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UNITED STATES DISTRICT COURT --------------------------------------- CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA 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) OPINION AND ORDER KATHERINE B. FORREST, District Judge: On
May 16, 2012, this Court preliminarily enjoined
enforcement of § 1021(b) of the National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No.
112-81, 125 Stat. 1298 (Dec. 31, 2011)(“the NDAA”). See
Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124 (S.D.N.Y.
May 16, 2012) (order granting preliminary injunction)
(the “May 16 Opinion”). On June 6, 2012, in response to
a footnote contained in the Government’s [1] motion for
reconsideration suggesting an unduly narrow
interpretation of that ruling, this Court issued a
summary order stating that the injunction was intended
to--and did apply to--any and all enforcement of §
1021(b)(2), not simply to plaintiffs in this lawsuit. 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 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 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 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]
(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. 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. 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 § 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). Fourth, the Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it”--that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. In particular, the Government argues that the fact that the statute relates to military detention during a time of war both justifies § 1021(b)(2) breadth and requires judicial deference. The Court rejects that argument as well. The Court is mindful of the extraordinary importance of the Government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2711 (2010). Moreover, these same considerations counsel particular attention to the Court’s obligation to avoid unnecessary constitutional questions in this context. Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. See, e.g., Ex parte Milligan, 72 U.S. (4 Wall.) 2, 125-26 (1866). Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold. And this Court gives appropriate and due deference to the executive and legislative branches--and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases--primarily decided during World War II--in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil)). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside. The Government also argues that, at most, the Court’s role should be limited to a post-detention habeas review. See Tr. II at 118. That argument is without merit and, indeed, dangerous. Habeas petitions (which take years to be resolved following initial detention) are reviewed under a “preponderance of the evidence” standard (versus the criminal standard of “beyond a reasonable doubt”) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous. If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath. In conclusion, this Court preliminarily found that plaintiffs showed a likelihood of success on the merits with respect to their claims that § 1021(b)(2) is overbroad as well as impermissibly vague. The Government has presented neither evidence nor persuasive legal argument that changes the Court’s preliminary rulings. The case law this Court cited in its May 16 Opinion remains good law. The factual record and case law now presents this Court with a matter ready for final resolution. The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process. At the August hearing, the Government stated that preliminary enjoining § 1021(b)(2) had not altered its detention practices in any way since in its view, the executive branch maintains identical detention authority under the AUMF. See Tr. II at 138. As set forth herein, however, that position is unsupported by the AUMF itself, has been rejected by other courts (including the Supreme Court), and is rejected by this Court. If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of “substantially or directly supporting” associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed. [7] II. FINDINGS OF FACT Five plaintiffs provided evidentiary materials in support of their positions in this action: Christopher Hedges, Alexa O’Brien, Jennifer Ann Bolen, Kai Wargalla and the Honorable Brigitta Jonsdottir. [8] Plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified live at the March hearing. [9] The Government did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings. The Court finds the testimony of each plaintiff credible. With respect to the witnesses who testified live, the Court was able to evaluate their demeanor and ask clarifying questions. The Government cross-examined each of the witnesses who testified live (having also previously deposed him or her). None of the witnesses wavered in his or her testimony; each was sincere and direct. Each provided specific and detailed information regarding his or her writings, speech, and/or associational activities that have been affected--and that he or she asserts are continuing to be affected--by his or her fear of detention pursuant to § 1021(b)(2). The Court adopts the factual findings set forth in its May 16, 2012 Opinion, see Hedges, 2012 WL 1721124, at *6-15, and repeats here only those facts necessary for context. The Court also supplements those factual findings based on information from the March hearing and admitted documentary evidence not recited in the May 16 Opinion. The Court’s factual findings are as follows: A. Christopher Hedges Christopher Hedges has been a foreign correspondent and journalist for more than 20 years. Tr. I at 156. During that time, he has published numerous articles and books on topics such as al-Qaeda, Mohammad Atta, and the Paris bombing plot; he is a Pulitzer Prize winner. Id. at 157-58. His most recent book was published in June 2012. [10] He intends to continue to work as a journalist. See, e.g., id. at 173. Hedges’ writing and journalistic activities have taken him to the Middle East, the Balkans, Africa, and Latin America. Id. at 157. His work has involved interviewing al-Qaeda members who were later detained. Id. at 158. He has reported on 17 groups contained on a list of known terrorist organizations prepared by the U.S. Department of State. (See Court Ex. 9 (Country Reports on Terrorism, Report of the U.S. State Dep’t, Ch. 6 (“Terrorist Groups”))(Aug. 2010) at 1.) Among the groups on which Hedges has reported (most of which are on the State Department list of terrorist organizations) are: the Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama’a al-Islamiya, Hamas, Hizballah, Kahane Chai, the Kongra-Gel (a/k/a “KGK” or “PKK”), the Mujahedin-e Khalq Organization (“MEK”), the Palestine Liberation Front, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine (including also the Central Command) (“PFLP”), al-Qaeda, Revolutionary People’s Party/Front, and the Salafist Group for Call and Combat. (Court Ex. 9 at 12); see also Tr. I at 169. In his career as a journalist and writer, Hedges has spent time with members of those groups; he has interviewed their leadership as well as the rank-and-file. Tr. I at 170. In connection with his reporting on Hamas, Hedges has met with its leadership, stayed in their homes, and socialized with them. Id. at 172. He testified that some of the organizations on which he has reported are considered to be in hostilities with coalition partners of the United States. Id. at 166, 169. The PKK is only one example. Id. at 169. Other groups Hedges has covered, such as the PFLP, have carried out acts of terrorism against U.S. targets. Id. at 170. As part of his investigative work, he has been embedded with certain organizations on the State Department’s Terrorist List. For instance, in connection with his coverage of the PKK, he travelled with PKK armed units in southeastern Turkey and northern Iraq. Id. He was with an armed unit of the PKK in northern Iraq when Turkish war planes attacked it. Id. at 171. Hedges’s work has involved investigating, associating with and reporting on al-Qaeda. After September 11, 2001, he was based in Paris and covered al-Qaeda in all countries in Europe with the exception of Germany (he does not speak German, but does speak Spanish, French and Arabic). Id. at 157. He did “reconstructs”: following terrorist attacks, he “would spend weeks on the ground piecing together everything that had gone into [the] attack and all of the movements of those who were involved in [the] attacks.” Id. at 157-58. He did a “reconstruct” relating to Mohammad Atta, one of the participants in the attacks on September 11, 2001. Id. at 158. Hedges testified that he “retraced every step Mohammad Atta took.” Id. Hedges covered al-Qaeda’s attempted bombing of the Paris Embassy. Id. He also covered al-Qaeda’s suicide bombing attack on the synagogue in Djerba, Tunisia, as well as Richard Reed, an al-Qaeda member who attempted to use a shoe bomb to blow up an airplane. Id. Hedges has recently spoken at events in Belgium and France, and could encounter people associated with groups that are “hostile to the U.S. government.” Id. at 174. Hedges testified that because he speaks a number of languages (including, as stated, Arabic), he has been approached by publications, such as Harper’s Magazine, the Nation and others to return to the Middle East as a correspondent. Id. at 172-73. He testified that he has a realistic expectation that his work will bring him back to the Middle East. Id. at 173. Hedges testified that his work is known in the Middle East and read widely there. Id. at 159. His works have appeared on Islamic and jihadist websites. Id. Hedges read news articles regarding § 1021 prior to its implementation. Id. at 160. He testified that he has read § 1021 but does not understand the definition of certain terms including “associated forces,” “engaged in hostilities,” or “substantially supported.” Id. at 161-62. He testified that he has read the AUMF, that he understands it and that, in his view, it is not coextensive with § 1021. Id. at 164-65. Hedges testified that his oral and written speech as well as associational activities have been chilled by § 1021: he does not understand what conduct is covered by § 1021(b)(2), but does understand that the penalty of running afoul of it could be indefinite military detention. See, e.g., id. at 174, 177, 186. He anticipated having to change his associational activities at speeches he was giving as a result of § 1021. Id. at 174. Hedges testified that prior to the passage of § 1021, he never feared his activities could subject him to indefinite military detention by the United States. Id. at 206. At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. Id. at 245. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. Tr. II at 142. [11] This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2). B. Alexa O’Brien Alexa O’Brien was the founder of U.S. Day of Rage and has also written numerous articles. Tr. I at 40-42. She identifies her career as a “content strategist.” Id. at 38. O’Brien is also a contributor and editor of the news website, WL Central. Id. at 40-41. WL Central has a number of international news journalists who contribute content. Id. at 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 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 “associated forces” and “substantially support” as lacking definition. See id. She stated:
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 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:
Id. at 236. 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 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. 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. 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 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:
(Id. at 4 (footnote omitted).) In its pre-trial memorandum, the Government reiterated that position. (See Gov’t Trial Mem. at 20.) The Government did not put forth a witness to explain the difference between its first, March position and its second (set forth in its May reconsideration brief and reiterated in its June pre-trial memorandum). Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” See U.S. v. Stevens, 130 S. Ct. 1577, 1591 (2010). There is no guarantee that the position will not--or cannot--change again. In other words, the Government’s new position--without any guarantees of its firmness--cannot rebut the standing that plaintiffs established at the March hearing. In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.” Tr. I at 223-226. In particular, when the Court asked for one example of what “substantially support” means, the Government stated, “I’m not in a position to give one specific example.” Id. at 226. When asked about the phrase “directly support,” the Government stated, “I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.” Id. at 229-30. In its pre-trial memoranda, the Government also did not provide any definitional examples for those terms. [18] What evidence could the Government have offered in this matter? Are its positions necessarily based only on legal argument not susceptible to “proof”? Certainly not. The Government’s positions included mixed questions of law and fact. With due regard for the Government’s legitimate authority to exercise prosecutorial discretion and the Government’s need for secrecy in matters of true national security, there were nonetheless several types of evidence the Government could have offered. First, in opposing plaintiffs’ standing the Government could have offered that no one has in fact been detained for any activities protected by the First Amendment (if such evidence existed). Based upon credibility, a single statement may not have required further elaboration that would have tread into areas of national security. (Even so, of course, there are well-established ways of dealing with such matters in judicial proceedings.) The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement determinations--namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. The Government could have offered a witness on law enforcement’s need for the breadth of § 1021 based upon factual scenarios that have occurred, but as to which secrecy is not required. The Government could have offered a witness who could have testified as to examples of how law enforcement has actually interpreted (if anyone has) the words “substantially support,” “directly support,” or “associated forces.” Any of that evidence may have provided an evidentiary basis for what are instead simply legal arguments or ipse dixit that plaintiffs’ fears of detention were unreasonable. The Court is not suggesting the Government bears the burden of proof on standing; it does not. It could, however, have chosen to provide an evidentiary basis for its defense. Just as with any litigant, the Government’s position would have been strengthened had it offered facts supportive of its assertions. As a result of the Government’s strategic trial choice, the Court is left with a one-sided evidentiary record. The Court will not--indeed, it cannot--“assume” what the Government’s evidence would have been. [19] III. THE EVOLUTION OF THE AUMF AND § 1021 This proceeding directly implicates both the AUMF, signed into law on September 18, 2001, and § 1021(b)(2) of the NDAA because the Government’s central challenge to plaintiffs’ standing is that their fears of detention cannot be reasonable since § 1021(b)(2) is simply a reaffirmation of the AUMF. In other words, the Government contends § 1021 does nothing new. (See, e.g., Gov’t Trial Mem. at 6-7); Tr. II at 82-84. Repeatedly throughout this litigation, the Government has argued that the AUMF is coextensive with § 1021(b)(2). The Court preliminarily rejected that position in its May 16 Opinion, and does so again now.
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:
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 this broader interpretation. At least two courts--including the Supreme Court--have rejected the broader iteration of detention authority (similar to that now set forth in § 1021(b)(2)) under the original language of the AUMF. [20] See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 523, 526 (2004) [21] (“[O]ur opinion finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant”; “Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.” (emphasis added)); Hamlily v. Obama, 616 F. Supp. 2d 63, 69 (D.D.C. 2009) (“[T]he Court rejects the concept of ‘substantial support’ as an independent basis for detention. Likewise, the Court finds that ‘directly support[ing] hostilities’ is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of ‘support’ as a valid ground for detention. . . . Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not supported by domestic law or the law of war.”); cf. Gherebi v. Obama, 609 F. Supp. 2d 43, 46, 53, 61-67 (D.D.C. 2009), abrogated by Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011) (limiting the scope of detention authority while finding detention appropriate in the case at bar); id. at 46 (“The scope of the detention authority claimed by the President in armed conflict authorized by the AUMF began to take shape within months of the passing of the joint resolution [i.e., the AUMF]”); id. at 53 (referring to the March 2009 Memorandum as “modifying [the Government’s] standard for detaining individuals like petitioner.” (emphasis added)); id. at 68-69 (“sympathizers, propagandists, and financiers who have no involvement with this ‘command structure,’ while perhaps 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:
542 U.S. at 530 (citing Milligan, 71 U.S. at 125). The Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.’” Id. at 531 (citing O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)). The Supreme Court made it clear that its view of the AUMF related to detention on the field of battle. Id. At the August hearing, however, the Government took the position that detention under the AUMF and § 1021(b)(2) requires neither presence on a battlefield nor the carrying of arms. See Tr. II at 93-95. 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:
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] 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 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:
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.” Id. 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 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:
(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 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:
NDAA § 1021(b)(2). This provision contains concepts well beyond a direct involvement in the attacks of September 11, 2001--or even harboring those responsible for those attacks, as contemplated in the AUMF. It adds significant scope in its use of the phrases “substantially supported,” “associated forces that are engaged in hostilities against the United States or its coalition partners,” and “directly supported”--none of which are defined in their own right, as discussed throughout this Opinion. During the August hearing, this Court asked the Government:
Tr. II at 106; see also id. at 108-09. Section 1021 is, therefore, significantly different in scope and language from the AUMF. The expansion of detention authority to include persons unconnected to the events of September 11, 2001, unconnected to any battlefield or to the carrying of arms, is, for the first time, codified in § 1021. The same is true for the codification of the disposition of the law of war in § 1021. The discussion of the two statutes’ differences further undergirds this Court’s factual findings that each plaintiff who testified has a reasonable fear that § 1021(b)(2), which in fact provides broader scope for detention, could be used to detain him or her. The fact that a plaintiff was not previously detained pursuant to the AUMF has no relevance to his or her current state of mind regarding § 1021(b)(2), nor does it provide guidance as to what executive branch practice with respect to § 1021(b)(2) is likely to be. Implicit in the Government’s argument that plaintiffs’ fears regarding § 1021 are unreasonable is that the Government has, in fact, been acting consistently over time by interpreting the AUMF as expansively as the language of § 1021. Since there was no congressional authorization for such broad detention authority prior to the passage of § 1021, since on its face the AUMF does not encompass detention for individuals other than those directly linked to the events of September 11, 2001, and since the reasons for individual detention decisions are not publicly reported, it is entirely reasonable and logical for plaintiffs to have understood that § 1021 presents a new scope for military detention. IV. OTHER RELEVANT STATUTES A. The Government’s Arsenal of Prosecution Tools The AUMF and § 1021(b)(2) are only two of many statutes that provide the executive branch with tools to combat terrorism in its myriad forms. When the AUMF is read according to its plain terms and criminal statutes considered, it reasonably appears that the Government has the tools it needs to detain those engaged in terrorist activities and that have not been found to run afoul of constitutional protections. In particular, there are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations, including 18 U.S.C. §§ 2339A-2339B. Section 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 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 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 the various circumstances under which individuals have been detained. Based upon the Government’s assertion that the AUMF and § 1021(b)(2) are “the same,” the answer to that question has great import for this action. The point for present purposes is whether plaintiffs reasonably believed (and still believe) that § 1021(b)(2) authorizes new and broader detention authority. Although in Hamdi a majority of the Supreme Court found that the AUMF did provide for detention authority, such authority was clearly circumscribed: “[O]ur opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant . . .” Hamdi, 542 U.S. at 523. The Court continued,
Id. at 526 (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 petitioner’s--that is not the point here. The majority was not comparing the AUMF to § 1021(b)(2). Moreover, the fact that a Supreme Court Justice himself agrees that there are limits to the detention authority granted by the AUMF speaks to the reasonableness of plaintiffs’ state of mind. Such reasonableness supports their standing in this proceeding. Accordingly, the Court describes at some length Justice Scalia’s position. In support of his position, he wrote that the AUMF risked unconstitutionality if expanded beyond certain limited bounds. See id. at 573-77 (Scalia, J., dissenting). Justice Scalia set forth a variety of statutes that already provided for the arrest and prosecution of American citizens. As he stated: “Citizens aiding the enemy have been treated as traitors subject to criminal process.” Id. at 559. Justice Scalia then traced the history of such authority back to its origins in 1350 under England’s Statute of Treasons; he cited a number of cases on which American citizens had been charged and tried in Article III courts (with the due process rights guaranteed by the Constitution) for acts of war against the United States even when their noncitizen co-conspirators were not. Id. at 559-60. Relying upon several early 19th century cases in which courts held that the law of war did not allow for military detention of an American citizen in the United States when the courts are open, see id. at 565-68 (citing Milligan, 71 U.S. at 128-29; Smith v. Shaw, 12 Johns. *257 (N.Y. 1815); In re Stacy, 10 Johns. *328 (N.Y. 1813)), Justice Scalia stated: “The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” id. at 568. That reason suggests that the AUMF (and thus, by Congress’ “reaffirmation” of it, in § 1021) is an inappropriate basis for detaining American citizens anywhere or non-citizens for acts occurring on American soil. Justice Scalia’s dissent dealt explicitly with the argument that the Government has here reasserted--i.e., that the Supreme Court’s decision in Quirin approved indefinite imprisonment of a citizen within the territorial jurisdiction of the federal courts. Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). In Quirin, the Court upheld trial by military commission of eight saboteurs, one of whom was an American citizen. As Justice Scalia stated, “The case was not the Court’s finest hour.” Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). It issued a decision one day after oral argument (a week before the executions were carried out), and the Court only explained its rationale in a decision issued several months later. Id. at 569. In Quirin, however, there was no doubt that petitioners were members of enemy forces--they were ‘admitted’ enemy invaders. Id. at 571 (quoting Quirin, 317 U.S. at 47). Justice Scalia, with Justice Stevens joining, believed that Hamdi should be prosecuted in an Article III court. Id. at 573. The Government here relies heavily on Quirin. The same rationale that Justice Scalia used to reject its applicability in Hamdi applies here. [27] Given that Congress has provided the executive branch with ample authority to criminally prosecute those engaged in a wide swath of terroristic or war-making behavior, and the lack of support for an expansive reading of the AUMF, plaintiffs’ belief that § 1021(b)(2) provides for a new, expanded scope for military detention is reasonable. V. STANDING AND MOOTNESS Pursuant to Article III of the Constitution, federal courts may only entertain actual cases or controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). That requirement has two components: the threshold question of whether the plaintiffs who have brought an action have standing, see id. at 561, and whether over the course of the litigation the matter has been rendered moot, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 189 (2000). A. Principles of Standing and Analysis Plaintiffs bear the burden of establishing standing for each claim asserted. See Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Lujan, 504 U.S. at 561. Standing is determined as of the outset of the litigation. Lujan, 504 U.S. at 569 n.4; Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007); Mental Hygiene Legal Serv. v. Cuomo, 785 F. Supp. 2d 205, 215 (S.D.N.Y. 2011). The Supreme Court has set out three “irreducible constitutional minimum” requirements for standing: (1) each plaintiff must have suffered an injury in fact of a legally protected interest; this means that injury must be actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the conduct complained of and plaintiff’s injury, and (3) it must be likely, as opposed to speculative, that the injury can be redressed by a favorable decision. Lujan, 504 U.S. at 561. The Supreme Court has long been clear that a hypothetical threat is not enough to confer standing. See Boyle v. Landry, 401 U.S. 77, 80-81 (1971) (no standing where plaintiffs had “made a search of state statutes and city ordinances with a view to picking out certain ones that they thought might possibly be used by the authorities as devices for bad-faith prosecutions against them”); United Mine Workers of Am. v. Mitchell, 330 U.S. 75, 90 (1947) (declining to find standing where the threat was found to be hypothetical). The Supreme Court has also instructed that there is an exception to the requirement of injury-in-fact where infringement of First Amendment rights are at issue. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). [28] The Court found that if the plaintiffs were correct in their interpretation of the statute, their speech would be chilled, or they would risk criminal prosecution. Id. “[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.” Id. The Court held, “in the First Amendment context, ‘litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Id. at 392-93 (quoting Sec’y of State of Md. v. J.H. Munson Co., 467 U.S. 947, 956-57 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973))); see also Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (finding standing, and citing American Booksellers for the proposition that the alleged danger of the statute is self-censorship). _______________ Notes: 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.) 3. There are additional required elements for standing which the Court addresses below. 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. 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. 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. 10. Days of Destruction, Days of Revolt, co-authored by Hedges and Joe Sacco, was published after the March hearing. The Court takes judicial notice of that publication. 11. There is no evidence in the record that plaintiffs engage in any relevant activities other than those protected by the First Amendment. 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. 14. The Court admitted the document obtained pursuant to that request under the general hearsay exception contained in Fed. R. Evid. 807 as having sufficient indicia of reliability. The Court invited counsel for the Government to notify the Court if, after the hearing, they determined that the document was not authentic. The Court has not received such a communication and therefore accepts the document as authentic. See Tr. I at 109-11. 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. 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.) 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. 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. 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. 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. 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)). 25. The Indictment was unsealed on August 23, 2012. 26. Individuals prosecuted under such criminal statutes are, of course, afforded the full array of constitutional rights attendant to criminal proceedings.
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