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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