Bench Memos

D.C. Circuit Nominee Caitlin Halligan: National Security

In March 2004, Caitlin Halligan was a signatory to a 154-page report issued by the Association of the Bar of the City of New York’s Committee on Federal Courts, titled “The Indefinite Detention of ‘Enemy Combatants’: Balancing Due Process and National Security in the Context of the War on Terror.” The report embodies the sort of left-wing extremism that the courts have rejected and that the Obama administration has had to retreat from. For example:

The NYC Bar report maintains (p. 110) that the congressional Authorization for Use of Military Force (enacted September 18, 2001) does not authorize indefinite detention of enemy combatants. But Justice O’Connor’s June 2004 opinion in Hamdi v. Rumsfeld specifically ruled that the AUMF does authorize indefinite detention of enemy combatants:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

Further, the Obama administration has argued for a broad construction of that indefinite-detention authority, and the D.C. Circuit (the court Halligan seeks to join), in a series of rulings joined by judges across its ideological spectrum, has adopted that broad construction.  See, e.g., Bensayah v. Obama (2010) (“We agree with the Government that its authority under the AUMF extends to the detention of individuals who are functionally part of al Qaeda”); Salahi v. Obama (2010).

The NYC Bar report likewise argues vigorously against the use of military commissions to try alien terrorists for violations of the laws of war (even while grudgingly acknowledging the possible legality of their use). (See pp. 113-152.) Among its arguments for instead using Article III civilian courts:

It seems self-evident that the same [constitutional] protections [afforded ordinary criminals] should presumptively extend to those individuals whom the government has seized and proposes to detain for an extended, and perhaps indefinite, period of time because they are suspected of having engaged in conduct intended to further terrorist aims, thus violating applicable criminal laws.”

But there is nothing remotely “self-evident” about the position that alien enemy combatants whose only connection with this country consists of their acts of war against it should enjoy the constitutional rights that American citizens have. That position is instead a highly dubious policy choice—one that even the Obama administration has abandoned.

The NYC Bar report also contains highly tendentious rhetoric that misconceives the rationale of detention policy, such as this passage from its executive summary (ES 4):

Why should the First Amendment right of free speech, or the Fourth Amendment right to be free of unreasonable searches, be any less subordinate to the President’s war power than the core due process right to remain free of unilateral executive detention? Pick your favorite constitutional amendment or right: its survival during the war on terror cannot be assumed if the legitimacy of these indefinite detentions is sustained.

All in all, the fact that Halligan would sign her name to the NYC Bar report ought to weigh heavily against her being confirmed to a court that has such an important role in national-security cases.

Update: Displaying its usual confusion, Media Matters contends that Halligan’s position that the AUMF doesn’t authorize indefinite detention of enemy combatants is the same as Justice Scalia’s position in Hamdi. But Scalia’s position in Hamdi is that the government can’t detain a citizen without charge, in the absence of a valid suspension of the writ of habeas corpus. Scalia does not maintain, as Halligan did, that the AUMF doesn’t authorize indefinite detention of non-citizen enemy combatants. Indeed, he states that Justice O’Connor’s description of the traditional treatment of captured enemy combatants—that they have (in Scalia’s summary) “been detained until the cessation of hostilities and then released”—“is probably an accurate description of wartime practice with respect to enemy aliens.” (Emphasis in original.)


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