Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary Injunction - May 4, 2012

7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------- x

CHRISTOPHER HEDGES et al.,

Plaintiffs,

v.

BARACK OBAMA et al.,

Defendants.

12 Civ. 331 (KBF)

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Governments Supplemental Memorandum of Law in Opposition toPlaintiffs Motion for a Preliminary Injunction

PREET BHARARA

United States Attorney for the

Southern District of New York

86 Chambers Street

New York, New York 10007

Telephone: 212.637.2703, .2728

Fax: 212.637.2702

E-mail: [email protected]

[email protected]

BENJAMIN H. TORRANCE

CHRISTOPHER B. HARWOOD

Assistant United States Attorneys

Of Counsel

Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 1 of 30


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Table of Contents

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Section 1021 Codifies the Detention Authority Conferred by the AUMF, and

Must Be Read Against the Background of Existing Executive Practice. . . . . . . . 1

B. Plaintiffs Testimony Fails to Establish That Any Plaintiff Has Standing to

Challenge Section 1021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Plaintiffs Asserted Fear That Section 1021 Will Be Applied Against

Them Is Based on Implausible Interpretations of the Statute and the

Documents on Which They Rely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Most of Plaintiffs Activities (and in the Case of the Non-Citizen

Plaintiffs, All of Their Activities) Relate to Groups Other Thanal-Qaeda, the Taliban, or Associated Forces. . . . . . . . . . . . . . . . . . . . . . . 12

3. The Presidents Signing Statement Precludes a Finding of Standing

as to Either of the U.S. Citizen Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4. The Governments Enforcement History Under the AUMF and Section

1021 Precludes a Finding That Any Plaintiff Has Standing. . . . . . . . . . . . 14

C. Injunctive or Declaratory Relief Against Application of Section 1021

Would Be Inconsistent with the Standards Required by Article III of the

Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D. Section 1021 Is Not Unconstitutional Under the Void-for-Vagueness

Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Military-Force Authorization Statutes Are Not Susceptible to

Vagueness Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. Section 1021 Is Not Impermissibly Vague. . . . . . . . . . . . . . . . . . . . . . . . . . 21

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25



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Table of Authorities

Cases:

A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925). . . . . . . . . . . . . . . . . 19

Allen v. Wright, 468 U.S. 737 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

American Communications Assn v. Douds, 339 U.S. 382 (1950). . . . . . . . . . . . . . . . . . . . . 22

American Insurance Assn v. Garamendi, 539 U.S. 396 (2003). . . . . . . . . . . . . . . . . . . . . . . . 4

Amnesty Intl USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . 7, 8, 9

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Betancourt v. Bloomberg, 448 F.3d 547 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Boumediene v. Bush, 553 U.S. 723 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20

Brache v. Westchester County, 658 F.2d 47 (2d Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir. 2006).. . . . . . . . . 24

Cannon v. University of Chicago, 441 U.S. 677 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Chicago & Southern Air Lines v. Waterman S.S. Corp. , 333 U.S. 103 (1948). . . . . . . . . . . . . 4

City of Los Angeles v. Lyons, 461 U.S. 95 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Coates v. City of Cincinnati, 402 U.S. 611 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Connally v. General Construction Co., 269 U.S. 385 (1926).. . . . . . . . . . . . . . . . . . . . . . . . . 22

Dames & Moore v. Regan, 453 U.S. 654 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Duparquet Co. v. Evans, 297 U.S. 216 (1936).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Edelman v. Lynchburg College, 535 U.S. 106 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Evans v. United States, 504 U.S. 255 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957). . . . . . . . . . . . . . . . . . 2

Grayned v. City of Rockford, 408 U.S. 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Haig v. Agee, 453 U.S. 280 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Helco Prods. Co. v. McNutt, 137 F.2d 681 (D.C. Cir. 1943). . . . . . . . . . . . . . . . . . . . . . . . . . 17

Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). . . . . . . . . . . . . . . . . . . . passim

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Jordan v. DeGeorge, 341 U.S. 223 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433 (2010). . . . . . . . . . . . . . 2

Kinnell v. Graves, 265 F.3d 1125 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Laird v. Tatum, 408 U.S. 1 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

LeDuc v. Tilley, No. 05cv157, 2005 WL 1475334 (D. Conn. June 22, 2005). . . . . . . . . . . . . 20

In re Liberatore, 574 F.2d 78 (2d Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Lorillard v. Pons, 434 U.S. 575 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 17

Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238 (2011). . . . . . . . . . . . . . . . . . . . . . . . 2

Mistretta v. United States, 488 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

National Lead Co. v. United States, 252 U.S. 140 (1920). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Prize Cases (The Amy Warwick), 67 U.S. (2 Black) 635 (1863). . . . . . . . . . . . . . . . . . . . . . . . 4

Reno v. ACLU, 521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Saxbe v. Bustos, 419 U.S. 65 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sompo Japan Ins. Co. of America v. Union Pacific R. Co., 456 F.3d 54 (2d Cir. 2006). . . . . 2

In re Territo, 156 F.2d 142 (9th Cir. 1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Clark, 582 F.3d 607 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). . . . . . . . . . . . . . . . . . . . 4

United States v. Faase, 265 F.3d 475 (6th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Leon, 203 F.3d 162 (2d Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Midwest Oil Co., 236 U.S. 459 (1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

United States v. National Dairy Products Corp., 372 U.S. 29 (1963). . . . . . . . . . . . . . . . . . 21

United States v. Payden, 598 F. Supp. 1388 (S.D.N.Y. 1984). . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Williams, 553 U.S. 285 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Virginia v. Hicks, 539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). . . . . . . . . . . . . . . . . . . . . . . . 4

Zemel v. Rusk, 381 U.S. 1 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Statutes, Rules, and Legislative History:

10 U.S.C. 948a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

10 U.S.C. 948c.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pub. L. No. 102-1, 105 Stat. 3 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3

Pub. L. No. 107-243, 116 Stat. 1498. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Act of Apr. 25, 1898, ch. 189, 30 Stat. 364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Act of June 18, 1812, ch. 102, 2 Stat. 755. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Act of May 13, 1846, ch. 16, 9 Stat. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Joint Resolution of Dec. 11, 1941, ch. 564, 55 Stat. 796. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Joint Resolution of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384. . . . . . . . . . . . . . . . . . . 19

Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Fed. R. Evid. 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Fed. R. Evid. 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14

147 Cong. Rec. S9949-51 (Oct. 1, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Secondary Sources:

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on

Terrorism, 118 Harv. L. Rev. 2047 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527

(1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Preliminary Statement

Following the hearing of March 29, 2012, and pursuant to this Courts order, the

government respectfully submits this supplemental memorandum in opposition to

plaintiffs motion for a preliminary injunction. As explained below and in the governments

initial memorandum, the challenged statute, section 1021 of the National Defense

Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011)

(the NDAA), is a codification of the governments pre-existing authority to detain certain

persons under the 2001 Authorization for Use of Military Force, Pub. L. No. 10740, 115

Stat. 224 (Sept. 18, 2001) (the AUMF). As such, it must be read against the backdrop of

existing Executive practice and court decisions, which clarify the scope of section 1021.

Plaintiffs constitutional challenge, and their alleged fear that they will be subject to

detention under this statute, are based on an ungrounded and inaccurate interpretation of

this law that ignores its history and its context. They can establish no credible threat that

section 1021, as correctly interpreted, will be enforced against them. Therefore, they lack

standing and their motion for a preliminary injunction must be denied.

Argument

A. Section 1021 Codifies the Detention Authority Conferred by the AUMF, andMust Be Read Against the Background of Existing Executive Practice

As described in the governments opening brief, section 1021 affirms and codifies the

detention authority conferred by the AUMF. Govts Mem. of Law in Opp. to Pls. Mot. for

Prelim. Inj. dated Mar. 26, 2012 (Govt Mem.) 7-9. It is explicit on the face of section 1021

that it only affirms that the AUMF includes authority to detain certain persons; it is

further explicit that section 1021 was not intended to limit or expand the governments

authority or the scope of the AUMF. NDAA 1021(a), (d). Those understandings were

reiterated by the President upon signing the legislation. Statement by Pres. Barack Obama



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upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011) (Signing Statement).

This Courts observation that Congress writes legislation for a reason, Transcript of

March 29, 2012 (Tr.) 247, is surely true, but the text of section 1021 makes clear that

Congress passed the statute solely to place its imprimatur on the pre-existing AUMF

detention authority asserted by the President, authority that the courts had upheld and

further refined in numerous legal challenges brought by detainees. It is well-established

that in considering a codification of existing laws, courts should not infer that Congress

. . . intended to change their effect. Sompo Japan Ins. Co. of America v. Union Pacific R.

Co., 456 F.3d 54, 64 (2d Cir. 2006) (quoting Fourco Glass Co. v. Transmirra Products Corp.,

353 U.S. 222, 227 (1957) (alterations omitted)), abrogated on other grounds,Kawasaki

Kisen Kaisha Ltd. v. RegalBeloit Corp. 130 S. Ct. 2433 (2010). Nor is it unusual for

Congresss reason for legislating to consist of codifying existing understandings. Microsoft

Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238, 2249 n.8 (2011) (Congress meant to codify

[judge-made law], not to set forth a new [standard] of its own making); In re Liberatore,

574 F.2d 78, 86 (2d Cir. 1978). That Congress did just that here is demonstrated by its

clear statements that its reason was to affirm, codify, and make explicitrather than to

limit or expandthe governments authority to detain individuals pursuant to the AUMF.1

Plaintiffs argument that section 1021 is obviously broader than the AUMF, Pls.1

Post-Hrg. Mem. 14, ignores the fact that section 1021 is expressly no broader than the

AUMF. Their contention that section 1021 cannot be read to state the earlier Congresss

intent in the AUMF misses the point: the Supreme Court already determined that

Congress, in enacting the AUMF, meant to include detention authority as part of themilitary force it authorized, Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality); the

2011 Congress did not purport to state the 2001 Congresss intent, but instead to affirm the

scope of that authority as interpreted by the courts and as articulated by Executive

practice.

Also relevant to the scope of section 1021 is the legislative history of the AUMF itself.

As originally proposed, the AUMF would have authorized the Executive to use force to

deter and pre-empt any future acts of terrorism or aggression against the United States.

(continued...)

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In doing so, Congress acted against the background of existing Executive practice

upheld by the courtswhich accordingly informs the meaning of the statute. That principle

is well established: Congress is presumed to have legislated with knowledge of such an

established usage of an executive department of the government, and when it does so it

amounts to an implied legislative recognition and approval of the executive construction of

the statute. National Lead Co. v. United States, 252 U.S. 140, 146-47 (1920); accord

United States v. Bailey, 34 U.S. (9 Pet.) 238, 256 (1835) (Congress must be presumed to

have legislated under this known state of the laws and usage of the treasury department

. . . [and] [t]he language of the act . . . should, then, be construed with reference to this

usage.). The relevant practices of the Executive Branch and the Executive Branchs

interpretation of the law through its implementation form background understandings

that Congress is presumed to preserve, not abrogate, and therefore place a gloss on

Congresss action in enacting a particular provision and provide a presumptive default.

United States v. Wilson, 290 F.3d 347, 356-57 (D.C. Cir. 2002) (quotation marks and

alterations omitted). Thus, the courts have adopted the wise and quieting rule that, in

determining the meaning of a statute or the existence of a power, weight shall be given to

the [Executives] usage itself,even when the validity of the practice is the subject of

investigation. United States v. Midwest Oil Co., 236 U.S. 459, 472-73 (1915); see Lorillard

v. Pons, 434 U.S. 575, 580 (1978); Saxbe v. Bustos, 419 U.S. 65, 74-75 (1974); see also

(...continued)

1

147 Cong. Rec. S9949-51 (daily ed. Oct. 1, 2001). Congress, however, limited the force

authorization to the use of force in order to prevent any future acts of international

terrorism against the United States by such nations, organizations, or persons (i.e., those

that the President determined planned, authorized, committed, or aided the [Sept. 11,

2001 attacks] or harbored such organizations or persons). 115 Stat. 224 (2001). This

history belies plaintiffs claims that section 1021, which neither limits nor expands the

scope of the AUMF, somehow authorizes the detention of persons based on their activities

in connection with groups other than al-Qaeda, the Taliban, or associated forces.

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Mistretta v. United States, 488 U.S. 361, 408 (1989) (Our principle of separation of powers

anticipates that the coordinate Branches will converse with each other on matters of vital

common interest.).

The rule of interpreting statutes in light of prior Executive practice applies even more

strongly in the areas of foreign affairs, national security, and war powers, where the

President has broad authority independent of congressional enactments.American

Insurance Assn v. Garamendi, 539 U.S. 396, 414-15 (2003); Chicago & Southern Air Lines

v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 319-21 (1936);Prize Cases (The Amy Warwick), 67 U.S. (2 Black) 635,

668-70 (1863). [W]here there is no contrary indication of legislative intent and when . . .

there is a history of congressional acquiescence in conduct of the sort engaged in by the

President, Congress may be seen as invit[ing] the exercise of that independent

presidential responsibility in the areas of foreign policy and national security. Dames

& Moore v. Regan, 453 U.S. 654, 678-79 (1981) (quoting Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring), and Haig v. Agee, 453 U.S. 280,

291 (1981)). Thus, when Congress acts against a longstanding and officially promulgated

view that the Executive has [a certain] power . . . for reasons of national security and

foreign policy, and le[aves] [that power] untouched, it has implicitly approved it. Id. at

680, 682 n.10 (quotation marks omitted); accordHaig, 453 U.S. at 297-98, 301 (when there

is congressional awareness of the Executive policy in foreign affairs, and no evidence of

any intent to repudiate it, courts conclude that Congress . . . adopted the longstanding

administrative construction); Zemel v. Rusk, 381 U.S. 1, 11-12 (1965).

In this case, the Executives interpretation and application of the detention authority

conferred by the AUMF has been expressed in various related forms over the years,

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including the Department of Defenses 2004 definition of a detainable person as one who

was part of or supporting al-Qaeda, Taliban, or associated forces, see Govt Mem. 5 n.4,

and, later, the governments March 2009 Memorandum to the District of Columbia district

courta document that was not merely a routine act of litigation advocacy, but the

Executives formal statement of the definitional framework governing detention in the

Guantanamo Bay cases. Congress was obviously aware of the Executives interpretation,2

as it adopted the language of the memorandum nearly verbatim into section 1021. Govt

Mem. 7-8; see Lorillard, 434 U.S. at 581 (where, as here, Congress adopts a new law

incorporating sections of a prior law, Congress normally can be presumed to have had

knowledge of the interpretation given to the incorporated law, at least insofar as it affects

the new statute (emphasis added)); National Lead, 252 U.S. at 146-47; Wilson, 290 F.3d at

356-57. Similarly, Congress is presumed to have known of judicial precedentshere, the

multiple decisions of the D.C. Circuit endorsing the governments detention standard, Govt

Mem. 6-7 & n.6, 18and to be expressing approval of that background law when it acts.

Edelman v. Lynchburg College, 535 U.S. 106, 116-17 (2002); Cannon v. University of

Chicago, 441 U.S. 677, 696-98 (1979).

Contrary to plaintiffs arguments, Pls. Post-Hrg. Mem. 8-9, the government does not

assert that the March 2009 Memorandum is itself authority to detain any personthat

authority was established by the AUMF, which the Supreme Court held in Hamdi v.

As directed by the court, Order in Hamlily, No. 05-cv-0763, docket no. 154 (D.D.C.

2

Feb. 11, 2009) (seeking clear, uniform understanding of core controlling legal standard

of detention authority to be applied in all cases), and as plaintiffs counsel acknowledged,

Tr. 255. Thus contrary to plaintiffs suggestion that it was confined to the Hamlily case,

Pls. Post-Hrg. Mem. 8-9, in fact it was submitted in all then-pending Guantanamo habeas

cases and has been consistently relied on by the government in later matters as well. As

described in the governments opening brief, that framework did not arise from a vacuum:

in 2004, the government had articulated the AUMF standard in similar, but broader,

terms. Govt Mem. 5 n.4.

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Rumsfeld authorized detention of a U.S. citizen who was part of or supporting forces

hostile to the United States or coalition partners. 542 U.S. 507, 518, 526 (2004) (plurality)

(quotation marks omitted); see Boumediene v. Bush, 553 U.S. 723, 733 (2008) (Hamdi

plurality opinion regarding AUMF detention authority joined by five Justices). But

contrary to plaintiffs repeated and unsupported contentions, Pls. Post-Hrg. Mem. 7, 8-9,

13-14the Court expressly left open the permissible bounds of that detention authority

to be determined in subsequent cases. Hamdi, 542 U.S. at 516, 522 n.1; see Hamlily v.

Obama, 616 F. Supp. 2d 63, 66 & n.2 (D.D.C. 2009). The March 2009 Memorandum

expresses the Executive branchs interpretation and application of the detention authority

granted by the AUMF and recognized by Hamdi; and subsequent D.C. Circuit decisions in

Guantanamo habeas cases have endorsed the governments detention standard, e.g.,

Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); see Govt Mem. 6-7 & n.6, 18, and

themselves interpreted its scope, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir.

2010) (purely independent conduct of a freelancer is not enough to justify detention as

part of al-Qaeda); Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010) (same).

3

It is that interpretation and application that Congress affirmed by enacting section

1021: by taking the language of the Executives definitional framework set forth in the

March 2009 Memorandum nearly word for word, Congress approved the interpretations

Plaintiffs inaccurately suggest that the D.C. Circuit has abrogated the overall3

detention standard offered by the government. Pls. Post-Hrg. Mem. 12. To the contrary,the case they cite, Uthman v. Obama, joins the precedents that endorse and apply the gov-

ernments definitional framework. 637 F.3d 400, 402-03 (D.C. Cir. 2011); Govt Mem. 6-7 &

n.6, 18 (citing cases). Uthman merely rejected the assertion that a person must be part of

al-Qaedas command structure to be part of al-Qaeda and thus detainable. That

refinement to the detention standard hardly abrogates the standard itself. Plaintiffs

contention that Uthman rel[ied] upon a material support standard is entirely meritless,

as the court stated expressly in the footnote plaintiffs cite that it was not even considering

that standard as it was not at issue. 637 F.3d at 402 n.2.

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the interpretation expressed in that same memorandum, as well as the interpretation of

the D.C. Circuit opinions endorsing the governments frameworkthat went along with it.4

Accordingly, section 1021 must take meaning from that history and contextincluding

that the detention authority is informed by principles of the law of war, when appropriate

by analogy to traditional international conflicts; that the term associated forces is to be

understood as based on principles of co-belligerency in the law of war; that the substantial

support prong does not permit detention of those who provide unwitting or insignificant

support to al-Qaeda, the Taliban, or associated forces; and that the latter two concepts

will develop in the context of applying law-of-war principles to concrete facts in individual

cases going forward. Govt Mem. 4-7 & n.5.

B. Plaintiffs Testimony Fails to Establish That Any Plaintiff Has Standing toChallenge Section 1021

A correct understanding of the statute and the Executives interpretation and

application of it demonstrates that plaintiffs claims of standing are meritless. As the

government explained in its opening brief, to establish standing, plaintiffs must show that

there is an objectively reasonable likelihood that they will be deemed covered persons

under section 1021,Amnesty Intl USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011),pet. for

As this Court noted at argument, if a word is obviously transplanted from another4

legal source, whether the common law or other legislation, it brings the old soil with it.

Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Although Evans

and other cases address statutory terms adopted from the common law, from the quotation

it is evident that Justice Frankfurter would apply the same maxim to words adopted fromother sources as well, contra Pls. Post-Hrg. Mem. 4 n.1. Indeed, Frankfurter quoted

Justice Cardozo: words may acquire scope and function from the history of events which

they summarize or from the purpose which they serve. . . . They came into the statute

freighted with the meaning imparted to them by the mischief to be remedied and by

contemporaneous discussion. In such conditions history is a teacher that is not to be

ignored. 47 Colum. L. Rev. at 536-37 (quotingDuparquet Co. v. Evans, 297 U.S. 216, 220,

221 (1936) (alterations omitted)). In particular, [t]he peculiar idiom of . . . administrative

practise [sic] often modifies the meaning that ordinary speech assigns to language. Id.

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cert. filed (Feb. 17, 2012) (No. 11-1025), and that they face a credible and imminent

threat of enforcement, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Moreover, to succeed on their

motion for a preliminary injunction, plaintiffs must show that it is likely that they can

meet these standards. See Govt Mem. 2 (citing cases). Based on their testimony, plaintiffs

have not carried their burdenwhich is that much greater because they seek to enjoin an

act of Congress. See id. 3 (citing cases). Not one of the four plaintiffs whose testimony is

before the CourtChristopher Hedges, Kai Wargalla, Alexa OBrien and Birgitta

Jonsdottirhas shown that he or she faces a credible and imminent threat of

enforcement under section 1021. Accordingly, plaintiffs fear that section 1021 will be5

applied against them is unreasonable, and their motion for a preliminary injunction should

be denied.

1. Plaintiffs Asserted Fear That Section 1021 Will Be Applied Against ThemIs Based on Implausible Interpretations of the Statute and the Documentson Which They Rely

As the government explained in its opening brief, plaintiffs cannot establish standing

if their fear that section 1021 will be applied against them is fanciful, paranoid, or

otherwise unreasonable. Govt Mem. 27 (quotingAmnesty Intl, 638 F.3d at 134). Their

testimony reveals that their purported fears are all of those things.

Christopher Hedges. Hedges interprets section 1021 as authorizing the

Plaintiffs assertion that [t]he [Amnesty Intl] plaintiffs faced a substantially greater

5

burden in establishing injury in fact than the plaintiffs here face, because the injury the

[Amnesty Intl] plaintiffs alleged was indirect, Pls. Post-Hrg. Mem. 17, misses the point.

UnderAmnesty Intl and the other cases cited above, plaintiffs have the burden of

establishing that they face a credible and imminent threat of injury. And it is this

burden that plaintiffs have failed to meet. Furthermore, plaintiffs observation that the

government has not offered any testimony of its own, e.g., id. 27; Tr. 15-16, is irrelevant.

Plaintiffs have the burden of proof as to standing and entitlement to a preliminary

injunction, and so it is plaintiffs (not the government) who must proffer testimony.

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military to seize and detain citizens and deny legal recourse to anyone who defies

the corporate state, as allow[ing] . . . the proverbial black van to be sent to any

street in America and to pick up civilians and detain them, and removing any

legal protection for those who dissent or oppose the crimes of state. Tr. 194-97. A

better example of a fanciful or paranoid reading of the statute is difficult to

imagine, and indeed Hedges claims he is now fearful if [a]ny kind of language [is

uttered] in [his] presence that countenances violence against the United States. Id.

174-75, 177, 186. Hedges also interprets the phrase associated forces in section

1021 as encompassing all of the groups within the state departments list of

designated terrorist organizations, as well as other groups that have . . . very

tangential relationships with the groups on the list, id. 197-98; accord Hedges Aff.

27, a conclusion that is unreasonable in that it is inconsistent with the definition

of associated forces advocated by the government and adopted by the courts, adefinition that is based on the law of war. See, e.g., Hamlily, 616 F. Supp. 2d at 74-

75 & n.17 (For purposes of these habeas proceedings, the Court interprets the term

associated forces to mean co-belligerents as that term is understood under the law

of war. The government itself advocates this reading of the language. . . . Associated

forces do not include terrorist organizations who merely share an abstract

philosophy or even a common purpose with al Qaedathere must be an actual

association in the current conflict with al Qaeda or the Taliban.).

Kai Wargalla. Wargallas purported fearreally, conjecturethat section

1021 will be applied against her is based primarily on her understanding of a

document purportedly issued by the City of London Police on December 2, 2011,

titled Terrorism/Extremism update for the City of London Business Community

(the update). See, e.g., Wargalla Aff. 5-7, 13-15 & Att. A; Tr. 122-23. Wargalla

reads the update as drawing a connection between Occupy Londona group with

which she is involvedand al-Qaeda. Tr. 122-23. The update, however, does no such

thing. It provides information on four distinct groups, without suggesting a link

among any of them. See Wargalla Aff. Att. A. The update certainly does not, as

Wargalla claims, put Occupy London and al-Qaeda in the same category, Tr. 123,

much less show that they are associated forces. Moreover, the update was issued

by a foreign municipal police department; it therefore cannot be read as suggesting6

Plaintiffs describe the update as a government watch list, Pls. Post-Hrg. Mem. 26,6

(continued...)

9



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that the U.S. government will apply section 1021 against Wargalla (or anyone else).

Furthermore, like Hedges, Wargalla interprets the phrase associated forces in

section 1021 as potentially encompassing any group that has been described as a

terrorist organization, see Wargalla Dep. Tr. 37-39a clear misunderstanding of

the phrase, seeinfra Part B.2.

Alexa OBrien. OBrien cites numerous documents as allegedly supporting

her asserted fear that section 1021 will be applied against her. Most of the

documents, however, reflect the actions and writings of private individuals (i.e., not

the government). See, e.g., Court Exs. 1, 2, 4, Q; Tr. 43, 47-50, 56-57, 62, 95-99.7

Moreover, OBriens apparent fear that the government may view these documents

as evidence of link between her and al-Qaeda, the Taliban, or associated forces is

paranoid and unreasonable. See, e.g., Court Ex. Q (emails stating that neither

the sender nor the recipient was aware of any concrete connections between USDay of Ragea group with which OBrien is involvedand fundamentalist

Islamist movements); Court Ex. 2 (article asserting that radical Islamists had

sought (unsuccessfully) to incite violence in connection with the first day of Occupy

Wall Street, September 17, 2011, which the article refers to as the US Day of

Rage). As such, these documents do not support OBriens professed fear that the

government will apply section 1021 against her. The two remaining documentsa

press release describing a statement allegedly made to OBrien by an unidentified

federal employee (the press release), Court Ex. U; Tr. 100-02, and a report issued

by the Department of Homeland Security (the DHS report), Court Ex. 5also do

not support OBriens alleged fear. The press release states, in relevant part, [t]he

federal government erroneously considers the organizers of US Day of Rage as

likely high level Anonymous, while the DHS report states, in relevant part,

(...continued)6

but provide no support for that characterization. The document purports to have been

issued by a local police department, apparently as an informational bulletin for the

business community of the City of London (i.e., the London financial district), andWargalla testified that she do[es]nt know whether the UK government had anything to do

with the issuance of th[e] update[.] Tr. 139.

To the extent that OBrien contends that these documents indicate that the7

government was directing the actions of the private individuals, her position is

unsupported, conjectural, and unreasonable. See Court Exs. 1, 2, 4, Q. Indeed, OBrien

conceded she does not know whether the government was involved in the creation of these

documents or the actions they reflect. Tr. 95-99.

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Details On Anonymous Upcoming US Operations: 17 September 2011; Occupy

Wall Street; US Day of Rage. Neither of these documents alleges, or alleges facts8

supporting the conclusion, that these groups qualify as associated forces under

section 1021. None of these groups is alleged to be armed or to have entered the

fight alongside al-Qaeda and be co-belligerent with al-Qaeda in hostilities against

the United States or its coalition partners. See Govt Mem. 23. Accordingly, neither

of these documents can fairly be construed as suggesting that section 1021 will be

applied against OBrien.

OBrien also testified that, in October 2011, her then-employer told her that

his contacts in the government were asking about [her]. Tr. 66. Yet OBrien never

askedand was never toldwho the purported contacts were and what they had

asked about. Id. 67-68, 99-100. Notably, OBriens former employer performed work

for the federal government, and one of OBriens job duties was to perform relatedwork. Id. 65-66, 100. Therefore, OBriens suggestion that the inquiry had something

to do with her journalistic activities or political advocacy (as opposed to, for

example, her job performance) is mere speculation. Moreover, plaintiffs assertion

that OBrien was forced to leave her employment because of repeated contacts by

federal agents to her employer questioning her advocacy activities, Pls. Post-Hrg.

Mem. 25, is factually incorrect. OBrien testified that she voluntarily left her job

because of her employers reaction to the press around Occupy Wall Street. Tr. 65.

Birgitta Jonsdottir. Jonsdottir testified that she fears that section 1021 will

be applied against her because the U.S. government will view her support for

WikiLeaks as providing substantial support to terrorists and/or associated

forces. See Tr. 154. But substantially supported in section 1021 refers only to

persons who provided substantial support to al-Qaeda, Taliban, or associated forces;

the record is devoid of evidence that WikiLeaks falls within that category. See infra

Plaintiffs misleadingly imply the DHS report is a terrorist watch report. Pls. Post-8

Hrg. Mem. 25. In fact, the document purports to be a Bulletin concerning the upcomingactivities of two groups, Anonymous and Adbusters. See Court Ex. 5. Moreover,

plaintiffs assertions (for which they offer no citation) that DHS has included . . . U.S. Day

of Rage . . . in its investigation of terrorist organizations, Pls. Post-Hrg. Mem. 3, and that

U.S. Day of Rage . . . has been investigated by the Department of Homeland Security, id.

4, find no support in the record. Although OBrien asserted she had had a conversation

with a journalist who described an unspecified memo supposedly evidencing an unnamed

government agencys surveillance of US Day of Rage, she admitted she had never seen that

putative memo nor did she know its contents. Tr. 69.

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Part B.2. Accordingly, whatever support Jonsdottir has provided to WikiLeaks is

irrelevant. Her alleged fear is based on a fundamental misreading of the statute.

In sum, because plaintiffs fears of enforcement are based on fanciful, paranoid, or

otherwise unreasonable interpretations of section 1021 and the documents on which they

rely, plaintiffs have failed to establish standing. Plaintiffs have also failed to establish9

standing for the additional reasons set forth below.

2. Most of Plaintiffs Activities (and in the Case of the Non-Citizen Plaintiffs,All of Their Activities) Relate to Groups Other Than al-Qaeda, theTaliban, or Associated Forces

By its terms, section 1021(b)(2) applies only to persons who are a part of or provided

substantial support to al-Qaeda, the Taliban, or associated forces. As the government

explained in its opening brief, the phrase associated forces encompasses only

co-belligerents (as that term is understood in light of principles of the law of war),

meaning, as interpreted by the Executive, an organized armed group that has entered the

fight alongside al-Qaeda and is a co-belligerent with al-Qaeda or Taliban forces in

hostilities against the United States or its coalition partners. See Govt Mem. 5-6, 23.

Based on their testimony, neither Wargalla nor Jonsdottir could possibly be deemed

to fall within the scope of section 1021. Putting aside the purely expressive nature of their

activities, none of the activities they have described relates to al-Qaeda, the Taliban, or an

associated force as defined by the Executive. Wargalla testified that her activities relate to

Occupy London, WikiLeaks, and Revolution Truth. Tr. 116-17, 133-34. None of these is

alleged to be an armed group, much less a co-belligerent with al-Qaeda or the Taliban

Plaintiffs also assert that testimony showed or [t]he record also shows certain9

facts based on hearsay documents offered into evidence. E.g., Pls. Post-Hrg. Mem. 3. Those

documents, and testimony based on them, were admitted solely to show the witnesses

states of mind, and cannot be considered for their truth. Fed. R. Evid. 801, 802.

12



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against the United States or its coalition partners. Similarly, Jonsdottir testified that her10

activities relate exclusively to WikiLeaks. See Tr. 148-52. Because there is nothing to

support the conclusion that any of these groups is an associated force, the nature of

Wargalla and Jonsdottirs activities on their behalf is irrelevant. These plaintiffs cannot

establish that they face a credible and imminent threat of enforcement under section

1021.

Similarly, some of the activities OBrien and Hedges described relate to groups that

plaintiffs have acknowledged are not armed and co-belligerent with al-Qaeda or the

Taliban, such as US Day of Rage and WL Central. See, e.g., OBrien Aff. 3-4, 10-11; Tr.

40-42, 56. Others relate to groups that plaintiffs have not shown meet the requirements of

associated forces, including Hamas and the Kongra-Gel. See Hedges Aff. 14, 17, 19-20;

Tr. 170-72. Such groups do not qualify as associated forces simply because they commit

acts of terrorism. Govt Mem. 24 n.13. OBrien and Hedges few remaining activities are

limited to OBriens journalistic activities concerning detainees at Guantanamo Bay, see

OBrien Aff. 6-8, 27-28; Tr. 70-71, 77, and Hedges after-the-fact reconstructs of how

al-Qaeda planned and executed specific attacks and other news reports, see Hedges Aff.

15-16; Tr. 157-58, 183-85. The connection between these activities and al-Qaeda, the

Taliban, and associated forces is too attenuated to support a credible fear of

enforcement.

Wargalla testified that Revolution Truth conducts online live panel discussions, and10

that, in the future, it may refrain from inviting members of Hamas to participate in these

discussions. See Tr. 117, 125, 141-42. Plaintiffs, however, have not alleged or offered any

evidence to suggest that Hamas is a co-belligerent of al-Qaeda or the Taliban. See Govt

Mem. 24 n.13. Accordingly, this testimony is irrelevant. Moreover, even if Hamas were an

associated force, Wargalla acknowledged that Revolution Truth has never made any

concrete plans to have members of Hamas participate in panel discussions, Tr. 142, thus

rendering her testimony entirely speculative.

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3. The Presidents Signing Statement Precludes a Finding of Standing as toEither of the U.S. Citizen Plaintiffs

In the Signing Statement, the President made clear that my Administration will not

authorize the indefinite military detention without trial of American citizens. NDAA

Signing Statement, 2011 U.S.C.C.A.N. at S12. Accordingly, neither of the U.S. citizen

plaintiffs, OBrien and Hedges, can show imminent injury.

During the March 29, 2012, hearing (the PI hearing), the Court questioned whether

the signing statement left open the possibility that Hedges and OBrien could be tried

before a military commission. Tr. 237, 244. It does not. Under the Military Commissions

Act of 2009, the jurisdiction of the military commissions is limited by its express terms to

non-citizens, 10 U.S.C. 948c & 948a(1), and applies only to offenses committed in the

context of and associated with hostilities, id. 950p(c).

Finally, any speculation that a future president may reverse the current policy and

apply section 1021 against U.S. citizens, see Tr. 121-3, is insufficient to confer standing.

See Lujan, 504 U.S. at 560-61 (injury must be imminent, not conjectural or hypothetical

(emphasis added; quotation marks omitted)); City of Los Angeles v. Lyons, 461 U.S. 95, 104-

06, 108 (1983) (speculation that the police would take action against the plaintiff in the

future was insufficient to confer standing). President Obama has said that his

Administration will not apply section 1021 in a way that implicates Hedges or OBrien (and

as discussed below, infra Part B.4, there is nothing to suggest that section 1021 would be

applied against them in any event). Therefore, neither Hedges nor OBrien can establish

that they face a credible and imminent threat of enforcement under section 1021.

4. The Governments Enforcement History Under the AUMF and Section 1021Precludes a Finding That Any Plaintiff Has Standing

For years, the government has had (and has viewed itself as having) the detention

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authority that is now codified in section 1021. See Govt Mem. 5 & n. 4. And since well

before the NDAA, plaintiffs have been engaging in the same activities that they now claim

they fear will lead them to be deemed covered persons under section 1021. Indeed,

Hedges has been engaged in such activities for twenty years, Hedges Aff. 10; Jonsdottir

since early 2010, see Tr. 148-55; Wargalla since at least January 2011, see id. 133-34; and

OBrien since at least April 2011, seeid. 87.

Plaintiffs, however, have not identified a single instance in which the government has

exercised its detention authority under the AUMF or section 1021 against any of themor

anyone else who has engaged in the same type of conduct. In fact, OBrien and Wargalla

were unable to identify a single instance in which the U.S. government has taken, or

threatened to take, any action against them or the groups with which they are involved.

Tr. 90-93 (OBrien), 137 (Wargalla). And although Hedges testified that he was detained

for a few hours by military authorities on one occasion in 1991ten years before the

AUMF provided the authority at issue herehe admitted that this was because he had

been reporting outside of the press pool system, not because he had been providing support

for belligerents in an armed conflict with the United States. Id. 199-201.11

Nor did plaintiffs identify at the PI hearing a single instance in which the government

Hedges described one instance in which he was detained by non-military personnel.11

Hedges testified that shortly after 9/11, he was detained upon his arrival at Newark

Airport as a result of his purported inclusion on a watch list. Tr. 179-80. But Hedges also

testified that he was detained for only about one hour. Id. Moreover, Hedges has offerednothing to suggest that this short detention was the result of his journalistic activities

involving al-Qaeda, the Taliban, or associated forces. See id. In any event, this temporary

detentionwhich occurred approximately ten years agodoes not support a reasonable

fear of imminent enforcement, particularly since Hedges has continued to engage in the

same activities for the last ten years. Plaintiffs assertion (again without citation) that

Hedges testified that he has been repeatedly detained at airports, Pls. Post-Hrg. Mem. 25

(emphasis added), is unsupported and factually incorrect. Even if true, the assertion would

be irrelevant without information about the reasons for any such travel-related incidents.

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has exercised its detention authority under the AUMF or section 1021 against anyone for

engaging in independent journalistic activities or public advocacy. In fact, as government12

counsel represented during the PI hearing, the government has never taken the position

that a person could be made subject to its detention authority under the AUMF or section

1021 merely for engaging in independent journalistic activities or public advocacy, and it is

not taking a contrary position here. Tr. 233-34. The fact that the government has had the

authority now described in section 1021 for yearsand that plaintiffs have not identified a

single instance in which the government has sought to use that authority against any

individual for engaging in independent journalistic activities or public advocacyis

dispositive of the standing issue here: against this backdrop, plaintiffs cannot show that

they face a credible and imminent threat of having section 1021 applied against them.

C. Injunctive or Declaratory Relief Against Application of Section 1021 Would BeInconsistent with the Standards Required by Article III of the Constitution

During the PI hearing, the Court asked whether, if it were to find that section 1021

could be applied unconstitutionally, it could declare either that (1) the statute cannot

constitutionally be applied to First Amendment protected speech; or (2) the statute cannot

be applied to the conduct set forth in [plaintiffs] certifications. Tr. 291. The Court further

questioned whether it could give plaintiffs and others comfort that section 1021 will not

be applied in a way that captures protected speech. Id. 272-75. But many facially valid

statutes can be applied unconstitutionally. Speculating about that risk does not establish

standing. And where, as here, none of the plaintiffs has standing, the Court lacks the

authority to issue any kind of declaratory or injunctive relief.

OBrien stated, based only on a media-related blog, that Sami al-Hajj was detained12

for being a journalist. Tr. 104-05. That hearsay-based speculation (admitted only to show

OBriens state of mind, not for its truth) is entitled to no weight.

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As discussed above, plaintiffs have failed to establish that any plaintiff has standing,

supra Part B, and accordingly there is no justiciable case or controversy before the Court.

See Lujan, 504 U.S. at 560. In this context, in the absence of a case or controversy, a

declaration from the Court as to how section 1021 can or cannot be applied to their alleged

conduct would constitute an improper advisory opinion. See United States v. Leon, 203 F.3d

162, 164 (2d Cir. 2000) (declining to address the merits of the claim because there was no

case or controversy, and therefore any opinion [that the court] were to render on the

[merits] would be merely advisory); Laird v. Tatum, 408 U.S. 1, 13-14 (1972). The judicial

power may not be invoked to give comfort to those who lack standing but subjectively fear

enforcement of a federal law: no matter how much an advisory opinion would assist in

resolving conflicts or in the working out of policies and programs, or eliminating the

uncertainty of the application of federal lawin short, the comfort it would bring to

affected partiesit is still outside the power of the courts to issue. Helco Prods. Co. v.

McNutt, 137 F.2d 681, 684 (D.C. Cir. 1943); accord Laird, 408 U.S. at 13-14 (Allegations of

a subjective chill are not an adequate substitute for a claim of specific present objective

harm or a threat of specific future harm; the federal courts established pursuant to

Article III of the Constitution do not render advisory opinions. (quotation marks omitted)).

Issuing such an advisory opinion here would present especially acute harms, as doing so

would encroach on the prerogatives of coordinate branches on national security questions

at the heart of their constitutional authority, and could easily result in over-broad

pronouncements divorced from actual facts and cases, which may complicate the law or

misinterpret the scope of the law. See Allen v. Wright, 468 U.S. 737, 759-61 (1984)

(separation of powers principles counsel against finding standing in a case brought, not to

enforce specific legal obligations whose violation works a direct harm, but to seek a

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restructuring of the apparatus established by the Executive Branch to fulfill its legal

duties); Holder, 130 S. Ct. at 2727 (noting lack of competence on the part of the courts in

national security and need for deference to Executive branch (quotation marks omitted)).

For these reasons, the Court also lacks authority to issue a declaration that section

1021 cannot constitutionally be applied to First Amendment protected speech. Such a

declaration would be a purely advisory opinion where, as here, no plaintiff has standing.

Moreover, even if plaintiffs had standing to pursue an as-applied challenge, the Court still

could not declare the statute unconstitutional as to First Amendment protected speech in

general. The only circumstance in which the Court could reach conduct not at issue here

would be if plaintiffs had standing and the Court were to find that section 1021 is facially

invalid. See United States v. Faase, 265 F.3d 475, 487 n.10 (6th Cir. 2001) (The

appropriate remedy for [an] as-applied challenge would be to invalidate the statute as to

[the particular plaintiff].). But, as the government explained in its opening brief, even if

plaintiffs could establish standing, their facial challenge fails because the statute has a

plainly legitimate sweep, is not unconstitutional in a substantial number of its

applications, and at most leave[s] room for uncertainty [only] at [its] periphery. See

Govt Mem. 10-14 (quoting cases); infra at 24 note 19. In any event, this discussion is

purely academic. For the reasons set forth above, there is no justiciable case or controversy

before the Court, thus precluding the Court from granting any kind of relieffacial or as

applied.

D. Section 1021 Is Not Unconstitutional Under the Void-for-Vagueness Doctrine

1. Military-Force Authorization Statutes Are Not Susceptible to VaguenessAnalysis

Although the Court should not reach it, plaintiffs vagueness challenge also fails. As

explained in the governments opening memorandum, application of vagueness doctrine to

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section 1021 is misconceived, as the statute is a restatement and rearticulation of part of

a military-force authorization. Govt Mem. 14. Such authorizations of military force (which

encompass detention authority, Hamdi, 542 U.S. at 518) are always, and necessarily,

stated in general terms: given the constantly evolving nature of armed conflict, the13

governments ability to conduct military operations effectively and to succeed in its armed

conflicts requires flexibility and the ability to adjust to changing circumstances, including

the ability to identify hostile forces that were not involved at the outset or covered by

Congresss authorization. But despite the generality of historical authorizations of14

military force, no case has ever required Congress to enact such authorizations with any

particular level of specificity or to conform to the vagueness principles plaintiffs now

invoke. By extension, when Congress affirms one particular incident to war that is

included in a military-force authorization, Hamdi, 542 U.S. at 518, it similarly need not

conform to those vagueness principles.

Indeed, a military-force authorization is different in kind from the types of statutes

those that include the exaction of obedience to a rule or standard,A.B. Small Co. v.

American Sugar Refining Co., 267 U.S. 233, 239 (1925)to which vagueness principles

E.g., Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L.13

No. 107-243, 116 Stat. 1498; Authorization for Use of Military Force Against Iraq

Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991); Joint Resolution of Aug. 10, 1964, Pub. L.

No. 88-408, 78 Stat. 384 (Vietnam); Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795

(Japan); Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1 (Germany); Act of Apr. 25, 1898,

ch. 189, 30 Stat. 364 (Spain); Act of May 13, 1846, ch. 16, 9 Stat. 9 (Mexico); Act of June 18,

1812, ch. 102, 2 Stat. 755 (Britain).

For example, in the Second World War, the United States engaged in military14

operations against military forces of Vichy Franceeven though Congress had not

specifically authorized the use of military force against it and despite initially maintaining

diplomatic relations with its governmentbecause it was allied with Germany and

engaged in hostilities against Britain. See Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2111-12

(2005), and sources cited at nn.286-90.

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apply. Vagueness doctrine serves to give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited,Perez v. Hoblock, 368 F.3d 166, 174 (2d Cir. 2004),

but does not provide a basis for challenging a statute that does not prohibit any conduct,

Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001); accordLeDuc v. Tilley, No.

05cv157, 2005 WL 1475334 (D. Conn. June 22, 2005); United States v. Payden, 598 F. Supp.

1388, 1396 (S.D.N.Y. 1984), revd on other grounds, 759 F.2d 202 (2d Cir. 1985). Like any

military-force authorization that includes detention authority, section 1021 falls in the

latter category. It is not a criminal statute, as the Supreme Court has recognized: detention

of those engaged in hostilities against the United States serves to prevent them from

returning to the field of battle and taking up arms once again, and not as revenge [or]

punishment; it is devoid of all penal character, and the detainee is no convict. Hamdi,

542 U.S. at 518 (quotation marks omitted). Nor does it otherwise provide a rule or15

standard of conduct for any person outside the government. Under the law of war, it is

clear that those who engage in certain activities (in particular, joining an enemy force) may

be lawfully detained, and section 1021 affirms the governments authority to impose that

consequence in the present hostilities and states a definitional framework for doing so. But

it does not itself prohibit conductany more than the congressional resolution authorizing

military force against Germany in 1941 prohibited anyone from being part of the16

Wehrmacht, even though such a person was plainly subject to capture and detention. Id.;

Accordingly, the process accorded to a detainee need not meet standards for criminal15

trials.Boumediene, 553 U.S. at 783. Similarly, any scienter requirements are different,

contra Pls. Post-Hrg. Mem. 18; a conscripted member of an enemy force may undeniably be

detained.

Joint Res. of Dec. 11, 1941, ch. 564, 55 Stat. 796 (the President is hereby authorized16

and directed to employ the entire naval and military forces of the United States and the

resources of the Government to carry on war against the Government of Germany).

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In re Territo, 156 F.2d 142, 143-48 (9th Cir. 1946), cited inHamdi, 542 U.S. at 518-19, 524;

Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956). Just as the bail statute inPayden

establishe[d] a framework . . . to detain an individual but [did] not prohibit conduct, 598

F. Supp. at 1396; see Kinnell, 265 F.3d at 1128, section 1021 specifies a framework for

imposing lawful consequences without itself proscribing any acts.

Therefore, section 1021 cannot be said to run afoul of vagueness doctrine. In fact,

plaintiffs entire vagueness argument is built on a paradox. They could not challenge the

AUMF itself for vagueness, as that statute, consistent with historical authorizations of

military force, grants authority to the President and does not state any standard for or

prohibition of conduct. But the AUMF includes the governments detention authority,

Hamdi, 542 U.S. at 518, and for years the government has been applying that authority

against the United States enemies in armed conflict according to the definitional

framework that it has explained to the courts. According to plaintiffs theory, by codifying

that definitional frameworkand thus providing more notice to the public about what the

government may doCongress has created an issue of vagueness, which is rooted in the

due-process concept oflack of notice. See Holder, 130 S. Ct. at 2719; United States v.

Williams, 553 U.S. 285, 304 (2008). Thus if the AUMF stood alone, the government could

continue to apply the Executives definitional framework, but once Congress endorses that

framework it becomes unconstitutional. That position is internally contradictory, and

cannot prevail.

2. Section 1021 Is Not Impermissibly Vague

In any event, properly construed, section 1021 is not unconstitutionally vague. The

strong presumptive validity that attaches to an Act of Congress has led [the Supreme]

Court to hold many times that statutes are not automatically invalidated as vague simply

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because difficulty is found in determining whether certain marginal offenses fall within

their language. United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963).

Accordingly, perfect clarity and precise guidance have never been required even of

regulations that restrict expressive activity. Holder, 130 S. Ct. at 2719 (quotation marks

omitted); accordWilliams, 553 U.S. at 304. Words are incapable of mathematical

certainty, and no law is required to achieve meticulous specificity, which would come at

the cost of flexibility and reasonable breadth. Grayned v. City of Rockford, 408 U.S. 104,

110 (1972) (quotation marks omitted); accordBetancourt v. Bloomberg, 448 F.3d 547, 552

(2d Cir. 2006). Thus, even when criminal prosecutions are at issue, a statute is only

unconstitutionally vague when men of common intelligence must necessarily guess at its

meaning and differ as to its application. Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006)

(quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)). Phrases far less

definite than substantially support or associated forces have been held to be imprecise

. . . but . . . surely not incomprehensible, and thus to survive vagueness review. United

States v. Clark, 582 F.3d 607, 614 & n.11 (5th Cir. 2009) (quoting Coates v. City of

Cincinnati, 402 U.S. 611, 614 (1971), and listing phrases).17

In assessing a vagueness challenge, [t]he particular context is all important.

American Communications Assn v. Douds, 339 U.S. 382, 412 (1950). There is little doubt

that imagination can conjure hypothetical cases in which the meaning of [broad] terms will

Clark upheld immoral purpose, and (citing the list in Jordan v. DeGeorge, 341 U.S.17

223, 231 n.15 (1951)), noted other phrases held not to be vague: restraint of trade, crime

involving moral turpitude, in excess of the number of employees needed by such licensee

to perform actual services, any offensive, derisive or annoying word, connected with or

related to the national defense, psychopathic personality, willfully overvalues any

security, fair and open competition, reasonable variations shall be permitted,

unreasonable waste of natural gas, political purposes, range usually occupied by any

cattle grower.

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be in nice question. The applicable standard, however, is not one of wholly consistent

academic definition of abstract terms. It is, rather, the practical criterion of fair notice to

those to whom the statute is directed. Id. Thus, a statute must be construed as a whole,

and in light of narrowing context and settled legal meanings to ensure that it does not

call for untethered, subjective judgments. Holder, 130 S. Ct. at 2720.

Read as a whole and taken in context, section 1021 is clear enough to satisfy

constitutional requirements. As the government explained in its initial brief, it is tied to

the military action against al-Qaeda and Taliban forces authorized by the AUMF,

permitting certain detention (including of those whom Hamdi recognized could be

detained) and stating a definitional framework respecting the governments detention

authority established by the AUMF. All the terms of the provision are informed by this

context, and, as previously explained, principles of the law of war provide additional

interpretive context to the phrase substantially supported and others used in section

1021. Indeed, in the context of a statute affirming the detention authority contained in an

authorization of military force, one of plaintiffs own dictionary definitions jumps out as

obviously most relevant: ASSIST , HELP . Id.; http://

www.merriam-webster.com/dictionary/support. Although that definition of support lends

itself easily to the military example given, but has nothing to do with expression, plaintiffs

somehow contend that support must mean speech independent of al-Qaeda, the Taliban,

or associated forces. Pls. Post-Hrg. Mem. 23. Common sense and the context of the18

Nothing supports (in the non-expressive sense) plaintiffs view that support has a18

primary definition that must include expression. Indeed, the m-w.com dictionary

quotation they offer is the second of six definitions, and many of the sub-definitions there

are not, or not necessarily, speech-related.

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statute require otherwise.19

Although plaintiffs rely heavily on Reno v. ACLU, that case is easily distinguished. As

the Supreme Court observed, the statute at issue, banning indecent and patently

offensive material on the Internet, was a content-based regulation of speech, and the

vagueness of such a regulation raises special First Amendment concerns because of its

obvious chilling effect on free speech. 521 U.S. 844, 871-72 (1997). In sharp contrast,20

section 1021 is not only not a content-based regulation of speech, it is not a regulation of

speech at all. Moreover, the Reno statute was untethered to any context, simply announc-

ing a prohibition on expression; here, section 1021, as described above, is on its face an

affirmation of the authority upheld by the Supreme Court and contained in a preexisting

Plaintiffs facial vagueness challenge is completely meritless. [I]f a statute has a core19

meaning that can reasonably be understood, then it may validly be applied to conduct

within the core meaning, and the possibility of such a valid application necessarily means

that the statute is not vague on its face.Brache v. Westchester County, 658 F.2d 47, 51 (2d

Cir. 1981). That section 1021 has a reasonably understandable core meaningto detain

and incapacitate those who engage in hostilities against the United Statesis beyond any

serious question. Govt Mem. 10-12.Similarly, the overbreadth challengea variant of plaintiffs facial challengefails as

well. Govt Mem. 13-14. In their supplemental brief, plaintiffs repeatedly misrepresent the

law, e.g., Pls. Post-Hrg. Mem. 21-22 (overbreadth does not typically arise where the

statute is focused upon protected speech, contraVirginia v. Hicks, 539 U.S. 113, 124

(2003) ([r]arely, if ever, will an overbreadth challenge succeed against a law or regulation

that is not specifically addressed to speech or to conduct necessarily associated with

speech)); id. 22 (describing Holder as reasoning that nothing in [statutes] definitional

provisions contained any reference to protected speech, contraHolder, 130 S. Ct. at 2723-

24 ( 2339B regulates speech on the basis of its content)).

Finally, plaintiffs suggest that the substantive constitutional standard is different for

facial and as-applied challenges. Pls. Post-Hrg. Mem. 24 (the test for as applied uncon-stitutionality . . . .). That is wrong: Facial and as-applied challenges differ in the extent to

which the invalidity of a statute need be demonstrated (facial, in all applications; as-

applied, in a personal application). Invariant, however, is the substantive rule of law to be

used.Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 228 (2d Cir. 2006).

In one instance, plaintiffs cite not the holding ofReno, but the Courts description of20

what one of the members of the three-judge district court had written. Pls. Post-Hrg. Mem.

10.

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statute authorizing the use of military force against those who had attacked the United

States, and all its words and phrases take meaning from that setting. Similar factors

distinguishAshcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002). Plaintiffs also point

to the narrowing definitions the Supreme Court cited in upholding the material-support

statute in Holder. Pls. Post-Hrg. Mem. 18-19; 130 S. Ct. at 2720. But narrowing context

may serve the same function, 130 S. Ct. at 2720, as it does here, and while statutory

definitions mitigated possible vagueness in Holder, nowhere did the Court say that such a

definitional section is necessary for a statute to be saved from constitutional challenge.

Read as a whole and in context, section 1021 cannot reasonably be seen as vague, and

easily survives plaintiffs constitutional challenge.

Conclusion

The motion for a preliminary injunction should be denied.

Dated: New York, New York Respectfully submitted,

May 4, 2012

PREET BHARARA

United States Attorney for the

Southern District of New York

By: /s/ Benjamin H. Torrance

BENJAMIN H. TORRANCE

CHRISTOPHER B. HARWOOD

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Telephone: 212.637.2703, .2728

Fax: 212.637.2702

E-mail: [email protected]

[email protected]
