The Government cites a number of cases in opposition to plaintiffs’ standing. None are apposite. In Laird v. Tatum, 408 U.S. 1 (1972) (cited in Gov’t Trial Mem. at 27), the Supreme Court declined to find standing for individuals who claimed that their activities were being chilled by the mere existence of a statute which allowed a governmental body to conduct investigative work. Id. at 13-14. The Court distinguished that situation from the type at issue here where the statute sets forth specific penalties to be imposed on individuals-- indefinite military detention. Thus, unlike in Laird, here there is no need for the fruits of the statute to be used for some later purpose; the fruit of the exercise of § 1021 is indefinite detention.

Los Angeles v. Lyons, 461 U.S. 95 (1983) (cited in Gov’t Trial Mem. at 18-19) is also inapposite. In Lyons, the issue was whether an individual who had been placed in a chokehold by the police could seek broad injunctive relief against a policy allowing for such chokeholds. Id. at 101. The Court found standing lacking because no facts suggested that the plaintiff had any expectation of ever being placed in a chokehold by the police again--i.e., the plaintiff did not face a realistic threat of recurrence.

Here, of course, plaintiffs are engaged--and the facts as found by this Court make it clear they would continue to engage (without the fear of detention)--in the testified-to First Amendment activities. This Court has found as a fact that plaintiffs’ writings, speeches, and associational activities are by no means at an end. This Court has also found that those activities have already been chilled. On these facts, the Supreme Court’s holding in Lyons is simply inapplicable.

The Government also cites Daimler-Chrysler for the proposition that facts supporting standing must appear affirmatively in the record. (See Gov’t Trial Mem. at 18, 26.) In Daimler-Chrysler, disgruntled residents of Toledo, Ohio brought a lawsuit alleging injury based on tax breaks given to Daimler-Chrysler. The Supreme Court found standing lacking for those state-taxpayer plaintiffs on the same grounds that it repeatedly denies standing to federal taxpayers challenging a particular expenditure of federal funds--i.e., “interest in the moneys of the Treasury . . . is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation . . . so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Daimler-Chrysler, 547 U.S. at 343 (quoting Mass. v. Mellon, 262 U.S. 447, 486 (1923)).

Here, the Court held an evidentiary hearing and has made findings of fact: the plaintiffs specified the actual work they have done and intend to do; they testified credibly as to their fear and lack of understanding of § 1021(b)(2); and the Government at that hearing would not state that they would not be detained for these activities. In other words, there are no factual similarities between Daimler-Chrysler and the case before this Court.

1. Preenforcement Challenges

The Supreme Court has recognized that preenforcement challenges can be appropriate in the context of statutes that impose criminal penalties, Holder, 130 S. Ct. at 2717, as well as in the context of the First Amendment, Am. Booksellers, 484 U.S. at 393. Section 1021(b)(2) implicates both.

In the context of a criminal statute, plaintiffs must, however, face a credible threat of prosecution. See Holder, 130 S. Ct. at 2717; Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)(“When contesting the constitutionality of a criminal statute, ‘it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.’” (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974)); see also Doe v. Bolton, 410 U.S. 179, 188 (1973). If prosecution is not “remotely possible,” then a plaintiff lacks standing. Babbitt, 442 U.S. at 299 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).

In Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), cert. granted, 132 S. Ct. 2431 (2012), the Second Circuit allowed a preenforcement challenge where the plaintiffs alleged a prospective injury to First Amendment rights, and showed an actual and well-founded fear of injury--not that the injury had already occurred. Id. at 131, 135. In support of such a finding the Second Circuit stated: “[T]he fact that the Government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized [injury].” Id. at 138. [29]

Similarly, in Vermont Right to Life, the Second Circuit found that where a plaintiff has alleged an intention to engage in a course of conduct “arguably affected” with a constitutional interest, but proscribed by a statute, and a credible threat of prosecution exists, the plaintiff should not be made to wait until he or she has been prosecuted to seek redress. 221 F.3d at 382. There, the organization bringing the challenge would have been subject to a civil rather than criminal charge. The court found that distinction to be of “no moment” given the constitutional issues involved. Id. at 382 (“The fear of civil penalties can be as inhibiting of speech as can trepidation in the face of threatened criminal prosecution.”); see also Va. Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 390 (4th Cir. 2001) (preenforcement challenge allowed when the presence of the regulation resulted in the plaintiffs changing their conduct).

2. Facial Challenges

Whether or not a facial challenge is permissible implicates plaintiffs’ standing. Under Lujan, it is clear that traditional rules of standing require that a plaintiff have injury in fact. A facial challenge seeks to invalidate a statute in all of its applications--going beyond those which a particular plaintiff would him or herself have standing to bring. Stevens, 130 S. Ct. at 1587.

In a case decided one year after Lujan, Alexander v. United States, 509 U.S. 544 (1993), the Supreme Court reiterated the long-standing principle that when a plaintiff is challenging a statute as overbroad and impinging on First Amendment rights, facial challenges are permissible. Id. at 555. That enables a plaintiff to challenge the statute in its entirety. Stevens, 130 S. Ct. at 1587 (in a facial challenge in the context of the First Amendment protections of speech, a law may be invalidated as overbroad if a substantial number of its applications are deemed unconstitutional, judged in relation to the statute’s “plainly legitimate sweep”).

Alexander and Stevens follow the Supreme Court’s earlier holdings of, inter alia, City of Chicago v. Morales, 527 U.S. 41 (1999), and Broadrick v. Oklahoma, 413 U.S. 601 (1973). In Morales, the Court found that because the statute was challenged on First Amendment grounds, it implicated the doctrine of “jus tertii” or third-party standing. In the context of the First Amendment, the Court also held that a plaintiff is not required to show that there are no legitimate applications of the statute. Morales, 527 U.S. at 55. In Broadrick, the Court stated that because the First Amendment needs “breathing space,” the traditional rules of standing are relaxed when the challenge relates to speech. 413 U.S. at 611. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expressions are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 617.

3. Commitments regarding Conduct

A number of courts have found that a commitment that a statute will not be enforced against a particular plaintiff does not eliminate standing. See, e.g., Stevens, 130 S. Ct. at 1591 (finding a statute facially invalid on First Amendment grounds, and refusing to “uphold an unconstitutional statute merely because the Government promised to use it responsibly”); Am. Booksellers, 484 U.S. at 393 (“[T]he State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.”); Vt. Right to Life, 221 F.3d at 383 (“The State also argues that VRLC’s fear of suit could not possibly be well-founded because the State has no intention of suing [plaintiff] VRLC for its activities. While that may be so, there is nothing that prevents the State from changing its 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.

a. Injury

With regard to their First Amendment challenge, at the March hearing each plaintiff testified credibly that, specifically due to concerns about § 1021(b)(2), he or she has already experienced a chilling of his or her written or oral speech or associational activities. The Court’s findings as set forth above, and more briefly summarized here, demonstrate actual chilling has occurred. Hedges testified that he changed speeches he planned to make, avoided certain associations, and was concerned about articles or writing he expected to undertake. O’Brien testified that she was withholding articles from publication; Wargalla testified that her organization had to contemplate changing participants in an online conference; Jonsdottir stated she has declined speaking engagements. See Part II, supra. In addition, each plaintiff testified credibly to ongoing concerns regarding expected future First Amendment activities. See Part II, supra. Such chilling of speech constitutes actual injury. Indeed, it is precisely the type of chilling that the Supreme Court has found as a basis for standing--including to bring a facial challenge. See Broadrick, 413 U.S. at 630.

With respect to their Fifth Amendment challenge, each plaintiff testified credibly that he or she had read the statute and did not understand its scope and, in particular, whether his/her activities would fall within that scope. See Part II, supra. Without such definitional scope, and in the face of the Government’s inability to provide definitions for the key terms at issue or define the scope of § 1021(b)(2) and unwillingness to state in March that plaintiffs’ activities could not subject them to detention, there are adequate grounds to find plaintiffs’ vagueness concerns valid. [31]

Finally, preenforcement challenges are permissible in just such contexts. Here, based on credible testimony, this Court has found that each plaintiff has engaged in activities in which he or she is associating with, writing about, or speaking about or to al-Qaeda, the Taliban, or other organizations which have committed (or are associated with organizations that have committed) terrorist acts against the United States. The words of § 1021(b)(2) can be read to encompass such activities. These plaintiffs need not wait until they have been detained and imprisoned to bring a challenge--the penalty is simply too severe to have to wait. See, e.g., Holder, 130 S. Ct. at 2717; Babbitt, 422 U.S. at 298; Vt. Right to Life, 221 F.3d at 382.

The Government’s statement--this Court cannot call it a “commitment” in light of its qualified language--regarding the unlikelihood of enforcement for certain specified acts does not eliminate plaintiffs’ standing as to either claim.

First, the fact that the Government has taken two different positions (one in which the Government refused to make any commitment) undercuts the viability of the later (qualified) statement. Second, standing attaches at the outset of a case., Lujan, 504 U.S. at 569 n.4, meaning that the later statement comes too late. Third, the Supreme Court has made it clear in both the First and Fifth Amendment contexts, a plaintiff need not rely upon “noblesse oblige”--hoping that enforcement will not occur, or that one law enforcement official’s interpretation will be the same as another’s. See Stevens, 130 S. Ct. at 1591; FCC v. Fox Television Stations, Inc., 132 S. Ct. at 2317.

Plaintiffs meet the requirements for demonstrating the necessary injury or impact on their conduct for standing.

b. Causation

Each plaintiff testified credibly that § 1021(b)(2) has caused a chilling of First Amendment activities and an actual fear of detention due to the vagueness of § 1021(b)(2)’s scope. See Part II, supra. There can therefore be no doubt as to whether Lujan’s second required element has been met. It has been.

c. Redressability

The Government argues that plaintiffs lack standing because any injury supposedly deriving from § 1021(b)(2) cannot be redressed by the constitutional challenge since the Government has precisely the same detention authority under the AUMF. (Gov’t Trial Mem. at 30-31.) That is not so.

The argument is premised on the erroneous assertion (as the Court has discussed more fully above) that § 1021 and the AUMF are the same. They are not. In particular, § 1021(b)(2)--the very provision which plaintiffs seek to enjoin--provides for a much broader scope of military detention than provided for in the AUMF.

It is unavailing that the Government asserts that it has, without congressional authorization, unilaterally expanded the AUMF’s detention scope by virtue of its own interpretation. The Supreme Court previously has rejected that very argument. See Hamdi, 542 U.S. at 516-18. Simply by asserting that § 1021 is a reaffirmation of the AUMF does not make it so when its scope is plainly broader. Accordingly, enjoining § 1021(b)(2), a new statute with uniquely broad scope, necessarily would redress plaintiffs’ injuries.

Plaintiffs meet all the required elements to establish standing.

B. Principles of Mootness and Analysis

To have an actual case or controversy pursuant to Article II, a case must also be “real and live, not feigned, academic or conjectural.” Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d Cir. 2001). This Court addresses whether the Government’s newly articulated position (i.e., that § 1021(b)(2) does not apply if the conduct of plaintiffs is independent as described, and described accurately, and no more than what has been described) renders this action moot. [32]

When the issues between parties are no longer live, or have become merely conjectural, the case may be moot. See Powell v. McCormack, 395 U.S. 486, 489 (1969). There are certainly instances where an originally justiciable action has been rendered moot during the course of litigation. However, a case is not moot when there is a reasonable expectation that the alleged violation may recur. See Murphy v. Hunt, 455 U.S. 478, 482 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).

This case is not moot. First, at the March hearing, the Government declined to state that any of plaintiffs’ conduct would not be encompassed by § 1021(b)(2). See Hedges, 2012 WL 1721124, at *14-15 (citing Tr. I). In its motion for reconsideration, the Government’s position changed first to a broad statement--“the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021” (Recons. Mem. at 2)--and then to a more complicated, qualified statement (set forth above but worth reciting again here):

As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

(Recons. Mem. at 4.) This qualified statement, reiterated in the Government’s pre-trial memorandum (Gov’t Trial Mem. at 20), is a multi-part, carefully constructed exception to the Government’s view of detainable conduct. The parts consist of the following elements, each of which is not itself defined and each of which narrows the assurance: (1) independent (2) journalistic activities; or (3) independent, (4) public advocacy, (5) described in plaintiffs’ affidavits and testimony, (6) without more, (7) are not subject to the law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such conduct. That language is followed by the additional statement that plaintiffs’ descriptions (a) in this litigation of their activities, (b) if accurate, (c) do not implicate military detention.

The totality of those qualifications hardly provides plaintiffs reasonable assurance that there is no likelihood of detention under § 1021. Indeed, the opposite is true. Confronted initially by the Government’s position that it would not state whether plaintiffs’ known activities could subject them to detention under § 1021, plaintiffs had a legitimate concern. This Court so found as a matter of fact based upon plaintiffs’ trial testimony. It was, as this Court previously stated in its May 16 Opinion, a surprising position for the Government to have taken--but take that position it did, and it must now own it.

The Government’s qualified position is hardly reassuring. It follows a much clearer position of, essentially, “we can’t tell you if a plaintiff will be detained for these specific, actual activities.” This Court and (presumably) plaintiffs reasonably assume that the Government’s first and second positions were crafted carefully, and that the presence of qualifiers in the second has real (if uncertain) meaning.

The clearest statement the Government could have provided it did not. At the very outset of this case, the Government could have moved for dismissal (e.g., with an early motion for summary judgment) based upon an affidavit of someone with authority who could have stated that protected First Amendment activities occurring by Americans on American soil are not subject to § 1021(b)(2). This would have made plaintiffs’ burden much more difficult. [33] No such statement was made.

Shifting positions are intolerable when indefinite military detention is the price that a person could have to pay for his/her, or law enforcement’s, erroneous judgment as to what may be covered. [34]

VI. THE JUDICIARY’S ROLE IN STATUTORY REVIEW

This case presents a justiciable case or controversy under Article III of the Constitution. The Court now turns to its determination with respect to the merits and the question of appropriate relief. Set out below is an overview of how the Court proceeds through various interlocking arguments.

Plaintiffs assert that § 1021(b)(2) violates their constitutional rights pursuant to the First, Fifth and Fourteenth Amendments. The Government admonishes the Court to avoid reaching the constitutional questions even if plaintiffs have standing. The Government argues that the judiciary should play no role here--or, at most, an ex post facto one in which it reviews habeas petitions challenging detention determinations. The Court deals with this “quasi-abstention” issue first, then moves on to the merits of the constitutional questions raised and whether permanent injunctive relief is appropriate.

A. The Court as Guardian of the Constitution

It is certainly true that courts should, if possible, avoid reaching constitutional questions. See Califano v. Yamasaki, 442 U.S. 682, 692 (1979). This Court takes that principle seriously and has proceeded here only after careful consideration as to whether constitutional avoidance is possible. It is not.

The Court is also mindful of its oath. When squarely presented with an unavoidable constitutional question, courts are obliged to answer it. That principle traces its history back to the earliest years of this Country’s independent and constitutional existence. Federalist Paper No. 78 states:

No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.
. . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

The Federalist No. 78 (A. Hamilton).

Chief Justice Marshall affirmed that principle in case law. See Marbury v. Madison, 1 Cranch 137, 177, 2 L. Ed. 60 (1803) (“[T]he constitution controls any legislative act repugnant to it. . . . It is emphatically the province and duty of the judicial department to say what the law is.”). He stated:

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.

. . .

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the legislature a practical and real omnipotence . . .

The judicial power of the United States is extended to all cases arising under the constitution.

Id. at 178.

There is no doubt, however, that, as John Marshall argued in 1800, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Annals, 6th Cong., col. 613 (1800). Even the President’s powers are, however, exercised in subordination to the applicable provisions of the Constitution. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

When it comes to separation of powers, and the courts’ ability to intervene in constitutional questions, the Government has previously argued that this doctrine should preclude the judiciary from ruling on the constitutionality of certain statutes. The Supreme Court has rejected that argument. For instance, in Elrod v. Burns, 427 U.S. 347, 353 (1976), the Government argued that the Court should not address the statute at issue based on principles of the separation of powers. The Supreme Court stated:

More fundamentally, however, the answer to petitioners’ objection is that there can be no impairment of executive power, whether on the state or federal level, where actions pursuant to that power are impermissible under the Constitution. Where there is no power, there can be no impairment of power.

427 U.S. at 353.

Similarly, in Hamdi, the Supreme Court stated:

[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of the separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.

542 U.S. at 535-36.

A court, as here, presented with an unavoidable constitutional question, is obligated to rule upon it.

B. Judicial Review of Military Statutes

The Government also argues that this Court should decline to address the constitutional questions raised by § 1021(b)(2) particularly because of the President’s role and authority in “foreign affairs.” [35] (See Gov’t Trial Mem. at 1 (arguing that this context “should cause extreme hesitation” and “require the most exacting scrutiny to ensure that if the judicial power is to be exercised in such a far-reaching manner it is clearly within the Court’s jurisdiction to do so”), 11 (“Due respect for a coequal branch of government requires that Congress be taken at its word.”), 32 (“courts must ‘recognize that the Constitution itself requires such deference to congressional choice’ in those areas due to separation of powers and the ‘lack of competence’ on the part of the courts”), 37 (“As a threshold matter, a military-force authorization--or a statute like section 1021, restating and rearticulating part of such a force authorization--is not a proper subject of vagueness analysis”), 45 (“in this case, which involves the Constitution’s separation of powers in the context of national defense and security, it is particularly inappropriate to issue an injunction.”; “[B]ased on separation of powers principles, the courts have recognized that an injunction running against the President would be extraordinary”), 46 (“The reasons for denying injunctive relief against the President are all the more compelling where, as here, a plaintiff seeks relief against the President as Commander-in-Chief under the Constitution”; “But more fundamentally, it is not for plaintiffs--or this Court--to determine which authorities are necessary or appropriate for the conduct of an ongoing war.”).)

At the August hearing, the Government stated quite clearly that the only role that the Court should have with respect to reviewing the scope of § 1021 is in the context of 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 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 (1992).

Section 1021(b)(2) does not present a similar factual situation. Instead, § 1021(b)(2) provides for indefinite military detention of anyone--including U.S. citizens--without trial. [37] It is simply not the case that by prefacing this statute with the provision “Congress affirms . . . the authority of the President . . . to detain covered persons . . .,” it is outside of the purview of judicial review. If that were the case, it would reveal an extraordinary loophole through which the legislative and executive branches could create immunity from judicial oversight simply by having Congress provide broad, undefined authorization. Under that theory, courts would be unable to review acts taken as a result of such authorization or the authorization itself. And, under that theory, referring to a unilaterally broadened authority as a “reaffirmation” would effectively ratify actions previously taken; this exercise of legislative or executive authority finds no basis in the Constitution.

Contrary to the assertions of the Government, in ruling on the constitutional questions before it, this Court is doing nothing either extraordinary or unprecedented. There is a long history of courts ensuring that constitutional rights are protected, even in a military context.

In Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861), the Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government. Id. at 149 (“And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in [Art. II of the Constitution]; but there is not a word in it that can furnish the slightest ground to justify the exercise of that power.”). The Court continued,

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 (1862), the Government had similarly argued that the judiciary should not--or perhaps could not--rule on certain issues. There, the Supreme Court stated “[counsel for the Government argues] in well-considered rhetoric, his amazement that a judicial tribunal should be called upon to determine whether the political power was authorized to do what it has done.” Id. at 645. The Court continued,

The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger . . . It comes to a plea of necessity. The Constitution knows no such word.

Id. at 648.

A few years later, in Milligan, the Supreme Court held: “Neither the President, nor Congress, nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution, except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.” 71 U.S. at 4. The Court stated, “No book can be found in any library to justify the assertion that military tribunals may try a citizen at a place where the courts are open.” Id. at 73.

In Curtiss-Wright, 299 U.S. 304, while acknowledging the President’s pre-eminent role in foreign affairs, the Supreme Court also acknowledged that that power does not extend to all domestic affairs. He cannot, for instance, determine whom to arrest domestically; the scope of the arrest authority is determined by criminal statutes. Id. at 330-32. Yet, it is beyond cavil to suggest that criminal statutes are not subject to judicial review.

In Justice Murphy’s Korematsu dissent, he reiterated the principle that “[w]hat are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” 323 U.S. at 234 (citing Sterling v. Constantin, 287 U.S. 378, 401 (1932)). Justice Jackson also dissented in Korematsu, stating, “I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.” Id. at 247.

As stated above, in its pre-trial memorandum the Government relies heavily on the case which Justice Scalia has rightly criticized as “not the Court’s finest hour”--Quirin. The Government argues that Quirin establishes the constitutionality of military detention and punishment of U.S. citizens on U.S. soil. (See, e.g., Gov’t Trial Mem. at 33-34.)

It is certainly true that a United States citizen was among the Germans who landed in Third Reich uniforms on the beaches of Long Island, New York, with the intention of proceeding to New York City and detonating explosive devices. Quirin, 317 U.S. at 7-8. However, those facts are a far cry from the broad sweep of First Amendment rights into § 1021(b)(2). Although this Court rejects the principles of Quirin on the same basis as that so well-articulated by Justice Scalia, it is bound to follow this case as Supreme Court precedent if it is applicable to the question before this Court. It is not.

As stated, the facts are inapposite. There, the Germans, who landed in (at least partial) uniform (which they then buried on the beach) brought the World War II battlefield to New York soil; they were armed with destructive devices and following orders of a country with which the United States was at war. Quirin is not a case in which an American, not in uniform, carrying arms, or reporting to a foreign government, was taken from his home in the United States, and detained by the military, for writing or having written works speaking favorably about enemy forces, or for raising questions regarding the legitimacy of American military actions. It is those activities which § 1021(b)(2) captures (so far as one can decipher from the Government’s position). Quirin is inapposite here.

The Government is wrong to ground a wide-sweeping ability of the executive branch to subject anyone at all to military detention in Quirin. That argument eliminates Constitutional guarantees (under many provisions of the Constitution) in one fell swoop; it ignores as irrelevant all of the language, past and present, regarding limits on executive authority to arrest and--as applied to First Amendment activities--would privilege such detention ability above the prohibition that “Congress shall pass no law . . . abridging the freedom of speech.” The Government’s reading of Quirin is therefore both wrong and dangerous and this Court rejects it.

VII. THE FIRST AMENDMENT

A. Section 1021(b)(2) Is An Impermissible Content-Based Restriction

First Amendment rights are guaranteed by the Constitution and cannot be legislated away. U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”); see also Stevens, 130 S. Ct. at 1584; Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) (“There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (laws designed or intended to suppress or restrict expression of specific speakers contradict basic First Amendment principles).

There is no doubt that the First Amendment protects the spoken and written word as well as the right of free association. DeJonge v. State of Oregon, 299 U.S. 353, 365 (1937) (peaceable assembly for lawful discussion cannot be made a crime); see also New York Times v. United States, 403 U.S. 713, 724 (1971) (“Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust and wide-open’ debate.” (citation omitted)); Watts v. United States, 394 U.S. 705, 708 (1969); United States v. Robel, 389 U.S. 258, 263 (1967).

“‘As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012) (citing Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)). In the recent Alvarez decision, the Supreme Court held that content-based restrictions of speech are presumed invalid and that the government bears the burden of showing their constitutionality. Id. A question for this Court is whether § 1021(b)(2), with its undefined breadth capturing both speech and non-speech activities, actually falls within the category of a content-based restriction. “[T]he principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys.” Turner Board. Sys., Inc. v. Fed. Commc’ns Comm., 512 U.S. 622, 642 (1994) (quotation marks and alterations omitted).

As this Court stated in its May 16 Opinion, § 1021(b)(2) does have a legitimate, non-First Amendment aspect: catching and brining to justice real terrorists. However, its breadth also captures a substantial amount of protected speech and associational activities. The Government’s qualified position regarding plaintiffs’ activities demonstrates that the scope of the statute is intended to be broad enough to capture some First Amendment activities. Otherwise, why not have a “saving clause” as in 18 U.S.C. §§ 2339A/B? Why not have said plainly, “No First Amendment activities are captured within § 1021?” Why, instead, have made such a qualified statement regarding what are clearly First Amendment activities? That is, that they will not be subject to § 1021(b)(2) so long as those activities are as they have described them, if accurate, without more, and independent? And, why make it clear that such statement does not apply to any (even similar) future activities?

Section 1021(b)(2) is not a traditionally content-based restriction; encompassing content is not its only purpose or achievement. However, covering content is at least one purpose--and in so covering it “compel[s] speakers to utter or distribute speech bearing a particular message.” See Turner Broad. Sys., Inc., 512 U.S. at 642. In other words, § 1021(b)(2) has a content-directed aspect. Accordingly, the Court finds that § 1021(b)(2) is subject to strict scrutiny. Id. [38]

To pass this “most exacting scrutiny,” Turner Broad. Sys., Inc., 512 U.S. at 642, § 1021(b)(2) must be “justified by a compelling government interest” and “narrowly drawn to serve that interest.” Brown v. Ent’mt Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011). Although there may be a very compelling government interest--here, the exercise of detention authority in the war on terror for the protection of the United States--as set forth below, the Court finds that § 1021(b)(2) is not narrowly tailored in any way. The imposition of indefinite military detention, without the procedural safeguards of precise definition of what can subject an individual to such detention (see Part IX infra (discussing plaintiffs’ Fifth Amendment challenge to § 1021(b)(2)’s vagueness) cannot be said to be narrowly tailored. Accordingly, the statute does not pass muster under the First Amendment itself and is unconstitutional for that reason alone.

B. Plaintiffs Have Made A Valid Facial Challenge

Plaintiffs have made a facial challenge to the constitutionality of § 1021(b)(2) on the basis that it violates core rights guaranteed by the First Amendment. This Court agrees that the statute impermissibly encroaches on the First Amendment and that a facial challenge is appropriate in these particular factual circumstances.

As found as fact by this Court, plaintiffs are writers, journalists, and activists whose work falls within the protections of the First Amendment. There has been no claim by the Government in this case that any of plaintiffs’ work falls into one of the very narrow exceptions of protected speech--i.e., speech which incites violence, or is obscene, defamatory, or integrally related to criminal behavior. See, e.g., Alvarez, 132 S. Ct. at 2544; Stevens, 130 S. Ct. at 1584; Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 127 (1991); Roth v. United States, 354 U.S. 476 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-55 (1952); Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). Thus, while it is certainly the case that not all speech or associational activities are necessarily protected by the First Amendment, the Court here finds as a matter of fact that plaintiffs’ speech and associational activities are within protected categories (e.g., none is obscene, defamatory, seeks to incite violence, or is otherwise integral to a criminal act).

The Government has been on notice of the specifics of plaintiffs’ claims since receipt of the verified complaint. Based on the procedures required by this Court, prior to the March hearing, plaintiffs submitted sworn declarations setting forth the basis for their concerns; the Government then had an opportunity to depose any plaintiff who intended to testify at trial. The Government also had an opportunity to cross-examine plaintiffs at the March hearing. Bluntly stated, nothing was left to the imagination: the Government was on notice of each of the speech and associational activities in which each plaintiff engaged.

The Government knew that Hedges was a writer and journalist whose work took him to the Middle East and that in connection with his work he associates with members of the Taliban, al-Qaeda and other groups on the State Department’s Terrorist List; it knew about the type of articles written by O’Brien that, inter alia, have commented on aspects of military detention in Guantanamo; it knew about the associational activities of Wargalla, and that her organization has been on a list of terrorist or extremist groups; and it knew about Jonsdottir’s participation with WikiLeaks, her anti-(Iraq) war activism, and production of an anti-(Iraq) war film.

Based on this extensive and detailed prior notice, the Court takes seriously the Government’s position at the March hearing that it could not provide any assurance that such activities would not subject any plaintiff to detention under § 1021(b)(2). See Hedges, 2012 WL 1721124, at *14-15 (citing Tr. I). That the Government subsequently changed its position to a qualified one does not erase the essential point made: First Amendment activities are not outside of § 1021. [39]

The Government’s initial position vis-à-vis plaintiffs--and indeed its qualified, second position--is consistent with the fact that the Government quite carefully avoids arguing that § 1021(b)(2) does not encompass activities protected by the First Amendment. Indeed, read in this light, the qualifications of plaintiffs’ activities “as described,” “if accurate,” assuming they are “independent,” and “without more,” indicate that protected speech and associational activities are within § 1021(b)(2)’s scope, but provide these plaintiffs with a “limited pass.” Not once in any of its submissions in this action or at either the March or August hearings has the Government said, “First Amendment activities are not covered and could never be encompassed by § 1021(b)(2).”

Instead, the Government’s arguments against plaintiffs’ overbreadth claim are crafted in terms of whether a facial challenge is appropriate because of the extent to which the statute has a legitimate sweep. (Gov’t Trial Mem. at 33-35.) The Government argues that in the Court’s May 16 Opinion, this Court did not properly weigh the legitimate sweep of the statute against any infringement on First Amendment rights. (Id. at 35.) The Government attempts to elide the implicit and extraordinary concession that First Amendment conduct is captured by § 1021 by referring back to its qualified position (that these plaintiffs, for the independent activities they have described, if accurately described, without more, would not be subject to detention under § 1021). (See Gov’t Trial Mem. at 20.) At the August hearing, however, the Government made clear that that assurance was not prospective--even as to protected First Amendment activities--and went only so far as it went--which is quite narrow indeed. As set forth below, the Government’s arguments fail.

In Stevens, the Government similarly argued, “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of that speech against its societal costs.” 130 S. Ct. at 1585. Justice Roberts wrote,

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

Id.; accord Alvarez, 132 S. Ct. at 2543-44.

In the recent Alvarez decision, the Supreme Court similarly rejected such an argument:

Permitting the government to decree this speech to be a criminal offense . . . would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.

Id. at 2547 (citation omitted). “The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought and discourse are to remain a foundation of our freedom.” Id. at 2548. The Court then expounded,

The First Amendment itself ensures the right to respond to speech we do not like. . . . Society has the right and civic duty to engage in open, dynamic and rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.

Id. at 2550. Justice Kennedy noted that prior decisions cannot be taken as establishing a “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Id. at 2547 (citing Stevens, 130 S. Ct. at 1586).

In speech cases, this Court must ask whether a “substantial number of [a statute’s] applications” are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. Stevens, 130 S. Ct. at 1587 (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). The Government argues that this Court’s May 16 Opinion found that § 1021 has a plainly legitimate sweep. (Gov’t Trial Mem. at 33.) That is correct with respect to the portion of § 1021 directed at prosecuting and detaining those involved in the attacks on September 11, 2001, and where § 1021(b)(2) can be read to cover members of al-Qaeda fighting U.S. forces on a battlefield outside of U.S. territory. However, the Government errs in its argument that this legitimate sweep ends plaintiffs’ facial challenge. (Gov’t Trial Mem. at 34.)

The determinative question for this Court is the one posed in Stevens, as stated above--whether § 1021(b)(2)’s “plainly legitimate sweep” is outweighed by its “substantial number of” unconstitutional applications. Stevens, 130 S. Ct. at 1587; see also U.S. v. Williams, 553 U.S. 285, 293 (2008). How is a court to make such a measurement?

In Stevens, the Supreme Court acknowledged that a court cannot undertake the analysis without “first knowing” what the statute covers. Id. at 1587 (citing Williams, 553 U.S. at 293). Despite the Government’s assurances that the statute at issue was not aimed at the conduct the Supreme Court focused on (hunting), the Court nonetheless found that the statute had an “alarming breadth.” Id. at 1588. So too here. As the Second Circuit recently stated in Commack Self-Service Kosher Meats v. Hooker, 680 F.3d 194 (2d Cir. 2012), “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute. Id. at 213. Section 1021(b)(2) is devoid of the required specificity.

In addition, in Robel, the Supreme Court affirmed a finding that a section of the Subversive Activities Control Act impermissibly tread on First Amendment rights. The Court reiterated the principle that “precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” 389 U.S. at 265 (citation omitted). In Robel, the Court noted that it was not unmindful of congressional concern over the danger of sabotage in national defense industries, but noted that Congress needed to have a more narrowly drawn statute. “The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.” Id. at 267-68.

Further, courts should look at such restrictive regulations with exacting scrutiny and ask whether it is “actually necessary” to achieve its interests. Alvarez, 132 S. Ct. at 2549. Here, § 1021(b)(2) does not meet that standard. As set forth above, there is no reason § 1021 could not have a definitional framework that excludes protected conduct. Moreover, there are a variety of criminal statutes that capture speech or associational activities which are involved in criminal activities. There is no reason for § 1021(b)(2) to encroach on protected First Amendment rights.

The Government points to Williams in support of its contention that § 1021(b)(2) is facially valid. (See Gov’t Trial Mem. at 34-35.) In Williams, the Supreme Court upheld a facial challenge to a criminal child pornography statute. The statute was challenged as overbroad under the First Amendment and impermissibly vague under the Fifth. In finding the statute constitutional, the Supreme Court relied on the fact that simply the ability to conceive of some impermissible applications was insufficient to establish that the statute was overbroad. 553 U.S. at 303. Here, unlike in Williams, there is a trial record setting forth specific First Amendment conduct that the Government initially would not say was outside of § 1021’s scope--but later said, perhaps the conduct would be outside of its scope, but only if such activities met certain qualifications. Plaintiffs’ activities are known. This is not a situation as that in Williams requiring imagination or speculation.

Section 1021 must be measured against the backdrop of the other, numerous statutes which are targeted more directly at criminal conduct associated with terrorist activity, and of the fact that the AUMF continues in force and effect. None of those other statutes have been found to have encompassed protected speech.

Notably, 18 U.S.C. § 2339B, the criminal statute discussed above (and in Holder) aimed at proscribing “material support” of terrorists, has a First Amendment saving clause. Section 1021 does not. There is a “catch-all” clause at the end of the statute: “Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].” NDAA § 1021(d). What does § 1021(d) really 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]

It is all the more difficult for plaintiffs, citizens generally, or this Court to feel confident in a determination as to § 1021(b)(2)’s scope when so many of its terms remain undefined. This Court discusses the terms “substantially supported,” “associated forces,” and “directly supported” below. Their vagueness presents constitutional concerns pursuant to the Fifth Amendment, but also supports plaintiffs’ arguments here with respect to the First Amendment: if a plaintiff does not know what “substantially support” means, could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have “substantially supported” the Taliban? How about a YouTube video? Where is the line between what the Government would consider “journalistic reporting” and “propaganda”? What does “independent” mean? Would being paid by Al-Jazeera to do a series of articles run afoul of § 1021(b)(2)? Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is “modest” or “substantial”? What if the article is written in New York City and sent over the Internet? Can the Government then choose whether to pursue the writer under § 1021(b)(2) and impose indefinite military detention, or can it choose to prosecute under 18 U.S.C. §§ 2339A-2339B with full constitutional guarantees? [41] These questions demonstrate only a few of the real problems with a statute that captures some amount of undefined activities protected by the First Amendment. See Bd. of Airport Comm’rs of the City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569 (1987)(affirming facial invalidation of a statute that reached a substantial amount of protected speech); Schaumberg v. Citizens for a Better Env’t, 444 U.S. 620 (1980)(affirming a facial invalidation of a statute on First Amendment grounds).

The type and amount of speech and associational activities in which plaintiffs engage are varied. The Government has not stated that such conduct--which, by analogy, covers any writing, journalistic and associational activities that involve al-Qaeda, the Taliban or whomever is deemed “associated forces”--does not fall within § 1021(b)(2). Accordingly, this Court finds that a substantial amount of conduct relative to the statute’s legitimate sweep is captured. This is not a mathematically precise exercise, nor could it be given the lack of § 1021(b)(2)’s definitional structure.

IX. THE FIFTH AMENDMENT AND DUE PROCESS

Earlier this year, the Supreme Court reiterated that a “fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” See Fed. Commc’ns Comm. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). People of common intelligence must not have to guess at the meaning of a statute that may subject them to penalties. Id. (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “This requirement in clarity in regulation is essential to the protections provided by the due process clause of the Fifth Amendment.” Id. (citing Williams, 553 U.S. at 304).

If the vagueness of a statute leaves a person of ordinary intelligence in doubt, as to what conduct falls within or is excluded from its scope, it is impermissibly vague. Id. Such statutes also may allow or require predictable subjective judgments by law enforcement authorities as to when to enforce and when not. Id. The question is not whether a statute makes it difficult to prove an incriminating fact, but whether there is doubt as to what fact must be proved. Id.

In Fox, the Supreme Court stated, “Just as in the First Amendment context, the due process protections against vague statutes prevent parties from being at the mercy of noblesse oblige.” 132 S. Ct. at 2318 (citing Stevens, 130 S. Ct. at 1591). The degree of vagueness that the Constitution tolerates depends in part on the nature of the enactment. See Rothenberg v. Daus, No. 10-4411-cv, 2012 WL 1970438, at *2 (2d Cir. July 27, 2012)(citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982)).

Plaintiffs have asserted that they do not understand the terms “substantially supported,” “directly supported,” or “associated forces.” The Court finds that plaintiffs who testified are individuals of at least of common intelligence. The Court finds credible their testimony that they do not understand what these undefined words mean in the statute.

The reasonableness of this position is self-evident. When the Government was asked by the Court what the words “substantially supported” mean, it was unable to provide a definition; the same was true for “directly supported.” [42 There can be no doubt, then, these terms are vague. The Government did offer that “associated forces” should be defined according to the law of war, though the Court notes that in the March 2009 Memorandum the Government conceded that even in the war on terror, the laws of war are not well-defined. (See March 2009 Mem. at 1 (“This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.”).)

In response to plaintiffs’ Fifth Amendment challenge, the Government argues two seemingly contradictory points: (1) that military detention statutes are necessarily vague and are therefore not susceptible to a vagueness analysis (Gov’t Trial Mem. at 37), but also (2) that “properly construed,” the statute is not impermissibly vague (id. at 40).

In formulating its argument that § 1021 is not susceptible to a vagueness challenge, the Government essentially concedes the statute’s vagueness: “[a]uthorizations of military force (which encompass detention authority, [citation omitted]) are always, and necessarily, stated in general terms.” (Gov’t Trial Mem. at 37-38.) In support of that position the Government cites a variety of statutes that were used to authorize the use of force against Vietnam, Germany (1917), Japan (1941), Spain (1898), Mexico (1812) and Britain (1812). (Id. at 38 n. 24.) These statutes, of course, were authorizations for this country to engage in war or open hostilities with foreign governments (or organized foreign entities seeking recognition as the “government”); not one of those statutes authorized indefinite military detention of U.S. citizens for conduct that could occur in their own home in New York City, Washington, D.C., Toledo, Los Angeles--anywhere in this land.

As discussed above, in comparing § 1021(b)(2) to the AUMF, it is incorrect to suggest that § 1021(b)(2) is a simple reaffirmation of the AUMF. It does more: it has a broader scope and directly refers to the law of war as an interpretive background. Section 1021(b)(2), which describes a category of “covered person” who can be detained, does not exclude American citizens, and is not limited to individuals on the field of battle or who bear arms. It is unlike the military force authorization statutes the Government cites in its pre-trial memorandum.

To the extent that § 1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis. Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States, the President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute “substantially” or “directly supporting” terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far. Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ).

The Government argues that the types of concerns that give rise to vagueness challenges cannot be squared with military-force authorization: § 1021 is designed to prevent those engaged in hostilities against the United States from returning to the field of battle, it does not proscribe particular criminal conduct. (Gov’t Trial Mem. at 39.) This argument dangerously elevates form over substance.

There can be no doubt that § 1021 provides that if an individual “substantially supports” the Taliban, he or she can be detained indefinitely. That certainly sets forth a penalty for conduct that is, accordingly, proscribed by virtue of the penalty of indefinite military detention without trial. In any event, if all that § 1021(b)(2) is doing is stating that although it does not proscribe conduct, it can be the basis for a citizen’s indefinite military detention, then it makes no sense to argue that a citizen cannot challenge that statute on vagueness grounds. A citizen has just as much interest--indeed, perhaps more--in understanding what conduct could subject him or her to indefinite military detention without a trial as he or she does in understanding the parameters of a traditional criminal statute that carries a statutory maximum term of imprisonment and cannot be enforced in the absence of full criminal due process rights.

In Hamdi, the Supreme Court made its position perfectly clear: “We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.” 542 U.S. at 531. The Court confirmed that if a citizen has actually fought with the enemy and is detained on the battlefield, the law of war and realities of combat may render military detention necessary and appropriate. Id. The Court stated:

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

Id. at 532 (citations omitted). In Robel, the Supreme Court stated a similar principle: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.” 389 U.S. at 264.

At the August hearing, the Government argued that this Court’s role with respect to § 1021(b)(2) should be limited to consideration of a detainee’s petition for release pursuant to a writ of habeas corpus. That argument is premised upon an extraordinary proposition: that American citizens detained pursuant to § 1021 are not entitled to the presumption of innocence and requirement that guilt be proven beyond a reasonable doubt. In other words, relegating a court simply to a habeas review means that the detainee has been divested of fundamental due process rights. This becomes clear with reference to the fact that the Government’s burden of proof with respect to habeas petitions is “preponderance of the evidence,” not “beyond a reasonable doubt” as required for criminal convictions. See, e.g., Almerfedi v. Obama, 654 F. 3d 1, 5 (D.C. Cir. 2011)(preponderance of the evidence standard applies to habeas petitions); [43] see also Al-Odah v. U.S., 611 F.3d 8, 13-14 (D.C. Cir. 2010) (preponderance of the evidence standard is constitutional in evaluating a habeas petition from a Guantanamo detainee). A “preponderance standard” simply asks whether a fact is more likely than not--51 percent likely--versus beyond a reasonable doubt.

This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention, and have as their sole remedy a habeas petition adjudicated by a single decision-maker (a judge versus a jury), by a “preponderance of the evidence” standard. That scenario dispenses with a number of guaranteed rights.

In its pre-trial memorandum, the Government spends only one page of a 49-page memorandum defending the language of § 1021(b)(2). (Gov’t Trial Mem. at 41-42.) The Government fails adequately to address why there is no requirement for knowing conduct, to provide any specificity as to what substantial support means and how that might compare, for instance, to material support as defined in 18 U.S.C. §§ 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 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 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.

X. PERMANENT INJUCTIVE RELIEF

Section § 1021(b)(2) violates rights guaranteed by the First, Fifth, and Fourteenth Amendments of the United States Constitution. The Court turns finally to the question of appropriate relief. Plaintiffs have sought only injunctive relief.

In its May 16 Opinion, this Court preliminarily enjoined enforcement of § 1021(b)(2) and invited Congress to amend the statute to rectify its infirmities. See Hedges, 2012 WL 1721124, at *2, *27, *28. To date, Congress has not passed any amendments.

The Supreme Court has set out a four-part test for a determination as to the appropriateness of permanent injunctive relief: plaintiffs must demonstrate (1) that they have or imminently will suffer irreparable injury, (2) that monetary damages will not redress the injury, (3) that, considering the balance of hardships between the plaintiffs and Government, injunctive relief is warranted, and (4) that the public interest would not be disserved by the issuance of an injunction. See Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Plaintiffs meet each of those factors.

In this case, there is a factual record developed at a full evidentiary hearing upon which the Court can rely. As stated above, the Government chose not to submit any evidence whatsoever in support of its position, but relies on legal argument and cross-examination. The Court’s determinations regarding the elements plaintiffs must meet for issuance of a permanent injunction are based on its factual findings.

The factual record demonstrates that plaintiffs have already been harmed and will continue to be harmed by potential enforcement of § 1021(b)(2). At the trial of this matter, Hedges, O’Brien, Wargalla, and Jonsdottir all testified to facts showing a chilling of their written, oral or associational activities. That is actual injury. Moreover, each of the plaintiffs expects to continue to engage in the same activities as he or she has in the past. Thus, whatever strength one can attribute to the assurances the Government provided, those assurances explicitly do not apply to any First Amendment activities that were not stated at the March hearing, that have happened since, or will happen in the future. Plaintiffs’ injury is imminent and ongoing. The law considers injury to First Amendment rights to constitute irreparable harm. Elrod, 427 U.S. at 373; Salinger v. Colting, 607 F.3d 68, 81-82 (2010).

In addition, imprisonment without trial and for an indefinite period certainly constitutes irreparable harm. A plaintiff need not wait until such detention has occurred to challenge the statute. See Holder, 130 S. Ct. at 2717.

The second element is also easily met. Plaintiffs are not suing--nor could they–-for monetary damages. They are suing to prevent indefinite military detention. Should such detention occur, money damages would never be adequate as a matter of law. Cf. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071 (7th Cir. 1976) (finding that monetary damages were insufficient to compensate the plaintiffs--a class of persons of Mexican ancestry--who had been subject to illegal stops and interrogations by the INS in violation of the Fourth Amendment).

The balance of the hardships also clearly weighs in plaintiffs’ favor. The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes (referred to above) that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF--a position with which the Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government’s arsenal. Most importantly, since Congress may pass no law abridging rights guaranteed by the First Amendment, enjoining enforcement of a statute that does just that cannot deprive Congress or the executive branch of that which they have no right to have.

The last element relates to the weighing of the public interest: does the public have a greater interest in preservation of its First Amendment and due process rights that are infringed by § 1021(b)(2), or in having the statute potentially available for use by law enforcement authorities? Here too, the fact that, according to the Government, § 1021(b)(2) adds nothing new to their authority, is decisive. Enjoining the statute will therefore not endanger the public. The Government did not put forward any evidence at trial that it needed the statute for law enforcement efforts; in contrast, plaintiffs did present evidence that First Amendment rights have already been harmed and will be harmed by the prospect of § 1021(b)(2) being enforced. The public has a strong and undoubted interest in the clear preservation of First and Fifth Amendment rights.

Accordingly, this Court finds that plaintiffs have met the requirements for issuance of permanent injunctive relief.

XI. CONCLUSION

For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. [45] The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies I or whether, in light of existing authorization and existing criminal statutes§ 1021 is needed at all.

This Court has stated its position, as directly presented to it by the Government I that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly supporting" the Talibanl al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.

The Clerk of the Court is directed to terminate this action.

SO ORDERED:

Dated: New York, New York
September 12, 2012

Katherine B. Forrest

UNITED STATES DISTRICT JUDGE

_______________

Notes:

 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.

28. In American Booksellers, the statute at issue required a “knowing display” of certain materials. 484 U.S. at 383. The lower court found that 95 percent of the conduct of the booksellers would not be affected by the statute; a finding of a five percent impact was sufficient for its facial invalidation. Moreover, in that case, the evidence adduced at the preliminary injunction hearing also constituted the evidence for the trial on the merits. Id. at 389.

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.

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.”).

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.

32. The party seeking to have a case dismissed as moot bears a heavy burden. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).

33. Three plaintiffs are not American citizens (O’Brien, Wargalla, and Jonsdottir). However, their First Amendment activities do occur on U.S. soil, including via the Internet or travel to speeches.

34. There is an exception to the general mootness doctrine that provides a separate basis for declining to find this case moot--i.e., when an action is capable of repetition but is likely to evade review. See Murphy, 455 U.S. at 482. It is indisputable that any future Attorney General--or even the current one--may decide to change enforcement practices. The fact that such a “change of mind” could be coupled with indefinite military detention militates against a finding of mootness. The Court has found as a factual matter that these plaintiffs have engaged in activities about which the Government originally could give no assurances--and that they will continue to engage in similar activities in the future. The Government has explicitly declined to provide any assurances regarding any of plaintiffs’ future activities.

35. The Government’s argument regarding the President’s role in foreign affairs is particularly inapposite in the context of a statute in which a critical question is the legitimacy of its applicability to, inter alia, activities by Americans or on American soil.

36. See, e.g., Al-Bihani, 590 F.3d at 869 (acknowledging the petitioner’s 2001 detention), cert. denied, 131 S. Ct. 1814 (2011).

37. At the time that he signed the NDAA into law, President Obama issued a signing statement with respect to § 1021 in which he stated that he would not subject American citizens to indefinite military detention “without trial.” This is a carefully worded statement--it is not saying that the President will not detain American citizens under § 1021--or what type of trial (with what rights) that individual might have. In any event, nothing prevents him from changing his mind since “signing statements” are not law; and a new administration could certainly take a different position.

38. Even if the Court were to find that § 1021(b)(2) is not directed at speech, it still would find that speech is captured on the fringe of § 1021(b)(2) and thus, “imposes burdens on speech” that are “greater than [that which] is essential to the furtherance” of a governmental interest. Turner, 512 U.S. at 642, 662 (quotation marks omitted).

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.

40. The closest § 1021 comes to having a “saving clause” is § 1021(e): “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captures or arrested in the United States.” NDAA § 1021(e) (emphasis added). That 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.

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)

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.

43. In Almerfedi, after a seven year detention, the United States District Court for the District of Columbia (Judge Friedman), found that the Government had not proven that it was more probable than not that Almerfedi was purposefully part of or materially supported the Taliban or al-Qaeda; the Court of Appeals reversed. See Almerfedi, 654 F.3d at 8 n.2. Almerfedi was alleged to be an al-Qaeda “facilitator” who frequented al-Qaeda guesthouses in Iran and helped fighters infiltrate Afghanistan. The district court found the Government’s evidence in support of these allegations insufficient based on a preponderance of the evidence. The Court of Appeals reversed--finding that the district court had made an error in its legal application of the preponderance standard by weighing evidence piece by piece rather than as a whole, and reversed with directions to deny the petition. On June 11, 2012, the Supreme Court denied certiorari. Almerfedi v. Obama, No. 11-683, 2012 WL 2076354 (June 11, 2012).

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.

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.

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