Hedges v. Obama

Preliminary injunction against enforcement of § 1021(b)(2) of the NDAA

A federal court in New York City issued an order blocking the indefinite detention powers of the NDAA for American citizens after finding it unconstitutional. On May 16, 2012, in response to the lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others,^[38] US District Judge Katherine B. Forrest ruled in a 68-page opinion that Section 1021 of the NDAA was unconstitutional because it violates the 1st and 5th Amendments. Judge Forrest agreed with the plaintiffs that § 1021(b)(2) of the NDAA was "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," also noting that the United States government "did not call any witnesses, submit any documentary evidence or file any declarations" in the case, and that "the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021," putting them at risk.^[39]

Judge Forrest therefore issued a preliminary injunction which prevented the US government from enforcing section 1021 of the NDAA's "Homeland Battlefield" provisions pending further order of the court or an amendment to the statute by US Congress.^{[39][40][41][42]} "There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in granting the temporary injunction. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention."^[12]

Judge Forrest chided the U.S. Government for the handling of the case. Judge Forrest provided the U.S. government "with prompt notice in the form of declarations and depositions of the ... conduct in which plaintiffs are involved and which they claim places them in fear of military detention."^[43] But in return no witnesses were called nor any documentary evidence submitted nor any declarations filed by the U.S. government according to Forrest.^[43] "It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not," she said.^[43] Forrest went on: "To put it bluntly, to eliminate these plaintiffs' standing simply by representing that their conduct does not fall within the scope of 1021 would have been simple. The government chose not to do so – thereby ensuring standing and requiring this court to reach the merits of the instant motion."^[43] According to Forrest plaintiffs demonstrated "a more-than-plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment."^[43] Forrest observed and concluded:

The government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs – or others – are not within [paragraph] 1021. It did not. This court therefore must credit the chilling impact on 1st Amendment rights as reasonable – and real.^[43]

Judge Forrest was requested by the Obama administration to undo her ruling.^[44] In a footnote of the request, the Administration claimed "The government construes this Court's Order as applying only as to the named plaintiffs in this suit".^[45] In an opinion and order^[46] filed June 6, 2012, Judge Forrest clarified her statement, saying that her injunction applies not just to the named plaintiffs in the suit, contrary to government's narrow interpretation. She wrote, "Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress ... This order should eliminate any doubt as to the May 16 order's scope". The detention provision was not blocked for any persons connected to the September 11 attacks,^[44] as Section 1021(b)(1), which essentially restates the scope of the AUMF, was not blocked.^[47]

U.S. government appeal of preliminary injunction

The U.S. government appealed Judge's Forrest preliminary injunction which prevents the U.S. government from enforcing section 1021 of the National Defense Authorization Act's "Homeland Battlefield" provisions on August 6, 2012. The Manhattan U.S. Attorney's office, which represents the government in this case, along with named defendants Obama and Defense Secretary Leon Panetta filed its notice of appeal with the 2nd U.S. Circuit Court of Appeals. The federal government argues in its appeal that in cases dealing with "militants" and those offering "substantial support" to them indefinite detention without due process is appropriate.^[12][48] On November 6, 2012, the U.S. government noted that "[g]iven the district court's entry of a permanent injunction, the government's appeal of the preliminary injunction ... is moot". See page 12 in^[49]

Permanent injunction against enforcement of § 1021(b)(2) of the NDAA

A hearing on the plaintiffs' motion for a permanent injunction of the indefinite detention provisions of the NDAA came before Judge Forrest on August 7, 2012.^[50]

On September 12, 2012, U.S. District Judge Katherine Forrest granted the plaintiffs' motion for a permanent injunction of § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 in a 112-page opinion. The permanent injunction issued by Judge Forrest barred the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they "substantially supported" Al Qaeda or its allies — at least if they had no connection to the September 11 attacks. Forrest held that the law's definitions of "substantially supported" and "associated forces" were unconstitutionally vague in that a reporter or activist could not be sure they would not be covered under the provision if they worked with a group deemed to be associated with terrorists, or perhaps circulated the message of an associated individual by printing an interview. Forrest acknowledged the importance of the government's efforts to safeguard the country from terrorism, but ruled that the law's broad language violated First Amendment right to free speech, as well as the Fifth Amendment and Fourteenth Amendment right to due process that holds that a person must be able to understand what actions would subject them to penalties.^{[51][52][53][52][54][55]}

Forrest wrote: "First Amendment rights are guaranteed by the Constitution and cannot be legislated away. This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."^[56] "When the government was asked by the court what the words 'substantially supported' mean, it was unable to provide a definition; the same was true for 'directly supported,'" she wrote in her order, which makes the preliminary injunction permanent. "There can be no doubt, then, these terms are vague."^[57] That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.^[57]

A key question throughout these proceedings has been..precisely what the statute means—what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity—and that specificity is absent from Section 1021(b)(2). Understanding the scope of Section 1021(b)(2) requires defining key terms.^[58]

Forrest also rejected the US government's position that federal courts should provide habeas corpus, rather than judicial, review to military detainees as "without merit" and "dangerous".^[57] The government argued that the issue is not the court's business and that courts could consider individual habeas corpus petitions from prisoners who have been detained. "That argument is without merit and, indeed, dangerous," wrote Judge Forrest. "Habeas petitions (which take years to be resolved following initial detention) are reviewed under a 'preponderance of the evidence' standard (versus the criminal standard of `beyond a reasonable doubt') by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous."^[59] "If only habeas review is available to those detained…even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated," she wrote. "No court can accept this proposition and adhere truthfully to its oath."^[59]

Forrest refused to "abdicate" her duty to protect constitutional rights out of deference for executive power.^[57] "Courts must safeguard core constitutional rights," she wrote.

A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases – primarily decided during World War II – in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.^[57]

The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.^[57]

The court is mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch's expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security ... Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold.^[57]

Forrest declared that the NDAA cannot be used to hold people in indefinite military detention on suspicion of having "substantially supported" al-Qaeda or its allies.^[13] "The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity – it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."^[56] Forrest also argued that in passing the law, Congress had dramatically expanded the categories of people that can be detained.^[60] The U.S. government had argued that the NDAA was a reassertion of powers provided by Congress in the 2001 Authorization for Use of Military Force, which targeted perpetrators of the September 11 attacks and those who helped them. Judge Forrest said the new measure was broader, because it covered people beyond those connected to the 9/11 attacks.^[54]

In sum Judge Forrest ruled:

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

This Court has stated its position, as directly presented to it by the Government, that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly supporting" the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.^[61]

In her permanent injunction order Judge Forrest invited Congress to examine whether it needed the NDAA at all, or whether it wanted to fix what she had found to be its "deficiencies." As of December 12, 2012 Congress did not respond.^[62]

U.S. government appeal and stay of permanent injunction

On September 13, 2012 federal prosecutors in Manhattan, acting on behalf of the U.S. government, appealed the judge's permanent injunction.^[63][3][6] In court papers on September 14, 2012, they also asked the judge to immediately freeze her order until it is taken up by the 2nd U.S. Circuit Court of Appeals in New York.^{[3][5][7][64]} More precisely the U.S. government sought both an immediate temporary stay on Judge Forrest's September 12, 2012 ruling so that the matter can be argued, and a permanent one lasting until higher courts resolve the case.^[60]

In their court papers on September 14, 2012^[65] government lawyers said the plaintiffs had no basis to fear being locked up for their activities, and that the judge's order interfered with the president's powers at a time of war.^[3] Government attorneys argue that the executive branch is entitled to latitude when it comes to cases of national security and that the law is neither too broad nor overly vague.^[3] Judge Forrest's opinion is "unprecedented, and the government has compelling arguments that it should be reversed," prosecutors said. They called the permanent injunction an "extraordinary injunction of worldwide scope."^[3] Lawyers for the Obama administration also argued that the United States will be irreparably harmed if it has to abide by a judge's ruling that it can no longer hold terrorism suspects indefinitely without trial in military custody.^[60] The government said that the injunction was an "unprecedented" trespass on power of the president and the legislature that by its very nature was doing irreparable harm.^[60] They also argued that the injunction places an undue burden on military commanders in a time of war while the plaintiffs had no reasonable fear of ever being detained "in the foreseeable future."^[60]

The Court's injunction against application of section 1021 'in any manner, as to any person,' ... combined with its mistaken view that section 1021 goes beyond reaffirming the authority contained in the AUMF, could impose entirely unjustified burdens on military officials worldwide, complicating the ability to carry out an armed conflict authorized by Congress in the public interest ... Given the absence of any risk of impending harm to plaintiffs, the serious injury to the government and the public interest in the invalidation of a statute enacted by public representatives, and the possible effect on an ongoing armed conflict and the Executive's prerogatives in military affairs, a stay is necessary.^[60]

Judge Forrest denied on September 14, 2012 the government's request for an immediate stay of her injunction^{[5][7][60][66]} so that § 1021(b)(2) of the NDAA law cannot currently be used and said she would rule on September 19, 2012 on whether to suspend it from then on.^[3][60] At that juncture the U.S. Justice Department said it would not wait until September 19, 2012 and will file emergency papers on September 17, 2012 morning.^[55][67]

The U.S. Department of Justice (DOJ) had asked on September 17, 2012 the U.S. Second Circuit Court of Appeals to place an emergency stay on the permanent injunction made by Judge Forrest on September 12, 2012 so that the U.S. president's power to indefinitely detain without charge people accused of providing substantial support to terrorist groups is reaffirmed immediately.^{[68][69][70][71][72]} The Justice Department wanted the U.S. Second Circuit Court of Appeals to put the judge's ruling on hold while they challenge her decision on appeal.^[68][73] The DOJ contended that Judge Katherine Forrest's ruling incorrectly interpreted the Authorization for Use of Military Force (AUMF).^[72] The Justice Department also said Forrest's decision not only invalidated the NDAA, but went further: rejecting the White House's long-standing interpretation of the President's and the military's authority to detain terror suspects.^[68] In a 42-page court filing,^[74] the government argued that "the district court expressly invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with the court's deeply flawed understanding of the scope of that authority" and that "the order "threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict."^[68]

2012-09-17 Emergency stay order and further developments

The U.S. Department of Justice (DOJ) had asked on September 17, 2012 the U.S. Second Circuit Court of Appeals to place an emergency stay on the permanent injunction made by Judge Forrest on September 12, 2012^[15][68][70] The Justice Department wanted the U.S. Second Circuit Court of Appeals to put the judge's ruling on hold while they challenge her decision on appeal.^[68][73] This request by the DOJ was granted on September 17, 2012 when a single federal appeals court judge put a temporary hold on the district court judge's permanent injunction ruling made by judge Katherine Forrest on September 12, 2012.^{[4][14][16][58][75][76]} U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order^[77] by which he granted the Justice Department's request for an interim stay of the permanent injunction in Hedges, pending the Second Circuit's consideration of the government's motion to stay the injunction throughout its appeal. Judge Lohier's order further said that a Second Circuit motions panel will take up the government's motion for stay pending appeal on September 28, 2012.^[14] Lohier offered no explanation or rationale for the interim stay.^[75] The Lohier order basically a.) temporarily stayed Judge Forrest's 2012-09-12 ruling^[78] b.) puts the whole matter i.e. the permanent injunction on hold^[58][79] c.) allows enforcement of the blocked NDAA section pending appeal^[72] and d.) means that the interim stay will remain in effect until at least September 28, 2012 when a three judge panel of the Second Circuit is expected to begin addressing the issue of a longer-term stay^[80](The September 28, 2012 hearing won't go over the merits of the case, but only deal with the U.S. government's motion to stay the permanent injunction throughout its appeal of the permanent injunction.).^[81] The appeal of the permanent injunction date is not yet set.^[80]

Procedurally, the Lohier order also seemed to obviate an earlier stay motion (i.e. an "stay" pending Judge Forrest's resolution of the government's request to stay her injunction during the government's appeal to the Second Circuit),^[82] which the government filed in the district court—but which the district court said it would not resolve until September 19, 2012.^[14][82] Court papers clarified later this issue. The lawyers for Hedges & Co, Carl J. Mayer and Bruce I. Afran, wrote on September 27, 2012:

The district court ... never ruled on the government's motion for a stay pending appeal because the Government insisted to the District Court judge that if the judge did not grant an interim stay, it would immediately seek an interim or administrative stay from the Second Circuit Court of Appeals. This demand was made by letter on Friday, September 14, 2012 after Judge Forrest granted a permanent injunction on Wednesday February 12, 2012. Though Judge Forrest denied the government's request for what the government originally in its papers described as an "interim" stay (now characterized as an "administrative" stay) of the injunction, Judge Forrest issued an order by email on Friday, September 14 informing the government and all parties that she would decide the government's motion for a stay pending appeal on Wednesday, September 19, 2012 and setting a briefing schedule for all parties. The government neglected to inform this Court of that fact ... After neglecting to inform this Court of that development, the government sought both an administrative stay and a stay pending appeal from this Court and this Court granted an interim stay on September 17, 2012. Because of the government's action and this Court's decision, Judge Forrest concluded that she could not rule on a stay pending appeal.^[83]

The U.S. government dismissed this neglect allegation by putting forward an email from Judge Forrest to Bruce Afran. Four days after Forrest's 2012-09-14 Mail Forrest informed on September 18, 2012 Bruce Afran by email that "All issues, including the stay, are now before the Second Circuit. Nothing further should be filed in this Court until further notice."^[84]

Carl Mayer, a lawyer for Hedges, said it was "astounding" that Lohier's order was issued before evidence was presented. "The government hasn't put in any evidence. They just keep making these broad assertions," Mayer said. "It's all a 'trust us' proceeding."^[85] Mayer stated however also that the Second Circuit order was procedural and "we are confident the district court opinion will be vindicated."^[4] Jerika Richardson, a spokeswoman for the U.S. Attorney's office in Manhattan, declined to comment.^[4][85]

One day before the September 28, 2012 U.S. Second Circuit Court of Appeals hearing, Hedges asserted in a Reddit question-and-answer session: "I suspect, that U.S. citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home."^[86][87]

2012-10-02 Stay pending appeal order and further developments

A three-judge motions panel of the Second Circuit considered on September 28, 2012, the U.S. government's motion to stay the injunction throughout its appeal.^[88] First the plaintiffs stated their opposition to the U.S. government's stay motion on September 27, 2012^[89][90][91] and the U.S. government replied to it on September 28, 2012.^[91][92] On October 2, 2012, the Second Circuit Court of Appeals ruled that the ban on indefinite detention will not go into effect until a decision on the Obama Administration's appeal is rendered.^{[93][62][94][95][96]} The appeals court ruled that, since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of the NDAA, it was unnecessary to block the enforcement of § 1021(b)(2) of the NDAA.^[8] The court said it would consider arguments in the case on an "expedited schedule" and extended the stay pending its decision.^[17] Judges Denny Chin, Raymond Lohier and Christopher Droney said all legal briefs must be submitted by mid-December. Oral argument would be scheduled soon after, the judges said.^[17]

"On its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States," the 2nd Circuit judges wrote in their October 2, 2012 order. "The public interest weighs in favor of granting the government's motion for a stay."^[17] The judges continued:

First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, 'based on their stated activities,' plaintiffs, 'journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.'

Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States. See NDAA § 1021(e) ('Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.').

Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force ...^[97][98][99]

Carl Mayer, an attorney for the plaintiffs, said they disagree with the decision to stay the case but that "the appeals court is obviously taking this very seriously."^[17]

The government filed its opening brief^[49] November 6, 2012 in Hedges v. Obama before the Second U.S. Circuit Court of Appeals.^[100] The U.S. government stated that the plaintiffs lack standing because they've never been detained and face no threat of detention. In its brief the government also criticized Judge Forrest for her interpretation of the term "associated forces". "The term is well understood to cover cobelligerent groups that fight together with al-Qaeda or Taliban forces in the armed conflict against the United States," and it is not and cannot be "read to cover the types of unarmed advocacy organizations involved in this suit," the defendants said.^[100] They also noted that none of the plaintiffs allege having a fear of detention, nor have they offered any evidence of the U.S. military detaining journalists or advocates.^[101] "There is no actual or imminent injury to be redressed," the brief said.^[100] The defendants added that there is no precedent for hearing a lawsuit to block the president in advance from conducting an armed conflict using congressionally conferred authority.^[100] The government also argued that war authorizations have historically been broad and that section 1021(b)(2) is more specific than other authorizations, therefore it should not be subject to a First Amendment or due process vagueness challenge.^[102]

The lawyers for Hedges filed their appeal brief on December 10, 2012.^[103][104] After the passage of the National Defense Authorization Act for Fiscal Year 2013 by the U.S. House of Representatives Chris Hedge wrote with respect to the lawsuit: "The fate of some of our most basic and important rights—ones enshrined in the Bill of Rights as well as the Fourth and Fifth amendments of the Constitution—will be decided in the next few months in the courts. If the courts fail us, a gulag state will be cemented into place."^[105] He further voiced his opinion, provided that the Second Court of Appeals upholds Judge Forrest's ruling, the case will most likely be before the Supreme Court within weeks.^[105]

2013-02-06 Oral arguments hearing and further developments

Oral arguments in the case were heard before the Second Circuit Court of Appeals on February 6, 2013.^[106] The dominating topic during 2nd Circuit hearing were press rights.^[20] According to Attorney Bruce Afran the three-judge panel of the Second Circuit (composed of the judges Raymond J. Lohier, Lewis A. Kaplan and Amalya Lyle Kearse)^[107][108] conducting the hearing challenged the government to prove that the NDAA provision is nothing more than an "affirmation" of the laws regarding indefinite detention already established by Authorization for Use of Military Force.^[19] US government attorney Robert Loeb claimed that journalists had nothing to fear from the NDAA because it represented no change in law since the Sept. 11, 2001, attacks. Loeb claimed that "existing law" in NDAA Section 1021(e) (which states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.") is reflected in the Authorization to Use Military Force.^[20] Loeb however stated that independent journalists would be treated as enemy combatants, if there was evidence independent journalists were only using journalism as a cover and were in fact members of a designated enemy group.^[109] He however didn't explain to the court who defines an "independent journalist."^[108]

According to Loeb, U.S. citizens are exempted from detention by subsection 1021(e) of the NDAA.,^[108][110] but Judge Lohier expressed skepticism by saying that the subsection "doesn't exempt anything" since it claimed not to change the law.^[110] In speaking to the court Afran said of 1021(e): "It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?"^[108] This was a question Judge Lohier, at Afran's urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.^[108]

The lawyers for the Hedges group noted that under the NDAA provision, a number of ostensibly protected activities could fall under the bill's ill-defined "substantial support" for terrorism language. "For example, raising money for Guantanamo inmates. Is that substantial support? … Hosting a webcast with al-Qaida members. Is that substantial support?" asked Afran.^[19] The government arguments stressed that it was "not reasonable" for independent journalists or activists to expect detention under NDAA.^[19] "We have about a decade of experience, and we have nobody being held for acts of independent journalism," Loeb said.^[20] He said that this is the reason for plaintiff's lack of standing i.e. the plaintiffs had failed to show an "objectively reasonable fear of being placed in long-term detention."^[107] Justice Department attorney Robert M. Loeb claimed the journalists/activists bringing the case have to demonstrate "injury" or "active injury." They have not demonstrated that they will be detained indefinitely by the military in the immediate future so they should not be able to bring their case.^[111] But the plaintiff's lawyers rejected this. They argued plaintiffs had legal standing to challenge Section 1021(b)(2) of the National Defense Authorization Act of 2012 because it interfered with their right to free speech by creating a basis to fear that they might be placed in military detention on the basis of their activities.^[107]

A critical issue in the lawsuit has been what the words "substantially supported" mean in the provision because the government claims it can detain people who are suspected of "substantially supporting" Al Qaeda. Loeb said the AUMF provided detention authority and then, after Lohier asked a follow-up, he said the question about whether the AUMF granted authority to detain "substantial supporters" would be subject to further litigation.^[111] A representative from Congress sent by U.S. Senator Lindsey Graham and U.S. Senator John McCain stepped up to provide testimony on why Congress had passed the NDAA and included the "substantially supported" provision. The representative suggested that it is typical for Congress to use words that are "general in nature" so that the Executive Branch can have the latitude to decide how to interpret them.^[111] One critical issue was addressed by the judges, as Lohier took the opportunity to ask if this was the first time Congress had passed a law "affirming an already existing authority" involving detention. The representative said yes.^[111]

While the case was pending in the Second Circuit, the Supreme Court ruled on Clapper v. Amnesty International USA in February 2013, prompting the U.S. government to file a Rule 28(j) letter arguing that, like the Clapper plaintiffs, the Hedges plaintiffs could not "establish a present or 'certainly impending' injury-in-fact" and that the NDAA's detention provisions, like the NSA warrantless wiretapping authorization, merely permitted rather than required the government to take a particular action. Thus, Clapper required the Second Circuit to dismiss the Hedges suit on standing grounds, the government contended.^[112][113] The Hedges plaintiffs responded in mid-March, requesting additional briefing and oral argument on the effect of Clapper and arguing that (1) Clapper had "factual and legal predicates differ dramatically from those in the instant appeal and have only superficial similarities to Hedges," in that the NDAA, unlike the statute at issue in Clapper was "self-executing [and] does not require the government to seek permission of an independent body [i.e., the FISA court] before acting under its provisions.<; the Second Circuit explicitly found that the plaintiffs fell under the scope of the detention provisions, whereas "the Clapper plaintiffs . . . were never the intended targets of the [warrantless wiretapping] act"; and (3) the NDAA implicated First Amendment speech rights in a way that the statute at issue in Clapper did not.^[114][112] The government responded on April 4, 2013,^[115] arguing that Clapper clearly requires the Second Circuit to dismiss Hedges for lack of standing, and that in any case the government's Rule 28(j) letter and the Hedges plaintiffs' response provides all the supplemental briefing that may be necessary.^[112]

2013-07-17 Ruling

The Second Circuit Court of Appeals overturned in 3-0 ruling on July 17, 2013 Judge's Forrest ruling which struck down § 1021(b)(2) of the controversial U.S. military-detention law NDAA as unconstitutional because the plaintiffs lacked legal standing to challenge it.^{[23][116][117][118]} The Court of Appeals overturned Forrest's decision in a 60-page ruling^[119] and lifted her injunction, saying that Christopher Hedges and another plaintiff weren't eligible to challenge the law because it "simply says nothing about the government's authority to detain citizens."^[23] The court held that under their interpretation the government could not use the particular law challenged by the citizen plaintiffs to militarily detain them, so they had no basis for the court to hear their case. But the court acknowledged that this doesn't mean that the government could not rely on other laws, including the AUMF to the events of September 11, to justify indefinite military detention of citizens.^[120] The court concluded that the non-citizen plaintiffs had no reasonable fear of being detained and thus could not have their challenge of the law adjudicated by the court.^[120] "And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021," the court said.^[23]

The appeals court wrote that Hedges and his American co-plaintiffs lack standing to challenge the indefinite detention provisions since a subsection of that rule, 1021(e), prohibits U.S. citizens from being detained under the NDAA:

We recognize that Section 1021 perhaps could have been drafted in a way that would have made this clearer and that the absence of any reference to American citizens in Section 1021(b) led the district court astray in this case. Perhaps the last-minute inclusion of Section 1021(e) as an amendment introduced on the floor of the Senate explains the somewhat awkward construction. But that is neither here nor there. It is only our construction, just described, that properly gives effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.^[25]

Section 1021(e) of the NDAA, quoted by the Court, provides:

Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.^[25]

The court thus ruled that "Section 1021(e) provides that Section 1021 just does not speak—one way or the other—to the government's authority to detain citizens, lawful resident aliens, or any other persons captured or arrested in the United States."^[25]

Therefore, the Court, said:

We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President's AUMF authority includes the authority to detain those responsible for 9/11 as well as those who were a 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.^[25]

The appeals court acknowledged that the non-citizen plaintiffs—Iceland's Jónsdóttir, co-plaintiff Kai Wargalla of Germany and other foreign persons—could be detained indefinitely under the NDAA.

The claims of Jonsdottir and Wargalla stand differently. Whereas Section 194 says nothing about the government's authority to detain citizens, it does have real meaning regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad. It provides that such individuals may be detained until the end of hostilities if they were part of or substantially supported al-Qaeda, the Taliban, or associated forces. ...
The record demonstrates a number of ways in which the government has concluded, or would have a basis to conclude, that WikiLeaks has provided some support to al-Qaeda and the Taliban. This includes the evidence that the government is prosecuting Manning for aiding the enemy by his releases to WikiLeaks and news articles in the record or cited by the Jonsdottir declaration reporting on the immense amount of classified information that WikiLeaks made public, much of which is related specifically to the government's military efforts against al-Qaeda and the Taliban. One perhaps might fear that Jonsdottir's and Wargalla's efforts on behalf of Wiki-Leaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well...
The government rejoins that the term "substantial support" cannot be construed so in this particular context. Rather, it contends that the term must be understood—and limited—by reference to who would be detainable in analogous circumstances under the laws of war... The government then contends that individuals like Jonsdottir and Wargalla are civilians who are not detainable under these law-of-war principles and so cannot reasonably fear detention under Section 1021.^[25]
In these circumstances, we are faced with a somewhat peculiar situation. The government has invited us to resolve standing in this case by codifying, as a matter of law, the meaningful limits it has placed on itself in its interpretation of Section 1021. We decline the government's invitation to do so. Thus, we express no view regarding whether the laws of war inform and limit detention authority under Section 1021(b)(2) or whether such principles would foreclose the detention of individuals like Jonsdottir and Wargalla. This issue presents important questions about the scope of the government's detention authority under the AUMF, and we are wary of allowing a preenforcement standing inquiry to become the vehicle by which a court addresses these matters unless it is necessary. Because we conclude that standing is absent in any event, we will assume without deciding that Section 1021(b)(2) covers Jonsdottir and Wargalla in light of their stated activities.^[25]

Rather, the court focused on the "threat of enforcement" against the foreign plaintiffs and found that:

plaintiffs have provided no basis for believing that the government will place Jonsdottir and Wargalla in military detention for their supposed substantial support. In all the circumstances, plaintiffs have not shown a sufficient threat of enforcement to establish standing. Moreover, they cannot "manufacture standing" based on any present injuries incurred due to their expressed fears.^[25]

The Court thus concluded:

We conclude that plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction.The American citizen plaintiffs lack [Article III] standing because Section 1021 says nothing at all about the President's authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021. Accordingly, we do not address the merits of plaintiffs' constitutional claims.^[25]

U.S. District Judge Lewis Kaplan, who sat with the 2nd Circuit by designation and wrote the decision, said section 1021 nonetheless "does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens," citing as an example Yaser Esam Hamdi, a U.S. citizen detained after allegedly fighting alongside the Taliban in Afghanistan in 2001.^[116] The 2nd Circuit vacated the permanent injunction returned the case to Forrest for further proceedings consistent with its ruling.^[116]

Bruce Afran, a lawyer for Hedges, said the ruling "continues a distressing trend in which American federal courts are refusing to rule in cases where the U.S. government is over-reaching and violating civil liberties."^[116] The Manhattan U.S. Attorney's Office, which represents the government in the case, declined to comment.^[116]

Plaintiffs' motion to vacate temporary stay of permanent injunction

On December 12, 2012, Hedges and the other plaintiffs in the case filed "Emergent Application to Vacate Temporary Stay of Permanent Injunction," seeking to vacate the Second Circuit's stay of the permanent injunction (i.e., to reinstate District Judge Forrest's September 12, 2012 order, permanently enjoined enforcement of NDAA § 1021(b)(2)). The motion was submitted to Justice Ruth Bader Ginsburg, who considered it in her role as "circuit justice" for reviewing such motions from the Second Circuit.^{[121][122][62][123]}

On December 14, 2012, Justice Ginsburg denied the motion, citing Doe v. Gonzales, which states that the Court should hesitate to interfere with an appeals court that was proceeding on an expedited schedule to review a ruling against a federal law, and that, in any event, the Court should be cautious when such a law had been nullified in a lower court.^{[124][125][18]}

On December 21, 2012, the plaintiff's refiled their Emergent Application to Vacate Temporary Stay of Permanent Injunction (Application 12A600), submitting it to Justice Antonin Scalia. The motion was referred to the entire Court, which considered it at its January 16, 2013 conference. On February 19, 2013, the application was denied again.^[21][22]

Petition for a writ of certiorari

On September 2, 2013, Hedges announced the plaintiffs would file a petition for a writ of certiorari in the Supreme Court, asking that court to review the Second Circuit's July 13, 2013, in the Supreme Court, writing in his Truthdig column entitled "Last Chance to Stop the NDAA" that "I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the [NDAA] that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities ... If Section 1021 stands it will mean, as Forrest pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention." ^[126]

The U.S. government filed in March 2014 a brief in opposition to the plaintiff's petition for a writ of certiorari.^[127] Hedges responded to this that he and his attorneys would respond within 10 days.^[128]

The Supreme Court denied certiorari in an order issued April 28, 2014.^[1][24]

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