial until
the end of hostilities authorized by the [AUMF].
. . .
(d) CONSTRUCTION. Nothing in this section is intended to
limit or expand the authority of the President or the scope
of the [AUMF].

And she concluded, “Such clear embodiment of vague “law of war”  principles…has never heretofore been included in a statute relating to military detention authority after September 11, 2001. It is clear that the AUMF does not mention the law of war.” She added the government proffered this “law of war” language to support “an expansive interpretation of detention authority under the AUMF, which was rejected by multiple courts.”

In a recent interview, Bruce Afran, one of the lawyers helping plaintiffs advance the NDAA lawsuit, said the government has likely been detaining people “far too broadly under the AUMF.” They probably wanted to expand the power so it would be harder to accuse the government of violating the law. That would explain why there was all this blustering when Forrest issued her injunction that would affect the ability of the Obama administration to detain individuals in the Afghanistan war (even though Forrest’s ruling did not extend to limiting any of the executive’s power to detain combatants in conflict).

Afran provided some important context explaining how the government has only ever had the power to detain combatants, which the Supreme Court has made clear in decisions.

[The Bush Administration] never took the position of detaining people who are not combatants. The Obama administration has made that change and, in fact, three federal courts stated the Obama administration has shifted the government’s position from combatant detention to mere supporter detention. So, it’s the Obama administration that seems to be broadening detention standards beyond the Bush Administration limit on combatancy as a basis for detention. But they’ve never had the power to detain anyone except a combatant whether under US law or international law.

The Republican senators’ argument is likely to be very similar to what the government argued before Forrest earlier this year. The question becomes whether the judges care about the “intent” of Congress or if they simply conclude what Congress intended does not matter. What matters is what the law says and it does not seem to be a word-for-word affirmation of any section of the AUMF passed in 2001 when George W. Bush was president.

And with President Barack Obama about to sign an intelligence bill—the 2013 NDAA—that does nothing to reverse the expansion of executive power, which his administration has been defending in the courts, this will continue to be a key case to follow next year.