Today is  Judge Katherine Bolan Forrest’s seven month anniversary on the bench of the Southern District of New York, having been appointed by President Obama to fill Jed Rakoff’s seat, and it’s an anniversary worth celebrating. Not because seven months is such a big deal, but because her decision in Hedges v. Obama shows that the President did at least one thing right when he appointed her to the court.

The indefinite detention provision buried within the 2012 National Defense Authorization Act, which  Obama signed with a lame excuse after flipping from his prior position,  The President explained in his signing statement:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

And if you say it’s unnecessary and will never be used, that makes it a good law? No matter. The President signed it, and law it became.  Four plaintiffs with curious backgrounds brought suit in SDNY to hold it facially unconstitutional.  Granting a preliminary injunction Judge Forest found they have a substantial likelihood of prevailing.  It may seem both obvious and proper to many, but it’s a monumentally bold move for a new judge in a highly controversial, politically charged and legally problematic case. Yet, she did it.

The action itself isn’t without some curious problems, initially stemming from the fact that suit was brought in advance of someone being actually indefinitely detained.  Of course, if the case wasn’t ripe until someone was, in fact, indefinitely detained, it would present a host of problems, even if we didn’t take the word “indefinitely” literally. Rather, an American seized off the streets of Des Moines and held incommunicado, with neither charges nor access to counsel, would have a really hard time suing the United States of America unless and until he was released from detention. 

Of course, that means he would have already suffered all the harm possible (sorry, pal, but that’s how our legal system works), and may well find some stumbling blocks, like state secrets, to prevent an answer to silly questions like “why?”

But Judge Forrest didn’t allow peripheral questions to blind her to the big issue, the facial unconstitutionality of the notion that the Executive, in executing the power of one branch of government, imprison a person without charges or review by another branch of government, because he is, after all, the Executive.  She offered the Department of Justice an opportunity assert that no conduct by plaintiffs would subject them to indefinite detention, and the government declined. So be it, the court concluded.

Over at Volokh Conspiracy, my buddy Orin Kerr finds the new judge’s reasoning “quite puzzling,” which is profspeak for incredibly wrong and stupid.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I don’t think it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct.

Orin raises an interesting point about whether a law that prohibits no conduct in itself is a criminal law.  Judge Forrest held it “akin” to a criminal law, but how, Orin questions, can a law that prohibits nothing be void for vagueness?

Orin is correct that Section 1021 doesn’t prohibit conduct, or impose punishment, as those concepts exist in criminal law. He’s wrong, however, to ignore that this is the core of what’s so horribly wrong with the indefinite detention. It’s precisely these omissions that render the law facially unconstitutional.  That the prohibited conduct is whatever the President says it is doesn’t mean that the law doesn’t prohibit conduct. It just means that it is wildly overbroad that it includes any and all conduct without limitation, provided the Executive decides that it supports any entity he deems hostile to American interests.

This is yet another example of the law providing untouchable breadth based on a lack of definition.  The less said, the broader the power. As for the lack of punishment, indefinite detention may not be a sentence of imprisonment, but you still have to eat cheese sandwiches on white bread while wearing an unflattering jumpsuit.  The absence of an end date doesn’t strike me as a good reason to not consider it punishment. In fact, it strikes me just the opposite.

The issues Orin raises reflect a more insidious problem, and one that goes well beyond this horribly misguided law. Congress has gone into the business of crafting hybrid laws, skirting the traditional definition of criminal laws (and often officially calling them civil which somehow make imprisonment feel much cheerier) and thereby defying constitutional scrutiny, whether over vagueness or due process.  Another example of a hybrid criminal law is the post-sentence “civil” incarceration of sex offenders, or civil in rem asset forfeiture.

While these hybrids are different in basic ways, the point is that the traditional dichotomy between criminal and civil law has long since blurred, as has the creation of fully conceived crimes, with all the components ranging from definitions to sentences. That §1021 doesn’t fit the mold isn’t a reason why it shouldn’t be subject to constitutional scrutiny, but rather a reason why it must. 

Tell the guy (which of course isn’t likely to happen, since no one will ever have an opportunity) who is “disappeared” that you’re sorry, but since he didn’t commit a crime and was never convicted and sentenced that his indefinite detention defies constitutional scrutiny. No doubt he’ll feel better about eating cheese sandwiches in a jumpsuit.  Forever. For nothing.