Carl J. Mayer (CM -6589) MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686

Bruce I. Afran (BA – 8583) 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075

Attorneys for Plaintiff

UNITED STATES DISTRCT COURT SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------------CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY ALEXA O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.

Plaintiffs,

INDEX NO. 1:12-CV-331 (KBF)

AMENDED

v.

VERIFIED

COMPLAINT

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE; JOHN McCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH McCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA

Defendants. ------------------------------------------------------------------------------------

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Plaintiffs, by their attorneys CARL J. MAYER and BRUCE I. AFRAN (who neither endorse nor promote the statements and activities of the named plaintiffs) individually and on behalf of all others similarly situated, as and for their Complaint against defendants, assert as follows:
1. Plaintiff Christopher Hedges is a United States citizen and a journalist who in the course of his ordinary journalistic work from time to time writes about and covers entities, organizations and persons and their associated forces that are engaged in hostilities with the United States or its coalition partners, as described under the Authorization for Use of Military Force (AUMF) (Public Law 107-40). Plaintiff Hedges has similar contacts in the course of his work with entities described in the Homeland Battlefield Act of the National Defense Authorization Act (NDAA) of 2012 (the “Homeland Battlefield Act”) signed by President Obama on December 31, 2011. As a veteran Pulitzer-Prize winning Middle-Eastern correspondent for the New York Times he has met many times with groups such as Hamas, Hezbollah, Al Qaeda and other organizations deemed “terrorist” organizations under the Homeland Battlefield Act and continues to do so in the course of his ongoing work. Plaintiff Hedges legitimately fears that the federal government will enforce the Homeland Battlefield Act against him in that his daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and his free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act. Further, Plaintiff Hedges is already incurring additional expenses and obligations to pursue his profession due to the impending implementation of the Homeland Battlefield Act.
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2. Plaintiff Daniel Ellsberg, a United States citizen, is perhaps one of the most lauded analysts, authors and whistle-blowers in US history. He is responsible for leaking the “Pentagon Papers”, which brought to light the false statements made by the Johnson administration over the Vietnam War, to the New York Times in 1971. Mr. Ellsberg was nearly jailed for his involvement in leaking the Pentagon Papers. In the ensuing decades Mr. Ellsberg has assisted whistle-blowers, journalists, activists and others in supporting their First Amendment rights to speak out about government action and to publish misleading or deceptive government information. On March 21, 2011, Ellsberg along with 35 other demonstrators, were arrested during a demonstration outside the Marine Corps Base Quantico, in protest of Bradley Manning's current detention at Marine Corps Brig, Quantico. Bradley Manning, who leaked government documents, was charged by the United States government in 2011 with aiding terrorists. In closing statements at a pre-trial hearing, Capt. Ashden Fein, for the United States government, stated that Manning had actual knowledge that what he gave to WikiLeaks would end up in the hands of the enemy and that enemy was Al Qaeda, Al Qaeda in the Arabian Peninsula (AQAP) and similar enemies.1 The Chairman of the House Homeland Security Committee has said that WikiLeaks – an organization supported by Ellsberg and which published Manning’s documents – should be classified as a “terrorist organization.”2 Mr. Ellsberg travels widely and comments frequently and works with entities, organizations and persons and their associated forces that the United States government deems or reasonably could deem are engaged in hostilities with the United States or its coalition partners, as described under the Homeland Battlefield Act. Plaintiff Ellsberg
1 http://www.salon.com/2011/12/23/manning_to_be_charged_with_aiding_terrorists/. 2 http://dailycaller.com/2010/11/29/top-gop-congressman-says-wikileaks-should-be-named-terroristorganization/
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legitimately fears that the federal government will enforce the Homeland Battlefield Act against him in that his daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and his free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act .
3. Plaintiff Noam Chomsky, a U.S. citizen, is Institute Professor emeritus in the MIT Department of Linguistics and Philosophy. He is the author of numerous best-selling political works. In the course of his research and engagement in international affairs Plaintiff Chomsky has met with figures active in Palestinian, Lebanese, Turkish, Colombian, Cuban, South African and other organizations that are sometimes listed as “terrorists” by the US government. Professor Chomsky has published articles the government likely considers supportive of terrorists or terrorist groups.3 At least one commentator has concluded that Professor Chomsky is a defender of terrorist Bin Laden.4 Mr. Chomsky travels widely and comments frequently and has contacts with entities, organizations and persons and their associated forces that the United States government deems or reasonably could deem are engaged in hostilities with the United States or its coalition partners, as described under the Homeland Battlefield Act. Professor Chomsky believes his travel, speaking and writing activities will be curtailed if the Homeland Battlefield Act takes effect due to its authorization of military detention and trial. Plaintiff Chomsky legitimately fears that the federal government will enforce the Homeland Battlefield Act against him in that his daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and his free speech
3 http://www.guernicamag.com/blog/2652/noam_chomsky_my_reaction_to_os/ 4 “Bin Laden Defender: Noam Chomsky.” http://www.stonegateinstitute.org/2115/bin-laden-defendernoam-chomsky.
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activities are already chilled by the looming implementation of the Homeland Battlefield Act.
4. Plaintiff Jennifer “Tangerine” Bolen, a U.S. Citizen, is the young leader of RevolutionTruth, a large grass-roots organization that, for over a year, conducted a webbased campaign in defense of WikiLeaks and Bradley Manning. She was informed, in her work with WikiLeaks, that all of her communications would be monitored by the NSA. The US Department of Justice claims that both Julian Assange and Bradley Manning have supported terrorists through the release of a large number of low-level classified documents. Ms. Bolen finds the enactment of the Homeland Battlefield Act, in her words, “extraordinarily frightening” and believes that once it takes effect it will curtail her activities and the activities of her organization because of its -- unprecedented in 200 years of American legal history -- substitution of military criminal justice for civilian justice. Plaintiff Bolen legitimately fears that the federal government will enforce the Homeland Battlefield Act against her in that her daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and her free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act. Further, Plaintiff Bolen is already incurring additional expenses and obligations to pursue her profession due to the impending implementation of the Homeland Battlefield Act.
5. Plaintiff Kai Wargalla, a German citizen working in London for RevolutionTruth was a key organizer of Occupy London. Occupy London was designated a “terrorist group” by the London Police.5 Such a designation could place Ms. Wargalla, a German
5 http://uk.news.yahoo.com/police-include-occupy-movement-on%E2%80%98terror%E2%80%99-list.html
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citizen, in the crosshairs of. the Homeland Battlefield Act. Ms. Wargalla fears based on the text of the Act that she could be legally detained on foreign soil by the United States government, accused of being a member of a terrorist organization and aiding “associated forces” of terrorists, and held indefinitely until the “end of hostilities”. Plaintiff Wargalla legitimately fears that the federal government will enforce the Homeland Battlefield Act against her in that her daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and her free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act. Further, Plaintiff Wargalla is already incurring additional expenses and obligations to pursue her profession due to the impending implementation of the Homeland Battlefield Act.
6. Plaintiff Birgitta Jonsdottir, a citizen of Iceland, is an elected member of Iceland’s Parliament. She sponsored legislation that would ensure Iceland has the world’s strongest modern freedom of information, expression and speech laws. The European Union is considering adopting a model based on this legislation. Ms. Jonsdottir regularly works with leaders around the globe on human rights and freedom of information issues. Her Twitter account and three other social media accounts has been subpoenaed by the US government, and she currently can’t travel to the United States by advice from the Icelandic Foreign Affairs Ministry, due to her work as volunteer for WikiLeaks in 2010. She co-produced the video Collateral Murder – a movie showing footage of intentional targeting of civilians during the Iraq war -- and acted as a spokes-person for WikiLeaks in relation to the video and for a short time for the entire organization. Plaintiff Jonsdottir legitimately fears that the federal government will enforce the Homeland
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Battlefield Act against her in that her daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and her free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act . Further, Plaintiff Jonsdottir is already incurring additional expenses and obligations to pursue her profession due to the impending implementation of the Homeland Battlefield Act.
7. Plaintiff Alexa O’Brien is a United States citizen and resident of New York. The enactment of the NDAA will have a chilling affect on her freedom of speech. In March 2011, plaintiff O’Brien started a grass roots organization called US Day of Rage. The organization’s avowed purpose is electoral reform.6 Despite this, Plaintiff O’Brien became fearful when she was notified in 2011 by a friend, who is a federal agent, that US Day of Rage (whose organizers include ordinary American citizens and even former US military service members) was named in a September 2011 Department of Homeland Security Memo sent to law enforcement across the nation, as linked to a radical organization that was said to be engaging in cyber-terrorism. In late October 2011, Ms. O’Brien was told by the director of federal contracts at her previous job that multiple individuals in government had been asking about her by name. Further, private intelligence and security contractors and the media associated US Day of Rage with Al Qaeda.7 Plaintiff O’Brien has designed digital content strategy solutions for the United Nations Development Program and Fortune 500 global companies. Since January 2011, she has covered as a journalist the WikiLeaks release of US State Department Cables,
6 http://www.usdayofrage.org/about.html 7 ( "On Radical Islam: Global Influence In Domestic Affairs : Australian Security Magazine") http://www.australiansecuritymagazine.com.au/2012/01/radical-islam-global-influence-in-domestic-affairs/ See also: http://www.conunderground.com/breitbart-publishes-occupy-wall-street-confidential-emails/
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and revolutions across Egypt, Bahrain, Iran, and Yemen. She has also published hours of interviews with former Guantanamo Bay guards and detainees. Plaintiff O’Brien legitimately fears that the federal government will enforce the Homeland Battlefield Act against her in that her daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and her free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act. Further, Plaintiff O’Brien is already incurring additional expenses and obligations to pursue her profession due to the impending implementation of the Homeland Battlefield Act.
8. US Day of Rage is a grass-roots organization headquartered in New York City that was started to reform campaign finance laws in the United States, advocating that only citizens should be allowed to make campaign contributions and that those contribution be capped at a level that enfranchises all citizens. The group also has thousands of supporters around the world.
9. Defendant Barrack Obama is the President of the United States and has individual and executive responsibility for carrying out, enforcing and executing the laws of the United States and, in particular, as Commander in Chief with respect to laws governing acts of the military and service branches and the Department of Defense, including but not limited to the Homeland Battlefield Act of the National Defense Authorization Act (NDAA) of 2012 (the “Homeland Battlefield Act”).
10. Defendant Leon Panetta is the Secretary of Defense and has individual and executive responsibility for carrying out, enforcing and executing laws of the United States respecting the Homeland Battlefield Acts and actions of the military and service branches including the Homeland Battlefield Act and, in particular, the prosecution of
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purported war crimes and crimes and acts proscribed in wartime, the incarceration of prisoners of war or persons taken into custody as unlawful combatants, along with the supervision of military prisons and detention centers in the United States and abroad.
11. Defendants John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor are named as leaders and representatives of the United States Congress and the United States Government.
JURISDICTION AND VENUE 12. Jurisdiction is based upon a question or controversy arising under the Constitution and laws of the United States pursuant to 28 U.S.C. 1331. 13. Venue is properly within the Southern District of New York in that the United States maintains governmental offices and bases and branches of the military in this district and also maintains in this district civil and military prisons and detention centers along with military and civil prosecutorial offices and staff. 14. Venue is further properly grounded within this jurisdiction in that plaintiff Hedges, in connection with his journalistic profession, conducts his work in this district, is a fellow of The Nation Institute in which capacity he performs journalistic activities in this District and travels to and from this district to meet with, interview and report upon “covered persons” under the Homeland Battlefield Act and departs from this district in connection with travel abroad for such purposes. Plaintiff O’Brien resides in this district and organizational Plaintiff US Days of Rage is headquartered in this district.
FACTUAL BACKGROUND 15. On December 31, 2011 President Obama signed into law the Homeland Battlefield Act that will take effect on or by March 1, 2012.
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16. The Homeland Battlefield Act provides for indefinite detention of United States
citizens and permanent residents taken into custody in the United States on suspicion of
providing substantial and/or direct support for persons or entities engaged in hostilities
against the United States. Particularly, section 1031 of the Homeland Battlefield Act
defines a “covered person” subject to indefinite detention in the following manner:
“(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) 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.”
Homeland Battlefield Act, §1031(b).
17. The Homeland Battlefield Act provides that any person detained under the
Homeland Battlefield Act whether detained within or without the United States may be
held without trial until the end of hostilities authorized by the Authorization for Use of
Military Force (2001). Section 1031(c) states:
“(c) Disposition Under 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 the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 11184)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
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(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.”
Homeland Battlefield Act, §1031(c).
18. The Homeland Battlefield Act does not define the terms “substantially
supported”, “directly supported” or “associated forces” as used in section 1031, supra.
19. Section 1032 provides that any persons irrespective of U.S. citizenship or
permanent resident status who are taken into custody “in the course of hostilities”
authorized under the Homeland Battlefield Act shall be held indefinitely until the end of
such hostilities:
“(a) Custody Pending Disposition Under Law of War
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined—
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of alQaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
Homeland Battlefield Act, §1032(a)(1)(2)(3).
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20. Section 1032(b) permits but does not require that U.S. citizens and U.S. Permanent Residents “captured” in the “course of hostilities” be held in military custody; section 1032(b) does not exempt U.S. citizens and U.S. Permanent Residents from the requirement of “indefinite detention” set forth in section 1031, supra:
(b) Applicability to United States Citizens and Lawful Resident Aliens(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States. (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
Homeland Battlefield Act, §1032(b)(1)(2).
21. In his signing statement, President Obama acknowledged the constitutionally questionable nature of the Homeland Battlefield Act. The President’s signing statement says:
“I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” 22. Based upon the foregoing, the Homeland Battlefield Act provides for the indefinite detention of any person, including but not limited to U.S. citizens and permanent residents, and/or trial of such persons by the military courts for acts that “substantially supported” or “directly supported” any person, entity or organization defined as being in a state of hostilities with the United States under the Homeland Battlefield Act whether occurring within or without the United States and irrespective of whether such person is arrested or detained within the United States.
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23. This Complaint is not an acknowledgment or admission as a matter of law or fact that Plaintiffs are a "covered person" or otherwise within the scope of the Homeland Battlefield Act but the Complaint asserts that the Homeland Battlefield Act is sufficiently broad or overbroad as to cause Plaintiffs and similarly situated persons to be in foreseeable jeopardy of being brought within its textual provisions.
24. Plaintiff Christopher Hedges is a journalist whose profession requires, in part: 1) that he have communication with and personal and direct intercourse with persons who are likely to be deemed engaged in hostilities with the United States under the Homeland Battlefield Act; 2) that he travel to see and meet with such persons; 3) that he report on the Homeland Battlefield Activities and beliefs of such persons; and 4) through his journalistic endeavors to convey their philosophy and belief systems to the public at large.
25. As a journalist, essayist, author and war correspondent, Plaintiff Hedges publishes and conveys the opinions, programs and ideas of “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,…” Homeland Battlefield Act, §1031(b)(2), such journalistic activity being brought within the scope of the statute’s provision defining a “covered person” as one who has “substantially supported” or “directly supported” the Homeland Battlefield Acts and activities of such individuals or their organizations, allies or associated forces. Id.
26. For example, on or about January 31 2011, Plaintiff Hedges wrote on Truthdig.com, a published website, the following essay:
“The secular Arab regimes from Morocco to Yemen, for all their ties with the West, have not provided freedom, dignity, opportunity or prosperity for their people. They have failed as spectacularly as the secular Palestinian resistance movement led by Yasser Arafat. And Arabs, frustrated and enduring mounting
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poverty, are ready for something new. Radical Islamist groups such as the Palestinian Hamas, the Shiite Hezbollah in Lebanon and the jihadists fighting in Iraq and Afghanistan are the new heroes, especially for the young who make up most of the Arab world. And many of those who admire these radicals are not observant Muslims. They support the Islamists because they fight back." Truthdig.com, January 31, 2011. Plaintiff has and expects to again publish other writings of a similar nature. 27. As detailed in paragraphs 2-8 above, Plaintiffs Ellsberg, Chomsky, Bolen, Wargalla, O’Brien, Josdottir and US Day of Rage all engage in their professional capacity in activities similar to plaintiff Hedges in that they have contact with organizations and groups considered to be engaged in hostilities against the United States and they all expect to publish and engage in similar activities in the very near and distant future. The Plaintiffs travel widely and comment frequently and have contacts with entities, organizations and persons and their associated forces that the United States government deems or reasonably could deem are engaged in hostilities with the United States or its coalition partners, as described under the Authorization for Use of Military Force (AUMF) (Public Law 107-40) and the Homeland Battlefield Act. The Plaintiffs all believe that their travel, professional, speaking and writing activities will be curtailed if the Homeland Battlefield Act takes effect due to its authorization of military detention and trial. Plaintiffs legitimately fear that the federal government will enforce the Homeland Battlefield Act against them in that their daily professional work could be construed as giving “substantial support” to terrorists and/or “associated forces” and their free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act. Further, Plaintiffs are already incurring additional expenses and
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obligations to pursue their professions due to the impending implementation of the Homeland Battlefield Act.
28. The statutory text in the Homeland Battlefield Act is sufficiently broad to include Plaintiffs as a “covered person” who, by way of such writings, interviews and/or communications, “substantially supported” or “directly supported” “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,…” under §1031(b)(2) and The Homeland Battlefield Act is sufficiently broad as to include within its scope Plaintiffs’ writings and journalistic, academic and activist endeavors that have the effect of conveying, promoting or disseminating the ideas, philosophy and program of organizations, persons and entities in a state of hostility with the United States since September 11, 2001 or with organizations, persons and entities allied or associated with persons in a state of hostilities as defined under the Homeland Battlefield Act. Accordingly, Plaintiffs are in imminent jeopardy of detention under the Homeland Battlefield Act because they produce material, examples of which are set forth, supra, that may be deemed within the scope of “substantially” or “directly” supporting persons, organizations, entities and their associates, allies and colleagues, who are in a state of hostility with the United States under the Homeland Battlefield Act as follows:
A. Under §1031(c)(1) such detention may be indefinite at the discretion of the United States without recourse to a court proceeding until the end of hostilities;
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B. Under §1031(c)(2 or (3) plaintiffs or any other “covered person” may be tried by military courts or commissions without recourse to the civil courts.
C. Under Section 1031(c) (4) Plaintiffs or any other “covered person” may be subject to continued, indefinite “rendition” to any foreign country, jurisdiction or any location at the discretion of the United States without recourse to a court or other proceeding and without notice to any legal representative or other person.
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COUNT I (FIFTH AMENDMENT DUE PROCESS) INDEFINITE DETENTION OF U.S. CITIZENS OR OTHER PERSONS DETAINED IN THE U.S. UNDER §1031(C)(1), TRIAL OF U.S. CITIZENS BY COURT MARTIAL OR MILITARY COMMISSION, DENIAL OF ACCESS TO CIVIL JUDICIAL AUTHORITIES UNDER §1031(C)(2) AND (3), RENDITION UNDER §1031(C)(4).
29. The Homeland Battlefield Act, §1031(C)(1) authorizes the indefinite detention, imprisonment and incarceration of U.S. citizens and other “covered persons” in the United States, including persons such as Plaintiffs, without trial or judicial recourse in violation of the U.S. Constitution, Amendment V.
30. §1031(C)(2) authorizes trial of civilian U.S. Citizens, permanent residents or other “covered persons” arrested or detained in the U.S., including persons such as Plaintiffs, by court martial or military commission in violation of the U.S. Constitution, Amendment V.
31.§1031(C)(3) authorizes trial of civilian U.S. Citizens, permanent residents or other “covered persons” arrested or detained in the U.S., including persons such as Plaintiffs, by military commission in violation of the U.S. Constitution, Amendment V.
32. §1031(C)(4) authorizes rendition without judicial recourse of any “covered person” person arrested or detained in the United States, including U.S. citizens and persons such as Plaintiffs, by, “[t]ransfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity,” in violation of the U.S. Constitution, Amendment V.
WHEREFORE, the Homeland Battlefield Act,§1031 violates the due process provisions of the Fifth Amendment to the United States Constitution and Plaintiffs
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respectfully requests judgment declaring §1031 to be void as unconstitutional and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
COUNT II (FIFTH AMENDMENT DUE PROCESS) RENDITION OF “COVERED PERSONS” TO ANY JURISDICTION UNDER §1031(C)(4)
33. The Homeland Battlefield Act authorizes the permanent indefinite removal from the United States via rendition or other means to any place, country, location or jurisdiction of any “covered persons”, including but not limited to U.S. citizens and persons such as Plaintiffs, arrested or detained in the United States.
WHEREFORE, §1031(c)(4) of the Homeland Battlefield Act is unconstitutional in that it violates the due process provisions of the Fifth Amendment to the United States Constitution and the judicial recourse provisions of Article III of the United States Constitution and Plaintiffs respectfully request judgment declaring §1031(c)(4) to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
COUNT III (FIFTH AMENDMENT DUE PROCESS) ABSENCE OF ADEQUATE STATUTORY NOTICE
34. The Homeland Battlefield Act is unconstitutional in that imposes incarceration, detention, rendition and/or military prosecution without adequate notice of the nature and substance of the charge that a “covered person” has “substantially supported” or “directly supported” the Homeland Battlefield Activities of any person, organization, entity or their allies or associates who are in a state of hostility with the U.S. under the Homeland Battlefield Act.
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35. In particular, the Homeland Battlefield Act, §1031 fails to give adequate statutory notice of its material terms including the terms “covered person”, “covered persons”, “substantially supported”, “directly supported” or “associated forces”.
36. As a result of the absence of proper notice and statutory definitions of said material terms Plaintiffs and others similarly situated do not have adequate notice of the Homeland Battlefield Acts and matters that will render them “covered persons” under §1031 and subject to indefinite detention without trial, made subject to military trial or to rendition outside the United States.
37. Accordingly, the Homeland Battlefield Act, §1031 authorizes the arrest and indefinite detention of U.S. citizens and other persons without adequately defining or giving notice as to “covered persons” or the Homeland Battlefield Acts that render a person one who “substantially supported” or “directly supported” the described entities including “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States”.
WHEREFORE, §1031 of the Homeland Battlefield Act is unconstitutional in that it fails to provide adequate statutory notice of the nature and substance of the Homeland Battlefield Acts for which a “covered person” shall be subject to arrest, detention and other treatment under the statute and Plaintiff respectfully requests judgment declaring §1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
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COUNT IV (MILITARY JURISDICTION TO BE IMPOSED UPON CIVILIANS ARRESTED
WITHIN THE UNITED STATES AS “COVERED PERSONS” UNDER §1031)
38.Under §1031 persons arrested as “covered persons” within the United States may be made subject to the military jurisdiction and the military courts in violation of the United States Constitution that provides for civilian access to a civil court system for all crimes and offenses within the United States.
WHEREFORE, §1031(c)(2) and (3) of the Homeland Battlefield Act are unconstitutional in that they impose military jurisdiction upon civilians in violation of the U.S. Constitution and particularly Article III and Amendment V of the United States Constitution and Plaintiff respectfully requests judgment declaring §1031(c)(2) and (3) to be void and permanently enjoining their enforcement, along with attorney’s fees and cost of suit.
COUNT V (FIRST AMENDMENT) EXPRESSIVE AND JOURNALISTIC ACTIVITIES 39.The Homeland Battlefield Act, §1031 is unconstitutional in that it imposes indefinite incarceration without trial or judicial recourses for expressive conduct such as that of Plaintiffs in their work as journalists, authors, organizers and web-campaigners and chills and burdens the freedom of speech, press, expression and association guaranteed by the First Amendment to the United States Constitution. 40. Such interference with protected expressive and associative rights arises by rendering persons who promote, publicize or endorse the views, ideas, philosophy and program of persons defined as being engaged in hostilities with the United States under
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the Homeland Battlefield Act subject to indefinite detention without trial in the United States, made subject to trial by military courts or military commission, or made subject to rendition to any jurisdiction at the sole discretion of the United States without recourse to any civil court.
41. In their professions Plaintiffs must travel from time to time to theatres of combat and other locations where persons engaged in hostilities with the United States reside and conduct their business.
42. In their professions, Plaintiffs must interview, report upon and promote and publicize the views and opinions of persons engaged in a state of hostility with the U.S. as described in §1031 and §1032.
43. Plaintiffs and others similarly situated will be chilled and burdened in the exercise of their First Amendment rights because of the continued threat of incarceration and other treatment under §1031 and §1032 that arises in connection with his work as a journalist, as described above.
44. In the alternative, §1031 is unconstitutionally overbroad in that it renders subject to incarceration and other treatment persons who “substantially supported” the persons and entities described in the Homeland Battlefield Act in the AUMF, conduct that embraces a wide range of protected expressive and associative rights under the First Amendment.
WHEREFORE, §1031 of the Homeland Battlefield Act is unconstitutional in that chills, burdens and intrudes upon protected rights of expression under the United States Constitution, Amendment I, or, in the alternative, is unconstitutionally overbroad, and
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Plaintiffs respectfully request judgment declaring §1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff on his own behalf and for all others similarly situated
respectfully requests judgment as follows:
1. Declaring the Homeland Battlefield Act, §1031 and§1032 to be void as
unconstitutional;
2. Permanent injunctive relief barring its enforcement, along with attorney’s fees
and cost of suit;
3. Such other relief as to the Court may seem just and proper.
Respectfully,
S/Carl J. Mayer Carl J. Mayer MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686

Dated: New York, New York February 23, 2012

S/Bruce I. Afran Bruce I. Afran, Esq. 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075
Attorneys for Plaintiff

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 Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 1 of 68

UNITED STATES DISTRICT COURT

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________

SOUTHERN DISTRICT OF NEW YORK ---------------------------------------- X

DATE FILED: May 16, 2012

:

CHRISTOPHER HEDGES, DANIEL ELLSBERG, :

JENNIFER BOLEN, NOAM CHOMSKY, ALEXA

:

O’BRIEN, US DAY OF RAGE, KAI WARG

:

12 Civ. 331 (KBF)

ALLA, HON. BRIGITTA JONSDOTTIR M.P., :

:

OPINION AND ORDER

Plaintiffs, :

:

-v-

:

:

BARACK OBAMA, individually and as

:

representative of the UNITED STATES OF :

AMERICA; LEON PANETTA, individually

:

and in his capacity as the executive and:

representative of the DEPARTMENT

:

OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, :

HARRY REID, NANCY PELOSI, MITCH

:

MCCONNELL, ERIC CANTOR as

:

representatives of the UNITED STATES :

OF AMERICA,

:

:

Defendants. :

---------------------------------------- X

KATHERINE B. FORREST, District Judge:

On December 31, 2011, President Obama signed into law the

National Defense Authorization Act for Fiscal Year 2012, Pub. L.

112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”). Plaintiffs,

a group of writers and activists, brought a lawsuit on January 13,

2012, seeking preliminary and permanent injunctive relief with

respect to one section (indeed, one page) of that voluminous

legislation: § 1021. Plaintiffs assert that Section 1021 is

constitutionally infirm, violating both their free speech and

associational rights guaranteed by the First Amendment as well as

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due process rights guaranteed by the Fifth Amendment of the United States Constitution. On February 27, 2012, plaintiffs filed a motion for a temporary restraining order (which they subsequently converted to a motion for preliminary injunction in a conference with the Court), seeking to enjoin enforcement of § 1021. In support of their motion, plaintiffs assert that § 1021 already has impacted their associational and expressive activities--and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.
On March 30, 2012, after expedited discovery, this Court held an evidentiary hearing on plaintiffs’ motion. At the hearing, three plaintiffs testified live and, pursuant to stipulation, another by sworn declaration. The Government did not call any witnesses, submit any documentary evidence, or file any declarations in connection with its opposition to plaintiffs’ motion.1 The parties filed post-hearing memoranda; and the motion was fully submitted on May 4, 2012.
As mentioned, plaintiffs’ challenge § 1021 as vague and thus, violative of their First and Fifth Amendment rights. The Government opposes plaintiffs’ request for preliminary injunctive relief on three bases: first, that plaintiffs lack standing;
1 “The Government” refers to all defendants in this action.
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second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs’ substantive constitutional challenges, that Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authority conferred by the 2001 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the “AUMF”), passed in the wake of September 11, 2001.
In essence, the Government argues that as an “affirmation” of the AUMF, § 1021 of the NDAA does nothing new; and therefore, since the type of activities in which plaintiffs are engaged were not subject to legal action under the AUMF, there is no reasonable basis for plaintiffs to assert that § 1021 could suddenly subject them to governmental action now. According to the Government, as an affirmation of the AUMF, the NDAA must be “read against the backdrop of Executive practice and court decisions”--a backdrop which clarifies the scope of § 1021. (See Gov’t’s Supplemental Mem. of Law in Opp’n to Pls.’ Mot. for a Prelim. Inj. (“Gov’t Supp. Mem.”) (Dkt. No. 33) at 1.)
For the reasons set forth below, this Court finds that § 1021 is not merely an “affirmation” of the AUMF. To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning. To find that § 1021 is merely an “affirmation” of the AUMF would
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require this Court to find that § 1021 is a mere redundancy--that is, that it has no independent meaning and adds absolutely nothing to the Government’s enforcement powers.
In addition to rendering § 1021 meaningless, the Government’s position ignores the differences between the two statutes. Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter--i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little--it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.
This Court finds that plaintiffs (who, as discussed below, have a reasonable fear of future government action sufficient to confer standing) have carried their burden with respect to the necessary elements for issuance of preliminary injunctive relief. They have demonstrated a likelihood of success on the merits with respect to their constitutional challenges; they have put forward specific evidence of actual and threatened irreparable harm; the balance of the equities and the public interest favors issuance of preliminary relief (particularly, but not only, in light of the fact that the Government’s entire position is premised on the
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assertion that §1021 does nothing new--that it simply reaffirms the AUMF; in which case, preliminarily enjoining enforcement should not remove any enforcement tools from those the Government currently assumes are within its arsenal). Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.
BACKGROUND I. THE STATUTES
The Government’s central argument with respect to both standing and the merits is that the NDAA is nothing more than an affirmation of the AUMF. Thus, the Court sets forth the relevant portions of both statutes as well as the relevant enforcement history relating to the AUMF. The Court also discusses a similar statute recently examined by the Supreme Court of the United States, which has informed some of its thinking on the merits of the instant motion.
A. The AUMF The AUMF was passed in direct response to the terrorist event of September 11, 2001. The AUMF provides: [t]hat the 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
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acts of international terrorism against the United States by such nations, organizations or persons. Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001) § 2(a). President Bush utilized the authorization granted under the AUMF to send U.S. armed forces into Afghanistan “with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.” Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004)(plurality); accord Rasul v. Bush, 542 U.S. 466, 470 (2004). The hostilities that commenced in 2001 remain ongoing today. The Government has captured and detained a number of individuals pursuant to the authority in the AUMF. See generally, e.g., Hamdi, 542 U.S. 507. In Hamdi, the Supreme Court recognized the authority granted by the AUMF to detain the individuals captured: “detention of individuals . . . 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”. Id. at 518. A number of subsequent cases, many of which arose in the context of habeas proceedings relating to those captured pursuant to the AUMF and detained at Guantanamo Bay, have similarly upheld the detention authority granted under the AUMF. See, e.g., Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); In re Petitioners Seeking Habeas Corpus Relief, 700 F. Supp. 2d
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119, 135 (D.D.C. 2010); see also Hamdan v. Rumsfeld, 548 U.S. 557,
603-04 (2006).
In March 2009, the Government submitted a memorandum in an
action relating to Guantanamo Bay detainees, In re Guantanamo Bay
Detainee Litigation, Misc. No. 08-442 (D.D.C.), in which it set
forth its views on the President’s AUMF detention authority (“March 2009 Mem.”).2 That memorandum, upon which the Government
relies in the instant matter regarding certain interpretative
principles and the scope of § 1021 of the NDAA, states:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist 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 the aid of such enemy forces.
March 2009 Mem. at 1-2.
At oral argument, the Government conceded that the March 2009
Memorandum simply states the Government’s litigation position in
the Guantanamo Bay Detainee Litigation, and that it does not have the effect of law. Tr. 216-17.3
2 In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442, Resps.’ Mem. Re: the Gov’t’s Detention Authority Relative to Detainees Held at Guantanamo Bay (D.D.C. Mar. 13, 2009). (Filed in this litigation at Dkt. No. 24-1.) 3 References to “Tr.” are to the transcript of the March 30, 2012 hearing on plaintiffs’ motion for preliminary injunction.
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B. The NDAA
Section 1021 of the NDAA--entitled “Affirmation of Authority
of the Armed Forces of the United States to Detain Covered Persons
Pursuant to the Authorization for Use of Military Force”--provides
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was 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.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country or any other foreign entity.
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
(e) Authorities. Nothing in this section shall be construed to affect existing law or authorities
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relating to the detention of United States citizens . . . . Pub. L. 112-81, 125 Stat. 1298 § 1021.
When he signed the NDAA into law on December 31, 2011,
President Obama simultaneously issued a “signing statement.” A
portion of that statement referred explicitly to § 1021:
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.
Statement on Signing the National Defense Authorization Act for
Fiscal Year 2012, 2011 DAILY COMP. PRES. DOC. 978 (Dec. 31, 2011) at
1-2 (hereinafter “Signing Statement”), available at
http://www.gpo.gov/fdsys/pkg/DCPD-201100978/pdf/DCPD-
201100978.pdf.
As stated above, the NDAA is a broad package of legislation
that includes both authorizations for military spending as well as
additional, non-spending legislation (such as § 1021). Pub. L.
112-81, 125 Stat. 1298 at Preamble (“An Act”); see also generally
Pub. L. 112-81, 125 Stat. 1298 § 2. In addition to § 1021, the
NDAA includes § 1022 which separately authorizes “Military Custody
for Foreign Al-Qaeda Terrorists.” See Pub. L. 112-81, 125 Stat.
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1298 § 1022. That statute authorizes “Custody Pending Disposition Under Law of War.” Id. Section 1022(a)(2) defines who constitutes a “Covered Person[]” under that prong of the statute, id. § 1022(a)(2), and contains a specific provision that states that, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States . . . ,” id. § 1022(b)(1).
Section 1022 further provides, in pertinent part: (c)(1) Not later than 60 days after the date of the
enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) Elements. The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under (a)(2) and the process by which such determinations are to be made . . . . Pub. L. 112-81, 125 Stat. 1298 § 1022(c)(1)-(2)(A). On February 28, 2012, the White House issued a Presidential Policy Directive (PPD-14) entitled, “Requirements of the National Defense Authorization Act” regarding the procedures for implementing § 1022 of the NDAA (but not § 1021). “Directive on Procedures Implementing Section 1022 of the National Defense Authorization Act for Fiscal Year 2012,” 2012 DAILY COMP. PRES. DOC. 136 (Feb. 28, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-201200136/pdf/DCPD201200136.pdf. That directive provides specific guidance as to
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the “Scope of Procedures and Standard for Covered Persons Determinations.” Specifically, it states that “covered persons” applies only to a person who is not a citizen of the United States and who is a member or part of al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and “who participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” Id. at 1-2. The directive consists of 11 pages of specific implementation procedures including defining scope and limitations.
As mentioned, no such directive was issued with respect to section 1021 of the NDAA.
C. 18 U.S.C. § 2339B and Holder v. Humanitarian Law Project In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Supreme Court considered whether a criminal statute prohibiting the provision of material support to terrorists, or providing resources to foreign terrorist organizations, was constitutionally infirm under either the First or Fifth Amendments. Id. at 2712-13. There, the relevant statutory provision stated, in pertinent part: Whoever provides material support or resources or conceals or disguises the nature, location, source or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various criminal statutes] . . . shall be . . . imprisoned for not more than 15 years.
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18 U.S.C. § 2339A(a). The term “material support,” as well as the types of
activities encompassed by “material support”--e.g., “expert advice or assistance”--are defined within the statute itself. See 18 U.S.C. § 2339A(b)(1)-(3).
The following section of that statute, § 2339B, sets forth the penalties associated with violating 18 U.S.C. § 2339A, and in doing so, relies upon the definitions supplied in § 2339A. See 18 U.S.C. § 2339B. The penalties to be imposed are for, as § 2339B states, the “prohibited activit[y]” of “[p]roviding material support or resources to a foreign terrorist organization, or attempts or conspires to do so . . . .” 18 U.S.C. § 2339B(a)(1). The penalties set forth in § 2339B are imposed only upon a showing that the person “ha[d] knowledge that the organization is a designated terrorist organization . . . , or that the organization has engaged or engages in terrorism . . . .” Id.
In finding that § 2339B did not violate either the First or Fifth Amendments, the Supreme Court pointed specifically to the definitional sections and the requirement for “knowing” conduct. Holder, 130 S. Ct. at 2720. The Supreme Court found,
Applying the statutory terms in this action ‘training,’ ‘expert advice or assistance,’ ‘service,’ and ‘personnel’--does not require similarly untethered, subjective judgments . . . Congress took care to add narrowing definitions to the material-support statute over time. These definitions
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increased the clarity of the statute’s terms . . . and the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement. Id. (citations omitted). II. THE PARTIES A. Plaintiffs Plaintiffs are a group of writers and political activists. Of the seven named plaintiffs, only five submitted any evidence in connection with this motion: Jennifer Ann Bolen, Christopher Hedges, Alexa O’Brien, Kai Wargalla, and Hon. Brigitta Jonsdottir. (Dkt. Nos. 10, 11, 14, 17, 18.) Two of the plaintiffs, Daniel Ellsberg and Noam Chomsky, are listed in the caption and referred in the text of the verified amended complaint (see Dkt. No. 4-1), but did not submit either affidavits in support of the motion or appear live to provide testimony at the evidentiary hearing.4 Bolen, who, as mentioned, submitted a declaration in support of the motion, did not testify at the evidentiary hearing and was not deposed. Thus, her statements were not cross-examined and this Court has not relied upon them for purposes of deciding the
4 This action was commenced by filing a verified complaint. While procedurally the factual statements relating to a plaintiff in a “verified” complaint may be taken as having the weight of a declaration or other statement under penalty of perjury, see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), this Court required that any plaintiff asserting standing for preliminary relief put forward a specific, separate declaration and make him or herself available for deposition (see Dkt. No. 16). Accordingly, the Court has not based its determination herein on the allegations in the verified amended complaint.
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instant motion.5 Plaintiffs Hedges, O’Brien, Wargalla, and Jonsdottir testified at the hearing (Jonsdottir by declaration as agreed by the parties).6
1. Christopher Hedges At the hearing in this matter, Hedges testified that he has been a foreign correspondent for 20 years. Tr. 156. He won the Pulitzer Prize for journalistic reporting. Tr. 157. Over the course of his career, he has primarily worked in Latin America, Africa, the Middle East, and the Balkans. Tr. 157. He makes his living writing, teaching, and lecturing. He has published a number of articles in the New York Times, the Christian Science Monitor, the Dallas Morning News, Harper’s Magazine, and the New York Review of Books. Tr. 157. After September 11, 2001, Hedges was based in Paris and covered al-Qaeda in all European countries (with the exception of Germany) as well as the Middle East. Tr. 157.7 As part of that coverage, Hedges retraced the steps of Mohammed Atta, one of the participants in the 9/11 events; he covered the abortive Paris embassy bombing plot, the suicide bombing attack on the synagogue
5 Based upon the oral representations of plaintiffs’ counsel, plaintiff Bolen was apparently ill and unable to appear for deposition. She did attend the hearing, but due to the fact that she was not deposed prior to that date, she did not testify at the hearing. 6 The Court found the testimony of each of the witnesses who testified live to be earnest and credible. 7 Hedges does not speak German but does speak English, French, Spanish, and Arabic. Tr. 157.
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in Djerba in Tunisia, and he covered Richard Reed, the so-called “Shoe Bomber.” Tr. 158.
Hedges testified that some of the people he has interviewed in connection with his work were al-Qaeda members who were later detained and are currently in prison. Tr. 158. Accordingly to Hedges himself, his reporting on al-Qaeda or other terrorist organizations is read widely in the Middle East. Tr. 159. Certain of Hedges’ writings appear on Islamic or jihadist websites. Id.
Hedges stated that having covered war for 20 years, he is familiar with the fact that a number of individuals who may be detained as enemy combatants might not have ever carried a weapon. Tr. 160. In that regard, he referred to Osama Bin Laden’s driver, a Guantanamo detainee. Tr. 160.
Hedges testified that he has read § 1021 of the NDAA. Tr. 160. Hedges testified that he is also familiar with the provisions of the AUMF and has a specific understanding as to what they mean. Tr. 165 (“enemy combatants on foreign soil that are engaged in direct hostilities with the United States and are linked directly with those who carried out the attacks of 9/11”). He does not, however, understand that § 1021 is entirely coextensive and goes no further than the AUMF. Tr. 165. Indeed, he testified that he reads §1021 as “radically different” from the AUMF. Tr. 166. In that regard, Hedges is unclear as to the
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meaning of what constitutes “associated forces” in § 1021, see Tr. 168, nor does he understand what the phrases “engaged in hostilities,” “covered person,” or “substantially supported” means as used in § 1021, Tr. 162-63.
Hedges testified that he has reported on 17 groups contained on a list prepared by the State Department of known terrorist organizations. (See Court Ex. 9 (Country Reports on Terrorism, Report of the U.S. State Dep’t, Ch. 6 (“Terrorist Groups”) (Aug. 2010) at 1 (Certification of Christopher Lynn Hedges Ex. A (Dkt. No. 11-1).)8 Included among the groups on which Hedges has reported (and which are on the State Department lists admitted as Court Exhibit 9) are: the Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama’a alIslamiya, Hamas, Hizballah, Kahane Chai, the Konga-Gel, KGK (a/k/a “PKA”), the Mujahedin-e Khalq Organization (“MEK”), the Palestine Liberation Front, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine (including also the Central Command), al-Qaeda, Revolutionary People’s Party/Front, and the Salafist Group for Call and Combat. (Id. at 1-2.) See also Tr. 169.
Hedges testified that some of those organizations are considered to be in hostilities with coalition partners of the
8 References to “Court Ex.” refer to documents marked for identification during the March 30 preliminary injunction hearing.
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United States. For instance, the PKK is engaged in hostilities with Turkey, which is one of the United States’ coalition partners. Tr. 169. In connection with his coverage of the PKK, he travelled with members of the PKK on occasion, and was with the PKK when it was attacked by Turkish war planes. Tr. 170-71.
Other groups Hedges has covered, such as the Popular Front for the Liberation of Palestine (“PFLP”), have carried out acts of terrorism against U.S. targets. Tr. 170.
Hedges has also had a number of speaking engagements in Belgium and France in which he has encountered and conversed with members of al-Qaeda and the Taliban. Tr. 174.
In connection with his reporting on Hamas, Hedges met with members of Hamas’ leadership, stayed in their homes, and socialized with them. Tr. 172. Hedges lived in Gaza and had frequent contact with members of Hamas in connection with his work. Tr. 172.
Hedges testified that because he speaks a number of languages, he has been approached by publications--e.g., Harper’s Magazine, the Nation and others--to return to the Middle East as a correspondent. Tr. 172-73. He testified that he has a realistic expectation that his work will bring him back to the Middle East. Tr. 173.
Hedges testified that since the passage of § 1021, he has altered his associational and speech activities with respect to
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some of the organizations upon which he previously reported due to his concern that those activities might bring him within the ambit of § 1021, thereby subjecting him to indefinite military detention. See, e.g., Tr. 174, 177, 186 (“When people begin to speak about carrying out acts that are clearly illegal or embracing acts that are violent or talking about terrorism, my reaction so far is to get out as fast as I can because I think under the NDAA [i.e., § 1021], at least as I see it, there is a possibility that those people looking at my activities from the outside would not make a distinction between myself and the person who embraced that kind of activity.”). At the time of the hearing, Hedges had speeches scheduled in Paris and Brussels at which he expected members of al-Qaeda or the Taliban to be present and he intended to change his speech as a result of § 1021. Tr. 174.
Hedges also testified that he has previously associated with a group called Bob Avakiam Revolutionary Party, a Maoist group, which he stated he understands endorses the use of violence towards revolutionary ends--a philosophy to which Hedges stated he did not ascribe. Tr. 177. Despite that fact, Hedges understands § 1021 as potentially encompassing his association with the Avakiam Revolutionary Party and thus, the statute already has had a chilling effect on his associational activities. Tr. 177.
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Hedges testified that prior to the passage of § 1021 he had never feared military detention for his activities. Tr. 206.
2. Alexa O’Brien Alexa O’Brien has written a number of articles on a variety of topics relating to, inter alia, interviews of prison guards or detainees at Guantanamo Bay. (Court Ex. 3 (series of articles authored by O’Brien, published on WL Central).) She refers to her occupation as a “content strategist.” Tr. 38. She is the founder and website designer for U.S. Day of Rage. Tr. 40, 42. She testified that she founded U.S. Day of Rage in March 2011. Tr. 42. U.S. Day of Rage has never been involved in armed conflict with the United States, and never been a co-belligerent with alQaeda or the Taliban, according to O’Brien. Tr. 52, 56. O’Brien is also a contributor and editor to a website called “WL Central.” Tr. 40. WL Central is “a collection” of international news journalists. Tr. 40. O’Brien testified that “our definition of ‘news’ is information that enables citizens to govern themselves.” Tr. 40. O’Brien has made a number of contributions to that website, including reporting on WikiLeaks’ release of U.S. State Department cables, the “JTF” Memoranda for Guantanamo Bay, and various revolutions in the Middle East (e.g., Egypt, Bahrain, Yemen, Iran). Tr. 41. Her reporting has included both articles and live blogs. Tr. 41. Altogether, since January 2011, she has written approximately 50 pieces covering these types
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of topics. Tr. 41. She testified that to her knowledge WL Central has not been involved in armed conflict with the United States nor has it been a co-belligerent with al-Qaeda or the Taliban. Tr. 56.
O’Brien testified credibly that in February 2012, she learned that an individual employed by a private security firm had allegedly been asked to tie U.S. Day of Rage to Islamic fundamentalist movements. Tr. 43. She received a copy of an email which indicated that there had been communications in this regard dating back to August 2011. Tr. 43. The email exchange was located on the WikiLeaks website and was between individuals named Thomas Kopecky and Fred Burton. Tr. 45. Based on firsthand knowledge, O’Brien testified that she is aware that Burton is a former diplomatic security official, previously employed by the U.S. State Department. Tr. 45-46.
O’Brien testified that she also received twitter messages from a private security contractor called Provide Security. Tr. 47. One of the messages indicated that U.S. Day of Rage had been found on an Islamic jihadist website. Tr. 48. The message stated, “Now you are really in over your head with this. Muslims from an Afghanistan jihad site have jumped in.”9
9 The messages that O’Brien received were marked as Court Exhibit 4, admitted to show the reasonableness of O’Brien’s fearful state of mind regarding being subject to § 1021, and not for the truth.
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O’Brien also testified that in September 2011 she was contacted by someone she knew to be a Federal agent, but to whom she guaranteed confidentiality of source. Tr. 52. She testified that that individual had seen a memorandum from the Department of Homeland Security (“DHS”) addressed to law enforcement across the nation (a) regarding the fact that DHS planned to infiltrate U.S. Day of Rage and (b) linking U.S. Day of rage to a loosely knit “organization” called “Anonymous” that O’Brien knew to be associated with cyber-terrorism. Tr. 51-54. O’Brien later met with a journalist who told her that he had seen either the same memo to which the federal agent had referred or one with similar content. Tr. 69. O’Brien testified that in August 2011 she learned of an article suggesting that U.S. Day of Rage had been posted on Shamuk and Al-Jihad, two al-Qaeda recruitment sites. Tr. 59.
O’Brien testified that since § 1021 has gone into effect (or when she perceived it to go into effect because there is a dispute by the Government as to when § 1021 became effective), it has had a chilling effect on her speech. Tr. 72 (“Court: Are you saying that there is a causal relationship between the passage of [§ 1021] and your withholding of these articles? A: Absolutely.”). She testified specifically to two articles that she has withheld from publication. Tr. 70. One of the articles details conversations with former military personnel at Guantanamo
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describing physical restraints used there and other information. Tr. 70. The second article relates to discussions with a defense attorney making accusations that a military defense attorney for a military detainee “threw a case.” When asked why she had withheld those articles, O’Brien testified she could not risk the danger to herself under § 1021. Tr. 71.
She testified that prior to the passage of § 1021, in July 2011, she had published an article relating to a former Guantanamo detainee, Omar Deghayes, and that she was currently concerned regarding whether her publication of that article could be encompassed within the conduct of § 1021. Tr. 77. Plaintiffs marked as Court Exhibits 2 and 3 a number of articles published by O’Brien. Exhibit 3 consisted of a compilation of articles that on the topics she testified gave her concern with regard to whether they would be encompassed by § 1021. Tr. 79-80. O’Brien also testified that she has incurred expenses in connection with § 1021 including the purchase of an additional hard drive on which she double encrypts files in order to protect them from detection by others, including for purposes of protecting them from the NDAA.
O’Brien testified that she has read § 1021. Tr. 74. She testified that in particular the statute’s references to “associative [sic] forces and substantial support” led to her withholding her articles. Tr. 74. She stated:
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I think it’s best to use an example of someone like Sami AlHajj, who is a Sudanese Al Jazeera cameraman, who was later released from Guantanamo Bay and now works for Al Jazeera. Again, ‘substantially supported,’ what does that mean? In a war on terror where intelligence collection and the information-sharing environment are competing with the press for collection of information, it’s very similar activities of collect, talking with people, getting information. It’s very hard when Secretary Clinton talks about the information war that we are in to understand what ‘substantially support’ means in relationship to journalists.”
Tr. 74. She testified that she understood that Sami Al-Hajj had
been detained for six or seven years. Tr. 75.
O’Brien testified that she was unaware of any action taken by
the United States Government to date regarding the activities of
U.S. Day of Rage or against her personally under the AUMF or
§ 1021. Tr.90-91. She also testified that she is not aware of
any U.S. Government official who has “threatened” to take action
against U.S. Day of Rage as a result of expressive activities.
Tr. 93. However, she also testified that pursuant to a request
made under the Freedom of Information Act, an organization called
TruthOut.org had obtained a memorandum from the Department of
Homeland Security and which states “National Cybersecurity and
Communications Integration Center Bulletin. Details on
‘Anonymous,’ upcoming U.S. operations 17 September 2011 Occupy Wall Street, ‘U.S. Day of Rage.’” Tr. 110.10
10 The Court admitted the document obtained pursuant to that request under the general hearsay exception contained in Fed. R. Evid. 807 as having sufficient indicia of reliability to come in for the truth. The Court invited counsel for the Government to notify the Court if, after the hearing, they determined that the document was not authentic. The Court has not received such a
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3. Kai Wargalla Kai Wargalla is an organizer and activist based in London. Tr. 116. She is the Deputy Director of Revolution Truth, an organization that conducts online, live panel discussions and campaigns relating to, inter alia, WikiLeaks. Tr. 117-18. Wargalla also founded Occupy London in September 2011 and Justice for Assange UK.11 Tr. 117. Wargalla testified that in October 2011 she received a copy of a bulletin12 apparently issued by the City of London Police, which listed Occupy London in a “terrorism and extremism” update. Tr. 120. Wargalla testified that she has read § 1021. Tr. 121-22. She expressed concern regarding the lack of definition around the phrase “covered persons” and not understanding whether her activities could be construed to bring her within that definition. Tr. 122. She also testified that she is concerned about the lack of clarity surrounding the phrase “substantially supported.” Tr. 130. She testified that to her, this phrase “could mean anything
communication and therefore assumes the document to be authentic. See Tr. 109111. 11 “Justice for Assange UK” refers to an organization, the efforts of which are directed at supporting Julien Assange, founder of WikiLeaks. See www.justice4assange.com. Revolution Truth is an “international group of volunteers conducting campaigns on Bradley Manning and WikiLeaks . . . and online live panel discussions.” Tr. 117. 12 Similar to many other documents presented during this hearing, the bulletin was admitted not for its truth, but for Wargalla’s state of mind regarding her concerns relating to enforcement of § 1021.
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really, from having someone on a panel discussion, from conducting campaigns, to organizing rallies and demonstrations.” Tr. 131.
Wargalla testified that § 1021 has led to changes in the expressive activities of Revolution Truth. Revolution Truth holds live panel discussions that are streamed over the Internet. Tr. 124. In light of § 1021, Revolution Truth is considering not inviting members of certain organizations to participate whom they otherwise would have. Tr. 124-25. In particular, Wargalla testified that they would likely not invite Hamas to participate because they would not want to put themselves in danger of prosecution under § 1021. Tr. 126. She testified that other than those panel discussions, she has not made any other changes in response to the passage of § 1021. Tr. 140.
She testified that she is aware that several U.S. politicians have referred to WikiLeaks as a terrorist organization and that there is a grand jury investigation that involves WikiLeaks. Tr. 139. She also testified that she is, however, unaware of whether WikiLeaks has been officially classified as a terrorist organization. Tr. 139.
Wargalla testified that to date, she has not learned that the U.S. Government taking, or threatening to take, any action against her in connection with her expressive activities. Tr. 137. However, she testified that she fears that the U.S. Government
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could well take action against her for her associational and expressive activities set forth at this litigation.
4. Hon. Brigitta Jonsdottir13 The Honorable Brigitta Jonsdottir is a member of parliament in Iceland. Tr. 147-48. She stated that she has been an activist and spokesperson for various groups such as WikiLeaks, Saving Iceland, and Friends of Tibetan Iceland. Tr. 148. She has also organized “Art Against War” in which a number of Icelandic artists and poets protested the war in Iraq. Tr. 148. She has participated in international events relating to writing and activism against the war in Iraq including Poets Against the War, Dialogue Among the Nations Through Poetry, and Poets for Human Rights. Tr. 148. As part of her work in connection with WikiLeaks, she assisted in producing a movie called “Collateral Murder.” Tr. 148. That film was released in 2010, and alleges the commission of war crimes by Americans and others during the war in Iraq. She stated that the footage shown . . . showed an American Apache helicopter in Baghdad, after the Iraqi war but during the insurrection, open fire on a group of nine to eleven men, most of them unarmed, and two of whom were journalists working for Reuters. Eight men were killed, including the two journalists. A second and third strike killed more people and wounded two children.
13 The parties stipulated that the declaration of Hon. Brigitta Jonsdottir could be read at the hearing as if it were live testimony to which the Government waived cross examination. Tr. 155. Naomi Wolf read the declaration into the record.
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Tr. 149. Jonsdottir further averred that she understands that several
U.S. politicians have classified WikiLeaks as a terrorist organization. Tr. 149. She stated that she is also aware that Bradley Manning, who she stated leaked U.S. documents, has been charged in 2011 with treason, based upon, in the Government’s view, his aiding of terrorists. Tr. 150. She stated that Manning allegedly leaked the footage that formed the basis for the video “Collateral Murder.” Tr. 150. She has received a subpoena for her Twitter and other social media accounts for materials relating to Julian Assange and Bradley Manning. Tr. 152.
Jonsdottir stated that due to that subpoena, and now in addition due to the passage of § 1021, she is fearful of travelling to the U.S. Tr. 153. She has been invited to be the keynote speaker at a number of events in the U.S. but has declined those invitations due to her concerns. Tr. 154. She stated that she has “a very real, legitimate fear that the federal government will enforce the Homeland Battlefield Act [§ 1021] against me in that my work could be construed as giving ‘substantial support’ to terrorists and/or ‘associated forces’ because of the way the United States government views WikiLeaks.” Tr. 154.
6. The Remaining Plaintiffs Other individuals are named as plaintiffs in this action and shall be plaintiffs as the matter proceeds in its subsequent
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stages. Those additional individuals include Bolen, Chomsky, and Ellsberg. Plaintiffs are not relying on those individuals to support their motion for preliminary injunctive relief.14
B. Defendants Defendants in this action are President Barack Obama, U.S. Secretary of Defense Leon Panetta, and the Department of Defense (the “DOD”). In their Amended Complaint, plaintiffs also named members of Congress--John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, and Eric Cantor. (See Dkt. No. 4-1.) As the Government stated at oral argument, none of those additional defendants have been served and thus, none are properly part of this action at this time. Accordingly, when the Court refers to the “Government” in this Opinion, it is referring only to the defendants properly before this Court--i.e., President Obama, Secretary Panetta, and the DOD. C. Amici Curae Movants On April 17, 2012, a group of entities and individuals-Virginia State Delegate Bob Marshall, Virginia State Senator Dick Black, Downsize DC Foundation, DownsizeDC.org, Inc., U.S. Justice
14 As mentioned, Court required that any person upon whom plaintiffs wished to rely for evidentiary support for their motion needed to both submit a declaration by a certain point in time and make him/herself available for deposition. (Dkt. No. 16.) Plaintiffs Hedges, O’Brien, Wargalla did so and the parties reached agreement with respect to plaintiff Jonsdottir.
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Foundation, Institute on the Constitution, Gun Owners Foundation, Gun Owners of America, Inc., The Lincoln Institute for Research and Education, the Western Center for Journalism, Conservative Legal Defense and Education Fund, U.S. Border Control, Restoring Liberty Action Committee, Tenth Amendment Center, Center for Media and Democracy, Bill of Rights Defense Committee, Pastor Chuck Baldwin, Professor Jerome Aumente, and the Constitution Party National Committee (collectively, the “Amici Movants”)--filed a motion to file amicus brief. (Dkt. No. 31.)
The Amici Movants filed their motion, in support of plaintiffs’ motion for preliminary injunction, because they “share Plaintiffs’ concerns that, as members of the press or organizations which exercise First Amendment freedom of press rights, they could be targeted due to the nature of the work that they do and opinions they express.” (Decl. of Steven J. Harfenist in Supp. of Mot. for Leave to File Amicus Curae Br. (Dkt. No. 32) ¶ 7.) Although some of the arguments in the amicus brief overlap substantially with the arguments advanced by plaintiffs, certain arguments differ entirely--i.e., the amicus brief “injects new issues” into this matter which the Court need not--and will not-consider. See 16A Wright, Miller & Cooper, Fed. Prac. & Proc. § 3975.1 (4th ed. 2012) (“In ordinary circumstances, an amicus will not be permitted to raise issues not argued by the parties.”). To the extent that the Amici Movants reiterate
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arguments already made by plaintiffs, the Court does not find the amicus brief necessarily helpful. See Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 106 n.10 (2d Cir. 2010) (quoting Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001)). However, the Court accepts the amicus brief for filing in order to have a full record on this motion. III. THE GOVERNMENT’S REPRESENTATIONS REGARDING § 1021
The Government did not call any witnesses at the hearing on this motion. They did, however, submit briefing in advance of (and subsequent to) the hearing, cross-examine plaintiffs at the hearing, and made legal arguments at the hearing. As stated above, the Government’s main contention is that § 1021 is merely an “affirmation” of the authority given the President in 2001 under the AUMF--it goes no further and does nothing more. See, e.g., Tr. 214-15. (See also Gov’t’s Mem. of Law In Opp’n to Pls.’ Mot. for a Prelim. Inj. (“Gov’t Mem.”) (Dkt. No. 24) at 7-10.) The Government relies upon Supreme Court precedent which has upheld the authority granted under the AUMF, including Hamdi. Tr. 214.
The Court asked whether there was any language in the AUMF similar to § 1021(b)(2) regarding in particular the phrases “substantially supported,” “associated forces,” and “directly supported.” Tr. 215-16. The Government stated that the phrase “directly supported” has not been interpreted in any case law but
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is referenced in the Government’s March 2009 Memorandum. Tr. 216. However, the Government argued that the phrase “associated forces” can be tied directly into the body of law relating to the Laws of War as being co-extensive with co-belligerency. Tr. 220-21. According to the Government, therefore, the Laws of War place important and clear limits on which organizations can be construed as “associated forces.” Tr. 221.
As to the phrase “substantially supported,” the Government conceded that the two cases in which that language has previously been examined--Barhoumi v. Obama, 609 F.3d 416 (D.D.C. 2010), and al-Bihani v. Obama, 590 F.3d 866, 873-74 (D.C. Cir.), reh’g en banc denied, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)--did not construe the contours or parameters of that phrase. Tr. 223.
The Court asked “when we are talking about cases which have used the phrase ‘substantially supported’ and said that that is a valid criterion under the AUMF or of the legislation, that’s not the same thing as saying that . . . any court has found, one way or the other, that ‘substantially supported’ has an understandable meaning to an ordinary citizen?” The Government responded, “It’s true that the courts have not expressly ruled that, that’s right.” Tr. 223.
The Court then asked: Give me an example. Tell me what it means to substantially support associated forces.
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Government: I’m not in a position to give specific examples.
Court: Give me one.
Government: I’m not in a position to give one specific example.
Tr. 226.
The Court then asked: What does ‘directly supported’ mean?
Government: We have not said anything about that in our brief.
Court: What do you think it means?
Government: . . . Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, ‘substantial support’ that I have not thought through exactly and we have not come to a position on what ‘direct support’ and what that means.
Tr. 229-230.
The Court then asked: “Assume you were just an American citizen and you’re reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of §1021, and you read the phrase ‘directly supported’. What does that mean to you?”
Government: Again it has to be taken in the context of armed conflict informed by the laws of war.
Court: That’s fine. Tell me what that means?
The Government then returned to the Laws of War and finally stated, “I cannot offer a specific example. I don’t have a specific example.”
Tr. 230.
The Court then asked the Government specific questions
regarding plaintiffs’ present and intended activities at issue
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here and whether those activities would fall within the scope of § 1021. The Court required that each plaintiff testifying at the evidentiary hearing both to submit a declaration prior to the hearing on the topics about which he/she intended to testify and to submit to deposition. (See Dkt. No. 16.) The Government therefore knew well before the hearing the types of expressive and associational conduct in which each plaintiff would testify he/she engaged, and the conduct he/she asserted had already been or would imminently be chilled. In short, plaintiffs’ positions should have come as no surprise to the Government. Nevertheless, when confronted with what the Court assumed was certainly among the critical questions likely to be posed at the hearing--i.e., whether plaintiffs’ activities fell within § 1021’s scope, the Government responded, “I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything.” Tr. 235.
It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that § 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes
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the position that a wide swath of expressive and associational
conduct is in fact encompassed by § 1021.
With respect to the witnesses who had appeared in Court, the
Court had the following colloquy with the Government:
Court: These people have real things they are saying. These are not speculative or hypotheticals. These are people who have actually written articles that we have here. [The Court then held up the articles written by O’Brien and marked as Court Ex. 3.] We are trying to figure out, are these articles going to subject Ms. O’Brien to risk under § 1021? . . . .
Government: Again, I’m not authorized to make specific representations regarding specific people. I’m saying that ‘associated forces’ cannot extend to groups that are not armed groups at all.
Court: So we don’t know about the articles, it depends?
Government: Maybe they are an armed group.
Tr. 236.
With respect to Jonsdottir the Court asked:
I’m asking you as a representative of the United States Government here today, can Ms. Jonsdottir travel to the United States without any concern that she will be captured by her current activities under § 1021?
Government: Again, I can’t make representations on specifics. I don’t know what she has been up to. I don’t know what is going on there.
Tr. 239.
With regard to Hedges the Court asked,
Is it possible, in your view, that Mr. Hedges, any of his activities as he has described them, should they occur in the future, [and also as to his past
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activities], can you say that he would not be subject to military detention without trial under § 1021? Government: I’m not prepared to address that question here today, but I would answer that by saying that his concerns that he has raised are addressed by what I have said and he has the burden of showing that his fear as articulated is a reasonable fear. Tr. 245.
DISCUSSION Plaintiffs’ challenge to the constitutionality of § 1021 and request for preliminary injunctive relief requires this Court to answer the following questions: do these plaintiffs have the standing to bring this action? If plaintiffs do have standing--or at least some of them do--are they able to meet the demanding standards for preliminary injunctive relief? As set forth below, the Court answers those questions in the affirmative. I. ARTICLE III AND PLAINTIFFS’ STANDING Article III, § 2 of the United States Constitution empowers this Court only to entertain actual cases and controversies. “Standing doctrine determines ‘whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III’ and is therefore ‘entitled to have the courts decide the merits of the dispute or of particular issues.’” Amnesty Int’l USA v. Clapper, 638 F.3d 118, 131 (2d Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “A citizen
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who dislikes a particular law may not require a court to address its constitutionality simply by stating in a complaint his belief, however deeply held, that the law is inconsistent with some provision of the Constitution.” Id. Concrete injury is required. Id.
In Allen v. Wright, 468 U.S. 737 (1984), the Supreme Court made clear that standing is “built on a single basic idea--the idea of the separation of powers.” Id. at 752. Article III limits judicial review of legislative or executive acts only to those instances in which it is truly necessary to protect a complaining party’s interests. Clapper, 638 F.3d at 132.
The Supreme Court has set forth three elements a plaintiff must establish to show standing: first, a plaintiff must have suffered a concrete or particularized invasion of a legally protected interest, which is must be actual or imminent, not conjectural or hypothetical; second, there must be a causal connection between the injury and the conduct complained of--that is, the injury has to be fairly traceable to some action by the defendant; and third, it must be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Clapper, 638 F.3d at 131-32; Pac. Capital Bank, N.A. v. Conn., 542 F.3d 341, 350 (2d Cir. 2008).
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The Second Circuit recently took on the question of standing again in Clapper. There, the Second Circuit found that plaintiffs challenging certain legislation (i.e., section 702 of the Foreign Intelligence Surveillance Act of 1978--a recent amendment to the statute) had demonstrated that they suffered present injuries when they demonstrated concrete economic and professional harms. 638 F.3d at 135. The Court noted that in cases in which plaintiffs allege an injury based on prospective government action, they need only show a realistic danger of direct injury. Id. (quoting Babbitt, 442 U.S. at 298). The court found further that where plaintiffs allege a prospective injury to First Amendment rights, they must only show an actual and well-founded fear. Id. The Second Circuit also stated that “the fact that the Government has authorized the potentially harmful conduct [here, indefinite detention under § 1021] means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized [detention].” Id. at 138.
Here, each of the four plaintiffs who testified (either live or via declaration as in the case of Jonsdottir) has shown an actual fear that their expressive and associational activities are covered by § 1021; and each of them has put forward uncontroverted evidence of concrete--non-hypothetical--ways in which the presence of the legislation has already impacted those expressive and associational activities.
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For instance, Hedges has testified that he is currently concerned about associating with certain individuals and in fact has now removed himself from certain situations in the course of his professional activities because of that concern. In addition, given his prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban, as well as others that are denominated terrorist organizations by the U.S. State Department (e.g., associating with these individuals in these groups as part of his investigative work, reporting on the groups in the press), he has a realistic fear that those activities will subject him to detention under § 1021. That fear cannot be said to be ill-founded when, at the injunction hearing itself, the Government was unwilling to commit that such conduct does not fall within § 1021’s ambit.15
Further, and as discussed below, since this Court is not convinced that § 1021 is simply a “reaffirmation” of the AUMF, and since the Government has authorized detention for violations of § 1021, plaintiffs here can reasonably assume that Government officials will actually undertake the detention authorized by the statute. See Clapper, 638 F.3d at 138.
O’Brien likewise has established a reasonable fear of future government action that is likely to occur. O’Brien has written a
15 The inability to make specific representations as to the plaintiffs here renders confusing the Government’s repeated assertion that plaintiffs’ fears are unreasonable.
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series of articles already--some of which relate to al-Qaeda, the Taliban, or “associated forces” no matter how defined. The Government was unwilling to state at the hearing that O’Brien would not be detained under § 1021 for her expressive conduct in regard to those articles. Moreover, O’Brien testified that she has withheld at least two articles from publication because of her concerns regarding the potential for her expressive conduct in those articles to render her a “covered person” under §1021 and thereby subject her to military detention.
Wargalla stated that, as Deputy Director of RevolutionTruth.org, she is concerned that she not expose herself or others to possible detention under § 1021 by inviting Hamas to participate in certain panel discussions. That is a clear chilling of her associational activities,16 and supports a reasonable fear that at least some of her associational activities could result in enforcement under § 1021. Again, it is important to this Court’s determination that that at the hearing on this motion the Government was unwilling to represent that Wargalla’s activities would not subject her to detention under §1021.
Jonsdottir’s concerns are based upon her specific fear that her connections to WikiLeaks, the video “Collateral Murder” (which
16 It is less clear that her activities with respect to Occupy London would provide her with a sufficient basis for standing--the only connection she draws between that group and known terrorist groups is her understanding that the City of London included Occupy London on an “extremist and terrorist” update along with other organizations including al-Qaeda and FARC.
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constitutes expressive conduct), and other associational anti-war organizations could cause her to fall within the definition of “covered person” under § 1021. She also testified by declaration that she has not engaged in certain expressive conduct in the form of speeches in the United States given her concerns. Again, the Government refused to state that those activities would not be subject to prosecution under § 1021. Under such circumstances, her fear is reasonable.
Each of the four plaintiffs who presented evidence in connection with this motion therefore have specific, concrete past actions which they fear may already have brought them within the ambit of § 1021, to which the Government has not represented--and will not represent--otherwise. Each have also already experienced a chilling of specific associational and expressive conduct. On the record before the Court on this motion, those plaintiffs have shown actual, as well as imminent and particularized, invasion of legally-protected interests. See Clapper, 638 F.3d at 131-32.
Plaintiffs have also shown a “causal connection” between their imminent injury and potential detention under § 1021. Each plaintiff testified that certain of his or her expressive or associational conduct had in fact been chilled as a result of his/her understanding (or lack thereof) of the scope of § 1021. That creates the necessary link between their asserted injury and
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the action by the Government--namely, the passage of § 1021 in its current form. See id. at 132.
Further, with respect to the “costs” undertaken to avoid being prosecuted under the challenged statute as discussed in Clapper, see 638 F.3d at 134, the Court finds that all four plaintiffs have sufficiently sustained “costs” to confer standing. The Court does not find that the costs incurred must be monetary. Although the plaintiffs in Clapper had sustained monetary costs based upon their reasonable fear of future government action that was likely to occur--as have certain plaintiffs in this action (e.g., O’Brien’s purchase of a hard drive to protect certain of her articles)--it cannot be that only monetary costs will suffice to evidence the “reasonable fear” of “future government harm that is reasonably likely to occur.” Id. at 140. The costs to plaintiffs in changing their respective associational or expressive activities imposes concrete, personal, human costs on these plaintiffs.17 Forgoing professional opportunities cannot be said not to carry some costs, even of those costs cannot be quantified in monetary terms. The human costs associated with altering their behavior--both in their personal, day-to-day lives
17 Plaintiffs focus on the monetary costs associated with their pursuing this litigation in relation to their standing arguments. (See, e.g., Certification of Kai Wargalla (Dkt. No. 18) ¶ 18; Certification of Alexa O’Brien (Dkt. No. 14) ¶ 30.) Those costs are not properly considered as costs associated with plaintiffs’ “reasonable fear of future government harm,” and the Court does consider them in its analysis of plaintiffs’ standing here.
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as well as their professional lives--are certainly cognizable costs undertaken based upon their reasonable fear.
Indeed, the fact that the instant action is a “pre-enforcement” challenge to the NDAA goes precisely to that point. Courts have been willing to review pre-enforcement challenges with respect to criminal statutes more readily than for civil. See, e.g., Holder, 130 S. Ct. at 2717; see also Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979).
In Holder, the Supreme Court reviewed a pre-enforcement challenge to a criminal statute based upon the fact that “[p]laintiffs face a ‘credible threat of prosecution’ and ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” 130 S. Ct. at 2717 (quoting Babbitt, 442 U.S. at 298). There, plaintiffs claimed that they had provided certain support to the PKK and LTTE before the enactment of the statute at issue and would do so again if the “statute’s allegedly unconstitutional bar were lifted.” Id. The Supreme Court noted that “[t]he Government has not argued to this Court that plaintiffs will not be prosecuted for what they wish to do.” Id. Thus, the Court concluded that the case before it presented a justiciable case or controversy (with plaintiffs who had standing). Id.
Section 1021 of the NDAA is not classically a “criminal statute” in that it does not provide for a maximum or minimum
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period of imprisonment. However, there can be no doubt that the possibility of indefinite military detention, involving similar deprivation of personal liberty as criminal incarceration, is analogous to a criminal statute. Indeed, as the court noted in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), when reviewing the breadth of the term “substantially support” with respect to detention authority under the AUMF, “a detention authority that sweeps so broadly is simply beyond what the law of war will support. The Government’s approach in this respect evidences an importation of principles from the criminal law context.” Id. at 75. An individual detained under § 1021 could be subject to military detention until the cessation of hostilities--and in the context of the war on terrorism, that is an uncertain period of time to be sure.
In addition, and this bleeds into the Court’s analysis of plaintiffs’ irreparable harm below, the uncontroverted testimony at the evidentiary hearing indicated that certain plaintiffs have, intend to or would engage in conduct that the Government will not represent is outside of § 1021. Thus, similar to the Supreme Court’s finding in Holder as well as the Second Circuit’s in Clapper, these plaintiffs have standing precisely because their “undisputed testimony clearly establishes that they are suffering injuries in fact, and because [the Court] finds those injuries are causally connected to [§ 1021]--because they are taken in
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anticipation of future government action that is reasonably likely to occur.” Clapper, 638 F.3d at 140.
Finally, the injunctive relief requested by plaintiffs will, at least preliminarily, redress the alleged injuries connected to enactment of § 1021. Each of the four plaintiffs testified that the recent chilling of his or her expressive and associational conduct is directly related to § 1021; therefore, issuance of the relief they seek would redress this asserted injury. Id. at 132, 143-45.
Accordingly, plaintiffs Hedges, O’Brien, Wargalla, and Jonsdottir have sufficiently established their standing to bring this action. II. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
In order for plaintiffs to demonstrate entitlement to preliminary injunctive relief, they must demonstrate (a) a likelihood of success on the merits of their claims of constitutional infirmity; (b) that they will suffer irreparable harm in the absence of the requested relief; (c) that the balance of the equities tips in their favor; and (d) that the injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008); accord Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010).
“[T]here is judicial power to enjoin enforcement of an act of Congress pending final determination of constitutionality where
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such an injunction is necessary in order to prevent irreparable

damage.” Heart of Atlanta Motel v. United States, 85 S. Ct. 1, 2

(1964). However, “[j]udicial power to stay an act of Congress,

like judicial power to declare an act unconstitutional, is an

awesome responsibility calling for the utmost circumspection in

its exercise.” Id.; Turner v. Broad. Sys. v. F.C.C., 507 U.S.

1301, 1302 (1993). In the context of determining whether the

justiciable controversy here favors preliminary relief, this Court

has kept clearly before it those admonitions on judicial

restraint. 1.

Likelihood Of Success On The Merits18

Plaintiffs have asserted both facial and as applied

challenges against § 1021. They assert that the statute’s

purported overbreadth captures their expressive and associational

conduct in violation of their rights under the First Amendment,

and they separately assert that the statute’s vagueness violates

their due process rights under the Fifth Amendment.

This Court starts with the proposition that there is strong

presumption of validity that attaches to an act of Congress.

This Court’s first task is to try to avoid having to pass on

constitutional questions. See F.C.C. v. Fox Television Stations,

18 Plaintiffs focus heavily on the constitutionality of the type of military detention authorized by § 1021. That question of such detention has been examined at length by the Supreme Court--and the contours of what is, and is not, permissible are well established at this point. The Court need not reach the issue of detention here because the question of constitutionality rests most significantly in plaintiffs’ First and Fifth Amendment claims.

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Inc., 566 U.S. 502, 516 (2009) (“The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.”). If such “constitutional avoidance” is itself unavoidable, the Court must then seek to find an interpretation of the statute that upholds the constitutionality of the legislation. United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963).
The Court’s attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so--thereby ensuring standing and requiring this Court to reach the merits of the instant motion.
a. Facial versus As Applied Challenge: The First Amendment
This Court approaches plaintiffs’ facial challenge to § 1021 with great caution. The Supreme Court has repeatedly cautioned that facial challenges to the constitutionality of a law–-which, if successful, would invalidate the entirety of the law--are
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disfavored. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008). Outside the context of the First Amendment, it is accepted that a facial challenge must generally fail when a statute has a plainly legitimate sweep. Id. Facial challenges run the risk of declaring the constitutionality of statutes on an inadequate record; they run the risk of addressing more than the bare minimum that must be addressed in order to resolve the problem before a court; and they most importantly threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. Id. at 451. “We must keep in mind that ‘a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 329 (2006) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality)).19
The statute at issue here has a plainly legitimate sweep. Indeed, as this Court noted at the evidentiary hearing, the conduct in which the plaintiffs here engage is without a doubt not the core conduct that is intended to be covered by the statute. See Tr. 20-21. Section 1021 is a statute aimed at
19 Outside the First Amendment context, a facial challenge can generally only prevail when a plaintiff establishes that no set of circumstances exist under which the law would be valid. Washington State Grange, 552 U.S. at 449. In other words, the Court is quite mindful of the nearly infinite bar that applies to facial challenges when something other than the First Amendment is at issue.
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individuals associating with, and providing some degree of support (a degree known only to the drafters of § 1021, if at all), terrorists connected to al-Qaeda and the Taliban. It stands to reason that the type of person Congress intended to be “covered” under § 1021 is someone who has taken up arms, or might be providing arms, to al-Qaeda, the Taliban or some of their offshoots. No doubt the public should be protected from such people and we should affirmatively defer to Congress and those in appropriate law enforcement and military positions wherever possible as to how best to accomplish this.
Nevertheless, with respect to § 1021, and particularly in light of the Government’s representations that it could not represent that plaintiffs’ expressive and associational conduct does not bring them within the ambit of the statute, plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.
When a statute encroaches on rights guaranteed by the First Amendment, facial challenges are allowed to prevent the possibility that a statute’s mere existence might inhibit free expression. See Members of the City Council of the City of Los Angeles, et al. v. Taxpayers for Vincent, 466 U.S. 789 (1984). In Dombrowski v. Pfister, 380 U.S. 479 (1965), the Supreme Court stated, “Because of the sensitive nature of constitutionally
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protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression--of transcendent value to all society, and not merely those exercising their rights--might be the loser.” Id. at 486.
When a statute captures both speech and non-speech conduct, the overbreadth of a statute (e.g., the overbreadth equating with capturing constitutionally protected conduct) “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broaderick v. Oklahoma, 413 U.S. 601, 615 (1973). “However, where the statute unquestionably attaches sanctions to protected conduct [e.g., expressive and associational conduct], the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 217 (1975). “In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 216; Members of the City Council of the City of Los Angeles, 466 U.S. at 801.
In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), Justice Kennedy wrote that “[s]peech is an essential mechanism of democracy, for it is the means that hold officials
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accountable to the people . . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a pre-condition to enlightened self-government.” Id. at 899. Laws that burden political speech are therefore subject to strict scrutiny. Id. at 898. “The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 899.
A facial challenge is appropriate here. That does not, however, mean that plaintiffs have necessarily shown a likelihood of success on the merits as to that claim--the Court separately analyzes that below. As the Supreme Court noted in Broaderick, “it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” 413 U.S. at 612. There is a societal interest against requiring official approval for protected speech or delegating standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See id.; see also Cox v. State of Louisiana, 379 U.S. 536, 557 (1965) (“It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious
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discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute.”).
b. Likelihood of Success on Plaintiffs’ First Amendment Claim
Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.
Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and
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unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
It is certainly true, as this Court stated at the hearing, that not all speech is in fact protected by the First Amendment. The “exceptional circumstances” in which the First Amendment does not cover speech has been limited to speech that incites violence, is obscene, or is incidental to criminal activity. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 590 (1976). However, the type of speech in which the plaintiffs here have engaged does not, as presented at the hearing, fall into any of those categories.
This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.
c. The Due Process Challenge: Is the Statute Void for Vagueness?
To satisfy the Due Process Clause of the Fifth Amendment, individuals are entitled to understand the scope and nature of
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statutes which might subject them to criminal penalties. Thus, “[a] penal statute must define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.” Skilling v. United States, 130 S. Ct. 2896, 2928 (2010). That analysis is performed against the backdrop of a strong presumption of validity given to acts of Congress. Id.
In the absence of an accompanying First Amendment challenge, a vagueness challenge is generally evaluated on an “as applied” basis. United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003); accord United States v. Whittaker, 999F.2d 38, 42 (2d Cir. 1993).
However, there is an exception to the general rule that vagueness challenges are generally evaluated on an “as applied” basis: courts have allowed facial attacks for vagueness when a criminal statute lacks a mens rea requirement, even in the absence of an accompanying First Amendment challenge. See City of Chicago v. Morales, 527 U.S. 41 (1999). In City of Chicago, the Supreme Court found a criminal statute that lacked a scienter requirement vague and subject to facial invalidation. Id. at 55. As stated above, § 1021 (unlike § 1022, or even 18 U.S.C. §§ 2339A/B--i.e., the statute(s) under review in Holder) lacks a knowledge requirement; an individual could fall within the
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definition of “covered person” under § 1021 without having either intentionally or recklessly known that he or she was doing so.
A question, then, for this Court is whether § 1021 should be treated as analogous to a criminal statute. If it is, then the test set forth in Skilling applies. See Rybicki, 354 F.3d at 129. As stated above, this Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute. Cf. Hamlily, 616 F. Supp. 2d at 75 (“[A] detention authority that sweeps so broadly is simply beyond what the law of war will support. The Government’s approach in this respect evidences an importation of principles from the criminal law context.”).
Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.
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Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban.
The Government’s strongest position is with respect to the definition of “associated forces.” The Government argued that there is an accepted definition of what constitutes “associated force” under the Laws of War, which is defined in terms of principles of co-belligerency and the Laws of War. Specifically, “associated forces” is understood, at least by the Government, to be “‘individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of cobelligerency.’” (Gov’t Mem. at 6 (quoting March 2009 Mem. at 7); see also Gov’t Supp. Mem. at 9.)20 The Court notes that even accepting the Government’s definition of “associated forces,” that does not resolve plaintiffs’ concerns since they each testified to
20 As discussed above, Hedges testified that he knows a number of individuals detained as enemy combatants pursuant to the Laws of War who were not “armed” per se. Thus, the definition provided by the Government--albeit in a “litigation position” taken in a wholly separate litigation--does not provide clear parameters to plaintiffs here regarding the meaning of “associated forces.”
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activities with or involving individuals or organizations that are “associated forces” as defined by the Government.
As to “substantially” or “direct” “support,” plaintiffs have the stronger argument, stating that those terms lack sufficient definition. That is particularly persuasive in light of the fact that a number of other statutes, including the prong of the NDAA that directly follows this one (i.e., § 1022 of the NDAA), have lengthy definitional provisions. See Pub. L. 112-81, 125 Stat. 1298 § 1022. The Government was unable to define precisely what “direct” or “substantial” “support” means. Instead, the Government pointed to cases in which the phrase “substantially supported” had been referred to in connection with the interpretation of the AUMF (Gov’t Mem. at 5 & n.5), but also conceded, as it must, that the parameters of “substantial support” were not at issue and not addressed in those cases. In addition, the Government conceded that the statute lacks a scienter or mens rea requirement of any kind. Tr. 230-31. Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.
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. Indeed, § 1022 of the NDAA contains a
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long series of definitions, as does 18 U.S.C. §§ 2339A and 2339B (examined in Holder). In Holder, the Supreme Court specifically found that the statute at issue was not unconstitutionally vague because of the very definitions and the knowledge requirement that are missing from this statute. See Holder, 130 S. Ct. at 2719-22.
But, as the Supreme Court stated in Holder, its upholding of §§ 2339A and 2339B does not mean “that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation on independent speech would pass constitutional muster, even if the Government were to show such speech benefits foreign terrorist organizations.” Id. at 2730. That is precisely the difficult situation in which § 1021 puts this Court: the statute at issue places the public at undue risk of having their speech chilled for the purported protection from al-Qaeda, the Taliban, and “associated forces”--i.e., “foreign terrorist organizations.” The vagueness of § 1021 does not allow the average citizen, or even the Government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope.
Because this Court has also found that that plaintiffs have shown a likelihood of success on the merits of their facial challenge under the First Amendment, this Court need not and does
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not reach the question of whether a facial challenge (versus an as applied challenge) would succeed on the Fifth Amendment claim at this stage.
d. Possible Limiting Constructions The Supreme Court has instructed courts to “refrain from invalidating more of the statute than is absolutely necessary.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan, 468 U.S. at 652)). This Court is mindful of its responsibility not to enjoin a statute without considering whether the statute--or the majority of the statute--is susceptible to a limiting construction that renders the statute constitutional. See, e.g., Washington State Grange, 552 U.S. at 456; Ayotte, 546 U.S. at 328-29; Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884 (1997). The Court has considered that responsibility carefully and does not believe that the brevity of this statute, the myriad interpretations of “substantial support,” “direct support,” and “associated forces,” and the absence of clear guidance from the Government on appropriate definitions for those terms, renders § 1021 susceptible to a limiting construction that would not result in the Court improperly taking on a legislative role. It is certainly true that in certain instances it is possible to place a limiting construction on a statute that will save it from facial invalidation. See Reno, 521 U.S. at 884. In
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Skilling, the Supreme Court reiterated that “it has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.” 130 S. Ct. at 2929. Indeed, every reasonable construction must be resorted to. Id. Justice Scalia warned, however, that “construction[s]” should not be judicial “inventions.” Id. at 2931 n.43.
In considering a facial challenge, a court can “impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” Reno, 521 U.S. at 884. There is no such construction available here. This Court could state, and has considered, imposing a construction that simply says that (1) knowledge is a required element; and (2) that speech and association protected by the First Amendment are not covered. However, that adds words and provides meaning in a way that dips into the role of legislature. Importing that construction into § 1021 might, in fact, run contrary to what Congress intends; Congress may want to capture certain otherwise protectable associational conduct or they may want to capture conduct that is not “knowing”--and they therefore may not want a court using a blunt instrument of caselaw construction to alter their legislative intent.
The Court has also considered importing certain principles from the AUMF into § 1021 to give the statute at issue a limiting
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construction. But that runs afoul of at least three things. First, it runs afoul of Justice Scalia’s admonition in Skilling that courts should not “invent” limiting constructions. 130 S. Ct. at 2931 n.43. Second, it runs afoul of the separation of powers between the Executive and Legislative branches at it imports a construction provided by the Executive, and not Congress. Doing so would strip Congress of its power to legislate--and to give statutes the meaning it intends. Even though Congress entitled § 1021 an “affirmation” of the AUMF, see Pub. L. 112-81, 125 Stat. 1298 § 1021, the stark differences between § 1021 and the AUMF (as discussed further below) leave the Court without a framework provided by Congress itself through which to impose a limiting construction and salvage § 1021--or any part thereof. Third, it runs afoul of the rule of construction that states that courts must presume that Congress acted intentionally in crafting legislation--and in importing (or not) concepts from one statute into a related or “reaffirming” statute. Cf. Bates v. United States, 522 U.S. 23, 30-31 (1997). One choice Congress had to “affirm” the AUMF could have been to restate it verbatim--or simply state, “We affirm the AUMF” and stop there. They did not. The Court finds that importing its interpretation of principles from the AUMF into § 1021 would ignore the differences between those two statutes that this Court is required to assume are intentional. Cf. id.
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Because this Court cannot fashion an appropriate limiting construction, it finds that preliminarily enjoining enforcement of § 1021 is the only appropriate remedy at this stage.
2. Irreparable Injury The second essential element of sustaining a claim for preliminary injunctive relief is that a plaintiff suffers irreparable harm in the absence of such relief. Salinger, 607 F.3d at 80. In the context of the First Amendment, the Supreme Court has held that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In Salinger, the Second Circuit reiterated that point, but clarified that it did not mean that First Amendment challenges necessarily carried a presumption of irreparable injury; rather, that the loss of First Amendment freedoms--even for a short duration--constituted irreparable injury without more. 607 F.3d at 81-82. Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021. Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O’Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Under Elrod and Salinger, that is sufficient to meet the element of irreparable harm. Moreover, since plaintiffs continue to have
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their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm.
In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities--i.e., an indeterminate period of time. Being subjected to the risk of such detention, particularly in light of the Government’s inability to represent that plaintiffs’ conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate? Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe.
The Government argues that there cannot be a threat of imminent harm because § 1021 is simply an “affirmation” of the AUMF--and since plaintiffs have not to date been subject to detention under the AUMF, there is no reasonable basis for them to fear detention under §1021. (See Gov’t Mem. at 16-25.) That argument, however, ignores that, as mentioned above, there are obvious differences between the AUMF and § 1021. Section 1021 is certainly far from a verbatim reprise of the AUMF. This Court assumes, as it must, that Congress acted intentionally when crafting the differences as between the two statutes.
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First, by its terms, the AUMF is tied directly and only to those involved in the events of 9/11. Pub. L. 107-40, 115 Stat. 224 at § 2(a) (authorization of the president to use force related to “attacks that occurred on September 11, 2001); see also id. at Preamble (“Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens . . .”). Section 1021, in contrast, has a non-specific definition of “covered person” that reaches beyond those involved in the 9/11 attacks by its very terms. See Pub. L. 112-81, 125 Stat. 1298 § 1021(b)(2) (a “covered person” is “[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 . . .”). To wit, § 1021 speaks in terms of “engaged in hostilities,” id.; that is the present progressive tense, not the past tense relating to 9/11.
Relatedly, the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021. At issue in the AUMF are those who were directly involved in the 9/11 attacks while those in § 1021 are specific groups and “associated forces.” Compare Pub. L. 107-40, 115 Stat. 224 at § 2(a) with Pub. L. 11281, 125 Stat. 1298 § 1021(b)(2). But the Government has not provided a concrete, cognizable set of organizations or individuals that constitute “associated forces,” lending further indefiniteness to § 1021.
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Further, any question of “support” is specifically defined by
the verbs in the statute--i.e., “planned,” “authorized,”
“committed,” or “aided” in relation to the 9/11 attacks themselves
or “harbored” in relation to the organizations or persons who
engaged in the just-discussed acts. Pub. L. 107-40, 115 Stat. 224
at § 2(a). Such clarity is not provided in § 1021 with respect to
what acts--and what mental state related to those acts--falls
within the broad, general phrase of “substantial support.”
Thus, the indefinite--indeed, vague--nature of § 1021,
coupled with the Government’s inability to provide assurances that
the specific conduct at issue here (of which the Government had
ample notice) would not subject plaintiffs to prosecution and
detention for their acts lays the foundation for plaintiffs’ reasonable fear of irreparable harm.21
3. Balancing Of The Equities
In considering whether to issue a preliminary injunction, the
Court must consider, as noted above, “the balance of the hardships
21 The assertion that President Obama’s Signing Statement erases any reasonable fear of imminent harm does not take into account precisely on what that Signing Statement focuses. It does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute. Rather, the Signing Statement simply assures the public that the Obama “Administration will not authorize the indefinite military detention without trial of American citizens” and “will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.” Singing Statement, 2011 DAILY COMP. PRES. DOC. 978 at 1, 2. Thus, the question only goes to the constitutionality of the detention authorized by § 1021--not the type of conduct that may fall within § 1021. Accordingly, the Signing Statement does not eliminate the reasonable fear of future government harm that is likely to occur--i.e., the irreparable injury at issue here.
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between the plaintiff and defendant and issue the injunction only if the balance of the hardships tips in the plaintiff’s favor.” Salinger, 607 F.3d at 80.
The Government’s primary argument in opposition to this motion is that § 1021 is simply an affirmation of the AUMF; that it goes no further, it does nothing more. As is clear from this Opinion, this Court disagrees that that is the effect of § 1021 as currently drafted. However, if the Government’s argument is to be credited in terms of its belief as to the impact of the legislation--which is nil--then the issuance of an injunction should have absolutely no impact on any Governmental activities at all. The AUMF does not have a “sunset” provision: it is still in force and effect. Thus, to the extent the Government believes that the two provisions are co-extensive, enjoining any action under § 1021 should not have any impact on the Government.
Even if, however, § 1021 does convey some authority not provided under the AUMF, the equities nonetheless tip strongly in favor of enjoining its enforcement. The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs--or others--are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable--and real. Given
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our society’s strong commitment to protecting First Amendment rights, the equities must tip in favor of protecting those rights.
Moreover, Congress can add definitional language to the statute and resolve the issues the plaintiffs have raised and the Court has flagged. By adding definitions and imposing a scienter requirement, it can resolve the issues with the statute and proceed with enforcement activities it deems fit. In the meantime, there are a variety of other statutes which can be utilized to detain those engaged in various levels of support of terrorists--including the AUMF and § 1022. Thus, preliminarily enjoining the enforcement of § 1021 does not divest the Government of its many other tools.
4. Public Interest There is a strong public interest in protecting rights guaranteed by the First Amendment. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986) (“The constitutional guarantee of free speech serves significant societal interests . . . . By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information.” (quotation marks and citations omitted)); Salinger, 607 F.3d at 82. There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to
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understand the scope of conduct that could subject them to indefinite military detention. Cf. Mathews v. Eldridge, 424 U.S. 319, 335, 348-49 (1976).
Weighed against these public interests is the strong public interest in upholding acts of Congress and thereby maintaining the appropriate separation of powers; there is also a clear public interest which counsels for cautious use of judicial power to enjoin an act of Congress, and the public interest in ensuring protection from terroristic acts--and that law enforcement has the tools necessary to be as effective as possible in that regard.
The Government has assisted the Court in its deliberations with respect to the risks associated with the various interests on each side of the ledger. In light of the Government’s contention that § 1021 does nothing new, that it goes no further than the AUMF, the Court can only assume that the Government believes that preliminarily enjoining enforcement of § 1021 will not expose the public to any increased risk and that § 1021 does not add anything new to law enforcement’s tools.22
This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.
22 The Court disagrees with this scope argument, as set forth above, but refers to it as an indication of the expected impact on the Government.
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As set forth above, this Court has found that plaintiffs have shown a likelihood of success on the merits regarding their constitutional claim and it therefore has a responsibility to insure that the public's constitutional rights are protected.
Accordingly, this Court finds that the public interest is best served by the issuance of the preliminary relief recited herein.
CONCLUSION For the aforementioned reasons, plaintiffs' motion for preliminary injunction is GRANTED; enforcement of § 1021 of the NDAA is preliminarily enjoined pending further order of this Court or amendments to the statute rendering this Opinion & Order moot. The Clerk of the Court is directed to terminate the motion for preliminary injunction and the motion to file amicus brief at Docket Nos. 3 and 31.
SO ORDERED: Dated: New York, New York
May 16, 2012
Katherine B. Forrest UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------- X

:

CHRISTOPHER HEDGES, DANIEL ELLSBERG, :

JENNIFER BOLEN, NOAM CHOMSKY, ALEXA :

O’BRIEN, US DAY OF RAGE, KAI WARGALLA, :

HON. BRIGITTA JONSDOTTIR M.P.,

:

:

Plaintiffs, :

:

-v-

:

:

BARAK OBAMA, individually and as

:

representative of the UNITED STATES OF :

AMERICA; LEON PANETTA, individually :

and in his capacity as the executive :

and representative of the DEPARTMENT :

OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, :

HARRY REID, NANCY PELOSI, MITCH

:

MCCONNELL, ERIC CANTOR as

:

representatives of the UNITED STATES :

OF AMERICA,

:

:

Defendants. :

--------------------------------------- X

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: September 12, 2012
12 Civ. 331 (KBF) OPINION AND ORDER

KATHERINE B. FORREST, District Judge: On May 16, 2012, this Court preliminarily enjoined
enforcement of § 1021(b) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011)(“the NDAA”). See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting preliminary injunction) (the “May 16 Opinion”). On June 6, 2012, in response to a footnote contained in the Government’s1

1 “The Government” as used herein refers to those defendants in this action that are properly before the Court. See Hedges, 2012 WL 1721124, at *12.

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motion for reconsideration suggesting an unduly narrow interpretation of that ruling, this Court issued a summary order stating that the injunction was intended to--and did apply to-any and all enforcement of § 1021(b)(2), not simply to plaintiffs in this lawsuit.2 See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565, at *1 (S.D.N.Y. June 6, 2012) (summary order). On June 8, 2012, the parties agreed that neither side would seek to add to the evidentiary record presented in support of the preliminary injunction and that they would proceed directly to a hearing on plaintiffs’ request for a permanent injunction. (See Order (June 8, 2012) (Dkt. No. 43) at 1.) Accordingly, the parties submitted additional legal memoranda but no additional factual materials.
On August 7, 2012, the Court held oral argument on the request for a permanent injunction (the “August hearing”). At the commencement of that argument, the Court confirmed that the parties agreed that the evidentiary record developed at the March 29, 2012, preliminary injunction hearing (the “March hearing”) would constitute the trial record for this matter. Hr’g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt.
2 During a June 7, 2012, conference call with the Court, the parties were provided with the opportunity to seek a decision on the motion for reconsideration or to proceed directly to a hearing on a permanent injunction. The parties agreed to proceed directly to a permanent injunction. Accordingly, the Court denied the motion for reconsideration as moot. (See June 8 Order (Dkt. No. 43) at 1.)
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No. 59) (“Tr. II”) at 3. The Court bases its findings of fact on that record.
For the reasons set forth below, this Court grants plaintiffs’ motion and permanently enjoins enforcement of § 1021(b)(2) of the NDAA (referred to herein as “§ 1021(b)(2)”). I. SUMMARY OF OPINION
Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).
At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known--and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.
In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would
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not subject plaintiffs to military detention under § 1021. The Government did not--and does not--generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.
A key question throughout these proceedings has been, however, precisely what the statute means--what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention--potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity--and that specificity is absent from § 1021(b)(2).
Understanding the scope of § 1021(b)(2) requires defining key terms. At the March hearing, the Government was unable to
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provide definitions for those terms. The Government had prior notice of precisely which terms were at issue based upon allegations in the complaint, declarations, depositions, the briefing and oral argument. In particular, plaintiffs commenced this lawsuit asserting--and they continue to assert--that the phrases “associated forces,” “substantially supported,” and “directly supported” all are vague. Indeed, even after this Court’s May 16 Opinion in which the Court preliminarily found a likelihood of success on the merits of plaintiffs’ vagueness/due process challenge, the Government nevertheless did not provide particular definitions. Notably, the Government spent only one page of its 49-page memorandum in support of a final judgment denying a permanent injunction (the “pre-trial memorandum”) addressing the meaning of those terms. (See Gov’t’s Mem. of Law in Support of Final J. Denying a Permanent Inj. and Dismissing this Action (Dkt. No. 53) (“Gov’t Trial Mem.”).) The Government’s terse arguments do not resolve the Court’s concerns. The statute’s vagueness falls short of what due process requires.
The Government presents a variety of arguments which, if accepted, would allow the Court to avoid answering the constitutional questions raised in this action. As discussed below, however, the Court rejects each.
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First, the Government argues that this Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing. At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer. Hr’g Tr. of Oral Argument on Prelim. Inj., Mar. 29, 2012 (Dkt. No. 34) (“Tr. I”) at 236, 239, 245.
Article III of the Constitution, allowing federal courts to entertain only actual cases and controversies, requires that a plaintiff have standing to pursue a claim. Plaintiffs here, then, must show that they have a reasonable fear that their actions could subject them to detention under § 1021(b)(2).3 The Court recited the Government’s position--or lack thereof--in its May 16 Opinion. Following that Opinion, the Government changed its position. The Government stated its “new” position in two different ways. First, it expressed its position rather broadly: “[T]he conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Gov’t’s Mem. of Law in Support of
3 There are additional required elements for standing which the Court addresses below.
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its Mot. for Recons. (Dkt. No. 38) (“Recons. Mem.”) at 2.) Two pages later, the Government stated its full, qualified position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021. (Id. at 4 (emphases added) (footnote omitted).) The Government reaffirmed that position in its pre-trial memorandum. (See Gov’t Trial Mem. at 20.) Arguing that belatedly providing this qualified statement eliminates plaintiffs’ standing misunderstands controlling law: Standing is determined as of the outset of a case. The Government’s new position also ignores the posture in which it affirmatively placed itself--and plaintiffs--as a result of its shifting view. At the March hearing, plaintiffs testified credibly that they were engaged in, and would continue to engage in (without the threat of indefinite military detention), activities they feared would subject them to detention under § 1021. The Government had an opportunity, both then, and at the depositions it took of each of the testifying plaintiffs, to explore the nature of plaintiffs’ activities, and to test whether plaintiffs’ fears were actual and reasonable.
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Given that opportunity, the Court must--and does--take seriously the Government’s position at the March hearing. In other words, the Government did not offer a position at the March hearing sufficient to rebut plaintiffs’ credible testimony as to their reasonable fear of detention under § 1021(b)(2) and thus, its newly espoused position cannot erase what it said previously. Plaintiffs have standing.4
Second, the Government implicitly argues that its new position renders this action moot.5 It does not. The Government has explicitly stated that its position is applicable with respect to only those activities to which the plaintiffs testified at the March hearing. Thus, any protected First Amendment activities in which plaintiffs have engaged since then might subject them to indefinite military detention. The plaintiffs--writers, journalists, activists--testified credibly that they are continuing, and would continue without the fear of detention, these activities. An actual case or controversy remains.
4 The Government’s belated change of position--i.e., that it would not use § 1021(b)(2) as to these plaintiffs, for the specific activities described at the hearing, if done independently, if described accurately, and without more--must also be taken seriously. This last position raises additional concerns, and requires additional definitional structure discussed further below. 5 Although the Government does not specifically refer to its challenge as one of “mootness” (see Gov’t Trial Mem. at 23-24), as a matter of law the argument that its new litigation position “eliminates plaintiffs’ standing” (id. at 24) amounts to a mootness challenge.
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Third, the Government argues that even in the absence of its proffered assurance, plaintiffs cannot have standing since § 1021 is simply a reaffirmation of the 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (the “AUMF”)--and since plaintiffs were never detained under the AUMF in the ten years since its passage, they cannot have a reasonable fear that they will be detained under § 1021(b)(2) now. The Court rejects that argument.
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.
Based on what is known about the history of the executive branch’s use of detention authority (via reported cases and statements by the Government), sometime between September 18, 2001 (the date of the AUMF) and December 31, 2011 (the date of the NDAA)--without congressional authorization--the executive
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branch unilaterally extended its interpretation of its military detention authority to a scope resembling what was passed into law as § 1021(b)(2). Detentions have been challenged via habeas petitions. Courts have warned the Government about the limits of congressional authorization for detention authority (with respect to the AUMF), and that the “laws of war”--to which the Government has repeatedly referred in its opposition to the Guantanamo habeas petitions as providing a basis for detention-was not and should not be part of domestic law.
In March 2009, the Government presented its view of its detention authority under the AUMF--explicitly referring to that view as a “refinement” and limiting its application to then-current Guantanamo detainees. That position bears clear similarities to § 1021(b)(2). In contrast to those statements, in this proceeding the Government argues that its interpretation has always been consistent and has always included the various elements now found in § 1021(b)(2). Indeed the Government argues that no future administration could interpret § 1021(b)(2) or the AUMF differently because the two are so clearly the same. That frankly makes no sense, particularly in light of the Government’s inability at the March and August hearings to define certain terms in--or the scope of--
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§ 1021(b)(2).6 Accordingly, the Government cannot point to a lack of detention pursuant to the AUMF as eliminating the reasonable basis for plaintiffs’ stated fears regarding § 1021(b)(2).
Fourth, the Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it”--that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. In particular, the Government argues that the fact that the statute relates to military detention during a time of war both justifies § 1021(b)(2) breadth and requires judicial deference. The Court rejects that argument as well.
The Court is mindful of the extraordinary importance of the Government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2711 (2010). Moreover, these same considerations counsel particular attention to the Court’s obligation to avoid unnecessary constitutional questions in this context. Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
6 Put another way, one would reasonably assume that if the AUMF was interpreted consistently with the language of § 1021(b)(2), by 2012 the Government would be able to clearly define its terms and scope. It cannot.
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(Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. See, e.g., Ex parte Milligan, 72 U.S. (4 Wall.) 2, 125-26 (1866). Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.
And this Court gives appropriate and due deference to the executive and legislative branches--and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases--primarily decided during World War II--in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of
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Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil)). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside.
The Government also argues that, at most, the Court’s role should be limited to a post-detention habeas review. See Tr. II at 118. That argument is without merit and, indeed, dangerous. Habeas petitions (which take years to be resolved following initial detention) are reviewed under a “preponderance of the evidence” standard (versus the criminal standard of “beyond a reasonable doubt”) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous. If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.
In conclusion, this Court preliminarily found that plaintiffs showed a likelihood of success on the merits with respect to their claims that § 1021(b)(2) is overbroad as well as impermissibly vague. The Government has presented neither
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evidence nor persuasive legal argument that changes the Court’s preliminary rulings. The case law this Court cited in its May 16 Opinion remains good law. The factual record and case law now presents this Court with a matter ready for final resolution. The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.
At the August hearing, the Government stated that preliminary enjoining § 1021(b)(2) had not altered its detention practices in any way since in its view, the executive branch maintains identical detention authority under the AUMF. See Tr. II at 138. As set forth herein, however, that position is unsupported by the AUMF itself, has been rejected by other courts (including the Supreme Court), and is rejected by this Court.
If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of “substantially or directly supporting” associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.7
7 It is clear, as discussed below, that the Military Commission Acts of 2006 and 2009, Pub. L. No. 109-366, 120 Stat. 2600 (2006); Pub. L. No. 111-84, 123 Stat. 2190 (2009) (collectively, the “MCA”) refer to proceedings for alien enemy belligerents who have substantially supported the Taliban, al-Qaeda, or
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II. FINDINGS OF FACT Five plaintiffs provided evidentiary materials in support
of their positions in this action: Christopher Hedges, Alexa O’Brien, Jennifer Ann Bolen, Kai Wargalla and the Honorable Brigitta Jonsdottir.8 Plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified live at the March hearing.9 The Government did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings.
The Court finds the testimony of each plaintiff credible. With respect to the witnesses who testified live, the Court was able to evaluate their demeanor and ask clarifying questions. The Government cross-examined each of the witnesses who testified live (having also previously deposed him or her). None of the witnesses wavered in his or her testimony; each was sincere and direct. Each provided specific and detailed information regarding his or her writings, speech, and/or associational activities that have been affected--and that he or she asserts are continuing to be affected--by his or her fear of
associated forces. The MCA is a different statutory scheme altogether from the AUMF and § 1021; the MCA does not itself authorize detention. 8 “Plaintiffs,” as used in this Opinion, refers to the five plaintiffs that testified at the March preliminary injunction hearing. It does not include Daniel Ellsberg, Jennifer Bolen, or Noam Chomsky. 9 By agreement of the parties, Jonsdottir testified by declaration; the Government waived cross-examination. Her declaration was read into the record at the hearing by Naomi Wolf. Tr. I at 147-55.
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detention pursuant to § 1021(b)(2). The Court adopts the factual findings set forth in its May 16, 2012 Opinion, see Hedges, 2012 WL 1721124, at *6-15, and repeats here only those facts necessary for context. The Court also supplements those factual findings based on information from the March hearing and admitted documentary evidence not recited in the May 16 Opinion. The Court’s factual findings are as follows:
A. Christopher Hedges Christopher Hedges has been a foreign correspondent and journalist for more than 20 years. Tr. I at 156. During that time, he has published numerous articles and books on topics such as al-Qaeda, Mohammad Atta, and the Paris bombing plot; he is a Pulitzer Prize winner. Id. at 157-58. His most recent book was published in June 2012.10 He intends to continue to work as a journalist. See, e.g., id. at 173. Hedges’ writing and journalistic activities have taken him to the Middle East, the Balkans, Africa, and Latin America. Id. at 157. His work has involved interviewing al-Qaeda members who were later detained. Id. at 158. He has reported on 17 groups contained on a list of known terrorist organizations prepared by the U.S. Department of State. (See Court Ex. 9 (Country Reports
10 Days of Destruction, Days of Revolt, co-authored by Hedges and Joe Sacco, was published after the March hearing. The Court takes judicial notice of that publication.
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on Terrorism, Report of the U.S. State Dep’t, Ch. 6 (“Terrorist Groups”))(Aug. 2010) at 1.)
Among the groups on which Hedges has reported (most of which are on the State Department list of terrorist organizations) are: the Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama’a al-Islamiya, Hamas, Hizballah, Kahane Chai, the Kongra-Gel (a/k/a “KGK” or “PKK”), the Mujahedin-e Khalq Organization (“MEK”), the Palestine Liberation Front, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine (including also the Central Command) (“PFLP”), al-Qaeda, Revolutionary People’s Party/Front, and the Salafist Group for Call and Combat. (Court Ex. 9 at 12); see also Tr. I at 169. In his career as a journalist and writer, Hedges has spent time with members of those groups; he has interviewed their leadership as well as the rank-and-file. Tr. I at 170. In connection with his reporting on Hamas, Hedges has met with its leadership, stayed in their homes, and socialized with them. Id. at 172. He testified that some of the organizations on which he has reported are considered to be in hostilities with coalition partners of the United States. Id. at 166, 169. The PKK is only one example. Id. at 169. Other groups Hedges has covered, such as the PFLP, have carried out acts of terrorism against U.S. targets. Id. at 170.
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As part of his investigative work, he has been embedded with certain organizations on the State Department’s Terrorist List. For instance, in connection with his coverage of the PKK, he travelled with PKK armed units in southeastern Turkey and northern Iraq. Id. He was with an armed unit of the PKK in northern Iraq when Turkish war planes attacked it. Id. at 171.
Hedges’s work has involved investigating, associating with and reporting on al-Qaeda. After September 11, 2001, he was based in Paris and covered al-Qaeda in all countries in Europe with the exception of Germany (he does not speak German, but does speak Spanish, French and Arabic). Id. at 157. He did “reconstructs”: following terrorist attacks, he “would spend weeks on the ground piecing together everything that had gone into [the] attack and all of the movements of those who were involved in [the] attacks.” Id. at 157-58. He did a “reconstruct” relating to Mohammad Atta, one of the participants in the attacks on September 11, 2001. Id. at 158. Hedges testified that he “retraced every step Mohammad Atta took.” Id.
Hedges covered al-Qaeda’s attempted bombing of the Paris Embassy. Id. He also covered al-Qaeda’s suicide bombing attack on the synagogue in Djerba, Tunisia, as well as Richard Reed, an al-Qaeda member who attempted to use a shoe bomb to blow up an airplane. Id.
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Hedges has recently spoken at events in Belgium and France, and could encounter people associated with groups that are “hostile to the U.S. government.” Id. at 174.
Hedges testified that because he speaks a number of languages (including, as stated, Arabic), he has been approached by publications, such as Harper’s Magazine, the Nation and others to return to the Middle East as a correspondent. Id. at 172-73. He testified that he has a realistic expectation that his work will bring him back to the Middle East. Id. at 173.
Hedges testified that his work is known in the Middle East and read widely there. Id. at 159. His works have appeared on Islamic and jihadist websites. Id.
Hedges read news articles regarding § 1021 prior to its implementation. Id. at 160. He testified that he has read § 1021 but does not understand the definition of certain terms including “associated forces,” “engaged in hostilities,” or “substantially supported.” Id. at 161-62. He testified that he has read the AUMF, that he understands it and that, in his view, it is not coextensive with § 1021. Id. at 164-65.
Hedges testified that his oral and written speech as well as associational activities have been chilled by § 1021: he does not understand what conduct is covered by § 1021(b)(2), but does understand that the penalty of running afoul of it could be indefinite military detention. See, e.g., id. at 174, 177, 186.
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He anticipated having to change his associational activities at speeches he was giving as a result of § 1021. Id. at 174. Hedges testified that prior to the passage of § 1021, he never feared his activities could subject him to indefinite military detention by the United States. Id. at 206.
At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. Id. at 245. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. Tr. II at 142.11
This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2).
B. Alexa O’Brien Alexa O’Brien was the founder of U.S. Day of Rage and has also written numerous articles. Tr. I at 40-42. She identifies her career as a “content strategist.” Id. at 38. O’Brien is also a contributor and editor of the news website, WL Central. Id. at 40-41. WL Central has a number of international news journalists who contribute content. Id. at
11 There is no evidence in the record that plaintiffs engage in any relevant activities other than those protected by the First Amendment.
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40. O’Brien has published more than 50 articles on WL Central since January 2011. Id. at 41. She has published articles on WL Central relating to WikiLeaks’s release of U.S. State Department cables, the Joint Task Force memoranda for Guantanamo Bay, and the revolutions in Egypt, Bahrain, Yemen, and Iran. Id. She has also has written blogs relating to those events, articles on the legal proceedings for Bradley Manning and Julian Assange relating to WikiLeaks, and has published a series of articles based on interviews of individuals who have been detained at Guantanamo Bay or who were prison guards there. (Court Ex. 3 (series of published articles authored by O’Brien)); Tr. I at 41.
O’Brien testified that in February 2012, she learned that an individual employed by a private security firm had allegedly been asked to tie U.S. Day of Rage to Islamic fundamentalist movements. Tr. I at 43. She received a copy of an email which indicated that there had been communications in this regard dating back to August 2011. Id. The email exchange was located on the WikiLeaks website and was between individuals named Thomas Kopecky and Fred Burton. Id. at 45. Based on first-hand knowledge, O’Brien testified that she is aware that Burton is a former security official previously employed by the U.S. State Department. Id. at 45-46.
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O’Brien testified credibly that she also received twitter messages from a private security contractor called Provide Security. Id. at 47. One of the messages indicated that U.S. Day of Rage had been found on an Islamic jihadist website. Id. at 48. The message stated: “Now you are really in over your head with this. Muslims from an Afghanistan jihad site have jumped in.”12
O’Brien also testified that in September 2011 she was contacted by someone she knew to be a federal agent, but to whom she guaranteed confidentiality of source. Id. at 52. She testified that that individual had seen a memorandum from the Department of Homeland Security (“DHS”) addressed to law enforcement across the nation (a) regarding the fact that DHS planned to infiltrate U.S. Day of Rage and (b) linking U.S. Day of Rage to a loosely knit “organization,” called “Anonymous,” that O’Brien knew to be associated with cyber-terrorism. Id. at 51-54.13 O’Brien later met with a journalist who told her that he had seen either the same memo to which the federal agent had referred or one with similar content. Id. at 69. O’Brien testified that in August 2011 she learned of an article suggesting that information about U.S. Day of Rage had been
12 The messages that O’Brien received were marked as Court Exhibit 4, admitted to show the reasonableness of O’Brien’s fearful state of mind regarding being subject to § 1021, and not for the truth of the matter asserted. 13 The Government did not object to this testimony. See Tr. I at 51-54.
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posted on Shamuk and Al-Jihad, two al-Qaeda recruitment sites.
Id. at 59.
O’Brien testified that she read § 1021, but does not
understand what certain of its terms mean and whether they would
encompass her activities. Id. at 74. In particular, she
pointed to the terms “associated forces” and “substantially
support” as lacking definition. See id. She stated:
I think it’s best to use an example [of] someone like Sami Al-Hajj, who is a Sudanese Al Jazeera cameraman, who was later released from Guantanamo Bay and now works for Al Jazeera. Again, “substantially supported,” what does that mean? In a war on terror where intelligence collection and the informationsharing environment are competing with the press for collection of information, it’s very similar activities of collect[ing], talking with people, getting information. It’s very hard when Secretary Clinton talks about the information war that we are in to understand what “substantially support” means in relationship to journalists.
Id.
O’Brien testified that she knows people who have been or
are subject to military detention and that she is concerned that
Section 1021 could subject her to military detention. Id. at
74-80. After reading § 1021(b)(2), she decided to withhold from
publication several articles she had written due to her concern
that they could subject her to detention under the statute. Id.
at 72 (“Court: Are you saying that there is a causal
relationship between the passage of [§ 1021] and your
withholding both of these articles? The Witness: Absolutely.”).
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O’Brien testified that pursuant to a request made under
the Freedom of Information Act, an organization called TruthOut.org had obtained a memorandum from the Department of
Homeland Security, which states “National Cybersecurity and Communications Integration Center Bulletin. Details on
‘Anonymous,’ upcoming U.S. operations 17 September 2011 Occupy Wall Street, ‘U.S. Day of Rage.’” Id. at 109-10.14
At the March hearing, when the Government was specifically
questioned by the Court regarding whether O’Brien’s activities could subject her to detention under § 1021(b)(2), the
Government stated it would not answer the question: The Court: ... [A]re those articles [holding up Court Ex. 3] going to subject M. O’Brien to risk under § 1021? . . . [Government]: Again, I’m not authorized to make specific representations as to particular people. I’m saying that “associated forces” cannot extend to groups that are not armed groups at all.
The Court: So we don’t know about the articles, it depends?
[Government]: Maybe they are an armed group. Id. at 236.
At the August hearing, the Government stated that it could not represent one way or the other whether future activities by
14 The Court admitted the document obtained pursuant to that request under the general hearsay exception contained in Fed. R. Evid. 807 as having sufficient indicia of reliability. The Court invited counsel for the Government to notify the Court if, after the hearing, they determined that the document was not authentic. The Court has not received such a communication and therefore accepts the document as authentic. See Tr. I at 109-11.
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plaintiffs, including O’Brien, would subject them to detention under § 1021. See, e.g., Tr. II at 142.
This Court finds that O’Brien has a reasonable fear of detention pursuant to § 1021(b)(2).
C. Kai Wargalla Kai Wargalla is an organizer and activist based in London. Tr. I at 116. She is Deputy Director of the organization “Revolution Truth,”15 and she also founded “Occupy London” and “Justice for Assange UK.” Id. at 116-18.16 Revolution Truth engages in international speech activities accessible in the United States through a website that has forums at which individuals speak on various topics.17 See id. at 117, 124. Wargalla stated that she saw a bulletin in which the London Police listed the Occupy London group as among terrorist or extremist groups. Id. at 120-21. Wargalla testified that she is also aware that several politicians have referred to WikiLeaks as a terrorist organization and that there is a grand jury hearing evidence with respect to activities by WikiLeaks. Id. at 139.
15 Revolution Truth is an organization that conducts panel discussions on a variety of topics including WikiLeaks. See Tr. I at 117; see also revolutiontruth.org. The Court can take judicial notice of the fact that content is available on a website; the Court does not refer to the website for the truth of any of its contents. See 23-34 94th St. Grocery Corp. v. New York City Bd. of Health, 685 F.3d 174, 183 n.7 (2d Cir. 2012) (taking judicial notice of the fact of content published on a website). 16 Justice for Assange is an organization whose efforts are dedicated to supporting Julian Assange, founder of WikiLeaks. See Justice4assange.com. 17 See revolutiontruth.org.
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Wargalla testified that she has read § 1021 and finds several of the statute’s terms concerning with respect to her activities. Id. at 121-22. She expressed concern regarding the definition of “covered persons” generally and the phrase “substantially supported” specifically. Id. She testified that the phrase “substantially supported” “could mean anything really, from having someone on a panel discussion, from conducting campaigns . . ., to organizing rallies and demonstrations.” Id. at 131.
Wargalla testified that her concerns regarding the scope of § 1021 has already chilled her speech-related activities. She testified that § 1021 has led to changes in certain of the expressive and associational activities of Revolution Truth. For instance, Revolution Truth has considered not inviting members of certain organizations to participate in its forums due to concerns regarding § 1021. Id. at 124-25. Wargalla identified Hamas as one organization Revolution Truth would likely not have participate in forums due to concerns about § 1021. Id. at 124-126.
At the August hearing, the Government stated that it could not represent that Wargalla’s future activities would not subject her to detention under § 1021. See, e.g., Tr. II at 142.
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This Court finds that Wargalla has a reasonable fear of detention pursuant to § 1021(b)(2).
D. Hon. Brigitta Jonsdottir The Honorable Brigitta Jonsdottir is a member of parliament in Iceland. Tr. I at 147-48. She is an activist and a spokesperson for a number of groups including WikiLeaks. Id. at 148. As part of her work in connection with WikiLeaks, she assisted in producing a film entitled “Collateral Murder,” released in 2010. Id. This film alleges that Americans and others have committed war crimes in connection with their participation in the war in Iraq. Id. at 149. Jonsdottir stated that she is aware that several U.S. politicians have classified WikiLeaks as a terrorist organization. Id. at 149. She believes that Bradley Manning, associated with WikiLeaks, has been charged with aiding terrorists. Id. at 150. She has received a subpoena from a U.S. grand jury for content from her Twitter account. Id. at 152. She has organized activities opposing the war in Iraq. Id. at 148. She has been given legal advice by members of Iceland’s Ministry of Foreign Affairs that she should not travel to the United States. Id. at 152-53. Jonsdottir stated that she is concerned that her activities with respect to WikiLeaks may subject her to detention under
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§ 1021--particularly because her work might be construed as giving “‘substantial support’ to ‘terrorists and/or associated forces.’” Id. at 154.
At the March hearing, the Court asked whether Jonsdottir’s activities could subject her to detention under § 1021. The Government responded, “Again, I can’t make representations on specifics. I don’t know what she has been up to. I don’t know what is going on there.” Id. at 239.
At the August hearing, the Government stated that Jonsdottir’s past activities as specifically set forth in her declaration would not subject her to detention under § 1021; however, the Government would not make representations regarding anything else that she had done or with respect to her future First Amendment activities. See, e.g., Tr. II at 142.
This Court finds that Jonsdottir has a reasonable fear of detention pursuant to § 1021(b)(2).
E. The Government The Government did not present any witnesses or seek to admit any documents in connection with the March hearing. The Government did depose--and then cross-examine at the March hearing--those plaintiffs who testified live. The Court does not find that this cross-examination undermined any of the witness’ essential points.
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At the March hearing, the Government was unable to represent that the specific activities in which plaintiffs had engaged would not subject them to indefinite military detention under § 1021. See, e.g., Tr. I 223, 226, 229-30. The Government changed its position several weeks later in a motion for reconsideration of the May 16 Opinion. In its memorandum submitted in support of that motion (which was subsequently denied as moot in light of the parties’ agreement to proceed directly to a hearing on a permanent injunction), the Government changed its position entirely--from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Recons. Mem. at 2.) It then set further qualified parameters of its position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
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(Id. at 4 (footnote omitted).) In its pre-trial memorandum, the Government reiterated that position. (See Gov’t Trial Mem. at 20.)
The Government did not put forth a witness to explain the difference between its first, March position and its second (set forth in its May reconsideration brief and reiterated in its June pre-trial memorandum). Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” See U.S. v. Stevens, 130 S. Ct. 1577, 1591 (2010). There is no guarantee that the position will not--or cannot-change again. In other words, the Government’s new position-without any guarantees of its firmness--cannot rebut the standing that plaintiffs established at the March hearing.
In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.” Tr. I at 223-226. In particular, when the Court asked for one example of what “substantially support” means, the Government stated, “I’m not in a position to give one specific example.” Id. at 226. When asked about the phrase “directly support,” the Government stated, “I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.” Id. at 229-30. In its pre-trial
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memoranda, the Government also did not provide any definitional examples for those terms.18
What evidence could the Government have offered in this matter? Are its positions necessarily based only on legal argument not susceptible to “proof”? Certainly not. The Government’s positions included mixed questions of law and fact. With due regard for the Government’s legitimate authority to exercise prosecutorial discretion and the Government’s need for secrecy in matters of true national security, there were nonetheless several types of evidence the Government could have offered.
First, in opposing plaintiffs’ standing the Government could have offered that no one has in fact been detained for any activities protected by the First Amendment (if such evidence existed). Based upon credibility, a single statement may not have required further elaboration that would have tread into areas of national security. (Even so, of course, there are well-established ways of dealing with such matters in judicial proceedings.)
The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement
18 In its pre-trial memorandum, the Government did refer to the dictionary definition of the word “support,” but did so not to offer an applicable framework for understanding the scope of the statute, but rather to refute plaintiffs’ position that support can and does include activities protected by the First Amendment. (See Gov’t Trial Mem. at 42.)
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determinations--namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. The Government could have offered a witness on law enforcement’s need for the breadth of § 1021 based upon factual scenarios that have occurred, but as to which secrecy is not required. The Government could have offered a witness who could have testified as to examples of how law enforcement has actually interpreted (if anyone has) the words “substantially support,” “directly support,” or “associated forces.” Any of that evidence may have provided an evidentiary basis for what are instead simply legal arguments or ipse dixit that plaintiffs’ fears of detention were unreasonable.
The Court is not suggesting the Government bears the burden of proof on standing; it does not. It could, however, have chosen to provide an evidentiary basis for its defense. Just as with any litigant, the Government’s position would have been strengthened had it offered facts supportive of its assertions. As a result of the Government’s strategic trial choice, the Court is left with a one-sided evidentiary record. The Court will not--indeed, it cannot--“assume” what the Government’s evidence would have been.19
19 The Government argues that plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention.” (Gov’t Trial Mem. at 2.) That position is patently unfair. Plaintiffs cannot, any more than the Court, possibly know the reasons for the military
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III. THE EVOLUTION OF THE AUMF AND § 1021
This proceeding directly implicates both the AUMF, signed
into law on September 18, 2001, and § 1021(b)(2) of the NDAA
because the Government’s central challenge to plaintiffs’
standing is that their fears of detention cannot be reasonable
since § 1021(b)(2) is simply a reaffirmation of the AUMF. In
other words, the Government contends § 1021 does nothing new.
(See, e.g., Gov’t Trial Mem. at 6-7); Tr. II at 82-84.
Repeatedly throughout this litigation, the Government has argued
that the AUMF is coextensive with § 1021(b)(2). The Court
preliminarily rejected that position in its May 16 Opinion, and
does so again now.
Passed in September 2001, the AUMF states,
The 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.
AUMF § 2(a) (emphasis added).
detention of all of those who have been detained (the facts regarding some subset of detainees can be gleaned from habeas petitions; but it is impossible to know the bases on which the majority have been detained). There is no requirement for openness in that regard--no list to which one can refer, and the Government chose not to put in any evidence to prove this point. In fact, when the Court asked the Government whether anyone had been detained under § 1021(b)(2) for activities protected by the First Amendment, counsel conceded that for the most part, he did not know. See Tr. II at 9192.
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The text of § 1021 clearly both restates the original AUMF detention authorization, and expands its coverage to persons other than those originally intended. It also directly incorporates, for the first time, the law of war. Sections 1021(a) and (b)(1) state:
(a) IN GENERAL.-- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war. (b) COVERED PERSONS. -- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. NDAA §§ 1021(a)-(b)(1). The Government’s position that the AUMF and § 1021(b)(2) are coextensive is wrong as a matter of law and fact. By relying so heavily on that argument, the Government itself has chosen to require judicial determination of the question of whether the AUMF and § 1021(b)(2) are in fact the same or different; the “reasonableness” of plaintiffs’ fears of detention now turns in large part on the answer to that question. The Court recognizes that such a determination could create interpretive tensions relating to the AUMF, and the Court
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would have avoided directly reaching the issue had the Government’s position not required it to do so.
The statutes are, in fact, strikingly different in language and, as a result, scope. Careful tracing of the AUMF and case law discussing the President’s detention authority under the AUMF demonstrate an evolutionary process: the AUMF set forth detention authority tied directly and only to September 11, 2001; at some point (and this Court does not know when), without additional Congressional authorization, the executive branch began to interpret its detention authority more broadly. It is unclear whether anyone has been detained under this broader interpretation. At least two courts--including the Supreme Court--have rejected the broader iteration of detention authority (similar to that now set forth in § 1021(b)(2)) under the original language of the AUMF.20 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 523, 526 (2004)21 (“[O]ur opinion finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant”; “Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and
20 In those cases, the Government set forth its position in its respective oppositions to habeas petitions filed by Guantanamo detainees. 21 Hamdi’s seizure was undisputedly in a combat zone. 542 U.S. at 510.
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‘engaged in armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.” (emphasis added)); Hamlily v. Obama, 616 F. Supp. 2d 63, 69 (D.D.C. 2009) (“[T]he Court rejects the concept of ‘substantial support’ as an independent basis for detention. Likewise, the Court finds that ‘directly support[ing] hostilities’ is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention. . . . Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not supported by domestic law or the law of war.”); cf. Gherebi v. Obama, 609 F. Supp. 2d 43, 46, 53, 61-67 (D.D.C. 2009), abrogated by Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011) (limiting the scope of detention authority while finding detention appropriate in the case at bar); id. at 46 (“The scope of the detention authority claimed by the President in armed conflict authorized by the AUMF began to take shape within months of the passing of the joint resolution [i.e., the AUMF]”); id. at 53 (referring to the March 2009 Memorandum as “modifying [the Government’s] standard for detaining individuals like petitioner.” (emphasis added)); id. at 68-69 (“sympathizers, propagandists, and financiers who have no involvement with this ‘command structure,’ while perhaps
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members of the enemy organization in an abstract sense, cannot be considered part of the enemy’s ‘armed forces’ and therefore cannot be detained militarily unless they take a direct part in the hostilities. . . . The key question is whether an individual ‘receive[s] and execute[s] orders’ from the enemy forces combat apparatus.”); id. at 70 (referring to the Government’s refusal to define the qualifier “substantial” in relation to “support”).
In rejecting the Government’s view of its sweeping detention authority, the Supreme Court stated in Hamdi:
[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of a threat. 542 U.S. at 530 (citing Milligan, 71 U.S. at 125). The Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.’” Id. at 531 (citing O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)). The Supreme Court made it clear that its view of the AUMF related to detention on the field of battle. Id. At the August hearing, however, the Government took the position that detention under the AUMF and § 1021(b)(2) requires neither presence on a battlefield nor the carrying of arms. See Tr. II at 93-95.
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Even without looking at § 1021(b)(2), § 1021 adds a new
element not previously set forth in the AUMF (although the
Government has argued that it is implicit in the AUMF): the
addition of the “law of war” language. Section 1021 explicitly
incorporates disposition under the law of war:
(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].
NDAA § 1021(c)-(d). Such clear embodiment of vague “law of war”
principles, see Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir.
2010), 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, though.22
What does the law of war add?
Here again, a review of recent case law reveals a likely
answer: the Government proffered the “law of war” in support of
22 As set forth herein, the limiting phrase “law of war” lacks precise meaning. Most frequently, it refers to rules of conduct during wartime (such as the Geneva Convention’s treatment of prisoners of war). It does not confer any detention authority. It appears that the Government uses the phrase to mean something quite different and akin to “what the President can do in war time, because it’s war time.” If so, and this would be the only basis to refer to the law of war for expansive interpretation of detention authority, then the argument really relates to the parameters of Article II powers.
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an expansive interpretation of detention authority under the AUMF, which was rejected by multiple courts. See, e.g., Al-Bihani, 590 F.3d at 871; Gherebi, 609 F. Supp. 2d at 53. As stated below, courts made it clear that the laws of war had in fact never been made part of a domestic statute, and therefore could not be part of the AUMF. However, the Government needed an anchor for its already expansive interpretation of the AUMF. Specifically, in Al-Bihani, the Circuit Court for the District of Columbia rejected an argument, made by the Government in opposing another Guantanamo habeas petition, that the laws of war were incorporated into the President’s detention authority. See Al-Bihani, 590 F.3d at 871.
In Al-Bihani, the D.C. Circuit stated that the Government’s arguments regarding its detention authority:
rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. That premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div.A, tit. X, 119 Stat. 2739, 2741-43, or the [Military Commission Act of 2006 or 2009], that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. Id. The Court of Appeals made its position quite clear: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for the U.S. courts.” Id.
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The D.C. Circuit further stated: “[T]he international laws
of war are not a fixed code. Their dictates and application to
actual events are by nature contestable and fluid.” Id. Thus,
“their lack of controlling force and firm definition render
their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.” Id.23
Thus, clear reference to the “law of war” in § 1021(b)(2) is an
attempt to solve legislatively the issue referred to in Al-
Bihani. Based upon the Court’s review of the AUMF and the NDAA,
as well as other relevant statutes, and controlling law, calling
§ 1021 a “reaffirmation” implies a type of retroactive fix to
what was by then a developed problem of executive branch usage
encountering judicial resistance.
In 2009, in the context of litigating a number of habeas
petitions, the United States District Court for the District of
Columbia requested that the Government submit a statement of its
interpretation regarding the scope of its detention authority.
23 In Al-Bihani, petitioner had carried arms and supplied food for an al-Qaeda affiliated organization. 590 F.3d at 872-73. The court found support for the petitioner’s detention under the “purposefully and materially supported” language of the MCAs of 2006 and 2009. Id. at 873. Pursuant to the 2009 MCA, an “unprivileged enemy belligerent” is defined as an individual who (1) “has engaged in hostilities against the United States or its coalition partners,” (2) “has purposefully and materially supported hostilities against the United States or its coalition partners,” or (3) “was a part of al-Qaeda at the time of the alleged offense under this chapter.” 10 U.S.C. § 948a(7). The 2009 MCA specifies that “[a]ny alien unprivileged enemy belligerent is subject to trial by military commission.” 10 U.S.C. § 948c. Although alBihani was detained prior to the passage of the 2006 MCA, the Court declined to ground his detention in the AUMF (based on the overly-broad interpretation of the Government’s detention authority) and instead referred to the MCA (though the MCA does not provide for separate detention authority). AlBihani, 590 F.3d at 869-73.
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Per that request, in March 2009, the Government submitted a
document which, in the first sentence, states it is “refining”
its position “with respect to its authority to detain those
persons who are now being held at Guantanamo Bay.” (See
Resp’t’s Mem. Re: the Gov’t’s Detention Authority Relative to
Detainees Held at Guantanamo Bay, at 1, In re Guantanamo Bay
Detainee Litig., Misc. No. 08-442 (D.D.C. Mar. 13, 2009) (the
“March 2009 Memorandum”) (emphasis added).)
In the March 2009 Memorandum, the Government based its
position on its detention authority under the AUMF as
“necessarily informed by principles of the law of war.” (Id. at
1.) As the Government itself acknowledged:
This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.
(Id. at 1 (emphases added).)
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In this memorandum, the Government also explicitly stated
that its position “is limited to the authority upon which the
Government is relying to detain the persons now being held at
Guantanamo Bay. It is not, at this point, meant to define the
contours of authority for military operations generally, or
detention in other contexts.” (Id. at 2 (emphasis added).) Put
another way, in March 2009 the Government was not taking the
position that the AUMF was coextensive in all circumstances with
the type of detention authority resembling that set forth now in § 1021(b)(2).24
As the D.C. Circuit recognized in Al-Bihani, the law of war
has never been, and should not be, part of the domestic laws in
the United States. Al-Bihani, 590 F.3d at 871. The law of war
is vague by necessity--it needs flexibility. Id. It is
therefore ill-suited to domestic application and it would be
ill-advised to make it a part of domestic law. See id.
In the face of cases ruling that the law of war does not
provide for the expansive detention authority the Government
24 The Declaration of Attorney General Eric H. Holder, Jr. submitted in support of the March 2009 memorandum stated that the “Government is submitting herewith an explanation of its detention authority upon which it intends to rely in this litigation, notwithstanding its continuing intensive efforts to develop fully its prospective detention policies.” (Decl. of Atty. Gen. Eric H. Holder, Jr., ¶ 2, In re: Guantanamo Bay Detainee Litig., Misc. No. 08-442 (Dkt. No. 201-1) (D.D.C. Mar. 13, 2009) (emphasis added).) He also states that in connection with reviews of the status of Guantanamo detainees, “the Executive Branch has refined the Government’s position with respect to the detention authority to be asserted in this litigation . . . .” (id. ¶ 10 (emphasis added)); and “[t]he Task Force will continue to deliberate regarding these issues as part of their work” (id. ¶ 11 (emphasis added)).
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envisions, the inclusion of the “law of war” in § 1021 appears to have been intended as a legislative gap-filler, a “fix.”
Section 1021(b)(2) differs from the AUMF in another, independent way. At the August hearing, the Government conceded that § 1021(b)(2) does not require that a “Covered Person’s” actions be--in any way--connected to the attacks of September 11, 2001, or that a “Covered Person” be on the field of battle or even carrying arms. See Tr. II at 93-95. Section 1021(b)(2) defines “Covered Persons” as:
(2) 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.
NDAA § 1021(b)(2). This provision contains concepts well beyond a direct involvement in the attacks of September 11, 2001--or even harboring those responsible for those attacks, as contemplated in the AUMF. It adds significant scope in its use of the phrases “substantially supported,” “associated forces that are engaged in hostilities against the United States or its coalition partners,” and “directly supported”--none of which are defined in their own right, as discussed throughout this Opinion.
During the August hearing, this Court asked the Government: The Court: You would agree with me that 1021(b)(2) does not require that an individual have – I will
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quote the language – planned, authorized, committed or aided terrorist attacks that occurred on September 11, 2001? [Government]: The individual need not have done that. That’s correct. The Court: Okay. And the individual need not have harbored such organizations or persons? Government: That’s correct. Tr. II at 106; see also id. at 108-09. Section 1021 is, therefore, significantly different in scope and language from the AUMF. The expansion of detention authority to include persons unconnected to the events of September 11, 2001, unconnected to any battlefield or to the carrying of arms, is, for the first time, codified in § 1021. The same is true for the codification of the disposition of the law of war in § 1021. The discussion of the two statutes’ differences further undergirds this Court’s factual findings that each plaintiff who testified has a reasonable fear that § 1021(b)(2), which in fact provides broader scope for detention, could be used to detain him or her. The fact that a plaintiff was not previously detained pursuant to the AUMF has no relevance to his or her current state of mind regarding § 1021(b)(2), nor does it provide guidance as to what executive branch practice with respect to § 1021(b)(2) is likely to be.
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Implicit in the Government’s argument that plaintiffs’ fears regarding § 1021 are unreasonable is that the Government has, in fact, been acting consistently over time by interpreting the AUMF as expansively as the language of § 1021. Since there was no congressional authorization for such broad detention authority prior to the passage of § 1021, since on its face the AUMF does not encompass detention for individuals other than those directly linked to the events of September 11, 2001, and since the reasons for individual detention decisions are not publicly reported, it is entirely reasonable and logical for plaintiffs to have understood that § 1021 presents a new scope for military detention. IV. OTHER RELEVANT STATUTES
A. The Government’s Arsenal of Prosecution Tools The AUMF and § 1021(b)(2) are only two of many statutes that provide the executive branch with tools to combat terrorism in its myriad forms. When the AUMF is read according to its plain terms and criminal statutes considered, it reasonably appears that the Government has the tools it needs to detain those engaged in terrorist activities and that have not been found to run afoul of constitutional protections. In particular, there are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations, including 18 U.S.C. §§ 2339A-2339B. Section
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2339A, originally passed in 1994, and modified on numerous occasions between then and December 2009, prohibits the “knowing” provision of material support or resources to a foreign terrorist organization. Id. § 2339A(a). An individual charged and found guilty under the statute is subject to a fine and a term of imprisonment of up to (but not more than) 15 years (if death results from the activity, then a life term may be imposed). Id. This statute has been refined several times over the years and now contains a comprehensive statutory scheme that defines key terms (such as what constitutes “material support”). See id. § 2339A(b)(1). As a criminal statute, those prosecuted pursuant to it are entitled to full due process under the Constitution--and the statute itself provides for additional process. See id. § 2339B.
Notably (in light of the Government’s position in this case, which uses the word “independent” to modify its statements regarding plaintiffs’ activities), a portion of 18 U.S.C. §§ 2339A-2339B relates to the “Provision of Personnel”: “Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.” 18 U.S.C. § 2339B(h). The statute also has an explicit “saving clause” which states: “Nothing in this section shall be construed or applied so as to
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abridge the exercise of the rights guaranteed under the First Amendment of the Constitution of the United States.” Id. § 2339B(i).
In 1998, a group of organizations brought suit, asserting that the original version of § 2339B unconstitutionally rendered criminal protected First Amendment conduct, and also violated the due process clause of the Fifth Amendment. See Holder, 130 S. Ct. at 2714. Despite the amendments to the statute over the years--which added specific definitions of key terms and the saving clause described above, the lawsuit continued. When the suit reached the Supreme Court, Chief Justice Roberts held that this “material support” statute was “constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.” Id. at 2712. That holding was based, in part, on the fact that the statute’s extensive definitional framework eliminated the plaintiffs’ vagueness concerns. See id. at 2741. The Court expressly allowed a preenforcement challenge in light of the possible penalties the plaintiffs could face. Id. at 2717.
18 U.S.C. §§ 2339A-2339B has been used to charge more than 150 persons. Holder, 130 S. Ct. at 2717. For example, on May 24, 2012, Minh Quang Pham was indicted under 18 U.S.C. § 2339A(b)(1) for providing material support to a foreign
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terrorist organization. The specific overt act charged against Pham is working with a U.S. citizen to create online propaganda for al-Qaeda, in furtherance of the conspiracy. Sealed Indictment ¶ 3(c), United States v. Pham, No. 12 Cr. 423 (AJN) (S.D.N.Y. May 24, 2012).25
In addition to 18 U.S.C. § 2339A-2339B, there are numerous criminal statutes available to prosecute and bring to justice those who commit illegal acts furthering war or acts of terrorism against the United States or its interests, including 18 U.S.C. § 2381 (the modern treason statute); 18 U.S.C. § 32 (destruction of aircraft or aircraft facilities); 18 U.S.C. § 2332a (use of weapons of mass destruction); 18 U.S.C. § 2332b (acts of terrorism transcending national boundaries); 18 U.S.C. § 2382 (misprision of treason); 18 U.S.C. § 2383 (rebellion or insurrection); 18 U.S.C. § 2384 (seditious conspiracy); 18 U.S.C. § 2390 (enlistment to serve in armed hostility against the United States); and 50 U.S.C. § 1705(c) (prohibiting making or receiving of any contribution of goods or services to terrorists). 26
B. The Non-Detention Act Section 1021(b)(2) and the AUMF must be read against the backdrop of the 1971 passage of the Non-Detention Act, 18 U.S.C.
25 The Indictment was unsealed on August 23, 2012. 26 Individuals prosecuted under such criminal statutes are, of course, afforded the full array of constitutional rights attendant to criminal proceedings.
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§ 4001. That act provides: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” 18 U.S.C. § 4001(a). That statute goes to the question, oft-repeated in Guantanamo habeas challenges, of whether the AUMF’s scope captures the various circumstances under which individuals have been detained. Based upon the Government’s assertion that the AUMF and § 1021(b)(2) are “the same,” the answer to that question has great import for this action. The point for present purposes is whether plaintiffs reasonably believed (and still believe) that § 1021(b)(2) authorizes new and broader detention authority.
Although in Hamdi a majority of the Supreme Court found that the AUMF did provide for detention authority, such authority was clearly circumscribed: “[O]ur opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant . . .” Hamdi, 542 U.S. at 523. The Court continued,
Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict. Id. at 526 (emphases added).
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In his lengthy dissent in Hamdi, Justice Scalia (joined by Justice Stevens) disagreed that the AUMF should be read even that expansively. Justice Scalia’s dissent is supportive of plaintiffs’ assertion in this litigation--that the AUMF does not go as far as the Government urges this Court to find. The majority in Hamdi of course found sufficient authority for the petitioner’s--that is not the point here. The majority was not comparing the AUMF to § 1021(b)(2). Moreover, the fact that a Supreme Court Justice himself agrees that there are limits to the detention authority granted by the AUMF speaks to the reasonableness of plaintiffs’ state of mind. Such reasonableness supports their standing in this proceeding. Accordingly, the Court describes at some length Justice Scalia’s position.
In support of his position, he wrote that the AUMF risked unconstitutionality if expanded beyond certain limited bounds. See id. at 573-77 (Scalia, J., dissenting). Justice Scalia set forth a variety of statutes that already provided for the arrest and prosecution of American citizens. As he stated: “Citizens aiding the enemy have been treated as traitors subject to criminal process.” Id. at 559.
Justice Scalia then traced the history of such authority back to its origins in 1350 under England’s Statute of Treasons; he cited a number of cases on which American citizens had been
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charged and tried in Article III courts (with the due process rights guaranteed by the Constitution) for acts of war against the United States even when their noncitizen co-conspirators were not. Id. at 559-60. Relying upon several early 19th century cases in which courts held that the law of war did not allow for military detention of an American citizen in the United States when the courts are open, see id. at 565-68 (citing Milligan, 71 U.S. at 128-29; Smith v. Shaw, 12 Johns. *257 (N.Y. 1815); In re Stacy, 10 Johns. *328 (N.Y. 1813)), Justice Scalia stated: “The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” id. at 568. That reason suggests that the AUMF (and thus, by Congress’ “reaffirmation” of it, in § 1021) is an inappropriate basis for detaining American citizens anywhere or non-citizens for acts occurring on American soil.
Justice Scalia’s dissent dealt explicitly with the argument that the Government has here reasserted--i.e., that the Supreme Court’s decision in Quirin approved indefinite imprisonment of a citizen within the territorial jurisdiction of the federal courts. Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). In Quirin, the Court upheld trial by military commission of eight saboteurs, one of whom was an American citizen. As Justice
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Scalia stated, “The case was not the Court’s finest hour.” Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). It issued a decision one day after oral argument (a week before the executions were carried out), and the Court only explained its rationale in a decision issued several months later. Id. at 569. In Quirin, however, there was no doubt that petitioners were members of enemy forces--they were ‘admitted’ enemy invaders. Id. at 571 (quoting Quirin, 317 U.S. at 47). Justice Scalia, with Justice Stevens joining, believed that Hamdi should be prosecuted in an Article III court. Id. at 573. The Government here relies heavily on Quirin. The same rationale that Justice Scalia used to reject its applicability in Hamdi applies here.27
Given that Congress has provided the executive branch with ample authority to criminally prosecute those engaged in a wide swath of terroristic or war-making behavior, and the lack of support for an expansive reading of the AUMF, plaintiffs’ belief that § 1021(b)(2) provides for a new, expanded scope for military detention is reasonable. V. STANDING AND MOOTNESS
27 The majority in Hamdi cites Quirin approvingly. As set forth below, the facts of that case are inapposite to those before this Court. This Court references Justice Scalia’s criticism of Quirin as further support for the fact that plaintiffs, who are not Supreme Court Justices, could similarly reasonably believe that the AUMF (even against the backdrop of Quirin) does not provide a sweeping basis for broad domestic detention authority by the Executive.
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Pursuant to Article III of the Constitution, federal courts may only entertain actual cases or controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). That requirement has two components: the threshold question of whether the plaintiffs who have brought an action have standing, see id. at 561, and whether over the course of the litigation the matter has been rendered moot, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 189 (2000).
A. Principles of Standing and Analysis Plaintiffs bear the burden of establishing standing for each claim asserted. See Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Lujan, 504 U.S. at 561. Standing is determined as of the outset of the litigation. Lujan, 504 U.S. at 569 n.4; Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007); Mental Hygiene Legal Serv. v. Cuomo, 785 F. Supp. 2d 205, 215 (S.D.N.Y. 2011). The Supreme Court has set out three “irreducible constitutional minimum” requirements for standing: (1) each plaintiff must have suffered an injury in fact of a legally protected interest; this means that injury must be actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the conduct complained of and plaintiff’s injury, and (3) it must be likely, as opposed to
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speculative, that the injury can be redressed by a favorable decision. Lujan, 504 U.S. at 561.
The Supreme Court has long been clear that a hypothetical threat is not enough to confer standing. See Boyle v. Landry, 401 U.S. 77, 80-81 (1971) (no standing where plaintiffs had “made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them”); United Mine Workers of Am. v. Mitchell, 330 U.S. 75, 90 (1947) (declining to find standing where the threat was found to be hypothetical).
The Supreme Court has also instructed that there is an exception to the requirement of injury-in-fact where infringement of First Amendment rights are at issue. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988).28 The Court found that if the plaintiffs were correct in their interpretation of the statute, their speech would be chilled, or they would risk criminal prosecution. Id. “[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an
28 In American Booksellers, the statute at issue required a “knowing display” of certain materials. 484 U.S. at 383. The lower court found that 95 percent of the conduct of the booksellers would not be affected by the statute; a finding of a five percent impact was sufficient for its facial invalidation. Moreover, in that case, the evidence adduced at the preliminary injunction hearing also constituted the evidence for the trial on the merits. Id. at 389.
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actual prosecution.” Id. The Court held, “in the First Amendment context, ‘litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Id. at 392-93 (quoting Sec’y of State of Md. v. J.H. Munson Co., 467 U.S. 947, 956-57 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973))); see also Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (finding standing, and citing American Booksellers for the proposition that the alleged danger of the statute is self-censorship).
The Government cites a number of cases in opposition to plaintiffs’ standing. None are apposite. In Laird v. Tatum, 408 U.S. 1 (1972) (cited in Gov’t Trial Mem. at 27), the Supreme Court declined to find standing for individuals who claimed that their activities were being chilled by the mere existence of a statute which allowed a governmental body to conduct investigative work. Id. at 13-14. The Court distinguished that situation from the type at issue here where the statute sets forth specific penalties to be imposed on individuals-indefinite military detention. Thus, unlike in Laird, here there is no need for the fruits of the statute to be used for
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some later purpose; the fruit of the exercise of § 1021 is indefinite detention.
Los Angeles v. Lyons, 461 U.S. 95 (1983) (cited in Gov’t Trial Mem. at 18-19) is also inapposite. In Lyons, the issue was whether an individual who had been placed in a chokehold by the police could seek broad injunctive relief against a policy allowing for such chokeholds. Id. at 101. The Court found standing lacking because no facts suggested that the plaintiff had any expectation of ever being placed in a chokehold by the police again--i.e., the plaintiff did not face a realistic threat of recurrence.
Here, of course, plaintiffs are engaged--and the facts as found by this Court make it clear they would continue to engage (without the fear of detention)--in the testified-to First Amendment activities. This Court has found as a fact that plaintiffs’ writings, speeches, and associational activities are by no means at an end. This Court has also found that those activities have already been chilled. On these facts, the Supreme Court’s holding in Lyons is simply inapplicable.
The Government also cites Daimler-Chrysler for the proposition that facts supporting standing must appear affirmatively in the record. (See Gov’t Trial Mem. at 18, 26.) In Daimler-Chrysler, disgruntled residents of Toledo, Ohio brought a lawsuit alleging injury based on tax breaks given to
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Daimler-Chrysler. The Supreme Court found standing lacking for those state-taxpayer plaintiffs on the same grounds that it repeatedly denies standing to federal taxpayers challenging a particular expenditure of federal funds--i.e., “interest in the moneys of the Treasury . . . is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation . . . so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Daimler-Chrysler, 547 U.S. at 343 (quoting Mass. v. Mellon, 262 U.S. 447, 486 (1923)).
Here, the Court held an evidentiary hearing and has made findings of fact: the plaintiffs specified the actual work they have done and intend to do; they testified credibly as to their fear and lack of understanding of § 1021(b)(2); and the Government at that hearing would not state that they would not be detained for these activities. In other words, there are no factual similarities between Daimler-Chrysler and the case before this Court.
1. Preenforcement Challenges The Supreme Court has recognized that preenforcement challenges can be appropriate in the context of statutes that impose criminal penalties, Holder, 130 S. Ct. at 2717, as well as in the context of the First Amendment, Am. Booksellers, 484 U.S. at 393. Section 1021(b)(2) implicates both.
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In the context of a criminal statute, plaintiffs must, however, face a credible threat of prosecution. See Holder, 130 S. Ct. at 2717; Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)(“When contesting the constitutionality of a criminal statute, ‘it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.’” (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974)); see also Doe v. Bolton, 410 U.S. 179, 188 (1973). If prosecution is not “remotely possible,” then a plaintiff lacks standing. Babbitt, 442 U.S. at 299 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
In Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), cert. granted, 132 S. Ct. 2431 (2012), the Second Circuit allowed a preenforcement challenge where the plaintiffs alleged a prospective injury to First Amendment rights, and showed an actual and well-founded fear of injury--not that the injury had already occurred. Id. at 131, 135. In support of such a finding the Second Circuit stated: “[T]he fact that the Government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government
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officials will actually engage in that conduct by carrying out the authorized [injury].” Id. at 138.29
Similarly, in Vermont Right to Life, the Second Circuit found that where a plaintiff has alleged an intention to engage in a course of conduct “arguably affected” with a constitutional interest, but proscribed by a statute, and a credible threat of prosecution exists, the plaintiff should not be made to wait until he or she has been prosecuted to seek redress. 221 F.3d at 382. There, the organization bringing the challenge would have been subject to a civil rather than criminal charge. The court found that distinction to be of “no moment” given the constitutional issues involved. Id. at 382 (“The fear of civil penalties can be as inhibiting of speech as can trepidation in the face of threatened criminal prosecution.”); see also Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 390 (4th Cir. 2001) (preenforcement challenge allowed when the presence of the regulation resulted in the plaintiffs changing their conduct).
2. Facial Challenges Whether or not a facial challenge is permissible implicates plaintiffs’ standing. Under Lujan, it is clear that traditional
29 As this Court found in its May 16 Opinion, § 1021(b)(2) is equivalent to a criminal statute--without the due process protections afforded by one. See Hedges, 2012 WL 1721124, at *18. There is no conceivable doubt that the possibility of being placed in indefinite military detention is the equivalent of a criminal penalty. Indeed, perhaps in many circumstances, worse.
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rules of standing require that a plaintiff have injury in fact. A facial challenge seeks to invalidate a statute in all of its applications--going beyond those which a particular plaintiff would him or herself have standing to bring. Stevens, 130 S. Ct. at 1587.
In a case decided one year after Lujan, Alexander v. United States, 509 U.S. 544 (1993), the Supreme Court reiterated the long-standing principle that when a plaintiff is challenging a statute as overbroad and impinging on First Amendment rights, facial challenges are permissible. Id. at 555. That enables a plaintiff to challenge the statute in its entirety. Stevens, 130 S. Ct. at 1587 (in a facial challenge in the context of the First Amendment protections of speech, a law may be invalidated as overbroad if a substantial number of its applications are deemed unconstitutional, judged in relation to the statute’s “plainly legitimate sweep”).
Alexander and Stevens follow the Supreme Court’s earlier holdings of, inter alia, City of Chicago v. Morales, 527 U.S. 41 (1999), and Broadrick v. Oklahoma, 413 U.S. 601 (1973). In Morales, the Court found that because the statute was challenged on First Amendment grounds, it implicated the doctrine of “jus tertii” or third-party standing. In the context of the First Amendment, the Court also held that a plaintiff is not required to show that there are no legitimate applications of the
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statute. Morales, 527 U.S. at 55. In Broadrick, the Court stated that because the First Amendment needs “breathing space,” the traditional rules of standing are relaxed when the challenge relates to speech. 413 U.S. at 611. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expressions are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 617.
3. Commitments regarding Conduct A number of courts have found that a commitment that a statute will not be enforced against a particular plaintiff does not eliminate standing. See, e.g., Stevens, 130 S. Ct. at 1591 (finding a statute facially invalid on First Amendment grounds, and refusing to “uphold an unconstitutional statute merely because the Government promised to use it responsibly”); Am. Booksellers, 484 U.S. at 393 (“[T]he State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.”); Vt. Right to Life, 221 F.3d at 383 (“The State also argues that VRLC’s fear of suit could not possibly be well-founded because the State has no intention of suing [plaintiff] VRLC for its activities. While that may be so, there is nothing that prevents the State from changing its
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mind.”);30 Mental Hygiene Legal Serv., 785 F. Supp. 2d at 220 (finding standing because although law enforcement officials said they would not enforce the statute against the plaintiffs, nothing prevented future law enforcement officials from taking a contrary position).
In Stevens, Chief Justice Roberts wrote that “the First Amendment protects us against the Government; it does not leave us at the mercy of noblesse oblige.” 130 S. Ct. at 1591. In Stevens, the Government had committed that it would apply the statute at issue more narrowly than it might be read. Rather than accepting such assurances that plaintiffs need not be concerned, the Supreme Court found the Government’s position an implicit acknowledgment of the potential constitutional problems of a more natural reading. Id.
4. Analysis This Court has found that the facts support each plaintiff’s standing to bring a preenforcement, facial challenge with respect to § 1021(b)(2). This Court has analyzed separately each plaintiff’s standing regarding his or her First and Fifth Amendment challenge and finds each plaintiff has standing with respect to each claim.
30 In an analogous situation, courts have held that even voluntary cessation of illegal conduct has not eliminated standing. See Linton v. Comm’r of Health & Env’t, 30 F.3d 55, 57 (6th Cir. 1994) (“It is well-established that voluntary termination of unlawful conduct will not automatically remove the opposing party’s standing.”).
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a. Injury With regard to their First Amendment challenge, at the March hearing each plaintiff testified credibly that, specifically due to concerns about § 1021(b)(2), he or she has already experienced a chilling of his or her written or oral speech or associational activities. The Court’s findings as set forth above, and more briefly summarized here, demonstrate actual chilling has occurred. Hedges testified that he changed speeches he planned to make, avoided certain associations, and was concerned about articles or writing he expected to undertake. O’Brien testified that she was withholding articles from publication; Wargalla testified that her organization had to contemplate changing participants in an online conference; Jonsdottir stated she has declined speaking engagements. See Part II, supra. In addition, each plaintiff testified credibly to ongoing concerns regarding expected future First Amendment activities. See Part II, supra. Such chilling of speech constitutes actual injury. Indeed, it is precisely the type of chilling that the Supreme Court has found as a basis for standing--including to bring a facial challenge. See Broadrick, 413 U.S. at 630. With respect to their Fifth Amendment challenge, each plaintiff testified credibly that he or she had read the statute and did not understand its scope and, in particular, whether
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his/her activities would fall within that scope. See Part II, supra. Without such definitional scope, and in the face of the Government’s inability to provide definitions for the key terms at issue or define the scope of § 1021(b)(2) and unwillingness to state in March that plaintiffs’ activities could not subject them to detention, there are adequate grounds to find plaintiffs’ vagueness concerns valid.31
Finally, preenforcement challenges are permissible in just such contexts. Here, based on credible testimony, this Court has found that each plaintiff has engaged in activities in which he or she is associating with, writing about, or speaking about or to al-Qaeda, the Taliban, or other organizations which have committed (or are associated with organizations that have committed) terrorist acts against the United States. The words of § 1021(b)(2) can be read to encompass such activities. These plaintiffs need not wait until they have been detained and imprisoned to bring a challenge--the penalty is simply too severe to have to wait. See, e.g., Holder, 130 S. Ct. at 2717; Babbitt, 422 U.S. at 298; Vt. Right to Life, 221 F.3d at 382.
31 The Government argues that the Court’s questions improperly shift the burden of establishing standing from plaintiffs to the Government. The Court posed those questions to the Government after plaintiffs had testified credibly regarding their reasonable fear of prosecution under § 1021(b)(2). The questions were asked to provide the Government with an opportunity to rebut plaintiffs’ reasonable fear--i.e., the Court had, subsequent to plaintiffs’ testimony, determined that plaintiffs’ fear of detention under § 1021(b)(2) was reasonable, unless the Government could rebut such a showing. Those questions were the Court providing the Government with just such an opportunity; in no way was the Court alleviating plaintiffs of their burden.
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The Government’s statement--this Court cannot call it a “commitment” in light of its qualified language--regarding the unlikelihood of enforcement for certain specified acts does not eliminate plaintiffs’ standing as to either claim.
First, the fact that the Government has taken two different positions (one in which the Government refused to make any commitment) undercuts the viability of the later (qualified) statement. Second, standing attaches at the outset of a case., Lujan, 504 U.S. at 569 n.4, meaning that the later statement comes too late. Third, the Supreme Court has made it clear in both the First and Fifth Amendment contexts, a plaintiff need not rely upon “noblesse oblige”--hoping that enforcement will not occur, or that one law enforcement official’s interpretation will be the same as another’s. See Stevens, 130 S. Ct. at 1591; FCC v. Fox Television Stations, Inc., 132 S. Ct. at 2317.
Plaintiffs meet the requirements for demonstrating the necessary injury or impact on their conduct for standing.
b. Causation Each plaintiff testified credibly that § 1021(b)(2) has caused a chilling of First Amendment activities and an actual fear of detention due to the vagueness of § 1021(b)(2)’s scope. See Part II, supra. There can therefore be no doubt as to whether Lujan’s second required element has been met. It has been.
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c. Redressability The Government argues that plaintiffs lack standing because any injury supposedly deriving from § 1021(b)(2) cannot be redressed by the constitutional challenge since the Government has precisely the same detention authority under the AUMF. (Gov’t Trial Mem. at 30-31.) That is not so. The argument is premised on the erroneous assertion (as the Court has discussed more fully above) that § 1021 and the AUMF are the same. They are not. In particular, § 1021(b)(2)--the very provision which plaintiffs seek to enjoin--provides for a much broader scope of military detention than provided for in the AUMF. It is unavailing that the Government asserts that it has, without congressional authorization, unilaterally expanded the AUMF’s detention scope by virtue of its own interpretation. The Supreme Court previously has rejected that very argument. See Hamdi, 542 U.S. at 516-18. Simply by asserting that § 1021 is a reaffirmation of the AUMF does not make it so when its scope is plainly broader. Accordingly, enjoining § 1021(b)(2), a new statute with uniquely broad scope, necessarily would redress plaintiffs’ injuries. Plaintiffs meet all the required elements to establish standing.
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B. Principles of Mootness and Analysis To have an actual case or controversy pursuant to Article II, a case must also be “real and live, not feigned, academic or conjectural.” Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d Cir. 2001). This Court addresses whether the Government’s newly articulated position (i.e., that § 1021(b)(2) does not apply if the conduct of plaintiffs is independent as described, and described accurately, and no more than what has been described) renders this action moot.32 When the issues between parties are no longer live, or have become merely conjectural, the case may be moot. See Powell v. McCormack, 395 U.S. 486, 489 (1969). There are certainly instances where an originally justiciable action has been rendered moot during the course of litigation. However, a case is not moot when there is a reasonable expectation that the alleged violation may recur. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). This case is not moot. First, at the March hearing, the Government declined to state that any of plaintiffs’ conduct would not be encompassed by § 1021(b)(2). See Hedges, 2012 WL 1721124, at *14-15 (citing Tr. I). In its motion for
32 The party seeking to have a case dismissed as moot bears a heavy burden. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).
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reconsideration, the Government’s position changed first to a broad statement--“the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021” (Recons. Mem. at 2)--and then to a more complicated, qualified statement (set forth above but worth reciting again here):
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021. (Recons. Mem. at 4.) This qualified statement, reiterated in the Government’s pre-trial memorandum (Gov’t Trial Mem. at 20), is a multi-part, carefully constructed exception to the Government’s view of detainable conduct. The parts consist of the following elements, each of which is not itself defined and each of which narrows the assurance: (1) independent (2) journalistic activities; or (3) independent, (4) public advocacy, (5) described in plaintiffs’ affidavits and testimony, (6) without more, (7) are not subject to the law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such conduct. That language is followed by the additional statement that plaintiffs’ descriptions (a) in this
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litigation of their activities, (b) if accurate, (c) do not implicate military detention.
The totality of those qualifications hardly provides plaintiffs reasonable assurance that there is no likelihood of detention under § 1021. Indeed, the opposite is true. Confronted initially by the Government’s position that it would not state whether plaintiffs’ known activities could subject them to detention under § 1021, plaintiffs had a legitimate concern. This Court so found as a matter of fact based upon plaintiffs’ trial testimony. It was, as this Court previously stated in its May 16 Opinion, a surprising position for the Government to have taken--but take that position it did, and it must now own it.
The Government’s qualified position is hardly reassuring. It follows a much clearer position of, essentially, “we can’t tell you if a plaintiff will be detained for these specific, actual activities.” This Court and (presumably) plaintiffs reasonably assume that the Government’s first and second positions were crafted carefully, and that the presence of qualifiers in the second has real (if uncertain) meaning.
The clearest statement the Government could have provided it did not. At the very outset of this case, the Government could have moved for dismissal (e.g., with an early motion for summary judgment) based upon an affidavit of someone with
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authority who could have stated that protected First Amendment
activities occurring by Americans on American soil are not
subject to § 1021(b)(2). This would have made plaintiffs’ burden much more difficult.33 No such statement was made.
Shifting positions are intolerable when indefinite
military detention is the price that a person could have to pay
for his/her, or law enforcement’s, erroneous judgment as to what may be covered.34
VI. THE JUDICIARY’S ROLE IN STATUTORY REVIEW This case presents a justiciable case or controversy under
Article III of the Constitution. The Court now turns to its
determination with respect to the merits and the question of
appropriate relief. Set out below is an overview of how the
Court proceeds through various interlocking arguments.
Plaintiffs assert that § 1021(b)(2) violates their
constitutional rights pursuant to the First, Fifth and
Fourteenth Amendments. The Government admonishes the Court to
33 Three plaintiffs are not American citizens (O’Brien, Wargalla, and Jonsdottir). However, their First Amendment activities do occur on U.S. soil, including via the Internet or travel to speeches. 34 There is an exception to the general mootness doctrine that provides a separate basis for declining to find this case moot--i.e., when an action is capable of repetition but is likely to evade review. See Murphy, 455 U.S. at 482. It is indisputable that any future Attorney General--or even the current one--may decide to change enforcement practices. The fact that such a “change of mind” could be coupled with indefinite military detention militates against a finding of mootness. The Court has found as a factual matter that these plaintiffs have engaged in activities about which the Government originally could give no assurances--and that they will continue to engage in similar activities in the future. The Government has explicitly declined to provide any assurances regarding any of plaintiffs’ future activities.
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avoid reaching the constitutional questions even if plaintiffs have standing. The Government argues that the judiciary should play no role here--or, at most, an ex post facto one in which it reviews habeas petitions challenging detention determinations. The Court deals with this “quasi-abstention” issue first, then moves on to the merits of the constitutional questions raised and whether permanent injunctive relief is appropriate.
A. The Court as Guardian of the Constitution It is certainly true that courts should, if possible, avoid reaching constitutional questions. See Califano v. Yamasaki, 442 U.S. 682, 692 (1979). This Court takes that principle seriously and has proceeded here only after careful consideration as to whether constitutional avoidance is possible. It is not. The Court is also mindful of its oath. When squarely presented with an unavoidable constitutional question, courts are obliged to answer it. That principle traces its history back to the earliest years of this Country’s independent and constitutional existence. Federalist Paper No. 78 states: No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves. . . .
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Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
The Federalist No. 78 (A. Hamilton).
Chief Justice Marshall affirmed that principle in case law.
See Marbury v. Madison, 1 Cranch 137, 177, 2 L. Ed. 60 (1803)
(“[T]he constitution controls any legislative act repugnant to
it. . . . It is emphatically the province and duty of the
judicial department to say what the law is.”). He stated:
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.
. . .
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the legislature a practical and real omnipotence . . .
The judicial power of the United States is extended to all cases arising under the constitution.
Id. at 178.
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There is no doubt, however, that, as John Marshall argued in 1800, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Annals, 6th Cong., col. 613 (1800). Even the President’s powers are, however, exercised in subordination to the applicable provisions of the Constitution. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
When it comes to separation of powers, and the courts’ ability to intervene in constitutional questions, the Government has previously argued that this doctrine should preclude the judiciary from ruling on the constitutionality of certain statutes. The Supreme Court has rejected that argument. For instance, in Elrod v. Burns, 427 U.S. 347, 353 (1976), the Government argued that the Court should not address the statute at issue based on principles of the separation of powers. The Supreme Court stated:
More fundamentally, however, the answer to petitioners’ objection is that there can be no impairment of executive power, whether on the state or federal level, where actions pursuant to that power are impermissible under the Constitution. Where there is no power, there can be no impairment of power. 427 U.S. at 353. Similarly, in Hamdi, the Supreme Court stated: [W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts
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must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of the separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. 542 U.S. at 535-36.
A court, as here, presented with an unavoidable constitutional question, is obligated to rule upon it.
B. Judicial Review of Military Statutes The Government also argues that this Court should decline to address the constitutional questions raised by § 1021(b)(2) particularly because of the President’s role and authority in “foreign affairs.”35 (See Gov’t Trial Mem. at 1 (arguing that this context “should cause extreme hesitation” and “require the most exacting scrutiny to ensure that if the judicial power is to be exercised in such a far-reaching manner it is clearly within the Court’s jurisdiction to do so”), 11 (“Due respect for a coequal branch of government requires that Congress be taken at its word.”), 32 (“courts must ‘recognize that the Constitution itself requires such deference to congressional choice’ in those areas due to separation of powers and the ‘lack of competence’ on the part of the courts”), 37 (“As a threshold
35 The Government’s argument regarding the President’s role in foreign affairs is particularly inapposite in the context of a statute in which a critical question is the legitimacy of its applicability to, inter alia, activities by Americans or on American soil.
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matter, a military-force authorization--or a statute like section 1021, restating and rearticulating part of such a force authorization--is not a proper subject of vagueness analysis”), 45 (“in this case, which involves the Constitution’s separation of powers in the context of national defense and security, it is particularly inappropriate to issue an injunction.”; “[B]ased on separation of powers principles, the courts have recognized that an injunction running against the President would be extraordinary”), 46 (“The reasons for denying injunctive relief against the President are all the more compelling where, as here, a plaintiff seeks relief against the President as Commander-in-Chief under the Constitution”; “But more fundamentally, it is not for plaintiffs--or this Court--to determine which authorities are necessary or appropriate for the conduct of an ongoing war.”).)
At the August hearing, the Government stated quite clearly that the only role that the Court should have with respect to reviewing the scope of § 1021 is in the context of postdetention habeas reviews. Tr. II at 118. That is an unacceptable position.
First, as set forth above, when properly presented with an unavoidable constitutional question, this Court has an obligation to answer that question.
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Second, it is unreasonable to expect a habeas review that can take many years to resolve, to provide adequate relief for those detained. That must be particularly true when detention arises from or relates to the exercise of protected First Amendment rights, and when an individual may not have understood (due to the statute’s lack of definitional structure) that his or her conduct could subject him or her to detention. Some of the recent Guantanamo habeas reviews have taken more than ten years.36 If a court finds a detention unconstitutional, that is far too long to wait. While awaiting determination on their civil habeas review, the detained individual is deprived of his or her liberty and, no matter what the official designation, he or she is a prisoner. Suggesting that post-habeas review provides sufficient relief is remarkable when even the Government’s qualified position regarding plaintiffs’ activities implicitly concedes that § 1021(b)(2) has been or may well be used to detain someone for conduct protected by the First Amendment. Any period of detention (let alone years) for what could be an unconstitutional exercise of authority, finds no basis in the Constitution.
Third, although the Government has cited a number of authorities for the proposition that it would be extraordinary
36 See, e.g., Al-Bihani, 590 F.3d at 869 (acknowledging the petitioner’s 2001 detention), cert. denied, 131 S. Ct. 1814 (2011).
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for this Court to enjoin an act of the President, those cases are inapposite. (See Gov’t Trial Mem. at 45-46.) This Court does not disagree with the principle that the President has primacy in foreign affairs. That is entirely different from using the fact that the United States may be engaged in armed conflict overseas to subject American citizens or others acting on American soil to indefinite military detention. There is no support for such an extension of Article II authority. The cases cited by the Government relate to the President’s performance of official duties, such as the counting of representatives as set forth in Article I, § 2, cl. 3 of the Constitution. See, e.g., Franklin v. Massachusetts, 505 U.S. 788 (1992).
Section 1021(b)(2) does not present a similar factual situation. Instead, § 1021(b)(2) provides for indefinite military detention of anyone--including U.S. citizens--without trial.37 It is simply not the case that by prefacing this statute with the provision “Congress affirms . . . the authority of the President . . . to detain covered persons . . .,” it is outside of the purview of judicial review. If that were the
37 At the time that he signed the NDAA into law, President Obama issued a signing statement with respect to § 1021 in which he stated that he would not subject American citizens to indefinite military detention “without trial.” This is a carefully worded statement--it is not saying that the President will not detain American citizens under § 1021--or what type of trial (with what rights) that individual might have. In any event, nothing prevents him from changing his mind since “signing statements” are not law; and a new administration could certainly take a different position.
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case, it would reveal an extraordinary loophole through which the legislative and executive branches could create immunity from judicial oversight simply by having Congress provide broad, undefined authorization. Under that theory, courts would be unable to review acts taken as a result of such authorization or the authorization itself. And, under that theory, referring to a unilaterally broadened authority as a “reaffirmation” would effectively ratify actions previously taken; this exercise of legislative or executive authority finds no basis in the Constitution.
Contrary to the assertions of the Government, in ruling on the constitutional questions before it, this Court is doing nothing either extraordinary or unprecedented. There is a long history of courts ensuring that constitutional rights are protected, even in a military context.
In Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861), the Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government. Id. at 149 (“And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in [Art. II of the Constitution]; but there is not a
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word in it that can furnish the slightest ground to justify the
exercise of that power.”). The Court continued,
Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for selfdefense in times of tumult or danger. The government of the United States is one of delegated and limited powers; it derives its existence and authority altogether from the Constitution; and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted.
Id.
In the Brig Amy Warwick, 67 U.S. 635 (1862), the
Government had similarly argued that the judiciary should not--
or perhaps could not--rule on certain issues. There, the
Supreme Court stated “[counsel for the Government argues] in
well-considered rhetoric, his amazement that a judicial tribunal
should be called upon to determine whether the political power
was authorized to do what it has done.” Id. at 645. The Court
continued,
The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger . . . It comes to a plea of necessity. The Constitution knows no such word. Id. at 648.
A few years later, in Milligan, the Supreme Court held:
“Neither the President, nor Congress, nor the Judiciary can
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disturb any one of the safeguards of civil liberty incorporated into the Constitution, except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.” 71 U.S. at 4. The Court stated, “No book can be found in any library to justify the assertion that military tribunals may try a citizen at a place where the courts are open.” Id. at 73.
In Curtiss-Wright, 299 U.S. 304, while acknowledging the President’s pre-eminent role in foreign affairs, the Supreme Court also acknowledged that that power does not extend to all domestic affairs. He cannot, for instance, determine whom to arrest domestically; the scope of the arrest authority is determined by criminal statutes. Id. at 330-32. Yet, it is beyond cavil to suggest that criminal statutes are not subject to judicial review.
In Justice Murphy’s Korematsu dissent, he reiterated the principle that “[w]hat are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” 323 U.S. at 234 (citing Sterling v. Constantin, 287 U.S. 378, 401 (1932)). Justice Jackson also dissented in Korematsu, stating, “I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only
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the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.” Id. at 247.
As stated above, in its pre-trial memorandum the Government relies heavily on the case which Justice Scalia has rightly criticized as “not the Court’s finest hour”--Quirin. The Government argues that Quirin establishes the constitutionality of military detention and punishment of U.S. citizens on U.S. soil. (See, e.g., Gov’t Trial Mem. at 33-34.)
It is certainly true that a United States citizen was among the Germans who landed in Third Reich uniforms on the beaches of Long Island, New York, with the intention of proceeding to New York City and detonating explosive devices. Quirin, 317 U.S. at 7-8. However, those facts are a far cry from the broad sweep of First Amendment rights into § 1021(b)(2). Although this Court rejects the principles of Quirin on the same basis as that so well-articulated by Justice Scalia, it is bound to follow this case as Supreme Court precedent if it is applicable to the question before this Court. It is not.
As stated, the facts are inapposite. There, the Germans, who landed in (at least partial) uniform (which they then buried on the beach) brought the World War II battlefield to New York soil; they were armed with destructive devices and following orders of a country with which the United States was at war.
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Quirin is not a case in which an American, not in uniform, carrying arms, or reporting to a foreign government, was taken from his home in the United States, and detained by the military, for writing or having written works speaking favorably about enemy forces, or for raising questions regarding the legitimacy of American military actions. It is those activities which § 1021(b)(2) captures (so far as one can decipher from the Government’s position). Quirin is inapposite here.
The Government is wrong to ground a wide-sweeping ability of the executive branch to subject anyone at all to military detention in Quirin. That argument eliminates Constitutional guarantees (under many provisions of the Constitution) in one fell swoop; it ignores as irrelevant all of the language, past and present, regarding limits on executive authority to arrest and--as applied to First Amendment activities--would privilege such detention ability above the prohibition that “Congress shall pass no law . . . abridging the freedom of speech.” The Government’s reading of Quirin is therefore both wrong and dangerous and this Court rejects it. VII. THE FIRST AMENDMENT
A. Section 1021(b)(2) Is An Impermissible Content-Based Restriction
First Amendment rights are guaranteed by the Constitution and cannot be legislated away. U.S. Const. amend. I (“Congress
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shall make no law . . . abridging the freedom of speech.”); see also Stevens, 130 S. Ct. at 1584; Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) (“There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (laws designed or intended to suppress or restrict expression of specific speakers contradict basic First Amendment principles).
There is no doubt that the First Amendment protects the spoken and written word as well as the right of free association. DeJonge v. State of Oregon, 299 U.S. 353, 365 (1937) (peaceable assembly for lawful discussion cannot be made a crime); see also New York Times v. United States, 403 U.S. 713, 724 (1971) (“Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust and wide-open’ debate.” (citation omitted)); Watts v. United States, 394 U.S. 705, 708 (1969); United States v. Robel, 389 U.S. 258, 263 (1967).
“‘As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012) (citing Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)). In the recent Alvarez decision, the Supreme Court held
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that content-based restrictions of speech are presumed invalid and that the government bears the burden of showing their constitutionality. Id. A question for this Court is whether § 1021(b)(2), with its undefined breadth capturing both speech and non-speech activities, actually falls within the category of a content-based restriction. “[T]he principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys.” Turner Board. Sys., Inc. v. Fed. Commc’ns Comm., 512 U.S. 622, 642 (1994) (quotation marks and alterations omitted).
As this Court stated in its May 16 Opinion, § 1021(b)(2) does have a legitimate, non-First Amendment aspect: catching and brining to justice real terrorists. However, its breadth also captures a substantial amount of protected speech and associational activities. The Government’s qualified position regarding plaintiffs’ activities demonstrates that the scope of the statute is intended to be broad enough to capture some First Amendment activities. Otherwise, why not have a “saving clause” as in 18 U.S.C. §§ 2339A/B? Why not have said plainly, “No First Amendment activities are captured within § 1021?” Why, instead, have made such a qualified statement regarding what are clearly First Amendment activities? That is, that they will not be subject to § 1021(b)(2) so long as those activities are as
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they have described them, if accurate, without more, and independent? And, why make it clear that such statement does not apply to any (even similar) future activities?
Section 1021(b)(2) is not a traditionally content-based restriction; encompassing content is not its only purpose or achievement. However, covering content is at least one purpose--and in so covering it “compel[s] speakers to utter or distribute speech bearing a particular message.” See Turner Broad. Sys., Inc., 512 U.S. at 642. In other words, § 1021(b)(2) has a content-directed aspect. Accordingly, the Court finds that § 1021(b)(2) is subject to strict scrutiny. Id.38
To pass this “most exacting scrutiny,” Turner Broad. Sys., Inc., 512 U.S. at 642, § 1021(b)(2) must be “justified by a compelling government interest” and “narrowly drawn to serve that interest.” Brown v. Ent’mt Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011). Although there may be a very compelling government interest--here, the exercise of detention authority in the war on terror for the protection of the United States--as set forth below, the Court finds that § 1021(b)(2) is not narrowly tailored in any way. The imposition of indefinite
38 Even if the Court were to find that § 1021(b)(2) is not directed at speech, it still would find that speech is captured on the fringe of § 1021(b)(2) and thus, “imposes burdens on speech” that are “greater than [that which] is essential to the furtherance” of a governmental interest. Turner, 512 U.S. at 642, 662 (quotation marks omitted).
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military detention, without the procedural safeguards of precise definition of what can subject an individual to such detention (see Part IX infra (discussing plaintiffs’ Fifth Amendment challenge to § 1021(b)(2)’s vagueness) cannot be said to be narrowly tailored. Accordingly, the statute does not pass muster under the First Amendment itself and is unconstitutional for that reason alone.
B. Plaintiffs Have Made A Valid Facial Challenge Plaintiffs have made a facial challenge to the constitutionality of § 1021(b)(2) on the basis that it violates core rights guaranteed by the First Amendment. This Court agrees that the statute impermissibly encroaches on the First Amendment and that a facial challenge is appropriate in these particular factual circumstances. As found as fact by this Court, plaintiffs are writers, journalists, and activists whose work falls within the protections of the First Amendment. There has been no claim by the Government in this case that any of plaintiffs’ work falls into one of the very narrow exceptions of protected speech-i.e., speech which incites violence, or is obscene, defamatory, or integrally related to criminal behavior. See, e.g., Alvarez, 132 S. Ct. at 2544; Stevens, 130 S. Ct. at 1584; Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 127 (1991); Roth v. United States, 354 U.S.
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476 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-55 (1952); Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). Thus, while it is certainly the case that not all speech or associational activities are necessarily protected by the First Amendment, the Court here finds as a matter of fact that plaintiffs’ speech and associational activities are within protected categories (e.g., none is obscene, defamatory, seeks to incite violence, or is otherwise integral to a criminal act).
The Government has been on notice of the specifics of plaintiffs’ claims since receipt of the verified complaint. Based on the procedures required by this Court, prior to the March hearing, plaintiffs submitted sworn declarations setting forth the basis for their concerns; the Government then had an opportunity to depose any plaintiff who intended to testify at trial. The Government also had an opportunity to cross-examine plaintiffs at the March hearing. Bluntly stated, nothing was left to the imagination: the Government was on notice of each of the speech and associational activities in which each plaintiff engaged.
The Government knew that Hedges was a writer and journalist whose work took him to the Middle East and that in connection with his work he associates with members of the Taliban, al-
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Qaeda and other groups on the State Department’s Terrorist List; it knew about the type of articles written by O’Brien that, inter alia, have commented on aspects of military detention in Guantanamo; it knew about the associational activities of Wargalla, and that her organization has been on a list of terrorist or extremist groups; and it knew about Jonsdottir’s participation with WikiLeaks, her anti-(Iraq) war activism, and production of an anti-(Iraq) war film.
Based on this extensive and detailed prior notice, the Court takes seriously the Government’s position at the March hearing that it could not provide any assurance that such activities would not subject any plaintiff to detention under § 1021(b)(2). See Hedges, 2012 WL 1721124, at *14-15 (citing Tr. I). That the Government subsequently changed its position to a qualified one does not erase the essential point made: First Amendment activities are not outside of § 1021.39
The Government’s initial position vis-à-vis plaintiffs--and indeed its qualified, second position--is consistent with the fact that the Government quite carefully avoids arguing that § 1021(b)(2) does not encompass activities protected by the First Amendment. Indeed, read in this light, the qualifications of plaintiffs’ activities “as described,” “if accurate,”
39 Plaintiffs also assert claims under the Fourteenth Amendment, which makes the First and Fifth Amendment applicable to the states. That amendment does not actually provide plaintiffs a separate claim with separate elements.
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assuming they are “independent,” and “without more,” indicate that protected speech and associational activities are within § 1021(b)(2)’s scope, but provide these plaintiffs with a “limited pass.” Not once in any of its submissions in this action or at either the March or August hearings has the Government said, “First Amendment activities are not covered and could never be encompassed by § 1021(b)(2).”
Instead, the Government’s arguments against plaintiffs’ overbreadth claim are crafted in terms of whether a facial challenge is appropriate because of the extent to which the statute has a legitimate sweep. (Gov’t Trial Mem. at 33-35.) The Government argues that in the Court’s May 16 Opinion, this Court did not properly weigh the legitimate sweep of the statute against any infringement on First Amendment rights. (Id. at 35.) The Government attempts to elide the implicit and extraordinary concession that First Amendment conduct is captured by § 1021 by referring back to its qualified position (that these plaintiffs, for the independent activities they have described, if accurately described, without more, would not be subject to detention under § 1021). (See Gov’t Trial Mem. at 20.) At the August hearing, however, the Government made clear that that assurance was not prospective--even as to protected First Amendment activities--and went only so far as it went--which is
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quite narrow indeed. As set forth below, the Government’s
arguments fail.
In Stevens, the Government similarly argued, “Whether a
given category of speech enjoys First Amendment protection
depends upon a categorical balancing of the value of that speech
against its societal costs.” 130 S. Ct. at 1585. Justice
Roberts wrote,
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
Id.; accord Alvarez, 132 S. Ct. at 2543-44.
In the recent Alvarez decision, the Supreme Court similarly
rejected such an argument:
Permitting the government to decree this speech to be a criminal offense . . . would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.
Id. at 2547 (citation omitted). “The mere potential for the
exercise of that power casts a chill, a chill the First
Amendment cannot permit if free speech, thought and discourse
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are to remain a foundation of our freedom.” Id. at 2548. The Court then expounded,
The First Amendment itself ensures the right to respond to speech we do not like. . . . Society has the right and civic duty to engage in open, dynamic and rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates. Id. at 2550. Justice Kennedy noted that prior decisions cannot be taken as establishing a “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Id. at 2547 (citing Stevens, 130 S. Ct. at 1586). In speech cases, this Court must ask whether a “substantial number of [a statute’s] applications” are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. Stevens, 130 S. Ct. at 1587 (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). The Government argues that this Court’s May 16 Opinion found that § 1021 has a plainly legitimate sweep. (Gov’t Trial Mem. at 33.) That is correct with respect to the portion of § 1021 directed at prosecuting and detaining those involved in the attacks on September 11, 2001, and where § 1021(b)(2) can be read to cover members of al-Qaeda fighting U.S. forces on a battlefield outside of U.S. territory. However, the Government errs in its argument that this legitimate sweep ends plaintiffs’ facial challenge. (Gov’t Trial Mem. at 34.)
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The determinative question for this Court is the one posed in Stevens, as stated above--whether § 1021(b)(2)’s “plainly legitimate sweep” is outweighed by its “substantial number of” unconstitutional applications. Stevens, 130 S. Ct. at 1587; see also U.S. v. Williams, 553 U.S. 285, 293 (2008). How is a court to make such a measurement?
In Stevens, the Supreme Court acknowledged that a court cannot undertake the analysis without “first knowing” what the statute covers. Id. at 1587 (citing Williams, 553 U.S. at 293). Despite the Government’s assurances that the statute at issue was not aimed at the conduct the Supreme Court focused on (hunting), the Court nonetheless found that the statute had an “alarming breadth.” Id. at 1588. So too here. As the Second Circuit recently stated in Commack Self-Service Kosher Meats v. Hooker, 680 F.3d 194 (2d Cir. 2012), “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute. Id. at 213. Section 1021(b)(2) is devoid of the required specificity.
In addition, in Robel, the Supreme Court affirmed a finding that a section of the Subversive Activities Control Act impermissibly tread on First Amendment rights. The Court reiterated the principle that “precision of regulation must be
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the touchstone in an area so closely touching our most precious freedoms.” 389 U.S. at 265 (citation omitted). In Robel, the Court noted that it was not unmindful of congressional concern over the danger of sabotage in national defense industries, but noted that Congress needed to have a more narrowly drawn statute. “The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.” Id. at 267-68.
Further, courts should look at such restrictive regulations with exacting scrutiny and ask whether it is “actually necessary” to achieve its interests. Alvarez, 132 S. Ct. at 2549. Here, § 1021(b)(2) does not meet that standard. As set forth above, there is no reason § 1021 could not have a definitional framework that excludes protected conduct. Moreover, there are a variety of criminal statutes that capture speech or associational activities which are involved in criminal activities. There is no reason for § 1021(b)(2) to encroach on protected First Amendment rights.
The Government points to Williams in support of its contention that § 1021(b)(2) is facially valid. (See Gov’t Trial Mem. at 34-35.) In Williams, the Supreme Court upheld a facial challenge to a criminal child pornography statute. The statute was challenged as overbroad under the First Amendment and impermissibly vague under the Fifth. In finding the statute
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constitutional, the Supreme Court relied on the fact that simply the ability to conceive of some impermissible applications was insufficient to establish that the statute was overbroad. 553 U.S. at 303. Here, unlike in Williams, there is a trial record setting forth specific First Amendment conduct that the Government initially would not say was outside of § 1021’s scope--but later said, perhaps the conduct would be outside of its scope, but only if such activities met certain qualifications. Plaintiffs’ activities are known. This is not a situation as that in Williams requiring imagination or speculation.
Section 1021 must be measured against the backdrop of the other, numerous statutes which are targeted more directly at criminal conduct associated with terrorist activity, and of the fact that the AUMF continues in force and effect. None of those other statutes have been found to have encompassed protected speech.
Notably, 18 U.S.C. § 2339B, the criminal statute discussed above (and in Holder) aimed at proscribing “material support” of terrorists, has a First Amendment saving clause. Section 1021 does not. There is a “catch-all” clause at the end of the statute: “Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].” NDAA § 1021(d). What does § 1021(d) really
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accomplish? Nothing of significance. The premise of § 1021(b)(2) is wrong--and, therefore, its logic (including § 1021(d)) misses. The title of § 1021 suggests that it is a “reaffirmation” of the AUMF. As stated earlier and throughout this Opinion, it is not. To the extent Congress understood that the Executive’s unilateral expansion of the interpretation of the AUMF fit within the original authorization granted to the President, it was mistaken.
Thus, if § 1021(b)(2) is actually intended to do anything at all new, its sweep in regards to First Amendment rights is substantial, and is substantial in relation to whatever new activity is captured by § 1021(b)(2). The Government’s reluctance to define the scope of § 1021 leaves a one-sided evidentiary record in favor of plaintiffs as well as an ineluctable outcome for this Court. In other words, the Court finds that § 1021(b)(2) is new. There is a logical flaw in stating an intention not to expand authority when Congress has set forth what is, in fact, new and broad authority. See Stevens, 130 S. Ct. at 1590 (finding a saving clause inadequate when it required an unrealistically broad reading of the clause).40
40 The closest § 1021 comes to having a “saving clause” is § 1021(e): “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captures or arrested in the United States.” NDAA § 1021(e) (emphasis added). That
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It is all the more difficult for plaintiffs, citizens generally, or this Court to feel confident in a determination as to § 1021(b)(2)’s scope when so many of its terms remain undefined. This Court discusses the terms “substantially supported,” “associated forces,” and “directly supported” below. Their vagueness presents constitutional concerns pursuant to the Fifth Amendment, but also supports plaintiffs’ arguments here with respect to the First Amendment: if a plaintiff does not know what “substantially support” means, could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have “substantially supported” the Taliban? How about a YouTube video? Where is the line between what the Government would consider “journalistic reporting” and “propaganda”? What does “independent” mean? Would being paid by Al-Jazeera to do a series of articles run afoul of § 1021(b)(2)? Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is “modest” or “substantial”? What if the article is written in New York City and sent over the Internet? Can the Government then choose whether to pursue the writer under § 1021(b)(2) and impose indefinite military detention, or
saving clause, however, relates only to detention, specifically. Had Congress omitted the language emphasized above, the Court would not be entertaining this action as the “saving clause” would then encompass the First Amendment.
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can it choose to prosecute under 18 U.S.C. §§ 2339A-2339B with full constitutional guarantees?41 These questions demonstrate only a few of the real problems with a statute that captures some amount of undefined activities protected by the First Amendment. See Bd. of Airport Comm’rs of the City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569 (1987)(affirming facial invalidation of a statute that reached a substantial amount of protected speech); Schaumberg v. Citizens for a Better Env’t, 444 U.S. 620 (1980)(affirming a facial invalidation of a statute on First Amendment grounds).
The type and amount of speech and associational activities in which plaintiffs engage are varied. The Government has not stated that such conduct--which, by analogy, covers any writing, journalistic and associational activities that involve al-Qaeda, the Taliban or whomever is deemed “associated forces”--does not fall within § 1021(b)(2). Accordingly, this Court finds that a substantial amount of conduct relative to the statute’s legitimate sweep is captured. This is not a mathematically precise exercise, nor could it be given the lack of § 1021(b)(2)’s definitional structure.
41 The Court notes that although 18 U.S.C. § 2339A contains a First Amendment saving clause, the recent indictment handed down in this District against Minh Quang Pham is based upon the transmission of “propaganda.” Indictment, United States v. Pham, 12 Civ. 423 (S.D.N.Y. May 24, 2012)
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IX. THE FIFTH AMENDMENT AND DUE PROCESS Earlier this year, the Supreme Court reiterated that a
“fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” See Fed. Commc’ns Comm. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). People of common intelligence must not have to guess at the meaning of a statute that may subject them to penalties. Id. (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “This requirement in clarity in regulation is essential to the protections provided by the due process clause of the Fifth Amendment.” Id. (citing Williams, 553 U.S. at 304).
If the vagueness of a statute leaves a person of ordinary intelligence in doubt, as to what conduct falls within or is excluded from its scope, it is impermissibly vague. Id. Such statutes also may allow or require predictable subjective judgments by law enforcement authorities as to when to enforce and when not. Id. The question is not whether a statute makes it difficult to prove an incriminating fact, but whether there is doubt as to what fact must be proved. Id.
In Fox, the Supreme Court stated, “Just as in the First Amendment context, the due process protections against vague statutes prevent parties from being at the mercy of noblesse oblige.” 132 S. Ct. at 2318 (citing Stevens, 130 S. Ct. at
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1591). The degree of vagueness that the Constitution tolerates depends in part on the nature of the enactment. See Rothenberg v. Daus, No. 10-4411-cv, 2012 WL 1970438, at *2 (2d Cir. July 27, 2012)(citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982)).
Plaintiffs have asserted that they do not understand the terms “substantially supported,” “directly supported,” or “associated forces.” The Court finds that plaintiffs who testified are individuals of at least of common intelligence. The Court finds credible their testimony that they do not understand what these undefined words mean in the statute.
The reasonableness of this position is self-evident. When the Government was asked by the Court what the words “substantially supported” mean, it was unable to provide a definition; the same was true for “directly supported.”42 There can be no doubt, then, these terms are vague. The Government did offer that “associated forces” should be defined according to the law of war, though the Court notes that in the March 2009 Memorandum the Government conceded that even in the war on terror, the laws of war are not well-defined. (See March 2009 Mem. at 1 (“This body of law, however, is less well-codified
42 This deficit was particularly odd in light of the Government’s contention that § 1021(b)(2) has been part of the AUMF for a decade; one would think that if that were so, then definitions would be readily available.
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with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.”).)
In response to plaintiffs’ Fifth Amendment challenge, the Government argues two seemingly contradictory points: (1) that military detention statutes are necessarily vague and are therefore not susceptible to a vagueness analysis (Gov’t Trial Mem. at 37), but also (2) that “properly construed,” the statute is not impermissibly vague (id. at 40).
In formulating its argument that § 1021 is not susceptible to a vagueness challenge, the Government essentially concedes the statute’s vagueness: “[a]uthorizations of military force (which encompass detention authority, [citation omitted]) are always, and necessarily, stated in general terms.” (Gov’t Trial Mem. at 37-38.) In support of that position the Government cites a variety of statutes that were used to authorize the use of force against Vietnam, Germany (1917), Japan (1941), Spain (1898), Mexico (1812) and Britain (1812). (Id. at 38 n. 24.) These statutes, of course, were authorizations for this country to engage in war or open hostilities with foreign governments (or organized foreign entities seeking recognition as the “government”); not one of those statutes authorized indefinite military detention of U.S. citizens for conduct that could occur in their own home in New York City, Washington, D.C., Toledo, Los Angeles--anywhere in this land.
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As discussed above, in comparing § 1021(b)(2) to the AUMF, it is incorrect to suggest that § 1021(b)(2) is a simple reaffirmation of the AUMF. It does more: it has a broader scope and directly refers to the law of war as an interpretive background. Section 1021(b)(2), which describes a category of “covered person” who can be detained, does not exclude American citizens, and is not limited to individuals on the field of battle or who bear arms. It is unlike the military force authorization statutes the Government cites in its pre-trial memorandum.
To the extent that § 1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis. Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States, the President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute “substantially” or “directly supporting”
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terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far. Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ).
The Government argues that the types of concerns that give rise to vagueness challenges cannot be squared with military-force authorization: § 1021 is designed to prevent those engaged in hostilities against the United States from returning to the field of battle, it does not proscribe particular criminal conduct. (Gov’t Trial Mem. at 39.) This argument dangerously elevates form over substance.
There can be no doubt that § 1021 provides that if an individual “substantially supports” the Taliban, he or she can be detained indefinitely. That certainly sets forth a penalty for conduct that is, accordingly, proscribed by virtue of the penalty of indefinite military detention without trial. In any event, if all that § 1021(b)(2) is doing is stating that although it does not proscribe conduct, it can be the basis for a citizen’s indefinite military detention, then it makes no sense to argue that a citizen cannot challenge that statute on vagueness grounds. A citizen has just as much interest--indeed, perhaps more--in understanding what conduct could subject him or her to indefinite military detention without a trial as he or
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she does in understanding the parameters of a traditional criminal statute that carries a statutory maximum term of imprisonment and cannot be enforced in the absence of full criminal due process rights.
In Hamdi, the Supreme Court made its position perfectly clear: “We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.” 542 U.S. at 531. The Court confirmed that if a citizen has actually fought with the enemy and is detained on the battlefield, the law of war and realities of combat may render military detention necessary and appropriate. Id. The Court stated:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. Id. at 532 (citations omitted). In Robel, the Supreme Court stated a similar principle: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.” 389 U.S. at 264.
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At the August hearing, the Government argued that this
Court’s role with respect to § 1021(b)(2) should be limited to
consideration of a detainee’s petition for release pursuant to a
writ of habeas corpus. That argument is premised upon an
extraordinary proposition: that American citizens detained
pursuant to § 1021 are not entitled to the presumption of
innocence and requirement that guilt be proven beyond a
reasonable doubt. In other words, relegating a court simply to
a habeas review means that the detainee has been divested of
fundamental due process rights. This becomes clear with
reference to the fact that the Government’s burden of proof with
respect to habeas petitions is “preponderance of the evidence,”
not “beyond a reasonable doubt” as required for criminal
convictions. See, e.g., Almerfedi v. Obama, 654 F. 3d 1, 5
(D.C. Cir. 2011)(preponderance of the evidence standard applies to habeas petitions);43 see also Al-Odah v. U.S., 611 F.3d 8,
13-14 (D.C. Cir. 2010) (preponderance of the evidence standard
43 In Almerfedi, after a seven year detention, the United States District Court for the District of Columbia (Judge Friedman), found that the Government had not proven that it was more probable than not that Almerfedi was purposefully part of or materially supported the Taliban or al-Qaeda; the Court of Appeals reversed. See Almerfedi, 654 F.3d at 8 n.2. Almerfedi was alleged to be an al-Qaeda “facilitator” who frequented al-Qaeda guesthouses in Iran and helped fighters infiltrate Afghanistan. The district court found the Government’s evidence in support of these allegations insufficient based on a preponderance of the evidence. The Court of Appeals reversed--finding that the district court had made an error in its legal application of the preponderance standard by weighing evidence piece by piece rather than as a whole, and reversed with directions to deny the petition. On June 11, 2012, the Supreme Court denied certiorari. Almerfedi v. Obama, No. 11-683, 2012 WL 2076354 (June 11, 2012).
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is constitutional in evaluating a habeas petition from a Guantanamo detainee). A “preponderance standard” simply asks whether a fact is more likely than not--51 percent likely-versus beyond a reasonable doubt.
This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention, and have as their sole remedy a habeas petition adjudicated by a single decision-maker (a judge versus a jury), by a “preponderance of the evidence” standard. That scenario dispenses with a number of guaranteed rights.
In its pre-trial memorandum, the Government spends only one page of a 49-page memorandum defending the language of § 1021(b)(2). (Gov’t Trial Mem. at 41-42.) The Government fails adequately to address why there is no requirement for knowing conduct, to provide any specificity as to what substantial support means and how that might compare, for instance, to material support as defined in 18 U.S.C. §§ 2339A2339B. It never addresses the phrase “directly support” and it never addresses the fact that “associated forces” is a moving target.44
44 On the one hand, in its pre-trial memorandum the Government argues that § 1021(b)(2) is “tied to military action against al-Qaeda and Taliban forces authorized by the AUMF.” (Gov’t Trial Mem. at 42.) However, this argument is carefully crafted and does not exclude the concept of associated forces
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At the March hearing and in prior memoranda submitted in this matter, the Government had argued that the terms “substantially supported,” “directly supported,” and “associated forces” had all been previously defined in case law. This argument is absent from the Government’s pre-trial memorandum (though it may be implicit in its statement that § 1021 should be read “in context”). (See Gov’t Trial Mem. at 42.) In fact, the terms as used in § 1021(b)(2) have not been previously defined in case law; no case provides a solid reference point for the Government’s position.
First, the Government conceded at the March hearing that there is no case that dealt with what “directly supported” means. Tr. I at 216. That language first appears in the March 2009 Memorandum.
Second, no court has defined “substantial support.” There are cases in which detention pursuant to an allegation of “material[] support” is at issue. See, e.g., Al-Bihani, 590 F.3d at 873. In Al-Bihani, the D.C. Circuit specifically rejected the wholesale importation of the “laws of war” into domestic law. It found, however, that the 2006 and 2009 MCAs provided for military detention of those individuals who “purposefully and materially supported” enemy belligerents of
constituting groups the executive branch “believes” may be tied to al-Qaeda or the Taliban.
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the United States or its coalition partners (the MCAs are not, however, statutes authorizing the use of military force). At the August hearing in this action, the Government stated that the MCA plays no role in the case before this Court. This Court agrees: the phrase “materially supported” as used in Al-Bihani does not shed light on the interpretation of “substantial support,” as used in § 1021(b)(2). Moreover, even in the MCA there is a requirement that the “material support” be purposeful. Notably, § 1021(b)(2) does not require that the conduct which could subject an individual to detention be “knowing” or “purposeful.”
Finally, in terms of “associated forces,” at the March hearing, the Government referred repeatedly to that term being defined by the laws of war. See Tr. I at 216-17. Of course, as the Supreme Court said in Hamdi, the laws of war are not and should not be part of the domestic laws of the United States. In addition, however, “associated forces” is an undefined, moving target, subject to change and subjective judgment. It would be very straightforward for Congress to alleviate this vagueness by tethering the term to a definition of (for instance) specific organizations.
Accordingly, the respective meanings of the terms at issue are unknown; the scope of § 1021(b)(2) is therefore vague; but the penalty of running afoul of it is severe. Section
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1021(b)(2) is, therefore, impermissibly vague under the Fifth Amendment. X. PERMANENT INJUCTIVE RELIEF
Section § 1021(b)(2) violates rights guaranteed by the First, Fifth, and Fourteenth Amendments of the United States Constitution. The Court turns finally to the question of appropriate relief. Plaintiffs have sought only injunctive relief.
In its May 16 Opinion, this Court preliminarily enjoined enforcement of § 1021(b)(2) and invited Congress to amend the statute to rectify its infirmities. See Hedges, 2012 WL 1721124, at *2, *27, *28. To date, Congress has not passed any amendments.
The Supreme Court has set out a four-part test for a determination as to the appropriateness of permanent injunctive relief: plaintiffs must demonstrate (1) that they have or imminently will suffer irreparable injury, (2) that monetary damages will not redress the injury, (3) that, considering the balance of hardships between the plaintiffs and Government, injunctive relief is warranted, and (4) that the public interest would not be disserved by the issuance of an injunction. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Plaintiffs meet each of those factors.
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In this case, there is a factual record developed at a full evidentiary hearing upon which the Court can rely. As stated above, the Government chose not to submit any evidence whatsoever in support of its position, but relies on legal argument and cross-examination. The Court’s determinations regarding the elements plaintiffs must meet for issuance of a permanent injunction are based on its factual findings.
The factual record demonstrates that plaintiffs have already been harmed and will continue to be harmed by potential enforcement of § 1021(b)(2). At the trial of this matter, Hedges, O’Brien, Wargalla, and Jonsdottir all testified to facts showing a chilling of their written, oral or associational activities. That is actual injury. Moreover, each of the plaintiffs expects to continue to engage in the same activities as he or she has in the past. Thus, whatever strength one can attribute to the assurances the Government provided, those assurances explicitly do not apply to any First Amendment activities that were not stated at the March hearing, that have happened since, or will happen in the future. Plaintiffs’ injury is imminent and ongoing. The law considers injury to First Amendment rights to constitute irreparable harm. Elrod, 427 U.S. at 373; Salinger v. Colting, 607 F.3d 68, 81-82 (2010).
In addition, imprisonment without trial and for an indefinite period certainly constitutes irreparable harm. A
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plaintiff need not wait until such detention has occurred to challenge the statute. See Holder, 130 S. Ct. at 2717.
The second element is also easily met. Plaintiffs are not suing--nor could they–-for monetary damages. They are suing to prevent indefinite military detention. Should such detention occur, money damages would never be adequate as a matter of law. Cf. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976) (finding that monetary damages were insufficient to compensate the plaintiffs--a class of persons of Mexican ancestry--who had been subject to illegal stops and interrogations by the INS in violation of the Fourth Amendment).
The balance of the hardships also clearly weighs in plaintiffs’ favor. The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes (referred to above) that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF--a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government’s arsenal. Most importantly, since Congress may pass no law abridging rights guaranteed by the First Amendment, enjoining enforcement of a statute that does
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just that cannot deprive Congress or the executive branch of that which they have no right to have.
The last element relates to the weighing of the public interest: does the public have a greater interest in preservation of its First Amendment and due process rights that are infringed by § 1021(b)(2), or in having the statute potentially available for use by law enforcement authorities? Here too, the fact that, according to the Government, § 1021(b)(2) adds nothing new to their authority, is decisive. Enjoining the statute will therefore not endanger the public. The Government did not put forward any evidence at trial that it needed the statute for law enforcement efforts; in contrast, plaintiffs did present evidence that First Amendment rights have already been harmed and will be harmed by the prospect of § 1021(b)(2) being enforced. The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.
Accordingly, this Court finds that plaintiffs have met the requirements for issuance of permanent injunctive relief. XI. CONCLUSION
For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any
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person. 45 The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies I or whether l in light of existing authorization and existing criminal statutes l § 1021 is needed at all.
This Court has stated its positionl as directly presented to it by the Government I that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly supportingll the Talibanl al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.
The Clerk of the Court is directed to terminate this action.
SO ORDERED: Dated: New York l New York
September 12, 2012
JL--~.~
Katherine B. Forrest UNITED STATES DISTRICT JUDGE
4S Plaintiffs assert five causes of action (see Verified Am. Compl. ~~ 29-44 (Dkt. No. 4-1)}, only four of which are addressed by this Opinion. Plaintiffs did not pursue Count II (a Fifth Amendment challenge to rendition of covered persons) and thus that claim is deemed abandoned for purposes of this proceeding.
112 


 
 Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 1 of 14

Carl J. Mayer 66 Witherspoon Street – Suite 414 Princeton, New Jersey 08542 609-921-0253
Bruce I. Afran 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075
Attorneys for Plaintiff
UNITED STATES DISTRCT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------CHRISTOPHER HEDGES,
Plaintiff,
v.
BARAK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE,

INDEX NO.: COMPLAINT

Defendants. ---------------------------------------------------
Plaintiff, by his attorneys CARL J. MAYER and BRUCE I. AFRAN, individually and on behalf of all others similarly situated, as and for their Complaint against defendants assert as follows:
1. Plaintiff Christopher Hedges is a United States citizen and a journalist who in the course of his ordinary journalistic work from time to time writes about and covers entities, organizations and persons and their associated forces that are engaged in

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Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 2 of 14
hostilities with the United States or its coalition partners, as described under the Authorization for Use of Military Force (AUMF) (Public Law 107-40).
2. Defendant Barak Obama is the President of the United States and has individual and executive responsibility for carrying out, enforcing and executing the laws of the United States and, in particular, as Commander in Chief with respect to laws governing acts of the military and service branches and the Department of Defense, including but not limited to the AUMF and the Homeland Battlefield Bill of the National Defense Authorization Act (NDAA) of 2012 (the “Homeland Battlefield Bill”).
3. Defendant Leon Panetta is the Secretary of Defense and has individual and executive responsibility for carrying out, enforcing and executing laws of the United States respecting the acts and actions of the military and service branches including the AUMF and the Homeland Battlefield Bill and, in particular, the prosecution of purported war crimes and crimes and acts proscribed in wartime, the incarceration of prisoners of war or persons taken into custody as unlawful combatants, along with the supervision of military prisons and detention centers in the United States and abroad.
JURISDICTION AND VENUE 4. Jurisdiction is based upon a question or controversy arising under the Constitution and laws of the United States pursuant to 28 U.S.C. 1331. 5. Venue is properly within the Southern District of New York in that the United States maintains governmental offices and bases and branches of the military in this district and also maintains in this district civil and military prisons and detention centers along with military and civil prosecutorial offices and staff.
2

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 3 of 14
6. Venue is further properly grounded within this jurisdiction in that plaintiff, in connection with his journalistic profession, conducts his work in this district, is a fellow of The Nation Institute in which capacity he performs journalistic activities in this District and travels to and from this district to meet with, interview and report upon “covered persons” under the AUMF and the Homeland Battlefield Bill and departs from this district in connection with travel abroad for such purposes.
FACTUAL BACKGROUND 7. On December 31, 2011 President Obama signed into law the Homeland Battlefield Bill that will take effect on or by March 3, 2012. 8. The Homeland Battlefield Bill provides for indefinite detention of United States citizens and permanent residents taken into custody in the United States on suspicion of providing substantial and/or direct support for persons or entities engaged in hostilities against the United States. Particularly, section 1031 of the Homeland Battlefield Bill defines a “covered person” subject to indefinite detention in the following manner:
“(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) 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.” Homeland Battlefield Bill, §1031(b).
3

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 4 of 14
9. The Homeland Battlefield Bill provides that any person detained under the Act whether detained within or without the United States may be held without trial until the end of hostilities authorized by the Authorization for Use of Military Force (2001). Section 1031(c) states:
“(c) Disposition Under 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 the hostilities authorized by the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 11184)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.” Homeland Battlefield Bill, §1031(c). 10. The Act does not define the terms “substantially supported”, “directly supported” or “associated forces” as used in section 1031, supra. 11. Section 1032 provides that any persons irrespective of U.S. citizenship or permanent resident status who are taken into custody “in the course of hostilities” authorized under the AUMF shall be held indefinitely until the end of such hostilities: “(a) Custody Pending Disposition Under Law of War (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
4

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 5 of 14
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined—
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of alQaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
Homeland Battlefield Bill, §1032(a)(1)(2)(3).
12. Section 1032(b) permits but does not require that U.S. citizens and U.S.
Permanent Residents “captured” in the “course of hostilities” be held in military custody;
section 1032(b) does not exempt U.S. citizens and U.S. Permanent Residents from the
requirement of “indefinite detention” set forth in section 1031, supra:
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
Homeland Battlefield Bill, §1032(b)(1)(2).
5

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 6 of 14
13. In his signing statement, President Obama acknowledged the constitutionally questionable nature of the Homeland Battlefield Bill. The President’s signing statement says:
“I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” 14. Based upon the foregoing, the Home Battlefield Bill provides for the indefinite detention of any person, including but not limited to U.S. citizens and permanent residents, and/or trial of such persons by the military courts for acts that “substantially supported” or “directly supported” any person, entity or organization defined as being in a state of hostilities with the United States under the AUMF whether occurring within or without the United States and irrespective of whether such person is arrested or detained within the United States. 15. This Complaint is not an acknowledgment or admission as a matter of law or fact that Plaintiff is a "covered person" or is otherwise within the scope of the Homeland Battlefield Bill but the Complaint asserts that the Homeland Battlefield Bill is sufficiently broad or overbroad as to cause Plaintiff and similarly situated persons to be in foreseeable jeopardy of being brought within its textual provisions. 16. Plaintiff Christopher Hedges is a journalist whose profession requires, in part: 1) that he have communication with and personal and direct intercourse with persons who are likely to be deemed engaged in hostilities with the United States under the AUMF and the Homeland Battlefield Bill; 2) that he travel to see and meet with such persons; 3) that he report on the activities and beliefs of such persons; and 4) through his journalistic endeavors to convey their philosophy and belief systems to the public at large.
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Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 7 of 14
17. As a journalist, essayist, author and war correspondent, Plaintiff publishes and conveys the opinions, programs and ideas of “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,…”, Homeland Battlefield Bill, §1031(b)(2), such journalistic activity being brought within the scope of the statute’s provision defining a “covered person” as one who has “substantially supported” or “directly supported” the acts and activities of such individuals or their organizations, allies or associated forces. Id.
18. For example, on or about January 31 2011, Plaintiff Hedges wrote on Truthdig.com, a published website, the following essay:
“The secular Arab regimes from Morocco to Yemen, for all their ties with the West, have not provided freedom, dignity, opportunity or prosperity for their people. They have failed as spectacularly as the secular Palestinian resistance movement led by Yasser Arafat. And Arabs, frustrated and enduring mounting poverty, are ready for something new. Radical Islamist groups such as the Palestinian Hamas, the Shiite Hezbollah in Lebanon and the jihadists fighting in Iraq and Afghanistan are the new heroes, especially for the young who make up most of the Arab world. And many of those who admire these radicals are not observant Muslims. They support the Islamists because they fight back." Truthdig.com, January 31, 2011. Plaintiff has and expects to again publish other writings of similar nature.
19. The statutory text in the Homeland Battlefield Bill is sufficiently broad to include Plaintiff’s as a “covered person” who, by way of such writings, interviews and/or communications, “substantially supported” or “directly supported” “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,…” under §1031(b)(2) and the AUMF.
20. The Homeland Battlefield Bill is sufficiently broad as to include within its scope Plaintiff’s writings and journalistic endeavors that have the effect of conveying, promoting or
7

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 8 of 14
disseminating the ideas, philosophy and program of organizations, persons and entities in a state of hostility with the United States since September 11, 2001 or with organizations, persons and entities allied or associated with persons in a state of hostilities as defined under the AUMF and the Homeland Battlefield Bill.
21. Accordingly, Plaintiff as a result of his journalistic endeavor and profession, is in jeopardy of detention under the Homeland Battlefield Bill because he produces material, an example of which is set forth, supra, that may be deemed within the scope of “substantially” or “directly” supporting persons, organizations, entities and their associates, allies and colleagues, who are in a state of hostility with the United States under the AUMF as follows:
A. Under the §1031(c)(1) such detention may be indefinite at the discretion of the United States without recourse to a court proceeding until the end of hostilities;
B. Under §1031(c)(2 or (3) plaintiff or any other “covered person” may be tried by military courts or commissions without recourse to the civil courts.
C. Under Section 1031(c) (4) Plaintiff or any other “covered person” may be subject to continued, indefinite “rendition” to any foreign country, jurisdiction or any location at the discretion of the United States without recourse to a court or other proceeding and without notice to any legal representative or other person.
8

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 9 of 14
COUNT I (FIFTH AMENDMENT DUE PROCESS) INDEFINITE DETENTION OF U.S. CITIZENS OR OTHER PERSONS DETAINED IN THE U.S. UNDER §1031(C)(1), TRIAL OF U.S. CITIZENS BY COURT MARTIAL OR MILITARY COMMISSION, DENIAL OF ACCESS TO CIVIL JUDICIAL AUTHORITIES UNDER §1031(C)(2) AND (3), RENDITION UNDER §1031(C)(4).
22. The Homeland Battlefield Bill, §1031(C)(1) authorizes the indefinite detention, imprisonment and incarceration of U.S. citizens and other “covered persons” in the United States, including persons such as Plaintiff, without trial or judicial recourse in violation of the U.S. Constitution, Amendment V.
23. §1031(C)(2) authorizes trial of civilian U.S. Citizens, permanent residents or other “covered persons” arrested or detained in the U.S., including persons such as Plaintiff, by court martial or military commission in violation of the U.S. Constitution, Amendment V.
24. §1031(C)(3) authorizes trial of civilian U.S. Citizens, permanent residents or other “covered persons” arrested or detained in the U.S., including persons such as Plaintiff, by military commission in violation of the U.S. Constitution, Amendment V.
25. §1031(C)(4) authorizes rendition without judicial recourse of any “covered person” person arrested or detained in the United States, including U.S. citizens and persons such as Plaintiff, by, “[t]ransfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity,” in violation of the U.S. Constitution, Amendment V.
WHEREFORE, the Homeland Battlefield Bill,§1031 violates the due process provisions of the Fifth Amendment to the United States Constitution and Plaintiff respectfully requests judgment declaring §1031 to be void as unconstitutional and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
9

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 10 of 14
COUNT II (FIFTH AMENDMENT DUE PROCESS) RENDITION OF “COVERED PERSONS” TO ANY JURISDICTION UNDER §1031(C)(4)
26. The Homeland Battlefield Bill authorizes the permanent indefinite removal from the United States via rendition or other means to any place, country, location or jurisdiction of any “covered persons”, including but not limited to U.S. citizens and persons such as Plaintiff, arrested or detained in the United States.
WHEREFORE, §1031(c)(4) of the Homeland Battlefield Bill is unconstitutional in that it violates the due process provisions of the Fifth Amendment to the United States Constitution and the judicial recourse provisions of Article III of the United States Constitution and Plaintiff respectfully requests judgment declaring §1031(c)(4) to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
COUNT III (FIFTH AMENDMENT DUE PROCESS) ABSENCE OF ADEQUATE STATUTORY NOTICE 27. The Homeland Battlefield Bill is unconstitutional in that imposes incarceration, detention, rendition and/or military prosecution without adequate notice of the nature and substance of the charge that a “covered person” has “substantially supported” or “directly supported” the activities of any person, organization, entity or their allies or associates who are in a state of hostility with the U.S. under the AUMF. 28. In particular, the Homeland Battlefield Bill, §1031 fails to give adequate statutory notice of its material terms including the terms “covered person”, “covered persons”, “substantially supported”, “directly supported” or “associated forces”.
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Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 11 of 14
29. As a result of the absence of proper notice and statutory definitions of said material terms plaintiff and others similarly situated do not have adequate notice of the acts and matters that will render them “covered persons” under §1031 and subject to indefinite detention without trial, made subject to military trial or to rendition outside the United States.
30. Accordingly, the Homeland Battlefield Bill, §1031 authorizes the arrest and indefinite detention of U.S. citizens and other persons without adequately defining or giving notice as to “covered persons” or the acts that render a person one who “substantially supported” or “directly supported” the described entities including “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States”.
WHEREFORE, §1031 of the Homeland Battlefield Bill is unconstitutional in that it fails to provide adequate statutory notice of the nature and substance of the acts for which a “covered person” shall be subject to arrest, detention and other treatment under the statute and Plaintiff respectfully requests judgment declaring §1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
COUNT IV (MILITARY JURISDICTION TO BE IMPOSED UPON CIVILIANS ARRESTED
WITHIN THE UNITED STATES AS “COVERED PERSONS” UNDER §1031) 31. Under §1031 persons arrested as “covered persons” within the United States may
be made subject to the military jurisdiction and the military courts in violation of the United States Constitution that provides for civilian access to a civil court system for all crimes and offenses within the United States.
WHEREFORE, §1031(c)(2) and (3) of the Homeland Battlefield Bill are unconstitutional in that they impose military jurisdiction upon civilians in violation of the U.S. Constitution and particularly Article III and Amendment V of the United States
11

Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 12 of 14
Constitution and Plaintiff respectfully requests judgment declaring §1031(c)(2) and (3) to be void and permanently enjoining their enforcement, along with attorney’s fees and cost of suit.
COUNT V (FIRST AMENDMENT) EXPRESSIVE AND JOURNALISTIC ACTIVITIES 32. The Homeland Battlefield Bill, §1031 is unconstitutional in that it imposes indefinite incarceration without trial or judicial recourses for expressive conduct such as that of Plaintiff in his work as a journalist and chills and burdens the freedom of speech, press, expression and association guaranteed by the First Amendment to the United States Constitution. 33. Such interference with protected expressive and associative rights arises by rendering persons who promote, publicize or endorse the views, ideas, philosophy and program of persons defined as being engaged in hostilities with the United States under the AUMF or the Homeland Battlefield Bill subject to indefinite detention without trial in the United States, made subject to trial by military courts or military commission, or made subject to rendition to any jurisdiction at the sole discretion of the United States without recourse to any civil court. 34. In his profession as a journalist Plaintiff must travel from time to time to theatres of combat and other locations where persons engaged in hostilities with the United States reside and conduct their business. 35. In his profession as a journalist Plaintiff must interview, report upon and promote and publicize the views and opinions of persons engaged in a state of hostility with the U.S. as described in §1031 and §1032.
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Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 13 of 14 36. Plaintiff and others similarly situated will be chilled and burdened in the exercise of his First Amendment rights because of the continued threat of incarceration and other treatment under §1031 and §1032 that arises in connection with his work as a journalist, as described above. 37. In the alternative, §1031 is unconstitutionally overbroad in that it renders subject to incarceration and other treatment persons who “substantially supported” the persons and entities described in the statute or in the AUMF, conduct that embraces a wide range of protected expressive and associative rights under the First Amendment. WHEREFORE, §1031 of the Homeland Battlefield Bill is unconstitutional in that chills, burdens and intrudes upon protected rights of expression under the United States Constitution, Amendment I, or, in the alternative, is unconstitutionally overbroad, and Plaintiff respectfully requests judgment declaring §1031 to be void and permanently enjoining its enforcement, along with attorney’s fees and cost of suit.
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Case 1:12-cv-00331-KBF Document 1 Filed 01/13/12 Page 14 of 14

REQUEST FOR RELIEF
WHEREFORE, Plaintiff on his own behalf and for all others similarly situated
respectfully requests judgment as follows:
1. Declaring the Homeland Battlefield Bill, §1031 and§1032 to be void as
unconstitutional;
2. Permanent injunctive relief barring its enforcement, along with attorney’s fees
and cost of suit
3. Such other relief as to the Court may seem just and proper.
Respectfully,
S/Carl J. Mayer Carl J. Mayer, Esq. THE MAYER LAW GROUP 66 Witherspoon Street – Suite 414 Princeton, New Jersey 08542 609-921-0253

Dated: New York, New York January 12, 2012

S/Bruce I. Afran Bruce I. Afran, Esq. 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075
Attorneys for Plaintiff

14

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------- X
CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA 0' BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,

liSDCSDNY

DOCUMENT

LLY

ELECTRONICA

FILED

~

JUN Qi 261 . DOC II:
-= DATE FILED:

Plaintiffs,

-v-

12 Civ. 331 (KBF)

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICAi LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA,

MEMORANDUM OPINION & ORDER

Defendants. -------------------------------------- X

KATHERINE B. FORREST, District Judge:

On May 16, 2012, this Court issued a preliminary injunction

(the "May 16 Order") enjoining enforcement of Section 1021(b) (2)

of the National Defense Authorization Act ("NDAAff). On May 25,

2012, the Government moved for reconsideration of the May 16

Order.

Footnote 1 of the Government's Memorandum of Law in Support

of its Motion for Reconsideration set forth the Government's

interpretation of the scope of the injunction imposed by the

Order. First, the Government stated that it construes the reach

1

of the injunction to apply only to the plaintiffs before the Court. In other words, the Government believes that the May 16 Order enjoined enforcement of Section 1021 solely against the named plaintiffs in this action. Second, the Government concluded that the injunction only relates to Section 1021(b) (2) of the NDAA.
Taking those points in reverse order, the Court agrees that the injunction does not go beyond Section 1021(b) (2) because the plaintiffs sought relief only as to that provision. The Court notes, however, that the only persons "covered" when (b) (2) is put to one side are those who planned, authorized, committed, or aided in the actual 9/11 attacks. See Pub. L. 112-81, 125 Stat. 1298 § 1021 (b) (1) .
As this Court informed the parties telephonically on June 1, 2012, it disagrees with the Government's interpretation as to whom the injunction covers: this Order is intended to leave no doubt as to that issue. 1
The May 16 Order found Section 1021(b) (2) constitutionally infirm on two bases: the First Amendment and the Due Process Clause of the Fifth Amendment. As set forth below, the law has long provided that this type of finding has provided relief to
1 On the June 1, 2012 telephonic conference, the Court requested that the parties confer among themselves and with each other and report back to the Court with the vehicle they think is best to resolve this action once and for all.
2

both the parties pursuing the challenge, as well as third parties not before the Court. This Court's preliminary injunction was consistent with that precedent. Put more bluntly, the May 16 Order enjoined enforcement of Section 1021(b) (2) against anyone until further action by this, or a higher, court--or by Congress.
The Supreme Court has made it clear that when a plaintiff claims that a law is facially vague and violates his or her Constitutional right to due process, that "party seeks to vindicate not only his [or her] own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing." City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999). A similar standard governs facial First Amendment challenges to overly broad statutes. See, e.g., Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984) ("Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society--to prevent the statute from chilling the First Amendment rights of other parties not before the court. ") .
Accordingly, court decisions , such as this Court's May 16 Order, enjoining enforcement of overly broad or vague statutes may apply generally--they need not be limited only to the
3

parties to the action. See Morales, 527 U.S. at 64 (upholding an Illinois Supreme Court decision striking down state loitering law as unconstitutionally vague) i ViII. of Schaumburg v. Citizens for a Better Env' t, 444 U. S. 620, 634 (1980) (the overbreadth doctrine allows "a litigant whose own activities are unprotected [to] challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court") i NAACP Anne Arundel Cnty. Branch v. City of Annapolis, 133 F. Supp. 2d 795, 813 (D. Md. 2001) (obverbroad and vague "Annapolis Ordinance No. 0-19-99 is declared unconstitutional and the City is permanently enjoined from enforcing it"--i.e., as against anyone) i Lytle v. Brewer, 73 F. Supp. 2d 615, 629 (E.D. Va. 1999) ("defendants are prohibited from enforcing Va. Code Ann. 46.2-930, which prohibits 'loitering' on bridges designated by the Commissioner of the VDOT, throughout the Commonwealth"--i.e., as against anyone), aff'd on other grounds, sub nom. Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003). That was the ruling--i.e., the injunction applies generally--in the May 16 Order.
The cases that the Government cites to support its interpretation of the Order are inapposite. For instance, Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 660 (9th Cir. 2011), turned on the "merits of Haven Hospice's claim that the hospice cap regulation, 42 C.F.R. § 418.309(b) (1),
4

impermissibly conflicts with the hospice cap statute"i it did not involve a constitutional question.
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (finding that claimants who "do not represent a class .
[can]not seek to enjoin . . . an order on the ground that it might cause harm to other parties"), and Meinhold v. United States Department of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), are not due process or First Amendment cases: Monsanto reconciled two federal statutes, and in Meinhold, the Ninth Circuit found that the district court erred in adjudicating the plaintiff's constitutional claim without ever addressing (let alone first addressing) the nonconstitutional claims, and upholding summary judgment for the Navy based upon the factual record on the nonconstitutional claim, 34 F.3d at 1474-75.
The Government has also cited two cases that do arise in the context of the First Amendment, but neither is similar to the facts at issue here. First, in United States v. National Treasury Employees Union, 513 U.S. 454 (1995), the Supreme Court held that an injunction preventing enforcement of an overbroad statute "should be limited to the parties before the Court." Id. at 477-78. There, "granting full relief to respondents--who include[d] all Executive Branch employees below grade GS-16" did not require application of the statute at issue to Executive Branch employees above grade GS-15, since the Court found those
5

high-level employees received a 25 percent salary increase that sufficiently differentiated those from the category of other employees. Id. at 478. In contrast, plaintiffs in this action claim that section 1021(b) (2) of the NDAA may imperil expressive activities generally and the due process rights of anyone engaged in similar conduct; there is nothing to the contrary in the current record on the preliminary injunction hearing. The May 16 Order's stated that there is a "strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention." Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124, at *28 (S.D.N.Y. May 16, 2012) (emphasis added). Therefore, as it stands, a narrower remedy circumscribing the injunction would not afford sufficient protection on the current record before this Court.
Second, the Fourth Circuit (in the context of a First Amendment overbreadth claim) limited the scope of a nationwide injunction in Virginia Society for Human Life, Inc. v. Fed. Election Commission, 263 F.3d 379 (4th Cir. 2001) (prohibiting enforcement of an FEC regulation defining "express activity" as to the plaintiff), because the case involved a single plaintiff, and "[a]n injunction covering [that party] alone adequately
6

protect [ect] it from feared prosecution." Id. at 393. However, the court did note that
[n]ationwide injunctions are appropriate if necessary to afford relief to the prevailing party. For instance, in Richmond Tenants argo V. Kemp, 956 F.2d 1300 (4th Cir. 1992), a nationwide injunction prohibiting the eviction of public housing tenants without notice and a hearing was appropriate because the plaintiffs were tenants from across the country. Id. (citations omitted). Similarly, the plaintiffs in this case hail from across the nation, and as noted above, they represent the interests of similarly situated individuals not party to this case. Moreover, although the Fourth Circuit also noted that individual circuits should generally refrain from issuing nationwide injunctions to allow other courts to reach separate conclusions about the constitutionality of the same statute, id. at 393-94, the stakes in this case differ from those relating to a Federal Election Commission regulation. Here, plaintiffs argue that they and others could be subject to indefinite military detention under Section 1021(b) (2); accordingly, the public interest in ensuring that ordinary citizens understand the scope of such a statute justifies its breadth. In sum, although it is certainly true as a general proposition that "injunctive relief should be narrowly tailored to fit specific legal violations," Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994) (Lanham Act claim), and "should be no more burdensome to the defendant than
7

necessary to provide complete relief to the plaintiffs," Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (recoupment of Social Security benefits), the injunction in this action is intentionally expansive because "persons whose expression is constitutionally protected [and not party to the instant litigation] may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." See New York v. Ferber, 458 U.S. 747, 768 (1982). This order should eliminate any doubt as to the May 16 Order's scope.

SO ORDERED:

Dated: New YO,k, New York

June

,2012

Katherine B. Forrest UNITED STATES DISTRICT JUDGE

8

 
 Case 1:12-cv-00331-KBF Document 19 Filed 03/13/12 Page 1 of 14

Carl J. Mayer (CM-6589) MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686

Bruce I. Afran (BA-8583) 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075

Attorneys for Plaintiff

UNITED STATES DISTRCT COURT SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------------------CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY; ALEXA O’BRIEN, US DAY OF RAGE; KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,

Plaintiffs,

INDEX NO. 1-12 CIV.0331 KBF

v.

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE, JOHN McCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH McCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA

Defendants. -------------------------------------------------------

SUPPLEMENTAL BRIEF OF PLAINTIFFS’ IN SUPPORT OF APPLICATION FOR RESTRAINTS ON THE OPERATION OF THE HOMELAND BATTLEFIELD BILL PROVISIONS OF THE NATIONAL DEFENSE AUTHORIZATION ACT (2011)

Case 1:12-cv-00331-KBF Document 19 Filed 03/13/12 Page 2 of 14
INTRODUCTION This Supplemental Brief is respectfully submitted by Plaintiffs in further support of their application for preliminary restraints on the operation and enforcement of the Home Battlefield provisions of the National Defense Authorization Act (NDAA).
ARGUMENT At pre-trial conference, the Court directed the parties to address certain issues arising under standing doctrine including the decisions under Holder v. Humanitarian Law Project, 177 L.Ed. 2d 355 (2010), Washington State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) and Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008). In Washington State Grange the Court of Appeals upheld a district court ruling that a state statute permitting any primary candidate to designate himself on the ballot as a member of any political party violated the parties’ right to political association and free speech. Grange at 448-449. Plaintiffs in Grange made a facial challenge prior to the implementation of the statute or the issuance of regulations by the state. As the Supreme Court noted in Grange, “The State has had no opportunity to implement I-872, and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions.” Id. at 450. Ultimately, the Supreme Court in Grange held that because the statute had not yet been implemented and no state court had yet had the opportunity to construe its contours it would be premature to entertain a purely facial challenge. As to the plaintiffs’ claims that the statute forced the political parties to associate with nominees not of their choosing, the Court held that the primary did not mandate the choice of nominee and did
2

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not even choose a party’s nominee, a process that took place outside of the primary under the new law. Id. at 453-454. The Court also held that the danger that voters will confuse the party’s choice of candidate with the candidate’s self-designation was “sheer speculation”, Id. at 454, and that the Court had “a greater faith in the ability of individual voters to inform themselves about campaign issues.' “. Id. citing Tashjian, 479 U.S., at 220, 107 S. Ct. 544, 93 L. Ed. 2d 514.
The decision in Grange does not preclude the relief sought here. First, Grange is limited to a facial challenge, while this action also concerns the NDAA “as applied” to plaintiffs’ particular vocational needs. Hence, those aspects of Grange focusing upon the premature nature of the facial challenge are not dispositive of this application.
Second, even as to the facial challenge, Grange does not resolve the issues on this matter. The Court in Grange noted that the state law at issue was directly within the States’ constitutional powers to set the " 'broad power to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," U.S. Const. Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.'" Grange qoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S. Ct. 2029, 161 L. Ed. 2d 920 (2005) quoting Tashjian, 479 U.S., at 217, 107 S. Ct. 544, 93 L. Ed. 2d 514); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997) (same).
The statute in Grange was thus weighed by the Court in the context of the state’s “broad power” under Article I to set the “Times, Places and Manner” of holding elections, Grange, supra, a governmental function directly within the state’s delegated powers under the Constitution. As Grange noted, the “times, places and manner” power
3

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has long been held to be a broad power invested in the States. Grange, citing Clingman, supra, Tashjian, supra, Timmons, supra.
In contrast, the NDAA imbues the Government with the power to place noncombatant civilians in the United States into military detention without access to the civil courts, a power no court has ever recognized and which the Supreme Court on multiple occasions has held is beyond the federal government’s authority.
The decision in Hamdi v. Rumsfeld, 542 J.S. 507, 522 (2004) encapsulates the absence of federal authority to detain civilians in military custody. Hamdi recognized that the Court in Ex parte Milligan, 71 U.S. 2 (1866), reversed the civilian’s detention precisely because Milligan was a civilian living in civilian life at the time of his arrest and was not in a theatre of combat:
In that case [Milligan], the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. [citation omitted] That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen. Hamdi, 542 U.S. at 522.
As Milligan itself held, civilians arrested outside the theatre of combat cannot be tried or detained by the military courts “when the courts were open and ready to try them.” Milligan at 127. Milligan went on to note:
“All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury.”
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Ex Parte Milligan, 71 U.S. 2, 123 (1866) [emphasis added]; accord Reid v. Covert, 354
U.S. 1 (1957).1
Hamdi fully respects the precedent in Milligan and leaves no scope for detention
of civilians unless they are “engaged in an armed conflict against the United States”.
Hamdi, 542 U.S. at 526.2
Grange, in contrast, concerned the exercise of governmental power that was
expressly within the state’s delegated function under Article I to regulate the “times,
places and manner” of holding elections. Here, however, the power of civilian detention
1 Consistent with this case law, the Executive Office of the President, on November 17, 2011 issued a statement on the Homeland Battlefield Bill, stating:
"applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets." (Appendix A)
At the time, the President was referring to section 1032, but it is clear that the military custody provisions now apply to section 1031, codified at 1021. This statement from the President encapsulates succinctly the governing law established in Ex Parte Milligan.
The President himself recognized these defects in the law when he issued his signing statements:
"I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists." (Appendix B)
The further highlighted the fundamental flaw with section 1021, by stating in the signing statement:
"My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law." It is not for the President to both expand the power of the Executive and to interpret that power. That power is reserved solely for Article III judges.
2 This case law is addressed at length in Plaintiffs’ Brief in Support of Application for Restraints at 14-21.
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by the military is outside of the federal government’s authority except in cases where, as recognized under Hamdi, the civilian is “engaged in an armed conflict against the United States”. Id.
Thus, the NDAA does not have the presumptive facial validity of the statute in Grange since the NDAA, as applied to a civilian in the United States who is not actually engaged in armed conflict with the United States, is not only outside of the Government’s constitutional powers, but such power has been repeatedly held to be a violation of 5th Amendment due process. See Plaintiffs’ Brief in Support of Application for Restraints at 14-21, cases cited.
It is precisely because the detention power under the NDAA is not dependent upon the civilian being “engaged in armed conflict with the United States”, Hamdi, supra, the statute itself is facially unconstitutional. By rendering civilians subject to military detention without a condition that they be “engaged in armed conflict with the United States” the NDAA violates the mandate of the Supreme Court in Hamdi where such power was recognized only as to a civilian “engaged in armed conflict with the United States”. Id. thus, unlike the statute in Grange, the NDAA here is facially unconstitutional.
Holder v. Humanitarian Law Project, 177 L.Ed. 2d 355 ( 2010) concerned a challenge to the constitutionality of 18 U.S.C. §2339A and 2339B that rendered it a criminal offense to provide “material support or resources” to groups designated by the Secretary of State as terrorist organizations. The Court in Holder held that such criminalization did not impermissibly intrude upon expressive or associational rights in part because Congress had made a finding that training and other resource support would
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tend to bolster the function of terrorist organizations and because Congress expressly
defined such acts with a precision that is wholly absent under the NDAA.
Holder is wholly distinguishable from the NDAA.
First, Holder is a criminal statute that provides for arrest and trial in the civil
courts under traditional due process protections. In contrast, the NDAA does not render
the covered conduct criminal and makes no provision for trial in the civil courts but
rather imposes the power of military detention upon civilians in the United States for the
“duration” of the conflict, effectively a form of indefinite detention.
Second, §2339A and B provided for a specific designation of mental state by the
defendant akin to traditional criminal law doctrine. As Holder recognized, Congress
required
“…knowledge of the foreign group's designation as a terrorist [**371] organization or the group's commission of terrorist acts. § 2339B(a)(1). Congress also added the term “service” to the definition of “material support or resources,” § 2339A(b)(1), and defined “training” to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge,” § 2339A(b)(2). It also defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical or other specialized knowledge.” § 2339A(b)(3). Finally, IRTPA clarified the scope of the term “personnel” by providing:
“No person may be prosecuted under [ § 2339B] in connection with the term 'personnel' unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.” § 2339B(h).
Holder at 370-371.
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As this excerpt shows, the statute at issue in Holder is a universe apart from the NDAA. In contrast to the act in Holder, the NDAA makes no requirement of a showing of intent or knowledge by the “covered person”, it contains no definitions as to the nature of conduct that “substantially supported” the terrorist organization and does not require that the organizations be expressly identified by the Government but includes only a vague reference to “associated forces”.
In short, all of the procedural and substantive protections that Congress imposed in Holder are completely absent in the NDAA that does not require a showing of knowingly intentional conduct by the detained civilian, does not define the nature of the conduct that is substantially supportive of the covered organizations and contains the broad brush reference to “associated forces” that, unlike the Secretary’s list in Holder, gives no notice of the actual groups covered by the Act.
Holder based its dismissal of the challenge to the act largely on the fact that the act expressly and specifically required as a condition to conviction intent by the defendant that their “material support” was for the purpose of facilitating violent acts. Holder noted that the operative language of the act in §2339A and C required proof that the defendant acted with intent to:
“provides material support or resources . . . knowing or intending that they are to be used in preparation for, or in carrying out, a violation of” statutes prohibiting violent terrorist acts (§2339A); or “unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be
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used, in full or in part, in order to carry out” other unlawful acts (§2339C(a)(1) .
These statutory conditions in Holder, that import into the act traditional requirements of criminal intent consistent with due process concerns, are wholly and completely absent in the NDAA that does not even cross reference to these statutory conditions as a predicate to incarceration. In the end, it was this very clear definitional structure that Congress incorporated into the act in Holder that led the Court to reject the claim of unconstitutionality:
Congress also took care to add narrowing definitions to the material-support statute over time. These definitions increased the clarity of the statute's terms. See § 2339A(b)(2) (“ 'training' means instruction or teaching designed to impart a specific skill, as opposed to general knowledge”); § 2339A(b)(3) (“ 'expert advice or assistance' means advice or assistance derived from scientific, technical or other specialized knowledge”); § 2339B(h) (clarifying the scope of “personnel”). And the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement. See Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000); Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 523, 526, 114 S. Ct. 1747, 128 L. Ed. 2d 539 (1994); see also Hoffman Estates, 455 U.S., at 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362. Holder at 376. Unlike the statute in Holder, no definitions are present in the NDAA, none are imported even by reference to other statutes, thereby depriving the NDAA of the very definitional specificity that save the statute in Holder. To the contrary, the undefined terms in the NDAA are more akin to those circumstances where Holder acknowledges statutes have been infirm for lack of legislative direction thereby requiring the citizen make “untethered, subjective judgments” to avoid liability under the enactment. See Holder at 376, citing cases. Here, the generalized standard of “substantially supported” in the NDAA without any definitional structure, not even by indirect adoption from other
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statutes, renders this the very type of infirm Congressional enactment that was found to be absent in Holder. Holder also found that the term “material support” was not directed at speech since the phrase “material” was referable generally to financial or support by means of physical aid, not speech:
“Congress has prohibited “material support,” which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” Holder at 379. Again, in contrast to Holder, the NDAA contains none of the limiting terms that saved the enactment in Holder and, unlike Holder, the reference to “substantially supported” is not referable to “material” aid but is far broader encompassing anything that might be deemed of value or benefit to the intended groups.
As to standing issues, Holder held that even though the plaintiffs sought “preenforcement review”, the complaint presented a justiciable controversy and that the plaintiffs presented a “credible threat of prosecution”. Specifically, the Court in Holder held that the plaintiffs should not be forced to wait until enforcement of the act to make a claim of its lack of constitutionality:
“One last point. Plaintiffs seek preenforcement review of a criminal statute. Before addressing the merits, we must be sure that this is a justiciable case or controversy under Article III. We conclude that it is: Plaintiffs face “a credible threat of prosecution” and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979) (internal quotation marks omitted). See also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129, 127 S. Ct. 764, 166 L. Ed. 2d 604 (2007).”
Here, as in Holder, the plaintiffs have demonstrated (and will do so at the hearing) that they are engaged in activities that will bring them arguably within the very broad
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scope of the NDAA. Plaintiff Hedges, for example, has frequently been imbedded with
leaders of terrorist organizations in the course of his work as a journalist. He has testified
in his certification that he has been in the homes of Hamas leaders and even been in
combat missions as a journalist with numerous terrorist groups and their operatives. Such
associations certainly can, when accompanied by favorable news coverage of the groups’
commitment and dedication, along with discussions of their ideologies, reasonably bring
Hedges into the scope of the undefined and vague term of having “substantially
supported” forces “associated” with Al Quaeda or the Taliban, as provided in the NDAA.
Indeed, it is the absence of definition of the designated groups in the NDAA that renders
it an equally, if not more compelling basis for standing than in Holder where Congress
specifically designated the groups and the actual conduct that would give rise to liability.
Here, in contrast, no designation of the “associated” groups or of the actual conduct is
made, rendering the likelihood that Hedges and other plaintiffs will be brought within the scope of the NDAA even greater than in Holder.3
3 Although Holder noted that in the years since the statute was first enacted, there had been approximately 150 proceedings, the Court as to standing was primarily focused on whether the plaintiffs’ anticipated conduct would reasonably bring them within the scope of the act. The Court expressly recognized that it would not be appropriate to defer consideration of the plaintiffs’ as applied challenges until after they were arrested and charged, i.e., to be forced to wait until they “undergo a criminal prosecution as the sole means of seeking relief.” Holder v. Humanitarian Law Project, 177 L.Ed 2d. 355 (2010). Here, the risk of delay is far greater and more threatening than in Holder since the plaintiffs here face, not criminal prosecution with all of its due process considerations, but indefinite detention in military custody with no trial and no judicial recourse. Indeed, the threat of irreparable harm to the rights of persons incarcerated under the NDAA is enhanced by the absolute failure of Congress to mandate any regulation or Presidential directive as to persons who may be incarcerated under §1021. Congress mandated such regulation only in the case of persons taken as members of hostile forces under §1032. U.S. citizens and aliens resident in the U.S. can, therefore, be taken into custody under §1021 without the benefit even of any regulation, unlike foreign combatants taken under
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Similarly, Pacific Capital Bank, N.A. v. Connecticut, supra, makes it clear that the
lack of present or threatened enforcement is not a barrier to standing:
"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)
To show injury, " [a] plaintiff bringing a pre-enforcement facial challenge against a statute need not demonstrate to a certainty that it will be prosecuted under the statute . . ., but only that it has 'an actual and well-founded fear that the law will be enforced against it." Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quoting Virginia v. American Booksellers Ass'n, 484 U.S. 383, 393, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)). If a plaintiff's interpretation of a statute is "reasonable enough" and under that interpretation the plaintiff "may legitimately fear that it will face enforcement of the statute," then the plaintiff has standing to challenge the statute. Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d at 383.
542 F.3d at 350
In the context of a pre-enforcement challenge even the ‘indirectness” of the threat
does not bar standing:
"A plaintiff does not lack standing simply by virtue of the indirectness of his or her injury . . . ." Heldman v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992). A plaintiff may satisfy the causation requirement if the complaint "aver[s] the existence of [an] intermediate link between the state regulations and the injury."
Pacific Capital at 350.
Pacific Capital thus endorses Plaintiffs’ standing since each plaintiff has either
worked directly with persons and groups who are among the NDAA’s described terrorist
organizations or have worked in the field of media and journalistic endeavors that
promote or at least convey the ideologies of such groups. The broad language of the
§1032 as to whom Congress mandated a Presidential directive to govern their incarceration.
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statute – drawing into its reach persons who “substantially supported” such organizations and groups but having none of the definitional structure found in Holder to save the enactment – makes it reasonable that Plaintiffs will have an “actual and well-founded fear” of being brought under the aegis of the statute. As in Pacific Capital, “certainty” of enforcement is not required. 542 F.3d at 350.
So long as the plaintiff’s “interpretation of a statute is ‘reasonable enough’ and under that interpretation the plaintiff ‘may legitimately fear that it will face enforcement of the statute,’ then the plaintiff has standing to challenge the statute.” Pacific Capital at 350 quoting Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (the literal interpretation of the phrase “on whose behalf” in a campaign finance statute without definition "could apply to any of a number of types of communication that implicitly or impliedly advocate for the success or defeat of a candidate and are published in the interest of a candidate, political party or political committee" and therefore "could be applied to VRLC's described activities.")
Similarly, the broad sweep of the NDAA with its undefined but breathtakingly wide invocation of persons who “substantially supported” suspect organizations certainly “could apply to any of a number of types of communication that implicitly or impliedly advocate”, Vermont Right to Life, supra, the views, ideologies, objectives and goals of terrorist organizations or their “associated forces”, the other material undefined term in the NDAA. Plaintiffs, who engage in a wide variety of such communications, both as platform hosts and as journalists and advocates can certainly reasonably fear being brought within the aegis of this wide, broad and wholly undefined statute. Moreover, the fact that the Government would face virtually no due process constraints since detention
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under the NDAA would be outside the criminal laws would render the risk of such incarceration greater in many respects than in the case of a conventional criminal statute where the Government would have to meet a plethora of procedural barriers.
CONCLUSION For the foregoing reasons and for those expressed in the Plaintiffs’ initial Memorandum, the requested injunctive relief should be granted.
Respectfully submitted,

Robert Jaffe, Esq. Of Counsel

S/Bruce I. Afran 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075
S/Carl J. Mayer 66 Witherspoon Street – Suite 414 Princeton, New Jersey 08542 609-921-0253
Attorneys for Plaintiff

14

 
 Case 1:12-cv-00331-KBF Document 3 Filed 02/27/12 Page 1 of 3

1 Carl J. Mayer (CM -6589) MAYER LAW GROUP, LLC
2 1040 Avenue of the Americas, Suite 2400 New York, N.Y. 10018
3 Tel. (212) 382 - 4686

4

Bruce I. Afran (BA – 8583) 10 Braeburn Drive

5

Princeton, New Jersey 08540 Tel. (609) 924 - 2075

6 Robert J. Jaffe, Esq., Of Counsel

7

PO Box 2139 San Anselmo, California 94979

Tel. (415) 378 -9175 8

9

10

11

12

UNITED STATES DISTRICT COURT

13

SOUTHERN DISTRICT OF NEW YORK

14 CHRISTOPHER HEDGES, DANIEL
15 ELLSBERG, TANGERINE BOLEN, NOAM CHOMSKY, ALEXA O’BRIEN, US
16 DAY OF RAGE, KAI WARGALLA, HON.
BRIGITTA JONSDOTTIR, M.P. 17

18

Plaintiffs

19

vs.

20 BARACK OBAMA, individually and as

representative of the United States of 21 America; LEON PANETTA, individually

22 and in his capacity as the executive and representative of the DEPARTMENT OF

23 DEFENSE; JOHN McCAIN,

JOHN BOEHNER, HARRY REID, NANCY 24 PELOSI, MITCH McCONNELL, ERIC

25

CANTOR as representatives of the UNITED STATES OF AMERICA

26

NO. 1:12-CV-331 (KBF)
NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER
RULE 65 (b), F.R.C.P.
March 1, 2012 3:00 PM Courtroom 15A

27

Defendants.

28

NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER; HEDGES V. OBAMA, Civ.1-12CV – 0331KBF1-12

Case 1:12-cv-00331-KBF Document 3 Filed 02/27/12 Page 2 of 3

1 To Defendants Barack Obama, individually and as representative of the United States and

2 Leon Panetta, individually and in his capacity as the executive and representative of the

3 Department of Defense; and John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch

4 McConnell and Eric Cantor as representatives of the United States and to the Attorney

5 General of the United States:

6

Please take notice that on March 1, 2012 at 3:00 P.M, or as soon thereafter as can be

7 Heard, in Courtroom 15A, United States District Courthouse, 500 Pearl Street, New

8 York, New York, Plaintiffs, through their attorneys will move this Court for a Temporary

9 Restraining Order, as follows:

10 1. To Enjoin Defendants, and each of them, from implementing and enforcing the

11

provisions of the Homeland Battlefield Bill, National Defense Authorization Act of 2012.

12 2. Such other and further relief as this Court deems just and appropriate.

13

Said motion is based upon all of the pleadings heretofore filed, Memorandum of Points

14 and Authorities and Verified Amended Complaint filed in support of this Motion.

15

16

Dated: February 27, 2012

17

18

s/ CARL MAYER

19

s/ BRUCE I. AFRAN

20

ATTORNEYS FOR PLAINTIFFS

21

22

23

24

25

26

27

- 2-

28

NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER; HEDGES V. OBAMA, Civ.1-12CV – 0331KBF1-12

Case 1:12-cv-00331-KBF Document 3 Filed 02/27/12 Page 3 of 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER; HEDGES V. OBAMA, Civ.1-12CV – 0331KBF1-12

Case 1:12-cv-00331-KBF Document 3-1 Filed 02/27/12 Page 1 of 3

1 Carl J. Mayer (CM -6589) MAYER LAW GROUP, LLC
2 1040 Avenue of the Americas, Suite 2400 New York, N.Y. 10018
3 Tel. (212) 382 -4686

4

Bruce I. Afran (BA – 8583) 10 Braeburn Drive

5

Princeton, New Jersey 08540 Tel. (609) 924 -2075

6

7

Robert J. Jaffe, Esq., Of Counsel PO Box 2139

San Anselmo, California 94979 8 Tel. (415) 378 -9175

9

10 UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF NEW YORK

12

13 CHRISTOPHER HEDGES, DANIEL ELLSBERG, TANGERINE BOLEN,
14 NOAM CHOMSKY, ALEXA O’BRIEN,
US DAY OF RAGE, KAI WARGALLA, 15 HON. BRIGITTA JONSDOTTIR, M.P.

16 Plaintiffs
17 vs.
18

19

BARACK OBAMA, individually and as representative of the United States of

20 America; LEON PANETTA, individually and in his capacity as the executive and

21 representative of the DEPARTMENT OF

DEFENSE; JOHN McCAIN, 22 JOHN BOEHNER, HARRY REID, NANCY

23

PELOSI, MITCH McCONNELL, ERIC CANTOR as representatives of the

24 UNITED STATES OF AMERICA

NO. 1:12-CV-331 (KBF)
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
RULE 65 (b), F.R.C.P.
March 1, 2012 3:00 PM Courtroom 15A

25
Defendants. 26
The above matter came on for hearing on March 1, 2012 and the parties appeared 27
through their respective attorneys; 28

ORDER GRANTING TEMPORARY RESTRAINING ORDER, HEDGES V. OBAMA, 1-12, Civ, 0331 KBF

Case 1:12-cv-00331-KBF Document 3-1 Filed 02/27/12 Page 2 of 3

1

And the Court having considered the papers in support of the application and any

2 opposition of defendants, and the Court having heard arguments thereon and it appears

3 there is a reasonable likelihood that Plaintiffs will succeed on the merits of this action; that

4 Plaintiffs in the absence of temporary restraints will suffer irreparable harm;

5

6

WHEREFORE it is hereby ordered, adjudged and decreed, as follows:

7

8

Defendants, and each of them, are hereby enjoined from implementing and

9

enforcing all of the provisions of the Homeland Battlefield Act, National Defense

10

Authorization Act of 2012 pending further hearing in this matter.

11

12 So Ordered:

13

14

_________________________________________________

15

Hon. KATHERINE B. FOREST, U.S.D.J. Dated

16

17

18

19

20

21

22

23

24

25

26

Page 2

27

28

ORDER GRANTING TEMPORARY RESTRAINING ORDER, HEDGES V. OBAMA, 1-12, Civ, 0331 KBF

Case 1:12-cv-00331-KBF Document 3-1 Filed 02/27/12 Page 3 of 3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ORDER GRANTING TEMPORARY RESTRAINING ORDER, HEDGES V. OBAMA, 1-12, Civ, 0331 KBF

 
 Case 1:12-cv-00331-KBF Document 23 Filed 03/26/12 Page 1 of 34

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------ x CHRISTOPHER HEDGES et al.,
Plaintiffs,
v.
BARACK OBAMA et al.,
Defendants. ------------------------------------------------------------------ x

12 Civ. 331 (KBF)

Government’s Memorandum of Law in Opposition to Plaintiffs’ Motion for a Preliminary Injunction

BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov
christopher.harwood@usdoj.gov

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Table of Contents Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Preliminary Injunction Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Legal Background: The AUMF and the NDAA .. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Government’s Detention Authority Under the 2001 AUMF . . . . . . . . . 3 2. Section 1021’s Affirmation of the AUMF’s Detention Authority . . . . . . . . . 7 C. Plaintiffs Lack Standing, and Therefore Cannot Demonstrate They Are Likely to Succeed in This Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. Plaintiffs' Assertion of Standing to Sue Rests on a Misunderstanding of
Applicable Precedent and of Section 1021, Which Is Valid on Its Face. . . 10 2. Plaintiffs Cannot Prevail, as They Lack Standing. . . . . . . . . . . . . . . . . . . . 14
a. Plaintiffs Have Not Established That They Are in Real and Immediate Danger of Injury or Have an Objectively Reasonable Fear of Being Deemed “Covered Persons” Under Section 1021 .. . . . . . . . . . . . . . . . 16
b. Plaintiffs Have Not Established That the Costs They Have Allegedly Incurred in Connection With This Lawsuit Confer Standing . . . . . . 25
c. Plaintiffs Have Not Established That It Was Reasonable for Them to Stop Engaging in Expressive Activities to Avoid Being Deemed “Covered Persons” Under Section 1021 . . . . . . . . . . . . . . . . . . . . . . . . 26
D. Plaintiffs Cannot Establish Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 E. The Balance of Equities Requires That the Preliminary Injunction Be Denied
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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Table of Authorities Al Odah v. Bush, 593 F. Supp. 2d 53 (D.D.C. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Alexander v. United States, 509 U.S. 544 (1993) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 18 al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18 Bordell v. General Elec. Co., 922 F.2d 1057 (2d Cir. 1991) .. . . . . . . . . . . . . . . . . . . . . . . . . . 27 Boumediene v. Bush, 553 U.S. 723 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 FEC v. Nat’l Right To Work Comm., 450 U.S. 197 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 .. . . . . . . . . . . . . . . . . . . . . . . . 4 Hamdan. Khadr v. Obama, 724 F. Supp. 2d 61 (D.D.C. 2010) . . . . . . . . . . . . . . . . . . . . . . . 12 Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 11, 12 Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 23 Heart of Atlanta Motel v. United States, 85 S. Ct. 1 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 15 Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Laird v. Tatum, 408 U.S. 1 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 27, 28 Latino Officers Ass’n v. Safir, 170 F.3d 167 (2d Cir. 1999) .. . . . . . . . . . . . . . . . . . . . . . . . . . 27

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Los Angeles Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32 (1999) .. . . . . . . . . . . 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 26 Ex parte Milligan, 71 U.S. 2 (1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) . . . . . . . . . . . . . . . . . . . . . 3, 28 Munaf v. Geren, 553 U.S. 674 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 16 New York v. Ferber, 458 U.S. 747 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008) . . . . . . . 15, 17, 20, 21 Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 In re Petitioners Seeking Habeas Corpus Relief, 700 F. Supp. 2d 119 (D.D.C. 2010) . . . . . . . 7 Ex Parte Quirin, 317 U.S. 1 (1942) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Rasul v. Bush, 542 U.S. 466 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Turner Broad. Sys. v. FCC, 507 U.S. 1301 (1993) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973) . . . . . . . . . . 14 United States v. Nat’l Dairy Prods., 372 U.S. 29 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Virginia v. Hicks, 539 U.S. 113 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376 (2d Cir. 2000) .. . . . . . . . . . . . . . . . . . . . . . 17 Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) . 10, 12 Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . 2, 28

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Preliminary Statement Defendants Barack Obama, Leon Panetta, and the Department of Defense (collectively, the “government”) respectfully submit this memorandum in opposition to plaintiffs’ motion for a preliminary injunction, enjoining the operation of section 1021 of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”).1 That provision is captioned “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force.” As is apparent from that title, section 1021 serves to codify the government’s authority to detain certain persons that was provided by the 2001 Authorization for Use of Military Force, Pub. L. 107–40, 115 Stat. 224 (Sept. 18, 2001) (the “AUMF”), the statute enacted shortly after September 11, 2001, to confer on the President authority to conduct the ongoing war against al-Qaeda and the Taliban. Plaintiffs’ challenge to section 1021 must be rejected. Properly understood, section 1021 merely restates the detention authority that the government already had under the AUMF. In the statute’s own words, it “affirms” the AUMF’s detention authority while expressly not “expand[ing]” it, and defines those “covered persons” who may be detained in terms no more broad than the government has advanced before the courts—and that the courts have upheld—for years. Based on their misunderstandings of the law, plaintiffs now purport to fear that they will be subjected to indefinite military detention simply for their political views and expression. But those fears are baseless. Plaintiffs do not assert that they or anyone
1 No defendant has been served with process by the date of this filing, and the government respectfully preserves all pertinent defenses. In particular, the amended complaint names members of Congress as defendants; they have not yet been served, have not appeared in this case through counsel, and, in any event, are unnecessary to the resolution of the preliminary injunction motion or to any relief requested in this action.

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similarly situated have ever been detained or threatened with detention under the identical preexisting authority provided by the AUMF. Nor can they demonstrate that their subjective fears are reasonable in light of the government’s implementation of its detention authority under the AUMF. For those reasons, plaintiffs lack standing, and therefore are unable to demonstrate a likelihood of success in this action, irreparable harm, or a balance of the equities involved that tips in their favor. Plaintiff ’s motion for a preliminary injunction, therefore, should be denied.
Argument A. Preliminary Injunction Standard
“A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 679-80 (2008) (quotation marks and citations omitted). “[P]laintiff[s] seeking a preliminary injunction must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008); accord Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010).
The Supreme Court has emphasized that a preliminary injunction cannot issue on the mere basis of speculation or possibility. Winter, 555 U.S. at 21-22. In Winter, the Supreme Court rejected a “more lenient standard” that allowed for a preliminary injunction “based only on a ‘possibility’ of irreparable harm.” Id. at 22. The Supreme Court emphasized that a preliminary injunction should issue only upon a showing that irreparable harm is “likely in the absence of an injunction.” Id. (emphasis added). In addition, the Supreme Court recently concluded that “[i]t is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a
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court must determine that an injunction should issue . . . .” Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2757 (2010) (emphasis in original).
Here, the burden plaintiffs must carry to obtain preliminary injunctive relief is that much greater, because they seek to enjoin enforcement of an act of Congress. “[J]udicial power to stay an act of Congress, like judicial power to hold that act unconstitutional, is an awesome responsibility calling for the utmost circumspection in its exercise.” Heart of Atlanta Motel v. United States, 85 S. Ct. 1, 2 (1964) (Black, J., in chambers). Acts of Congress are presumptively constitutional. United States v. Nat’l Dairy Prods., 372 U.S. 29, 32 (1963); United States v. Rybicki, 354 F.3d 124, 136 & n.9 (2d Cir. 2003) (en banc). As such, even a statute challenged as unconstitutional “should remain in effect pending a final decision on the merits by [the courts].” Turner Broad. Sys. v. FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers). Plaintiffs have not made the exceptional showing required to justify preliminary injunctive relief against enforcement of an Act of Congress. B. Legal Background: The AUMF and the NDAA
1. The Government’s Detention Authority Under the 2001 AUMF The AUMF was enacted in the immediate wake of the September 11, 2001, terrorist attacks on the United States. It provides [t]hat the 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. Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001), § 2(a). Shortly thereafter, the President ordered U.S. armed forces to Afghanistan pursuant to the AUMF, “with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.” Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004) (plurality); accord Rasul v. Bush, 542 U.S. 466, 470 (2004). The
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AUMF indisputably brings al-Qaeda and the Taliban within its scope; indeed, the principal purpose of the AUMF is to eliminate the threat those entities pose. Hamdi, 542 U.S. at 518 (“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.”). During the ensuing hostilities, which are ongoing, the government has captured and detained a number of individuals pursuant to authority the Supreme Court recognized as conferred by the AUMF. See Hamdi, 542 U.S. at 518 (“detention of individuals . . . 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”).2
Since Hamdi the government has explained the detention authority granted by the AUMF in the course of habeas corpus proceedings brought by detainees held at the United States Naval Station at Guantanamo Bay, Cuba. In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442, Repondents’ Mem. Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, dated March 13, 2009 (“March 2009 Memorandum”) (annexed hereto). To begin with, “[t]he detention authority conferred by the AUMF is necessarily informed by principles of the laws of war,” id. at 1—consistent with Hamdi, which construed the AUMF “based on longstanding law-of-war principles.” 542 U.S. at 520-21.3 As informed by the laws of war, the government’s detention authority
2 Although Hamdi was a plurality opinion, the Court later recognized that five Justices concurred in this core holding. Boumediene v. Bush, 553 U.S. 723, 733 (2008).
3 “The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).” March 2009 Mem. at 1.
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under the AUMF extends to those the President “determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons
who harbored those responsible for the September 11 attacks”—as provided in the language
of the AUMF itself—as well as “those persons whose relationship to al-Qaida or the Taliban
would, in appropriately analogous circumstances in a traditional international armed
conflict, render them detainable.” March 2009 Mem. at 1. Thus, the definitional framework
for the government’s AUMF detention authority is as follows:4
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist 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.
March 2009 Mem. at 1-2.5
Further, in the March 2009 Memorandum, the government explained with respect to
the concept of “associated forces,” that “many different private armed groups [have] trained
4 Prior to the government’s March 2009 articulation of AUMF detention authority, the Department of Defense defined a detainable person as “ ‘an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.’ ” Parhat v. Gates, 532 F.3d 834, 837-38 (D.C. Cir. 2008) (quoting Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures (July 29, 2004), at E-1 § B, and Deputy Secretary of Defense, Order Establishing Combatant Status Review Tribunal (July 7, 2004), at 1).
5 The government has further explained to the courts that while the circumstances justifying detention of an individual for providing “substantial support” to enemy forces will need to be identified case by case going forward, and “may require the identification and analysis of various analogues from traditional international armed conflicts,” it is clear that “the concept of ‘substantial support’ . . . does not justify the detention . . . of those who provide unwitting or insignificant support” to al-Qaeda, the Taliban, or associated forces. See also Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010) (recognizing that determination of detainability must be made case by case, but “purely independent conduct of a freelancer is not enough” under “part of ” test (quotation marks omitted)).
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and fought alongside al-Qaida and the Taliban. In order ‘to prevent any future acts of international terrorism against the United States,’ AUMF, § 2(a), the United States has authority to detain individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency.” See March 2009 Mem. at 7; Hamlily v. Obama, 616 F. Supp. 2d 63, 74-75 (D.D.C. 2009) (“associated forces” under government’s March 13, 2009 articulation of detention authority “mean[s] ‘co-belligerents’ as that term is understood under the laws of war”); cf. Parry & Grant, Encyclopaedic Dictionary of Int’l Law (3d ed. 2009) 102 (defining co-belligerents as states “engaged in a conflict with a common enemy, whether in alliance with each other or not”); 2 Oppenheim’s International Law: A Treatise § 77 & n.1 (7th ed. 1952) (defining term “principle belligerents” to include “those parties to a war who wage it . . . by virtue of having become party to the war irrespective of a treaty of alliance,” and noting that “co-belligerents” are “associated with one another for purposes of the war”). The General Counsel of the Department of Defense, recently addressed the issue, stating that the term “associated force”
is based on the well-established concept of co-belligerency in the law of war. . . . An ‘associated force,’ as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners. Jeh C. Johnson, “National Security Law, Lawyers, and Lawyering in the Obama Administration,” Dean’s Lecture at the Yale Law School, Feb. 22, 2012 (text available at http://www.lawfareblog.com/2012/02/jeh-johnson-speech-at-yale-law-school/). The definitional framework articulated by the government in the March 2009 Memorandum has been repeatedly endorsed by the courts in the habeas corpus litigation involving aliens detained at Guantanamo under authority of the AUMF. See, e.g.,
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Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); see also In re Petitioners Seeking Habeas Corpus Relief, 700 F. Supp. 2d 119, 135 (D.D.C. 2010) (recognizing circuit’s holding approving government’s detention authority definition).6
2. Section 1021’s Affirmation of the AUMF’s Detention Authority In section 1021 of the NDAA, Congress affirmed the preexisting authority described above, adopting the government’s definitional framework stated in the March 2009 Memorandum nearly verbatim, and noting that the new provision was not intended to change the government’s authority. The section begins by stating that “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.” Pub. L. No. 112-81, 125 Stat. 1298, 1562, § 1021(a) (emphasis added). “Covered persons,” in turn, are described using the language of the March 2009 Memorandum: (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) 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.
6 See also al-Bihani v. Obama, 590 F.3d 866, 873-74 (D.C. Cir.), rhg. en banc denied, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011). While the al-Bihani majority disagreed with the government’s view that the AUMF detention authority must be informed by principles of international laws of war, 590 F.3d at 871, the government consistently has made clear that it views its detention authority under the AUMF as informed by the laws of war. See, e.g., Br. for Respondents in Opp. to Pet. for Cert., alBihani v. Obama, S. Ct. No. 10-1383, at 10 (Nov. 23, 2011); Response to Pet. for Rhg. & Rhg. En Banc, al-Bihani v. Obama, D.C. Cir. No. 09-5051, at 6-7 (May 13, 2010).
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Id. § 1021(b). In short, section 1021 restates authority under the AUMF to detain in essentially identical language to that asserted by the government in its March 2009 description of AUMF detention authority, affirmed by the courts as described above.
To the extent there could be any doubt that section 1021, in “affirm[ing]” the AUMF authority, does not confer any new or additional authority, Congress provided that “[n]othing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF],” id. § 1021(d) (emphasis added), and, “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” id. § 1021(e).
The President expressed the same understanding upon signing the NDAA. As he put it in his signing statement:
Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 [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. Two critical limitations in section 1021 [subsections (d) and (e), quoted above] confirm that it solely codifies established authorities. . . . My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Statement by Pres. Barack Obama upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011) (“NDAA Signing Statement”) (emphasis added). The President further stated that “my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.” Id. Finally, the President noted that “[m]y Administration will interpret section 1021 in a manner that ensures that any detention it
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authorizes complies with the Constitution, the laws of war, and all other applicable law.” Id. In addition, section 1021 is consistent with the government’s position that its
detention authority under the AUMF is informed by the laws of war. Section 1021(c)(1) of the NDAA explicitly refers to “[d]etention under the law of war.” Senate floor statements confirm that members of Congress understood that section 1021 concerned detention consistent with the laws of war.7 In addition, other provisions in the same subtitle of the NDAA repeatedly refer to the law of war. For example, section 1023(b) describes the Secretary of Defense’s periodic review of the threat posed by those in “law of war detention,” and section 1024(b) describes procedures for determining the status of those held in “longterm detention under the law of war pursuant to the [AUMF].” NDAA §§ 1023(b), 1024(b). Section 1023(b) also refers to Executive Order 13,567 (governing periodic reviews), which in turn defines “law of war detention” as “detention authorized by the Congress under the AUMF, as informed by the laws of war.” Exec. Ord. 13,567, 76 Fed. Reg. 13,277, 13,280, § 9(a) (Mar. 7, 2011).
In sum, section 1021, properly understood, affirms the government’s preexisting authority to detain those persons who were “part of ” or “substantially supported” al-Qaeda, the Taliban, or associated forces that engaged in hostilities against the United States—an authority informed by the laws of war and that has been upheld by the Article III courts. Based on such an understanding, plaintiffs demonstrably lack standing to pursue their challenge to the statute.
7 See 157 Cong. Rec. S7638, S7670 (Nov. 17, 2011) (Sen. Graham: “When someone is captured as a member of al-Qaida . . . [t]hey are being held under the law of war.” Sen. Levin: “That is correct.”); id. at S7956 (Sen. Graham: section 1021 “reaffirms the fact this body believes al-Qaida and affiliated groups are a military threat to the United States and they can be held under the law of war”).
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C. Plaintiffs Lack Standing, and Therefore Cannot Demonstrate They Are Likely to Succeed in This Action Plaintiffs’ request for a preliminary injunction must first be denied because they have
failed to demonstrate a likelihood of success on the merits of their claims. Munaf, 553 U.S. at 680. Although plaintiffs’ constitutional attack on section 1021 of the NDAA would fail on the merits, it is equally clear that plaintiffs lack standing to assert their claims in the first place. That alone suffices to eliminate any conceivable prospect they may have had of prevailing in this litigation, and it is therefore all that the Court must determine at this time in order to deny their request for preliminary relief.
1. Plaintiffs' Assertion of Standing to Sue Rests on a Misunderstanding of Applicable Precedent and of Section 1021, Which Is Valid on Its Face
To begin with, plaintiffs are attempting to mount a facial attack on section 1021’s validity, asking the Court to declare the statute “void as unconstitutional” and to enjoin it as such. See, e.g., Amended Verified Complaint (“Compl.”) 22 (request for relief); id. 17-18. In so doing, plaintiffs have assumed a particularly difficult burden. “Facial challenges are disfavored” as they “often rest on speculation” and “run contrary to the fundamental principle of judicial restraint that courts should [not] anticipate a question of constitutional law in advance of the necessity of deciding it.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (quotation marks and citations omitted). Accordingly, “a plaintiff can only succeed in a facial challenge by establishing . . . that the law is unconstitutional in all of its applications.” Id. at 449 (same). “[A] facial challenge must fail where the statute has a plainly legitimate sweep.” Id. (emphasis added).
Plaintiffs cannot hope to prevail on their facial challenge to section 1021, a mere recodification of the detention authority that the AUMF already provides the President in the ongoing war against al-Qaeda, the Taliban, and associated forces. They maintain that
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section 1021 is facially unconstitutional because it could apply to U.S. citizens and other “covered persons” who, in plaintiffs’ view, cannot lawfully be detained or tried by the military. Compl. ¶¶ 29-35, 38; Plaintiffs’ Brief in Support of Application for Restraints (Feb. 28, 2012) (“Pls. Br.”) 14. But—although the government does not offer a complete explication of the statute and the governing precedent in this preliminary proceeding— whatever the outer bounds of the government’s detention authority, the statute’s legitimate sweep is illustrated by the numerous cases that have upheld the authority it grants. Even as to detention of U.S. citizens, in Hamdi the Supreme Court held that “[t]here is no [constitutional] bar to this Nation’s holding one of its own citizens as an enemy combatant,” at least where the individual in question was “part of or supporting forces hostile to the United States or coalition partners in Afghanistan, and who engaged in armed conflict against the United States.” 542 U.S. at 516-19; see also id. at 589 (Thomas, J., dissenting)). Ex Parte Quirin, 317 U.S. 1 (1942), held that enemy belligerents, whether aliens or those holding “citizenship in the United States,” can be tried by military tribunal for violations of the laws of war. Id. at 29-35, 37.
The Government has rarely exercised detention authority over U.S. citizens pursuant to the AUMF, and, as discussed above, the President has said that he will not use that authority to subject U.S. citizens to long-term detention without trial. And jurisdiction of the military commissions authorized by the Military Commissions Act of 2009, by which trial is provided for under section 1021(c)(2), expressly excludes U.S. citizens. 10 U.S.C. § 948c.8 As a result, the courts have not resolved the scope of the military’s authority to
8 Even as to aliens, the subject matter jurisdiction of the commissions is restricted to offenses “committed in the context of and associated with hostilities,” id. § 950p(c), with “hostilities” defined as “any conflict subject to the laws of war,” id. § 948a(9).
Moreover, plaintiffs’ characterization of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), (continued...)
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detain or try citizens. But that question, along with the scope of authority over those who
substantially support organized armed groups engaged in the ongoing armed conflict with
the United States, concern only the outer bounds of the Government’s authority. Thus,
because section 1021 simply affirms the President’s pre-existing wartime authority, as
affirmed in Hamdi and other cases, “the statute has a plainly legitimate sweep,” and is not
subject to facial invalidation. Washington State Grange, 552 U.S. at 449. Questions about
the precise outer bounds of this legitimate authority do not support a facial challenge to the
President’s wartime authority.9
8 (...continued) as concluding that military commissions inherently lack necessary procedural safeguards, see Pls. Br. 18-19, is inaccurate. Hamdan dealt only with the system of military commissions before it, which had been organized pursuant to presidential order. 548 U.S. at 568-70. The current system of military systems was created following Hamdan, when Congress enacted the Military Commissions Acts of 2006 and 2009, Pub. L. Nos. 109-366 & 111-84. As now constituted by statute, military commissions guarantee defendants a panoply of procedural rights to ensure the fundamental fairness of the proceedings, see 10 U.S.C. §§ 948k, 949a(b)(2)(B), 949c, 949f(a), 949j, 949l, with independent judicial review of commission judgments in the D.C. Circuit. Id. § 950g. Courts have since recognized that the Military Commission Acts of 2006 and 2009 cured the procedural deficiencies that concerned the Court in Hamdan. Khadr v. Obama, 724 F. Supp. 2d 61 (D.D.C. 2010); Al Odah v. Bush, 593 F. Supp. 2d 53, 58 (D.D.C. 2009); Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008); Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008).
9 Plaintiffs rely on Ex parte Milligan, 71 U.S. 2 (1866), for the proposition that “military jurisdiction” cannot extend to “civilians.” Pls. Br. 14. Milligan establishes that the exercise of war powers, including detention authority, is limited by the Constitution, not that a broad grant of war powers can be subject to facial attack simply because some military actions may cross constitutional boundaries. In Milligan, the Court held that a citizen and long-time resident of Indiana, who was arrested at his home during the Civil War, could not be tried by military commission but was instead entitled to trial by jury, as Indiana was not in rebellion against the federal government and its courts were open. 71 U.S. at 107-08, 121-24. But as later explained in Quirin and Hamdi, the decision in Milligan turned on the fact that Milligan was “not an enemy belligerent,” nor “part of or associated with the armed forces of the enemy,” and therefore was “not subject to the law of war.” Quirin, 317 U.S. at 45; see Hamdi, 542 U.S. at 521-22. As the government has affirmed repeatedly, its detention authority is informed by law of war principles, and as the President has stated, such authority is limited by the Constitution.
In support of the same argument, plaintiffs also offer quotations from Laird v. Tatum, 408 U.S. 1, 17-19 (1972). Pls. Br. 14-15. Although they attribute those quotations to
(continued...)
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For these reasons, Plaintiffs also have no discernible likelihood of success on their overbreadth claim. See Compl. ¶¶ 39-44. An overbreadth claim is a “second type of facial challenge,” applicable in the First Amendment context, “under which a law may be overturned as impermissibly overbroad because a substantial number of its applications are unconstitutional.” Id. at 449 n.16 (quotation marks and citations omitted). Invalidation on grounds of overbreadth is considered “strong medicine” that courts must apply “with hesitation, and then ‘only as a last resort.’ ” Los Angeles Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32, 39 (1999) (quoting New York v. Ferber, 458 U.S. 747, 767 (1982)). To succeed on an overbreadth claim a party must show that the “law’s application to protected speech [is] ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U.S. 113, 119-20 (2003). The claimant “bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists.” Id. at 122 (quotation marks, brackets, and citation omitted). And “[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech.” Id. at 124.
The NDAA is not a statute “specifically addressed to speech” but (as relevant here) to the detention of individuals who are part of or substantially supported al-Qaeda, Taliban, or associated forces engaged in hostilities against the United States and its coalition partners. Its “plainly legitimate applications” are illustrated by the thousands of persons whom the military has lawfully detained in Afghanistan under the AUMF, as well as by the numerous decisions upholding the government’s detention authority relative to
9 (...continued) “the Court,” in fact they are taken from the dissenting opinion.
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Guantanamo detainees. See, e.g., Barhoumi, 609 F.3d at 432. By contrast, plaintiffs have not shown “from actual fact” that the NDAA, or the AUMF, has ever been or is ever likely to be applied to anyone on the basis of the kind of independent expressive activity they describe in their declarations. See infra Part C.2.a. Hence they have shown no apparent chance of succeeding on their overbreadth claim.
The plaintiffs’ vagueness claim, Compl. ¶¶ 34-37, is even more fundamentally misconceived. Declarations of war and war powers authorizations are necessarily written in expansive terms, giving the President the authority to effectuate their fundamental purpose of providing for the Nation’s defense. As explained above, section 1021 simply restates the detention authority provided in a war powers authorization, the AUMF. Just like other war powers authorizations, the AUMF confers broad authority on the President to use “all necessary and appropriate force,” which he may exercise consistent with the Constitution, other applicable law, including the law of war. Plaintiffs cannot facially invalidate, as unconstitutionally vague, section 1021’s codification of the President’s detention authority under the AUMF, authority Hamdi makes clear is a “necessary incident of war,” simply because in their view the statute’s terms “may leave room for uncertainty at [its] periphery.” FEC v. Nat’l Right To Work Comm., 450 U.S. 197, 211 (1982); see also U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 57879 (1973) (a statute “will not be struck down as vague even [if] marginal cases could be put where doubts might arise”).
2. Plaintiffs Cannot Prevail, as They Lack Standing As observed above, however, for the present purpose of assessing plaintiffs’ likelihood of success, the Court need not address the merits of plaintiffs’ claims, for they have failed to establish their standing to raise these claims in the first place. “The judicial power of the
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United States . . . is not an unconditioned authority to determine the [validity] of legislative or executive acts,” but is limited by Article III of the Constitution “to the resolution of ‘cases and controversies.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). Standing is “an essential and unchanging part of the case-or-controversy requirement” under Article III, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), assuring that litigants have a sufficient “personal stake in the outcome of the controversy . . . to justify exercise of the court’s remedial powers on [their] behalf,” Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Standing is, accordingly, a threshold jurisdictional requirement, “determining the power of the court to entertain the suit,” Warth, 422 U.S. at 498, and, as such, “is an indispensable part of the plaintiff ’s case,” Lujan, 504 U.S. at 561.
“[T]he irreducible constitutional minimum of standing contains three elements,” injury in fact, causation, and redressability, the first of which—injury in fact—requires a plaintiff to demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560-61 (emphasis added; citations, alterations, and quotation marks omitted); Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008). “Abstract injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983), and “[a]llegations of possible future injury” that enter “the area of speculation and conjecture,” “do not satisfy the[se] requirements,” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Id. (quotation marks omitted); accord Lyons, 461 U.S. at 102 (noting that threat of injury must be “immediate and real”). To satisfy these requirements, plaintiffs seeking pre-enforcement review of a statute must demonstrate that they face “a credible threat of [enforcement].” Holder v. Humanitarian
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Law Project, 130 S. Ct. 2705, 2717 (2010). Plaintiffs have made no such showing here, and the resulting jurisdictional impediment to even reaching the merits makes plaintiffs’ prospects of success exceedingly unlikely. Munaf, 553 U.S. at 690.
Here, plaintiffs allege that they have suffered three types of injuries. First, as a result of their independent journalistic activities and public advocacy (collectively, “expressive activities”), plaintiffs claim that they fear they will be deemed “covered persons” under section 1021, and thus subject to military detention. See, e.g., Hedges Aff. ¶¶ 28-29, 34; Bolen Aff. ¶ 10; Wargalla Aff. ¶¶ 13-17; Jonsdottir Aff. ¶¶ 20-21; O’Brien Aff. ¶¶ 26, 29. Second, plaintiffs claim that they have incurred significant financial and professional costs due to their fear that section 1021 will be applied against them. See, e.g., Bolen Aff. ¶¶ 1116; O’Brien Aff. ¶ 30; Wargalla Aff. ¶ 18; Hedges Aff. ¶ 35. Third, plaintiffs claim that they have refrained from engaging in certain expressive activities based on their fear that, if they engage in the activities, they will be deemed “covered persons” under section 1021. See, e.g., Bolen Aff. ¶¶ 7-10; O’Brien Aff. ¶¶ 9, 28; Jonsdottir Aff. ¶ 22. As explained below, however, plaintiffs are not likely to succeed in establishing standing based on any of these alleged injuries. This Court accordingly lacks jurisdiction, and must deny the preliminary injunction on that ground alone.
a. Plaintiffs Have Not Established That They Are in Real and Immediate Danger of Injury or Have an Objectively Reasonable Fear of Being Deemed “Covered Persons” Under Section 1021
Plaintiffs’ first alleged injury—their fear that, as a result of their expressive activities, they will be deemed “covered persons” under section 1021, and thus subject to indefinite military detention—is insufficient to confer standing because plaintiffs have not shown that they face a real and immediate threat of injury or that their fear is objectively reasonable.
Plaintiffs rely on Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir.), reh’g en banc
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denied, 667 F.3d 163 (2d Cir. 2011), pet. for cert. filed (Feb. 17, 2012) (No. 11-1025), as precedent to support their standing to pursue their claims in this case. Pls. Br. 10-12. Although the government respectfully disagrees with the Court of Appeals’s decision in that case and has filed a petition for certiorari, even under Amnesty Int’l, to establish standing based on a fear of future injury, a plaintiff must show that there is “an objectively reasonable likelihood” that the alleged future injury will occur. 638 F.3d at 134 (“To determine whether the plaintiffs have standing under their future-injury theory, we would need to determine whether the FAA [i.e., the statute there challenged] creates an objectively reasonable likelihood that the plaintiffs are being or will be monitored under the FAA.”); see also Lyons, 461 U.S. at 107 n.8 (“It is the reality of the threat of [future] injury that is relevant to the standing inquiry, not the plaintiff ’s subjective apprehensions.”); Pac. Capital Bank, 542 F.3d at 350 (“If a plaintiff ’s interpretation of a statute is reasonable enough and under that interpretation the plaintiff may legitimately fear that it will face enforcement of the statute, then the plaintiff has standing to challenge the statute.” (quotation marks omitted)); Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (a plaintiff has standing to bring a pre-enforcement challenge to a statute if the plaintiff has “an actual and well-founded fear that the [statute] will be enforced against it” (quotation marks omitted)). Here, plaintiffs have failed to demonstrate that there is “an objectively reasonable likelihood” that section 1021 will be applied against them. That is so for at least four separate reasons, each applicable to some or all of the plaintiffs. Thus, plaintiffs’ first alleged injury is insufficient to confer standing.
First, the government’s statutory detention authority affirmed in section 1021 has existed since the passage of the AUMF in 2001, and plaintiffs have not identified a single instance in which that authority has been applied against individuals similarly situated to
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plaintiffs or merely for engaging in independent journalistic activities or public advocacy, much less the specific types of expressive activities described by plaintiffs in their affidavits. As discussed above, section 1021 breaks no new ground; the authority it describes—including the authority to detain “covered persons”—was previously granted in the 2001 AUMF. See supra Part B.2.
Indeed, in July 2004, the government articulated its detention authority as extending to any “individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.” See supra at 5 n.4. Then, in the March 2009 Memorandum, the government described its detention authority under the AUMF in a more limited way, extending as informed by the laws of war to any “person[ ] who w[as] part of, or substantially supported, Taliban or alQaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners.” March 2009 Mem. at 2 (emphasis added). The government’s July 2004 and March 2009 descriptions of its detention authority are no more restrictive— indeed, in the case of the July 2004 standard, the description is more broad—than the definition of “covered persons” in section 1021. Compare id. at 2 and supra at 5 n.4 with section 1021(b).
Thus, for years before the passage of the NDAA, the government has had the detention authority described in section 1021. Moreover, the courts have upheld the government’s interpretation of its detention authority—as that authority is now described in section 1021. See, e.g., al-Bihani, 590 F.3d at 873-74; Barhoumi, 609 F.3d at 432. Notwithstanding these facts, plaintiffs have not identified a single instance in which the government has used that authority against a person merely for engaging in independent journalistic activities or public advocacy. Having failed to make such a showing, plaintiffs
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have not established that there is an “objectively reasonably likelihood” that they will be detained under section 1021 for engaging in the types of expressive activities described in their affidavits. Amnesty Int’l, 638 F.3d at 134.
Plaintiffs claim Amnesty Int’l supports a conclusion that they have standing to challenge section 1021, but that case is readily distinguishable from plaintiffs’ present challenge. In Amnesty Int’l, a group of activists, attorneys, and journalists whose work sometimes required them to engage in international communications with individuals they believed to be associated with terrorist or activist organizations challenged the constitutionality of section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). 638 F.3d at 121, 127. Section 702, which was added to FISA by section 101(a)(2) of the FISA Amendments Act (“FAA”) of 2008, created new procedures for authorizing government electronic surveillance targeting non-citizens outside the United States. Id. These procedures “significantly broadened” surveillance orders by eliminating several preexisting statutory requirements. Id. at 126. The Amnesty Int’l plaintiffs asserted they had standing to raise a pre-enforcement challenge to the new procedures because the new procedures caused them to fear that their international communications would be monitored by the government, which in turn, forced them to undertake allegedly costly and burdensome measures to protect the confidentiality of their communications. Id. at 121-22.
As noted above, according to the court, “[t]o determine whether the plaintiffs have standing under their future-injury theory, we would need to determine whether the FAA creates an objectively reasonable likelihood that the plaintiffs are being or will be monitored under the FAA.” 638 F.3d at 134. Applying this standard, the Court ruled that the Amnesty Int’l plaintiffs’ interpretation of section 702’s new procedures as permitting the government to intercept their international communications was reasonable because the
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“FAA was passed specifically to permit surveillance that was not permitted by FISA.” Id. at 138. Given that “both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance,” the Court reasoned that it is “extremely likely that such surveillance will occur” and plaintiffs’ communications will be monitored— especially since the individuals plaintiffs communicated with were “precisely the sorts of individuals that the government will most likely seek to monitor.” Id. 138-39. Thus, the Court concluded, the plaintiffs’ fears of governmental monitoring of their international communications were not “based on conjecture,” id. (citations omitted); rather they were “fairly traceable” to the FAA. Id. at 139.
By contrast here, section 1021 did not expand the government’s detention authority under the AUMF, but rather merely affirmed that pre-existing authority. Unlike the FAA and section 702’s relationship with pre-existing FISA authorities, section 1021 does not authorize military detention in circumstances where it was not previously authorized under the AUMF. Plaintiffs’ interpretation of section 1021 as broadening the Executive Branch’s detention authority, therefore, is not reasonable; indeed, it is incorrect. Plaintiffs have no greater reason now to fear being subjected to military detention than they have had at any time since the AUMF was passed in 2001.10 And apart from the lack of change from pre-
10 Likewise, plaintiffs cannot look to Pacific Capital Bank, 542 F.3d 341, to support standing. In Pacific Capital, the Court affirmed the district court’s finding that Pacific Capital had standing to bring a pre-enforcement challenge to a state statute that placed a ceiling on the amount of interest banks could charge for refund anticipation loans in contravention of a federal statute allowing national banks to charge, in any state, interest rates that are permitted by their home states. 542 F.3d at 346-47. The Court ruled that Pacific Capital had “reasonably interpreted” the state statute’s limitation as applying to Pacific Capital because the language of the statute “by its exact wording limits permissible interest rates on refund application loans with no apparent exception for national banks.” Id. at 350 (quotation marks omitted). Section 1021, however, as explained above, by its exact wording, merely “affirms” the government’s detention authority existing prior to the enactment of the NDAA.
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existing authorities, it is decidedly not otherwise “extremely likely that [plaintiffs’ feared
detention] will occur.” Id. at 138. Accordingly, plaintiffs’ future-injury theory fails for this
reason alone.
Second, plaintiffs have been engaging for years in the same types of expressive
activities that they now claim they fear will cause them to be deemed “covered persons”
under section 1021, and they have not alleged that the government has ever sought to
detain them in military custody. According to their affidavits and the complaint, plaintiffs
have engaged in the following expressive activities:
Christopher Hedges. During the course of Hedges’ work as a journalist and activist “for twenty years,” Hedges has: (1) had “direct contact in person with at least 17 organizations that are terrorist organizations on the State Department’s List of Foreign Terrorist Organizations”; (2) “interviewed and disseminated the opinions and ideas of not only the organizations[’] leadership but also their rank and file”; and (3) “published opinion pieces about these organizations and expressed agreement or sympathy for their ideas or fights, as in the case of Hamas . . . .” Hedges Aff. at ¶¶ 10, 13-14, 16-17.
Alexa O’Brien. Since “January of 2011,” O’Brien has been “writing for WL Central, an independent news site endorsed by WikiLeaks.” O’Brien Aff. ¶ 3. In this capacity, O’Brien has “covered the WikiLeaks release of [purported] US State Department Cables, Joint Terrorism Task Force (JTTF) memoranda known as the Guantanamo Files . . . , and revolutions across Egypt, Bahrain, Iran, and Yemen.” Id. at ¶ 4 (annotation added). In addition, in June 2011, O’Brien published an interview with a former Guantanamo detainee, id. at ¶ 7, which was “sympathetic to the plight of detainees,” id. at ¶ 8. O’Brien also started the organization U.S. Day of Rage, which supports campaign finance reform in the United States and “endorsed the call to Occupy Wall Street on September 17, 2011.” Id. at ¶¶ 10-11.
Kai Wargalla. Since “January 2011,” Wargalla has been “organizing rallies, demonstrations, and protests in support of Julian Assange and WikiLeaks.” Wargalla Aff. ¶ 8. In addition, since “February 2011,” Wargalla has been “working with [Jennifer] Bolen and Revolution Truth . . . on [a] campaign in support of WikiLeaks and Julian Assange.” Id. at ¶ 9. Moreover, in September 2011, Wargalla “co-founded the Facebook page ‘Occupy the London Stock Exchange’ . . . and [has] continued as the most involved organizer behind the Occupy London movement.” Id. at ¶ 4.
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Jennifer Bolen. Bolen is “a founder and officer of Revolution Truth,” an “organization that, for over a year, conducted a web-based campaign in defense of WikiLeaks and Bradley Manning.” Bolen Aff. ¶ 2; Compl. ¶ 4. Birgitta Jonsdottir. Jonsdottir “helped [WikiLeaks] produce a video called Collateral Murder in early 2010.” Jonsdottir Aff. ¶ 4.11 The above-described expressive activities are the same types of expressive activities that plaintiffs now claim they fear will cause them to be deemed “covered persons” under section 1021. See, e.g., O’Brien Aff. ¶ 8 (“I am now fearful of doing the type of reporting that I have done . . . .”); Wargalla Aff. ¶ 17 (“The work I’m doing makes me frightened that I could be legally detained on foreign soil by the United States government . . . .”); Jonsdottir Aff. ¶ 20 (“I . . . fear . . . that my work could be construed as giving ‘substantial support’ to terrorists and/or ‘associated forces’ . . . .”); Hedges Aff. ¶ 19 (“I believe that there is a realistic danger of my being detained indefinitely because . . . many of my writings, contacts and meetings could be considered to provide ‘substantial support’ to terrorist organizations.”). Although plaintiffs have been engaging in these expressive activities for years, and although the government has had the military detention authority described in section 1021 for years, plaintiffs have not alleged that the government has ever sought to exert that authority against them or any other individuals merely for engaging in independent journalistic activities or public advocacy.12 For this additional reason, plaintiffs have not shown that there is an “objectively reasonable likelihood” that section 1021 will be applied against them.
11 These expressive activities are indistinguishable from those allegedly engaged in by the two plaintiffs who did not submit affidavits. Compl. ¶¶ 2-3.
12 Notably, Hedges asserts that he has “been accused of providing substantial support to terrorists . . . by the US State Department,” and that his “reporting out of Gaza for the New York Times was criticized in this vein by State Department spokespeople.” Hedges Aff. ¶ 30. Yet Hedges does not allege that he has ever been detained, or even threatened with detention, under the AUMF or section 1021.
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Third, plaintiffs’ alleged fear that they will be subjected to unprecedented military detention for engaging in journalism and advocacy is not reasonable in light of the terms of section 1021 and the government’s application and articulation of its detention authority in the March 2009 Memorandum, including that such authority must be informed by the laws of war. Plaintiffs claim to fear that their expressive activities will be considered “substantial support” provided to al-Qaeda, the Taliban, or an “associated force[ ]” of alQaeda or the Taliban under section 1021. As established above, those terms (or broader ones) have been in place for years, and plaintiffs have not identified a single instance where an individual was detained for engaging in journalism or advocacy of the sort described in plaintiffs’ affidavits—notwithstanding that plaintiffs have for years engaged in such activities.
Plaintiffs also attempt to rewrite the statute by substituting “ ‘terrorist’ groups” or similar terms for “al-Qaeda, the Taliban, or associated forces.” E.g., Hedges. Aff. ¶¶ 6, 19, 30, 32, 34; O’Brien Aff. ¶ 8; Jonsdottir Aff. ¶ 20; Wargalla Aff. ¶ 16. The “associated forces” covered by section 1021, however, include only “ ‘co-belligerents’ as that term is understood under the laws of war.” See supra 5-6; Hamlily, 616 F. Supp. 2d at 74-75. “An ‘associated force,’ as [the government] interpret[s] the phrase, has two characteristics to it: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a cobelligerent with al Qaeda in hostilities against the United States or its coalition partners.” Jeh C. Johnson, “National Security Law, Lawyers, and Lawyering in the Obama Administration,” Dean’s Lecture at the Yale Law School, Feb. 22, 2012 (text available at http://www.lawfareblog.com/2012/02/jeh-johnson-speech-at-yale-law-school/). Accordingly, the term “associated forces” cannot be viewed as a mere synonym for terrorist groups—and
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it could never reach groups, such as WikiLeaks or Occupy Wall Street, that are not armed groups at all.
Here, many of the expressive activities described in plaintiffs’ affidavits and the complaint (and in the case of the non-citizen plaintiffs, all of the activities described) relate to organizations other than al-Qaeda, the Taliban, or any other armed group. Indeed, they relate to WL Central, WikiLeaks, U.S. Day of Rage, Occupy Wall Street, Occupy London, or Revolution Truth. See, e.g., O’Brien Aff. ¶¶ 3-5, 11 (WL Central, WikiLeaks, U.S. Day of Rage, Occupy Wall Street); Wargalla Aff. ¶¶ 4, 8-10 (Occupy London, WikiLeaks, Revolution Truth); Jonsdottir Aff. ¶¶ 4-6 (WikiLeaks); Compl. ¶¶ 2, 4-7 (WikiLeaks, Revolution Truth, Occupy London, U.S. Day of Rage). Actual cases involving individuals detained as part of associated forces illustrate the kinds of armed groups that can be an “associated force,” as well as the kinds of activities in relation to those armed groups that have been found to warrant detention under the AUMF. See, e.g., Khan v. Obama, 655 F.3d 20, 32-33 (D.C. Cir. 2011) (affirming detention of terrorist operative involved in plotting attacks on U.S. and coalition forces, who was part of Hezb-i-Islami Gulbuddin (“HIG”), an “associated force” under AUMF, based on evidence of joint Taliban/HIG office to recruit and raise money for attacks, alliance and collaboration between HIG and al-Qaeda and Taliban forces, HIG ties to bin Laden, and attacks staged by HIG in Afghanistan). Accordingly, plaintiffs’ fears that their expressive activities relating to these groups will result in the military detention of plaintiffs are not reasonable.
Fourth, the subjective fears of the five plaintiffs who are United States citizens— Hedges, O’Brien, Bolen, Ellsberg, and Chomsky, see Compl. ¶¶ 1-4, 7—that section 1021 will be applied to subject them to military detention, are especially ill-founded and unreasonable. As explained above, the President has made clear that U.S. citizens will not
24

Case 1:12-cv-00331-KBF Document 23 Filed 03/26/12 Page 30 of 34
be placed in indefinite military detention. Indeed, the day he signed section 1021 into law, the President stated:
Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law. NDAA Signing Statement, 2011 U.S.C.C.A.N. at S12. Thus, the case here is once again distinguishable from Amnesty Int’l. There, according to the Court, a policy that authorized the feared injurious conduct bolstered the argument that the injury was likely to occur. 638 F.3d at 137. In this case, as to U.S. citizens, the government’s policy is inconsistent with plaintiffs’ fears. Accordingly, none of the plaintiffs in this case have established that there is an “objectively reasonable likelihood” that §1021 will be applied against them.
b. Plaintiffs Have Not Established That the Costs They Have Allegedly Incurred in Connection With This Lawsuit Confer Standing
Plaintiffs’ second alleged injury—their assertion that they have incurred financial and professional costs due to their fear that section 1021 will be applied against them—also fails. Here, most of the costs that plaintiffs have allegedly incurred relate to their efforts to advocate against section 1021 and to pursue this litigation. See, e.g., O’Brien Aff. ¶ 30 (“I have spent money on phone calls and travel to discuss these issues with fellow activists and lawyers.”); Bolen Aff. ¶¶ 11-17 (alleging that Bolen has incurred financial costs due to “being a plaintiff in and coordinating a global lawsuit involving other plaintiffs,” and that Revolution Truth expects to incur financial costs “for the build out of its website . . . for the purpose of supporting the legal effort to challenge section 1021 of the NDAA”); Wargalla Aff. ¶ 18 (alleging that Wargalla has spent time “planning and working on this case,” and that she will incur costs in participating in this litigation). Such costs, however, are
25

Case 1:12-cv-00331-KBF Document 23 Filed 03/26/12 Page 31 of 34
insufficient to confer standing; if they were, any citizen would have standing to challenge any law merely by advocating against the law and initiating a lawsuit, contrary to the firmly established prohibition on standing predicated only on status as a taxpayer or citizen stating a generalized grievance. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342-48 (2006); Lujan, 504 U.S. at 573-74.
Furthermore, even under Amnesty Int’l plaintiffs cannot demonstrate standing based on their costs because, among other things, plaintiffs acted unreasonably in incurring the costs. In Amnesty Int’l, the Second Circuit found that the costs that the plaintiffs in that case had incurred, in order to avoid having communications intercepted under an allegedly unlawful statute authorizing such interception, were sufficient to confer standing. See 638 F.3d at 133-34. But the Court of Appeals reached that conclusion based on its finding (which the government disputes, see supra at 16), that the plaintiffs had a reasonable basis to believe that the statute there at issue, the FAA, would be applied in a way that would directly affect them (i.e., their own communications would be intercepted). See id. at 139. The Court noted, however, that if the possibility that a statute will be applied against a plaintiff is “remote or fanciful,” then the plaintiff had “no reasonable basis” to incur the costs and the costs will not support a finding of standing. Id. at 134 (plaintiffs “cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm.”). In short, incurring costs “cannot support standing . . . if the[ ] [costs] are caused by a fanciful, paranoid, or otherwise unreasonable fear” of a statute’s application. Id.
Here, as discussed above, plaintiffs have not established that there is an “objectively reasonable likelihood” that section 1021 will be applied against them. See supra Part C.2.a. As a result, plaintiffs have failed to show that it was reasonable for them to incur costs to
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avoid the effect of section 1021.13 Accordingly, the costs that plaintiffs allegedly incurred do not support a finding of standing. See Amnesty Int’l, 638 F.3d at 133-34.
c. Plaintiffs Have Not Established That It Was Reasonable for Them to Stop Engaging in Expressive Activities to Avoid Being Deemed “Covered Persons” Under Section 1021
Plaintiffs’ final alleged injury—their assertion that they have refrained from engaging in certain expressive activities based on their fear that, if they engage in the activities, they will be deemed “covered persons” under section 1021—fails for the same reason: plaintiffs’ fears are unreasonable. The mere fact that a plaintiff alleges that he or she has stopped engaging in expressive activities because of a subjective fear of enforcement of a statute does not confer standing on the plaintiff to challenge the statute. Alexander v. United States, 509 U.S. 544, 554 (1993); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 60 (1989); Latino Officers Ass’n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999); Bordell v. General Elec. Co., 922 F.2d 1057, 1060-61 (2d Cir. 1991). Rather, to establish standing, a plaintiff who alleges a “subjective ‘chill’ ” must also show that the statute has caused the plaintiff some other cognizable injury, such as a “specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972) (“[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm”); Amnesty Int’l, 638 F.3d at 147-48 (finding that the plaintiffs had standing because, unlike the plaintiffs in Laird, they had alleged injuries beyond a mere subjective chill). In other words, to establish standing, a plaintiff who claims that his or her expressive activities have been chilled by a statute must also demonstrate that (1) there is an
13 In addition, the nature of most of the costs allegedly incurred here (the expense of a lawsuit) are altogether different than the costs at issue in Amnesty Int’l, which involved costs that the plaintiffs there incurred due to taking specific actions to avoid or thwart the interception of their communications that the challenged statute allegedly permitted. As explained above, mere lawsuit-related expenses are insufficient to confer standing.
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objectively reasonable likelihood that, if he or she engages in the activities, the statue will be applied against him or her; or (2) he or she has suffered some other cognizable harm. See Amnesty Int’l, 638 F.3d at 149.
Here, plaintiffs do not have a reasonable fear that section 1021 will be applied against them. See supra Part C.2.a. Accordingly, plaintiffs’ allegations of subjective chill stand alone and, consequently, are insufficient to confer standing. See Laird, 408 U.S. at 13-14; Amnesty Int’l, 638 F.3d at 147-48. D. Plaintiffs Cannot Establish Irreparable Harm
As explained above, a preliminary injunction cannot issue on the mere basis of speculation or possibility, but rather the movant has the burden of demonstrating that irreparable harm is “likely in the absence of an injunction.” Winter, 555 U.S. at 21-22. Here, as discussed above, plaintiffs have not established that there is an “objectively reasonable likelihood” that section 1021 will be applied against them and, thus, that they are likely to sustain irreparable harm in the absence of an injunction. See supra Part C.2.a. E. The Balance of Equities Requires That the Preliminary Injunction Be Denied
Nor have plaintiffs demonstrated that a balancing of the equities supports their requested injunction. Plaintiffs offer no argument with respect to such balancing of the equities other than to assert that because the government does not intend to apply section 1021 to U.S. citizens, then it will suffer no harm from an injunction against enforcement of the statute. Pls. Br. 9. This approach, however, turns the appropriate standard on its head, for the Supreme Court has explained that “[i]t is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue . . . .” Monsanto, 130 S. Ct. at 2757 (emphasis in original). For all the reasons explained above, plaintiffs
28

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have not established that there is an “objectively reasonable likelihood” that section 1021

will be applied against them—indeed, the citizen plaintiffs argue the opposite—and, thus,

that any appropriate equity supports the injunction they seek. See supra Part C.2.a. On the

other hand, there is a significant public interest in not enjoining a duly enacted and

presumptively constitutional statute concerning a military detention standard that has

been upheld by other courts. See supra Part C.1.

Conclusion

The motion for a preliminary injunction should be denied.

Dated:

New York, New York March 26, 2012

Respectfully submitted,
PREET BHARARA United States Attorney for the Southern District of New York

By: /s/ Benjamin H. Torrance BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov christopher.harwood@usdoj.gov

29

 
 Case 1:12-cv-00331-KBF Document 63 Filed 09/13/12 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- x CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,
Plaintiffs,

12 Civ. 331 (KBF) NOTICE OF APPEAL

v.

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE; JOHN McCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH McCONNELL, ERIC CANTOR, as representatives of the UNITED STATES OF AMERICA,

Defendants. -------------------------------------------------------------- x

Notice is hereby given that defendants Barack Obama, individually and as representative of the United States of America; and Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense, hereby appeal to the United States Court of Appeals for the Second Circuit from the Opinion and Order entered on the docket on September 12, 2012 (the “September 12 Order”), granting plaintiffs’ application for a permanent injunction.

Case 1:12-cv-00331-KBF Document 63 Filed 09/13/12 Page 2 of 2

Dated: New York, New York September 13, 2012

Respectfully submitted,
PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants

By:

/s/ Christopher B. Harwood

BENJAMIN H. TORRANCE

CHRISTOPHER B. HARWOOD

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Telephone: 212.637.2703 / 2728

Fax: 212.637.2702 / 2786

E-mail: benjamin.torrance@usdoj.gov

christopher.harwood@usdoj.gov

TO: Clerk of Court United States Court of Appeals for the Second Circuit United States Courthouse 500 Pearl Street New York, New York 10007

Carl Mayer, Esq. Mayer Law Group LLC Attorney for Plaintiffs 1040 Sixth Avenue, Suite 2400 New York, New York 10018

2

 
 CCasaes:e112:-1321-7c6v-00D33o1c-uKmBeFnt:D8o1cumPeangte6:91 Fi1le0d/0130/2/0031/212 P7a3g7e6512of 3 3

S.D.N.Y.-N.Y.C. 12-cv-331
Forrest, J.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day of October, two thousand twelve.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.
- - - - - - - - - - - - - - - - - - - -x
CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O'BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,
Plaintiffs-Appellees,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: _1_0_/_0_3/_2_0_1_2_____

-v.-
BARACK OBAMA, individually and as representative of the United States of America, LEON PANETTA, individually and in his capacity as the executive and representative of the Department of Defense,
Defendants-Appellants.

12-3176 (L) 12-3644 (CON)

- - - - - - - - - - - - - - - - - - - -x

In this case, the government appeals from the district

court's September 12, 2012, grant of a permanent injunction

barring the government from enforcing an act of Congress,

§ 1021(b)(2) of the National Defense Authorization Act for Fiscal

Year 2012, Pub. L. 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the

"NDAA"). The government moves for a stay of the district court's

order pending appeal. On September 17, 2012, an applications

CERTIFIED COPY ISSUED ON 10/03/2012

CCasaes:e112:-1321-7c6v-00D33o1c-uKmBeFnt:D8o1cumPeangte6:92 Fi1le0d/0130/2/0031/212 P7a3g7e6522of 3 3
judge granted a temporary stay pending a decision on the motion by a motions panel. See Fed. R. App. P. 8(a)(2)(D). We are that motions panel.
For the following reasons, we conclude that the public interest weighs in favor of granting the government's motion for a stay. First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, "based on their stated activities," plaintiffs, "journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military." (Mot. for Stay 1). Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States. See NDAA § 1021(e) ("Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."). Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force, Pub L. 107-40, 115 Stat. 224 (Sept. 18, 2011). In light of these and other factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that the interests of justice would best be served by granting a stay of the district court's permanent injunction.
-2-

CCasaes:e112:-1321-7c6v-00D33o1c-uKmBeFnt:D8o1cumPeangte6:93 Fi1le0d/0130/2/0031/212 P7a3g7e6532of 3 3
Upon due consideration, it is hereby ORDERED that the government's motion is GRANTED. The district court's order dated September 12, 2012, is stayed pending a decision on the appeal by a merits panel.
The parties are directed to file their briefs on the following expedited schedule: Appellants are to file their brief on or before November 2, 2012; Appellees' brief in opposition shall be filed on or before December 3, 2012. Appellants shall file any reply brief by December 13, 2012. The Clerk of the Court is directed to place the case on the argument calendar for the first available week after the filing of appellees' opposition brief.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK
-3-

 
 Case 1:12-cv-00331-KBF Document 56 Filed 08/06/12 Page 1 of 2

UNITED STATES DISTRlCT COURT SOUTHERN DISTRlCT OF NEW YORK --------------------------------------------------------------)C CHRlSTOPHER HEDGES, DANIEL ELLS BERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O'BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRlGITTA JONSDOTTIR M.P.,
Plaintiffs,

12 Civ. 331 (KBF) NOTICE OF APPEAL

v.

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERlCA; LEON PANETTA, individually and in: his capacity as the e)Cecutive and representative of the DEPARTMENT OF DEFENSE; JOHN McCAIN; JOHN BOEHNER; HARRY REID; NANCY PELOSI; MITCH McCONNELL; ERIC CANTOR, as representatives of the UNITED STATES OF AMERlCA,

Defendants.
-------------~------------------------------------------------)C

Notice is hereby given that defendants Barack Obama, individually and as representative of the United States of America; and Leon Panetta, individually and in his capacity as the e)Cecutive and representative of the Department of Defense, hereby ?-ppeal to the United States Court of Appeals for the Second Circuit from the Opinion and Order entered on the docket on May 16,2012 (the "May 16 Order"), granting a preliminary injullction; the Memorandum Opinion and Order entered on the docket on June 6, 2012, addressing the scope of the May 16 Order; and the Order entered on the docket on June 8, 2012, denying as moot the defendants' motion for reconsideration of the May 16 Order.

Case 1:12-cv-00331-KBF Document 56 Filed 08/06/12 Page 2 of 2

Dated: New York, New York August 6, 2012

Respectfully submitted,
PREETBHARARA United States Attorney for the Southern District of New York
A~
By: BENJAMIN H. TORRANCE Assistant United States Attorney 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov

TO: Clerk of Court United States Court of Appeals for the Second Circuit United States Courthouse 500 Pearl Street New York, New York 10007

Carl Mayer, Esq. Mayer Law Group LLC Attorney for Plaintiffs 1040 Sixth Avenue, Suite 2400 New York, New York 10018

2 .

 
 CasCea:s1e21-3:1127-6cv-0D03o3cu1m-KeBnFt: 2D4o7c-1umePnat g7e4: 1Filed0077/1/177/2/10313 Pag9e9214o4f361 1

UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

N.Y.S.D. Case # 12-cv-0331(KBF)

______________________________________________

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day

of July, two thousand and thirteen.

USDC SDNY

Before: AMALYA L. KEARSE, RAYMOND J. LOHIER, JR., Circuit Judges, LEWIS A. KAPLAN, District Judge.*

DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: J_u_ly__1_7_, _2_0_13_____

_____________________________________________________

Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, US Day of Rage, Kai Wargalla, Hon. Brigitta Jonsdottir M.P.,

Plaintiffs - Appellees, v.

JUDGMENT Docket Nos. 12-3176 (L)
12-3644 (Con)

Barack Obama, individually and as representative of the United States of America, Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense,
Defendants - Appellants,
John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, Eric Cantor, as representatives of the United States of America,
Defendants. _____________________________________________________
The appeal in the above captioned case from a decision of the United States District Court for the Southern District of New York was argued on the district court's record and the parties' briefs. Upon consideration thereof,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the decision of the district court is VACATED and the case is REMANDED in accordance with the opinion of this court.
For The Court:
Catherine O’Hagan Wolfe, Clerk of Court

___________________________________

*

The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New

York, sitting by designation.
CERTIFIED COPY ISSUED ON 07/17/2013

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12-3176 (L) Hedges v. Obama

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT -----
August Term, 2012

(Argued: February 6, 2013

Decided: July 17, 2013)

Docket Nos. 12-3176 (Lead), 12-3644 (Con)

-----

CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BIRGITTA JONSDOTTIR M.P.,

Plaintiffs-Appellees,

v.

BARACK OBAMA, individually and as a representative of the UNITED STATES OF AMERICA, LEON PANETTA, individually and as a representative of the DEPARTMENT OF DEFENSE,

Defendants-Appellants,

JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC CANTOR, as representatives of the UNITED STATES OF AMERICA,

Defendants.*

-----

B e f o r e :

KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.**

*
The Clerk of the Court is directed to amend the official caption as shown above.
**
The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation.

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Defendants-appellants seek review of a district court decision permanently enjoining
enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground
that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on
the government’s authority to detain the American citizen plaintiffs and that those plaintiffs
therefore lack Article III standing. Moreover, the non-citizen plaintiffs have failed to establish a
sufficient basis to fear detention under the statute to give them standing to seek preenforcement
review. VACATED AND REMANDED.
ROBERT M. LOEB, Appellate Staff Civil Division, Department of Justice, Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Washington, DC; Beth S. Brinkmann, Deputy Assistant Attorney General, Washington, DC; August E. Flentje, Civil Division, Department of Justice, Washington, DC; Jeh Charles Johnson, General Counsel, Department of Defense, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY; Benjamin H. Torrance, Christopher B. Harwood, Assistant United States Attorneys, New York, NY, on the brief) Attorneys for Defendants-Appellants
CARL J. MAYER, Mayer Law Group LLC, New York, NY; BRUCE I. AFRAN, ESQ., Princeton, NJ Attorneys for Plaintiffs-Appellees
DAVID B. RIVKIN, JR. (Lee A. Casey, Andrew M. Grossman, on the brief ), BakerHostetler LLP, Washington, DC Attorneys for Amici Curiae Senators John McCain, Li ndsey Graham, and Kelly Ayotte
Kent A. Yalowitz, Arnold & Porter LLP, New York, NY; L. Charles Landgraf, Arpan A. Sura, Arnold & Porter LLP, Washington, DC Attorneys for Amicus Curiae Bill of Rights Defense Committee
Matthew J. MacLean, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC Attorney for Amici Curiae Center for Ntaional Security Studies and The Constitution Project
Reem Salahi, Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA Attorney for Amicus Curiae Government Accountability Project
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3 Eric K. Yamamoto, University of Hawaii School of Law, Honolulu, HI; Lorraine K. Bannai, Anjana Malhotra, Seattle University School of Law, Seattle, WA Attorneys for Amici Curiae Karen and Ken Korematsu, et al. John W. Whitehead, Douglas R. McKusick, Lina M. Ragep, The Rutherford Institute, Charlottesville, VA; Anand Agneshwar, Arnold & Porter LLP, New York, NY Attorneys for Amicus Curiae The Rutherford Institute William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, Robert J. Olson, William J. Olson, P.C., Vienna, VA; Steven J. Harfenist, Friedman Harfenist Kraut & Perlstein LLP, Lake Success, NY; Gary G. Kreep, U.S. Justice Foundation, Ramona, CA Attorneys for Amici Curiae U.S. Congressman Steve Stockman, et al.
LEWIS A. KAPLAN, District Judge. On September 11, 2001, the al-Qaeda terrorist network attacked multiple targets in
the United States with hijacked commercial airliners, killing approximately 3,000 people. A week later, Congress enacted the Authorization for Use of Military Force (the “AUMF”),1 which
empowered President Bush to use all necessary and appropriate force against those nations,
organizations, and persons responsible for the attacks and those who harbored such organizations
or persons.
Nearly twelve years later, the hostilities continue. Presidents Bush and Obama have
asserted the right to place certain individuals in military detention, without trial, in furtherance of
their authorized use of force. Substantial litigation has ensued over the scope of presidential military
detention authority—that is, whom did Congress authorize the President to detain when it passed
the AUMF?

1
P.L. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541 note.

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4 On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012.2 Section 1021 of that statute, which fits on a single page, is Congress’ first—and, to date, only—foray into providing further clarity on that question. Of particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces. The controversy over Section 1021 was immediate. The government contends that Section 1021 simply reaffirms authority that the government already had under the AUMF, suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They are journalists and activists who allegedly fear that the government may construe their work as having substantially supported al-Qaeda, the Taliban, or associated forces. They contend that Section 1021 is a dramatic expansion of the President’s military detention authority, supposedly authorizing the military, for the first time, to detain American citizens on American soil. As one group of amici has noted, “[r]arely has a short statute been subject to more radically different interpretations than Section 1021.”3 Plaintiffs brought this action shortly after the statute was enacted. They sought an injunction barring enforcement of Section 1021 and a declaration that it violates, among other things, their rights under the First and Fifth Amendments to the United States Constitution. The district court agreed and entered a permanent injunction restraining detention pursuant to Section 1021(b)(2). It is that decision that we review here.

2
P.L. 112-81, 125 Stat. 1298 (2011) (“2012 NDAA”).
3
Stockman Amici Br. 3.

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5 We conclude that plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction. The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021. Accordingly, we do not address the merits of plaintiffs’ constitutional claims.
I. Background Prior to the passage of Section 1021, a number of federal judges reached divergent
conclusions about the scope of AUMF detention authority. To appreciate what Congress did and did not resolve in passing Section 1021, one must understand the nature of this debate. We thus describe the history of the litigation over AUMF detention authority in some detail.
A. The AUMF The AUMF, enacted on September 18, 2001, provides: “[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.”4
President Bush ordered the United States military to Afghanistan to subdue al-Qaeda and the Taliban
4
AUMF § 2(a).
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6 regime known to support it. Soon thereafter, President Bush began to hold certain individuals in military detention as “enemy combatants,” many of them at the United States Naval Base in Guantánamo Bay, Cuba.5
B. The Citizen and Domestic Capture Cases: Hamdi, Padilla, and al-Marri As one scholar has noted, the litigation regarding the scope of executive detention
authority may be divided into two “waves”: (1) litigation from 2002 to 2008 regarding three individuals who were held as enemy combatants in military detention within the territorial United States, and (2) litigation from 2008 to the present concerning Guantánamo detainees.6 The first category comprises the cases of Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri.
1. Hamdi Hamdi, then an American citizen, was in Afghanistan in the fall of 2001, where he allegedly was armed and affiliated with a Taliban military unit that had provided him weapons
5
See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) (military order asserting authority, under AUMF and Article II of United States Constitution, to detain and try by military tribunal non-citizens who, there was reason to believe, were members of al-Qaeda, had been involved in preparing terrorist attacks directed against United States interests, or had harbored individuals who had done so); see generally Gherebi v. Obama, 609 F. Supp.2d 43, 46–47 (D.D.C. 2009); Rasul v. Bush, 542 U.S. 466, 471 (2004) (discussing the military detention of over six hundred non-citizens at Guantánamo).
6
See Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REV. 769, 805 (2011).
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7 training.7 He was apprehended when that unit surrendered after a battle.8 After entering military detention within the United States, a habeas corpus petition was filed on his behalf, alleging inter alia that his detention violated the Non-Detention Act of 1971, which provides, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”9
Although the Supreme Court in June 2004 remanded Hamdi’s case to allow him to challenge his status as an enemy combatant, it upheld the government’s authority to detain a properly designated enemy combatant in Hamdi v. Rumsfeld,10 when “five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan ‘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’” by the AUMF.11
In so doing, a four Justice plurality12 noted that “[t]he legal category of enemy combatant has not been elaborated upon in great detail” and that “[t]he permissible bounds of the
7
Hamdi v. Rumsfeld, 542 U.S. 507, 513 (2004) (plurality opinion).
8
Id.
9
18 U.S.C. § 4001(a).
10
542 U.S. 507.
11
Boumediene v. Bush, 553 U.S. 723, 733 (2008) (discussing Hamdi).
12
Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer.
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8 category will be defined by the lower courts as subsequent cases are presented to them.”13 It nevertheless concluded that the AUMF “clearly and unmistakably” authorized detaining at least those who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.”14 Thus, the plurality reasoned that, if the government’s allegations were correct, Hamdi’s detention did not violate the Non-Detention Act because the AUMF itself constituted the requisite “Act of Congress.”15 To the extent Hamdi identified constitutional concerns with the military detention of American citizens generally, the plurality concluded that there was “no bar to this Nation’s holding one of its own citizens as an enemy combatant.”16 Nevertheless, the plurality suggested that this detention authority was not boundless and that detention pursuant to it could not be indefinite. Rather, “based on longstanding law-of-war principles,” the plurality construed the AUMF “to include the authority to detain for the duration of the relevant conflict.”17 Justice Thomas wrote separately and provided a fifth vote for upholding authority to detain Hamdi under the AUMF, but rejected any limitations, derived from the laws of war, on the duration of the detention authority.18
13
Hamdi, 542 U.S. at 522 n.1 (plurality opinion).
14
Id. at 516, 519 (internal quotation marks omitted).
15
Id. at 517. The plurality did not reach the alternative argument that the President’s Article II powers as Commander-in-Chief authorized the detention. Id. at 516–17.
16
Id. at 519 (citing Ex Parte Quirin, 317 U.S. 1, 37–38 (1942)).
17
Id. at 521.
18
Id. at 587–88 (Thomas, J., dissenting).
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9 The four remaining Justices dissented from the conclusion that Hamdi could be detained, reasoning inter alia that the AUMF did not constitute sufficiently clear authorization of his detention to satisfy the Non-Detention Act.19 Justice Scalia, joined by Justice Stevens, would have held further that the government was without constitutional power to detain Hamdi militarily absent congressional suspension of the writ of habeas corpus.20
2. Padilla Padilla, also an American citizen, was apprehended at Chicago’s O’Hare International Airport in May 2002 after allegedly receiving training from al-Qaeda in Afghanistan, becoming involved in a plan to detonate a “dirty bomb” here, and returning to the United States to conduct reconnaissance and facilitate attacks by al-Qaeda.21 In December 2003—prior to Hamdi—this Court held that because Padilla was an American citizen arrested on domestic soil away from a zone of combat, his military detention violated the Non-Detention Act and could not be justified by the President’s Article II war powers.22 The Supreme Court reversed our decision on procedural grounds on the day it decided Hamdi but
19
Id. at 547–51 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment) (reasoning further that while AUMF might provide clear authority to detain Hamdi in accordance with laws of war, government was not doing so); id. at 574 (Scalia, J., dissenting).
20
Id. at 571–75 (Scalia, J., dissenting) (citing Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2 (1866)).
21
Padilla v. Rumsfeld, 352 F.3d 695, 699–701 (2d Cir. 2003), rev’d on jurisdictional grounds, 542 U.S. 426 (2004).
22
Id. at 712, 722.
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10 did not reach the lawfulness of Padilla’s detention.23
Following the Supreme Court’s reversal of our Padilla ruling, a new habeas petition was filed on his behalf. The Fourth Circuit in 2005 concluded that Padilla was lawfully detained under the reasoning of Hamdi because it became known that he had been “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States” while in Afghanistan prior to his return to the United States.24 Although Padilla had been apprehended in the United States, the Fourth Circuit concluded that Hamdi had not relied on the place of capture.25 The government subsequently indicted Padilla and transferred him to civilian criminal custody. His petition for certiorari was denied.26
3. Al-Marri The Fourth Circuit again considered the scope of military detention authority in the case of al-Marri, a Qatari national apprehended in the United States while he was lawfully residing here.27 Al-Marri allegedly was a “sleeper agent” who had met Osama Bin Laden, was trained by al-
23
Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). Justice Stevens (joined by Justices Souter, Ginsburg, and Breyer) dissented and indicated that he would have held, consistent with our decision, that Padilla’s detention violated the Non-Detention Act. Id. at 464 n.8.
24
Padilla v. Hanft, 423 F.3d 386, 390 (4th Cir. 2005) (internal quotation marks omitted).
25
Id. at 393–94.
26
Padilla v. Hanft, 547 U.S. 1062 (2006).
27
Al-Marri v. Wright, 487 F.3d 160, 164, 171 (4th Cir. 2007), rev’d sub nom. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated sub nom. AlMarri v. Spagone, 555 U.S. 1220 (2009).
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11 Qaeda, and had been sent to the United States to facilitate terrorist activities here.28 Unlike Padilla and Hamdi, however, the government did not allege that al-Marri had stood alongside armed forces hostile to the United States or had been present in a combat zone during hostilities.29
A splintered en banc Fourth Circuit concluded in July 2008 that the executive had authority to detain al-Marri as an enemy combatant, assuming that the government’s allegations were true.30 While each offered a different definition of those subject to detention, the three principal opinions which voted in favor of this general proposition gave significant weight to the fact that, if the government’s allegations were correct, al-Marri was little different from the 9/11 hijackers themselves, short of succeeding in the plot.31 The judges who took the contrary view concluded that al-Marri was a civilian and therefore could not properly be detained militarily under
28
Id. at 165–66.
29
Id. at 183.
30
Al-Marri, 534 F.3d at 216.
31
See id. at 259–60 (Traxler, J., concurring in the judgment); id. at 287 (Williams, C.J., concurring in part and dissenting in part); id. at 297 (Wilkinson, J., concurring in part and dissenting in part). Judge Wilkinson proposed that the AUMF authorized detaining those who are (1) an “enemy,” as a member of an organization against whom Congress has authorized the use of military force, and (2) a “combatant,” as someone who knowingly acts to inflict harm in order to further the military goals of that organization. Id. at 323–24. Judge Williams focused instead on those who (1) “attempt[] or engage[] in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force.” Id. at 285.
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12 traditional principles of the laws of war.32 The key question for them was whether he had affiliated “with the military arm of an enemy nation.”33
The Supreme Court granted certiorari,34 but then vacated the decision below as moot
when the newly elected Obama administration indicted al-Marri and sought to transfer him to civilian criminal custody.35
C. The Guantánamo Cases Meanwhile, Congress and the courts were engaging in a dialogue over a more basic
question regarding the Guantánamo detainees—whether they had any right to petition for habeas corpus at all.36 This culminated in June 2008 with Boumediene v. Bush , which held that the Guantánamo detainees had constitutional habeas rights and that the procedures that Congress and
32
See generally id. at 230–31 (Motz, J., concurring in the judgment); but see id. at 314–22 (Wilkinson, J., concurring in part and dissenting in part) (concluding that law-of-war principles must account for recent developments in how warfare is conducted).
33
Id. at 231 (emphasis added).
34
Al-Marri v. Pucciarelli, 555 U.S. 1066 (2008).
35
Al-Marri v. Spagone, 555 U.S. 1220.
36
See Rasul , 542 U.S. at 484 (holding that statutory habeas jurisdiction extended to Guantánamo); Detainee Treatment Act of 2005, P.L. 109-148, 119 Stat. 2680, Title X (“DTA”), § 1005(e)(1) (purporting to strip statutory habeas jurisdiction for Guantánamo detainees); Hamdan v. Rumsfeld , 548 U.S. 557, 584 (2006) (concluding that Section 1005(e)(1) of the DTA did not apply to pending cases); Military Commissions Act of 2006, P.L. 109-366, 120 Stat. 2600 (“2006 MCA”), § 7 (stripping habeas jurisdiction from future and pending cases); Boumediene, 553 U.S. at 792 (concluding that Section 7 of the 2006 MCA is unconstitutional).
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13 the administration had provided were not an adequate substitute.37
1. Activity Pre-Boumediene In July 2004, shortly after Hamdi, the government created Combatant Status Review Tribunals (“CSRTs”) to determine whether the Guantánamo detainees were enemy combatants, which the Department of Defense then defined to mean “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”38 Congress did not endorse this definition or otherwise speak directly to the scope of detention authority during this period. It codified the CSRT process in the Detainee Treatment Act of 2005, but that statute did not explain who could be detained.39 The Military Commissions Act of 2006 defined the concept of an “unlawful enemy combatant,” but only with respect to eligibility for trial by the military commissions created by that act, not to AUMF detention authority.40
37
553 U.S. at 771, 792.
38
Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal § a (July 7, 2004), available at http://www.defense.gov/news/Jul2004/d20040707review.pdf; see Hamdan, 548 U.S. at 571 n.1 (citing this definition).
39
See DTA § 1005(e)(2)(C)(ii) (requiring only that D.C. Circuit ensure that Department of Defense’s chosen CSRT standards comply with Constitution and federal law, as applicable).
40
See 2006 MCA § 3(a) (defining such individuals to include, inter alia, anyone who has “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces)”); see also Military
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14 2. Judicial Consideration post-Boumediene Absent clarity from Congress, Boumediene opened the gates to judicial evaluation of the scope of executive detention authority for Guantánamo detainees. On remand from the
Supreme Court, Judge Leon of the D.C. district court in the fall of 2008 declined to follow any of
the approaches set forth in Al-Marri and instead adopted the government’s prior 2004 CSRT definition, concluding that it was consistent with the AUMF and the Constitution.41
a. March 2009 Memo On March 13, 2009, the new administration, in a memorandum to the D.C. district court (the “March 2009 Memo” or the “Memo”),42 “refin[ed]” the government’s position regarding its detention authority for “those persons who are now being held at Guantánamo Bay.”43 Relying
on the Hamdi plurality opinion, the Memo asserted that the scope of executive detention authority “is necessarily informed by principles of the laws of war,” as these principles “inform the
Commissions Act of 2009 (“2009 MCA”), P.L. 111-84, 123 Stat. 2190, Title XVIII, § 1802 (revising 2006 MCA definition somewhat and renaming the relevant term “unprivileged enemy belligerent”); cf. Al-Marri, 534 F.3d at 328 n.9 (Wilkinson, J., concurring in part and dissenting in part) (observing that 2006 MCA definition was “of limited assistance and relevance” as it does “not specifically address the scope of the President’s detention power under the AUMF”).
41
Boumediene v. Bush, 583 F. Supp.2d 133, 134–35 (D.D.C. 2008).
42
Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. Mar 13, 2009).
43
The March 2009 Memo made clear that the position set forth “is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay” and is “not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.” Id. at 2.
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15 understanding of what is ‘necessary and appropriate’” under the AUMF.44 With this predicate, the
Memo declared that the government, in addition to being able to detain individuals themselves
responsible for the attacks, had 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.”45
It stated further that “[i]t is neither possible nor advisable” to identify what these terms mean in the abstract.46 Nevertheless, the March 2009 Memo said that the inquiry with regard to whether an
individual is “part of” the enumerated forces may depend on either “a formal or functional analysis of the individual’s role.”47 With regard to “associated forces,” it observed that “many different
private armed groups” fought alongside al-Qaeda and the Taliban in Afghanistan and therefore
declared the authority to detain individuals who “in analogous circumstances in a traditional international armed conflict . . . would be detainable under principles of co-belligerency.”48 Finally,
it said that the term “substantial support” does not justify detaining “those who provide unwitting
44
Id. at 1, 3. The Memo recognized that the laws of war were “less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.” Id. at 1. Accordingly, it asserted that principles from traditional “international armed conflicts between the armed forces of nation states” must inform the AUMF authority. Id.
45
Id. at 2. The Memo no longer used the term “enemy combatant.”
46
Id.
47
Id. at 6.
48
Id. at 7.
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16 or insignificant support” to the identified organizations.49 But, “[u]nder a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself.”50 Moreover, “[s]uch activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.”51 In any event, the March 2009 Memo took the view that “the AUMF is not limited to persons captured on the battlefields of Afghanistan” nor to those “directly participating in hostilities.”52
b. District Court Reaction District of Columbia district court reactions to the March 2009 Memo were mixed. Judges uniformly accepted the government’s “part of” test but expressed considerable skepticism about “substantial support.”53 One opinion adopted the government’s position, but only by reading “substantial support” narrowly to permit detention of those “effectively part of the armed forces of
49
Id. at 2.
50
Id. at 7.
51
Id. (citing Boumediene v. Bush, 579 F. Supp.2d 191, 198 (D.D.C. 2008) (finding petitioner properly detained under “support” prong of adopted 2004 CSRT definition)).
52
Id. at 7, 8 (internal quotation marks omitted).
53
Even judges otherwise supportive of the government’s position previously had not been unanimous that being part of al-Qaeda was enough. See Al-Marri , 534 F.3d at 325 (Wilkinson, J., concurring in part and dissenting in part) (opining that “membership, without more” is insufficient).
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17 the enemy.”54 In what became the majority view in the D.C. district court, another went one step further and rejected the government’s reliance on “substantial support” and “directly support[ing] hostilities” altogether, concluding that detention on such grounds was unsupported either by domestic law or the laws of war.55
c. Al-Bihani These decisions set the stage for the D.C. Circuit’s central ruling on the scope of AUMF detention authority, Al-Bihani v. Obama.56 Petitioner Al-Bihani carried a weapon and was a cook for a unit that fought alongside the Taliban.57 He contended that his detention was inconsistent with the laws of war and thus not authorized as “necessary and appropriate” under the AUMF.58 The majority opinion rejected the notion that the laws of war limit the government’s
54
Gherebi, 609 F. Supp.2d at 69 (Walton, J.) (internal quotation marks and alterations omitted); accord Mohammed v. Obama, 704 F. Supp.2d 1, 4 (D.D.C. 2009) (Kessler, J.).
55
Hamlily v. Obama, 616 F. Supp.2d 63, 75–77 (D.D.C. 2009) (Bates, J.) (internal quotation marks omitted); accord Mattan v. Obama, 618 F. Supp.2d 24, 26 (D.D.C. 2009) (Lamberth, C. J.); Anam, 653 F. Supp.2d 62, 64 (D.D.C. 2009) (Hogan, J.); Al Mutairi v.United States, 644 F. Supp.2d 78, 85 (D.D.C. 2009) (Kollar-Kotelly, J.); Hatim v. Obama, 677 F. Supp.2d 1, 7 (D.D.C. 2009) (Urbina, J.), vacated sub nom. Hatim v. Gates, 632 F.3d 720 (D.C. Cir. 2011); Awad v. Obama, 646 F. Supp.2d 20, 23 (D.D.C. 2009) (Robertson, J.).
56
590 F.3d 866 (D.C. Cir. 2010).
57
Id. at 869.
58
Id. at 870–71.
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18 AUMF authority at all—even though the government agreed with Al-Bihani on that point.59 Taking
the view that the “the government’s detention authority logically covers a category of persons no
narrower than is covered by its military commission authority,” the majority concluded that Al-
Bihani was properly detained because he fell within the latter standard, which Congress had set forth
in the Military Commissions Acts of 2006 and 2009.60 That is, the majority held that AUMF
detention authority “includes those who are part of forces associated with Al Qaeda or the Taliban
or those who purposefully and materially support such forces in hostilities against U.S. Coalition
partners.”61
While focusing on this “purposeful and material support” standard, the majority’s
discussion seemed generally supportive of the government’s “substantial support” standard as well.
The majority stated that Al-Bihani was detained lawfully under either the CSRT definition or the
59
Id. at 871 (“There is no indication . . . that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF.”); see id. at 885 (Williams, J., concurring in part and concurring in the judgment) (observing that majority’s discussion on this point “goes well beyond what even the government has argued in this case” (emphasis in original)); Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (opinion by all active judges except those on Al-Bihani panel denying en banc review but noting that panel’s discussion of laws of war was “not necessary to the disposition of the merits”).
60
Al-Bihani, 590 F.3d at 872; but seeStephen I. Vladeck, The D.C. Circuit AfterBoumediene, 41 SETON HALL L. REV. 1451, 1460 (2011) (questioning this logical step); Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts & Sirine Shebaya, The Power to Detain: Detention of Terrorism Suspects After 9/11 , 38 YALE J. INT’L L. 123, 143–44 (2013) (similar); Sophia Brill, Comment, The National Security Court We Already Have, 28 YALE L. & POL’Y REV. 525, 533 n.42 (2010) (similar); H.R. Rep. No. 111-288, at 862–63 (2009) (2009 MCA committee report indicating that definition “is not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of war”).
61
590 F.3d at 872 (citing 2006 and 2009 MCAs).
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19 government’s modified “substantial support” definition.62 Moreover, it later noted that Al-Bihani “both [was] part of and [had] substantially supported enemy forces” and, without exploring the bounds of these concepts, “recognize[d] that both prongs are valid criteria that are independently sufficient to satisfy the [detention] standard.”63
d. Subsequent D.C. Circuit Case Law Further decisions by the D.C. Circuit followed the principle that the AUMF authorized detention not only of those who are “part of” al-Qaeda and the Taliban but also those who “purposefully and materially support” such forces.64 Notably, however, the D.C. Circuit has not had occasion to develop further the contours of the “support” prong, apparently because the government appears rarely to rely on it. Rather, in numerous cases before the D.C. Circuit since Al-Bihani, the government has relied on a theory that the detainee was “part of” al-Qaeda, the Taliban, or
62
Id.
63
Id. at 873–74.
64
See Hatim, 632 F.3d at 721 (vacating grant of habeas because district court did not consider whether petitioner had “purposefully and materially supported” enemy forces); see alsoGul v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011) (reading Al-Bihani to set forth “purposeful and material support” standard); Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011) (same); Al-Madhwani v. Obama , 642 F.3d 1071, 1073–74 (D.C. Cir. 2011) (same); Uthman v. Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011) (same); Salahi v. Obama, 625 F.3d 745, 747 (D.C. Cir. 2010) (same). On the other hand, the D.C. Circuit does not appear to have read Al-Bihani as adopting a “substantial support” standard. But see Al Alwi v. Obama, 653 F.3d 11, 15–16 (D.C. Cir. 2011) (citing to “substantial support” standard where detainee expressly did not challenge its lawfulness); Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010) (same).
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20 associated forces.65 In fact, in Bensayah v. Obama ,66 a case argued before but decided after AlBihani, the government specifically foreswore reliance on any support justification for detention.67 It did so despite the facts that (1) support was the sole ground on which the district court had relied
in finding Bensayah detainable, and (2) the March 2009 Memo had cited that district court decision as its one example of when “substantial support” might apply.68 Moreover, the government dropped reliance on a “purposeful and material support” theory in Salahi v. Obama.69
65
See, e.g., Awad v. Obama, 608 F.3d 1, 9 (D.C. Cir. 2010); Al-Adahi v. Obama, 613 F.3d 1102, 1106 (D.C. Cir. 2010); Barhoumi, 609 F.3d at 425; Al Odah v. Obama, 611 F.3d 8, 17 (D.C. Cir. 2010); Uthman, 637 F.3d at 402; Khan v. Obama, 655 F.3d 20, 33 (D.C. Cir. 2011); Al Alwi, 653 F.3d at 17; Esmail v. Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011); Suleiman v. Obama, 670 F.3d 1311, 1313 (D.C. Cir. 2012); Khairkhwa v. Obama, 703 F.3d 547, 550 (D.C. Cir. 2012). This may be explained by the “functional rather than . . . formal” approach the D.C. Circuit has taken with the “part of” inquiry, which focuses “upon the actions of the individual in relation to the organization” to determine whether “a particular individual was sufficiently involved with the organization to be deemed part of it.” Salahi, 625 F.3d at 751–52 (internal quotation marks and alterations omitted).
66
610 F.3d 718 (D.C. Cir. 2010).
67
Id. at 722 (noting that government has “abandoned its argument that Bensayah is being detained lawfully because of the support he rendered to al Qaeda”); cf. Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics , N.Y. TIMES, Mar. 29, 2010, at A1 (reporting on internal dissension within Obama administration regarding whether government should argue that support justified Bensayah’s detention).
68
See Bensayah, 610 F.3d at 722; March 2009 Memo at 7.
69
625 F.3d at 747.
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21
D. The 2012 NDAA
It was in this context that the 2012 NDAA was enacted on December 31, 2011.
Section 1021 of that statute provides in relevant part:
“SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General.-- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons.-- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) 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.
(c) Disposition Under 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 the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
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22
(d) Construction.-- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Authorities.-- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”70
But it is useful to set out the history of this provision, as it may shed light on its proper construction.
An initial version of this section was reported by the House Armed Services
Committee in May 2011.71 It affirmed that the United States “is engaged in an armed conflict with
al-Qaeda, the Taliban, and associated forces” and that the President has the authority to use force
against those who (A) are “part of, or are substantially supporting, al-Qaeda, the Taliban, or
associated forces” or (B) “have engaged in hostilities or have directly supported hostilities in aid of
a nation, organization, or person described in subparagraph (A).”72 Such use of force, the bill
provided, includes the power to detain such persons until the termination of hostilities.73 The
committee report stated the following about the provision:
“The committee notes that as the United States nears the tenth anniversary of the attacks on September 11, 2001, the terrorist threat has evolved as a result of intense military and diplomatic pressure from the United States and its coalition partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave threat to U.S. national security. The [AUMF] necessarily includes the authority to address the continuing and evolving threat posed by these groups.
70
2012 NDAA § 1021.
71
H.R. 1540, 112th Cong. § 1034 (as reported by H. Comm. on Armed Services, May 17, 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf.
72
Id.
73
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23
“The committee supports the Executive Branch’s interpretation of the [AUMF], as it was described in [the March 2009 Memo]. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the [AUMF], the Executive Branch’s March 13, 2009, interpretation remains consistent with the scope of the authorities provided by Congress.”74
The Senate Armed Services Committee developed a different version of this section,
Section 1031 of S. 1253, which was reported out of committee on June 22, 2011.75 Subsections (a)-
(c) of that section were similar to subsections (a)-(c) of the later enacted Section 1021.76 Section
1031 of S. 1253, however, included a “limitation” stating that the detention authority “does not
extend to the detention of citizens or lawful resident aliens of the United States on the basis of
conduct taking place within the United States except to the extent permitted by the Constitution.”77
The committee report stated:
“[Section 1031] would authorize the [military] to detain unprivileged enemy belligerents captured in the course of hostilities authorized by the [AUMF].
74
H.R. Rep. 112-78 at 209 (2011), available at http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt78/pdf/CRPT-112hrpt78.pdf.
75
S. 1253, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, June 22, 2011), available athttp://www.gpo.gov/fdsys/pkg/BILLS-112s1253rs/pdf/BILLS-112s1253rs.pdf.
Section 1031 was one of a number of sections in a subtitle entitled “Detainee Matters” in this bill. The subtitle included also Section 1032, which mandated military detention of non-citizen members of al-Qaeda who participated in planning or carrying out an attack against the United States, subject to a national security waiver.
76
Id. There were some differences, however. The original Section 1031(a) did not use the word “affirms” as did the eventual Section 1021(a). Moreover, this version described those detainable as “unprivileged enemy belligerents” and limited detention to those “captured in the course of hostilities,” both terms that were subsequently removed. Compare id. § 1031(a) with 2012 NDAA § 1021(a).
77
Id.
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24
“The committee recognizes that the [military] do[es] not need specific statutory authorization to detain enemy belligerents under the law of war when they are captured in the course of any lawful armed conflict. Because the long-term nature of the current conflict has led to the detention of a number of individuals for a period that is not likely to end soon, the committee concludes that such statutory authorization is appropriate in this case.”78
The detainee sections of S. 1253, including but not limited to Section 1031,
encountered some opposition from senators and the administration.79 After various consultations,
the Senate Armed Services Committee reported a revised version on November 15, 2011, as S. 1867.
Section 1031(a)–(d) of S. 1867 was identical to the ultimately enacted Section 1021(a)–(d).80 In
particular, S. 1867 removed the limitation regarding detention of citizens and lawful resident aliens
based on domestic conduct. It also added a provision stating, “Nothing in this section is intended
to limit or expand the authority of the President or the scope of the [AUMF].”81 On November 17,
the administration issued a Statement of Administration Policy which stated that Section 1031 was
unnecessary because the authority it attempted to codify already existed and expressed concern
about potential unintended consequences from legislative action in this area.82
78
S. Rep. 112-26 at 176 (2011), available at http://www.gpo.gov/fdsys/pkg/CRPT-112srpt26/pdf/CRPT-112srpt26.pdf.
79
See Letter from Sen. Harry Reid to Sen. Carl Levin and Sen. John McCain (Oct. 4, 2011) (stating that Sen. Reid would not bring bill to floor until concerns were resolved), reprinted in 157 Cong. Rec. S6,323-03, S6,324 (daily ed. Oct. 6, 2011).
80
S. 1867, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, Nov. 15, 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf.
81
Id. § 1031(d).
82
See Executive Office of the President, Statement of Administration Policy, S. 1867 – National Defense Authorization Act for FY 2012 (Nov. 17, 2011), reprinted in 157 Cong.
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In ensuing floor debates, a number of senators raised concerns that Section 1031
provided new authority to the President to detain American citizens indefinitely, with particular
concern about citizens captured domestically.83 Senator Dianne Feinstein unsuccessfully proposed
an amendment that would have provided: “The authority described in this section for the [military]
to detain a person does not include the authority to detain a citizen of the United States without trial
until the end of the hostilities.”84
Senator Feinstein prevailed in putting forth a second proposal, however, a so-called
“compromise amendment”85 that ultimately became Section 1021(e) and read, as enacted: “Nothing
in this section shall be construed to affect existing law or authorities relating to the detention of
United States citizens, lawful resident aliens of the United States, or any other persons who are
Rec. S7,943-01, S7,952 (daily ed. Nov. 29, 2011).
83
See, e.g., 157 Cong. Rec. S7,941-01, S7,941 (daily ed. Nov. 29, 2011) (“We are talking about American citizens who could be taken from the United States and sent to a camp at Guantanamo Bay and held indefinitely.”) (statement of Sen. Paul); 157 Cong. Rec. S7,94301, S7,945 (daily ed. Nov. 29, 2011) (“The provisions authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism—even those captured here in our own country . . . .”) (statement of Sen. Udall); id. at S7,949 (“[Section 1031] will, for the first time in the history of the United States of America, authorize the indefinite detention of American citizens in the United States.”) (statement of Sen. Durbin); id. at S7,950 (“I am . . . very concerned about the notion of the protection of our own citizens and our legal residents from military action inside our own country.”) (statement of Sen. Webb); id. at S7,953 (“As currently written, the language in this bill would authorize the military to indefinitely detain individuals—including U.S. citizens—without charge or trial. I am fundamentally opposed to indefinite detention, and certainly when the detainee is a U.S. citizen held without charge.”) (statement of Sen. Leahy); 157 Cong. Rec. S7,956-02, S7,961 (daily ed. Nov. 29, 2011) (“Section 1031 runs the risk of authorizing the indefinite detention without trial of Americans.”) (statement of Sen. Franken).
84
See 157 Cong. Rec. S7,716-01, S7,745 (daily ed. Nov. 17, 2011); 157 Cong. Rec. S8,09403, S8,125 (daily ed. Dec. 1, 2011).
85
Id. at S8,122.
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26 captured or arrested in the United States.”86 In advancing this proposal, Senator Feinstein observed
that the dispute over Section 1031 boiled down to “different interpretations of what the current law
is.”87 Specifically, she noted that
“[t]he sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ‘the end of the hostilities’ which, in my view, is indefinitely.
“Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.”88
Senator Feinstein went on to state that, through her second proposed amendment, the two camps
would agree to disagree:
“So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.”89
Senator Carl Levin, a principal sponsor of the bill and opponent of Senator Feinstein’s first proposed
amendment, supported her second proposal, stating:
86
2012 NDAA § 1021(e); see 157 Cong. Rec. S8,157-02, S8,157 (daily ed. Dec 1, 2011).
87
157 Cong Rec. S8,094-03, S8,122 (daily ed. Dec. 1, 2011) (statement of Sen. Feinstein).
88
Id. (case name italics added).
89
Id. (case name italics added).
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“[I]t would provide the assurance that we are not adversely affecting the rights of the U.S. citizens in this language. . . . It makes clear what we have been saying this language already does, which is that it does not affect existing law relative to the right of the executive branch to capture and detain a citizen. If that law is there allowing it, it remains. If, as some argue, the law does not allow that, then it continues that way.”90
Other senators, on both sides of the debate, also voiced their support and characterized the provision
similarly.91 The amendment passed by a vote of 99 to 1.92
Section 1031 of the Senate bill became the conference report’s Section 1021. It
passed Congress and was signed by President Obama on December 31, 2011. President Obama
issued a signing statement that reiterated his position that Section 1021 “breaks no new ground and
is unnecessary.”93 He cited Sections 1021(d) and (e) as “critical limitations” that “make clear
beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts
have recognized as lawful under the 2001 AUMF.”94 He stated also that his administration “will not
90
Id. at S8,124 (statement of Sen. Levin) (paragraph break omitted).
91
See id. (“To this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. Some of my colleagues see this differently, but the language we have agreed on makes it clear that section 1031 will not change that law in any way. The Supreme Court will decide who will be detained; the Senate will not.”) (statement of Sen. Durbin); id. (“As to Senator Durbin, he has one view, I have another, but we have a common view; that is, not to do anything to 1031 that would change the law. The ultimate authority on the law is not Lindsey Graham or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be, and that is exactly what we say here. We are doing nothing to change the law when it comes to American citizen detention to enhance it or to restrict whatever rights the government has or the citizen has.”) (statement of Sen. Graham).
92
Id. at S8,125.
93
Statement by the President on H.R. 1540, 2011 WL 6917659, *1 (Dec. 31, 2011).
94
Id.
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28 authorize the indefinite military detention without trial of American citizens” and “will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”95
E. Proceedings Below Plaintiff Christopher Hedges filed the initial complaint in this case on January 13,
2012, alleging that Section 1021 violated, inter alia, the First and Fifth Amendments and seeking declaratory and injunctive relief.96 On February 27, 2012, he filed a verified amended complaint, which added a number of plaintiffs,97 and moved for a temporary restraining order against enforcement of Section 1021, a motion that later was converted to a motion for a preliminary injunction.98 Plaintiffs submitted a number of affidavits in support of their motion, and the district court held an evidentiary hearing on March 30, 2012.99
Four plaintiffs submitted evidence that was considered by the district court and that is relevant to this appeal: two American citizens, Hedges and Alexa O’Brien,100 and two non-
95
Id.
96
Hedges v. Obama, No. 12 Civ. 331 (KBF), Dkt. 1 (S.D.N.Y.) [hereinafter “Dist. Ct. Dkt.”].
97
Dist. Ct. Dkt. 4-1 ¶¶ 2–8 (adding Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Kai Wargalla, Birgitta Jonsdottir, Alexa O’Brien, and US Day of Rage as plaintiffs).
98
See Dist. Ct. Dkt. 6.
99
Dist. Ct. Dkt. 10–14, 17–18, 34.
100
The district court’s one reference to O’Brien’s citizenship status stated that she is a noncitizen. Hedges v. O bama, 890 F. Supp.2d 424, 455 n.33 (S.D.N.Y. 2012). Both the
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29 citizens, Birgitta Jonsdottir and Kai Wargalla.101 They are journalists or members of advocacy
organizations who assert that they fear that their work makes them subject to indefinite detention
under Section 1021.102 The government submitted no evidence.
The district court granted the preliminary injunction by opinion filed May 16, 2012.103
It concluded that each plaintiff had an actual fear of detention under Section 1021 and that this fear
was reasonable.104 In reaching this latter conclusion, the court relied in significant part on the
government’s initial refusal to represent that the plaintiffs’ activities would not subject them to
detention under Section 1021. It rejected the government’s contention that Section 1021 was just
an “affirmation” of the AUMF that did nothing new.105 Determining further that the expressive
conduct of each plaintiff had been chilled and that each had incurred concrete costs as a reasonable
complaint and O’Brien’s affidavit make clear that she asserts American citizenship, and there is nothing in the record suggesting otherwise. The citizenship of the various plaintiffs was not particularly relevant to the district court’s analysis. We conclude that its reference to O’Brien as a non-citizen was a clerical error.
101
Hedges, O’Brien, and Wargalla were the only plaintiffs to testify at the hearing. Jonsdottir did not testify but submitted an affidavit on consent of the parties. The district court did not consider the other plaintiffs, and we need discuss them no further here. In the remainder of this opinion, we refer to “plaintiffs” as denoting only these four individuals.
102
We discuss the testimony of plaintiffs in more detail as necessary below.
103
Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 1721124 (S.D.N.Y. May 16, 2012). Although the initial order could have been read to suggest that the district court enjoined Section 1021 in its entirety, see id. at *28, the court later clarified that the injunction applied only to Section 1021(b)(2), see Hedges v. Obama , No. 12 Civ. 331 (KBF), 2012 WL 2044565, *1 (S.D.N.Y. June 6, 2012).
104
Hedges, 2012 WL 1721124 at *16–17.
105
Id. at *13–14.
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30 consequence of this fear, the court concluded that each plaintiff had standing to challenge Section 1021.106 It held that plaintiffs had shown a likelihood of success on claims that Section 1021 violated the First Amendment and was impermissibly vague in violation of the Fifth Amendment.107 Finally, it concluded that the other relevant factors supported preliminary injunctive relief.108
The government moved for reconsideration on May 25, 2012, clarifying its position by stating that, “[a]s a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.”109 By agreement of the parties, the court proceeded directly to permanent injunction proceedings (thus mooting the motion for reconsideration) and took no new evidence for purposes of the permanent injunction.
Concluding that the government’s “newly espoused position” did not alter its previous conclusion as to plaintiffs’ standing,110 the court, on September 12, 2012, “permanently enjoin[ed] enforcement of § 1021(b)(2) in any manner, as to any person,” generally affirming but also significantly expanding its prior analysis.111 It further held that “[m]ilitary detention based on
106
Id. at *19.
107
Id. at *19–25.
108
Id. at *25–28.
109
Dist. Ct. Dkt. 38 at 4.
110
Hedges, 890 F. Supp.2d at 429.
111
Id. at 472.
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31 allegations of ‘substantially supporting’ or ‘directly supporting’ the Taliban, al-Qaeda, or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2).”112
This appeal followed.113 We granted a temporary stay of the district court’s order on September 17, 2012, and then granted a stay pending appeal on October 2, 2012.
II. Discussion The parties raise a number of important and difficult questions, but we need not reach
most of them. We consider here only plaintiffs’ standing under Article III of the Constitution. We begin with a brief discussion of the basic principles of Article III standing. We proceed to the proper construction of Section 1021 in relation to the AUMF. After clarifying what Congress did and did not do in passing Section 1021, we consider plaintiffs’ standing given the record in this case. In that regard, we address first the American citizens, Hedges and O’Brien, and then the non-citizens, Jonsdottir and Wargalla.
A. General Principles of Standing The judicial power of the United States, and thus the jurisdiction of federal courts,
is limited by Article III of the Constitution to “Cases and Controversies.”114 One aspect of this
112
Id.
113
The government had appealed the district court’s preliminary injunction order as well, and the two appeals were consolidated before this Court. The government correctly observes that its appeal of the preliminary injunction is now moot. See Webb v. GAF Corp., 78 F.3d 53, 56 (2d Cir. 1996).
114
Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1146 (2013) (internal quotation marks omitted).
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32 limitation is the requirement that the plaintiff have standing to sue, which “serves to prevent the judicial process from being used to usurp the powers of the political branches.”115 “The party invoking federal jurisdiction bears the burden of establishing standing.”116 The “‘irreducible constitutional minimum’” requires that (1) the plaintiff “‘have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,’” (2) the injury be “‘fairly traceable to the challenged action of the defendant,’” and (3) it “‘be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’”117 Actual injury-in-fact exists when a defendant’s actions have inflicted a concrete, present harm on the plaintiff. But the Supreme Court has recognized that a plaintiff in some circumstances may have standing to sue even when the plaintiff shows only an imminent threat of future harm or a present harm incurred in consequence of such a threat.118 We discuss these criteria in more detail as needed below.
B. The Proper Construction of Section 1021 We deal first with the meaning of Section 1021.
115
Id.
116
Id. at 1148 (internal quotation marks omitted).
117
Rothstein v. UBS AG , 708 F.3d 82, 91 (2d Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)) (alterations, emphasis, and other internal quotation marks omitted).
118
See, e.g., Lujan, 504 U.S. at 564 & n.2; Clapper, 133 S. Ct. at 1150 n.5.
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33 “As with any question of statutory interpretation, we begin by examining the text of the statute.”119 In doing so, “we consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.”120 It is “one of the most basic interpretive canons[] that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”121 But “in interpreting a statute a court should always turn first to one, cardinal canon before all others,” namely that “courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”122 The AUMF authorized the President 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.”123 Section 1021(a) “affirms” that the AUMF authority includes the detention of a “covered
119
Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012).
120
Id. (internal quotation marks omitted); see United States v. Robinson, 702 F.3d 22, 31 (2d Cir. 2012) (“[T]he words of a statute are not to be read in isolation; statutory interpretation is a holistic endeavor.” (emphasis and internal quotation marks omitted)).
121
Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and alterations omitted).
122
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (internal quotation marks and citations omitted); accord Carr v. United States , 560 U.S. 438, 130 S. Ct. 2229, 2241 (2010); United States v. Coppola, 671 F.3d 220, 240 (2d Cir. 2012).
123
AUMF § 2(a).
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34 person[],” which under Section 1021(b) means (1) a “person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or (2) 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.”
At first blush, Section 1021 may seem curious, if not contradictory. While Section 1021(b)(1) mimics language in the AUMF, Section 1021(b)(2) adds language absent from the AUMF. Yet Section 1021(a) states that it only “affirms” authority included under the AUMF, and Section 1021(d) indicates that Section 1021 is not “intended to limit or expand the authority of the President or the scope of the [AUMF].”
Fortunately, this apparent contradiction—that Section 1021 merely affirms AUMF authority even while it adds language not used in the AUMF—is readily resolved. It is true that the language regarding persons who “planned, authorized, committed, or aided” the 9/11 attacks (or harbored those who did) is identical in the AUMF and Section 1021(b)(1). The AUMF, however, does not merely define persons who may be detained, as does Section 1021(b). Instead, it provides the President authority to use “force” against the “nations, organizations, or persons” responsible for 9/11.124 Section 1021(b)(1) (read with Section 1021(a)) affirms that the AUMF authority to use force against the persons responsible for 9/11 includes a power to detain such persons. But it does not speak to what additional detention authority, if any, is included in the President’s separate AUMF authority to use force against the organizations responsible for 9/11.
124
For brevity in this section we refer to one “responsible for 9/11” as synonymous with one who “planned, authorized, committed, or aided” the 9/11 attacks or harbored those who did so, as those terms are used in the AUMF and Section 1021(b)(1).
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35
This is where Section 1021(b)(2), a provision concerned with the organizations
responsible for 9/11—al-Qaeda and the Taliban—plays a role.125 Section 1021(b)(2) naturally is
understood to affirm that the general AUMF authority to use force against these organizations
includes the more specific authority to detain those who were part of, or those who substantially
supported, these organizations or associated forces.126 Because one obviously cannot “detain” an
organization, one must explain how the authority to use force against an organization translates into
detention authority.127 Hence, it is not surprising that Section 1021(b)(2) contains language that does
not appear in the AUMF, notwithstanding Section 1021(d). Plaintiffs create a false dilemma when
they suggest that either Section 1021 expands the AUMF detention authority or it serves no purpose.
Indeed, there are perfectly sensible and legitimate reasons for Congress to have
affirmed the nature of AUMF authority in this way. To the extent that reasonable minds might have
differed—and in fact very much did differ—over whether the administration could detain those who
125
The use of force against the Taliban may draw support also from the AUMF’s reference to “nations” insofar as it was the government of Afghanistan when the AUMF was passed.
126
We are not the first to focus on the AUMF’s mention of “organizations.” Indeed, it is on this reference that almost every inquiry into the scope of AUMF detention authority has begun. See Hamdi, 542 U.S. at 518 (noting that AUMF authorizes use of force against “nations, organizations or persons” associated with 9/11 and then stating that “[t]here 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” (emphasis added) (internal quotation marks omitted)); Al-Bihani, 590 F.3d at 873; Hamlily, 616 F. Supp.2d at 71; Gherebi, 609 F. Supp.2d at 55; Al-Marri, 534 F.3d at 259–61 (Traxler, J., concurring in judgment); id. at 286 (Williams, C.J., concurring in part and dissenting in part); id. at 298 (Wilkinson, J., concurring in part and dissenting in part).
127
See Chesney, supra note 6, at 790 (“The AUMF is entirely silent with respect to the mix of detention predicates and constraints that suffice to link a particular person to an AUMF-covered group for purposes of detention or otherwise.”); see also Hathaway, supra note 60, at 136–39.
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36
were part of or substantially supported al-Qaeda, the Taliban, and associated forces under the AUMF
authority to use force against the “organizations” responsible for 9/11,128 Section 1021(b)(2)
eliminates any confusion on that particular point. At the same time, Section 1021(d) ensures that
Congress’ clarification may not properly be read to suggest that the President did not have this
authority previously—a suggestion that might have called into question prior detentions. This does
not necessarily make the section a “‘legislative attempt at an ex post facto “fix” . . . to try to ratify
past detentions which may have occurred under an overly-broad interpretation of the AUMF,’” as
plaintiffs contend.129 Rather, it is simply the 112th Congress’ express resolution of a previously
debated question about the scope of AUMF authority.130
It remains to consider what effect Section 1021(e) has on this understanding. That
provision states that “[n]othing in this section shall be construed to affect existing law or authorities
128
See, e.g., Al-Bihani, 590 F.3d at 872 (identifying authority to detain those “part of” and those who “purposefully and materially support” enemy forces); Hamlily, 616 F. Supp.2d at 77–78 (accepting “part of” but rejecting any reliance on “support”); Gherebi, 609 F. Supp.2d at 70–71 (accepting both “part of” and “substantial support” but imposing significant limits on what “substantial support” may encompass); Al-Marri, 534 F.3d at 323–29 (Wilkinson, J., concurring in part and dissenting in part) (identifying authority to detain individuals only if they are both members of an enemy organization and have taken steps to inflict harm to advance that organization’s military goals); id. at 285 (Williams, C.J., concurring in part and dissenting in part) (requiring that individual have attempted or have engaged in belligerent acts against the United States on behalf of enemy force); id. at 231 (Motz, J., concurring in judgment) (making enemy combatant status turn on “affiliation with the military arm of an enemy nation”).
129
Appellee Br. 15 (quoting Hedges, 890 F. Supp.2d at 429).
130
In so construing the statute, we express no view regarding whether the original AUMF, standing alone, implicitly authorized the detention of the individuals described by Section 1021(b)(2). See Fed. Hous. Admin. v. Darlington, Inc. , 358 U.S. 84, 90 (1958) (“Subsequent legislation which declares the intent of an earlier law is not, of course, conclusive in determining what the previous Congress meant.”). We note only that this is the view that the 112th Congress set forth in Section 1021.
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37 relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” Although this provision may appear superficially similar to Section 1021(d), nuances in the text and the legislative history make clear that Section 1021(e) actually is a significantly different provision.
As discussed above, in stating that Section 1021 is not intended to limit or expand the scope of the detention authority under the AUMF, Section 1021(d) mostly made a statement about the original AUMF—that is, it indicated that the specific power to detain those who were part of or who substantially supported the enumerated forces had been implicit in the more generally phrased AUMF.131 By contrast, in saying that Section 1021 shall not be construed to affect “existing law or authorities” relating to citizens, lawful resident aliens, or any other persons captured or arrested in the United States, Section 1021(e) expressly disclaims any statement about existing authority. Rather, it states only a limitation about how Section 1021 may be construed to affect that existing authority, whatever that existing authority may be.132
This understanding is reinforced by the legislative history. As discussed above, Senator Feinstein and others feared that Section 1021 would greatly expand the power of the government with particular reference to the authority to detain American citizens captured domestically. Senator Feinstein explained that she did not believe the government had such authority while Senators Graham and Levin, perhaps among others, believed that the government
131
As we have no occasion in this opinion to construe the scope of the terms contained in Section 1021(b)(2), we need not consider whether Section 1021(d) may have some bearing also on how narrowly or broadly those terms should be construed.
132
A contrary interpretation of Section 1021(e) would risk rendering the provision surplusage in light of Section 1021(d).
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38
already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured
that—as to those covered by Section 1021(e)—courts would decide detention authority based not
on Section 1021(b), but on what the law previously had provided in the absence of that enactment.
This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s
AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens
from its requirements.133 Rather, Section 1021(e) provides that Section 1021 just does not
speak—one way or the other—to the government’s authority to detain citizens, lawful resident
aliens, or any other persons captured or arrested in the United States.134
We thus conclude, consistent with the text and buttressed in part by the legislative
history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful
133
Under that section, the President shall hold in military detention members of al-Qaeda or associated forces participating in an attack against the United States or coalition partners, subject to a national security waiver. This requirement, however, “does not extend to [the detention of] citizens of the United States.” 2012 NDAA § 1022(b)(1).
134
To the extent that the text of Section 1021(e) may not make explicit whether “captured or arrested in the United States” is meant to modify only “any other persons” rather than modifying also “United States citizens” and “lawful resident aliens of the United States,” we conclude that the former reading is correct. First, because commas follow “United States citizens” and “lawful resident aliens of the United States” but not “any other persons,” under the rule of the last antecedent we read the limiting phrase as modifying only the term immediately preceding it, unless a contrary intention is apparent. See Am. Int’l Grp., Inc. v. Bank of Am. Corp., 712 F.3d 775, 782 (2d Cir. 2013); Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010). Second, the alternative reading would render superfluous Congress’ references to citizens and lawful resident aliens—Congress could have much more simply referred to “persons captured or arrested in the United States.” Finally, legislative history provides no reason to conclude otherwise. Although Senator Feinstein suggested that her principal concern was the detention of American citizens apprehended on American soil, she and other senators expressed concern about the detention of American citizens generally, see, e.g., 157 Cong. Rec. S7,943-01, S7,953 (daily ed. Nov. 29, 2011) (statement of Sen. Leahy), and the amendment was described in such terms, see 157 Cong. Rec. S8,094-03, S8,124 (daily ed. Dec. 1, 2011) (statements of Sen. Levin and Sen. Graham).
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39 resident aliens, and are not captured or arrested within the United States, the President’s AUMF
authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021
concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens,
or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.135
We recognize that Section 1021 perhaps could have been drafted in a way that would
have made this clearer and that the absence of any reference to American citizens in Section 1021(b)
led the district court astray in this case.136 Perhaps the last-minute inclusion of Section 1021(e) as
an amendment introduced on the floor of the Senate explains the somewhat awkward construction.
But that is neither here nor there. It is only our construction, just described, that properly gives
effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.137
135
Plaintiffs read Section 1021(e) as preserving only habeas corpus rights to such individuals. This argument is unpersuasive. Section 1021(e) refers to “existing law or authorities”—a broad term that bears no indication that it should be limited to habeas rights, particularly when Section 1021 says nothing else about habeas.
136
See Hedges , 890 F. Supp.2d at 468 (noting that Section 1021(b)(2) “does not exclude American citizens”).
We note further that while the district court erred in its treatment of Section 1021(e), see id. at 466 n.40, the government invited the error by failing adequately to address the provision throughout the proceedings below. While the government cited Section 1021(e) in its briefs opposing the preliminary and permanent injunctions, the citations were brief and simply combined Sections 1021(d) and (e) in support of the general argument that Section 1021 only reaffirmed the AUMF.
137
Because we conclude that the text of Section 1021(e) is clear and that our view of it is confirmed by the legislative history, we need not consider whether our interpretation is supported also by the requirement we previously have imposed for “clear congressional authorization” of the detention of American citizens apprehended on American soil under
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40 C. American Citizen Plaintiffs
With this understanding of Section 1021, we may dispose of the claims of the citizen plaintiffs, Hedges and O’Brien. As discussed above, Section 1021 says nothing at all about the authority of the government to detain citizens. There simply is no threat whatsoever that they could be detained pursuant to that section.138 While it is true that Section 1021(e) does not foreclose the possibility that previously “existing law” may permit the detention of American citizens in some circumstances—a possibility that Hamdi clearly envisioned in any event—Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds to nor subtracts from whatever authority would have existed in its absence. For similar reasons, plaintiffs cannot show that any detention Hedges and O’Brien may fear would be redressable by the relief they seek, an injunction of Section 1021.
Plaintiffs appear to contend that, even if Section 1021 is not applicable to Hedges and O’Brien, the wording of Section 1021(e) seems to “assume” that citizens may be detained if they have substantially supported al-Qaeda and that Hedges and O’Brien therefore have standing to challenge it. We disagree. There is nothing in Section 1021 that makes any assumptions about the government’s authority to detain citizens under the AUMF. Rather, Section 1021(e) quite specifically makes clear that the section should not be construed to affect in any way existing law or authorities relating to citizen detention, whatever those authorities may provide.
the Non-Detention Act. Padilla, 352 F.3d at 699, rev’d on jurisdictional grounds, 542 U.S. 426. Nor need we consider whether this interpretation is supported by the canon of constitutional avoidance. See Ctr. for Nat’l Sec. Studies Amici Br. 7, 10, 12 (advancing these arguments).
138
We have no occasion to consider whether Hedges and O’Brien would have standing to challenge the AUMF, as no such challenge is presented here. Nor need we consider the scope of the government’s authority to detain American citizens under the AUMF.
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41 D. Non-citizen Plaintiffs
The claims of Jonsdottir and Wargalla stand differently. Whereas Section 1021 says
nothing about the government’s authority to detain citizens, it does have real meaning regarding the
authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad.139 It provides that such individuals may be detained until the end of hostilities if they were
part of or substantially supported al-Qaeda, the Taliban, or associated forces. To be sure, Section
1021 in substance provides also that this authority was implicit in the original AUMF. But, as
discussed above, that the 112th Congress in passing Section 1021 expressed such a view does not
mean that Section 1021 itself is a nullity. It is not immediately apparent on the face of the AUMF
alone that the President had the authority to detain those who substantially supported al-Qaeda, and
indeed many federal judges had concluded otherwise prior to Section 1021's passage. Hence,
Section 1021(b)(2) sets forth an interpretation of the AUMF that had not previously been codified
by Congress. Where a statute codifies an interpretation of an earlier law that is subject to reasonable
dispute, the interpretive statute itself may affect the rights of persons under the earlier law.
As the standing inquiry as to these two plaintiffs is more involved, we discuss the relevant facts and applicable law in detail.140
139
No party contends that either Jonsdottir or Wargalla is a lawful resident alien.
140
Our dismissal of the citizen plaintiffs exposes an issue that the district court did not have occasion to address below, whether Jonsdottir and Wargalla may assert First or Fifth Amendment rights under the Constitution. Both are non-citizens who live abroad and have few, if any, connections to the United States. In United States v. Verdugo-Urquidez, the Supreme Court observed that the First Amendment’s reference to “the people” suggested that the rights belong “to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 494 U.S. 259, 265 (1990) (suggesting further that an “[e]xcludable alien is not entitled to First Amendment rights, because ‘he does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by
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42
1. Relevant Facts Jonsdottir is a citizen of Iceland and a member of its parliament. She is an activist and spokesperson for a number of groups, including WikiLeaks, an organization famous for releasing troves of classified information of the United States government to the public. In early 2010, Jonsdottir helped WikiLeaks produce the video Collateral Murder, which allegedly depicts an American helicopter opening fire on unarmed individuals in Iraq. She testified that, around the same time, she had been working with people around the world, including some at WikiLeaks, to create a safe haven for freedom of information in Iceland. Jonsdottir testified that Collateral Murder made WikiLeaks known to the world shortly before its release later in 2010 of the Afghan and Iraq war logs and a substantial number of State Department cables—classified information allegedly leaked to WikiLeaks by one Bradley Manning. Jonsdottir further testified that she is aware that Manning has been charged by the United States government for aiding the enemy on the ground that he knew the classified information he provided to WikiLeaks would end up in the hands of al-Qaeda. She testified that a number of American politicians have called WikiLeaks a terrorist organization
law’” (quoting U.S. ex rel. Turner v. Williams , 194 U.S. 279, 292 (1904)) (alterations omitted)); see also DKT Mem’l Fund v. Agency for Int’l Dev,.887 F.2d 275, 284 (D.C. Cir. 1989). Moreover, Verdugo-Urquidez read Johnson v. Eisentrager, 339 U.S. 763, 784 (1950), as “emphatic[ally]” rejecting the “extraterritorial application of the Fifth Amendment.” 494 U.S. at 269. But see id. at 290–91 (Brennan, J., dissenting) (contending that Eisentrager was specific to the rights of enemy soldiers). The case law regarding extraterritorial application of constitutional rights is sparse. Verdugo-Urquidez itself was a Fourth Amendment case. The relevant facts in the present case were not developed below as they were not necessary to the district court’s decision. We therefore decline to consider this issue, which is not necessary in order to resolve the case before us. We assume, without deciding, that Jonsdottir and Wargalla may assert First and Fifth Amendment rights.
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43 and that the government has been considering criminal charges against the organization and its founder, Julian Assange. As part of this investigation, she has received a subpoena from a federal grand jury for content from her Twitter account. She has received a number of invitations to speak in the United States, but will not travel here—thereby forgoing contacts and compensation—because of the subpoena and her fears of detention under Section 1021.
Wargalla, a German citizen, is an organizer and activist based in London, and is associated with the organizations Revolution Truth, Occupy London, and Justice for Assange UK. She testified that Occupy London has been listed as a terrorist group by the City of London police department. Moreover, she testified that she has been a supporter of WikiLeaks since 2010 as it was releasing the classified information noted above. Since January 2011, she has organized rallies, demonstrations, and protests on behalf of Assange and Manning. She testified that she has met Assange, who is familiar with her support, and has had contact with other employees of WikiLeaks. Wargalla testified that her fears of detention under Section 1021 have made it nearly impossible to pursue her everyday work.
The district court found that both Jonsdottir and Wargalla had an actual fear of detention under Section 1021 and had incurred costs and other present injuries due to this fear.141
2. Fear-based Standing Law We have no occasion to disturb the factual findings of the district court, which are well-supported by the record, or to question the truth of the factual testimony of the plaintiffs, which

141
Hedges, 890 F. Supp.2d at 436–37.

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44 the district court found credible.142 Rather, we are faced only with a question of law: whether the non-citizen plaintiffs’ fears of enforcement, as well as any present costs they have incurred as a result of those fears, establish their standing to bring this challenge.
As discussed earlier, the Supreme Court has recognized that such fears may support standing when the threat creating the fear is sufficiently imminent. The Supreme Court’s jurisprudence regarding how imminent a threat must be in order to support standing, however, has been less than clear. In Clapper v. Amnesty International USA,143 the Court recently concluded that the plaintiffs did not have standing to challenge a statute expanding the government’s surveillance capabilities as violating, inter alia, the First and Fourth Amendments because they had failed to show that government interceptions of their communications were “certainly impending.”144 The Court further concluded that, to the extent the plaintiffs had suffered present injuries because of their fear of such interception, they “cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”145 Yet at the same time, a footnote in Clapper recognized that the Court has not uniformly required that it be “literally certain that the harms [plaintiffs] identify will come about” and sometimes found standing to sue where
142
See id. at 432.
143
133 S. Ct. 1138.
144
Id. at 1143 (internal quotation marks omitted). In applying the relevant standing principles below, the district court did not have the benefit of Clapper—decided after oral argument of this appeal—but instead was bound by our prior decision in that case, which the Supreme Court reversed. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133 S. Ct. 1138.
145
Id.
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45 plaintiffs showed only a “‘substantial risk’ that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.”146 The Court did not explain when such
a standard might apply, noting only that the plaintiffs in Clapper failed that test as well to whatever extent it might have been relevant and distinct.147
One of the cases that Clapper cited as using a potentially more permissive standard was a preenforcement challenge to a criminal statute.148 In Babbitt v. United Farm Workers National Union,149 the Court held that when a plaintiff “has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists
a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”150 Put differently, the Court held that a
plaintiff has standing to make a preenforcement challenge “when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative.”151 It has applied that
146
Id. at 1150 n.5.
147
Id.
148
Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Note that Babbitt does not use the term “substantial risk,” however. That term came from a different case cited by the Clapper footnote, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2754–55 (2010).
149
442 U.S. 289.
150
Id. at 298 (internal quotation marks omitted); see id. (noting more generally that a plaintiff “must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement”).
151
Id. at 302.
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46
principle in a number of cases challenging criminal statutes—finding standing where the plaintiff
“will have to take significant and costly compliance measures or risk criminal prosecution”152—and
in the civil context as well.153 The First Circuit has observed that the Babbitt standard sets a “low
threshold” and is “quite forgiving” to plaintiffs seeking such preenforcement review.154
Part of what makes the Court’s approach in these cases “forgiving” is that it appears
willing to presume that the government will enforce the law as long as the relevant statute is “recent
and not moribund.”155 Thus, in numerous preenforcement cases where the Supreme Court has found
152
Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988); see id. at 393 (finding standing where plaintiffs had “actual and well-founded fear that the law will be enforced against them”); Holder v. Humanitarian Law Proje ct, 130 S. Ct. 2705, 2717 (2010) (“HLP”) (concluding that case was justiciable because plaintiffs faced “credible threat of prosecution” under material support statute based on their stated intended activities (internal quotation marks omitted)); Doe v. Bolton , 410 U.S. 179, 188–89 (1973) (identifying justiciable controversy in challenge to recent criminal abortion statute because plaintiffs faced “sufficiently direct threat of personal detriment” even though no prosecution had been threatened); but see Poe v. Ullman , 367 U.S. 497, 507–08 (1961) (plurality opinion) (concluding that where contraceptive statute had been on books for eighty years and been enforced only once, preenforcement challenge was not justiciable); id. at 509 (Brennan, J., concurring in judgment) (similar).
We have read the differing language of these cases to imply that the requisite standard for standing varies with the constitutional right asserted. See Am. Booksellers Found. v.Dean, 342 F.3d 96, 101 (2d Cir. 2003) (concluding that “actual and well-founded fear” standard governed First Amendment challenges, while the “slightly higher” standard of “realistic danger” governed non-First Amendment challenges (internal quotation marks omitted)). We need not here decide whether this distinction survives subsequent Supreme Court jurisprudence. See HLP, 130 S. Ct. at 2717 (applying “credible threat of prosecution” standard to challenge involving both First and Fifth Amendments).
153
See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129–30 (2007) (concluding that plaintiff need not expose itself to civil liability by breaching royalty agreement when it seeks declaratory judgment that no royalties are owed).
154
N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14–15 (1st Cir. 1996).
155
Doe, 410 U.S. at 188.
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47
standing on a showing that a statute indisputably proscribed the conduct at issue, it did not place the
burden on the plaintiff to show an intent by the government to enforce the law against it. Rather,
it presumed such intent in the absence of a disavowal by the government or another reason to
conclude that no such intent existed.156
These cases do not explain how to evaluate preenforcement standing when it is not
apparent whether a plaintiff is subject to the statute and when the government actively disputes that
it is. Nor do they address a situation in which the government disavowed any intention to prosecute
plaintiff, regardless of the appropriate interpretation of the statute.157 But this Court did consider
such circumstances in Vermont Right to Life Committee v. Sorrell.158
The state there argued that the plaintiff lacked standing because the statute did not
proscribe plaintiff’s conduct. A divided panel of this Court rejected that argument in reliance on
156
See HLP, 130 S. Ct. at 2717 (noting that “Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do”); Am. Booksellers, 484 U.S. at 393 (noting that “State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise”); Babbitt, 442 U.S. at 302 (identifying justiciable controversy, even though “criminal penalty provision has not yet been applied and may never be applied to commissions of unfair labor practices” in part because “State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices”).
157
See HLP, 130 S. Ct. at 2717; Am. Booksellers, 484 U.S. at 393; Babbitt, 442 U.S. at 302. In Poe v. Ullman, a plurality of the Court did opine that “the mere existence of a state penal statute would constitute insufficient grounds to support a federal court’s adjudication of its constitutionality in proceedings brought against the State’s prosecuting officials if real threat of enforcement is wanting.” 367 U.S. at 507 (citing Ex parte La Prade, 289 U.S. 444, 458 (1933)). The plurality went on to observe that “[i]f the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here.” Id. (citing C.I.O. v. McAdory, 325 U.S. 472, 475 (1945)).
158
221 F.3d 376 (2d Cir. 2000).
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48 Babbitt. The majority concluded that “while there may be other, perhaps even better, definitions” of the disputed statutory term, plaintiff’s interpretation of the statute, which would have covered its conduct, was “reasonable enough that [plaintiff] may legitimately fear that it will face enforcement of the statute by the [s]tate brandishing the definition proffered” by plaintiff.159 To the extent that the state contended that it had no intention of suing plaintiff for its activities, we said “there is nothing that prevents the [s]tate from changing its mind” and that allowing the state’s presently stated intention to defeat standing “would be placing [plaintiff’s] asserted First Amendment rights at the sufferance of Vermont’s Attorney General.”160
Similarly, in Pacific Capital Bank v. Connecticut,161 we relied on Vermont Right to Life to hold that plaintiff established standing to challenge a civil penalty provision despite the state’s argument that it never had enforced the statute against anyone and that “it is unknown how the [s]tate will apply that section in any future enforcement action.”162
3. Coverage Under Section 1021(b)(2) As in Vermont Right to Life, the government here disputes that plaintiffs are subject to the statute. Plaintiffs never articulate a precise theory on which they fear detention under Section
159
Id. at 383.
160
Id. (internal quotation marks omitted); accord Citizens for Responsible Gov’t State Political Action Comm. v. Davidson , 236 F.3d 1174, 1192 (10th Cir. 2000) (rejecting reliance on representation by state that plaintiffs will not be prosecuted, citing Vt. Right to Life).
161
542 F.3d 341 (2d Cir. 2008).
162
Id. at 350.
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49
1021(b)(2)—that is, in what sense the government may conclude that they were 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.” The strongest argument would seem to be a
contention that the work of Jonsdottir and Wargalla substantially, if indirectly, supports al-Qaeda
and the Taliban as the term “support” is understood colloquially.163 The record demonstrates a
number of ways in which the government has concluded, or would have a basis to conclude, that
WikiLeaks has provided some support to al-Qaeda and the Taliban. This includes the evidence that
the government is prosecuting Manning for aiding the enemy by his releases to WikiLeaks and news
articles in the record or cited by the Jonsdottir declaration reporting on the immense amount of
classified information that WikiLeaks made public, much of which is related specifically to the
government’s military efforts against al-Qaeda and the Taliban.164 One perhaps might fear that
163
Both Jonsdottir and Wargalla refer extensively also to suggestions by some that WikiLeaks is a terrorist organization. But Section 1021(b)(2) on its face does not authorize the President to detain an individual solely for supporting any terrorist group. Rather, the individual must have substantially supported “associated forces that are engaged in hostilities against the United States or its coalition partners.” Plaintiffs do not attempt to show that WikiLeaks could be deemed such a force.
Wargalla contends also that Occupy London is viewed as a terrorist group, and she fears that the group may be deemed “associated” with al-Qaeda because both groups were mentioned (along with the Revolutionary Armed Forces of Colombia (FARC) and two individuals who bombed a railway in Belarus) on a London police document entitled “Terrorism/Extremism update for the City of London Business Community.” Dist. Ct. Dkt. 18-2. We need not develop a sophisticated understanding of the term “associated” under Section 1021(b)(2) to dismiss the contention that it is sufficient to show merely that the group has been listed on the same government document as al-Qaeda.
164
One article reports that the Taliban threatened to hunt down Afghan civilians cooperating with NATO forces whose names WikiLeaks revealed. See Philip Shenon, “U.S. Urges Allies to Crack Down on WikiLeaks,” THE DAILY BEAST (Aug. 10, 2010), available at http://www.thedailybeast.com/articles/2010/08/10/a-western-crackdown-on-wikileaks.html.
Another reports that WikiLeaks confirmed previously secret American involvement in an
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50 Jonsdottir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well.
The government rejoins that the term “substantial support” cannot be construed so in this particular context. Rather, it contends that the term must be understood—and limited—by reference to who would be detainable in analogous circumstances under the laws of war. It points to (1) the Hamdi plurality’s limitation of the duration of the detention authority it recognized based on the laws of war, (2) the March 2009 Memo’s repeated invocation of law-of-war limiting principles and the legislative history suggesting that Section 1021 was meant to codify the interpretation that the Memo set forth, (3) Section 1021(d), to the extent that Hamdi and the administration suggested that the laws of war inform AUMF authority, as bearing on how broadly “substantial support” may be construed, and (4) the references to “law of war” in Section 1021 itself, albeit not in Section 1021(b)(2). The government then contends that individuals like Jonsdottir and Wargalla are civilians who are not detainable under these law-of-war principles and so cannot reasonably fear detention under Section 1021.
In these circumstances, we are faced with a somewhat peculiar situation. The government has invited us to resolve standing in this case by codifying, as a matter of law, the meaningful limits it has placed on itself in its interpretation of Section 1021. We decline the government’s invitation to do so. Thus, we express no view regarding whether the laws of war inform and limit detention authority under Section 1021(b)(2) or whether such principles would
attack that allegedly killed al-Qaeda militants in Yemen. See Glenn Greenwald, “Obama’s personal role in a journalist’s imprisonment,” SALON.COM (Mar. 14, 2012), available at http://www.salon.com/2012/03/14/obamas_personal_role_in_a_journalists_imprisonment/. Because standing is wanting in any event, we need not consider whether the fact that these articles were not admitted for the truth of the matters they assert affects the analysis.
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51 foreclose the detention of individuals like Jonsdottir and Wargalla. This issue presents important questions about the scope of the government’s detention authority under the AUMF, and we are wary of allowing a preenforcement standing inquiry to become the vehicle by which a court addresses these matters unless it is necessary. Because we conclude that standing is absent in any event, we will assume without deciding that Section 1021(b)(2) covers Jonsdottir and Wargalla in light of their stated activities.165
4. Threat of Enforcement We next consider whether there is a sufficient threat of enforcement even given this assumption. This inquiry corresponds to (1) our suggestions in Vermont Right to Life and Pacific Capital Bank that a plaintiff has standing when it “‘may legitimately fear that it will face enforcement’” under its reasonable interpretation of the statute166 and (2) the Supreme Court’s recognition that a preenforcement challenge is justiciable when enforcement is a “realistic danger,”167 when there is a “credible threat of prosecution,”168 or when a plaintiff has an “actual and well-founded fear”169 of such enforcement. As noted above, however, neither this Court nor the
165
Of course, it would do so only insofar as they fear the United States apprehending them abroad. Under Section 1021(e), Section 1021 has no bearing on the government’s authority to detain any individual captured or arrested in the United States.
166
Pacific Capital Bank, 542 F.3d at 350 (quoting Vt. Right to Life, 221 F.3d at 383).
167
Babbitt, 442 U.S. at 298.
168
Id. (citing Doe, 410 U.S. at 188); accord HLP, 130 S. Ct. at 2717.
169
Am. Booksellers Ass’n, 484 U.S. at 393.
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52 Supreme Court has required much to establish this final step in challenges to ordinary criminal or civil punitive statutes. Rather, we have presumed that the government will enforce the law.
The question is the extent to which such a presumption is applicable here. The district court concluded that it was, reasoning that Section 1021 “is equivalent to a criminal statute” because “the possibility of being placed in indefinite military detention is the equivalent of a criminal penalty.”170 Certainly we agree that military detention until the termination of hostilities would be severe and that the prospect of such detention can be “as inhibiting of speech as can trepidation in the face of threatened criminal prosecution.”171 But that is a separate question from whether it is appropriate to presume that Section 1021 will be enforced as would any criminal or civil punitive statute.
On this point, there are several important differences between Section 1021 and a typical statute imposing criminal or civil penalties. Section 1021 is not a law enforcement statute, but an affirmation of the President’s military authority.172 As discussed above, it applies only to individuals who are not citizens, are not lawful resident aliens, and are apprehended outside the United States. It thus speaks entirely to the authority of the President in the context of military force, national security, and foreign affairs, areas in which the President generally enjoys “unique
170
Hedges, 890 F. Supp.2d at 450 n.29.
171
Vt. Right to Life, 221 F.3d at 382.
172
The Hamdi plurality observed that military detention “‘is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character. A prisoner of war is no convict; his imprisonment is a simple war measure.’” 542 U.S. at 518 (quoting W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920)) (other internal quotation marks and alterations omitted).
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53 responsibility”173 and “broad discretion.”174 The Supreme Court has recognized that “Congress
cannot anticipate and legislate with regard to every possible action the President may find it necessary to take” in the fields of national security and foreign affairs.175 As a result, “Congress—in
giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in domestic areas.”176
Moreover, Section 1021 “at most authorizes—but does not mandate or direct”— the detention that plaintiffs fear.177 To be sure, the executive branch enjoys prosecutorial discretion with
regard to traditional punitive statutes. Congress generally does not mandate or direct criminal prosecution or civil enforcement.178 But we can distinguish between Congress, on the one hand,
proscribing a certain act and then leaving it to the President to enforce the law under his constitutional duty to “take Care that the Laws be faithfully executed”179 and Congress, on the other
hand, authorizing the President to use a certain kind of military force against non-citizens abroad.
173
Am. Ins. Ass’nv. Garamendi, 539 U.S. 396, 415 (2003) (internal quotation marks omitted).
174
Olegario v. United States, 629 F.2d 204, 233 (2d Cir. 1980).
175
Dames & Moore v. Regan, 453 U.S. 654, 678 (1981).
176
Haig v. Agee, 453 U.S. 280, 292 (1981) (emphasis and internal quotation marks omitted).
177
Clapper, 133 S. Ct. at 1149 (emphasis in original).
178
See Abuelhawa v. United States, 556 U.S. 816, 823 n.3 (2009) (recognizing that “Congress legislates against a background assumption of prosecutorial discretion”).
179
U.S. CONST. art. II, § 3; accord United S tates v. Valenzuela-Bernal, 458 U.S. 858, 863 (1982) (“One of the duties of the Executive Branch, and a vitally important one, is that of apprehending and obtaining the conviction of those who have violated criminal statutes of the United States.”).
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54 Consequently, there is a world of difference between assuming that a state executive will enforce a statute imposing civil penalties for certain campaign finance violations180—or even that the executive branch will enforce a federal criminal statute barring provision of material support to terrorists181—and assuming that the President will detain any non-citizen abroad that Congress authorizes him to detain under the AUMF. Clapper further supports this understanding, as it made clear that plaintiffs cannot establish standing on the basis of speculation about how the government may choose to utilize its authority to engage in foreign surveillance.182 In short, while it generally may be appropriate to presume for standing purposes that the government will enforce the law against a plaintiff covered by a traditional punitive statute, such a presumption carries less force with regard to a statute concerned entirely with the President’s authority to use military force against noncitizens abroad.183 Thus, in the circumstances of this case, Jonsdottir and Wargalla must show more than that the statute covers their conduct to establish preenforcement standing.
180
Vt. Right to Life, 221 F.3d 376.
181
HLP, 130 S. Ct. 2705.
182
See 133 S. Ct. at 1148–49.
183
We do not rely on any notion that Article III standing rules are different just because this case implicates national security and foreign affairs. Rather, we note only that plaintiffs in the circumstances presented need to show more to establish a sufficiently imminent threat of enforcement; Congress and the Constitution provide the President with broad discretion in these areas and thus a presumption of enforcement may be less apt. This is consistent with the Supreme Court’s observation that it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id. at 1147.
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55 We need not quantify precisely what more is required184 because Jonsdottir and Wargalla have shown nothing further here. Indeed, they have not established a basis for concluding that enforcement against them is even remotely likely. We reach this conclusion independent of the government’s litigation position on appeal that plaintiffs are “in no danger whatsoever” of being detained on the basis of their stated activities.185 First, even assuming that Jonsdottir and Wargalla fall within the ambit of authority provided by the statute, this is certainly not a case in which “the law is aimed directly at plaintiffs.”186 They point to nothing in the record, or in the text or legislative history of Section 1021, that suggests that the statute was passed to facilitate the military detention of individuals specifically like them. Second, while we do not hold that a specific threat of enforcement is necessary, neither Jonsdottir nor Wargalla has adduced any evidence that the government intends or has
184
In particular, we need not determine whether, in light of the foregoing considerations, the preenforcement Babbitt line of cases is inapplicable altogether and whether plaintiffs must satisfy the Clapper “certainly impending” standard to prevail. Nor need we resolve whether the proper preenforcement standard is “legitimate fear,” “realistic danger,” “credible threat of prosecution,” or “actual and well-founded fear,” or—more to the point—whether there is any meaningful difference among these standards. Cf. Amnesty Int’l USA v. McConnell, 646 F. Supp.2d 633, 644 n.12 (S.D.N.Y. 2009) (questioning this Court’s prior suggestion that “realistic danger” is a slightly higher standard than “actual and well-founded fear”), vacated on other grounds sub nom. 638 F.3d 118, rev’d, 133 S. Ct. 1138; Clapper, 133 S. Ct. at 1160–61 (Breyer, J., dissenting) (listing other terms Supreme Court has used to describe requisite imminence in cases of future harm).
185
Appellant Br. 1.
186
Am. Booksellers, 484 U.S. at 392.
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56
threatened to place them in military detention.187
Third, they have not put forth evidence that individuals even remotely similarly
situated have been subjected to military detention.188 The government argues that this latter failure
187
Jonsdottir testified that she has been subject to a U.S. grand jury subpoena as part of a criminal investigation into WikiLeaks. Even assuming that the mere issuance of a subpoena demonstrates intent to prosecute Jonsdottir criminally—not a reasonable assumption in any event—Clapper makes clear that this would not help her cause. The Court there concluded that evidence of surveillance under a prior statute detracted from standing, because plaintiffs could only speculate about whether any government surveillance would occur under the new statute, rather than under other existing authority. See 133 S. Ct. at 1152. Likewise here, the evidence that the government may have been criminally investigating Jonsdottir would not support her fear of military detention.
For similar reasons, the evidence that the administration is prosecuting Bradley Manning for aiding al-Qaeda and that administration officials and members of Congress have described WikiLeaks as a terrorist organization does not support plaintiffs’ position.
188
A record article concerns one Sami Alhaj, who reportedly had worked for Al Jazeera as a cameraman before his military detention at Guantánamo. See Magda Abu-Fadil, Sami Alhaj: From Gitmo Detainee Back to Al Jaz eera as Liberties/Human Rights Advocate , HUFFINGTON POST (Jan. 6, 2012), available at http://www.huffingtonpost.com/magda-abufadil/sami-alhaj-Guantanamo_b_1189590.html. But that same article quotes a Department of Defense memorandum listing Alhaj as a member of al-Qaeda who was a money courier, propagandist, and logistics expert involved in a plan to provide Stinger missiles to Islamic extremists in Chechnya. We cannot conclude that Alhaj is situated similarly to Jonsdottir and Wargalla in these circumstances.
Record articles report also that the Obama administration purportedly encouraged the Yemeni government not to pardon a Yemeni journalist, Abdulelah Haider Shaye, convicted of terrorism-related charges. See, e.g., Greenwald, supra note 164. The record does not explain the administration’s concerns, however, notwithstanding the speculation of one article’s author that it was upset about Shaye’s reporting of allegedly embarrassing information. Moreover, Shaye was not held by the United States military, rendering his case quite different from what plaintiffs fear.
The district court concluded that it was “patently unfair” to expect plaintiffs to point to examples of similarly situated individuals being detained, as the reasons individuals may be detained generally is known only to the government. Hedges, 890 F. Supp.2d at 439 n.19. But Clapper—issued after the district court’s decision—makes clear that the secrecy of government action does not relieve plaintiffs of the burden to establish standing. In any event, we do not require plaintiffs to come forward with any specific kind of evidence, including that of similarly situated individuals who have been detained. We hold only that
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57 is particularly meaningful because, it contends, Section 1021 codified an interpretation “that the President had long articulated and exercised and that the Judiciary had repeatedly recognized.”189
To be sure, the government overstates its case on this point. As the history of litigation regarding the scope of AUMF detention authority shows, numerous courts criticized or rejected the government’s reliance on substantial support in the March 2009 Memo. Prior to that, a divided Fourth Circuit set forth a number of different interpretations of executive detention authority, none of which resembled the government’s position.190 While the D.C. Circuit’s decision in Al-Bihani is supportive of the government’s standard, it focused primarily on a “purposeful and material support” standard, the relationship of which to “substantial support” is not clear. Simply put, to the extent that Congress resolved a previously debated question about the scope of AUMF detention authority in passing Section 1021, it was not obvious that the answer it provided is the one that ultimately would have prevailed had Congress not passed anything at all.191 In light of this uncertainty, at least in principle Section 1021's codification of the “substantial support” standard could place the administration on stronger footing to detain individuals under such a theory than it might have been willing to risk previously.
the evidence submitted here is insufficient to meet plaintiffs’ burden.
189
Appellant Br. 8.
190
But see Vladeck, supra note 60, at 1457 n.36 (noting that some constraints identified by AlMarri judges may have been specific to context of lawfully present non-citizens apprehended in United States).
191
Moreover, even the executive branch’s embrace of the “substantial support” standard prior to Section 1021's passage had appeared cautious, at best. As noted above, it is not apparent whether this administration ever has detained an individual solely as a substantial supporter. It appears nearly exclusively to have relied on a “part of” theory to justify its detentions, and it specifically has foresworn reliance on support in at least two cases.
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58 Nevertheless, plaintiffs bear the burden of establishing standing.192 Whether Section 1021 can or will alter executive practice, particularly with regard to individuals like them, is purely a matter of speculation. The fact remains that—despite the executive at least nominally asserting the authority to detain on the basis of “support” since the 2004 CSRT enemy combatant definition, and on the basis of “substantial support” since the March 2009 Memo,193 and despite the D.C. Circuit recognizing the lawfulness of detention at least on the basis of “purposeful and material support” since 2010—plaintiffs have provided no basis for believing that the government will place Jonsdottir and Wargalla in military detention for their supposed substantial support. In all the circumstances, plaintiffs have not shown a sufficient threat of enforcement to establish standing. Moreover, they cannot “manufacture standing” based on any present injuries incurred due to their expressed fears.194 Nothing in this decision should be confused as deference to the political branches because the case involves national security and foreign affairs. We adhere to the principle that courts have a vigorous and meaningful role to play in assessing the propriety of military detention, as the Supreme Court has made clear in cases from Hamdi to Boumediene.195 We hold only that a
192
See Clapper, 133 S. Ct. at 1149 n.4 (“[I]t is [plaintiffs’] burden to prove their standing by pointing to specific facts, not the Government’s burden to disprove standing by revealing details of its surveillance priorities.” (citation omitted)).
193
While the March 2009 Memo was, on its face, specific to authority to detain those then held at Guantánamo, there is nothing in the record to suggest that the government had any different view of its authority outside of Guantánamo.
194
Clapper, 133 S. Ct. at 1151.
195
See Hamdi, 542 U.S. at 532 (“It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that
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59 court first must satisfy itself that the case comports with the “irreducible constitutional minimum” of Article III standing.196 This inquiry is rooted in fundamental separation-of-powers principles and must be “especially rigorous” where, as here, the merits of the dispute require the court to “decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”197 Section 1021 is concerned entirely with the military authority of the President with respect to non-citizens abroad—a context in which Congress provides the President broad authority to exercise with considerable discretion. Particularly after Clapper, plaintiffs must show more than that they fall within the ambit of this authority to establish the sufficient threat of enforcement necessary for Article III standing. They have failed to do so here.
A final note: Plaintiffs repeatedly refer to the First Amendment overbreadth doctrine as if it were relevant to whether they have established Article III standing. It is not. Relaxing the general prudential rule against third-party standing, the overbreadth doctrine permits a plaintiff to represent the legal interests of parties not before the court when seeking facial invalidation of a statute under the First Amendment, if certain conditions are met.198 Critically, “[w]e allow a party to bring an overbreadth challenge where that party ‘satisfies the Article III requirement of “injury-in-
we must preserve our commitment at home to the principles for which we fight abroad.”); Boumediene, 553 U.S. at 798 (“The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”).
196
Lujan, 504 U.S. at 560.
197
Clapper, 133 S. Ct. at 1147 (internal quotation marks omitted).
198
Farrell v. Burke , 449 F.3d 470, 494–95 (2d Cir. 2006) (Sotomayor, J.); see Virginia v. Hicks, 539 U.S. 113, 118–19 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 612–15 (1973).
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60 fact” and where it can be expected satisfactorily to frame the issues in the case.’”199 In other words, the overbreadth doctrine speaks to whose interests a plaintiff suffering Article III injury may represent. It does not provide a reason to find such injury where none is present or imminently threatened in the first instance.
III. Conclusion In sum, Hedges and O’Brien do not have Article III standing to challenge the statute
because Section 1021 simply says nothing about the government’s authority to detain citizens. While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have not established standing on this record. We VACATE the permanent injunction and REMAND for further proceedings consistent with this opinion.
199
Farrell, 449 F.3d at 499 (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984)) (alterations omitted).
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 Case 1:12-cv-00331-KBF Document 86 Filed 02/11/14 Page 1 of 2 Case 1:12-cv-00331-KBF Document 85 Filed 02/10/14 Page 1 of 2

Bruce 1. Afran (BA-8583) 
 10 Braeburn Drive 
 Princeton, New Jersey 08540 
 609-924-2075 

Carl 1. Mayer (CM-6589) 
 MAYER LAW GROUP LLC 
 1040 Avenue of the Americas, Suite 2400 
 New York, NY 10018 
 212-382-4686 

Attorneys for Plaintiff 

UNITED STATES DISTRCT COURT 
 SOUTHERN DISTRICT OF NEW YORK 


USDC SD~Y

. DOCUMENT

~ ELECTRONICALLY FILED

FE ,
I

DOC#: DATE FILED:B

1 12014

CHRISTOPHER HEDGES, 
 DANIEL ELLSBERG, JENNIFER BOLEN, 
 NOAM CHOMSKY; ALEXA O'BRIEN, 
 US DAY OF RAGE; KAI WARGALLA, 
 HON. BRIGITTA JONSDOTTJR M.P., 


Plaintiffs,

INDEX NO. 1 12 cv 00331 (KBF)

v.

BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE, JOHN McCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH McCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA
Defendants.

-z..-lll IIi

-----~ ---_.~~\--....,.,.....,f'
~~'t, ~

PLAINTIFFS' REPORT TO THE COURT AS TO REMAt~ING ISSUES ON REMAND

Case 1:12-cv-00331-KBF Document 86 Filed 02/11/14 Page 2 of 2 Case 1: 12-cv-00331-KBF Document 85 Filed 02/10/14 Page 2 of 2
In connection with Document No. 84 and pursuant to the Court's request at the October 31, 2013 status conference, counsel for Plaintiff reports to the Court that Plaintiffs do not believe that there are remaining issues in this matter following the determination of the Court of Appeals for which it would be economical or productive to pursue; accordingly, Counsel reports that no further litigation in this action will be pursued in the District Court by Plaintiffs, subject to any remand or other directive that may arise on appeal or in connection with a pending Petition for Writ of Certiorari in the Supreme Court.
Counsel make no waiver of any future right or capacity to represent in any new proceeding concerning the statute at issue other parties based on their particular factual or legal issues or the present plaintiffs based on new factual or legal matters that should subsequently arise or be disclosed.
Counsel for plaintiffs thank the Court for its many courtesies and attention to this action.
Respectfully submitted, S/Bruce 1. Afran 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075
Carl 1. Mayer (CM-6589) MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686

 
 Case: 12-3644 Document: 12-1 Page: 1 09/17/2012 721184 42
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT
Docket Number(s): 12-3644 Motion for: Stay Pending Appeal and Admin. Stay

Caption [use short title]

Set forth below precise, complete statement of relief sought:
Immediate administrative stay of district court injunction and stay pending appeal.

Hedges, et al. v. Obama, et al.

MOVING PARTY: Barack Obama, et al.

9 Plaintiff

✔9 Defendant

9✔ Appellant/Petitioner

9 Appellee/Respondent

OPPOSING PARTY: Christopher Hedges, et al.

MOVING ATTORNEY: August E. Flentje

OPPOSING ATTORNEY: Bruce Ira Afran

[name of attorney, with firm, address, phone number and e-mail]

Department of Justice, Room 3613

10 Braeburn Drive

950 Pennsylvania Avenue NW

Princeton, NJ 08540

Washington, DC 20530

(609) 924-2075

august.flentje@usdoj.gov -- 202-514-3309

bruceafran@aol.com

Court-Judge/Agency appealed from: S.D.N.Y., Judge Forrest

Please check appropriate boxes:
Has movant notified opposing counsel (required by Local Rule 27.1):
✔9 Yes 9 No (explain):
Opposing counsel’s position on motion:
9 Unopposed ✔9 Opposed 9 Don’t Know
Does opposing counsel intend to file a response:
9 Yes 9 No ✔9 Don’t Know

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

Has request for relief been made below?

✔9 Yes 9 No

Has this relief been previously sought in this Court?

9 Yes ✔9 No

Requested return date and explanation of emergency: Immediate.

District court injunction injects dangerous confusion

into the conduct of military operations abroad.

Is oral argument on motion requested?

9 Yes ✔9 No (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set?

9 Yes ✔9 No If yes, enter date:__________________________________________________________

Signature of Moving Attorney:
_s_/_A_u__g_u__s_t__E_.__F_l_e__n_t_je______________Date: _0_9__/_1_7__/2__0_1__2______ Service by: ✔9 CM/ECF

9 Other [Attach proof of service]

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court
Date: _____________________________________________ By: ________________________________________________

Form T-1080 (rev. 7-12)

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

___________________________________

)

CHRISTOPHER HEDGES, et al., )

)

Plaintiffs,

)

)

v.

)

)

BARACK OBAMA, et al.,

)

)

Defendants.

)

____________________________________)

No. 12-3644

DEFENDANTS-APPELLANTS’ EMERGENCY MOTION FOR STAY PENDING APPEAL AND FOR AN IMMEDIATE STAY DURING THE
CONSIDERATION OF THIS MOTION

PREET BHARARA United States Attorney

STUART F. DELERY Acting Assistant Attorney General

BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD
Assistant United States Attorneys
JEH CHARLES JOHNSON General Counsel Department of Defense

BETH S. BRINKMANN Deputy Assistant Attorney General
ROBERT M. LOEB (202) 514-4332
AUGUST E. FLENTJE (202) 514-3309 Attorneys, Appellate Staff Civil Division, Room 3613 Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530

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INTRODUCTION AND SUMMARY By this emergency application, the government requests an immediate administrative stay pending resolution of the government’s motion for a stay, as well as a stay pending final disposition of this appeal. This is a suit brought by a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of ever being captured and detained by the U.S. military. In accepting plaintiffs’ constitutional challenges, the district court struck down, as unconstitutional on its face, a duly-enacted Act of Congress – Section 1021(b)(2) of the National Defense Authorization Act of 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011), and entered a sweeping permanent injunction against invoking it. Order (September 12, 2012) (attached as Exhibit 1). That law explicitly affirms the President’s detention authority under the earlier Authorization for Use of Military Force (AUMF), 115 Stat. 224 (2001). The AUMF was passed by Congress in the immediate aftermath of the attacks on September 11, 2001, and constitutes the President’s central legislative authority for the ongoing military operations against al-Qaeda, the Taliban, and associated forces. Not only did the court enjoin Section 1021(b)(2) of the NDAA, but the district court also went on to reject, albeit not enjoin, the Executive Branch’s long-standing interpretation of the AUMF, which interpretation includes, in defining the scope of
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detention authority, the concepts of “substantial support” and “associated forces.” That interpretation has been endorsed by two Presidents, by the D.C. Circuit in habeas litigation brought by Guantanamo detainees, and by the Congress in Section 1021(b)(2). The district court nonetheless dispensed with that interpretation. Put another way, the district court has taken it upon itself to disagree with an interpretation of the military’s detention authority that had previously been endorsed by all three Branches of government. What is more, the district court expressly invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with the court’s deeply flawed understanding of the scope of that authority.
This is vastly more troubling than the court’s prior preliminary injunction. There the court expressly acknowledged that the government’s AUMF authority remained, Memorandum Order at 5 (May 16, 2012), and explicitly “agree[d] [with the government] that the [preliminary] injunction does not go beyond Section 1021(b)(2).” Memorandum Order at 2 (June 6, 2012).
In the permanent injunction ruling, the district court has now taken the additional step of expressly inviting actions for contempt sanctions, apparently even by persons not party to the suit, if the military exercises detention authority in a manner consistent with the Executive’s long-standing interpretation, endorsed by the courts and Congress, of the government’s detention authority under the AUMF.
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Order at 14. In inviting those contempt proceedings, the district court order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict. There should be no mistake: the court’s opinion, and its invitation of contempt proceedings, are addressed directly to detention practices in areas of active hostilities.
An immediate stay should be entered for these and other reasons: First, the district court has enjoined wholesale an Act of Congress on the ground that it is facially unconstitutional. It is basic that all Acts of Congress are presumed constitutional and should remain in effect pending a final decision on the merits by the Supreme Court. This must be true especially in matters of national security and the conduct of military operations. Second, the injunction, which was entered against the President as Commander-in-Chief in his conduct of ongoing military operations, is unprecedented and exceeded the court’s authority. Moreover, the injunction appears to be worldwide in its effect, intruding upon military operations in the ongoing armed conflict against al-Qaeda, the Taliban, and associated forces. Third, a stay will not harm plaintiffs. The district court entered this extraordinary injunction in a case in which none of the plaintiffs even have standing; the reality is they face absolutely no threat of military detention under Section 1021
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of the NDAA or the AUMF based on the conduct in which they say they want to engage.
Fourth, the district court’s objections to Section 1021(b)(2) are, as stated before, at odds with the interpretation that has been given to the President’s detention authority by two Presidents, the D.C. Circuit, and the Congress itself. Further, in taking Congress to task for a lack of greater specificity or a scienter requirement in Section 1021(b)(2), the district court misunderstood the fundamental purpose of Section 1021(b)(2) and the AUMF; they are war authorizations conferred upon the President, not penal statutes intended to regulate and punish conduct. Throughout the history of this Nation, war authoritizations such as this simply do not, cannot, and should not provide the level of specificity that the district court believes they require.
The district court’s overbroad worldwide injunction is erroneous as a matter of law and threatens tangible and dangerous consequences in the conduct of an active military conflict. The order should be stayed immediately and remain stayed until final resolution of the appeal.
STATEMENT A. Statutory Background
In response to the attacks of September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF) in 2001. The AUMF authorizes
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“the President * * * 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.” AUMF § 2(a), 115 Stat. 224. The President has exercised his authority to order the Armed Forces to fight both the al-Qaeda terrorist network and the Ta1iban regime that harbored it in Afghanistan. Armed conflict with al-Qaeda and the Taliban, and forces associated with them, remains ongoing, and in connection with those military operations, persons captured by the United States and its coalition partners have been detained pursuant to the AUMF authority. In a challenge to one of those detentions, and interpreting the AUMF, a plurality of the Supreme Court explained that the “detention of individuals . . . 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.” Hamdi v. Rumsfeld, 542 U.S. 507, 518; see also Boumediene v. Bush, 553 U.S. 723, 733 (2008) (reaffirming holding of Hamdi).
Over the years, spanning two Presidents, the Executive Branch has adopted a publicly available interpretation of the AUMF. The government submitted a refined interpretation of the AUMF to the federal district court in Washington on March 13, 2009, in the ongoing habeas litigation brought by Guantanamo detainees.
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See Memorandum Regarding Government’s Detention Authority [March 2009
Memo.] (March 13, 2009), available at http://www.justice.gov/opa/documents/ memo-re-det-auth.pdf. 1 That definition, which the government explained was
“informed by principles of the laws of war,” is as follows:
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.
March 2009 Memo. at 2.
Over the last three and a half years, this interpretation has been utilized by the
Executive Branch in the habeas litigation brought by the Guantanamo detainees, and
the courts have accepted and endorsed it – including, specifically, the concepts of
“substantial support” and “associated forces.” See, e.g., Khan v. Obama, 655 F.3d
20, 32-33 (D.C. Cir. 2011); Al-Bihani, v. Obama, 590 F. 3d 866, 872 (D.C. Cir.
2010); Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010), cert. denied, 131
S.Ct. 1001 (2011); Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); Awad
1 The March 2009 interpretation refined a prior interpretation issued in 2004, which generally covered all “supporters” rather than “substantial supporters” and was not expressly informed by the laws of war. See Parhat v. Gates, 532 F.3d 834, 837 38 (D.C. Cir. 2008) (describing 2004 definition).
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v. Obama, 608 F.3d. 1, 11-12 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1814 (2011), Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009).
In 2011, Congress enacted its own endorsement of the Executive Branch’s interpretation of its detention authority under the AUMF, when it passed Section 1021 of the National Defense Authorization Act (NDAA). Among other things, the law expressly “affirms that the authority of the President” under the AUMF “includes the authority for the Armed Forces * * * to detain covered persons.” NDAA § 1021(a). Section 1021(b)(2) of the NDAA then defines “covered persons” to include:
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. NDAA § 1021(b)(2). This is a nearly verbatim affirmation by the Congress of the Executive Branch’s interpretation of the AUMF. See March 2009 Memo. at 1-2. Section 1021 further specifies that the NDAA affirms, and does not alter, the authority encompassed by the AUMF, stating that “[n]othing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” NDAA § 1021(d); see also Statement by Pres. Barack Obama upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011) (provision “breaks no new ground and is unnecessary” because the
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“authority it describes was included in the 2001 AUMF, as recognized by the
Supreme Court and confirmed through lower court decisions since then”). Section
1021 further specifies that “[n]othing in this section shall be construed to affect
existing law or authorities relating to the detention of United States citizens, lawful
resident aliens of the United States, or any other persons who are captured or
arrested in the United States.” NDAA § 1021(e).
B. Factual Background and Proceedings Below
1. Plaintiffs are individual journalists and public advocates. See Order at
16-28. They filed this suit claiming that Section 1021(b)(2) of the NDAA
violates their free speech and association rights as well as due process rights.
Complaint at 18-19, 20-22. Plaintiffs claim that they “hav[e] an actual and
reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).” Order at 3.2
2. The district court rejected the government’s argument that plaintiffs lack
standing to obtain a permanent injunction against Section 1021 because they face
2 In support of their claims, some of the plaintiffs testified before the district court. For example, plaintiff Hedges testified that he is a journalist and had “interview[ed] al-Qaeda members who were later detained and that some of his works have appeared on Islamic and jihadist websites.” Id. at 16, 19. Plaintiff O’Brien founded a group called the U.S. Day of Rage and operates a web site called WL Central. Id. at 20. She testified that she had published articles critical of Guantanamo and learned that “information about U.S. Day of Rage had been posted on . . . two al-Qaeda recruitment sites.” Order at 22-23. Two other plaintiffs are foreign nationals living abroad. Order at 25-28; see Complaint ¶¶ 5-6.
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no risk of harm from the statute, inasmuch as Section 1021 was only a “reaffirmation of the AUMF” that has been in place for more than 10 years, and plaintiffs had faced no prospect of detention during that time. Order at 33. The court disagreed based on its view that the “AUMF set forth detention authority tied directly and only to September 11, 2001,” whereas Section 1021 “adds significant scope in its use of the phrases ‘substantially supported,’ ‘associated forces that are engaged in hostilities against the United States or its coalition partners,’ and ‘directly supported.’” Id. at 35, 43. The court therefore concluded that plaintiffs reasonably feared application of the new law to them. Id. at 57.
On the merits, the court first ruled that Section 1021(b)(2) is unconstitutional on its face because it is an impermissible content-based restriction on speech. Order at 82-97. The court acknowledged that the statute “does have a legitimate, non-First Amendment aspect” – for example, it covers detention of “members of al-Qaeda fighting U.S. forces on a battlefield outside of U.S. territory.” Id. at 84, 91. Nonetheless, the court concluded that the provision must be permanently enjoined on its face, i.e. in all its applications, because there is “some amount of undefined activities protected by the First Amendment” that might be covered by the law. Id. at 97.
The court also held that Section 1021(b)(2) is unconstitutionally vague in violation of due process, because of its use of the terms “substantially supported”
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and “associated forces.” Order at 99. The court rejected the government’s argument that the scope of military detention authority had been defined with sufficient clarity, including in the series of D.C. Circuit cases involving Guantanamo detentions, which had interpreted the scope of detention authorized under the AUMF that Congress then explicitly reaffirmed in the NDAA. Id. at 106-07.
The court’s order “permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person.” Order at 111-12. It also states that “[m]ilitary detention based on allegations of ‘substantially supporting’ or ‘directly supporting’ the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2).” Id. at 112.
3. On September 14, 2012, the government filed a motion in the district court seeking a stay pending appeal and an immediate interim stay pending resolution of the stay motion. The district court denied the request for an immediate interim stay on September 14, and indicated informally that it would not resolve the stay motion until at least September 19. Later on September 14, the government informed this Court that it would seek an interim stay, and filed the instant emergency motion on September 17.
ARGUMENT An immediate administrative stay should be entered pending resolution of the
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government’s motion for a stay pending appeal of the district court’s order. The district court has entered a sweeping injunction, directly against the President and the Secretary of Defense, that strikes down as facially unconstitutional a federal statute relating to the United States’ power to detain individuals as part of the conflict with al-Qaeda, the Taliban, and associated forces, with implications for ongoing military operations and causing potential harm to national security. It also expressly includes an invitation for contempt proceedings that appears to envision an exercise of the court’s authority beyond enjoining Section 1021(b)(2) to deter the military from continuing to adhere to the reading of the AUMF that has stood for years and has been approved by the D.C. Circuit and Congress. This Court has entered such immediate administrative stay orders in past cases, and should do so here to give it time to consider the submissions from the parties. See, e.g., Acorn v. United States, No. 10-992, Order, D.E. 23 (2d Cir. April 2, 2010); In re: Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 04-3738 (2d Cir. July 19, 2004). We have contacted counsel for plaintiffs, and they have indicated that they oppose the relief requested in this motion.
A full stay pending appeal is also necessary and fully warranted in this case. In considering a request for a stay pending appeal, this Court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a
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stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (footnote omitted). Here, each factor weighs heavily in favor of staying the permanent injunction pending final resolution of the government’s appeal.
Before addressing the stay factors in detail, however, it is critical to understand the unprecedented nature of the suit the district court entertained and the injunction it granted: they are against the President of the United States and the Secretary of Defense, concerning the conduct of congressionally-authorized military operations against al-Qaeda, the Taliban, and associated forces. No such injunctive action should lie in that context, and no such relief should be granted. This is a critical point that cuts across the stay factors: it is a threshold bar to the action, it is one of many reasons the government is likely to succeed on the merits, and it in any event is a powerful equity weighing against the granting of relief to plaintiffs.
The district court has enjoined the President, as Commander in Chief, from carrying out wartime operations specifically authorized by Congress. See NDAA § 1021(a) (“affirm[ing] the authority of the President to use all necessary and appropriate force,” including the detention authority reaffirmed in § 1021(b)(2)). Even outside the war context, the Supreme Court has made clear that an injunctive action against the President could lie, if at all, only in very limited circumstances,
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and that any such injunction would be extraordinary. Thus, in Franklin v. Massachusetts, 505 U.S.788 (1992), the plurality concluded that, although the Court had “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty,’ Mississippi v. Johnson, 4 Wall. 475, 498-499 (1867),” and had held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, “in general” the courts have “’no jurisdiction of a bill to enjoin the President in the performance of his official duties,’” id. at 802-803 (plurality). Justice Scalia reached the same conclusion, quoting the same passage from Mississippi v. Johnson, id. at 827, and also quoting a treatise for the proposition that “[n]o court has ever issued an injunction against the President himself,” ibid. (citation omitted). Thus, “at the threshold, the District Court should have evaluated whether injunctive relief against the President was available.” Id. at 803 (plurality opinion).3
If ever an action for injunctive relief might lie against the President, one does not lie in the context of this case, which relates to core military functions that are being carried out under the authority of the President at a time of ongoing armed conflict under a specific congressional authorization. See Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (“detention to prevent a
3 See also id. at 827-28 (Scalia, J., concurring) (“For similar reasons, I think we cannot issue a declaratory judgment against the President”).
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combatant’s return to the battlefield is a fundamental incident of waging war”).
The constitutional concerns are particularly acute where an injunction would entail
“judicial intrusion into the Executive’s ability to conduct military operations
abroad.” Munaf v. Geren, 553 U.S. 674, 700 (2008); see also Holder v.
Humanitarian Law Project [HLP], 130 S. Ct. 2705, 2727 (2010) (in national
security matters, courts are reluctant to issue an injunction in part due to the “lack of
competence” on the part of the courts). Here, the authority being enjoined stems
directly from Congress’s constitutional authority to declare war and raise and
support armies, and the military’s reliance on it stems directly from the President’s
constitutional authority as commander in chief. U.S. Const., Art. I, § 8 & Art. II.
§ 2.4
4 Injunctive relief is also inappropriate against the Secretary of Defense in this case. Where, as here, Executive Branch officers assist the President in carrying out discretionary powers and responsibilities vested in the President by the Constitution, as is true of the Commander-in-Chief power, “their acts are his acts.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803); see also 10 U.S.C. § 113(b) (Secretary of Defense is the “principal assistant to the President” in defense matters, whose authority is “[s]ubject to the direction of the President”); id. § 162(b) (“Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs—(1) from the President to the Secretary of Defense; and (2) from the Secretary of Defense to the commander of the combatant command.”). While in other contexts an injunction might run against an Executive Branch officer responsible for assistance to the President, see Franklin, 505 U.S. at 803, no such injunction is appropriate – at least absent the most extraordinary circumstances, which are plainly not present here – with respect to future military operations, including detention. As the D.C. Circuit has explained, it is “an abuse of * * * discretion to provide discretionary relief” that could affect military operations approved by “the President [and] the Secretary of
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I. The Balance of Harms and the Balance of Equities Warrant a Stay The government has a strong likelihood of succeeding on appeal, but we first
address the other three stay factors involving the balance of harms and the public interest because the order issued by the district court is specifically addressed to, and potentially disruptive of, ongoing wartime operations. The district court’s injunction threatens significant institutional and practical harms for national security that make a stay pending appeal an imperative.
For the reasons stated above, it is a powerful factor against equitable relief that the relief granted, through ex ante judicial orders to the President and Secretary of Defense, respecting the conduct of military operations, invades the President’s power as Commander in Chief with respect to matters authorized by Congress. Making matters worse, the district court did not simply provide relief to the plaintiffs before it, but the court inexplicably enjoined application of Section 1021(b)(2) “in any manner, as to any person.” Order at 111-12 (emphasis added).
The worldwide injunction places an entirely unjustified and harmful burden on the conduct of military operations during an active military conflict. Indeed, the court magnified the scope of this fundamental error by inviting motions for
Defense.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (Scalia, J.). The injunction therefore strikes at the heart of authority conferred upon the political Branches.
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contempt, perhaps even by non-party detainees, against the President and the Secretary of Defense, with regard to not only Section 1021(b)(2), but also the AUMF, which was not enjoined by the district court and was not challenged by plaintiffs in this suit. In doing so, the court wholly misinterpreted the AUMF – the Executive Branch’s central congressional authority for the ongoing armed conflict against Al Qaeda, the Taliban, and associated forces – contrary to interpretations by Congress itself, the D.C. Circuit, and two Presidents. See Order at 14 (“If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of ‘substantially or directly supporting’ associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed”); Order at 112 (“[m]ilitary detention based on allegations of ‘substantially supporting’ or ‘directly supporting’ the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2)”).
The President and the D.C. Circuit interpret the AUMF to provide detention authority over those who are “part of” or “substantially support” al-Qaeda, the Taliban, or associated forces. See supra, pp. 5-7. As noted above, Congress’s express purpose in the NDAA was to affirm this interpretation. NDAA § 1021(d).
Although the district court states, on the one hand, that the permanent injunction against invoking Section 1021(b)(2) “removes no tools from the
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Government’s arsenal,” Order at 110, it also states, in the context of discussing contempt, that the government would face “a heavy burden indeed” if it detains individuals because they are “‘substantially or directly supporting’ associated forces.” Order at 14.
In this respect, the permanent injunction entered by the court is vastly more troubling than the court’s prior preliminary injunction, and is the reason for this emergency motion for a stay. In entering a preliminary injunction, the district court assured the government that “preliminarily enjoining enforcement” of Section 1021(b)(2) “should not remove any enforcement tools from those the Government currently assumes are within its arsenal,” including preexisting detention authority under the AUMF. Memorandum Order at 5 (May 16, 2012). The court further clarified that it “agree[d] [with the government] that the [preliminary] injunction does not go beyond Section 1021(b)(2)” to limit AUMF authority. Memorandum Order at 2 (June 6, 2012). While purporting to repeat the assurance that the government would have “tools” in its permanent injunction order, Order at 110, the district court then issued its injunctive command in the same sentence in which it announced its narrow view of the AUMF. Order at 112. In that sentence the court expressly rejected the Executive’s long-standing interpretation of the government’s detention authority under the AUMF that had been endorsed by the courts and Congress. Id. (“Military detention based on . . . ‘substantial[] support[]’ . . . is not
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encompassed within the AUMF and is enjoined by this order regarding §
1021(b)(2)”); see also id. at 14 (rejecting government’s interpretation of AUMF
together with discussion of possible contempt sanctions).
By rejecting the government’s longstanding understanding of its AUMF
authority, in a context in which deference to the Executive’s interpretation should be
at its zenith, the court has placed the military in a difficult and burdensome position
rife with confusion. The confusion engendered by this extraordinary ruling is
heightened by the court’s failure to issue its injunction in a separate injunctive order.5
The court’s opinion thus appears to contemplate curtailing the U.S. military’s
ability to continue to adhere to the Executive’s longstanding interpretation of the
AUMF, an interpretation approved by Congress, and it does so in a case that did not
even challenge that authority. To be clear: the court’s opinion, and the invitation of contempt proceedings, may impact detention practices in areas of active hostilities.6
5 See Allen Bradley Co. v. Local Union No. 3, 164 F. 2d 71, 73 (2d Cir. 1947) (when no separate injunctive order issued, “separating the licit from the illicit seems a heavy task for [those] . . . against whom the court's command is directed”). 6 Were the contempt proceedings invited by the district court to be brought by military detainees at Guantanamo or in Afghanistan, such proceedings could evade various review limitations enacted by Congress, constitutional limitations on the writ of habeas corpus, and the directive of the Supreme Court in Boumediene v. Bush. See 553 U.S. 723, 795-96 (2008) (to “reduce administrative burdens on the Government,” a “legitimate objective,” detainee review petitions should be “hear[d]. . . [in] the United States District Court for the District of Columbia”); see Maqaleh v. Gates, 605 F. 3d 84, 99 (D.C. Cir. 2010) (no constitutional habeas
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Plainly, this unprecedented order threatens irreparable harm, both on the military and the public interest, and should not stand. It should be stayed pending final resolution of the government’s appeal.
The permanent injunction further causes irreparable harm and undermines the public interest through its invalidation of a federal statute as unconstitutional on its face. Section 1021(b)(2), “like all Acts of Congress, * * * is presumptively constitutional” and “[a]s such, it ‘should remain in effect pending a final decision on the merits by [the Supreme] Court.’” Turner Broadcasting System, Inc. v. F.C.C., 507 U.S. 1301, 1301 (1993) (Rehnquist, J., in chambers); Maryland v. King, No. 12A48, 2012 WL 3064878, at *2 (Roberts, C.J., in chambers) (“‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury’”) (quoting New Motor Vehicle Bd. Of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)); see Heart of Atlanta Motel, Inc. v. United States, 85 S. Ct. 1, 2 (1964) (Black, J., in chambers). The “‘presumption of constitutionality which attaches to every Act of Congress . . . [is] an equity to be considered in favor of [the government] in balancing hardships.’” United States v. Comstock, No. 08A863 (Apr. 3, 2009) (Roberts, C.J., in chambers) (quoting Walters v. National
jurisdiction to hear habeas petitions filed by detainees in Afghanistan); 28 U.S.C. § 2241(e)(2) (no federal court jurisdiction to hear actions other than habeas proceedings by detainees determined to be enemy combatants or awaiting such a determination).
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Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, in chambers)). Absent a stay, an injunction against the military’s reliance on a statutory authorization of detention as an aspect of the use of military force harms these democratic interests, because the policy of Congress “is in itself a declaration of the public interest.” Virginian Ry. Co. v. Sys. Fed=n No. 40, 300 U.S. 515, 552 (1937).
Further, a stay will not harm plaintiffs. For reasons discussed further below, the plaintiffs have suffered no injury due to Section 1021(b)(2), and the government made clear on the record that the activities described by plaintiffs could not subject them to military detention. Therefore, plaintiffs not only lack standing, but also will not be harmed by a stay. The plaintiffs thus can present no equities at all to outweigh the competing interests of the government and the public. The balance of the harms, and the public interest, therefore call for the issuance of a stay pending appeal. II. The Government Is Likely to Prevail on the Merits.
The government is highly likely to prevail on the merits of this appeal for at least three reasons. First, plaintiffs lack standing. Second, facial invalidation of Section 1021(b)(2) was unwarranted under either a due process or First Amendment theory. Third, equitable relief is not appropriate here, and the injunction is overbroad. Standing alone, each of these errors provides an adequate basis for a
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stay and reversal. The combination of errors makes all the more clear the government’s likelihood of success on the merits and the need to enter a stay of the injunction now.
As an initial matter, the district court analyzed the legal issues posed by this case based on a profound misunderstanding of the principles of statutory interpretation, military detention, and the laws of war, and without adequate attention to the analysis by the D.C. Circuit, which has developed particular experience in the past decade in these areas.
First, the court believed that the AUMF applies only to individuals directly involved in the September 11th attacks. Order at 45 (“AUMF does not encompass detention for individuals other than those directly linked to the events of September 11, 2001”). But the AUMF by its terms, and of necessity, authorizes all “necessary and appropriate” military force against “those . . . organizations [the President] determines planned, authorized, or aided the terrorist attacks,” AUMF § 2(a) (emphasis added), including, of course, al-Qaeda. It therefore applies to individuals or forces that have a sufficient tie to al-Qaeda or the Taliban, whether or not the individuals were themselves directly linked to the events of September 11, 2001. The standards developed by two Presidents, embraced by the Supreme Court in Hamdi, validated by the D.C. Circuit, and affirmed by Congress in NDAA § 1021(b)(2), all involve determining whether a person or force is sufficiently tied to
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al-Qaeda, which operates clandestinely, to be a proper subject of military force, including military detention. See, e.g., Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010). These standards do not – and could not – restrict the scope of detention to those personally responsible for the attacks on September 11, 2001.
Second, the district court fundamentally erred in reasoning that § 1021(b)(2)’s terms are impermissibly ambiguous. An Act of Congress such as the AUMF is addressed to the President in the exercise of war powers; it is not a statute regulating private conduct. A Congressional authorization for the use of force, such as the AUMF or a declaration of war, authorizes the use of necessary force to address an existing state of armed conflict or an identified threat.7 Traditionally, war powers are authorized by Congress in the most general terms, see supra n.7, without the type of specificity the district court apparently believed necessary. Those very concise acts implicate a regime of other legal authorities and standards, including the international laws of war, that inform the exercise of war powers. In the present case, the laws of war inform the interpretation of the AUMF and NDAA, such that they apply to “those persons whose relationship to al-Qaida or the Taliban would, in
7 See, e.g., Auth. for Use of Military Force Against Iraq Res. of 2002, Pub. L. No. 107-243, 116 Stat. 1498; Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991); Joint Res. of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384 (Vietnam); Joint Res. of Dec. 8, 1941, ch. 561, 55 Stat. 795 (Japan); Joint Res. of Apr. 6, 1917, ch. 1, 40 Stat. 1 (Germany); Act of Apr. 25, 1898, ch. 189, 30 Stat. 364 (Spain); Act of May 13, 1846, ch. 16, 9 Stat. 9 (Mexico); Act of June 18, 1812, ch. 102, 2 Stat. 755 (Britain).
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appropriately analogous circumstances in a traditional armed conflict, render them detainable.” March 2009 Memo. at 1; see NDAA § 1021(a) (detentions authorized “under the laws of war”). The district court failed to recognize this key to understanding the AUMF and the NDAA.
Third, the court mistakenly believed that the government’s invocation of the laws of war to “inform” its interpretation of the AUMF somehow served to expand Presidential authority, and that this expansion was “rejected” by the D.C. Circuit in Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010). Order at 39-40, 42. In fact, the question before the D.C. Circuit was the converse – whether the laws of war limited the President’s AUMF authority, and the D.C. Circuit panel in that case rejected the notion that the laws of war constrain the President’s authority. Al-Bihani, 590 F. 3d at 872. In other words, the D.C. Circuit panel in Al-Bihani concluded that the laws of war could not be invoked to narrow the scope of detention authority conferred by the AUMF. The opinion cannot plausibly be read to hold, or even suggest, that the detention of substantial supporters is not authorized under the AUMF.8
These overarching errors just discussed reinforce the conclusion that the
8 A majority of the judges responding to a petition for rehearing en banc in Al-Bihani then issued a statement leaving resolution of that question for a future case because the “panel's discussion of that question is not necessary to the disposition of the merits.” Al-Bihani v. Obama, 619 F. 3d 1, 1 (2010) (statement of seven judges on denial of en banc review).
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district court further erred in numerous ways that demonstrate that the government is very likely to succeed on the merits of the appeal.
A. Plaintiffs Lack Standing. The district court entered this extraordinary and fundamentally flawed order in a context where there was not even a party before it with standing. Section 1021(b)(2) has not injured the plaintiffs, and there is no imminent injury to be redressed by the court’s order striking down the statute. See Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
To establish standing, a “plaintiff must have suffered an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A court’s standing inquiry must be “especially rigorous when,” as here, “reaching the merits of the dispute would force [a court] to decide whether an action taken by [another] branch[] of the federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
An “[a]bstract injury,” Lyons, 461 U.S. at 101, and “[a]llegations of possible future injury” that enter “the area of speculation and conjecture,” “do not satisfy the[se] requirements,” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Id. (quotation marks omitted). Even in a case involving a statute – unlike the AUMF or Section 1021(b)(2), see infra pp. 30-32 – that directly regulates private conduct by
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imposing penalties for engaging in statutorily proscribed acts, plaintiffs who claim a constitutional right to take the forbidden action must demonstrate a sufficiently “credible threat of [enforcement].” HLP, 130 S. Ct. at 2717. And when plaintiffs invoke the harm of “self-censorship” in challenging such a statute that regulates private conduct, this Court has required at least “an actual and well-founded fear that the [statute] will be enforced against [them].” Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000).9
The primary injury accepted by the district court as sufficient to support standing was the prospect that plaintiffs would be detained under Section 1021(b)(2) based upon their journalism and public advocacy. See Order at 19-20, 23-24, 26, 27-28. The district court’s first error in analyzing this standing claim was to ignore a key provision of the NDAA. The NDAA explicitly and unambiguously states that the challenged provision, Section 1021(b)(2), does not affect citizens or people arrested in the United States. See NDAA § 1021(e) (NDAA § 1021 does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States). The President has further made clear that he “will not authorize the indefinite military detention without trial of American citizens.”
9 The United States disagrees with this Court’s view that a self-imposed chill based on a reasonable fear of enforcement is sufficient, Amnesty Int’l USA v. Clapper, 638 F.3d 118, 133-135, 137-138 (2d Cir. 2011), cert. granted, 132 S. Ct. 2431 (2012), but recognizes that panels of this Court are currently bound by that precedent.
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Statement by Pres. Obama, 2011 U.S.C.C.A.N. at S12. Thus, the only plaintiffs NDAA § 1021(b)(2) might impact are noncitizens
who are outside of the United States. Indeed, the non-citizen plaintiffs in this case do not even claim any substantial connection to the United States. They are not in a position to invoke due process vagueness principles or the First Amendment to challenge under the U.S. Constitution actions of the United States government – especially to enjoin the President and Secretary of Defense during an ongoing armed conflict. See Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (due process); United States v. Verdugo-Urquidez, 494 US 259, 265 (1990) (citing United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904), for the proposition that an “[e]xcludable alien is not entitled to First Amendment rights”); Klendienst v. Mandel, 408 U.S. 753, 762 (1972) (First Amendment).
Even putting aside this fundamental threshold flaw in the district court’s standing analysis, the claimed fears of detention, as found by the district court, are woefully inadequate to establish a “credible,” HLP, 130 S. Ct. at 2717, “well founded,” Vt. Right to Life Comm., 221 F.3d at 382, or in any way reasonable fear of detention under Section 1021(b)(2). Some of the findings do not show any real fear of enforcement or establish the plaintiffs changed their behavior to allay such fears. Order at 20 (Hedges “anticipated” changing activities); id. at 26 (Wargalla “considered” not inviting group to conference); id. at 27 (Jonsdottir “concerned”
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about her involvement with WikiLeaks). The remaining claimed fears relate to activities that are so common – and so obviously not the subject of the war against al-Qaeda, the Taliban, and associated forces – that a fear of detention based on them would be wholly unreasonable. Prelim. Inj. Order at 22 (O’Brien concerned about publishing articles critical of Guantanamo); id. at 23 (O’Brien concerned about similarities between “intelligence collection” and journalism); id. at 17 (Hedges concerned about reporting on terrorist groups). These fears are not objectively reasonable. See Lyons, 461 U.S. at 107 n.8 (subjective fears do not establish “the reality of the threat of injury”); Laird, 408 U.S. at 13-14.
The district court largely based its finding of standing on its dissatisfaction with the government’s assurance that the NDAA does not reach the conduct in which plaintiffs say they want to engage. See Order at 29-30. Standing, however, must be established by plaintiffs. See Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). In any event, the government considered each of the plaintiffs’ personal circumstances and represented to the district court on the record that plaintiffs could not be subject to detention as a matter of law, under either the AUMF or the NDAA, based on their stated activities. See Order at 29-30. Those representations conclusively rebut plaintiffs’ claims that they reasonably fear detention.
But even apart from those representations, plaintiffs’ stated fears, for three
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reasons, are not objectively reasonable. First, the AUMF detention authority had been in force for more than ten years
prior to the enactment of Section 1021(b)(2). During that time none of the plaintiffs were threatened with detention and none allege that they feared being detained. Nor was there evidence of any detentions based upon independent journalism or advocacy.10 The AUMF has been interpreted by two Presidents for more than eight years to authorize detention of those who are part of or substantially support al-Qaeda, the Taliban, or associated forces – including the very two elements, “substantial support” and “associated forces,” that are challenged here. See Parhat v. Gates, 532 F.3d 834, 837-38 (D.C. Cir. 2008) (describing 2004 CSRT definition); March 2009 Memo. at 2 (“substantially supported” and “associated forces”). That interpretation has been upheld by the D.C. Circuit, see, e.g., Al-Bihani, 590 F.3d at 872, and affirmed by Congress. NDAA § 1021(b)(2). Thus, irrespective of the district court’s view as to the proper scope of the AUMF – and irrespective of the court’s faulty theory that it is narrower than Section 1021(b)(2) of the NDAA – there is no doubt that the Executive Branch has interpreted the AUMF to include a “substantial support” and “associated forces” component.
Second, the district court’s rationale for rejecting the relevance of this
10 The Executive previously used a “support” definition that is broader than that adopted by the Executive in March 2009 and affirmed by Congress in Section 1021(b)(2) of the NDAA, yet it also did not result in plaintiffs, or others in their position, being detained or threatened with detention.
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historical understanding is seriously mistaken. Section 1021(b)(2) of the NDAA expressly codified the President’s already existing interpretation of the AUMF, as upheld by the D.C. Circuit, and enactment of Section 1021(b)(2) therefore did not expand the scope of detention authority in any substantive respect. Congress specified, in the statutory text itself, that the statutory definition “affirms” the AUMF detention authority and is not “intended to limit or expand the authority of the President or the scope of the [AUMF].” NDAA § 1021(d); see Statement by Pres. Barack Obama upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011) (provision “breaks no new ground and is unnecessary” because the “authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then”). The district court clearly erred in declining to defer to the Executive’s interpretation and a settled body of law by the appellate court that has been accorded particular responsibility and has considerable expertise in construing the AUMF. The reality is that plaintiffs face no risk of detention now, just as they faced no risk of detention under the AUMF for the last 11years.
Third, contrary to the district court’s misguided view of the role of the law of war, in March 2009 the government interpreted the AUMF as informed by law-of-war principles to determine the scope of AUMF authority, not to expand it. Indeed, the standard adopted by Congress was based on the standard upheld in
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Hamdi as comporting with the laws of war. See 542 U.S. at 518-19 (authority to detain those who are “‘part of or supporting forces hostile to the United States or coalition partners in Afghanistan’ and ‘engaged in an armed conflict against the United States’” 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”). The laws of war inform the interpretation of the AUMF and NDAA and therefore the detention authority applies to “those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional armed conflict, render them detainable.” March 2009 Memo. at 1; see NDAA § 1021(a) (detentions authorized “under the laws of war”).
While the district court reasoned that the laws of war are “vague” and support plaintiffs’ general fear of being subject to detention, Order at 38, this contention is without merit. Those laws of war have been developed over centuries, and they do not support the plaintiffs’ claimed fear that they will be detained based on their independent journalism or public advocacy. March 2009 Mem. at 1 (“laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law”). Indeed, as explained, the government advised the district court that the plaintiffs’ stated activities would not subject them to detention as a matter of law.
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Plainly, the district court erred in holding that plaintiffs have standing to seek a worldwide injunction regarding the military’s detention powers under Section 1021(b)(2). But even if plaintiffs were somehow found to satisfy the requirements of Article III, any likelihood of harm is so attenuated that it could not remotely outweigh the profound equities of the government and public against recognizing a cause of action for equitable relief in these circumstances – even assuming such an action could ever be brought to enjoin the President and Secretary of Defense in this context.
B. NDAA § 1021(b)(2) is Constitutional. The government is also likely to prevail on the merits because NDAA § 1021(b)(2) is constitutional and it was error to facially invalidate it under the Due Process and Free Speech Clauses.
1. As an initial matter, the asserted constitutional rights must be viewed in the context of a military force authorization designed not to regulate private conduct through the imposition of penalties, but to authorize and enable wartime operations abroad in an active military conflict. There is no doubt that in that context, Congress has great leeway to authorize force generally. Our constitutional structure then provides that if that force were to be exercised in a way that impinges on a constitutional liberty, the situation will be addressed not through ex ante judicial orders directing the conduct of military operations abroad, but through appropriate, tailored remedies as applied to the specific circumstances. Indeed,
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historically, as we have explained, force authorizations are written in general terms, and would never properly be held to violate constitutional protections on their face because they granted authority in general terms or did not sufficiently carve out First Amendment protected speech. See, e.g., Joint Res. of Dec. 8, 1941, ch. 561, 55 Stat. 795 (Japan) (“The President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination”). The notion that a force authorization like NDAA § 1021(b)(2) – which is more specific and therefore imposes more constraints on the President than historical force authorizations – confronts a greater risk of invalidation because Congress imposed those constraints is counterintuitive and represents a seriously flawed importation of legal principles governing challenges to criminal statutes to a context in which they were not designed to govern and are singularly out of place. Against this background, a statute like Section 1021(b)(2) cannot be challenged on ordinary due process vagueness grounds.
The district court’s analysis of plaintiffs’ First Amendment challenge is wrong for similar reasons. And more specifically, Section 1021 is not a content-based restriction on speech. Indeed, it does not even mention any form of expression or even regulate private, primary conduct. It is a statute that operates as
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a grant of general war powers. The AUMF authorized the President to take action against persons with the requisite ties to al Qaeda, the Taliban, and associated forces, and Section 1021affirmed that authority; neither statute is directed to speech as such, and cannot be treated in the same manner as a criminal statute that may reach certain expressive activity. See Virginia v. Hicks, 539 U.S. 113, 124 (2003) (“[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech”).
Moreover, for the reasons we explained above, courts generally lack authority to enjoin the President in carrying out official duties. See supra at pp. 12-14. Instead, with respect to executive detention, the Constitution itself creates the procedure for resolving challenges to Executive detention – namely, habeas corpus review – and in that manner accommodates the exercise of war powers with individual liberties. See Hamdi, 542 U.S. at 524 (habeas is the “process constitutionally due to a citizen who disputes” the validity of military detention). The claims brought here, seeking ex ante judicial direction to the President and Secretary of Defense regarding wartime operations, should not have been entertained by the district court. See, e.g., Aulaqi v. Obama, 727 F. Supp. 2d 1, 47-52 (D.D.C. 2010) (court would not consider request to enjoin military operations “[b]ecause decision-making in the realm of military and foreign affairs is textually committed to the political branches” and “courts are functionally ill-equipped to
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make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims”); cf. Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
2. General principles of constitutional analysis, even apart from those applicable in the context of military force authorizations, further demonstrate that the government is likely to succeed on the merits in this case.
“Facial challenges are disfavored” because they “often rest on speculation” and “run contrary to the fundamental principle of judicial restraint that courts should [not] anticipate a question of constitutional law in advance of the necessity of deciding it.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008). Accordingly, “a plaintiff can only succeed in a facial challenge by establishing . . . that the law is unconstitutional in all of its applications.” Id. at 449. “[A] facial challenge must fail where the statute has a plainly legitimate sweep.” Id.
With respect to due process, a facial challenge of vagueness cannot succeed when the statute has a “core” that is an “imprecise but comprehensible normative standard.” Smith v. Goguen, 415 U.S. 566, 578 (1974). Here, although Section 1021(b)(2) is not amenable to a vagueness challenge for the reasons stated above, even if it were, the terms challenged by plaintiffs are not impermissibly vague. They are informed by the laws of war, which are expressly referenced in the NDAA, the President’s interpretation, and D.C. Circuit precedent. See March 2009 Memo.
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at 2 (substantial support does not include those who provide “unwitting or insignificant support” to al-Qaeda); see also Khan v. Obama, 655 F.3d 20, 32-33 (D.C. Cir. 2011) (applying “associated force” definition to a group that “played an important and deliberate role in supporting continued attacks against coalition and Afghan forces throughout 2002”); Geneva Convention III, Art. 4(a)(4) (contemplating lawful detention of certain people who accompany military forces).
Similarly, with respect to the First Amendment, when “conduct” rather than “‘pure speech’” is at issue, “[a]pplications of the [challenged] policy that violate the First Amendment . . . [must] be remedied through as-applied litigation.” Virginia v. Hicks, 539 U.S. 113, 124 (2003). That rule itself should have been fatal to plaintiffs’ claims. It is obviously not “pure speech” to be part of, or substantially support, al-Qaeda, and there is no First Amendment protection for “directly support[ing] . . . hostilities in aid of enemy forces.” In any event, even if Section 1021(b)(2) were content-based, a First Amendment overbreadth challenge would be viable only if the “law’s application to protected speech [were] ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Hicks, 539 U.S. at 119-20. Plaintiffs’ facial challenge to Section 1021(b)(2) of the NDAA must fail under these precedents as well because, contrary to the district court’s reasoning, Order at 86-97, the statute has a plainly legitimate sweep to individuals who in no sense are engaging in expressive activities (as indeed
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the district court itself recognized in its preliminary injunction order, May 16 Order at 47). Moreover, as explained above, the NDAA’s effect runs only to aliens abroad. By it terms, it does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” NDAA § 1021(e); see supra, p. 25.
C. Worldwide Injunction Was Improper. Finally the district court committed reversible error in issuing an expansive, worldwide injunction, not limited to the handful of identified plaintiffs here. As an initial matter, because this case involved the President’s use of military force abroad in carrying out the war against al-Qaeda, the Taliban, and associated forces, the district court should not have entertained an action for injunctive relief. Cf. Munaf, 553 U.S. at 700 (equitable habeas relief should not be granted in case involving “detainees . . . captured by our Armed Forces” in “an active theater of combat” because it would amount to an “unwarranted judicial intrusion into the Executive's ability to conduct military operations abroad”).
Further, it is well established that when a party challenges the application of a statute, the court cannot properly enjoin the government with respect to nonparties on a nationwide, let alone worldwide, basis. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 16 2760 (2010) (narrowing injunction in part because the
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plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”). Additionally, “injunctive relief [should] be no broader than necessary to cure the effects of the harm caused.” Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 750 (2d Cir.1994); Patsy's Italian Restaurant, Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011).
Both these principles were violated by the district court order. The worldwide injunction, coupled with the threat of contempt proceedings, effectively attempts to enable one district court to prevent the government from defending the constitutionality of the law in any other court in any other circumstance, and thus interferes with the development of the law in other circuits – a particularly acute concern here given that other courts have applied and upheld the detention authority enjoined by the district court. See Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than” the named plaintiff); United States v. Mendoza, 464 U.S. 154, 159 (1984) (“the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the government litigates”). This
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is particularly magnified here given the impact of the injunction and threatened

contempt proceedings on national security and the conduct of military operations

abroad during wartime, as we have explained above.

In sum, the injunction is improper and it, along with the accompanying threat

of contempt proceedings, interferes with active military operations and was entered

in a law suit where the plaintiffs suffer no harm. The district court’s order should

be promptly stayed pending final resolution of the government’s appeal.

CONCLUSION

For the foregoing reasons, the Court should stay the district court’s permanent

injunction entered on September 12, 2012, pending final resolution of the

government’s appeal, and should grant an immediate administrative stay pending its

consideration of this motion.

Respectfully submitted,

PREET BHARARA United States Attorney

STUART F. DELERY Acting Assistant Attorney General

BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD
Assistant United States Attorneys
JEH CHARLES JOHNSON General Counsel Department of Defense

BETH S. BRINKMANN Deputy Assistant Attorney General
ROBERT M. LOEB (202) 514-4332
AUGUST E. FLENTJE (202) 514-3309 Attorneys, Appellate Staff Civil Division, Room 3613 Department of Justice 950 Pennsylvania Ave., NW

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SEPTEMBER 2012

Washington, D.C. 20530

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CERTIFICATE OF SERVICE I hereby certify that on this 17the day of September 2012, I caused this motion to be filed with the Court electronically by CM/ECF. I certify that the following counsel in this case who is a registered CM/ECF user will be served by the appellate CM/ECF system: Bruce Ira Afran 10 Braeburn Drive Princeton, NJ 08540
/s/ August E. Flentje August E. Flentje
Attorney for Defendants-Appellants

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------ x CHRISTOPHER HEDGES et al.,
Plaintiffs,
v.
BARACK OBAMA et al.,
Defendants. ------------------------------------------------------------------ x

12 Civ. 331 (KBF)

Government’s Memorandum of Law in Support of Its Motion for an Immediate Interim Stay and Stay Pending Appeal

BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov
christopher.harwood@usdoj.gov

Table of Contents A. Applicable Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Relief Requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. The Government Meets the Standard for a Stay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Government Is Likely to Prevail on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Balance of Equities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Defendants President Barack Obama and Secretary of Defense Leon Panetta (the “government”) respectfully submit this memorandum in support of their motion for an immediate interim stay of the Court’s September 12, 2012, permanent injunction pending the final resolution of this motion, and a further stay pending the final resolution of the government’s appeal.
This Court’s decision is unprecedented, and the government has compelling arguments that it should be reversed. The decision holds facially unconstitutional an Act of Congress that was passed to confirm the authority of the President as Commander in Chief under the Authorization for Use of Military Force in connection with ongoing military operations against al-Qaeda and its affiliates—a setting in which the Judiciary owes the greatest deference to the other branches—and in doing so it disregards the interpretation of the President’s detention authority by two Presidents, the D.C. Circuit, and the Congress itself. It enters an injunction directly against the President as Commander in Chief—and against the Secretary of Defense in carrying out operations under his command, anywhere in the world. It enters that extraordinary injunction of worldwide scope at the behest of a handful of individual plaintiffs who lack standing even to seek relief on their own behalf, and who in any event present no plausible claim of substantial injury cognizable in a claim for equitable relief in this setting because the government has specified that the actions the plaintiffs identify in their complaint would not fall within the detention authority of section 1021(b)(2). And the conclusion that section 1021(b)(2) is facially invalid under the First Amendment cannot be squared with, inter alia, its intended application in an armed conflict and the fact that it has a plainly legitimate sweep in that context.
A stay of the injunction is needed now. Given the unprecedented nature of the Court’s ruling, and the absence of any substantial countervailing equity of the plaintiffs because

there is no possibility of their detention based on the conduct they have identified, a stay pending appeal is plainly warranted. The Court’s invalidation of an Act of Congress, as explained below, itself gives rise to irreparable injury, see, e.g., Maryland v. King, __ U.S. __, No. 12A48, 2012 WL 3064878, at *2 (July 30, 2012) (Roberts, C.J., in chambers) (“ ‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’ ” (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers))), justifying entry of a stay. That is particularly the case given that the statute is addressed to the President’s exercise of his Commander-in-Chief power in the context of the United States’ current combat operations against al-Qaeda, the Taliban, and their associated forces. The Court’s injunction against the exercise of those war powers gives rise to separation of powers concerns of the first order, and should be stayed. At the very least, there are compelling reasons to grant an interim stay pending consideration of the government’s motion for a stay pending appeal by this Court, or, if necessary, by the court of appeals. A. Applicable Standard
Courts consider four factors when determining whether to grant a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (footnote omitted). “[T]he degree to which a factor must be present varies with the strength of the other factors”; “more of one factor excuses less of the other.” Id. (quotation marks, alterations omitted). Moreover, “when a serious legal question is
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involved,” the “movant need only present a substantial case on the merits . . . and show that the balance of the equities weighs heavily in favor of granting the stay.” LaRouche v. Kezer, 20 F.3d 68, 72-73 (2d Cir. 1994). B. Relief Requested
By this motion, the government makes two requests. First, we seek an immediate interim stay pending final resolution of this motion. Given the harms and uncertainty detailed below, such an immediate interim stay is warranted. Should the Court not grant the government an interim stay, the government intends to seek similar relief from the court of appeals.
Second, we seek a stay pending the final resolution of the government’s appeal. A notice of appeal was filed yesterday, September 13, 2012. C. The Government Meets the Standard for a Stay
Several fundamental principles should inform this Court’s consideration of the stay factors.
First, based on separation-of-powers principles, the courts have recognized that any injunction running against the President would be extraordinary, and have questioned whether such an order would ever be appropriate regarding the President’s “performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866); accord Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality) (the “grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows,” and generally courts lack jurisdiction to enjoin President); id. at 825-29 (Scalia, J., concurring and concurring in judgment) (discussing “unbroken historical tradition . . . implicit in separation of powers” against enjoining President). The reasons for denying a request for injunctive relief against the President are all the more compelling where, as
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here, a plaintiff seeks injunctive relief—a judicial command—directly against the President as Commander in Chief under the Constitution with respect to the conduct of military operations—and especially where, as here, his actions are specifically authorized by an Act of Congress. Injunctive relief is equally unavailable against the Secretary of Defense in this context, where Executive Branch officers assist the President in carrying out powers and responsibilities vested in the President by the Constitution as Commander in Chief, and “their acts are his acts.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803); see also 10 U.S.C. § 113(b) (Secretary of Defense is the “principal assistant to the President” in defense matters, whose authority is “[s]ubject to the direction of the President”); id. § 162(b) (“Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs—(1) from the President to the Secretary of Defense; and (2) from the Secretary of Defense to the commander of the combatant command.”).
Second, an Act of Congress is entitled to a presumption of constitutionality. “Whenever called upon to judge the constitutionality of an Act of Congress—the gravest and most delicate duty that this Court is called upon to perform—the Court accords great weight to the decisions of Congress.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (citation and quotation marks omitted). This case, moreover, “arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the [Supreme] Court accorded Congress greater deference.” Id. at 64-65. Deference to Congress and the President cuts strongly in favor of granting a stay to allow the court of appeals to consider this Court’s extraordinary injunction against the exercise of their shared power.
1. The Government Is Likely to Prevail on Appeal As described at great length in the government’s four memorandums of law filed in this matter, the government has strong arguments to present on appeal, and is likely to prevail.
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Although this Court has disagreed with many of those arguments, that is not an impediment to a stay: a district court may recognize “a substantial case to lay before the Court of Appeals” even after having “rejected [an appellant’s] contentions.” Network Enters., Inc. v. APBA Offshore Prods., Inc., No. 01 Civ. 11765, 2007 WL 398276, at *1 (S.D.N.Y. Feb. 5, 2007); accord Center For Int’l Envtl. Law v. Office of U.S. Trade Representative, 240 F. Supp. 2d 21, 22 (D.D.C. 2003) (“although the Court ultimately did not agree with defendants’ position on the merits, it is evident that defendants have made out a ‘substantial case on the merits’ ”). There can be no doubt that this case presents “serious legal question[s]”; thus, the government need only show a “substantial case” and that the equities balance in its favor. Larouche, 20 F.3d at 72-73.
As described in the government’s memorandums, the government will present a strong argument that section 1021 does no more than affirm existing authority under the 2001 Authorization for Use of Military Force, without limiting or expanding it—an argument well supported by the statute’s express text, legislative history, presidential signing statement, subsequent interpretation by the Executive Branch, and multiple decisions of the District of Columbia Circuit. Plaintiffs have not met and cannot meet their burden to show they have standing, as they lack an objectively reasonable fear that section 1021, correctly understood, could be applied to detain them. Indeed, the government has said plaintiffs will not be detained for the activities they have described.
The government also has strong arguments on the merits, as the plaintiffs have not demonstrated they meet the prerequisites for a facial or overbreadth challenge, especially to a statute addressed to matters concerning the nation’s actions against al-Qaeda, the Taliban, and associated forces. Nor can they establish that the statute is unconstitutionally vague. Finally, the government will present strong arguments that equitable relief should
5

not have been granted; indeed, the injunction constitutes an extraordinary and unwarranted judicial intrusion into matters constitutionally committed to the Executive and Legislative Branches, and goes far beyond affording relief to the few individual plaintiffs in this case.
We respectfully incorporate the arguments previously presented to this Court in support of this motion for a stay.
2. Balance of Equities The balance of equities—the last three factors for granting a stay, namely harm to the applicant, harm to other parties, and harm to the public—strongly favors the government. This case presents claims by plaintiffs who have no objectively reasonable chance of being detained under section 1021 or any other military-detention authority at any time in the foreseeable future. Indeed, while the government disputes the Court’s interpretation of the government’s position in this case and the alleged consequences to plaintiffs, not even plaintiffs have asserted any imminent action is to be taken against them; they only speculate that based on unspecified activity at an unspecified time, they are at risk of detention. Notably, the government has been operating under the same detention standards that are codified in section 1021(b) for years without any harm to plaintiffs, fatally undercutting any claim that they are suffering injury from that standard—even if, in the Court’s erroneous view, that longstanding government interpretation is inconsistent with the AUMF. At a minimum, the government’s assurance that plaintiffs’ activities as described to this court do not place them at risk of being detained under section 1021 demonstrates that issuance of a stay will not substantially injure their interests. The harm to the government and the public, on the other hand, is great and irreparable. Given the presumptive constitutional validity of an Act of Congress, the Court’s
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invalidation of a federal statute itself causes the government the kind of irreparable injury that is routinely recognized as a basis for granting a stay pending appeal. See United States v. Comstock, No. 08A863 (Apr. 3, 2009) (Roberts, C.J.) (quoting Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers) (“The presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships.”)); Coalition for Economic Equality v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (“it is clear that a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined”); see also Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers) (“In virtually all of these cases [in which a single district judge declares an Act of Congress unconstitutional] the Court has also granted a stay if requested to do so by the Government.”). Because an Act of Congress is deemed to be “in itself a declaration of public interest and policy which should be persuasive,” Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937), its invalidation causes irreparable injury to the government and the public.
The harm here is especially great due to the particular nature of the statute the Court enjoined in this case. As the government argued previously, section 1021 concerns war powers in an ongoing armed conflict, an area in which courts are properly reluctant to act. The potential scope of this Court’s injunction would effect precisely what the Supreme Court has warned against, “judicial intrusion into the Executive’s ability to conduct military operations abroad.” Munaf v. Geren, 553 U.S. 674, 700 (2008); accord Winter v. NRDC, 555 U.S. 7, 24-25 (2008); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (Scalia, J.). It would also enjoin the President in his constitutional role as Commander in Chief of the armed forces, further harming the government and the public
7

by invading and limiting the authority of a constitutionally co-equal Branch of government.

The Court’s injunction against application of section 1021 “in any manner, as to any

person,” Order 111-12, combined with its mistaken view that section 1021 goes beyond

reaffirming the authority contained in the AUMF, could impose entirely unjustified

burdens on military officials worldwide, complicating the ability to carry out an armed

conflict authorized by Congress in the public interest.

Given the absence of any risk of impending harm to plaintiffs, the serious injury to the

government and the public interest in the invalidation of a statute enacted by public

representatives, and the possible effect on an ongoing armed conflict and the Executive’s

prerogatives in military affairs, a stay is necessary. A stay will not only avoid the

immediate imposition of these harms, but will allow well developed arguments to be

presented to the court of appeals.

D. Conclusion

The Court should stay the permanent injunction immediately, pending final resolution

of this motion. The Court should further stay the permanent injunction pending final

resolution of the government’s appeal.

Dated: New York, New York September 14, 2012

Respectfully submitted,
PREET BHARARA United States Attorney for the Southern District of New York

By: /s/ Benjamin H. Torrance BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov christopher.harwood@usdoj.gov

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STUART F. DELERY Acting Assistant Attorney General Civil Division, Department of Justice JEH CHARLES JOHNSON General Counsel Department of Defense
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x CHRISTOPHER HEDGES et al.,
Plaintiffs,
v.
BARACK OBAMA et al.,
Defendants. ---------------------------------------------------------------- x

12 Civ. 331 (KBF)

Government’s Memorandum of Law in Support of Its Motion for Reconsideration of the May 16, 2012, Opinion and Order

BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov
christopher.harwood@usdoj.gov

Table of Contents Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Standard for Reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Plaintiffs Lack Standing, as Section 1021 Does Not Apply to Them. . . . . . . . . . . 3 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Table of Authorities
Cases: Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Cacchillo v. Insmed, Inc., 638 F.3d 401 (2d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Califano v. Yamasaki, 442 U.S. 682 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 County of Suffolk v. First Am. Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001). . . . . . . . . . 2 EBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Franklin v. Massachusetts, 505 U.S. 788 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011). . . . . . . . . . . . . . . . . 1 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . 1 Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . 1 Munaf v. Geren, 553 U.S. 674 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 National Lead Co. v. United States, 252 U.S. 140 (1920). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Saxbe v. Bustos, 419 U.S. 65 (1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Shrader v. CSX Trans., Inc., 70 F.3d 255 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995). . . . . . . . . . . . . . . . . . . 1 United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001). . . . . . . . . . . . . . . . 1 Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . 1 Warth v. Seldin, 422 U.S. 490 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutes and Rules: 10 U.S.C. § 113(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 54(b), 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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Preliminary Statement
Defendants in the above-captioned action (the “government”) respectfully submit this
memorandum of law in support of their motion for reconsideration of this Court’s Opinion
and Order dated May 16, 2012 (the “Order”), pursuant to Fed. R. Civ. P. 54(b), 59(e), and
60(b), and Local Civil Rule 6.3.
This Court’s Order enjoins the government from enforcing section 1021(b)(2) of the
National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat.
1298 (Dec. 31, 2011), against the plaintiffs in this action,1 but expressly notes that the
government’s detention authority under the 2001 Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) (“AUMF”) is unaffected.2 Although the
1 The government construes this Court’s Order as applying only as to the named plaintiffs in this suit. Although the Order fails to comply with Fed. R. Civ. P. 58, and the concluding paragraph of the Order is not, on its face, clear as to whom the injunction benefits, the government reads it in light of the well-established principle that courts “neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants,” United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 47778 (1995), a principle applicable also to facial challenges, Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379, 390, 392-94 (4th Cir. 2001); accord Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (claimants who “do not represent a class . . . [can]not seek to enjoin . . . an order on the ground that it might cause harm to other parties”); Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664-65 (9th Cir. 2011); Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994). As a rule, “injunctive relief should be narrowly tailored to fit specific legal violations,” Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994), and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Furthermore, while the Order enjoined “enforcement of § 1021,” Order 68, the government interprets this to apply only to section 1021(b)(2), as the Court did not discuss —and plaintiffs expressly did not challenge, Tr. 27-28, 34, 276, 290—any other portion of the statute. Within section 1021(b)(2), plaintiffs also did not challenge, Tr. 282, and the Court did not discuss, the language that deems those who are “part of . . . al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” to be “covered persons”; accordingly, the government views the Court’s injunction as leaving that language intact as well.
2 The Court clearly stated that the government’s detention authority under the (continued...)

government respectfully disagrees with the Order on a number of grounds that the government may raise should it choose to appeal, this motion for reconsideration is limited to one aspect of the Court’s reasoning. As explained below, the Court should revisit its decision regarding plaintiffs’ standing in light of the fact that the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021, and that it would in any event be improper to shift the burden of proof on this issue to the government. Reconsideration of the injunction is also supported by the Constitution’s separation of powers. Issuing an injunction regarding the President himself, or restraining future military operations (including military detention) under the President’s constitutional authority as Commander-in-Chief during a time of war would be extraordinary. Even assuming an order restraining future military operations could ever be appropriate, it is plainly unwarranted here given the absence of any imminent or credible threat of harm to plaintiffs.
Argument A. Standard for Reconsideration
Reconsideration is appropriate where the moving party points to matters the court did not take into account “ ‘that might reasonably be expected to alter the conclusion reached by the court.’ ” County of Suffolk v. First Am. Real Estate Solutions, 261 F.3d 179, 187 (2d Cir. 2001) (quoting Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
2 (...continued) AUMF “is still in force and effect.” Order at 65; id. at 66 (“other statutes . . . can be utilized to detain . . . including the AUMF”; injunction “does not divest the Government of its many other tools”).
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B. Plaintiffs Lack Standing, as Section 1021 Does Not Apply to Them As explained in the government’s briefs, section 1021 reaffirms the government’s
authority to detain enemy forces engaged in armed conflict with the United States, defined to include those who (1) are part of al-Qaeda, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners,3 or (2) provide substantial support4 to al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners. Gov’t Initial Mem. 3-9. The statute affirms the military authority to detain such “covered persons” pending “disposition under the laws of war.” § 1021(a). Potential dispositions under the laws of war include detention “under the law of war” until the end of the hostilities authorized by the AUMF. § 1021(c)(1).
The government argued in its briefs that the plaintiffs cannot reasonably believe that section 1021 would extend to their conduct, in light of law of war principles, First Amendment limitations, and the absence of a single example of the government detaining an individual for engaging in conduct even remotely similar to what is alleged here. See Gov’t Initial Mem. 12-13. But at argument the government did not agree to provide specific assurance as to each plaintiff, a request that the government considers problematic. As a result, this Court deemed the government’s position to be unclear regarding whether section 1021 could apply to the conduct alleged by plaintiffs in this case. To eliminate any
3 An “associated force” has two characteristics: (1) it is an organized, armed group that has entered the fight alongside al-Qaeda and/or Taliban forces, and (2) it is a cobelligerent with al-Qaeda and/or Taliban forces in hostilities against the United States or its coalition partners. Gov’t Initial Mem. 5-6, 23-24; Gov’t Supp. Mem. 7, 12.
4 As we have explained, as a matter of law, “substantial support” does not authorize law of war detention of those who provide “unwitting or insignificant” support to al-Qaeda, the Taliban, or associated forces. Gov’t Initial Mem. 5 n.5; Gov’t Supp. Mem. 7.
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doubt, the government wants to be as clear as possible on that matter. As a matter of law,
individuals who engage in the independent journalistic activities or independent public
advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to
law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.5 Put simply, plaintiffs’
descriptions in this litigation of their activities, if accurate, do not implicate the military
detention authority affirmed in section 1021.
As we have explained, this construction of section 1021 is consistent with the
detention authority granted by the AUMF, which is informed by the law of war. Of course,
as Congress expressly stated, “[n]othing in [section 1021] is intended to . . . expand the
authority of the President or the scope of the [AUMF].” § 1021(d). Notably, plaintiffs have
not argued that detention under the law of war would extend to the types of independent
journalistic activities or public advocacy they have alleged. Moreover, for ten years the
Executive Branch has been applying its military detention authority under the AUMF, and
it has never taken the position that a person could be made subject to its military detention
authority merely for engaging in the independent journalistic activities or independent
public advocacy at issue here. Gov’t Initial Mem. 13-14, 17-19, 22; Gov’t Supp. Mem. 15-16.
In adopting section 1021, with the express intent of affirming and codifying the Executive’s
5 This case does not involve the kind of independent expressive activity that could support detention in light of law of war principles and the First Amendment. In contrast, for example, a person’s advocacy, in a theater of active military operations, of military attacks on the United States or the intentional disclosure of troop movements or military plans to the enemy, or similar conduct that presents an imperative security threat in the context of an armed conflict or occupation, could be relevant in appropriate circumstances. See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, arts. 5, 41-43, 78. As discussed further below, it is not appropriate to expect the government to make categorical statements about the scope of its detention authority in hypothetical scenarios that could arise in an armed conflict, in part, because that authority is so context-dependent.
4

existing authority under the AUMF, “Congress is presumed to have legislated with knowledge of such an established usage of an executive department of the government.” National Lead Co. v. United States, 252 U.S. 140, 146-47 (1920); accord Saxbe v. Bustos, 419 U.S. 65, 73-75 (1974) (statutory construction “reflects the administrative practice”); United States v. Bailey, 34 U.S. (9 Pet.) 238, 256 (1835) (statute should “be construed with reference to [Executive’s] usage”); United States v. Wilson, 290 F.3d 347, 356-47 (D.C. Cir. 2002) (the “relevant practices of the Executive Branch” and “the Executive Branch’s interpretation of the law through its implementation” form “background understandings” that “Congress is presumed to preserve, not abrogate”); Gov’t Supp. Mem. 1-7.
Thus, the claimed fear of detention here based solely on the independent journalistic activities or independent public advocacy alleged by plaintiffs is without any factual or legal foundation.
As the government explained, the claims are flawed in a second material respect in that there is no substantial nexus alleged to a covered group. Section 1021 has no application to unarmed groups like WikiLeaks or Occupy; nor could a group like Hamas qualify as an “associated force” under the statute solely for committing acts of terrorism. Gov’t Initial Mem. 23-24 & n.13; Gov’t Supp. Mem. 13. Plaintiffs themselves acknowledged that other groups alleged to be at issue in this action, such as WL Central, US Day of Rage, and Revolution Truth, are not armed, much less associated with al-Qaeda or the Taliban in armed conflict with the United States. Gov’t Supp. Mem. 12-13. Because two of the plaintiffs alleged that their activities related solely to such unarmed, non-covered groups, the government did in fact expressly state that “neither Wargalla nor Jonsdottir could possibly be deemed to fall within the scope of section 1021.” Gov’t Supp. Mem. 12. And, as the government further stated, neither of the other two testifying plaintiffs, O’Brien or
5

Hedges, alleged any connection to al-Qaeda, the Taliban, or an associated force beyond the extremely attenuated link of reporting on them for journalistic outlets that are independent of al-Qaeda and the Taliban. Gov’t Supp. Mem. 13. Thus section 1021 has no application to plaintiffs’ alleged activities.
The Court’s ruling to the contrary depended largely on its conclusion that the government did not offer specific assurances to the individual plaintiffs that they would not be subject to section 1021. Order 31-33, 37, 46, 56, 62, 65. No case requires the government to provide such “assurances” or “comfort,” Tr. 237, 272, or any other type of advice to any person simply because he brings a lawsuit, Gov’t Supp. Mem. 16-17. Indeed, the government cannot be expected to make assurances regarding individuals who file a suit in a context such as this, based solely upon their allegations and without knowledge of other facts that might be relevant to determining whether the individuals fall within the scope of the detention authority affirmed by section 1021. But consistent with law-of-war principles, constitutional limitations, and the government’s unambiguous past practice, we can reiterate that the detention authority provided in the AUMF and affirmed by section 1021 does not encompass the independent journalistic activities or independent public advocacy identified here standing alone.
Moreover, it is improper to shift to defendants the burden of disproving the possibility of harm. Gov’t Initial Mem. 13, 28; Gov’t Supp. Mem. 8 & n.5; Cacchillo v. Insmed, Inc., 638 F.3d 401 (2d Cir. 2011) (plaintiff bears the burden of establishing standing). In granting the Order here, this Court relied upon Amnesty Int’l USA v. Clapper, 638 F.3d 118, 131 (2d Cir. 2011). This Court stated that under Clapper, where “plaintiffs allege a prospective injury to First Amendment rights, they must only show an actual and well-founded fear.” Order 37. The government reiterates its disagreement with the Clapper
6

decision and notes that, since this Court’s Order, the Supreme Court has granted review in Clapper. No. 11-1025, 2012 WL 526046 (U.S. May 21, 2012). But even under Clapper, plaintiffs must show a sufficiently threatened “future injury” with an “objectively reasonable likelihood.” 638 F. 3d at 134. It is plaintiffs’ burden to demonstrate an objectively credible threat of enforcement and injury, and they have wholly failed to meet that burden. The Court’s Order improperly shifts that burden—pointing to no evidence that supports the conclusion that plaintiffs met their burden by demonstrating an objectively reasonable threat of enforcement, but only to the perceived lack of “assurances.” In doing so, the Court’s Order contravened well-established law.
In the context of this case, it is particularly inappropriate to shift the burden to the government to disprove a plaintiff ’s speculative fear of future harm. To require the government to evaluate and declare whether or not a statute affirming the authorization of the use of force—here, in the form of detention—during an armed conflict would apply to specific individuals for specific conduct would place the government in an untenable position: the government would be inundated with copycat suits and be forced to give what would be advisory opinions to countless individuals regardless of whether they have shown a reasonable fear of enforcement. Tr. 268-69. The government cannot be required to define the boundaries of its authority by giving ex ante assurances to individuals in this manner, especially to individuals who lack a sufficient “personal stake in the outcome of the controversy . . . to justify exercise of the court’s remedial powers on [their] behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
Moreover, in this case, which involves the Constitution’s separation of powers in the context of national defense and security, it is particularly inappropriate to issue an injunction, especially where there is an inadequate showing of standing and irreparable
7

injury by the plaintiffs. Gov’t Supp. Mem. 4, 17-18. Even in an ordinary case that does not involve war powers during an active armed conflict, the power to issue an injunction is always discretionary, and requires careful consideration of the public consequences of an injunction. See EBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006); Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982). In national security and military matters, courts are properly reluctant to exercise that equitable discretion in those fields. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (reluctance due, in part, to the “lack of competence on the part of the courts” in regard to matters of national security (quotation marks omitted)). And constitutional concerns become particularly acute where, as here, the injunction would entail “judicial intrusion into the Executive’s ability to conduct military operations abroad.” Munaf v. Geren, 553 U.S. 674, 700 (2008). Indeed, “it would be an abuse of . . . discretion to provide discretionary relief ” regarding military operations approved by “the President [and] the Secretary of Defense.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (Scalia, J.).6
Indeed, based on separation-of-powers principles, more generally, the courts have recognized that an injunction running against the President would be extraordinary, and have questioned whether such an order would ever be appropriate regarding the President’s “performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866); accord Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality) (the “grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows,” and generally courts lack jurisdiction to enjoin President); id. at 825-29 (Scalia, J., concurring and concurring in judgment) (discussing “unbroken
6 For the same reasons, the declaratory relief sought by plaintiffs should be denied.
8

historical tradition . . . implicit in separation of powers” against enjoining President). The reasons for denying injunctive relief against the President are all the more compelling where, as here, a plaintiff seeks relief against the President as Commander-in-Chief under the Constitution. Injunctive relief is also inappropriate against the Secretary of Defense in this case, where Executive Branch officers assist the President in carrying out powers and responsibilities vested in the President by the Constitution, as is true of the Commanderin-Chief power, and “their acts are his acts.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803); see also 10 U.S.C. § 113(b) (Secretary is “principal assistant to the President” in defense matters, whose authority is “[s]ubject to the direction of the President”); id. § 162(b) (“Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs—(1) from the President to the Secretary of Defense; and (2) from the Secretary of Defense to the commander of the combatant command.”). While in other contexts an injunction might run against an Executive Branch officer responsible for assistance of the President, see Franklin, 505 U.S. at 803, no such injunction is appropriate with respect to future military operations, including detention— especially given plaintiffs’ failure to establish any objectively reasonable basis for concluding that they face imminent harm.
In this case, an injunction relating to the Executive’s military detention authority is unwarranted, especially given the government’s clarification of its position regarding the purported threat of military detention: as noted above, assuming for current purposes that the plaintiffs’ descriptions in this litigation of their activities are true and complete, those activities would not, as a matter of law, make any of the plaintiffs subject to section 1021. Under this Court’s rationale, that statement “eliminat[es]” the plaintiffs’ standing, Order 33, 46, and thus requires denial of their motion for a preliminary injunction.
9

Conclusion

The Court should reconsider its Order, and deny the motion for a preliminary

injunction.

Dated: New York, New York May 25, 2012

Respectfully submitted,
PREET BHARARA United States Attorney for the Southern District of New York

By: /s/ Benjamin H. Torrance BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Telephone: 212.637.2703, .2728 Fax: 212.637.2702 E-mail: benjamin.torrance@usdoj.gov christopher.harwood@usdoj.gov

10

 
 Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 1 of 17

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−00331−KBF

CLOSED,ECF

Hedges v. Obama et al Assigned to: Judge Katherine B. Forrest Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 01/13/2012 Date Terminated: 02/11/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Christopher Hedges

represented by Bruce Ira Afran Bruce Afran, Attorney At Law 10 Braeburn Drive Princeton, NJ 08540 (609)−924−2075 Fax: (609)−924−1045 Email: bruceafran@aol.com ATTORNEY TO BE NOTICED

Carl J. Mayer 66 Witherspoon Street Suite 414 Princeton, NJ 08542 (609) 921−0253 ATTORNEY TO BE NOTICED

David H. Remes Appeal for Justice 1106 Noyes Drive Silver Spring MD 20910 202−669−6508 PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Movant
Dale B. Adams doing business as Majestic Publishers

represented by Dale B. Adams 2313 Anvil Drive Harrison, AR 72601 PRO SE

V.
Defendant
Barak Obama individually

represented by Benjamin Henry Torrance U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212−637−2703 Fax: 212−637−2702 Email: benjamin.torrance@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Blake Harwood United States Attorney's Office

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 2 of 17

Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212) 637−2728 Fax: (212) 637−2786 Email: christopher.harwood@usdoj.gov LEAD ATTORNEY

Defendant
Barak Obama as representative of the United States of America

represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Blake Harwood (See above for address) LEAD ATTORNEY

Defendant
Leon Panetta individually

represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Blake Harwood (See above for address) LEAD ATTORNEY

Defendant
Leon Panetta in his capacity as the executive and representative of the Department of Defense

represented by Benjamin Henry Torrance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Blake Harwood (See above for address) LEAD ATTORNEY

Amicus Bob Marshall

represented by Steven Jay Harfenist Freidman, Harfenist, Langer &Kraut (LIs) 3000 Marcus Avenue Lake Success, NY 11042 516−775−5800 Fax: 516−775−4082 Email: sharfenist@hkplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Dick Black

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Downsize DC Foundation

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 3 of 17

Amicus DownsizeDC.org, Inc.

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus U.S. Justice Foundation

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Institute on the Constitution

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Gun Owners Foundation

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Gun Owners of America, Inc.

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
The Lincoln Institute for Research and Education

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Western Center for Journalism

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Conservative Legal Defense and Education Fund

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus U.S. Border Control

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Restoring Liberty Action Committee

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 4 of 17

Amicus Tenth Amendment Center
Amicus Center for Media and Democracy
Amicus Bill of Rights Defense Committee
Amicus Pastor Chuck Baldwin
Amicus Jerome Aumente
Amicus Constitution Party National Committee
Amicus Bob Avakian

represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Jay Harfenist (See above for address) ATTORNEY TO BE NOTICED
represented by Steven Jay Harfenist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jed H. Stone Stone &Associates, Ltd 415 W. Washington St. Ste. 107 Waukegan, IL 60085 (847) 336−7888 Fax: (847) 336−0733 Email: jstone@jedstone.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 01/13/2012
01/13/2012

# Docket Text
1 COMPLAINT against Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense). (Filing Fee $ 350.00, Receipt Number 465401027029)Document filed by Christopher Hedges.(mro) (rdz). (Entered: 01/19/2012)
SUMMONS ISSUED as to Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), U.S. Attorney and U.S. Attorney General. (mro) (Entered: 01/19/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 5 of 17

01/13/2012 01/13/2012 01/19/2012 02/23/2012
02/27/2012 02/28/2012 02/29/2012
02/29/2012 02/29/2012

Magistrate Judge James L. Cott is so designated. (mro) (Entered: 01/19/2012)
Case Designated ECF. (mro) (Entered: 01/19/2012)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Bruce Ira Afran for noncompliance with Section 14.3 of the S.D.N.Y. Electronic Case Filing Rules &Instructions. E−MAIL the PDF for Document 1 Complaint, to: caseopenings@nysd.uscourts.gov. (mro) (Entered: 01/19/2012)
2 ORDER: It is hereby ORDERED that plaintiff shall provide counsel for defendants 72−hour notice of the date that they plan to appear before the Court seeking injunctive relief. IT IS FURTHER ORDERED that plaintiff shall file with the Court both proof of service of the complaint on defendants as well as proof of service of all papers in connection with the anticipated temporary restraining order. IT IS FURTHER ORDERED that if plaintiff meets the above−imposed obligations, the Court will hear argument from both parties on the temporary restraining order on March 1, 2012, at 3:00 p.m. Plaintiff shall provide the Court with copies of their papers in support of their temporary restraining order within the same 72−hour timeframe as they provide them to counsel for defendants. ( Oral Argument set for 3/1/2012 at 03:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 2/24/2012) (lmb) (Entered: 02/24/2012)
3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. Document filed by Christopher Hedges. Return Date set for 3/1/2012 at 03:00 PM. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Temporary Restraints on the Operation of the Homeland Battlefield Act, # 2 Certificate of Service of Verified Amended Complaint, Notice of Motion, Proposed Order and Brief in Support of Application for Temporary Restraints)(Afran, Bruce) (Entered: 02/27/2012)
4 MEMORANDUM OF LAW in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Attachments: # 1 Exhibit Amended Verified Complaint with signatures to be forwarded, # 2 Supplement Certificate of Service)(Afran, Bruce) (Entered: 02/28/2012)
5 ORDER: IT IS HEREBY ORDERED that a hearing on plaintiffs' motion for a temporary restraining order is set for Friday, March 2, at 2:00 p.m. in Courtroom 15A, United States Courthouse, 500 Pearl Street, New York, NY 10007. IT IS FURTHER ORDERED that plaintiffs are to advise the Court no later than 5:00 p.m. today (February 29, 2012) whether they intend to call live witnesses at Friday's hearing or to supplement their current papers with affidavits from plaintiffs. If the latter, plaintiffs should submit such affidavits no later than 9:00 a.m. on Thursday, March 1, 2012, or at another time on March 1, 2012, if agreed to by counsel for defendants. IT IS FURTHER ORDERED that defendants shall submit their papers in opposition to plaintiffs' motion for a temporary restraining order by 6:15 a.m. on Friday, March 1, 2012. Set Deadlines/Hearing as to 3 MOTION for Temporary Restraining Order enjoining the operation of the Homeland Battlefield provisions of the National Defense Authorization Act:( Responses due by 3/1/2012, Motion Hearing set for 3/2/2012 at 02:00 PM in Courtroom 15A, 500 Pearl Street, New York, NY 10007 before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 2/29/2012) (mro) Modified on 2/29/2012 (mro). (Entered: 02/29/2012)
6 SCHEDULING ORDER:Preliminary injunction hearing set for 3/29/2012 at 10:00 AM before Judge Katherine B. Forrest. Plaintiffs' affidavits in support of the preliminary injunction shall be filed no later than March 8, 2012 also, by letter on 3/8/2012, and as further set forth in this document. Defendants shall file their papers in opposition to the preliminary injunction no later than 5:00 p.m. on March 26, 2012. (Signed by Judge Katherine B Forrest on 2/29/2012) (cd) (Entered: 02/29/2012)
7 NOTICE OF APPEARANCE by Benjamin H. Torrance on behalf of Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense) (Torrance, Benjamin) (Entered: 02/29/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 6 of 17

03/01/2012 03/08/2012 03/08/2012 03/08/2012 03/11/2012 03/12/2012 03/12/2012 03/12/2012 03/12/2012
03/12/2012 03/13/2012

8 NOTICE OF APPEARANCE by Christopher Blake Harwood on behalf of Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense) (Harwood, Christopher) (Entered: 03/01/2012)
9 NOTICE of Plaintiffs' Anticipated Witnesses for Hearing on Preliminary Injunction re: 6 Scheduling Order,. Document filed by Christopher Hedges. (Afran, Bruce) (Entered: 03/08/2012)
10 AFFIDAVIT of Jennifer Ann Bolen in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Afran, Bruce) (Entered: 03/08/2012)
11 AFFIDAVIT of Christopher Lynn Hedges in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Attachments: # 1 Exhibit)(Afran, Bruce) (Entered: 03/08/2012)
12 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIRMATION of Jennifer Ann Bolen in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Afran, Bruce) Modified on 3/13/2012 (ldi). (Entered: 03/12/2012)
13 FILING ERROR − DEFICIENT DOCKET ENTRY − AFFIRMATION of Christopher Lynn Hedges in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. Document filed by Christopher Hedges. (Afran, Bruce) Modified on 3/13/2012 (ldi). (Entered: 03/12/2012)
14 AFFIRMATION of Alexa D. O'Brien in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Attachments: # 1 Supplement signed signature page for Alexa D. O'Brien Certification, # 2 Exhibit Appendix to Certification of Alexa D. O'Brien)(Afran, Bruce) (Entered: 03/12/2012)
15 Signed Signature Pages for Verified Amended Complaint. (jp) (Entered: 03/12/2012)
16 SCHEDULING ORDER: It is hereby ORDERED that plaintiffs shall file all affidavits of any plaintiff they expect to testify at the preliminary injunction hearing no later than March 13, 2012, at 5:00 p.m. Any affidavit filed after that date and time will not be considered in connection with the preliminary injunction proceedings, and any plaintiff filing an affidavit after that date and time shall not be permitted to testify at the March 29, 2012 preliminary injunction hearing. IT IS FURTHER ORDERED that the February 29 Scheduling Order (Dkt. No.6) is modified to the extent that plaintiffs' supplemental briefing in support of a preliminary injunction may be filed no later than March 13, 2012 at 5:00 p.m. IT IS FURTHER ORDERED that counsel for defendants shall notify the Court and counsel for plaintiffs no later than March 16, 2012 at 5:00 p.m. whether it intends to call any witnesses at the March 29 preliminary injunction hearing. (Signed by Judge Katherine B. Forrest on 3/12/2012) (jfe) (Entered: 03/12/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Bruce Ira Afran to RE−FILE Document 12 Affirmation in Support of Motion, 13 Affirmation in Support of Motion. ERROR(S): Incomplete documents. Missing case caption, case number and title of document. (ldi) (Entered: 03/13/2012)
17 AFFIRMATION of Brigitta Jonsdottir, M.P. in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Attachments: # 1 Supplement Signature page for Jonsdottir Certification, # 2 Exhibit US Department of Justice Subpoena to Brigitta

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 7 of 17

03/13/2012 03/13/2012 03/13/2012 03/23/2012 03/23/2012
03/26/2012 03/26/2012 03/28/2012

Jonsdottir)(Afran, Bruce) (Entered: 03/13/2012)
18 AFFIRMATION of Kai Wargalla in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Christopher Hedges. (Attachments: # 1 Supplement Signature page for Kai Wargalla, # 2 Exhibit Exhibit A to Wargalla Certification, # 3 Exhibit Exhibit B to Wargalla Certification)(Afran, Bruce) (Entered: 03/13/2012)
19 MEMORANDUM OF LAW in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. Supplement Memorandum of Plaintiffs filed by leave of Court with Appendix A and B to be filed separately. Document filed by Christopher Hedges. (Afran, Bruce) (Entered: 03/13/2012)
20 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. Re−filed Supplemental Brief with Appendix Attached. Document filed by Christopher Hedges. (Attachments: # 1 Appendix Item A to Plaintiffs Supplemental Memorandum of Law, # 2 Appendix Item B to Plaintiiff's Supplemental Memorandum of Law)(Afran, Bruce) (Entered: 03/13/2012)
21 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Christopher B. Harwood dated 3/23/2012 re: We write respectfully on behalf of defendants (collectively, the "Government") to request a page extension of 15 pages (i.e., leave to file up to a 40−page memorandum) for the Government's memorandum in opposition to plaintiffs' motion for preliminary injunction, which is due this Monday. ENDORSEMENT: Application granted. (Signed by Judge Katherine B. Forrest on 3/23/2012) (lmb) (Entered: 03/23/2012)
22 ORDER: It is hereby ORDERED that the Court has determined that the non−recording party (here, the Government), has a right to review any recording for accuracy and note any errors. Accordingly, the parties may proceed in one of two ways regarding Mr. Hedge's additional recording of his deposition (i.e., in addition to the stenographic recording transcribed by the court reporter present at the deposition) : (a) Mr. Hedges can allow counsel for defendants to take the tape recording at the close of the deposition and review it over a 24−hour period to ensure its accuracy and reliability; or (b) relinquish the tape recording to the court reporter who will deliver it to Chambers first thing Monday morning, at which time counsel for defendants may come to Chambers to listen to it to ensure its accuracy and reliability. The parties need not engage in separate briefing by letter on the issue of the physical recording. (Signed by Judge Katherine B. Forrest on 3/23/2012) (lmb) (Entered: 03/23/2012)
23 MEMORANDUM OF LAW in Opposition re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense). (Attachments: # 1 Appendix)(Torrance, Benjamin) (Entered: 03/26/2012)
24 AMENDED MEMORANDUM OF LAW in Opposition re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. (corrected to add footnote 13). Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(individually), Leon Panetta(in his capacity as the executive and representative of the Department of Defense). (Attachments: # 1 Appendix)(Torrance, Benjamin) (Entered: 03/26/2012)
25 ORDER: For purposes of clarification, the preliminary injunctionhearing scheduled for March 29, 2012, will commence at 9:00 a.m. (not 10:00 a.m.), in Courtroom 15A, United States Courthouse, 500 Pearl Street, New York, NY, 10007. (Signed by Judge Katherine B. Forrest on 3/28/2012) (js) (Entered: 03/28/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 8 of 17

03/29/2012 04/10/2012 04/10/2012 04/12/2012 04/12/2012 04/16/2012
04/16/2012
04/16/2012 04/16/2012 04/17/2012
04/17/2012

Minute Entry for proceedings held before Judge Katherine B. Forrest: Oral Argument/Hearing held on 3/29/2012 re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. filed by Christopher Hedges. (jp) (Entered: 03/29/2012)
26 ORDER: As set forth at the March 29, 2012, hearing on plaintiffs' motion for a preliminary injunction, it is hereby ORDERED that plaintiffs' post−hearing brief is due on April 13, 2012, and defendants' post−hearing brief is due on April 27, 2012. (Signed by Judge Katherine B. Forrest on 4/9/2012) (mro) (Entered: 04/10/2012)
Set/Reset Deadlines: Brief due by 4/27/2012. (mro) (Entered: 04/11/2012)
27 ENDORSED LETTER addressed to Judge Kathleen B. Forrest from David H. Remes dated 4/11/2012 re: counsel for plaintiffs respectfully request an extension of time, from April 13 through April 20, to file their post−hearing brief in support of their preliminary injunction motion. ENDORSEMENT: Extension granted only until 4/16/2012. Government's brief now due May 4, 2012. (Signed by Judge Katherine B. Forrest on 4/12/2012) (pl) (Entered: 04/12/2012)
Set/Reset Deadlines: Brief due by 5/4/2012. (pl) (Entered: 04/12/2012)
28 Amicus Curiae APPEARANCE entered by Steven Jay Harfenist on behalf of Bob Marshall, Dick Black, Downsize DC Foundation, DownsizeDC.org, Inc., U.S. Justice Foundation, Institute on the Constitution, Gun Owners Foundation, Gun Owners of America, Inc., The Lincoln Institute for Research and Education, Western Center for Journalism, Conservative Legal Defense and Education Fund, U.S. Border Control, Restoring Liberty Action Committee, Tenth Amendment Center, Center for Media and Democracy, Bill of Rights Defense Committee, Chuck Baldwin, Jerome Aumente, Constitution Party National Committee.(Harfenist, Steven) (Entered: 04/16/2012)
29 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION to File Amicus Brief. Document filed by Jerome Aumente, Chuck Baldwin, Bill of Rights Defense Committee, Dick Black, Center for Media and Democracy, Conservative Legal Defense and Education Fund, Constitution Party National Committee, Downsize DC Foundation, DownsizeDC.org, Inc., Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, Bob Marshall, Restoring Liberty Action Committee, Tenth Amendment Center, The Lincoln Institute for Research and Education, U.S. Border Control, U.S. Justice Foundation, Western Center for Journalism. (Attachments: # 1 Declaration of Steven J. Harfenist, # 2 Exhibit Amicus Curiae Brief, # 3 Affidavit Affidavit of Service)(Harfenist, Steven) Modified on 4/17/2012 (ldi). (Entered: 04/16/2012)
30 POST TRIAL MEMORANDUM. Document filed by Christopher Hedges.(Afran, Bruce) (Entered: 04/16/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Steven Jay Harfenist to RE−FILE Document 29 FIRST MOTION to File Amicus Brief. ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Declaration in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 04/17/2012)
31 FIRST MOTION to File Amicus Brief. Document filed by Jerome Aumente, Chuck Baldwin, Bill of Rights Defense Committee, Dick Black, Center for Media and Democracy, Conservative Legal Defense and Education Fund, Constitution Party National Committee, Downsize DC Foundation, DownsizeDC.org, Inc., Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, Bob Marshall, Restoring Liberty Action Committee, Tenth Amendment Center, The Lincoln Institute for Research and Education, U.S. Border Control, U.S. Justice Foundation, Western Center for Journalism. (Attachments: # 1 Affidavit Affidavit of Service)(Harfenist, Steven) (Entered: 04/17/2012)
32 DECLARATION of Steven J. Harfenist in Support re: 31 FIRST MOTION to File Amicus Brief.. Document filed by Jerome Aumente, Chuck Baldwin, Bill of Rights Defense Committee, Dick Black, Center for Media and Democracy, Conservative Legal Defense and Education Fund, Constitution Party National Committee, Downsize DC Foundation, DownsizeDC.org, Inc., Gun Owners Foundation, Gun

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 9 of 17

05/04/2012 05/15/2012 05/15/2012 05/16/2012
05/16/2012 05/25/2012 05/25/2012

Owners of America, Inc., Institute on the Constitution, Bob Marshall, Restoring Liberty Action Committee, Tenth Amendment Center, The Lincoln Institute for Research and Education, U.S. Border Control, U.S. Justice Foundation, Western Center for Journalism. (Attachments: # 1 Exhibit A− Brief)(Harfenist, Steven) (Entered: 04/17/2012)
33 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act.. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). (Torrance, Benjamin) (Entered: 05/04/2012)
34 TRANSCRIPT of Proceedings re: HEARING held on 3/30/2012 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/8/2012. Redacted Transcript Deadline set for 6/18/2012. Release of Transcript Restriction set for 8/16/2012. (Attachments: # 1 TRANSCRIPT)(McGuirk, Kelly) (Entered: 05/15/2012)
35 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 3/30/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/15/2012)
36 OPINION AND ORDER # 101806: re: 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. filed by Christopher Hedges, 31 FIRST MOTION to File Amicus Brief. filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall.For the aforementioned reasons, plaintiffs' motion for preliminary injunction is GRANTED; enforcement of § 1021 of the NDAA is preliminarily enjoined pending further order of this Court or amendments to the statute rendering this Opinion &Order moot. The Clerk of the Court is directed to terminate the motion for preliminary injunction and the motion to file amicus brief at Docket Nos. 3 and 31. (Signed by Judge Katherine B. Forrest on 5/16/2012) (pl) Modified on 5/17/2012 (ft). (Entered: 05/16/2012)
39 INTERNET CITATION NOTE: Material from decision with Internet citation re: 36 Memorandum &Opinion. (Attachments: # 1 DCPD−201200136, # 2 Justice for Assange) (tro) (Entered: 05/31/2012)
37 MOTION for Reconsideration re; 36 Memorandum &Opinion,,,,,. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually).(Torrance, Benjamin) (Entered: 05/25/2012)
38 MEMORANDUM OF LAW in Support re: 37 MOTION for Reconsideration re; 36 Memorandum &Opinion,,,,,. MOTION for Reconsideration re; 36 Memorandum &Opinion,,,,,.. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). (Torrance, Benjamin) (Entered: 05/25/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 10 of 17

06/04/2012 06/06/2012
06/06/2012 06/08/2012
06/29/2012 07/02/2012 07/02/2012 07/06/2012 07/09/2012 07/12/2012 07/12/2012 07/12/2012 07/16/2012

40 ORDER: It is hereby ORDERED that the Court will hold a telephonic status conference on June 6, 2012, at 1:00 p.m., (Telephone Conference set for 6/6/2012 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 6/4/2012) (lmb) (Entered: 06/05/2012)
41 MEMORANDUM AND OPINION &ORDER #101892 re: 37 MOTION for Reconsideration re; 36 Memorandum &Opinion. Accordingly, court decisions, such as this Court's May 16 Order, enjoining enforcement of overly broad or vague statutes may apply generally−−they need not be limited only to the parties to the action, and as further set forth in this document. In sum, although it is certainly true as a general proposition that "injunctive relief should be narrowly tailored to fit specific legal violations," Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994) (Lanham Act claim), and "should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." This order should eliminate any doubt as to the 5/16 Order's scope. (Signed by Judge Katherine B. Forrest on 6/6/2012) (cd) Modified on 6/11/2012 (jab). (Entered: 06/06/2012)
42 ORDER: The Telephonic status conference set for June 6, 2012 at 1:00p.m. is ADJOURNED until June 7, 2012 at 1:00 p.m. SO ORDERED.( Telephone Conference set for 6/7/2012 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 6/06/2012) (ama) (Entered: 06/06/2012)
43 ORDER: It is Ordered that the factual record in this matter is closed. The parties shall use the existing factual record as the trial record on the motion for permanent injunctive relief. It is further Ordered that plaintiff's brief on the motion is for a permanent injunction on August 7, 2012 at 2 p.m. (Signed by Judge Katherine B. Forrest on 6/8/2012) (mro) Modified on 6/11/2012 (mro). (Entered: 06/08/2012)
44 ORDER: Plaintiffs have requested an extension of the date on which their brief on the motion for permanent injunction is due from June 29, 2012 to July 2, 2012. ( Motions due by 7/2/2012.) (Signed by Judge Katherine B. Forrest on 6/29/2012) (jfe) (Entered: 06/29/2012)
45 TRIAL BRIEF. Document filed by Christopher Hedges.(Afran, Bruce) (Entered: 07/03/2012)
46 MOTION for Jed H. Stone to Appear Pro Hac Vice. Document filed by Bob Avakian.(pgu) (Entered: 07/03/2012)
CASHIERS OFFICE REMARK on 46 Motion to Appear Pro Hac Vice in the amount of $200.00, paid on 07/02/2012, Receipt Number 1042520. (jd) (Entered: 07/06/2012)
47 ORDER FOR ADMISSION PRO HAC VICE: granting 46 Motion for Jed H. Stone to Appear Pro Hac Vice. (Signed by Judge Katherine B. Forrest on 7/9/2012) (jfe) (Entered: 07/09/2012)
48 Amicus Curiae APPEARANCE entered by Jed H. Stone on behalf of Bob Avakian.(Stone, Jed) (Entered: 07/12/2012)
49 Amicus Curiae APPEARANCE entered by Jed H. Stone on behalf of Bob Avakian.(Stone, Jed) (Entered: 07/12/2012)
50 NOTICE of Notice of Filing − Memorandum of Concern (Amicus Curiae) re: 49 Amicus Curiae Appearance. Document filed by Bob Avakian. (Stone, Jed) (Entered: 07/12/2012)
51 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Benjamin H. Torrance dated 7/13/2012 re: This Office represents certain defendants (the "government") in the above−named action. We are writing with two requests regarding the government's upcoming brief, now due July 18, 2012. First, we respectfully request that, as an equivalent extension to the three−day extension the Court granted to plaintiffs, the government's deadline for filing its brief be extended to July 23, 2012 (as the third day would fall on a Saturday). Second, we respectfully request that the government be permitted to file a brief not exceeding fifty pages. Plaintiffs' counsel have consented to both requests. ENDORSEMENT: Granted. SO ORDERED. ( Brief due by 7/23/2012.) (Signed by Judge Katherine B.

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 11 of 17

07/23/2012
07/24/2012 07/24/2012
07/30/2012 07/31/2012 07/31/2012 08/06/2012
08/06/2012 08/06/2012 08/06/2012

Forrest on 7/16/2012) (djc) (Entered: 07/16/2012)
52 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − TRIAL BRIEF (Government's Memorandum of Law in Support of Final Judgment Denying a Permanent Injunction and Dismissing This Action). Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually).(Harwood, Christopher) Modified on 7/24/2012 (ka). (Entered: 07/23/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Christopher Blake Harwood to RE−FILE Document 52 Trial Brief. Use the event type Memorandum of Law in Support(non−motion) found under the event list Other Answers. (ka) (Entered: 07/24/2012)
53 MEMORANDUM OF LAW in Support of Final Judgment Denying Plaintiffs' Request for a Permanent Injunction and Dismissing This Action. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). (Harwood, Christopher) (Entered: 07/24/2012)
54 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − TRIAL BRIEF Plaintiffs' Reply to Defendant's Trial Brief. Document filed by Christopher Hedges.(Afran, Bruce) Modified on 7/31/2012 (ka). (Entered: 07/30/2012)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Bruce Ira Afran to RE−FILE Document 54 Trial Brief. Use the event type Reply Memorandum of Law in Support(non−motion) found under the event list Other Answers. (ka) (Entered: 07/31/2012)
55 REPLY MEMORANDUM OF LAW in Support re: 53 Memorandum of Law in Support, re−filed Reply Memorandum of Plaintiffs in response to Memorandum of Government opposing entry of permanent injunction. Document filed by Christopher Hedges. (Afran, Bruce) (Entered: 07/31/2012)
56 NOTICE OF APPEAL from 43 Order,, 41 Memorandum &Opinion,,, 36 Memorandum &Opinion,,,,,. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (nd) (Entered: 08/06/2012)
Appeal Fee Not Required for 56 Notice of Appeal,. Appeal filed by U.S. Government. (nd) (Entered: 08/06/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 56 Notice of Appeal,. (nd) (Entered: 08/06/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 35 Notice of Filing Transcript, 47 Order on Motion to Appear Pro Hac Vice, 56 Notice of Appeal, filed by Barak Obama, Leon Panetta, 8 Notice of Appearance, filed by Barak Obama, Leon Panetta, 34 Transcript,, 42 Order, Set Deadlines/Hearings,, 19 Memorandum of Law in Support of Motion, filed by Christopher Hedges, 10 Affidavit in Support of Motion, filed by Christopher Hedges, 39 Internet Citation, 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act. filed by Christopher Hedges, 32 Declaration in Support of Motion,, filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc.,

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 12 of 17

08/07/2012 08/07/2012
08/07/2012 08/08/2012 08/22/2012

Bob Marshall, 55 Reply Memorandum of Law in Support, filed by Christopher Hedges, 37 MOTION for Reconsideration re; 36 Memorandum &Opinion,,,,,. MOTION for Reconsideration re; 36 Memorandum &Opinion,,,,,. filed by Leon Panetta, Barak Obama, 22 Order,,, 5 Order, Set Motion and RRDeadlines/Hearings,,,,,,,,,, 43 Order, Set Deadlines/Hearings,, 33 Memorandum of Law in Opposition to Motion, filed by Leon Panetta, Barak Obama, 7 Notice of Appearance, filed by Leon Panetta, Barak Obama, 38 Memorandum of Law in Support of Motion, filed by Leon Panetta, Barak Obama, 14 Affirmation in Support of Motion, filed by Christopher Hedges, 46 MOTION for Jed H. Stone to Appear Pro Hac Vice. filed by Bob Avakian, 51 Endorsed Letter, Set Deadlines/Hearings,,,,,, 50 Notice (Other) filed by Bob Avakian, 28 Amicus Curiae Appearance,, filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 20 Memorandum of Law in Support of Motion, filed by Christopher Hedges, 1 Complaint, filed by Christopher Hedges, 23 Memorandum of Law in Opposition to Motion, filed by Leon Panetta, Barak Obama, 6 Scheduling Order, 24 Memorandum of Law in Opposition to Motion,, filed by Leon Panetta, Barak Obama, 11 Affidavit in Support of Motion, filed by Christopher Hedges, 41 Memorandum &Opinion,,, 9 Notice (Other) filed by Christopher Hedges, 2 Order, Set Hearings,,,,,, 45 Trial Brief filed by Christopher Hedges, 30 Post Trial Memorandum filed by Christopher Hedges, 18 Affirmation in Support of Motion, filed by Christopher Hedges, 17 Affirmation in Support of Motion, filed by Christopher Hedges, 21 Endorsed Letter,, 49 Amicus Curiae Appearance filed by Bob Avakian, 36 Memorandum &Opinion,,,,, 31 FIRST MOTION to File Amicus Brief. filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 53 Memorandum of Law in Support, filed by Leon Panetta, Barak Obama, 26 Order, 25 Order, 44 Order, Set Deadlines, 40 Order, Set Hearings,, 48 Amicus Curiae Appearance filed by Bob Avakian, 27 Endorsed Letter, 4 Memorandum of Law in Support of Motion, filed by Christopher Hedges were transmitted to the U.S. Court of Appeals. (nd) (Entered: 08/06/2012)
57 MOTION for David H. Remes to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Christopher Hedges.(pgu) (Entered: 08/07/2012)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 57 MOTION for David H. Remes to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (pgu) (Entered: 08/07/2012)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Oral Argument held on 8/7/201. (jp) (Entered: 08/08/2012)
58 ORDER FOR ADMISSION PRO HAC VICE ON ORAL MOTION granting 57 Motion for David H. Remes to Appear Pro Hac Vice. Filing fee waived. (Signed by Judge Katherine B. Forrest on 8/7/2012) (lmb) (Entered: 08/08/2012)
59 TRANSCRIPT of Proceedings re: argument held on 8/7/2012 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Pamela Utter, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/17/2012. Redacted Transcript Deadline set for 9/27/2012. Release of Transcript Restriction set for 11/26/2012.(McGuirk, Kelly) (Entered: 08/22/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 13 of 17

08/22/2012 09/12/2012
09/13/2012 09/13/2012 09/13/2012 09/13/2012 09/13/2012 09/13/2012

60 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a argument proceeding held on 8/7/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/22/2012)
61 OPINION AND ORDER #102353: For the reasons set forth on this Opinion and Order, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. The Court invites Congress to examine whether there are amendments that might cure the statutes deficiencies, or whether, in light of existing authorization and existing criminal statutes, § 1021 is needed at all.This Court has stated its position, as directly presented to it by the Government, that the AUMF and § 1021(b)(2) are not the same; they are not co−extensive. Military detention based on allegations of substantially supporting or directly supporting the Taliban, al−Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2). No detention based upon § 1021(b)(2) can occur.The Clerk of the Court is directed to terminate this action. (Signed by Judge Katherine B. Forrest on 9/12/2012) (jp) Modified on 9/19/2012 (ft). (Entered: 09/12/2012)
62 FILING ERROR − NO ORDER SELECTED FOR APPEAL − NOTICE OF APPEAL. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Harwood, Christopher) Modified on 9/13/2012 (tp). (Entered: 09/13/2012)
***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney Harwood, Christopher to RE−FILE Document No. 62 Notice of Appeal. No Order being appealed was selected. Re−file the document as a Corrected Notice of Appeal event and select the correct Order being appealed. (tp) (Entered: 09/13/2012)
63 NOTICE OF APPEAL from 61 Memorandum &Opinion,,,. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Harwood, Christopher) (Entered: 09/13/2012)
Appeal Remark as to 62 Notice of Appeal, filed by Barak Obama, Leon Panetta, 63 Notice of Appeal, filed by Barak Obama, Leon Panetta. NO FEE. USA.(tp) (Entered: 09/13/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 63 Notice of Appeal, 62 Notice of Appeal. (tp) (Entered: 09/13/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 61 Memorandum &Opinion, 35 Notice of Filing Transcript, 47 Order on Motion to Appear Pro Hac Vice, 56 Notice of Appeal, filed by Barak Obama, Leon Panetta, 34 Transcript, 42 Order, Set Deadlines/Hearings, 19 Memorandum of Law in Support of Motion, filed by Christopher Hedges, 52 Trial Brief, filed by Barak Obama, Leon Panetta, 62 Notice of Appeal, filed by Barak Obama, Leon Panetta, 43 Order, Set Deadlines/Hearings, 57 MOTION for David H. Remes to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. filed by Christopher Hedges, 7 Notice of Appearance, filed by Barak Obama, Leon Panetta, 54 Trial Brief filed by Christopher Hedges, 14 Affirmation in Support of Motion, filed by Christopher Hedges, 46 MOTION for Jed H. Stone to Appear Pro Hac Vice filed by Bob Avakian, 51 Endorsed Letter, Set Deadlines/Hearings, 28 Amicus Curiae Appearance, filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution,

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 14 of 17

09/14/2012

Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 20 Memorandum of Law in Support of Motion, filed by Christopher Hedges, 1 Complaint, filed by Christopher Hedges, 23 Memorandum of Law in Opposition to Motion, filed by Leon Panetta, Barak Obama, 6 Scheduling Order, 41 Memorandum &Opinion, 9 Notice (Other) filed by Christopher Hedges, 45 Trial Brief filed by Christopher Hedges, 30 Post Trial Memorandum filed by Christopher Hedges, 63 Notice of Appeal, filed by Leon Panetta, Barak Obama, 12 Affirmation in Support of Motion, filed by Christopher Hedges, 31 FIRST MOTION to File Amicus Brief filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 13 Affirmation in Support of Motion, filed by Christopher Hedges, 26 Order, 44 Order, Set Deadlines, 40 Order, Set Hearings, 8 Notice of Appearance, filed by Leon Panetta, Barak Obama, 60 Notice of Filing Transcript, 10 Affidavit in Support of Motion, filed by Christopher Hedges, 39 Internet Citation, 3 MOTION for Temporary Restraining Order enjoing the operation of the Homeland Battlefield provisions of the National Defense Authorization Act filed by Christopher Hedges, 32 Declaration in Support of Motion, filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 55 Reply Memorandum of Law in Support, filed by Christopher Hedges, 22 Order, 37 MOTION for Reconsideration re; 36 Memorandum &Opinion, MOTION for Reconsideration re; 36 Memorandum &Opinion, filed by Leon Panetta, Barak Obama, 5 Order, Set Motion and RRDeadlines/Hearings, 33 Memorandum of Law in Opposition to Motion, filed by Leon Panetta, Barak Obama, 38 Memorandum of Law in Support of Motion, filed by Leon Panetta, Barak Obama, 59 Transcript, 50 Notice (Other) filed by Bob Avakian, 29 FIRST MOTION to File Amicus Brief filed by Constitution Party National Committee, U.S. Justice Foundation, Bill of Rights Defense Committee, Gun Owners of America, Inc., Dick Black, Center for Media and Democracy, Institute on the Constitution, Conservative Legal Defense and Education Fund, Tenth Amendment Center, The Lincoln Institute for Research and Education, Jerome Aumente, Restoring Liberty Action Committee, Western Center for Journalism, Downsize DC Foundation, Gun Owners Foundation, U.S. Border Control, Chuck Baldwin, DownsizeDC.org, Inc., Bob Marshall, 15 Remark, 24 Memorandum of Law in Opposition to Motion, filed by Leon Panetta, Barak Obama, 11 Affidavit in Support of Motion, filed by Christopher Hedges, 2 Order, Set Hearings, 18 Affirmation in Support of Motion, filed by Christopher Hedges, 17 Affirmation in Support of Motion, filed by Christopher Hedges, 21 Endorsed Letter, 49 Amicus Curiae Appearance filed by Bob Avakian, 36 Memorandum &Opinion, 16 Scheduling Order, 53 Memorandum of Law in Support, filed by Leon Panetta, Barak Obama, 25 Order, 58 Order on Motion to Appear Pro Hac Vice, 48 Amicus Curiae Appearance filed by Bob Avakian, 27 Endorsed Letter, 4 Memorandum of Law in Support of Motion, filed by Christopher Hedges were transmitted to the U.S. Court of Appeals. (tp) (Entered: 09/13/2012)
64 MOTION to Stay re: 61 Memorandum &Opinion,,,. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually).(Torrance, Benjamin) (Entered: 09/14/2012)

Case: 1:12-cv-00331-KBF As of: 06/17/2014 01:40 PM EDT 15 of 17

09/14/2012 09/14/2012
09/14/2012 09/14/2012 10/02/2012 10/03/2012
10/12/2012 10/23/2012 10/23/2012 07/17/2013

65 MEMORANDUM OF LAW in Support re: 64 MOTION to Stay re: 61 Memorandum &Opinion,,,. MOTION to Stay re: 61 Memorandum &Opinion,,,.. Document filed by Barak Obama(individually), Barak Obama(as representative of the United States of America), Leon Panetta(in his capacity as the executive and representative of the Department of Defense), Leon Panetta(individually). (Torrance, Benjamin) (Entered: 09/14/2012)
66 TRANSCRIPT of Proceedings re: PHONE CONFERNCE held on 6/1/2012 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Pamela Utter, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/9/2012. Redacted Transcript Deadline set for 10/18/2012. Release of Transcript Restriction set for 12/17/2012.(McGuirk, Kelly) (Entered: 09/14/2012)
67 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a PHONE CONFERNCE proceeding held on 6/1/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/14/2012)
68 ORDER denying 64 Motion to Stay: IT IS HEREBY ORDERED that the Government's request for an immediate interim stay is DENIED. (Signed by Judge Katherine B. Forrest on 9/14/2012) (djc) (Entered: 09/14/2012)
70 MOTION for Joinder of Pertinent Party and Motion for Appointment of Legal Counsel. Document filed by Dale B. Adams.(lmb) Modified on 10/11/2012 (lmb). Modified on 10/11/2012 (lmb). (Entered: 10/11/2012)
69 ORDER of USCA (Certified Copy) as to 56 Notice of Appeal, filed by Barak Obama, Leon Panetta, 63 Notice of Appeal, filed by Barak Obama, Leon Panetta USCA Case Number 12−3176(L), 12−3644(con). Upon due consideration, it is hereby ORDERED that the Government's motion for stay is GRANTED. The District Court's order dated September 12, 2012 is stayed pending a decision on the appeal by merits panel. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Order: 10/02/2012. Certified: 10/03/2012. (nd) (Entered: 10/04/2012)
71 ORDER denying 70 Motion for Joinder; denying 70 Motion to Appoint Counsel. That the motion is DENIED for lack of jurisdiction. The Clerk of the Court is directed to terminate the motion at Dkt. No. 70. (Signed by Judge Katherine B. Forrest on 10/12/2012) (pl) (Entered: 10/12/2012)
72 TRANSCRIPT of Proceedings re: ARGUMENT held on 8/7/2012 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Pamela Utter, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/16/2012. Redacted Transcript Deadline set for 11/29/2012. Release of Transcript Restriction set for 1/25/2013.(Moya, Goretti) (Entered: 10/23/2012)
73 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 8/7/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 10/23/2012)
74 TRUE COPY ORDER of USCA as to 56 Notice of Appeal, filed by Barak Obama, Leon Panetta, 63 Notice of Appeal, filed by Barak Obama, Leon Panetta USCA Case Number 12−3176(L), 12−3644(con). Ordered, Adjudged and Decreed that the decision of the District Court is VACATED and the case is REMANDED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA

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09/10/2013
09/10/2013 09/11/2013 10/01/2013 10/22/2013 10/25/2013 10/28/2013 10/31/2013 10/31/2013 11/26/2013
11/26/2013

for the Second Circuit. Certified: 7/17/2013. (nd) (Entered: 07/17/2013)
75 MANDATE of USCA (Certified Copy) as to 56 Notice of Appeal, filed by Barak Obama, Leon Panetta, 62 Notice of Appeal, filed by Barak Obama, Leon Panetta, 63 Notice of Appeal, filed by Barak Obama, Leon Panetta USCA Case Number 12−3176(L), 12−3644(con). Ordered, Adjudged and Decreed that the decision of the District Court is VACATED and the case is REMANDED in accordance with the opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 9/10/2013. (Attachments: # 1 Opinion)(nd) (Entered: 09/10/2013)
Transmission of USCA Mandate to the District Judge re: 75 USCA Mandate,,. (nd) (Entered: 09/10/2013)
76 ORDER: On September 10, 2013, this Court received the USCA Mandate from the Second Circuit Court of Appeals. The parties are hereby ORDERED to appear for a status conference on October 30, 2013 at 1:00 P.M. ( Status Conference set for 10/30/2013 at 01:00 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 9/11/2013) (mro) (Entered: 09/11/2013)
77 STANDING ORDER M10−468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13−mc−00334−LAP, document no. 2 on 10/1/2013.***(tro) (Entered: 10/01/2013)
78 ORDER: The conference set Wednesday, October 30, 2013, will be heard on the same date (10/30/2013), at 11:00 a.m. ( Status Conference set for 10/30/2013 at 11:00 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 10/22/2013) (mro) (Entered: 10/22/2013)
79 LETTER MOTION to Adjourn Conference presently scheduled for October 30, 2013 addressed to Judge Katherine B. Forrest from Bruce I. Afran dated October 25, 2013. Document filed by Christopher Hedges.(Afran, Bruce) (Entered: 10/25/2013)
80 ORDER granting 79 Letter Motion to Adjourn Conference. Ordered: Conference adjourned to 10/31/13 at noon. Status Conference set for 10/31/2013 at 12:00 PM before Judge Katherine B. Forrest. (Signed by Judge Katherine B. Forrest on 10/28/2013) (mro) (Entered: 10/28/2013)
81 ORDER: As discussed at that conference, plaintiffs have until on or before January 30, 2014 to propose an Amended Complaint and/or provide the Court with its view as to what is left in this action, and its rationale therefor. (Amended Pleadings due by 1/30/2014.) (Signed by Judge Katherine B. Forrest on 10/31/2013) (tn) (Entered: 10/31/2013)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 10/31/2013. (jp) (Entered: 11/01/2013)
82 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/31/2013 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/20/2013. Redacted Transcript Deadline set for 12/30/2013. Release of Transcript Restriction set for 2/27/2014.(Rodriguez, Somari) (Entered: 11/26/2013)
83 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/31/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 11/26/2013)

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02/03/2014
02/10/2014 02/11/2014 02/11/2014

84 ORDER: On October 31, 2013, plaintiffs were Ordered to propose an Amended Complaint and/or provide the Court with its view as to what is left in this action no later than January 30, 2014. To date, the Court has received no such submission. Accordingly, plaintiffs are hereby ORDERED to either submit a proposed Amended Complaint or advise the Court with its view as to what is left in this action by February 7, 2014. (Signed by Judge Katherine B. Forrest on 2/3/2014) (mro) (Entered: 02/03/2014)
85 STATUS REPORT. View of Counsel for Plaintiffs as to any remaining issues following remand Document filed by Christopher Hedges.(Afran, Bruce) (Entered: 02/10/2014)
86 MEMO ENDORSEMENT on re: 85 Status Report filed by Christopher Hedges. ENDORSEMENT: Order: Based on the representations in this Report, the Court dismisses this action at this time. (Signed by Judge Katherine B. Forrest on 2/11/2014) (mro) (Entered: 02/11/2014)
Terminate Transcript Deadlines (mro) (Entered: 02/11/2014)