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Christopher Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'brien, Us Day v. Barack Obama

May 16, 2012

CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O'BRIEN, US DAY OF RAGE, KAI WARG ALLA, HON. BRIGITTA JONSDOTTIR M.P.,
PLAINTIFFS,
v.
BARACK OBAMA, INDIVIDUALLY AND AS REPRESENTATIVE OF THE UNITED STATES OF AMERICA; LEON PANETTA, INDIVIDUALLY AND IN HIS CAPACITY AS THE EXECUTIVE AND REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC CANTOR AS REPRESENTATIVES OF THE UNITED STATES OF AMERICA,
DEFENDANTS.



The opinion of the court was delivered by: Katherine B. Forrest, District Judge:

USDC SDNY DOCUMENT ELECTRONICALLY FILED

DOC #:

OPINION AND ORDER

On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the "NDAA"). Plaintiffs, a group of writers and activists, brought a lawsuit on January 13, 2012, seeking preliminary and permanent injunctive relief with respect to one section (indeed, one page) of that voluminous legislation: § 1021. Plaintiffs assert that Section 1021 is constitutionally infirm, violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution. On February 27, 2012, plaintiffs filed a motion for a temporary restraining order (which they subsequently converted to a motion for preliminary injunction in a conference with the Court), seeking to enjoin enforcement of § 1021. In support of their motion, plaintiffs assert that § 1021 already has impacted their associational and expressive activities--and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

On March 30, 2012, after expedited discovery, this Court held an evidentiary hearing on plaintiffs' motion. At the hearing, three plaintiffs testified live and, pursuant to stipulation, another by sworn declaration. The Government did not call any witnesses, submit any documentary evidence, or file any declarations in connection with its opposition to plaintiffs' motion.*fn1 The parties filed post-hearing memoranda; and the motion was fully submitted on May 4, 2012.

As mentioned, plaintiffs' challenge § 1021 as vague and thus, violative of their First and Fifth Amendment rights. The Government opposes plaintiffs' request for preliminary injunctive relief on three bases: first, that plaintiffs lack standing; second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs' substantive constitutional challenges, that Section 1021 of the NDAA is simply an "affirmation" or "reaffirmation" of the authority conferred by the 2001 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the "AUMF"), passed in the wake of September 11, 2001.

In essence, the Government argues that as an "affirmation" of the AUMF, § 1021 of the NDAA does nothing new; and therefore, since the type of activities in which plaintiffs are engaged were not subject to legal action under the AUMF, there is no reasonable basis for plaintiffs to assert that § 1021 could suddenly subject them to governmental action now. According to the Government, as an affirmation of the AUMF, the NDAA must be "read against the backdrop of Executive practice and court decisions"--a backdrop which clarifies the scope of § 1021. (See Gov't's Supplemental Mem. of Law in Opp'n to Pls.' Mot. for a Prelim. Inj. ("Gov't Supp. Mem.") (Dkt. No. 33) at 1.)

For the reasons set forth below, this Court finds that § 1021 is not merely an "affirmation" of the AUMF. To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning. To find that § 1021 is merely an "affirmation" of the AUMF would require this Court to find that § 1021 is a mere redundancy--that is, that it has no independent meaning and adds absolutely nothing to the Government's enforcement powers.

In addition to rendering § 1021 meaningless, the Government's position ignores the differences between the two statutes. Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter--i.e., that an alleged violator's conduct must have been, in some fashion, "knowing." Section 1021 tries to do too much with too little--it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.

This Court finds that plaintiffs (who, as discussed below, have a reasonable fear of future government action sufficient to confer standing) have carried their burden with respect to the necessary elements for issuance of preliminary injunctive relief. They have demonstrated a likelihood of success on the merits with respect to their constitutional challenges; they have put forward specific evidence of actual and threatened irreparable harm; the balance of the equities and the public interest favors issuance of preliminary relief (particularly, but not only, in light of the fact that the Government's entire position is premised on the assertion that §1021 does nothing new--that it simply reaffirms the AUMF; in which case, preliminarily enjoining enforcement should not remove any enforcement tools from those the Government currently assumes are within its arsenal). Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.

BACKGROUND

I. THE STATUTES

The Government's central argument with respect to both

standing and the merits is that the NDAA is nothing more than an affirmation of the AUMF. Thus, the Court sets forth the relevant portions of both statutes as well as the relevant enforcement history relating to the AUMF. The Court also discusses a similar statute recently examined by the Supreme Court of the United States, which has informed some of its thinking on the merits of the instant motion.

A. The AUMF

The AUMF was passed in direct response to the terrorist event of September 11, 2001. The AUMF provides:

[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001) § 2(a).

President Bush utilized the authorization granted under the AUMF to send U.S. armed forces into Afghanistan "with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it." Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004)(plurality); accord Rasul v. Bush, 542 U.S. 466, 470 (2004). The hostilities that commenced in 2001 remain ongoing today. The Government has captured and detained a number of individuals pursuant to the authority in the AUMF. See generally, e.g., Hamdi, 542 U.S. 507.

In Hamdi, the Supreme Court recognized the authority granted by the AUMF to detain the individuals captured: "detention of individuals . . . for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use". Id. at 518. A number of subsequent cases, many of which arose in the context of habeas proceedings relating to those captured pursuant to the AUMF and detained at Guantanamo Bay, have similarly upheld the detention authority granted under the AUMF. See, e.g., Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); In re Petitioners Seeking Habeas Corpus Relief, 700 F. Supp. 2d 119, 135 (D.D.C. 2010); see also Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

In March 2009, the Government submitted a memorandum in an action relating to Guantanamo Bay detainees, In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (D.D.C.), in which it set forth its views on the President's AUMF detention authority ("March 2009 Mem.").*fn2 That memorandum, upon which the Government relies in the instant matter regarding certain interpretative principles and the scope of § 1021 of the NDAA, states:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in the aid of such enemy forces.

March 2009 Mem. at 1-2.

At oral argument, the Government conceded that the March 2009 Memorandum simply states the Government's litigation position in the Guantanamo Bay Detainee Litigation, and that it does not have the effect of law. Tr. 216-17.*fn3

B. The NDAA

Section 1021 of the NDAA--entitled "Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force"--provides

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons. A covered person under this section is any person as follows . . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF]. . . .

(4) Transfer to the custody or control of the person's country of origin, any other foreign country or any other foreign entity.

(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

(e) Authorities. Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens . . . .

Pub. L. 112-81, 125 Stat. 1298 § 1021.

When he signed the NDAA into law on December 31, 2011, President Obama simultaneously issued a "signing statement." A portion of that statement referred explicitly to § 1021:

Section 1021 affirms the executive branch's authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011 DAILY COMP. PRES. DOC. 978 (Dec. 31, 2011) at

1-2 (hereinafter "Signing Statement"), available at http://www.gpo.gov/fdsys/pkg/DCPD-201100978/pdf/DCPD-201100978.pdf.

As stated above, the NDAA is a broad package of legislation that includes both authorizations for military spending as well as additional, non-spending legislation (such as § 1021). Pub. L. 112-81, 125 Stat. 1298 at Preamble ("An Act"); see also generally Pub. L. 112-81, 125 Stat. 1298 § 2. In addition to § 1021, the NDAA includes § 1022 which separately authorizes "Military Custody for Foreign Al-Qaeda Terrorists." See Pub. L. 112-81, 125 Stat. 1298 § 1022. That statute authorizes "Custody Pending Disposition Under Law of War." Id. Section 1022(a)(2) defines who constitutes a "Covered Person[]" under that prong of the statute, id. § 1022(a)(2), and contains a specific provision that states that, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States . . . ," id. § 1022(b)(1).

Section 1022 further provides, in pertinent part:

(c)(1) Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

(2) Elements. The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under (a)(2) and the process by which such determinations are to be made . . . .

Pub. L. 112-81, 125 Stat. 1298 § 1022(c)(1)-(2)(A).

On February 28, 2012, the White House issued a Presidential Policy Directive (PPD-14) entitled, "Requirements of the National Defense Authorization Act" regarding the procedures for implementing § 1022 of the NDAA (but not § 1021). "Directive on Procedures Implementing Section 1022 of the National Defense Authorization Act for Fiscal Year 2012," 2012 DAILY COMP. PRES. DOC. 136 (Feb. 28, 2012), available at http://www.gpo.gov/fdsys/pkg/DCPD-201200136/pdf/DCPD-201200136.pdf. That directive provides specific guidance as to the "Scope of Procedures and Standard for Covered Persons Determinations." Specifically, it states that "covered persons" applies only to a person who is not a citizen of the United States and who is a member or part of al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and "who participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." Id. at 1-2. The directive consists of 11 pages of specific implementation procedures including defining scope and limitations.

As mentioned, no such directive was issued with respect to section 1021 of the NDAA.

C. 18 U.S.C. § 2339B and Holder v. Humanitarian Law Project In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Supreme Court considered whether a criminal statute prohibiting the provision of material support to terrorists, or providing resources to foreign terrorist organizations, was constitutionally infirm under either the First or Fifth Amendments. Id. at 2712-13. There, the relevant statutory provision stated, in pertinent part:

Whoever provides material support or resources or conceals or disguises the nature, location, source or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [various criminal statutes] . . . shall be . . . imprisoned for not more than 15 years.

18 U.S.C. § 2339A(a).

The term "material support," as well as the types of

activities encompassed by "material support"--e.g., "expert advice or assistance"--are defined within the statute itself. See 18 U.S.C. § 2339A(b)(1)-(3).

The following section of that statute, § 2339B, sets forth the penalties associated with violating 18 U.S.C. § 2339A, and in doing so, relies upon the definitions supplied in § 2339A. See 18 U.S.C. § 2339B. The penalties to be imposed are for, as § 2339B states, the "prohibited activit[y]" of "[p]roviding material support or resources to a foreign terrorist organization, or attempts or conspires to do so . . . ." 18 U.S.C. § 2339B(a)(1). The penalties set forth in § 2339B are imposed only upon a showing that the person "ha[d] knowledge that the organization is a designated terrorist organization . . . , or that the organization has engaged or engages in terrorism . . . ." Id.

In finding that § 2339B did not violate either the First or Fifth Amendments, the Supreme Court pointed specifically to the definitional sections and the requirement for "knowing" conduct. Holder, 130 S. Ct. at 2720. The Supreme Court found,

Applying the statutory terms in this action 'training,' 'expert advice or assistance,' 'service,' and 'personnel'--does not require similarly untethered, subjective judgments . . . Congress took care to add narrowing definitions to the material-support statute over time. These definitions increased the clarity of the statute's terms . . . and the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.

Id. (citations omitted).

II. THE PARTIES

A. Plaintiffs

Plaintiffs are a group of writers and political activists.

Of the seven named plaintiffs, only five submitted any evidence in connection with this motion: Jennifer Ann Bolen, Christopher Hedges, Alexa O'Brien, Kai Wargalla, and Hon. Brigitta Jonsdottir. (Dkt. Nos. 10, 11, 14, 17, 18.) Two of the plaintiffs, Daniel Ellsberg and Noam Chomsky, are listed in the caption and referred in the text of the verified amended complaint (see Dkt. No. 4-1), but did not submit either affidavits in support of the motion or appear live to provide testimony at the evidentiary hearing.*fn4

Bolen, who, as mentioned, submitted a declaration in support of the motion, did not testify at the evidentiary hearing and was not deposed. Thus, her statements were not cross-examined and this Court has not relied upon them for purposes of deciding the instant motion.*fn5 Plaintiffs Hedges, O'Brien, Wargalla, and Jonsdottir testified at the hearing (Jonsdottir by declaration as agreed by the parties).*fn6

1. Christopher Hedges

At the hearing in this matter, Hedges testified that he has been a foreign correspondent for 20 years. Tr. 156. He won the Pulitzer Prize for journalistic reporting. Tr. 157. Over the course of his career, he has primarily worked in Latin America, Africa, the Middle East, and the Balkans. Tr. 157. He makes his living writing, teaching, and lecturing. He has published a number of articles in the New York Times, the Christian Science Monitor, the Dallas Morning News, Harper's Magazine, and the New York Review of Books. Tr. 157.

After September 11, 2001, Hedges was based in Paris and covered al-Qaeda in all European countries (with the exception of Germany) as well as the Middle East. Tr. 157.*fn7 As part of that coverage, Hedges retraced the steps of Mohammed Atta, one of the participants in the 9/11 events; he covered the abortive Paris embassy bombing plot, the suicide bombing attack on the synagogue in Djerba in Tunisia, and he covered Richard Reed, the so-called "Shoe Bomber." Tr. 158.

Hedges testified that some of the people he has interviewed in connection with his work were al-Qaeda members who were later detained and are currently in prison. Tr. 158. Accordingly to Hedges himself, his reporting on al-Qaeda or other terrorist organizations is read widely in the Middle East. Tr. 159. Certain of Hedges' writings appear on Islamic or jihadist websites. Id.

Hedges stated that having covered war for 20 years, he is familiar with the fact that a number of individuals who may be detained as enemy combatants might not have ever carried a weapon. Tr. 160. In that regard, he referred to Osama Bin Laden's driver, a Guantanamo detainee. Tr. 160.

Hedges testified that he has read § 1021 of the NDAA. Tr. 160. Hedges testified that he is also familiar with the provisions of the AUMF and has a specific understanding as to what they mean. Tr. 165 ("enemy combatants on foreign soil that are engaged in direct hostilities with the United States and are linked directly with those who carried out the attacks of 9/11"). He does not, however, understand that § 1021 is entirely co-extensive and goes no further than the AUMF. Tr. 165. Indeed, he testified that he reads §1021 as "radically different" from the AUMF. Tr. 166. In that regard, Hedges is unclear as to the meaning of what constitutes "associated forces" in § 1021, see Tr. 168, nor does he understand what the phrases "engaged in hostilities," "covered person," or "substantially supported" means as used in § 1021, Tr. 162-63.

Hedges testified that he has reported on 17 groups contained on a list prepared by the State Department of known terrorist organizations. (See Court Ex. 9 (Country Reports on Terrorism, Report of the U.S. State Dep't, Ch. 6 ("Terrorist Groups") (Aug. 2010) at 1 (Certification of Christopher Lynn Hedges Ex. A (Dkt. No. 11-1).)*fn8 Included among the groups on which Hedges has reported (and which are on the State Department lists admitted as Court Exhibit 9) are: the Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama'a alIslamiya, Hamas, Hizballah, Kahane Chai, the Konga-Gel, KGK (a/k/a "PKA"), the Mujahedin-e Khalq Organization ("MEK"), the Palestine Liberation Front, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine (including also the Central Command), al-Qaeda, Revolutionary People's Party/Front, and the Salafist Group for Call and Combat. (Id. at 1-2.) See also Tr. 169.

Hedges testified that some of those organizations are considered to be in hostilities with coalition partners of the United States. For instance, the PKK is engaged in hostilities with Turkey, which is one of the United States' coalition partners. Tr. 169. In connection with his coverage of the PKK, he travelled with members of the PKK on ...


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