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PART 1 OF 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,
Plaintiffs,
-v-
BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA,
Defendants.
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12 Civ. 331 (KBF)
OPINION AND ORDER
KATHERINE B. FORREST, District Judge:
On May 16, 2012, this Court preliminarily enjoined enforcement of § 1021(b) of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011)(“the NDAA”). See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting preliminary injunction) (the “May 16 Opinion”). On June 6, 2012, in response to a footnote contained in the Government’s [1] motion for reconsideration suggesting an unduly narrow interpretation of that ruling, this Court issued a summary order stating that the injunction was intended to--and did apply to--any and all enforcement of § 1021(b)(2), not simply to plaintiffs in this lawsuit.
[2] See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565, at *1 (S.D.N.Y. June 6, 2012) (summary order). On June 8, 2012, the parties agreed that neither side would seek to add to the evidentiary record presented in support of the preliminary injunction and that they would proceed directly to a hearing on plaintiffs’ request for a permanent injunction. (See Order (June 8, 2012) (Dkt. No. 43) at 1.) Accordingly, the parties submitted additional legal memoranda but no additional factual materials.
On August 7, 2012, the Court held oral argument on the request for a permanent injunction (the “August hearing”). At the commencement of that argument, the Court confirmed that the parties agreed that the evidentiary record developed at the March 29, 2012, preliminary injunction hearing (the “March hearing”) would constitute the trial record for this matter. Hr’g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt. No. 59) (“Tr. II”) at 3. The Court bases its findings of fact on that record.
For the reasons set forth below, this Court grants plaintiffs’ motion and permanently enjoins enforcement of § 1021(b)(2) of the NDAA (referred to herein as “§ 1021(b)(2)”).
I. SUMMARY OF OPINION
Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).
At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known--and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court’s May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.
In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not--and does not--generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.
A key question throughout these proceedings has been, however, 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 § 1021(b)(2).
Understanding the scope of § 1021(b)(2) requires defining key terms. At the March hearing, the Government was unable to provide definitions for those terms. The Government had prior notice of precisely which terms were at issue based upon allegations in the complaint, declarations, depositions, the briefing and oral argument. In particular, plaintiffs commenced this lawsuit asserting--and they continue to assert--that the phrases “associated forces,” “substantially supported,” and “directly supported” all are vague. Indeed, even after this Court’s May 16 Opinion in which the Court preliminarily found a likelihood of success on the merits of plaintiffs’ vagueness/due process challenge, the Government nevertheless did not provide particular definitions. Notably, the Government spent only one page of its 49-page memorandum in support of a final judgment denying a permanent injunction (the “pre-trial memorandum”) addressing the meaning of those terms. (See Gov’t’s Mem. of Law in Support of Final J. Denying a Permanent Inj. and Dismissing this Action (Dkt. No. 53) (“Gov’t Trial Mem.”).) The Government’s terse arguments do not resolve the Court’s concerns. The statute’s vagueness falls short of what due process requires.
The Government presents a variety of arguments which, if accepted, would allow the Court to avoid answering the constitutional questions raised in this action. As discussed below, however, the Court rejects each.
First, the Government argues that this Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing. At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer. Hr’g Tr. of Oral Argument on Prelim. Inj., Mar. 29, 2012 (Dkt. No. 34) (“Tr. I”) at 236, 239, 245.
Article III of the Constitution, allowing federal courts to entertain only actual cases and controversies, requires that a plaintiff have standing to pursue a claim. Plaintiffs here, then, must show that they have a reasonable fear that their actions could subject them to detention under § 1021(b)(2). [3]
The Court recited the Government’s position--or lack thereof--in its May 16 Opinion. Following that Opinion, the Government changed its position. The Government stated its “new” position in two different ways. First, it expressed its position rather broadly: “[T]he conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Gov’t’s Mem. of Law in Support of its Mot. for Recons. (Dkt. No. 38) (“Recons. Mem.”) at 2.) Two pages later, the Government stated its full, qualified position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
(Id. at 4 (emphases added) (footnote omitted).) The Government reaffirmed that position in its pre-trial memorandum. (See Gov’t Trial Mem. at 20.) Arguing that belatedly providing this qualified statement eliminates plaintiffs’ standing misunderstands controlling law: Standing is determined as of the outset of a case.
The Government’s new position also ignores the posture in which it affirmatively placed itself--and plaintiffs--as a result of its shifting view. At the March hearing, plaintiffs testified credibly that they were engaged in, and would continue to engage in (without the threat of indefinite military detention), activities they feared would subject them to detention under § 1021. The Government had an opportunity, both then, and at the depositions it took of each of the testifying plaintiffs, to explore the nature of plaintiffs’ activities, and to test whether plaintiffs’ fears were actual and reasonable.
Given that opportunity, the Court must--and does--take seriously the Government’s position at the March hearing. In other words, the Government did not offer a position at the March hearing sufficient to rebut plaintiffs’ credible testimony as to their reasonable fear of detention under § 1021(b)(2) and thus, its newly espoused position cannot erase what it said previously. Plaintiffs have standing. [4]
Second, the Government implicitly argues that its new position renders this action moot. [5] It does not. The Government has explicitly stated that its position is applicable with respect to only those activities to which the plaintiffs testified at the March hearing. Thus, any protected First Amendment activities in which plaintiffs have engaged since then might subject them to indefinite military detention. The plaintiffs--writers, journalists, activists--testified credibly that they are continuing, and would continue without the fear of detention, these activities. An actual case or controversy remains.
Third, the Government argues that even in the absence of its proffered assurance, plaintiffs cannot have standing since § 1021 is simply a reaffirmation of the 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (the “AUMF”)--and since plaintiffs were never detained under the AUMF in the ten years since its passage, they cannot have a reasonable fear that they will be detained under § 1021(b)(2) now. The Court rejects that argument.
The AUMF and § 1021 have significant differences, discussed below. Those differences can be traced to the legislative history and case law surrounding the AUMF. Section 1021 appears to be a legislative attempt at an ex post facto “fix”: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF. That attempt at a “fix” is obscured by language in the new statute (e.g., “reaffirmation”) that makes it appear as if this broader detention authority had always been part of the original grant. It had not.
Based on what is known about the history of the executive branch’s use of detention authority (via reported cases and statements by the Government), sometime between September 18, 2001 (the date of the AUMF) and December 31, 2011 (the date of the NDAA)--without congressional authorization--the executive branch unilaterally extended its interpretation of its military detention authority to a scope resembling what was passed into law as § 1021(b)(2). Detentions have been challenged via habeas petitions. Courts have warned the Government about the limits of congressional authorization for detention authority (with respect to the AUMF), and that the “laws of war”--to which the Government has repeatedly referred in its opposition to the Guantanamo habeas petitions as providing a basis for detention--was not and should not be part of domestic law.
In March 2009, the Government presented its view of its detention authority under the AUMF--explicitly referring to that view as a “refinement” and limiting its application to then-current Guantanamo detainees. That position bears clear similarities to § 1021(b)(2). In contrast to those statements, in this proceeding the Government argues that its interpretation has always been consistent and has always included the various elements now found in § 1021(b)(2). Indeed the Government argues that no future administration could interpret § 1021(b)(2) or the AUMF differently because the two are so clearly the same. That frankly makes no sense, particularly in light of the Government’s inability at the March and August hearings to define certain terms in--or the scope of--§ 1021(b)(2). [6] Accordingly, the Government cannot point to a lack of detention pursuant to the AUMF as eliminating the reasonable basis for plaintiffs’ stated fears regarding § 1021(b)(2).
Fourth, the Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it”--that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. In particular, the Government argues that the fact that the statute relates to military detention during a time of war both justifies § 1021(b)(2) breadth and requires judicial deference. The Court rejects that argument as well.
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. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2711 (2010). Moreover, these same considerations counsel particular attention to the Court’s obligation to avoid unnecessary constitutional questions in this context. Cf. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”).
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. See, e.g., Ex parte Milligan, 72 U.S. (4 Wall.) 2, 125-26 (1866). 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.
And this Court gives appropriate and due deference to the executive and legislative branches--and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. 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 (e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding the internment of Japanese Americans based on wartime security concerns)), or referred to by current members of the Supreme Court (for instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317 U.S. 1 (1942) (allowing for the military detention and execution of an American citizen detained on U.S. soil)). Presented, as this Court is, with unavoidable constitutional questions, it declines to step aside.
The Government also argues that, at most, the Court’s role should be limited to a post-detention habeas review. See Tr. II at 118. That argument is without merit and, indeed, dangerous. 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. If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.
In conclusion, this Court preliminarily found that plaintiffs showed a likelihood of success on the merits with respect to their claims that § 1021(b)(2) is overbroad as well as impermissibly vague. The Government has presented neither evidence nor persuasive legal argument that changes the Court’s preliminary rulings. The case law this Court cited in its May 16 Opinion remains good law. The factual record and case law now presents this Court with a matter ready for final resolution. The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.
At the August hearing, the Government stated that preliminary enjoining § 1021(b)(2) had not altered its detention practices in any way since in its view, the executive branch maintains identical detention authority under the AUMF. See Tr. II at 138. As set forth herein, however, that position is unsupported by the AUMF itself, has been rejected by other courts (including the Supreme Court), and is rejected by this Court.
If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of “substantially or directly supporting” associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed. [7]
II. FINDINGS OF FACT
Five plaintiffs provided evidentiary materials in support of their positions in this action: Christopher Hedges, Alexa O’Brien, Jennifer Ann Bolen, Kai Wargalla and the Honorable Brigitta Jonsdottir. [8] Plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified live at the March hearing. [9] The Government did not submit any evidence in support of its positions. It did not call a single witness, submit a single declaration, or offer a single document at any point during these proceedings.
The Court finds the testimony of each plaintiff credible. With respect to the witnesses who testified live, the Court was able to evaluate their demeanor and ask clarifying questions. The Government cross-examined each of the witnesses who testified live (having also previously deposed him or her). None of the witnesses wavered in his or her testimony; each was sincere and direct. Each provided specific and detailed information regarding his or her writings, speech, and/or associational activities that have been affected--and that he or she asserts are continuing to be affected--by his or her fear of detention pursuant to § 1021(b)(2). The Court adopts the factual findings set forth in its May 16, 2012 Opinion, see Hedges, 2012 WL 1721124, at *6-15, and repeats here only those facts necessary for context. The Court also supplements those factual findings based on information from the March hearing and admitted documentary evidence not recited in the May 16 Opinion. The Court’s factual findings are as follows:
A. Christopher Hedges
Christopher Hedges has been a foreign correspondent and journalist for more than 20 years. Tr. I at 156. During that time, he has published numerous articles and books on topics such as al-Qaeda, Mohammad Atta, and the Paris bombing plot; he is a Pulitzer Prize winner. Id. at 157-58. His most recent book was published in June 2012. [10] He intends to continue to work as a journalist. See, e.g., id. at 173.
Hedges’ writing and journalistic activities have taken him to the Middle East, the Balkans, Africa, and Latin America. Id. at 157. His work has involved interviewing al-Qaeda members who were later detained. Id. at 158. He has reported on 17 groups contained on a list of known terrorist organizations prepared by the U.S. Department of State. (See Court Ex. 9 (Country Reports on Terrorism, Report of the U.S. State Dep’t, Ch. 6 (“Terrorist Groups”))(Aug. 2010) at 1.)
Among the groups on which Hedges has reported (most of which are on the State Department list of terrorist organizations) are: the Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama’a al-Islamiya, Hamas, Hizballah, Kahane Chai, the Kongra-Gel (a/k/a “KGK” or “PKK”), the Mujahedin-e Khalq Organization (“MEK”), the Palestine Liberation Front, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine (including also the Central Command) (“PFLP”), al-Qaeda, Revolutionary People’s Party/Front, and the Salafist Group for Call and Combat. (Court Ex. 9 at 12); see also Tr. I at 169. In his career as a journalist and writer, Hedges has spent time with members of those groups; he has interviewed their leadership as well as the rank-and-file. Tr. I at 170. In connection with his reporting on Hamas, Hedges has met with its leadership, stayed in their homes, and socialized with them. Id. at 172. He testified that some of the organizations on which he has reported are considered to be in hostilities with coalition partners of the United States. Id. at 166, 169. The PKK is only one example. Id. at 169. Other groups Hedges has covered, such as the PFLP, have carried out acts of terrorism against U.S. targets. Id. at 170.
As part of his investigative work, he has been embedded with certain organizations on the State Department’s Terrorist List. For instance, in connection with his coverage of the PKK, he travelled with PKK armed units in southeastern Turkey and northern Iraq. Id. He was with an armed unit of the PKK in northern Iraq when Turkish war planes attacked it. Id. at 171.
Hedges’s work has involved investigating, associating with and reporting on al-Qaeda. After September 11, 2001, he was based in Paris and covered al-Qaeda in all countries in Europe with the exception of Germany (he does not speak German, but does speak Spanish, French and Arabic). Id. at 157. He did “reconstructs”: following terrorist attacks, he “would spend weeks on the ground piecing together everything that had gone into [the] attack and all of the movements of those who were involved in [the] attacks.” Id. at 157-58. He did a “reconstruct” relating to Mohammad Atta, one of the participants in the attacks on September 11, 2001. Id. at 158. Hedges testified that he “retraced every step Mohammad Atta took.” Id.
Hedges covered al-Qaeda’s attempted bombing of the Paris Embassy. Id. He also covered al-Qaeda’s suicide bombing attack on the synagogue in Djerba, Tunisia, as well as Richard Reed, an al-Qaeda member who attempted to use a shoe bomb to blow up an airplane. Id.
Hedges has recently spoken at events in Belgium and France, and could encounter people associated with groups that are “hostile to the U.S. government.” Id. at 174.
Hedges testified that because he speaks a number of languages (including, as stated, Arabic), he has been approached by publications, such as Harper’s Magazine, the Nation and others to return to the Middle East as a correspondent. Id. at 172-73. He testified that he has a realistic expectation that his work will bring him back to the Middle East. Id. at 173.
Hedges testified that his work is known in the Middle East and read widely there. Id. at 159. His works have appeared on Islamic and jihadist websites. Id.
Hedges read news articles regarding § 1021 prior to its implementation. Id. at 160. He testified that he has read § 1021 but does not understand the definition of certain terms including “associated forces,” “engaged in hostilities,” or “substantially supported.” Id. at 161-62. He testified that he has read the AUMF, that he understands it and that, in his view, it is not coextensive with § 1021. Id. at 164-65.
Hedges testified that his oral and written speech as well as associational activities have been chilled by § 1021: he does not understand what conduct is covered by § 1021(b)(2), but does understand that the penalty of running afoul of it could be indefinite military detention. See, e.g., id. at 174, 177, 186. He anticipated having to change his associational activities at speeches he was giving as a result of § 1021. Id. at 174. Hedges testified that prior to the passage of § 1021, he never feared his activities could subject him to indefinite military detention by the United States. Id. at 206.
At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the Government stated that it was not prepared to address that question. Id. at 245. When asked a similar question at the August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. Tr. II at 142. [11]
This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2).
B. Alexa O’Brien
Alexa O’Brien was the founder of U.S. Day of Rage and has also written numerous articles. Tr. I at 40-42. She identifies her career as a “content strategist.” Id. at 38.
O’Brien is also a contributor and editor of the news website, WL Central. Id. at 40-41. WL Central has a number of international news journalists who contribute content. Id. at 40. O’Brien has published more than 50 articles on WL Central since January 2011. Id. at 41. She has published articles on WL Central relating to WikiLeaks’s release of U.S. State Department cables, the Joint Task Force memoranda for Guantanamo Bay, and the revolutions in Egypt, Bahrain, Yemen, and Iran. Id. She has also has written blogs relating to those events, articles on the legal proceedings for Bradley Manning and Julian Assange relating to WikiLeaks, and has published a series of articles based on interviews of individuals who have been detained at Guantanamo Bay or who were prison guards there. (Court Ex. 3 (series of published articles authored by O’Brien)); Tr. I at 41.
O’Brien testified that in February 2012, she learned that an individual employed by a private security firm had allegedly been asked to tie U.S. Day of Rage to Islamic fundamentalist movements. Tr. I at 43. She received a copy of an email which indicated that there had been communications in this regard dating back to August 2011. Id. The email exchange was located on the WikiLeaks website and was between individuals named Thomas Kopecky and Fred Burton. Id. at 45. Based on first-hand knowledge, O’Brien testified that she is aware that Burton is a former security official previously employed by the U.S. State Department. Id. at 45-46.
O’Brien testified credibly that she also received twitter messages from a private security contractor called Provide Security. Id. at 47. One of the messages indicated that U.S. Day of Rage had been found on an Islamic jihadist website. Id. at 48. The message stated: “Now you are really in over your head with this. Muslims from an Afghanistan jihad site have jumped in.” [12]
O’Brien also testified that in September 2011 she was contacted by someone she knew to be a federal agent, but to whom she guaranteed confidentiality of source. Id. at 52. She testified that that individual had seen a memorandum from the Department of Homeland Security (“DHS”) addressed to law enforcement across the nation (a) regarding the fact that DHS planned to infiltrate U.S. Day of Rage and (b) linking U.S. Day of Rage to a loosely knit “organization,” called “Anonymous,” that O’Brien knew to be associated with cyber-terrorism. Id. at 51-54. [13] O’Brien later met with a journalist who told her that he had seen either the same memo to which the federal agent had referred or one with similar content. Id. at 69. O’Brien testified that in August 2011 she learned of an article suggesting that information about U.S. Day of Rage had been posted on Shamuk and Al-Jihad, two al-Qaeda recruitment sites. Id. at 59.
O’Brien testified that she read § 1021, but does not understand what certain of its terms mean and whether they would encompass her activities. Id. at 74. In particular, she pointed to the terms “associated forces” and “substantially support” as lacking definition. See id. She stated:
I think it’s best to use an example [of] someone like Sami Al-Hajj, who is a Sudanese Al Jazeera cameraman, who was later released from Guantanamo Bay and now works for Al Jazeera. Again, “substantially supported,” what does that mean? In a war on terror where intelligence collection and the information-sharing environment are competing with the press for collection of information, it’s very similar activities of collect[ing], talking with people, getting information. It’s very hard when Secretary Clinton talks about the information war that we are in to understand what “substantially support” means in relationship to journalists.
Id.
O’Brien testified that she knows people who have been or are subject to military detention and that she is concerned that Section 1021 could subject her to military detention. Id. at 74-80. After reading § 1021(b)(2), she decided to withhold from publication several articles she had written due to her concern that they could subject her to detention under the statute. Id. at 72 (“Court: Are you saying that there is a causal relationship between the passage of [§ 1021] and your withholding both of these articles? The Witness: Absolutely.”).
O’Brien testified that pursuant to a request made under the Freedom of Information Act, an organization called TruthOut.org had obtained a memorandum from the Department of Homeland Security, which states “National Cybersecurity and Communications Integration Center Bulletin. Details on ‘Anonymous,’ upcoming U.S. operations 17 September 2011 Occupy Wall Street, ‘U.S. Day of Rage.’” Id. at 109-10. [14]
At the March hearing, when the Government was specifically questioned by the Court regarding whether O’Brien’s activities could subject her to detention under § 1021(b)(2), the Government stated it would not answer the question:
The Court: ... [A]re those articles [holding up Court Ex. 3] going to subject M. O’Brien to risk under § 1021? . . .
[Government]: Again, I’m not authorized to make specific representations as to particular people. I’m saying that “associated forces” cannot extend to groups that are not armed groups at all.
The Court: So we don’t know about the articles, it depends?
[Government]: Maybe they are an armed group.
Id. at 236.
At the August hearing, the Government stated that it could not represent one way or the other whether future activities by plaintiffs, including O’Brien, would subject them to detention under § 1021. See, e.g., Tr. II at 142.
This Court finds that O’Brien has a reasonable fear of detention pursuant to § 1021(b)(2).
C. Kai Wargalla
Kai Wargalla is an organizer and activist based in London. Tr. I at 116. She is Deputy Director of the organization “Revolution Truth,” [15] and she also founded “Occupy London” and “Justice for Assange UK.” Id. at 116-18. [16]
Revolution Truth engages in international speech activities accessible in the United States through a website that has forums at which individuals speak on various topics. [17] See id. at 117, 124. Wargalla stated that she saw a bulletin in which the London Police listed the Occupy London group as among terrorist or extremist groups. Id. at 120-21.
Wargalla testified that she is also aware that several politicians have referred to WikiLeaks as a terrorist organization and that there is a grand jury hearing evidence with respect to activities by WikiLeaks. Id. at 139.
Wargalla testified that she has read § 1021 and finds several of the statute’s terms concerning with respect to her activities. Id. at 121-22. She expressed concern regarding the definition of “covered persons” generally and the phrase “substantially supported” specifically. Id. She testified that the phrase “substantially supported” “could mean anything really, from having someone on a panel discussion, from conducting campaigns . . ., to organizing rallies and demonstrations.” Id. at 131.
Wargalla testified that her concerns regarding the scope of § 1021 has already chilled her speech-related activities. She testified that § 1021 has led to changes in certain of the expressive and associational activities of Revolution Truth. For instance, Revolution Truth has considered not inviting members of certain organizations to participate in its forums due to concerns regarding § 1021. Id. at 124-25. Wargalla identified Hamas as one organization Revolution Truth would likely not have participate in forums due to concerns about § 1021. Id. at 124-126.
At the August hearing, the Government stated that it could not represent that Wargalla’s future activities would not subject her to detention under § 1021. See, e.g., Tr. II at 142.
This Court finds that Wargalla has a reasonable fear of detention pursuant to § 1021(b)(2).
D. Hon. Brigitta Jonsdottir
The Honorable Brigitta Jonsdottir is a member of parliament in Iceland. Tr. I at 147-48. She is an activist and a spokesperson for a number of groups including WikiLeaks. Id. at 148. As part of her work in connection with WikiLeaks, she assisted in producing a film entitled “Collateral Murder,” released in 2010. Id. This film alleges that Americans and others have committed war crimes in connection with their participation in the war in Iraq. Id. at 149.
Jonsdottir stated that she is aware that several U.S. politicians have classified WikiLeaks as a terrorist organization. Id. at 149. She believes that Bradley Manning, associated with WikiLeaks, has been charged with aiding terrorists. Id. at 150. She has received a subpoena from a U.S. grand jury for content from her Twitter account. Id. at 152.
She has organized activities opposing the war in Iraq. Id. at 148. She has been given legal advice by members of Iceland’s Ministry of Foreign Affairs that she should not travel to the United States. Id. at 152-53.
Jonsdottir stated that she is concerned that her activities with respect to WikiLeaks may subject her to detention under § 1021--particularly because her work might be construed as giving “‘substantial support’ to ‘terrorists and/or associated forces.’” Id. at 154.
At the March hearing, the Court asked whether Jonsdottir’s activities could subject her to detention under § 1021. The Government responded, “Again, I can’t make representations on specifics. I don’t know what she has been up to. I don’t know what is going on there.” Id. at 239.
At the August hearing, the Government stated that Jonsdottir’s past activities as specifically set forth in her declaration would not subject her to detention under § 1021; however, the Government would not make representations regarding anything else that she had done or with respect to her future First Amendment activities. See, e.g., Tr. II at 142.
This Court finds that Jonsdottir has a reasonable fear of detention pursuant to § 1021(b)(2).
E. The Government
The Government did not present any witnesses or seek to admit any documents in connection with the March hearing. The Government did depose--and then cross-examine at the March hearing--those plaintiffs who testified live. The Court does not find that this cross-examination undermined any of the witness’ essential points.
At the March hearing, the Government was unable to represent that the specific activities in which plaintiffs had engaged would not subject them to indefinite military detention under § 1021. See, e.g., Tr. I 223, 226, 229-30. The Government changed its position several weeks later in a motion for reconsideration of the May 16 Opinion. In its memorandum submitted in support of that motion (which was subsequently denied as moot in light of the parties’ agreement to proceed directly to a hearing on a permanent injunction), the Government changed its position entirely--from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Recons. Mem. at 2.) It then set further qualified parameters of its position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
(Id. at 4 (footnote omitted).) In its pre-trial memorandum, the Government reiterated that position. (See Gov’t Trial Mem. at 20.)
The Government did not put forth a witness to explain the difference between its first, March position and its second (set forth in its May reconsideration brief and reiterated in its June pre-trial memorandum). Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” See U.S. v. Stevens, 130 S. Ct. 1577, 1591 (2010). There is no guarantee that the position will not--or cannot--change again. In other words, the Government’s new position--without any guarantees of its firmness--cannot rebut the standing that plaintiffs established at the March hearing.
In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.” Tr. I at 223-226. In particular, when the Court asked for one example of what “substantially support” means, the Government stated, “I’m not in a position to give one specific example.” Id. at 226. When asked about the phrase “directly support,” the Government stated, “I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.” Id. at 229-30. In its pre-trial memoranda, the Government also did not provide any definitional examples for those terms. [18]
What evidence could the Government have offered in this matter? Are its positions necessarily based only on legal argument not susceptible to “proof”? Certainly not. The Government’s positions included mixed questions of law and fact. With due regard for the Government’s legitimate authority to exercise prosecutorial discretion and the Government’s need for secrecy in matters of true national security, there were nonetheless several types of evidence the Government could have offered.
First, in opposing plaintiffs’ standing the Government could have offered that no one has in fact been detained for any activities protected by the First Amendment (if such evidence existed). Based upon credibility, a single statement may not have required further elaboration that would have tread into areas of national security. (Even so, of course, there are well-established ways of dealing with such matters in judicial proceedings.)
The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement determinations--namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. The Government could have offered a witness on law enforcement’s need for the breadth of § 1021 based upon factual scenarios that have occurred, but as to which secrecy is not required. The Government could have offered a witness who could have testified as to examples of how law enforcement has actually interpreted (if anyone has) the words “substantially support,” “directly support,” or “associated forces.” Any of that evidence may have provided an evidentiary basis for what are instead simply legal arguments or ipse dixit that plaintiffs’ fears of detention were unreasonable.
The Court is not suggesting the Government bears the burden of proof on standing; it does not. It could, however, have chosen to provide an evidentiary basis for its defense. Just as with any litigant, the Government’s position would have been strengthened had it offered facts supportive of its assertions. As a result of the Government’s strategic trial choice, the Court is left with a one-sided evidentiary record. The Court will not--indeed, it cannot--“assume” what the Government’s evidence would have been. [19]