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Hedges v Obama Writ for Certiorari
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NO. 13-
In the Supreme Court of the United States
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY,
ALEXA O’BRIEN, U.S. DAY OF RAGE,
KAI WARGALLA, HON. BIRGITTA JONSDOTTIR M.P.,
Petitioners, v.
BARACK OBAMA, individually and as representative of
the UNITED STATES OF AMERICA, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
CARL J. MAYER
COUNSEL OF RECORD MAYER LAW GROUP LLC
1180 AVENUE OF THE
AMERICAS, SUITE 800
NEW YORK, NY 10036
(212) 382-4686
(212) 382-4687 (FAX)
BRUCE I. AFRAN
ATTORNEY-AT-LAW
10 BRAEBURN DR.
PRINCETON, NJ 08540
(609) 924-2075
DECEMBER 16, 2013 COUNSEL FOR THE PETITIONER SUPREME COURT PRESS ♦ (888) 958-5705 ♦ BROOKLINE, MASSACHUSETTS
i
QUESTIONS PRESENTED
1. Does the Second Circuit opinion overturning
the District Court (that had held a law permitting
the military to indefinitely detain Americans is
unconstitutional) depart from this Court’s prior
holdings on First Amendment standing in “fear-
based” or “chilling effect” cases, so that absent
review, United States citizens, legal residents and
other persons are threatened with indefinite military
detention, thereby infringing their First and Fifth
Amendment rights?
2. Is the Second Circuit’s First Amendment
decision focusing on “imminence of enforcement” as
opposed to a “well founded fear of enforcement”
contrary to the great weight of circuit precedent
implementing Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988) and its progeny?
3. Is the Second Circuit’s holding with respect to
the interpretation of § 1021(b) and § 1021(e) contrary
to this Court’s many decisions barring the assertion
of military jurisdiction over U.S. civilians beginning
with Ex parte Milligan and continuing through
Hamdi v. Rumsfeld?
4. To the extent that the Second Circuit opinion
holds that Korematsu is among the “existing law and
authorities” under § 1021(e) that relate to military
detention of citizens and legal residents, should
Korematsu be overruled?
ii
PARTIES TO THE PROCEEDING
Petitioners are Christopher Hedges, Daniel
Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa
O’Brien, U.S. Day of Rage, Kai Wargalla, Hon.
Birgitta Jonsdottir, M.P.*
* Petitioners would like to acknowledge the diverse amici in
these proceedings before the District Court and the Second
Circuit:
Special thanks to Professor Lorraine K. Bannai and the
Korematsu Center For Law and Equality at Seattle University
School of Law. Additional thanks to Professor Eric Yamamoto,
the Fred T. Korematsu Professor of Law at the University of
Hawaii School of Law and to Anjana Malhotra.
These important authors submitted an amicus brief on behalf of
descendants of World War II detainees: Karen and Ken
Korematsu, Holly, Iris and Laurel Dee Yasui, Jay Hirabayashi,
Sharon Mitsu Yen and Marion Setsu Oldenberg.
Additional thanks to the law firm of Arnold and Porter for
Representing the Rutherford Institute and the Bill of Rights
Defense Committee in submitting amici. Special thanks to
Shahid Buttar and to the attorneys Kent Yalowitz, L. Charles
Landgraf and Arpan Sura of Arnold and Porter as well as John
Whitehead, Douglas McKusick, Lina Ragep and Anand
Agneshwar, also of Arnold and Porter.
David Segal of Demand Progress and Cornel West and Naomi
Wolf deserve special mention. David Remes, Esq., Robert, Jaffe,
Esq., Zach Liska, Esq., Rita Ague, Hillary Bergman and Tasha
Striker are acknowledged for their commitment and dedication
throughout the trial and appeal below.
Additional thanks to amici Gun Owners of America, the
Conservative Legal Defense and Education Fund and U.S.
Representative Dick Stockman, Virginia Delegate Bob Marshall
and the many groups represented by William Olson PC and
particularly attorneys William Olson, Herbert W. Titus, John
Miles, Garry Kreep and Steven Harfenist. Finally, thanks are
iii
PARTIES TO THE PROCEEDING – Continued
Respondents are 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, and Eric Cantor as representatives of the
United States Of America.
due the Government Accountability Project and their attorneys
Reem Salahi and Hadsell Stormer.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDING ........................... ii
TABLE OF AUTHORITIES .................................... viii
OPINIONS BELOW ................................................... 1
JURISDICTION .......................................................... 1
CONSITUTIONAL AND STATUTORY
PROVISIONS ....................................................... 1
STATEMENT OF THE CASE .................................... 2
INTRODUCTION ....................................................... 7
REASONS FOR GRANTING THE PETITION ......... 9
I. REVIEW IS WARRANTED AND
VIRTUALLY INVITED BY THE SECOND
CIRCUIT WHICH OPINED THAT IN ITS
UNDERSTANDING THIS COURT’S
DOCTRINE AS TO “FEAR-BASED”
FIRST AMENDMENT STANDING WAS
“LESS THAN CLEAR” ................................... 10
A. The Second Circuit, Despite Reversing
the District Court, Could Not Discern a
“Clear” Standard for Standing in First
Amendment “Fear-Based” Pre-
Enforcement Cases ................................... 10
v
TABLE OF CONTENTS – Continued
Page
B. Application by the Second Circuit of the
Holding in Clapper Based on the
“Impending” Nature or “Imminence of
Enforcement” Test For Standing Was
Improper in the Context of the Speech-
Based Provisions of § 1021 ....................... 13
C. The Second Circuit is in Conflict with
Other Circuits That Have Applied the
“Substantial Risk” Standing Rule to
Challenges to Speech-Based Statutes. ..... 16
II. THE SECOND CIRCUIT’S DECISION
DEPRIVING PLAINTIFFS HEDGES AND
O’BRIEN OF STANDING IS BASED ON
A READING OF § 1021(b) THAT IS
CONTRARY TO THE LEGISLATIVE
HISTORY IN WHICH REPEATED
EFFORTS TO EXCLUDE CITIZENS
FROM THE SCOPE OF § 1021 WERE
DEFEATED, LEAVING THE LAW
UNSETTLED AND IN NEED OF
CLARIFICATION. ......................................... 19
III. CERTIORARI SHOULD BE GRANTED
TO RESOLVE WHETHER “EXISTING . . .
AUTHORITIES” AUTHORIZE DETENTION
OF U.S. CIVILIANS AND LAWFUL
RESIDENTS BY THE MILITARY OR
WHETHER § 1021(b) IS IN FACT A NEW
STATUTORY DETENTION AUTHOR-
IZATION IN VIOLATION OF THIS
vi
TABLE OF CONTENTS – Continued
Page
COURT’S REPEATED HOLDINGS THAT
CIVILIANS CANNOT BE HELD IN
MILITARY JURISDICTION. ........................ 26
A. Section 1021(e) Cannot Be Interpreted
to Refer to Other Authorities that
Authorize Military Detention of
Civilians Since this Court’s
Jurisprudence Has Repeatedly Held
that No Such Power Lies in the
Military. .................................................... 26
B. Because Congress Lacks Power Under
Art. I, § 8, Cl. 14 to Extend Military
Jurisdiction over Civilians, the Second
Circuit’s Interpretation of § 1021(e) Is
Legally Impossible as No “Law Or
Authorities” Can Ever Recognize Such
Jurisdiction. .............................................. 29
IV. TO THE EXTENT KOREMATSU
AUTHORIZES MILITARY DETENTION
OF AMERICAN CITIZENS AND
RESIDENTS AND THEREFORE IS
INVOKED BY SECTION 1021(b) READ
IN CONJUNCTION WITH SECTION
1021(e), THE COURT SHOULD GRANT
REVIEW TO DETERMINE IF
KOREMATSU IS INCONSISTENT WITH
OTHER SUPREME COURT OPINIONS
AND SHOULD BE OVERRULED. ............... 31
vii
TABLE OF CONTENTS – Continued
Page
V. THE PETITION SHOULD BE GRANTED
BECAUSE OF THE EXTRAORDINARY
NATURE OF SECTION 1021(b) AS THE
FIRST STATUTE IN AMERICAN
HISTORY TO ALLOW MILITARY
DETENTION, TRIAL, AND RENDITION
TO FOREIGN COUNTRIES TO
SUPERCEDE OUR CONSTITUTIONAL
SYSTEM, IN PARTICULAR, THE
IMPOSSIBILITY OF STANDING IN
AMERICAN COURTS FOR U.S.
CITIZENS HELD IN FOREIGN PRISONS
MAKES REVIEW ESSENTIAL .................... 32
VI. THE COURT OF APPEALS
SUBTITUTED ITS OWN JUDGMENT
FOR THE TRIAL COURT’S FINDING
THAT THE PLAINTIFFS
DEMONSTRATED A WELL FOUNDED
FEAR OF DETENTION UNDER § 1021. ..... 34
CONCLUSION .......................................................... 39
viii
TABLE OF AUTHORITIES
Page
TABLE OF AUTH ORITIES
CASES
Arkansas Right to Life State PAC v. Butler,
146 F.3d 558 (8th cir. 1998) ............................... 17
Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979) ............. 11, 12, 14, 18
Bischoff v. Osceola County,
222 F.d 874 (11th Cir. 2000) .............................. 18
California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088 (9th Cir. 2003) ............................ 18
Chamber of Commerce v. FEC,
69 F.3d 600 (D.C. Cir. 1995) ............................. 16
Citizen Action Fund v. City of Morgan City,
154 F.3d 211 (5th Cir. 1998) .............................. 17
Clapper v. Amnesty International, 133 S. Ct. 1138 (2013) ................................ passim
Commodity Trend Serv. v. Commodity Futures Trading Commission,
149 F.3d 679 (7th Cir. 1998) .............................. 17
Doe v. Bolton, 410 U.S. 179 (1973) ..................................... 12, 15
Ex Parte Milligan, 71 U.S. 2 (1866) .......................................... passim
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ..................................... 27, 34
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) .................................... passim
ix
TABLE OF AUTHORITIES—Continued
Page
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ................................. 10, 12
Korematsu v. United States, 323 U.S. 214 (1944) ................................... 2, 8, 31
New Hampshire Right to Life Political Action Comm. v. Gardner,
99 F.3d 8 (1st Cir. 1996) ......................... 12, 14, 16
New Mexicans for Bill Richardson v. Gonzales,
64 F.3d 1495 (10th Cir. 1995) ............................ 17
Prime Media, Inc. v. City of Brentwood,
485 F.3d 343 (6th Cir. 2007) .............................. 17
Reid v. Covert, 354 U.S. 1 (1957) ................................... 27, 29, 30
Unity08 v. FEC,
596 F.3d 861 (D.C. Cir. 2010) ........................... 16
Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376 (2d Cir. 2000) ................. 19
Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988) .................................... passim
Wilson v. Stocker,
819 F.2d 943 (10th Cir. 1987) ............................ 16
Wisconsin Right to Life v. Paradise,
138 F.3d 1183 (7th Cir. 1998) ............................ 17
x
TABLE OF AUTHORITIES—Continued
Page
CONSTITUTIONAL PROVISIONS
Article I, Section 8 .............................................. 27, 29
Article III, Section 1 ................................................ 27
Fifth Amendment............................................... passim
First Amendment ............................................... passim
STATUTES
National Defense Authorization Act,
Section 1021 ................................................ passim
National Defense Authorization Act,
Section 1022 ........................................... 22, 28, 33
HISTORIC STATUTES
Administration of Justice Act ................................... 39
Intolerable (Coercive) Acts of 1774 .......................... 38
OTHER AUTHORITIES
“Shut Up. You Don’t Get a Lawyer”,
http://reason.com/reasontv/2011/12/05/
matt-welch-inter view-lori-fromview-lori-
from .................................................................... 22
157 Cong. Rec. S7 (daily ed. Nov. 17, 2011) ............. 21
157 Cong. Rec. S8
(daily ed. Dec. 1, 2011) ..................................... 21
Charles Francis Adams, Novanglus Papers, no.7–The Works of John Adams (1851) .............. 2
xi
TABLE OF AUTHORITIES—Continued
Page
David Ammerman, In the Common Cause: American Response to the Coercive Acts of 1774. (Norton 1974) ....................................... 39
Harlow G. Unger, American Tempest: How the Boston Tea Party Sparked a Revolution
(Da Capo Press 2011) ........................................ 39
John Phillip Reid, Constitutional History of the American Revolution: The Authority of Law (University of Wisconsin Press
2003) .................................................................. 39
Nelson Mandela, Opening Statement, Rivonia Trial: Pretoria Supreme Court (April
1964) .................................................................... 7
Robert Middlekauff, The Glorious Cause: The American Revolution, 1763–1789 (Oxford
University Press, revised and expanded
ed., 2005) ............................................................ 39
1
OPINIONS BELOW
The Court of Appeals opinion (App. A at 1a) is
reported at 724 F.3d 170. The District Court opinion
granting a permanent injunction (App. B at 76a) is
reported at 890 F.Supp.2d 424. Also included in the
appendix below are the District Court Opinion and
Order Granting a Preliminary Injunction (App. D at
192a) and the Opinion and Order Clarifying Scope of
Opinion. (App. C at 184a)
JURISDICTION
The Court of Appeals rendered its decision on
July 17, 2013. This Court granted the Petitioners’
application for an extension of time to file until
December 16, 2013. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
CONSITUTIONAL AND
STATUTORY PROVISIONS
The Petitioners contend that Section 1021 of the
National Defense Authorization Act chills their
rights to free speech and a free press under the First
Amendment to the United States Constitution, and
places them at unnatural and realistic risk of
indefinite military detention stripped of all rights
under the United States Constitution, including but
not limited to their rights under the First and Fifth
Amendments.
2
The relevant text of these constitutional and
statutory provisions is set forth in App. E at 259a.
STATEMENT OF THE CASE
A military order, however unconstitutional,
is not apt to last longer than the military
emergency. . . . But once a judicial opinion
rationalizes such an order to show that it
conforms to the Constitution. . . . The
principle then lies about like a loaded
weapon, ready for the hand of any authority
that can bring forward a plausible claim of
an urgent need.
Korematsu v. United States, 323 U.S. 214 (1944)
(Jackson, J., dissenting)
There is no good government but what is
republican . . . [T]he true idea of a republic
is ‘an empire of laws, and not of men.’
John Adams, Thoughts on Government, Apr. 1776
Papers 4:86-93, Novanglus Papers, no.7–The Works of John Adams, ed. Charles Francis Adams, vol. 4, p.
106(1851)
This Petition asks the Court to review an
opinion of the Second Circuit Court of Appeals
delivered on July 17, 2013. (App.1a)
That opinion overturned a permanent injunction
by the United States District Court Judge the Hon.
Katherine B. Forrest sitting in the Southern District
of New York. (App.76a) and (App.192a)
3
Judge Forrest’s extensive opinions permanently
enjoined a provision of a statute that allows, for the
first time since the internment of Japanese-
Americans during World War II, the indefinite
detention of civilians, including United States
citizens and lawful resident aliens, in military
prisons based on the sole legal standard of having
“substantially supported al-Qaeda, the Taliban, or
associated forces that are engaged in hostilities
against the United States or its coalition
partners, . . .” (App. 259a) The statute would subject
civilians, including American citizens, to military
trials rather than civilian trials and permits the
military to transfer and deport detained civilians and
American citizens anywhere in the world to any
foreign countries or “entities.” The statute violates
the nearly 200 year-old principle that the military
does not police our streets and has no jurisdiction
over U.S. civilians
The Petitioners in this action are journalists,
authors, a duly elected Member of Parliament of an
American ally (Iceland), political activists who,
despite engaging only in core expressive First
Amendment activity, have nonetheless been targeted
by the United States Government in some fashion
such that they fear detention under Section 1021.
The trial court made extensive findings as to both
their First Amendment activities and their voluntary
suppression of those activities in consequence of fear
of enforcement of the NDAA, § 1021(b). (App.205a-
220a)
Lead Petitioner Christopher Hedges is a Pulitzer
prize-winning former reporter for the New York
4
Times. The trial court found that in his capacity as a
foreign correspondent, Mr. Hedges reported on Al-
Qaeda, has interviewed Al-Qaeda members “who
were later detained and are currently in prison”, as
part of his coverage he “retraced the steps of
Mohammed Atta, one of the participants in the 9/11
events”, has reported on 17 groups on the State
Department’s list of known terrorist organizations
and that some “are considered to be in hostilities
with coalition partners of the United States”, he has
had speaking engagements in Belgium and France
“in which he has encountered and conversed with
members of al-Qaeda and the Taliban. Tr. 174”, he
has “met with members of the Hamas leadership,
stayed in their homes, and socialized with them” and
“lived in Gaza and had frequent contact with
members of Hamas in connection with his work.
Tr. 172.” (App. 208a-209a) The trial court also noted
that he has traveled with at least one group deemed
hostile to the U.S., the PKK, (App.209a), a
journalistic practice known as embedding. Though
not recited in the opinions, Mr. Hedges also testified
that he has been detained by the U.S. military in
Saudi Arabia for his reporting activities, has been
detained at U.S. airports for such activities and
thereby had a well-founded fear of future detention
based on the NDAA. Such testimony can be supplied
from the transcript if needed by the Court
The trial court found that O’Brien was engaged
in advocacy and journalistic activities in connection
with individuals imprisoned at Guantanamo and
that her articles have been featured on Jihadist
websites, all which led to her organization U.S. Day
of Rage being placed on a Department of Homeland
5
Security terrorist watch list. (App.211a-215a). The
trial court found, as did the Second Circuit, this
testimony to be credible.
Plaintiffs Kai Wargalla (App.215a-217a) and
Birgitta Jonsdottir, a member of the Iceland
Parliament, both testified to the same effect.
Jonsdottir expressly testified that due to her work
with Wikileaks in producing a film called “Collateral
Murder”, her personal Twitter account and other
social media accounts have been subpoenaed as a
part of the government’s investigation of Wikileaks.
(App.218a-219a) Wargalla, too, testified as to her
group Revolution Truth’s aid to Wikileaks.
(App.216a) Notably, the Second Circuit conceded that
Wikileaks has been considered by the government to
be acting in “support” of al-Qaeda and the Taliban
(App.60a-61a) and it would appear that both
Jonsdottir and Wargalla are, therefore, reasonably
within the targeted class of persons of § 1021(b) who
may been deemed to have “substantially supported”
al-Qaeda.
The trial court found that Mr. Hedges and other
Petitioners have a reasonably objective fear of
detention under Section 1021 and that the statute
chilled their First Amendment speech. (App.136a,
239a-233a) The trial court found that as to their
Fifth Amendment due process claims, “each plaintiff
testified credibly that he or she had read the statute
and did not understand its scope and, in particular,
whether his/her activities would fall within that
scope.” (App.137a)
The effect of the Second Circuit ruling reversing
the district court is to place the Petitioners in this
6
action and many United States civilians and citizens
in the position of limiting or suppressing their core
First Amendment rights and fundamental Due
Process and Equal Protection liberties out of fear
that their advocacy and journalistic activities will
cause them to be caught up in the broad, undefined
scope of § 1021(b). The Second Circuit ruling upends
the status quo—and Supreme Court precedent—that
has been in place for most of our nation’s history
(dating back to Ex Parte Milligan, 71 U.S. 2 (1866)):
that the military cannot detain civilians even during
war time. District Judge Forrest was clear on this
point:
A key question throughout these
proceedings has been, however, precisely
what the statute means—what and whose
activities it is meant to cover. This 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 not 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 section 1021(b)(2). [The statute at
issue here][App.79a, Opinion and Order of
7
Judge Forrest, dated 9/12/12] [emphasis in
original]
Unless this Court grants the Petition, core
constitutional rights will continue to be violated
and/or the expression of First Amendment rights will
be chilled and suppressed under fear of such
enforcement and the principle that the military
cannot detain or assert jurisdiction over U.S.
civilians will be upended
INTRODUCTION
“I thought that what the military was doing
was unconstitutional . . . It may take time to
prove you are right, but you must stick to
it.”
Fred T. Korematsu
“I have cherished the ideal of a democratic
and free society in which all persons live
together in harmony and with equal
opportunities. It is an ideal which I hope to
live for and to achieve.”
Nelson Mandela, Opening Statement, Rivonia Trial: Pretoria Supreme Court (April 1964)
This Petition is dedicated to Fred Korematsu
and his family and Nelson Mandela and his family.
Mr. Korematsu defied indefinite detention
orders issued against Japanese-American citizens
during World War Two.
8
Mr. Mandela remained on the United States
Defense Department and State Department’s
“Terrorist Watch List” from 1988 to 2008, making
him eligible for indefinite military detention without
trial had the statute at issue in this case been extant.
This Petition asks the Supreme Court to review
a ruling by the Second Circuit Court of Appeals
(App.1a) upholding a law (App.259a) permitting the
indefinite military detention of persons, including
United States citizens and residents, suspected of
providing some undefined “substantial support” for
certain non-state actors.
This Petition argues for review because the
Second Circuit opinion, both as a matter of procedure
and substance:
1) contradicts Supreme Court holdings as
to First Amendment standing in “fear-
based” or chilling effect cases;
2) is at odds with other circuits that have
applied this Court’s standing doctrine
derived from Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383
(1988);
3) is contrary to this Court’s teachings
that U.S. citizens and other domestic
civilians may not be brought into the
military jurisdiction as per Ex parte Milligan, 71 U.S. 2 (1866) and its
progeny; and
4) to the extent that it is in accord with
Korematsu v. United States, 323 U.S.
214 (1944) this Court should consider
9
whether Korematsu should be formally
overturned.
Only this Court can ensure that no lawyer,
author, citizen or person—like Mandela or
Korematsu—can be threatened with or actually held
indefinitely without trial in military facilities in
violation of fundamental Fifth Amendment Due
Process and First Amendment precepts, even during
wartime.
REASONS FOR GRANTING THE PETITION
As the trial court found, the Government
conceded on the record that § 1021(b) is directed to
speech and that journalists—including Petitioners—
could be taken under its provisions (App.222a-228a),
a concession that not only undermines the Second
Circuit’s conclusion that citizens are not subject to
detention under the statute (App.49a-50a), but shows
that the Court of Appeals’ use of standing to bar
adjudication is an unprecedented denial of access to
the courts in a challenge to a statute that the
Government concedes captures speech interests.
The Second Circuit’s decision imposes a barrier
to adjudication that is breathtaking in its future
scope as it sets a bar to challenges to speech based
statutes that in substance requires actual
enforcement or virtually imminent enforcement to
effect standing. The unprecedented nature of this
holding in itself commands review.
10
I. REVIEW IS WARRANTED AND VIRTUALLY
INVITED BY THE SECOND CIRCUIT WHICH
OPINED THAT IN ITS UNDERSTANDING
THIS COURT’S DOCTRINE AS TO “FEAR-
BASED” FIRST AMENDMENT STANDING
WAS “LESS THAN CLEAR”
A. The Second Circuit, Despite Reversing the
District Court, Could Not Discern a “Clear”
Standard for Standing in First Amendment
“Fear-Based” Pre-Enforcement Cases
In an unusual holding, the Second Circuit
acknowledged it could not discern with clarity this
Court’s standing doctrine in First Amendment “fear-
based” or chilling effect cases.1 With respect to the
non-citizen Petitioners Wargalla and Jonsdottir, the
Court of Appeals accepted for purposes of the appeal
that they have First and Fifth Amendment rights to
assert (App.52a) and evaluated their standing in the
context of this Court’s decisions that “such fears may
support standing when the threat creating the fear is
sufficiently imminent.” (App.54a) Acknowledging this
analytical standard, the Court of Appeals opined that
clarity is lacking in this Court’s decisional law
governing this standard:
1 In its opinion, the trial court noted Chief Justice Roberts’
opinion that Holder v. Humanitarian Law Project, 130 S. Ct.
169 (2010), while upholding the “material support” statute in
the AEDPA, does not “address the resolution of more difficult
cases that may arise under the statute in the future.”
(App.121a) The NDAA gives rise to similar “difficult” First
Amendment issues that require this Court’s instruction.
11
“The Supreme Court’s jurisprudence
regarding how imminent a threat must be
in order to support standing, however, has
been less than clear.” (App.54a)
The Second Circuit compared two elements of
this Court’s holding in Clapper v. Amnesty International, 133 S. Ct. 1138 (2013) that are in
apparent tension. First, the Court of Appeals noted
Clapper‘s holding that the Clapper Petitioners lacked
standing to challenge the FISA wiretapping statute
on fear-based grounds because “they had failed to
show that government interceptions of their
communication were ‘certainly impending’ ”.
(App.54a) The Court of Appeals then acknowledged
dictum in Clapper to the effect that this Court in
prior cases “has not uniformly required that it be
‘literally certain that the harms [plaintiffs] identify
will come about’ ” but has “sometimes found standing
to sue where plaintiffs showed only a ‘substantial
risk’ that the harm will occur . . . ”, as opposed to
harm that is “certainly impending”. (App.54a-57a)
The Court of Appeals grappled with what it saw
as a seeming divergence between the holding in
Clapper that harm must be “certainly impending” or
“imminent” and the dictum in Clapper that plaintiffs
in appropriate cases may also assert “substantial
risk” of harm, a more relaxed standing standard.
In discerning this conflict, the Second Circuit
looked to this Court’s teaching in Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979),
that plaintiffs in a pre-enforcement setting need
show only “a credible threat of prosecution” where
they have demonstrated “an intention to engage in a
12
course of conduct arguably affected with a
constitutional interest, but proscribed by statute”
and are not required to “await and undergo a
criminal prosecution as the sole means of seeking
relief. 442 U.S. at 298.
Babbitt recognized that standing in fear-based
cases will arise where the threatened harm is “not
imaginary or wholly speculative”. Id. at 302. The
Second Circuit in Hedges v. Obama looked to this
standard as embracing the “substantial risk”
threshold referred to in dictum in Clapper and noted
the First Circuit’s characterization of Babbitt in New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F3d 8, 14-15 (1st Cir. 1996), as enabling
a “low threshold” in First Amendment settings “quite
forgiving” to those plaintiffs seeking pre-enforcement
review. (App.57a-58a)
The Second Circuit identified a tension and
dichotomy between the “certainly impending” holding
of Clapper and Clapper‘s recognition that the lesser
“substantial risk” standard for First Amendment
standing remains intact, a standard that this Court
has accepted as the basis for standing in all of its
“chilling effect” or “fear-based” pre-enforcement
jurisprudence. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392 (1988) (referring to “actual
and well-founded fear that the law will be
enforced . . . ”); Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010) (claim justiciable where
plaintiffs faced “credible threat of prosecution” based
on “support-related” activities); Doe v. Bolton, 410
U.S. 179, 188-89 (1973) (standing based on
“sufficiently direct threat” of prosecution.)
13
It is not clear why the Second Circuit chose to
evaluate the claims in Hedges v. Obama on the basis
of the “imminence” of enforcement, while this Court
made it clear that in speech-based statutory contexts
the lesser “substantial risk” test still applied. Here
the trial found (App.155a-169a), and the Second
Circuit appears to have accepted (App.53a-60a), that
§ 1021 captured both speech and non-speech conduct
yet the Second Circuit applied the “imminence”
threshold that derives from the essentially non-
speech context of FISA as construed in Clapper. It
would appear that the apparent tension between
these closely related standing doctrines caused the
Second Circuit to rely on the holding in Clapper
while the trend of Supreme Court jurisprudence in
this field has been to apply the more relaxed
“substantial risk” test derived from Virginia v. American Booksellers Ass’n where the challenged
statute captures speech interests.
Clarification is required from the Supreme
Court because of the Second Circuit’s inability to see
a clear directive as to the appropriate standing
threshold where the challenged statute is found by
the trial court to capture speech and non-speech
conduct.
B. Application by the Second Circuit of the
Holding in Clapper Based on the
“Impending” Nature or “Imminence of
Enforcement” Test For Standing Was
Improper in the Context of the Speech-
Based Provisions of § 1021
The Second Circuit appears to have focused its
approach to standing based almost exclusively on
14
whether enforcement of § 1021(b) was “impending” or
imminent, a standing doctrine not properly applied
to § 1021, a statute that regulates “a course of
conduct arguably affected with a constitutional
interest”, Babbit, supra, and, particularly, that
invokes First Amendment interests in the form of
authorizing detention of those who “substantially
supported” al Quaeda, the Taliban or associated
forces.
Clapper applied the “certainly impending”
standard to a non-speech case, namely the Clapper
plaintiffs’ claims that FISA’s authorization of
wiretapping of foreign terrorist suspects chilled
plaintiffs’ separate First Amendment activities in
that they were no longer willing to use electronic
means to interview the foreign suspects. FISA, being
directed to wiretapping authorization and not speech
regulation, would not normally carry the “quite
forgiving”, New Hampshire. Right to Life Political Action Comm. v. Gardner, 99 F.3d at 14-15,
“substantial risk” standard applicable to speech cases
In contrast, Petitioners in Hedges are journalists
and activists whose speech-based activities the
district court found were within the scope of § 1021‘s
“substantially supported” standard, notably because
of the Government’s refusal to concede that
expressive activities were not per se outside of the
statute’s scope. (App.98a, 102a-103a, 140a-143a,
223a-227a) Unlike the non-speech context of FISA in
Clapper that merely put in place a method for
authorizing wiretapping of foreign-based suspects
(with only incidental or attenuated effects on the
plaintiffs’ speech), the district court found that
15
§ 1021 “captures both speech and non-speech
conduct”. (App.238a-240a) Thus, unlike the Clapper
plaintiffs who were never within the scope of FISA,
Petitioners’ advocacy activities that may be “extreme
and unpopular as measured against views of an
average individual” (App.242a-243a) are directly
within the detention features of § 1021 and are
captured by its “substantially supported” language.
The trial court also found that Petitioners have all
altered their expressive conduct in consequence of
their fear of enforcement. (App.229a-234a)
The Second Circuit inappropriately applied
Clapper‘s standing doctrine, in particular the
“certainly impending” harm test that derives from
the non-speech FISA, to § 1021 that embraced, at
least in part, speech conduct, as the district court
found. As the Second Circuit noted below, this Court
has long recognized that as to statutes that capture
speech, advocacy or political conduct standing must
pass only the lower threshold of “substantial risk”
characterized varyingly as “actual and well-founded
fear”, American Booksellers Ass’n, a “credible threat
of prosecution”, Holder, or a “sufficiently direct
threat” of prosecution”. Bolton.
The decision below should be reviewed because
it alters the Court’s traditional relaxation of standing
in speech-based challenges and re-focuses that test
upon the impending nature of enforcement rather
than the “actual and well-founded fear” of
enforcement that has been this Court’s driving
doctrinal threshold in speech-based cases. The
Second Circuit’s apparent abandonment of this
doctrine gives rise to a grave limitation—in a circuit
16
heavily encumbered with media litigation—on access
to the courts where a plaintiff seeks to vindicate
threats to First Amendment interests.
C. The Second Circuit is in Conflict with Other
Circuits That Have Applied the
“Substantial Risk” Standing Rule to
Challenges to Speech-Based Statutes.
The Second Circuit’s application of the
“imminence of enforcement” standard for standing
rather than the traditional “well-founded fear” of
enforcement is at odds with virtually every other
circuit that has considered the Court’s standing
doctrine arising under Virginia v. American Booksellers Ass’n. Other circuits have applied the
more relaxed First Amendment standing doctrine in
its different variants to challenges to speech-
capturing statutes. The Second Circuit itself pointed
to the First Circuit’s decision in N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d at 14-15,
as an exemplar of the application of the more relaxed
“substantial risk” test, what the First Circuit called a
“quite forgiving” standing doctrine in cases
concerning statutes that capture First Amendment
interests.
Other circuits have also applied the more
relaxed test to challenges to statutes that capture
speech interests. Wilson v. Stocker, 819 F.2d 943
(10th Cir. 1987) (requiring proof by plaintiff of
“appreciable threat of injury flowing directly from the
statute”); Unity08 v. FEC, 596 F.3d 861, 865 (D.C.
Cir. 2010), citing Chamber of Commerce v. FEC,
69 F.3d 600, 603 (D.C. Cir. 1995) (“A party has
standing to challenge, pre-enforcement, even the
17
constitutionality of a statute if First Amendment
rights are arguably chilled, so long as there is a
credible threat of prosecution.”); Commodity Trend Serv. v. Commodity Futures Trading Commission,
149 F.3d 679, 687 (7th Cir. 1998) (“threat of
prosecution is credible when a plaintiff’s intended
conduct runs afoul of a criminal statute and the
Government fails to indicate affirmatively that it will
not enforce the statute”); cf., Wisconsin Right to Life v. Paradise, 138 F.3d 1183 (7th Cir. 1998) (“ ’actual
and well-founded fear that the law will be enforced
against’ a group can make a claim justifiable even if
enforcement lies in the future.”); Citizen Action Fund v. City of Morgan City, 154 F.3d 211, 215 (5th Cir.
1998) (plaintiff “has standing to challenge the
constitutionality of the original ordinance prior to
any enforcement action because of the credible threat
of prosecution.”); Arkansas Right to Life State PAC v. Butler, 146 F.3d 558, 560 (8th cir. 1998) (“ ’when
government action or inaction is challenged by a
party who is a target or object of that action . . .’
there is ordinarily little question that the action or
inaction has caused him injury, and that a judgment
preventing or requiring the action will redress it.’ ”);
cf. Prime Media, Inc. v. City of Brentwood, 485 F.3d
343, 352 (6th Cir. 2007) (standing would arise “if
[plaintiff] had attempted to produce a billboard
which complied with the height and size
requirements, and was threatened with rejection or
regulation under the other challenged ordinance
provisions.”); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1501-02 (10th Cir. 1995)
(rejecting state’s claim that plaintiff must show that
prosecution is “imminent” to challenge campaign
18
finance law barring use of federal campaign funds in
state election) (citing Babbit, supra); California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th
Cir. 2003) (rejecting district court holding that
plaintiff must show that prosecution is “imminent”
and holding that self-censorship will give rise to
standing as long as plaintiff shows “ an actual and
well-founded fear that the law will be enforced
against [him or her].”); Bischoff v. Osceola County,
222 F.d 874, 884-885 (11th Cir. 2000)(“credible
threat” of prosecution sufficient to establish First
Amendment standing).
The Second Circuit appears to now stand alone
in imposing a test of “imminent threat of
enforcement” (App.67a) against the weight of
virtually every other circuit’s standing doctrine that
has developed under Virginia v. American Booksellers Ass’n. There does not appear to be a
single circuit court of appeals that has employed the
more restrictive “imminent” or “imminence” of harm
test in challenges to statutes that, by their terms,
embrace speech conduct. Indeed, the Second Circuit’s
recent departure in Hedges v. Obama from
traditional standing doctrine in such cases puts it
directly at odds with its own prior jurisprudence
where it employed in broad terms the substantial
risk or credible threat test. See e.g. Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376 (2d Cir.
2000)(holding that “[s]elf censorship” will be a basis
for challenge to speech-based statute where “there
exists a credible threat of prosecution”).2
2 The extent of the Second Circuit’s departure from this well-
trod line of cases can be seen in its dictum in Vermont Right to
19
II. THE SECOND CIRCUIT’S DECISION
DEPRIVING PLAINTIFFS HEDGES AND
O’BRIEN OF STANDING IS BASED ON A
READING OF § 1021(b) THAT IS CONTRARY
TO THE LEGISLATIVE HISTORY IN WHICH
REPEATED EFFORTS TO EXCLUDE
CITIZENS FROM THE SCOPE OF § 1021
WERE DEFEATED, LEAVING THE LAW
UNSETTLED AND IN NEED OF
CLARIFICATION.
The Second Circuit’s reversal presents the novel
(and bizarre) circumstance in which a U.S. Court of
Appeals finds that Petitioners have no standing
based on a judicial construction of a statute that
excludes citizens and lawful resident aliens from its
detention provisions in a manner that is contrary to
the statute’s broad undefined language and contrary
to the Senate’s twice rejecting the very provisions
that would protect this very same class of
Petitioners—U.S. citizens and lawful resident aliens.
In its reversal, the Second Circuit held that
Petitioners Hedges and O’Brien—both U.S. citizens—
lacked standing to challenge § 1021 because § 1021
does not intend to include U.S. citizens or permanent
residents within its detention powers and thus
Hedges and O’Brien can have no credible fear of
detention under the act. (App.49a-50a) But this
holding is contrary to the text of the statute that
contains no provision excluding U.S. citizens or
permanent residents but applies to “[a] person
Life where it held that even “[t]he fear of civil penalties can be
as inhibiting of speech as can trepidation in the face of
threatened criminal prosecution.” Id. at 382.
20
who . . . substantially supported al-Qaeda, the
Taliban, or associated forces . . . ” The Second
Circuit’s holding that the U.S. citizen Petitioners—
Hedges and O’Brien—have no credible basis to fear
enforcement also runs counter to the broad language
of § 1021 itself and to its legislative history.
Section 1021(b)(2) emerged from a legislative
crafting process that leaves little doubt its framers
intended it to have ample scope to apply to U.S.
citizens (and by extension permanent residents in
the U.S.). In fact, the Senate twice failed to pass
legislation that would exclude citizens and lawful
resident aliens from the scope of § 1021(b)’s detention
authority.
The original statute contained a limitation that
the detention authority of § 1021(b) “does not extend
to the detention of citizens or lawful residents aliens
in the U.S. on the basis of conduct taking place
within the United States except to the extent
permitted by the Constitution.” (App.27a) As the
Court of Appeals noted, this was removed from the
original enactment by amendment (App.28a),
thereby leaving intact the broad language of
§ 1021(b)(2) that contains no exclusion of citizens and
lawful residents. Indeed, at trial the Government
refused to exclude Hedges and O’Brien from potential
detention, thereby validating that U.S. citizens are
within the scope of the current enactment.
(App.226a-227a)
Because of the concerns of many Senators that
the removal of the limitation would place citizens
and lawful residents in jeopardy of military
jurisdiction and detention (App.29a), Senator Diane
21
Feinstein moved an amendment to specifically
exclude citizens or lawful resident aliens from the
act’s military detention authority, as follows:
“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 hostilities.” See 157 Cong. Rec. S7,
716-01, 7, 745 (daily ed. Nov. 17, 2011); 157
Cong. Rec. S8, 094-03, S8, 125 (daily ed.
Dec. 1, 2011). (App.30a)
Even this rather mild amendment that would only
have barred the detention of citizens by the military
without trial, but would still have authorized
military jurisdiction of U.S. citizens and lawful
residents, was defeated on the Senate floor.
(App.30a)
As the legislative record shows, the Senate twice
refused to exclude citizens or lawful resident aliens
from the scope of § 1021(b)’s detention power. The
extensive floor debate demonstrated that many
Senators assumed that § 1021(b) could extend to
such persons (App. A at 30a-32a), the very legislative
evil that caused Hedges and O’Brien to fear that
their activities in embedding with extremist groups
in the Middle East (Hedges) or interviewing and
promoting webcasts of such persons (O’Brien) could
be deemed conduct that “substantially supported”
such groups within the meaning of § 1021(b)(2).3 The 3 Senator Graham, amicus in the Court of Appeals and a floor
manager of the bill, famously made it clear that in his
understanding § 1021 applies, and (in his view) rightfully so, to
U.S. citizens who “substantially supported” such entities:
22
Second Circuit’s conclusion that citizens and
residents are not within the scope of § 1021(b) thus
runs up against Congress’s clear refusal to include
such exclusion. Using the principle of statutory
construction expressio unius est exclusio alterius the
Congress was perfectly capable of exempting citizens
if it chose to do so and twice refused; indeed, the
express exemption for citizens in section 1022 stands
in stark contrast to § 1021’s silence on the subject.
The Second Circuit itself noted that the statute
is unclear and gives little guidance as to the
exclusion of U.S. citizens and lawful residents from
the scope of § 1021(b)(2):4
“We recognize that Section 1021 perhaps
could have been drafted in a way that would
have made this clearer and that the absence
“It is not unfair to make an American citizen account
for the fact that they decided to help Al Qaeda to kill
us all and hold them as long as it takes to find
intelligence about what may be coming next. And
when they say, “ ’I want my lawyer,’ you tell them,
‘Shut up. You don’t get a lawyer.’ ”
http://reason.com/reasontv/2011/12/05/matt-welch-inter view-lori-fromview -lori-from
4 The President’s signing statement itself follows this confused
and shifting legislative history. The President made no
statement that U.S. citizens would be excluded from the statute
but rather states that Americans can be detained under
§ 1021(b) but that the “Administration will not authorize the
indefinite military detention without trial of American citizens.”
[emphasis added]. Notably, while the signing statement
eliminates the prospect of “indefinite military detention without trial” of U.S. citizens, it does not foreclose placing citizens in
“military detention”.
23
of any reference to American citizens in
Section 1021(b) led the district court astray
in this case. Perhaps the last minute
inclusion of Section 1021(e) as an
amendment introduced on the floor of the
Senate explains the somewhat awkward
construction.” (App.48a)
The appellate court viewed § 1021(b)(2) as
providing no new detention authority to the
executive branch despite the clear directive of
§ 1021(b)(2) that “a person . . . who . . . substantially
supported al-Qaeda, the Taliban, or associated
forces . . . ” was subject to the punitive measures
contained in § 1021(c). The Second Circuit reached
this interpretive solution by reliance on the
legislative compromise that ultimately became
§ 1021(e).
Section 1021(e) was the product of a final
compromise brokered by Senator Feinstein after the
defeat of her amendment to exclude citizens and
lawful resident aliens from the scope of the detention
power. But § 1021(e) itself is inconclusive and does
not squarely address the question of whether citizens
and lawful resident aliens are excluded from such
detention power or have rights under “existing law or
authorities” to oppose post hoc such detention.
Section 1021(e) states:
“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.” (App.260a)
24
This provision was interpreted by the Second Circuit
as a legislative statement that “expressly disclaims
any statement about existing authority” (App.45a),
meaning, in the Court of Appeals’ understanding,
that
“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.” (App.46a)
Because of what the court saw as the mitigating
effect of § 1021(e) it concluded that “[t]here is simply
threat whatsoever that they [Hedges and O’Brien]
could be detained pursuant to that section . . . ”
(App.49a) In other words, the Second Circuit looked
on § 1021(e) as depriving § 1021(b) of any
independent force and effect, holding in essence that
the entire legislative effort was intended to say
nothing substantive except to leave intact whatever
authority the government already had to detain
citizens in the military.5 On this basis the court held
that Hedges and O’Brien have no standing to
challenge § 1021(b)(2) because § 1021(e) makes it
clear that § 1021(b)(2) adds nothing to existing law
and any detention threat comes from other
governmental powers but not § 1021(b)(2). (App.49a)
Yet the savings clause the court looked to in
§ 1021(e) raises more questions than it answers. On
5 The court of appeals actually makes just such statement:
“section 1021 does not speak—one way or the other—to the
government’s authority to detain citizens, lawful residents, or
any other persons captured or arrested in the United States.”
(App.46a)
25
its face, § 1021(e) provides that § 1021(b)(2) is not
intended to alter “existing law or authorities” as to
detention of U.S. citizens but makes no statement
about whether it is referring to substantive “law or
authorities” regarding detention or whether it refers
to procedural rights including habeas corpus to
challenge post hoc a detention. As set forth in Point
III below, neither Congress nor the President have
Constitutional power to impose military detention
over U.S. citizens or residents so it is unclear just
what “existing law or authorities” could be referred
to in § 1021(e). Finally, § 1021(e) appears on its own
to provide for the very type of detention by the
military that our courts have long barred.
Section 1021(e) refers to “United States citizens,
lawful resident aliens of the United States, or any
other persons who are captured or arrested in the
United States.”
Section 1021(e) simply provides no true
legislative guidance and what the Second Circuit
admits forces an “awkward legislative construction”
(App.48a) cannot be a basis for a deprivation of
standing and a wholesale closure of access to the
federal judiciary.
Only the Supreme Court can settle the law in
this area.
26
III. CERTIORARI SHOULD BE GRANTED TO
RESOLVE WHETHER “EXISTING . . .
AUTHORITIES” AUTHORIZE DETENTION
OF U.S. CIVILIANS AND LAWFUL
RESIDENTS BY THE MILITARY OR
WHETHER § 1021(b) IS IN FACT A NEW
STATUTORY DETENTION AUTHORIZATION
IN VIOLATION OF THIS COURT’S
REPEATED HOLDINGS THAT CIVILIANS
CANNOT BE HELD IN MILITARY
JURISDICTION.
A. Section 1021(e) Cannot Be Interpreted to
Refer to Other Authorities that Authorize
Military Detention of Civilians Since this
Court’s Jurisprudence Has Repeatedly Held
that No Such Power Lies in the Military.
As noted in Point II, supra, the Second Circuit
relied upon the inference that § 1021(e) deprived
§ 1021(b) of any independent detention power in
concluding that the citizen plaintiffs lacked standing.
The Court of Appeals held that § 1021(e), in effect,
means to refer solely to any military detention power
that already exists as to citizens and lawful resident
aliens but does not confer a new independent
detention power under § 1021(b). (App.49a).
The force of such reasoning depends on the
actual existence of such other “authorities” that
actually authorize detention of U.S. civilians by the
military, a highly questionable proposition in view of
the long train of this Court’s case law that bars such
detention. In fact, such authorities do not exist.
27
This Court has held repeatedly—four times—
that Congress cannot make civilians subject to
military jurisdiction. In Reid v. Covert, 354 U.S. 1, 22
(1957) this Court held that the Constitution places a
“limit on military jurisdiction to members of the ‘land
and naval Forces’ ” . . . and that “military trial of
civilians is inconsistent with both the ‘letter and
spirit of the constitution’ ”
Hamdan v. Rumsfeld, 548 U.S. 557 (2006),
recognized that mere “exigency . . . will not justify
the establishment and use of penal tribunals not
contemplated by Article I, § 8, and Article III, § 1 of
the Constitution . . . .” 548 U.S. at 591. Hamdan
made it clear that such powers arise “only from the
powers granted jointly to the President and Congress
in time of war . . . ” Id. As Hamdan made clear, the
sole and singular constitutional basis for imposing
military jurisdiction over U.S. civilians in time of war
arises where the courts are “actually closed, and it is
impossible to administer criminal justice according to
law . . . .” Hamdan at n. 25, citing Ex parte Milligan,
71 U.S. 2 (1866).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), also
applying Milligan, held that no civilian may be
detained by the military unless captured or arrested
while in conflict against the armed forces of the
United States while taken on a field of battle. Hamdi expressly rejected the very premise suggested by the
Second Circuit that there are ever any circumstances
under which civilians can be held in military custody
except where they are “supporting forces hostile to
the United States or coalition partners and engaged
28
in armed conflict against the United States . . . .”
Hamdi v. Rumsfeld, 542 U.S. at 526.
As this case law shows, four times this court has
rejected the premise that U.S. civilians can be placed
in military jurisdiction unless, as recognized in
Hamdi, the detainee is “supporting forces hostile” to
this country “and engaged in armed conflict against
the United States.” Id. In such circumstances, the
detainee would fall under the provisions of § 1022
that apply to actual combatants. Since § 1022
already addresses the only circumstance in which a
citizen or lawful resident can be subject to military
jurisdiction, then § 1021(b) must be deemed to
comprise a new form of detention authority.
It is thus legally impossible for § 1021(e) to have
the meaning attributed to it by the Second Circuit
since the only “existing law or authorities” that
recognize military jurisdiction over civilians, i.e., Hamdi and Milligan, authorize detention in
circumstances that are already addressed by § 1022,
i.e., those persons supporting hostile forces and
participating in the conflict. As § 1021 is not
predicated on the detention of those who are in
combat, and contains none of the limiting language of
Hamdi that the detainee must be both “supporting
forces hostile to the United States . . . and engaged in
armed conflict against the United States,” Hamdi, supra., by its very existence § 1021(b) must impose a
form of detention beyond “existing law or
authorities”.
Simply put, as there are no “existing law or
authorities” that authorize detention of citizens
outside of actual combatancy, and this Court’s
29
holdings bar such detention, the meaning that the
Second Circuit attributed to § 1021(e) is legally
questionable. The Second Circuit’s refusal to
recognize the standing of Hedges and O’Brien based
on such doubtful doctrine effectively shuts the door to
judicial review of a statute that authorizes, for the
first time in U.S. history, the detention of U.S.
citizens and other domestic civilians by the military
and extends the military jurisdiction in a manner
unprecedented.
B. Because Congress Lacks Power Under Art.
I, § 8, Cl. 14 to Extend Military Jurisdiction
over Civilians, the Second Circuit’s
Interpretation of § 1021(e) Is Legally
Impossible as No “Law Or Authorities” Can
Ever Recognize Such Jurisdiction.
That the Second Circuit erred in its
interpretation of § 1021(e) can be further seen by the
fact that Congress lacks any authority under
Article I, § 8, Cl. 14 concerning the power to make
“rules for the . . . Regulation of the land and naval
forces” to extend military jurisdiction over civilians.
Reid v. Covert, 354 U.S. at 21.
Reid recognizes that the “regulation” power in
Clause 14 is subordinated to the Bill of Rights that
guarantees civil trials to U.S. citizens and other
civilians. Under Reid even the “Necessary and Proper
Clause” will not support the placement of civilians in
military jurisdiction. As this Court in Reid held,
military jurisdiction of civilians “is an encroachment
on the jurisdiction of the civil courts, and . . . acts as
a deprivation of the right to jury trial and of other
30
treasured constitutional protections.” Reid v. Covert, 354 U.S at 21
Notably, Justice Scalia, dissenting in Hamdi pointed to the long tradition that even citizens who
aid the enemy are subject to the civil jurisdiction:
“Citizens aiding the enemy have been treated as
traitors subject to criminal process.” 542 U.S. at 559,
cited in the District Court’s Permanent Injunction.
(App. 124a)
Simply put, as the Congress lacks any power to
place civilians under military authority, the Second
Circuit erred in its interpretation of § 1021(e) since
not only are there no “existing law or authorities”
that authorize civilian detention by the military—
such delegation is legally impossible under the
Constitution.
For the foregoing reasons, the Second Circuit
erred in failing to recognize that § 1021(b) imposes a
form of detention alien to our constitutional structure
and that is contrary to a long train of this Court’s
clear and unequivocal jurisprudence
Certiorari is necessary to settle this question.
31
IV. TO THE EXTENT KOREMATSU
AUTHORIZES MILITARY DETENTION OF
AMERICAN CITIZENS AND RESIDENTS AND
THEREFORE IS INVOKED BY SECTION
1021(b) READ IN CONJUNCTION WITH
SECTION 1021(e), THE COURT SHOULD
GRANT REVIEW TO DETERMINE IF
KOREMATSU IS INCONSISTENT WITH
OTHER SUPREME COURT OPINIONS AND
SHOULD BE OVERRULED.
While the previous section clarified that the
weight of Supreme Court holdings dating back to Ex Parte Milligan is that civilians cannot be detained in
military facilities or jurisdiction even during time of
war, the Korematsu opinion stands as an outlier, a
national “embarrassment” as the trial court stated.
(App.87a) Judge Forrest expressly referred to Justice
Scalia’s Hamdi dissent, that traced carefully the
historical limits of the Crown’s power (and later that
of Congress and the Executive) to detain civilians in
the military jurisdiction, as an example of the need
to revisit such prior decisions. (App.87a, 124a-126a)
To the extent Korematsu could be deemed an
“authority” referenced in Section 1021(e), this Court
should grant review to determine if Korematsu, (and
Ex parte Quirin), to the extent that they authorize
any such detention, should be overruled.
32
V. THE PETITION SHOULD BE GRANTED
BECAUSE OF THE EXTRAORDINARY
NATURE OF SECTION 1021(b) AS THE FIRST
STATUTE IN AMERICAN HISTORY TO
ALLOW MILITARY DETENTION, TRIAL, AND
RENDITION TO FOREIGN COUNTRIES TO
SUPERCEDE OUR CONSTITUTIONAL
SYSTEM, IN PARTICULAR, THE
IMPOSSIBILITY OF STANDING IN
AMERICAN COURTS FOR U.S. CITIZENS
HELD IN FOREIGN PRISONS MAKES
REVIEW ESSENTIAL
Finally, if this Court does not grant the Petition,
it is entirely possible that no American citizen or
lawful resident would ever have standing to
challenge a law that authorizes the capture and
rendition of U.S. citizens to foreign countries or
“entities” for indefinite detention. How would citizens
who are picked up in a military van in the middle of
the night and sent to a military detention facility or
to a detention and torture facility in a foreign land
ever exercise their rights, including habeas? How
could they ever have standing in a United States
Court if nobody knew where they were? To suggest,
as the Second Circuit does, that only citizens actually
in custody or threatened imminently can have
standing to challenge such authorization is too high a
bar; indeed, it is an impossible bar. The trial court
itself referred to the legal impossibility of vindicating
one’s right to be free of such detention if one must
first show actual enforcement or imminence in view
of the secrecy in which such actions are carried out.
(App.106a)
33
Consider what is publicly known about detention
facilities in Saudi Arabia, one of the United States
close allies. According to Human Rights Watch
annual report for this year:
“Detainees, including children, commonly
face systematic violations of due process
and fair trial rights, including arbitrary
arrest and torture and ill-treatment in
detention. Saudi judges routinely sentence
defendants to thousands of lashes.”6
The NDAA, § 1021(c) (App.259a) allows for the
exportation and transfer of citizen detainees to any
foreign jurisdiction, including Saudi Arabia and
others that have no respect for either American due
process or standards of treatment. The outsourcing of
detention authorized under § 1021(c)(4) bars judicial
review and gives rise to the very real possibility that
no American citizen or lawful resident would ever
have the standing to challenge rendition for
detention in a foreign land; it is equally likely that
detention in a U.S. military facility would never be
subject to effective habeas remedies since Congress
did not mandate any procedural protection for
detainees under § 1021(b), as opposed to those
combatants taken under § 1022 as to whom Congress
mandated the Executive create procedural rules and
protections. The trial judge noted the practical
6 Human Rights Watch Report 2013. http:// www.hrw.org/world-
report/ 2013/ country- chapters/ saudi- arabia? page=2. Other
United States allies like Turkey routinely violate any precepts
of due process, First Amendment or protections against
indefinite detention. http://www.hrw.org/europecentral-asia/
turkey
34
difficulties of relying upon habeas as a remedy for
illegal detention, noting that such relief takes years
(App.87a-88a), a problem with which this Court has
great familiarity in view of the number of years it
took for Hamdi and Hamdan to reach the Court.
VI. THE COURT OF APPEALS SUBTITUTED ITS
OWN JUDGMENT FOR THE TRIAL COURT’S
FINDING THAT THE PLAINTIFFS
DEMONSTRATED A WELL FOUNDED FEAR
OF DETENTION UNDER § 1021.
The Court of Appeals substituted its own
judgment for the trial court—even though it adopted
the findings of the trier of fact—and reasoned that
because the Government said in its legal papers that
Petitioners are in no danger of indefinite detention,
the Petitioners do not have standing. This directly
contradicts not only the lengthy trial and hearing
evidence, but the Government’s statements at trial
that it would not guarantee that these Petitioners do
not fall within the ambit of NDAA indefinite
detention.
It is the ever–shifting nature of the
Government’s representations that highlight the
dangers of the NDAA—the vague language of the
statute allows the Executive Branch untrammeled
power to use the military to detain civilians, even on
the “homeland battlefield”—i.e. the U.S. As the
District Court found, absent an injunction, the very
existence of the NDAA violates the First Amendment
by chilling core First Amendment speech and violates
due process by risking the detention of Americans
who are placed outside the effective reach of habeas
relief. (App.87a-88a)
35
Judge Forrest cross-examined the Government
lawyers about whether they could give assurances to
the Petitioners in this case—all of whom are either
journalists or activists with no ties to terrorists,
other than journalistic—that their speech and
conduct would not subject them to the provisions of
the NDAA. Repeatedly, Justice Department lawyers
refused, in open court, on the record, to offer any
such assurances. (App.139a-143a, 160a-162a, 222a-
230a) As Judge Forrest wrote in her opinion granting
a preliminary injunction:
“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
[Section] 1021 [of the NDAA]. Plaintiffs are
therefore at risk of detention, of losing their
liberty, potentially for many years.”
(App.245a) Opinion of District Court Judge
Forrest, May 16, 2012. (“May 16 Opinion”)
See Also App.139a-143a, 160a-162a, 222a-
230a.
The district court, and the trial record, could not
be clearer on this point and the district court’s May
16 preliminary injunction and September 12, 2012
permanent injunction were in accord. In fact, the
district court judge in her September 12, 2012
opinion and order reiterated the findings from the
earlier May 16 preliminary injunction and
incorporated same. “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
36
detention under § 1021” (App.78a-79a) The district
court noted that it “repeatedly asked the
Government whether those particular past activities
could subject plaintiffs to indefinite military
detention; the Government refused to Answer.”
(App.81a) [emphasis added]
When asked, on the record, in open court,
whether Petitioners’ activities fell within § 1021’s
scope, the Government told the trial court, “I can’t
make specific representations as to particular
plaintiffs. I can’t give particular people a promise of
anything.” (App.225a and 141a-142a) Hearing Before
District Judge Forrest on March 30, 2012 at 235.
(“March 30 Hearing”) See also May 16 Opinion at 33-
35. The Government actually stated at the hearing
that Hedges, O’Brien and Jonsdottir’s conduct may
well bring them within the military detention
features of § 1021(b). (App.222a-228a) Viewed in this
light, the Second Circuit’s conclusion that these
Petitioners cannot meet the standard of either
“imminent” enforcement or a “well founded fear of
enforcement” is contrary to the findings of fact of the
trial court.
The Government’s comments on the record
highlighted the vague, over-reaching ambit of § 1021.
For example, in discussing an elected member of
Iceland’s Parliament, Hon. Birgitta Jonsdottir, the
following colloquy took place.
The court: “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
37
current activities under section 1021?”
The Government responded: “Again, I can’t
make representations on specifics. I don’t
know that she has been up to. I don’t know
what is going on there.” (App.226a-227a)
The Government refused to specifically state
that Pulitzer-prize winning former New York Times
journalist Chris Hedges could not be subject to
detention under the NDAA.
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
activities], can you say the he would not be
subject to military detention without trial
under section 1021?”
The Government responded by stating: “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.” (App.227a)
After the Government lost on motion for
preliminary injunction, it changed position implying
that Petitioners might not be subject to detention
should they engage in “independent journalistic
expression.” Judge Forrest dealt with these shifts in
the Government’s position in her opinion of
September 12. (App.139a-143a, 160a-162a, 222a-
230a) Judge’s Forrest’s response is the same one this
Court ought to adopt here: “Shifting positions are
38
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.” (App.142a)
The trial court found that the Government’s
admitted conditions on which expressive conduct
would not be within the scope of the NDAA actually
create a “likelihood of detention under § 1021.”
(App.141a) Even a cursory look at the conditions
under which the Government says speech would be
outside the NDAA (App.141a) make it clear that a
virtual presumption arises that the Government
believes citizen journalists are, in fact, subject to
§ 1021.
The Second Circuit’s holding that the Petitioners
have no basis to fear enforcement or that citizens will
not be made subject to § 1021 is contrary to this clear
and unrefutable record.
This court should further grant certiorari
because the Executive Branch has made clear below
that it believes its actions to be beyond judicial
review.7 Indeed, § 1021(b) conveys to the Executive
Branch a method of circumventing the judicial
system, much like widely reviled bills of attainder
passed by the British during prior to the American
Revolution or the Intolerable (Coercive) Acts of 1774:
7 When Judge Forrest questioned Government attorneys about
whether they had detained citizens under the NDAA, the
Government indicated that it does not keep track of what
statute they detain people under. This led Judge Forrest to
surmise that the Executive Branch could have been in contempt
for violating the preliminary injunction of May 16, 2012.
Transcript August 7, 2012 at 138-139.
39
dangerous legislation that the Founders fought
against.8 The Administration of Justice Act (one of
the Intolerable (Coercive) Acts)—which George
Washinton called the “Murder Act”—permitted
British soldiers accused of crimes against American
colonists to be tried in other colonies or in England.
The effect is similar to the provisions of the NDAA
that allows citizens, residents or persons to be sent to
detention facilities in any foreign country thereby
undermining the American judicial system.
As § 1021(b) and its companion provisions would
work to remove American citizens beyond the
protections of the American judicial system the
construction of the statute must be given full review
by this Court.
CONCLUSION
For the reasons set forth above, the Court should
grant certiorari in this matter.
8David Ammerman, In the Common Cause: American Response to the Coercive Acts of 1774. (Norton 1974); Robert Middlekauff,
The Glorious Cause: The American Revolution, 1763–1789
(Oxford University Press, revised and expanded ed., 2005); John
Phillip Reid. Constitutional History of the American Revolution: The Authority of Law. (University of Wisconsin Press 2003)
Harlow G. Unger, American Tempest: How the Boston Tea Party Sparked a Revolution, 188-193. (Da Capo Press 2011)
40
Respectfully Submitted,
CARL J. MAYER
COUNSEL OF RECORD MAYER LAW GROUP LLC
1180 AVENUE OF THE AMERICAS,
SUITE 800
NEW YORK, NY 10036
(212) 382-4686
(212) 382-4687 (FAX)
BRUCE I. AFRAN
ATTORNEY-AT-LAW
10 BRAEBURN DR.
PRINCETON, NEW JERSEY 08540
(609) 924-2075
COUNSEL FOR THE PETITIONERS
December 16, 2013
App. i
APPENDIX TABLE OF CONTENTS
Appendix A. Opinion of The Second Circuit
Court of Appeals Reversing District Court ...... 1a
Appendix B. Opinion And Order of The District
Court Granting Plaintiff’s Motion for
Permanent Injunction ...................................... 76a
Appendix C. Memorandum Opinion Order of
The District Court Clarifying Scope of
Preliminary Injunction ................................... 184a
Appendix D. Opinion And Order of The District
Court Granting Plaintiff’s Motion for
Preliminary Injunction ................................... 192a
Appendix E. Relevant Constitutional Text ........ 259a
Appendix F. Relevant Statutory Text National
Defense Authorization Act Public Law 112-
81, Dec. 31, 2011 Section 1021 ....................... 260a
App. 1a
APPENDIX A
OPINION OF THE
SECOND CIRCUIT COURT OF APPEALS
REVERSING DISTRICT COURT
724 F.3d 170
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, U.S. DAY OF RAGE, KAI WARGALLA,
HON. BIRGITTA JONSDOTTIR M.P.,
Plaintiffs-Appellees,
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. *
Docket Nos. 12–3176 (Lead), 12–3644 (Con).
* The Clerk of the Court is directed to amend the official caption
as shown above.
App. 2a
Before: KEARSE and LOHIER, Circuit Judges,
and KAPLAN, District Judge.**
Argued Feb. 6, 2013 – Decided July 17, 2013
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?
On December 31, 2011, President Obama signed
into law the National Defense Authorization Act for
** The Honorable Lewis A. Kaplan, United States District
Judge for the Southern District of New York, sitting by
designation.
1 P.L. 107–40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541
note
App. 3a
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 2 P.L. 112–81, 125 Stat. 1298 (2011) (“2012 NDAA”).
3 Stockman Amici Br. 3.
App. 4a
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.
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:
App. 5a
“[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 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
4 AUMF § 2(a).
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, 124 S.Ct. 2686, 159 L.Ed.2d
548 (2004) (discussing the military detention of over six
hundred non-citizens at Guantánamo).
App. 6a
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 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
6 Hamdi v. Rumsfeld, 542 U.S. 507, 513, 124 S.Ct. 2633, 159
L.Ed.2d 578 (2004) (plurality opinion).
7 Id.
8 Id.
9 18 U.S.C. § 4001(a).
App. 7a
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 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
10 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578.
11 Boumediene v. Bush, 553 U.S. 723, 733, 128 S.Ct. 2229, 171
L.Ed.2d 41 (2008) (discussing Hamdi).
12 Justice O’Connor, joined by Chief Justice Rehnquist, Justice
Kennedy, and Justice Breyer.
13 Hamdi, 542 U.S. at 522 n. 1, 124 S.Ct. 2633 (plurality
opinion).
App. 8a
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
The four remaining Justices dissented from the
conclusion that Hamdi could be detained, reasoning 14 Id. at 516, 519, 124 S.Ct. 2633 (internal quotation marks
omitted).
15 Id. at 517, 124 S.Ct. 2633. 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,
124 S.Ct. 2633.
16 Id. at 519, 124 S.Ct. 2633 (citing Ex parte Quirin, 317 U.S. 1,
37–38, 63 S.Ct. 2, 87 L.Ed. 3 (1942)).
17 Id. at 521, 124 S.Ct. 2633.
18 Id. at 587–88, 124 S.Ct. 2633 (Thomas, J., dissenting).
App. 9a
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
19 Id. at 547–51, 124 S.Ct. 2633 (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, 124 S.Ct. 2633 (Scalia, J., dissenting).
20 Id. at 571–75, 124 S.Ct. 2633 (Scalia, J., dissenting) (citing
Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866)).
21 Padilla v. Rumsfeld, 352 F.3d 695, 699–701 (2d Cir. 2003),
rev’d on jurisdictional grounds, 542 U.S. 426, 124 S.Ct. 2711,
159 L.Ed.2d 513 (2004).
App. 10a
President’s Article II war powers.22 The Supreme
Court reversed our decision on procedural grounds on
the day it decided Hamdi but 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
22 Id. at 712, 722.
23 Rumsfeld v. Padilla, 542 U.S. 426, 430, 124 S.Ct. 2711, 159
L.Ed.2d 513 (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, 124 S.Ct. 2711.
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, 126 S.Ct. 1649, 164 L.Ed.2d
409 (2006).
App. 11a
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-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
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. al–Marri v. Spagone, 555 U.S. 1220, 129 S.Ct. 1545, 173 L.Ed.2d 671
(2009).
28 Id. at 165–66.
29 Id. at 183.
30 al–Marri, 534 F.3d at 216.
App. 12a
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 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-
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.
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, 129 S.Ct. 680, 172
L.Ed.2d 649 (2008).
App. 13a
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 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, 35 al–Marri v. Spagone, 555 U.S. 1220, 129 S.Ct. 1545, 173
L.Ed.2d 671.
36 See Rasul, 542 U.S. at 484, 124 S.Ct. 2686 (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, 126 S.Ct. 2749, 165 L.Ed.2d 723
(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, 128 S.Ct. 2229 (concluding that Section 7 of the
2006 MCA is unconstitutional).
37 553 U.S. at 771, 792, 128 S.Ct. 2229.
App. 14a
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
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 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”);
App. 15a
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
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 Guantánamo
Bay” and is “not, at this point, meant to define the contours of
App. 16a
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 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
authority for military operations generally, or detention in
other contexts.” Id. at 2.
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.
App. 17a
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 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
47 Id. at 6.
48 Id. at 7.
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)).
App. 18a
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 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
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).
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 v. Obama, 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
App. 19a
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 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
(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.
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”).
App. 20a
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 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] 60 Al–Bihani, 590 F.3d at 872; but see Stephen I. Vladeck, The D.C. Circuit After Boumediene, 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, 14344 (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
U.S.C.C.A.N. 742 (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).
62 Id.
App. 21a
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,
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 also Gul 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).
App. 22a
the Taliban, or associated forces.65 In fact, in
Bensayah v. Obama,66 a case argued before but
decided after Al–Bihani, 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
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 Al (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.
App. 23a
government dropped reliance on a “purposeful and
material support” theory in Salahi v. Obama.69
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
69 625 F.3d at 747.
App. 24a
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,
App. 25a
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 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
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-112hrl540rh/pdf/BILLS-
112hrl540rh.pdf.
App. 26a
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.
“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
72 Id.
73 Id.
74 H.R. Rep. 112–78 at 209 (2011), available at http://www.gpo.
gov/fdsys/pkg/CRPT-112hrpt78/pdf/CRPT-112hrpt78.pdf.
App. 27a
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].
75 S. 1253, 112th Cong. § 1031 (as reported by S. Comm. on
Armed Services, June 22, 2011), available at http://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.
App. 28a
“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
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-112sl867pcs/pdf/BILLS-
112s1867pcs.pdf.
App. 29a
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
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 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. 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
Guantánamo Bay and held indefinitely.”) (statement of Sen.
Paul); 157 Cong. Rec. S7,943–01, 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
App. 30a
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 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
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. S8,094–03, S8, 125 (daily ed. Dec. 1,
2011).
85 Id. at S8,122.
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).
App. 31a
“[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
88 Id. (case name italics added).
App. 32a
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:
“[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
89 Id. (case name italics added).
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
App. 33a
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 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
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.
95 Id.
App. 34a
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-citizens, Birgitta
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 ¶¶ 28 (adding Daniel Ellsberg, Noam
Chomsky, Jennifer Bolen, Kai Wargalla, Birgitta Jonsdottir,
Alexa O’Brien, and U.S. 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 non-citizen. Hedges v. Obama, 890
F.Supp.2d 424, 455 n. 33 (S.D.N.Y. 2012). Both the 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
App. 35a
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
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.
App. 36a
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 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.
105 Id. at *13–14.
106 Id. at *19.
107 Id. at *19–25.
108 Id. at *25–28.
109 Dist. Ct. Dkt. 38 at 4.
App. 37a
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 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 110 Hedges, 890 F.Supp.2d at 429.
111 Id. at 472.
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).
App. 38a
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 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
114 Clapper v. Amnesty Int’l USA, ___ U.S.___, 133 S.Ct. 1138,
1146, 185 L.Ed.2d 264 (2013) (internal quotation marks
omitted).
115 Id.
116 Id. at 1148 (internal quotation marks omitted).
App. 39a
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.
“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
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,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (alterations, emphasis,
and other internal quotation marks omitted).
118 See, e.g., Lujan, 504 U.S. at 564 & n. 2, 112 S.Ct. 2130;
Clapper, 133 S.Ct. at 1150 n. 5.
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)).
App. 40a
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 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, 121 Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558,
173 L.Ed.2d 443 (2009) (internal quotation marks and
alterations omitted).
122 Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54, 112
S.Ct. 1146, 117 L.Ed.2d 391 (1992) (internal quotation marks
and citations omitted); accord Carr v. United States, 560 U.S.
438, 130 S.Ct. 2229, 2241, 176 L.Ed.2d 1152 (2010); United States v. Coppola, 671 F.3d 220, 240 (2d Cir. 2012).
123 AUMF § 2(a).
App. 41a
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
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).
App. 42a
authority, if any, is included in the President’s
separate AUMF authority to use force against the
organizations responsible for 9/11.
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
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, 124 S.Ct. 2633 (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).
App. 43a
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 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
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.
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
App. 44a
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
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 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, 79 S.Ct. 141, 3 L.Ed.2d 132 (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.
App. 45a
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
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).
App. 46a
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 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
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
App. 47a
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 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
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).
135 Plaintiffs read Section 1021(e) as preserving only habeas
corpus rights to such individuals. This argument is
App. 48a
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
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 the Non–
Detention Act. Padilla, 352 F.3d at 699, rev’d on jurisdictional grounds, 542 U.S. 426, 124 S.Ct. 2711. Nor need we consider
whether this interpretation is supported by the canon of
App. 49a
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.
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.
App. 50a
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.
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
139 No party contends that either Jonsdottir or Wargalla is a
lawful resident alien.
App. 51a
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
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, 110
S.Ct. 1056, 108 L.Ed.2d 222 (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 Law’ ”(quoting U.S. ex rel. Turner v. Williams, 194
U.S. 279, 292, 24 S.Ct. 719, 48 L.Ed. 979 (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, 70
S.Ct. 936, 94 L.Ed. 1255 (1950), as “emphatic[ally]” rejecting
the “extraterritorial application of the Fifth Amendment.” 494
U.S. at 269, 110 S.Ct. 1056. But see id. at 290–91, 110 S.Ct.
1056 (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
App. 52a
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 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
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.
App. 53a
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
141 Hedges, 890 F.Supp.2d at 436–37.
App. 54a
the factual testimony of the plaintiffs, which 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 142 See id. at 432.
143 ___ U.S.___, 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, ___ U.S.___,
133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).
App. 55a
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 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 145 Id.
146 Id. at 1150 n. 5.
147 Id.
148 Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (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, 561 U.S. 139, 130 S.Ct.
2743, 2754–55, 177 L.Ed.2d 461 (2010).
149 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895.
App. 56a
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 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.153 150 Id. at 298, 99 S.Ct. 2301 (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, 99 S.Ct. 2301.
152 Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392,
108 S.Ct. 636, 98 L.Ed.2d 782 (1988); see id. at 393, 108 S.Ct.
636 (finding standing where plaintiffs had “actual and well-
founded fear that the law will be enforced against them”);
Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct.
2705, 2717, 177 L.Ed.2d 355 (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, 93 S.Ct. 739, 35 L.Ed.2d
201 (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, 81 S.Ct. 1752, 6 L.Ed.2d 989 (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, 81
S.Ct. 1752 (Brennan, J., concurring in judgment) (similar).
App. 57a
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 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
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, 127 S.Ct. 764, 166 L.Ed.2d 604 (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, 93 S.Ct. 739.
App. 58a
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
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, 108 S.Ct. 636 (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, 99 S.Ct.
2301 (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, 108 S.Ct. 636; Babbitt, 442 U.S. at 302, 99 S.Ct. 2301.
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, 81 S.Ct. 1752 (citing Ex parte La Prade, 289
U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed. 1311 (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.”
App. 59a
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 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.
Id. (citing CIO v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395, 89
L.Ed. 1741 (1945)).
158 221 F.3d 376 (2d Cir. 2000).
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).
App. 60a
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
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
161 542 F.3d 341 (2d Cir. 2008).
162 Id. at 350.
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.
App. 61a
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
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 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/.
App. 62a
might fear that 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 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.
App. 63a
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 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
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).
App. 64a
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
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
167 Babbitt, 442 U.S. at 298, 99 S.Ct. 2301.
168 Id. (citing Doe, 410 U.S. at 188, 93 S.Ct. 739); accord HLP,
130 S.Ct. at 2717.
169 Am. Booksellers Ass’n, 484 U.S. at 393, 108 S.Ct. 636.
170 Hedges, 890 F.Supp.2d at 450 n. 29.
171 Vt. Right to Life, 221 F.3d at 382.
App. 65a
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 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
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, 124 S.Ct. 2633 (quoting W.
Winthrop, Military Law and Precedents 788 (rev.2d ed.1920))
(other internal quotation marks and alterations omitted).
173 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415, 123 S.Ct.
2374, 156 L.Ed.2d 376 (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, 101 S.Ct.
2972, 69 L.Ed.2d 918 (1981).
App. 66a
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.
Consequently, there is a world of difference
between assuming that a state executive will enforce
a statute imposing civil penalties for certain
176 Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d
640 (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,
129 S.Ct. 2102, 173 L.Ed.2d 982 (2009) (recognizing that
“Congress legislates against a background assumption of
prosecutorial discretion”).
179 U.S. CONST. art. II, § 3; accord United States v. Valenzuela–Bernal, 458 U.S. 858, 863, 102 S.Ct. 3440, 73
L.Ed.2d 1193 (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.”).
App. 67a
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 non-citizens
abroad.183 Thus, in the circumstances of this case,
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.
App. 68a
Jonsdottir and Wargalla must show more than that
the statute covers their conduct to establish
preenforcement standing.
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
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, 108 S.Ct. 636.
App. 69a
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 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
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 Jazeera as Liberties/Human Rights Advocate, Huffington Post (Jan. 6, 2012), available at
App. 70a
government argues that this latter failure 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
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 involve 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 the evidence submitted here is insufficient to
meet plaintiffs’ burden.
189 Appellant Br. 8.
App. 71a
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
190 But see Vladeck, supra note 60, at 1457 n. 36 (noting that
some constraints identified by al–Marri 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.
App. 72a
administration on stronger footing to detain
individuals under such a theory than it might have
been willing to risk previously.
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
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.
App. 73a
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 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 195 See Hamdi, 542 U.S. at 532, 124 S.Ct. 2633 (“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.”); Boumediene, 553
U.S. at 798, 128 S.Ct. 2229 (“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, 112 S.Ct. 2130.
197 Clapper, 133 S.Ct. at 1147 (internal quotation marks
omitted).
App. 74a
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-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 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, 123
S.Ct. 2191, 156 L.Ed.2d 148 (2003); Broadrick v. Oklahoma, 413
U.S. 601, 612–15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
199 Farrell, 449 F.3d at 499 (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958, 104 S.Ct. 2839, 81
L.Ed.2d 786 (1984)) (alterations omitted).
App. 75a
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.
App. 76a
APPENDIX B
OPINION AND ORDER OF THE DISTRICT COURT
GRANTING PLAINTIFF’S MOTION FOR
PERMANENT INJUNCTION
890 F.Supp.2d 424
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, U.S. DAY OF RAGE, KAI WARGALLA,
HON. BIRGITTA JONSDOTTIR M.P.,
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.
12 Civ. 331 (KBF)
September 12, 2012
App. 77a
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 motion for recon-
sideration 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)
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.
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.)
App. 78a
(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. 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
App. 79a
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 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
App. 80a
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 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
App. 81a
raised in this action. As discussed below, however,
the Court rejects each.
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 its Mot. for Recons. (Dkt. No. 38)
(“Recons. Mem.”) at 2.) Two pages later, the
Government stated its full, qualified position:
3 There are additional required elements for standing which the
Court addresses below.
App. 82a
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. Given
that opportunity, the Court must—and does—take
App. 83a
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.
App. 84a
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 branch unilaterally extended its
interpretation of its military detention authority to a
scope resembling what was passed into law as
App. 85a
§ 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— § 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).
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.
App. 86a
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, ___U.S.___, 130 S.Ct.
2705, 2711, 177 L.Ed.2d 355 (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,
56 S.Ct. 466, 80 L.Ed. 688 (1936) (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, 71 U.S. (4 Wall.) 2, 125–
26, 18 L.Ed. 281 (1866). Heedlessly to refuse to hear
constitutional challenges to the Executive’s conduct
App. 87a
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, 65 S.Ct.
193, 89 L.Ed. 194 (1944) (upholding the internment
of 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, 63 S.Ct. 2,
87 L.Ed. 3 (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
App. 88a
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 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
App. 89a
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
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 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
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.
App. 90a
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 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
10 Days of Destruction, Days of Revolt, co-authored by Hedges
App. 91a
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 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 Mujahedine
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 and Joe Sacco, was published after the March hearing. The
Court takes judicial notice of that publication.
App. 92a
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.
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,
App. 93a
Tunisia, as well as Richard Reed, an al-Qaeda
member who attempted to use a shoe bomb to blow
up an airplane. Id.
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
App. 94a
penalty of running afoul of it could be indefinite
military detention. See, e.g., id. at 174, 177, 186. 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
11 There is no evidence in the record that plaintiffs engage in
any relevant activities other than those protected by the First
Amendment.
App. 95a
contribute content. Id. at 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.
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
App. 96a
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 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
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.
App. 97a
“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 information-sharing
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.”).
O’Brien testified that pursuant to a request
made under the Freedom of Information Act, an
organization called TruthOut.org had obtained a
App. 98a
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. 14 The Court admitted the document obtained pursuant to that
request under the general hearsay exception contained in Fed
F. 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.
App. 99a
At the August hearing, the Government stated
that it could not represent one way or the other
whether future activities by 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
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.
App. 100a
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.
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.
App. 101a
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 § 1021—particularly because her
work might be construed as giving “ ‘substantial
support’ to ‘terrorists and/or associated forces.’ ”Id. at
154.
App. 102a
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.
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
App. 103a
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.
(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
App. 104a
at the mercy of “noblesse oblige.” See U.S. v. Stevens,
559 U.S. 460, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435
(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
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
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.)
App. 105a
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 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
App. 106a
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
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
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
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 91–92.
App. 107a
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).
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.
App. 108a
(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 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
App. 109a
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, 124 S.Ct. 2633,
159 L.Ed.2d 578 (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
‘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
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, 124 S.Ct. 2633.
App. 110a
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 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
App. 111a
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, 124 S.Ct. 2633 (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, 124 S.Ct. 2633 (citing O’Connor v. Donaldson,
422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396
(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.
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].
. . .
App. 112a
(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 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 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.
App. 113a
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.
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.”
App. 114a
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. 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 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 al-Bihani 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). Al–Bihani, 590 F.3d at 869–73.
App. 115a
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
App. 116a
circumstances in a traditional international armed conflict, render them detainable.
Id. at 1 (emphases added)
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
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)).
App. 117a
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 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
App. 118a
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 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
App. 119a
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.
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.
App. 120a
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 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 abridge the
exercise of the rights guaranteed under the First
App. 121a
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 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
App. 122a
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. § 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
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.
App. 123a
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, 124 S.Ct.
2633. 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, 124 S.Ct. 2633 (emphases added).
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
App. 124a
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, 124 S.Ct.
2633 (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,
124 S.Ct. 2633.
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 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, 124 S.Ct.
2633. 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, 124 S.Ct. 2633 (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
App. 125a
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, 124 S.Ct. 2633. 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, 124 S.Ct. 2633
(Scalia, J., dissenting). In Quirin, the Court upheld
trial by military commission of eight saboteurs, one
of whom was an American citizen. As Justice Scalia
stated, “The case was not the Court’s finest hour.”
Hamdi, 542 U.S. at 569, 124 S.Ct. 2633 (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, 124
S.Ct. 2633. In Quirin, however, there was no doubt
that petitioners were members of enemy forces—they
were ‘admitted’ enemy invaders. Id. at 571, 124 S.Ct.
2633 (quoting Quirin, 317 U.S. at 47, 63 S.Ct. 2).
Justice Scalia, with Justice Stevens joining, believed
that Hamdi should be prosecuted in an Article III
court. Id. at 573, 124 S.Ct. 2633. The Government
here relies heavily on Quirin. The same rationale
App. 126a
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
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, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992). That requirement has two components: the
threshold question of whether the plaintiffs who have
brought an action have standing, see id. at 561, 112
S.Ct. 2130, 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, 120 S.Ct. 693, 145 L.Ed.2d
610 (2000).
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.
App. 127a
A. Principles of Standing and Analysis
Plaintiffs bear the burden of establishing
standing for each claim asserted. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342,
126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Lujan, 504
U.S. at 561, 112 S.Ct. 2130. Standing is determined
as of the outset of the litigation. Lujan, 504 U.S. at
569 n. 4, 112 S.Ct. 2130; 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 speculative, that the injury can be
redressed by a favorable decision. Lujan, 504 U.S. at
561, 112 S.Ct. 2130.
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, 91 S.Ct.
758, 27 L.Ed.2d 696 (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 Public Workers of Am. v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754
App. 128a
(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, 108 S.Ct. 636, 98 L.Ed.2d 782
(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 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, 108 S.Ct. 636 (quoting
Sec’y of State of Md. v. J.H. Munson Co., 467 U.S.
947, 956–57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 612,
93 S.Ct. 2908, 37 L.Ed.2d 830 (1973))); see also Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376,
28 In American Booksellers, the statute at issue required a
“knowing display” of certain materials. 484 U.S. at 383, 108
S.Ct. 636. 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, 108 S.Ct. 636.
App. 129a
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, 92 S.Ct. 2318, 33
L.Ed.2d 154 (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, 92 S.Ct. 2318. 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 some
later purpose; the fruit of the exercise of § 1021 is
indefinite detention.
Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct.
1660, 75 L.Ed.2d 675 (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, 103 S.Ct. 1660. 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)—
App. 130a
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 DaimlerChrysler for
the proposition that facts supporting standing must
appear affirmatively in the record. (See Gov’t Trial
Mem. at 18, 26.) In DaimlerChrysler, disgruntled
residents of Toledo, Ohio brought a lawsuit alleging
injury based on tax breaks given to 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.”
DaimlerChrysler, 547 U.S. at 343, 126 S.Ct. 1854
(quoting Mass. v. Mellon, 262 U.S. 447, 486, 43 S.Ct.
597, 67 L.Ed. 1078 (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
App. 131a
are no factual similarities between DaimlerChrysler
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, 108 S.Ct. 636. Section 1021(b)(2) implicates
both.
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, 99
S.Ct. 2301, 60 L.Ed.2d 895 (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, 94 S.Ct. 1209, 39
L.Ed.2d 505 (1974))); see also Doe v. Bolton, 410 U.S.
179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). If
prosecution is not “remotely possible,” then a
plaintiff lacks standing. Babbitt, 442 U.S. at 299, 99
S.Ct. 2301 (quoting Younger v. Harris, 401 U.S. 37,
42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)).
In Amnesty International USA v. Clapper, 638
F.3d 118 (2d Cir. 2011), cert. granted, ___U.S.___,
132 S.Ct. 2431, 182 L.Ed.2d 1061 (2012), the Second
Circuit allowed a preenforcement challenge where
the plaintiffs alleged a prospective injury to First
App. 132a
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 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 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.
App. 133a
changing their conduct).
2. Facial Challenges
Whether or not a facial challenge is permissible
implicates plaintiffs’ standing. Under Lujan, it is
clear that traditional 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, 113 S.Ct.
2766, 125 L.Ed.2d 441 (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, 113 S.Ct.
2766. 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, 119 S.Ct. 1849, 144 L.Ed.2d
67 (1999), and Broadrick v. Oklahoma, 413 U.S. 601,
93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In Morales, the
Court found that because the statute was challenged
on First Amendment grounds, it implicated the
App. 134a
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 statute. Morales,
527 U.S. at 55, 119 S.Ct. 1849. 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, 93 S.Ct. 2908. “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, 93 S.Ct. 2908.
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, 108 S.Ct. 636 (“[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
App. 135a
the State from changing its 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.”).
App. 136a
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, 93 S.Ct.
2908.
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 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
App. 137a
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, 442 U.S. at 298,
99 S.Ct. 2301; 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.
App. 138a
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, 112 S.Ct. 2130, 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.
c. Redressability
The Government argues that plaintiffs lack
standing because any injury supposedly deriving
App. 139a
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, 124 S.Ct. 2633.
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.
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
App. 140a
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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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,
102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97
L.Ed. 1303 (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 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
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, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
App. 141a
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 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
App. 142a
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 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
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.
App. 143a
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 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
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, 102 S.Ct. 1181. 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.
App. 144a
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, 99 S.Ct. 2545, 61
L.Ed.2d 176 (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.
. . .
Nor does this conclusion by any means
suppose a superiority of the judicial to the
legislative power. It only supposes that the
App. 145a
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.
App. 146a
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.
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, 57 S.Ct. 216, 81 L.Ed. 255 (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, 96
S.Ct. 2673, 49 L.Ed.2d 547 (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
App. 147a
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, 96 S.Ct. 2673.
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 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, 124 S.Ct. 2633.
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
35 The Government’s argument regarding the President’s role
App. 148a
(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 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.”).)
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.
App. 149a
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 post-detention 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.
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
36 See, e.g., Al–Bihani, 590 F.3d at 869 (acknowledging the
petitioner’s 2001 detention), cert. denied, ___ U.S.___, 131 S.Ct.
1814, 179 L.Ed.2d 794 (2011).
App. 150a
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 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, 112 S.Ct. 2767, 120
L.Ed.2d 636 (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
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
App. 151a
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 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.D.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 statements” are not law; and a new administration could
certainly take a different position.
App. 152a
president, it would undoubtedly be found in plain
words in [Art. II of the Constitution]; but there is not
a 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 self-defense 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, 2 Black
635, 17 L.Ed. 459 (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,
App. 153a
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 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, 57 S.Ct. 216,
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, 57 S.Ct. 216. 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, 65 S.Ct.
193 (citing Sterling v. Constantin, 287 U.S. 378, 401,
53 S.Ct. 190, 77 L.Ed. 375 (1932)). Justice Jackson
also dissented in Korematsu, stating, “I should hold
App. 154a
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 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, 65 S.Ct. 193.
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, 63 S.Ct. 2. 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. Quirin is not a case in which an American, not
App. 155a
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 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, 121 S.Ct. 2404, 150
App. 156a
L.Ed.2d 532 (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, 120 S.Ct. 1878,
146 L.Ed.2d 865 (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, 57 S.Ct. 255, 81 L.Ed. 278 (1937)
(peaceable assembly for lawful discussion cannot be
made a crime); see also New York Times v. United States, 403 U.S. 713, 724, 91 S.Ct. 2140, 29 L.Ed.2d
822 (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, 89 S.Ct. 1399, 22
L.Ed.2d 664 (1969); United States v. Robel, 389 U.S.
258, 263, 88 S.Ct. 419, 19 L.Ed.2d 508 (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, ___U.S.___, 132 S.Ct. 2537, 2542, 183
L.Ed.2d 574 (2012) (citing Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700,
152 L.Ed.2d 771 (2002)). In the recent Alvarez
decision, the Supreme Court held 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
App. 157a
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 Broad. Sys., Inc. v. Fed. Commc’ns Comm.,
512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497
(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 bringing 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 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
App. 158a
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, 114 S.Ct. 2445. 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, 114 S.Ct. 2445,
§ 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,
___U.S.___, 131 S.Ct. 2729, 2738, 180 L.Ed.2d 708
(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 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.
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, 114 S.Ct. 2445 (quotation marks omitted).
App. 159a
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, 112 S.Ct. 501, 116 L.Ed.2d 476
(1991); Roth v. United States, 354 U.S. 476, 77 S.Ct.
1304, 1 L.Ed.2d 1498 (1957); Beauharnais v. Illinois,
343 U.S. 250, 254–55, 72 S.Ct. 725, 96 L.Ed. 919
(1952); Brandenburg v. Ohio, 395 U.S. 444, 447–48,
89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct.
684, 93 L.Ed. 834 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72, 62 S.Ct. 766, 86
L.Ed. 1031 (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’
App. 160a
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-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
App. 161a
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,” 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 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.
App. 162a
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
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
App. 163a
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 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
App. 164a
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, 128
S.Ct. 1184, 170 L.Ed.2d 151 (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.)
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,
128 S.Ct. 1830, 170 L.Ed.2d 650 (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, 128 S.Ct. 1830).
Despite the Government’s assurances that the
App. 165a
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 the
touchstone in an area so closely touching our most
precious freedoms.” 389 U.S. at 265, 88 S.Ct. 419
(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, 88 S.Ct. 419.
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
App. 166a
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 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, 128 S.Ct. 1830. 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.
App. 167a
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 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
App. 168a
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
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 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.
App. 169a
writer under § 1021(b)(2) and impose indefinite
military detention, or 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, 107 S.Ct. 2568, 96 L.Ed.2d
500 (1987) (affirming facial invalidation of a statute
that reached a substantial amount of protected
speech); Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (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)
App. 170a
VIII. 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., ___U.S.___, 132 S.Ct. 2307,
2317, 183 L.Ed.2d 234 (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, 46 S.Ct. 126, 70 L.Ed. 322 (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, 128 S.Ct. 1830).
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 1591). The
degree of vagueness that the Constitution tolerates
App. 171a
depends in part on the nature of the enactment. See Rothenberg v. Daus, 481 Fed. Appx. 667, 670–71 (2d
Cir. 2012)(citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct.
1186, 71 L.Ed.2d 362 (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 with respect to our current, novel type
of armed conflict against armed groups such as al-
Qaida and the Taliban.”).)
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.
App. 172a
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.
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
App. 173a
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” 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
App. 174a
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 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, 124 S.Ct. 2633. 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
App. 175a
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, 124 S.Ct. 2633 (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, 88 S.Ct. 419.
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) (preponder-
App. 176a
ance 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 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.
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, ___ U.S.___, 132
S.Ct. 2739, 183 L.Ed.2d 614 (2012).
App. 177a
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. §§ 2339A–2339B. It never addresses the
phrase “directly support” and it never addresses the
fact that “associated forces” is a moving target.44
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
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
constituting groups the executive branch “believes” may be tied
to al-Qaeda or the Taliban.
App. 178a
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 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
App. 179a
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 1021(b)(2) is, therefore,
impermissibly vague under the Fifth Amendment.
IX. PERMANENT INJUNCTIVE 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, ___U.S.___, 130 S.Ct. 2743,
2756, 177 L.Ed.2d 461 (2010); eBay Inc. v.
App. 180a
MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct.
1837, 164 L.Ed.2d 641 (2006). Plaintiffs meet each of
those factors.
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, 96 S.Ct. 2673; 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 plaintiff need not wait until such detention
App. 181a
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 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
App. 182a
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.
X. CONCLUSION
for the reasons set forth above, this Court
permanently enjoins enforcement of § 1021(b)(2) in
any manner, as to any person.45 The Court invites
Congress to examine whether there are amendments
that might cure the statute’s deficiencies, or whether,
45 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.
App. 183a
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.
SO ORDERED:
Dated: New York, New York
September 12, 2012
/s/ Katherine B. Forrest
United StatesDistrict Judge
App. 184a
APPENDIX C
MEMORANDUM OPINION ORDER OF THE
DISTRICT COURT CLARIFYING SCOPE OF
PRELIMINARY INJUNCTION
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, U.S. DAY OF RAGE, KAI WARGALLA,
HON. BIRGITTA JONSDOTTIR M.P.,
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.
12 Civ. 331 (KBF)
June 6, 2012
KATHERINE B. FORREST, District Judge.
On May 16, 2012, this Court issued a
App. 185a
preliminary injunction (the “May 16 Order”)
enjoining enforcement of Section 1021(b)(2) of the
National Defense Authorization Act (“NDAA”). 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 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
1 On the June 1, 2012 telephonic conference, the Court
requested that the parties confer among themselves and with
App. 186a
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 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 each other and report back to the Court with the vehicle they
think is best to resolve this action once and for all.
App. 187a
or vague statutes may apply generally—they need
not be limited only to the 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); Vill. 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”); 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); 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),
impermissibly conflicts with the hospice cap statute”;
it did not involve a constitutional question.
App. 188a
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 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;
App. 189a
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 protect[ed] 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 Org. 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.
App. 190a
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 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.
App. 191a
SO ORDERED:
Dated: New York, New York
June 6, 2012
/s/ Katherine B. Forrest
United StatesDistrict Judge
App. 192a
APPENDIX D
OPINION AND ORDER OF THE DISTRICT
COURT GRANTING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
CHRISTOPHER HEDGES, DANIEL ELLSBERG,
JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, U.S. DAY OF RAGE, KAI WARGALLA,
HON. BIRGITTA JONSDOTTIR M.P.,
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.
12 Civ. 331 (KBF)
May 16, 2012
App. 193a
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 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
App. 194a
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;
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.’
1 “The Government” refers to all defendants in this action.
App. 195a
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 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
App. 196a
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 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.
App. 197a
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 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
App. 198a
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 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- 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.)
App. 199a
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
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
3 References to “Tr.” are to the transcript of the March 30, 2013
hearing on plaintiffs’ motion for preliminary injunction.
App. 200a
. . .
(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 relating to the detention of
United States citizens. . . .
Pub. L. 112-81, 125 Stat. 1298 § 1021.
App. 201a
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/
DCPD201100978.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
App. 202a
Al-Qaeda Terrorists.” see Pub. L. 112-81, 125 Stat.
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
App. 203a
(Feb. 28, 2012), available at http://www.gpo.gov/
fdsys/pkg/DCPD-201200136/pdf/DCPD-01200136.pdf.
That directive provides specific guidance as to 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
App. 204a
preparation for, or in carrying out, a
violation of [various criminal
statutes] . . . shall be . . . imprisoned for not
more than 15 years.
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
App. 205a
similarly untethered, subjective
judgments . . . Congress took care to add
narrowing definitions to the material-
support statute over time. These definitions
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,
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
App. 206a
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 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
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.
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.
App. 207a
(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 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
7 Hedges does not speak German but does speak English,
French, Spanish, and Arabic. Tr. 157.
App. 208a
§ 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
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 al-Islamiya, Hamas, Hezbollah,
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.
8 References to “Court Ex.” refer to documents marked for
identification during the March 30 preliminary injunction
hearing.
App. 209a
Hedges testified that some of those
organizations are considered to be in hostilities with
coalition partners of the 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
App. 210a
with respect to 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.
Hedges testified that prior to the passage of
§ 1021 he had never feared military detention for his
activities. Tr. 206.
App. 211a
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 al-Qaida 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 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.
App. 212a
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
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) 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.
App. 213a
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 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
App. 214a
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:
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 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
App. 215a
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
3. Kai Wargalla
Kai Wargalla is an organizer and activist based
in London. Tr. 116. She is the Deputy Director of
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
communication and therefore assumes the document to be
authentic. see Tr. 109 111.
App. 216a
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 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.
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.
App. 217a
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 could well take action against her for
her associational and expressive activities set forth
at this litigation.
App. 218a
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.
Tr. 149.
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.
App. 219a
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 (sic). The Remaining Plaintiffs
Other individuals are named as plaintiffs in this
action and shall be plaintiffs as the matter proceeds
in its subsequent stages. Those additional
individuals include Bolen, Chomsky, and Ellsberg.
Plaintiffs are not relying on those individuals to
App. 220a
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 Curiae 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
Foundation, Institute on the Constitution, Gun
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.
App. 221a
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
Curiae 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 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.
App. 222a
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 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.
App. 223a
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.
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.
App. 224a
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 here and whether those activities
would fall within the scope of § 1021. The Court
App. 225a
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 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
App. 226a
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.
App. 227a
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 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
App. 228a
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
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.
App. 229a
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).
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
App. 230a
legislation has already impacted those expressive
and associational activities.
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
15 The inability to make specific representations as to the
plaintiffs here renders confusing the Government’s repeated
assertion that plaintiffs’ fears are unreasonable.
App. 231a
fear of future government action that is likely to
occur. O’Brien has written a 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
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.
App. 232a
“Collateral Murder” (which 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 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
App. 233a
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 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
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) 5 18;
Certification of Alexa O’Brien (Dkt. No. 14) 5 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.
App. 234a
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 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
App. 235a
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 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
App. 236a
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 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.
App. 237a
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, 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
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.
App. 238a
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. 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 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
App. 239a
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
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
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.
App. 240a
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 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
App. 241a
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
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
App. 242a
(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 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 unpopular as measured against
App. 243a
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 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
App. 244a
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 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
App. 245a
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.
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”
App. 246a
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 co-belligerency.’ ” (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 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 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.”
App. 247a
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 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
App. 248a
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 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
App. 249a
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 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.
App. 250a
The Court has also considered importing certain
principles from the AUMF into § 1021 to give the
statute at issue a limiting 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.
Because this Court cannot fashion an
appropriate limiting construction, it finds that
App. 251a
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 their
associational and expressive conduct chilled, there is
both actual and continued threatened irreparable
harm.
App. 252a
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.
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
App. 253a
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. 112 81, 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.
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.”
App. 254a
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 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
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.
App. 255a
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
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
App. 256a
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 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.
App. 257a
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.
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 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.
App. 258a
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
/s/ Katherine B. Forrest
United StatesDistrict Judge
App. 259a
APPENDIX E
RELEVANT CONSITUTIONAL TEXT
United States Constitution, First Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a
redress of grievances.
United States Constitution, Fifth Amendment
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use,
without just compensation
App. 260a
APPENDIX F
RELEVANT STATUTORY TEXT
NATIONAL DEFENSE AUTHORIZATION ACT
PUBLIC LAW 112-81, DEC. 31, 2011
SECTION 1021
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
App. 261a
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.
(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.
App. 262a
(f) REQUIREMENT FOR BRIEFINGS OF
CONGRESS.—The Secretary of Defense shall
regularly brief Congress regarding the application of
the authority described in this section, including the
organizations, entities, and individuals considered to
be “covered persons” for purposes of subsection (b)(2).
