Petition denied in Hedges

The Supreme Court this morning unsurprisingly, and without comment, denied the petition for certiorari in Hedges v. Obama, No. 13-758.  The plaintiffs in Hedges challenged the constitutionality of Section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012, which affirmed that the September 2001 AUMF authorizes the military detention, consistent with and as informed by the laws of war, of persons who were a part of or substantially sup­ported al-Qaeda, Taliban, or associated forces engaged in hostilities against the United States or its coalition partners.  The U.S. Court of Appeals for the Second Circuit correctly held that the plaintiffs — two U.S. citizen journalists, a member of the Icelandic parliament, and a German citizen living in Great Britain who advocates on behalf of Wikileaks — do not have standing to sue, in principal part because Section 1021(b)(2) plainly does not authorize the military detention of the plaintiffs based upon their alleged journalistic and other activities.  That is to say, they have nothing to fear.  For more detailed explanation of Section 1021 and the laws of war, see this post that Steve and I published on Lawfare back in 2011. 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).