CONGRESSIONAL INTENT OR STATUTORY PURPOSE?

How should judges approach the actions of Congress in the recent terrorism cases? As I understood the arguments, the government claimed yesterday that the 9/18/2001 congressional authorization of the use of force indicates congressional intent to allow for military detention of individuals as "enemy combatants." Here's the relevant language of the resolution:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (emphasis added)

Justices Kennedy and O'Connor seemed particularly interested yesterday in the question of congressional intent. Did Congress intend to allow the president to designate individuals as "enemy combatants" and then detain them for the duration of the war on terrorism, without allowing courts to look into the process that led to the detention?

In this context, consider some of Lief Carter and Thomas Burke's arguments against the search for legislative intent, and their support for inquiries into statutory purpose:

Judges who use a 'legislative intent' approach. . .attempt to resolve statutory conflicts by studying the intentions of legislators who voted for the statute. They try to figure out how the legislators thought that the statute should apply to the case in question. . .

A legislature is an organizational unit of government. By itself a legislature can no more intend something than can a government car or an office building. People intend things, and, because the elected representatives in a legislature are people, they may intend something when they vote. . . . However, here three difficulties fatal to the cause of legislative intent arise.

First, intent is subjective. It is usually impossible to tell with 100 percent certainty what anyone, ourselves included, intends. Thus, if a majority of legislators were fortunate enough to intend the same thing, it is highly unlikely that judges could actually discover what that thing was. . . .

Second, we know enough about politics to know that in all likelihood the individuals making up the voting majority do not intend the same thing. Most will not have read the statute they vote on. By casting their vote some will intend to repay a debt, or be a loyal follower of their party leaders, or to encourage a campaign contribution from a private source in the future. If we want to deduce collective intent on anything, we must take a poll, and the only poll we ever take of legislators is when the presiding officer of the house calls for the vote to enact or defeat a bill. "Yes" voters intend to vote yes, and "No" voters intend to vote no, but that's about all we can accurately say about their intentions.

The third and most serious difficulty is that . . . it is highly unlikely, if not absolutely impossible, that they intended anything about the unique facts of the case before the court. Legislatures simply do not confront the concrete and always unique factual case. . . . In all probability no one in the legislature foresaw the precise problem facing the judge, and it is even less likely that the legislature consciously intended to resolve the case one way or another. (Reason in Law, 6th ed., 78, 81-82)

Carter and Burke then go on to argue that an attempt to understand statutory purpose is more fruitful than an attempt to understand legislative intent:

Statutes become meaningful only to the extent that their words fit some intelligible purpose. . . .

[J]udges who feel they must articulate a sensible statement of purpose will necessarily search. . .into dictionaries, canons, verbal contexts, and competing social policies as well as history itself. They will coordinate the materials in order to reach a confident articulation of purpose. (84, 88)

In the context of the terrorism cases, the question of purpose should be central. I don't know how you can answer the question of whether or not Congress intended to allow the president to use an enemy combatant designation to detain individuals indefinitely in the precise way that this administration has done so. I find Justice Souter's approach more sensible, partly because it goes in the direction of inquiries into purpose. See Eric Muller's post on Souter's questioning yesterday, here. A key quote from Muller:

Souter's point, as I understood it, was that even if the congressional resolution that Congress passed just after 9/11 might be read as authorizing presidential detentions of US citizens for some period of time at and after the peak of the crisis, at some point further and more explicit congressional authorization would be required to support long-continuing detention (or new detentions initiated a while after the peak of the crisis).