Hedges v. Obama

12-3176 (L)
Hedges v. Obama
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-----
August Term, 2012
(Argued: February 6, 2013 Decided: July 17, 2013)
Docket Nos. 12-3176 (Lead), 12-3644 (Con)
-----
CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BIRGITTA JONSDOTTIR M.P.,
Plaintiffs-Appellees,
v.
BARACK OBAMA, individually and as a representative of the UNITED STATES OF AMERICA, LEON
PANETTA, individually and as a representative of the DEPARTMENT OF DEFENSE,
Defendants-Appellants,
JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC
CANTOR, as representatives of the UNITED STATES OF AMERICA,
Defendants.*
-----
Before:
KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.**
*
The Clerk of the Court is directed to amend the official caption as shown above.
**
The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of
New York, sitting by designation.
Defendants-appellants seek review of a district court decision permanently enjoining
enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground
that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on
the government’s authority to detain the American citizen plaintiffs and that those plaintiffs
therefore lack Article III standing. Moreover, the non-citizen plaintiffs have failed to establish a
sufficient basis to fear detention under the statute to give them standing to seek preenforcement
review. VACATED AND REMANDED.
ROBERT M. LOEB, Appellate Staff Civil Division, Department of Justice,
Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Washington,
DC; Beth S. Brinkmann, Deputy Assistant Attorney General, Washington, DC;
August E. Flentje, Civil Division, Department of Justice, Washington, DC; Jeh
Charles Johnson, General Counsel, Department of Defense, Washington, DC; Preet
Bharara, United States Attorney for the Southern District of New York, New York,
NY; Benjamin H. Torrance, Christopher B. Harwood, Assistant United States
Attorneys, New York, NY, on the brief)
Attorneys for Defendants-Appellants
CARL J. MAYER, Mayer Law Group LLC, New York, NY; BRUCE I. AFRAN,
ESQ., Princeton, NJ
Attorneys for Plaintiffs-Appellees
DAVID B. RIVKIN, JR. (Lee A. Casey, Andrew M. Grossman, on the brief),
BakerHostetler LLP, Washington, DC
Attorneys for Amici Curiae Senators John McCain, Lindsey Graham, and Kelly
Ayotte
Kent A. Yalowitz, Arnold & Porter LLP, New York, NY; L. Charles Landgraf,
Arpan A. Sura, Arnold & Porter LLP, Washington, DC
Attorneys for Amicus Curiae Bill of Rights Defense Committee
Matthew J. MacLean, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC
Attorney for Amici Curiae Center for National Security Studies and The Constitution
Project
Reem Salahi, Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA
Attorney for Amicus Curiae Government Accountability Project
3
Eric K. Yamamoto, University of Hawaii School of Law, Honolulu, HI; Lorraine K.
Bannai, Anjana Malhotra, Seattle University School of Law, Seattle, WA
Attorneys for Amici Curiae Karen and Ken Korematsu, et al.
John W. Whitehead, Douglas R. McKusick, Lina M. Ragep, The Rutherford
Institute, Charlottesville, VA; Anand Agneshwar, Arnold & Porter LLP, New York,
NY
Attorneys for Amicus Curiae The Rutherford Institute
William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, Robert J.
Olson, William J. Olson, P.C., Vienna, VA; Steven J. Harfenist, Friedman Harfenist
Kraut & Perlstein LLP, Lake Success, NY; Gary G. Kreep, U.S. Justice Foundation,
Ramona, CA
Attorneys for Amici Curiae U.S. Congressman Steve Stockman, et al.
LEWIS A. KAPLAN, District Judge.
On September 11, 2001, the al-Qaeda terrorist network attacked multiple targets in
the United States with hijacked commercial airliners, killing approximately 3,000 people. A week
later, Congress enacted the Authorization for Use of Military Force (the “AUMF”),1 which
empowered President Bush to use all necessary and appropriate force against those nations,
organizations, and persons responsible for the attacks and those who harbored such organizations
or persons.
Nearly twelve years later, the hostilities continue. Presidents Bush and Obama have
asserted the right to place certain individuals in military detention, without trial, in furtherance of
their authorized use of force. Substantial litigation has ensued over the scope of presidential military
detention authority—that is, whom did Congress authorize the President to detain when it passed
the AUMF?
1
P.L. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541 note.
4
On December 31, 2011, President Obama signed into law the National Defense
Authorization Act for Fiscal Year 2012.2 Section 1021 of that statute, which fits on a single page,
is Congress’ first—and, to date, only—foray into providing further clarity on that question. Of
particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain
anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces.
The controversy over Section 1021 was immediate. The government contends that
Section 1021 simply reaffirms authority that the government already had under the AUMF,
suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They
are journalists and activists who allegedly fear that the government may construe their work as
having substantially supported al-Qaeda, the Taliban, or associated forces. They contend that
Section 1021 is a dramatic expansion of the President’s military detention authority, supposedly
authorizing the military, for the first time, to detain American citizens on American soil. As one
group of amici has noted, “[r]arely has a short statute been subject to more radically different
interpretations than Section 1021.”3
Plaintiffs brought this action shortly after the statute was enacted. They sought an
injunction barring enforcement of Section 1021 and a declaration that it violates, among other
things, their rights under the First and Fifth Amendments to the United States Constitution. The
district court agreed and entered a permanent injunction restraining detention pursuant to Section
1021(b)(2). It is that decision that we review here.
2
P.L. 112-81, 125 Stat. 1298 (2011) (“2012 NDAA”).
3
Stockman Amici Br. 3.
5
We conclude that plaintiffs lack standing to seek preenforcement review of Section
1021 and vacate the permanent injunction. The American citizen plaintiffs lack 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.
I. Background
Prior to the passage of Section 1021, a number of federal judges reached divergent
conclusions about the scope of AUMF detention authority. To appreciate what Congress did and
did not resolve in passing Section 1021, one must understand the nature of this debate. We thus
describe the history of the litigation over AUMF detention authority in some detail.
A. The AUMF
The AUMF, enacted on September 18, 2001, provides:
“[T]he President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or
persons.”4
President Bush ordered the United States military to Afghanistan to subdue al-Qaeda and the Taliban
4
AUMF § 2(a).
6
regime known to support it. Soon thereafter, President Bush began to hold certain individuals in
military detention as “enemy combatants,” many of them at the United States Naval Base in
Guantánamo Bay, Cuba.5
B. The Citizen and Domestic Capture Cases: Hamdi, Padilla, and al-Marri
As one scholar has noted, the litigation regarding the scope of executive detention
authority may be divided into two “waves”: (1) litigation from 2002 to 2008 regarding three
individuals who were held as enemy combatants in military detention within the territorial United
States, and (2) litigation from 2008 to the present concerning Guantánamo detainees.6 The first
category comprises the cases of Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri.
1. Hamdi
Hamdi, then an American citizen, was in Afghanistan in the fall of 2001, where he
allegedly was armed and affiliated with a Taliban military unit that had provided him weapons
5
See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,
66 Fed. Reg. 57,833 (Nov. 13, 2001) (military order asserting authority, under AUMF and
Article II of United States Constitution, to detain and try by military tribunal non-citizens
who, there was reason to believe, were members of al-Qaeda, had been involved in
preparing terrorist attacks directed against United States interests, or had harbored
individuals who had done so); see generally Gherebi v. Obama, 609 F. Supp.2d 43, 46–47
(D.D.C. 2009); Rasul v. Bush, 542 U.S. 466, 471 (2004) (discussing the military detention
of over six hundred non-citizens at Guantánamo).
6
See Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens,
52 B.C. L. REV. 769, 805 (2011).
7
training.7 He was apprehended when that unit surrendered after a battle.8 After entering military
detention within the United States, a habeas corpus petition was filed on his behalf, alleging inter
alia that his detention violated the Non-Detention Act of 1971, which provides, “No citizen shall
be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”9
Although the Supreme Court in June 2004 remanded Hamdi’s case to allow him to
challenge his status as an enemy combatant, it upheld the government’s authority to detain a
properly designated enemy combatant in Hamdi v. Rumsfeld,10 when “five Members of the Court
recognized that detention of individuals who fought against the United States in Afghanistan ‘for
the duration of the particular conflict in which they were captured, is so fundamental and accepted
an incident to war as to be an exercise of the “necessary and appropriate force” Congress has
authorized the President to use’” by the AUMF.11
In so doing, a four Justice plurality12 noted that “[t]he legal category of enemy
combatant has not been elaborated upon in great detail” and that “[t]he permissible bounds of the
7
Hamdi v. Rumsfeld, 542 U.S. 507, 513 (2004) (plurality opinion).
8
Id.9
18 U.S.C. § 4001(a).
10
542 U.S. 507.
11
Boumediene v. Bush, 553 U.S. 723, 733 (2008) (discussing Hamdi).
12
Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer.
8
category will be defined by the lower courts as subsequent cases are presented to them.”13 It
nevertheless concluded that the AUMF “clearly and unmistakably” authorized detaining at least
those who were “part of or supporting forces hostile to the United States or coalition partners in
Afghanistan and who engaged in an armed conflict against the United States there.”14 Thus, the
plurality reasoned that, if the government’s allegations were correct, Hamdi’s detention did not
violate the Non-Detention Act because the AUMF itself constituted the requisite “Act of
Congress.”15 To the extent Hamdi identified constitutional concerns with the military detention of
American citizens generally, the plurality concluded that there was “no bar to this Nation’s holding
one of its own citizens as an enemy combatant.”16 Nevertheless, the plurality suggested that this
detention authority was not boundless and that detention pursuant to it could not be indefinite.
Rather, “based on longstanding law-of-war principles,” the plurality construed the AUMF “to
include the authority to detain for the duration of the relevant conflict.”17 Justice Thomas wrote
separately and provided a fifth vote for upholding authority to detain Hamdi under the AUMF, but
rejected any limitations, derived from the laws of war, on the duration of the detention authority.18
13
Hamdi, 542 U.S. at 522 n.1 (plurality opinion).
14
Id. at 516, 519 (internal quotation marks omitted).
15
Id. at 517. The plurality did not reach the alternative argument that the President’s Article
II powers as Commander-in-Chief authorized the detention. Id. at 516–17.
16
Id. at 519 (citing Ex Parte Quirin, 317 U.S. 1, 37–38 (1942)).
17
Id. at 521.
18
Id. at 587–88 (Thomas, J., dissenting).
9
The four remaining Justices dissented from the conclusion that Hamdi could be
detained, reasoning inter alia that the AUMF did not constitute sufficiently clear authorization of
his detention to satisfy the Non-Detention Act.19 Justice Scalia, joined by Justice Stevens, would
have held further that the government was without constitutional power to detain Hamdi militarily
absent congressional suspension of the writ of habeas corpus.20
2. Padilla
Padilla, also an American citizen, was apprehended at Chicago’s O’Hare
International Airport in May 2002 after allegedly receiving training from al-Qaeda in Afghanistan,
becoming involved in a plan to detonate a “dirty bomb” here, and returning to the United States to
conduct reconnaissance and facilitate attacks by al-Qaeda.21
In December 2003—prior to Hamdi—this Court held that because Padilla was an
American citizen arrested on domestic soil away from a zone of combat, his military detention
violated the Non-Detention Act and could not be justified by the President’s Article II war powers.22
The Supreme Court reversed our decision on procedural grounds on the day it decided Hamdi but
19
Id. at 547–51 (Souter, J., concurring in part, dissenting in part, and concurring in the
judgment) (reasoning further that while AUMF might provide clear authority to detain
Hamdi in accordance with laws of war, government was not doing so); id. at 574 (Scalia,
J., dissenting).
20
Id. at 571–75 (Scalia, J., dissenting) (citing Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2 (1866)).
21
Padilla v. Rumsfeld, 352 F.3d 695, 699–701 (2d Cir. 2003), rev’d on jurisdictional grounds,
542 U.S. 426 (2004).
22
Id. at 712, 722.
10
did not reach the lawfulness of Padilla’s detention.23
Following the Supreme Court’s reversal of our Padilla ruling, a new habeas petition
was filed on his behalf. The Fourth Circuit in 2005 concluded that Padilla was lawfully detained
under the reasoning of Hamdi because it became known that he had been “armed and present in a
combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the
United States” while in Afghanistan prior to his return to the United States.24 Although Padilla had
been apprehended in the United States, the Fourth Circuit concluded that Hamdi had not relied on
the place of capture.25 The government subsequently indicted Padilla and transferred him to civilian
criminal custody. His petition for certiorari was denied.26
3. Al-Marri
The Fourth Circuit again considered the scope of military detention authority in the
case of al-Marri, a Qatari national apprehended in the United States while he was lawfully residing
here.27 Al-Marri allegedly was a “sleeper agent” who had met Osama Bin Laden, was trained by al-
23
Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). Justice Stevens (joined by Justices Souter,
Ginsburg, and Breyer) dissented and indicated that he would have held, consistent with our
decision, that Padilla’s detention violated the Non-Detention Act. Id. at 464 n.8.
24
Padilla v. Hanft, 423 F.3d 386, 390 (4th Cir. 2005) (internal quotation marks omitted).
25
Id. at 393–94.
26
Padilla v. Hanft, 547 U.S. 1062 (2006).
27
Al-Marri v. Wright, 487 F.3d 160, 164, 171 (4th Cir. 2007), rev’d sub nom. Al-Marri v.
Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated sub nom. Al-
Marri v. Spagone, 555 U.S. 1220 (2009).
11
Qaeda, and had been sent to the United States to facilitate terrorist activities here.28 Unlike Padilla
and Hamdi, however, the government did not allege that al-Marri had stood alongside armed forces
hostile to the United States or had been present in a combat zone during hostilities.29
A splintered en banc Fourth Circuit concluded in July 2008 that the executive had
authority to detain al-Marri as an enemy combatant, assuming that the government’s allegations
were true.30 While each offered a different definition of those subject to detention, the three
principal opinions which voted in favor of this general proposition gave significant weight to the fact
that, if the government’s allegations were correct, al-Marri was little different from the 9/11
hijackers themselves, short of succeeding in the plot.31 The judges who took the contrary view
concluded that al-Marri was a civilian and therefore could not properly be detained militarily under
28
Id. at 165–66.
29
Id. at 183.
30
Al-Marri, 534 F.3d at 216.
31
See id. at 259–60 (Traxler, J., concurring in the judgment); id. at 287 (Williams, C.J.,
concurring in part and dissenting in part); id. at 297 (Wilkinson, J., concurring in part and
dissenting in part).
Judge Wilkinson proposed that the AUMF authorized detaining those who are (1) an
“enemy,” as a member of an organization against whom Congress has authorized the use
of military force, and (2) a “combatant,” as someone who knowingly acts to inflict harm
in order to further the military goals of that organization. Id. at 323–24.
Judge Williams focused instead on those who (1) “attempt[] or engage[] in belligerent acts
against the United States, either domestically or in a foreign combat zone; (2) on behalf of
an enemy force.” Id. at 285.
12
traditional principles of the laws of war.32 The key question for them was whether he had affiliated
“with the military arm of an enemy nation.”33
The Supreme Court granted certiorari,34 but then vacated the decision below as moot
when the newly elected Obama administration indicted al-Marri and sought to transfer him to
civilian criminal custody.35
C. The Guantánamo Cases
Meanwhile, Congress and the courts were engaging in a dialogue over a more basic
question regarding the Guantánamo detainees—whether they had any right to petition for habeas
corpus at all.36 This culminated in June 2008 with Boumediene v. Bush, which held that the
Guantánamo detainees had constitutional habeas rights and that the procedures that Congress and
32
See generally id. at 230–31 (Motz, J., concurring in the judgment); but see id. at 314–22
(Wilkinson, J., concurring in part and dissenting in part) (concluding that law-of-war
principles must account for recent developments in how warfare is conducted).
33
Id. at 231 (emphasis added).
34
Al-Marri v. Pucciarelli, 555 U.S. 1066 (2008).
35
Al-Marri v. Spagone, 555 U.S. 1220.
36
See Rasul, 542 U.S. at 484 (holding that statutory habeas jurisdiction extended to
Guantánamo); Detainee Treatment Act of 2005, P.L. 109-148, 119 Stat. 2680, Title X
(“DTA”), § 1005(e)(1) (purporting to strip statutory habeas jurisdiction for Guantánamo
detainees); Hamdan v. Rumsfeld, 548 U.S. 557, 584 (2006) (concluding that Section
1005(e)(1) of the DTA did not apply to pending cases); Military Commissions Act of 2006,
P.L. 109-366, 120 Stat. 2600 (“2006 MCA”), § 7 (stripping habeas jurisdiction from future
and pending cases); Boumediene, 553 U.S. at 792 (concluding that Section 7 of the 2006
MCA is unconstitutional).
13
the administration had provided were not an adequate substitute.37
1. Activity Pre-Boumediene
In July 2004, shortly after Hamdi, the government created Combatant Status Review
Tribunals (“CSRTs”) to determine whether the Guantánamo detainees were enemy combatants,
which the Department of Defense then defined to mean “an individual who was part of or supporting
Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United
States or its coalition partners. This includes any person who has committed a belligerent act or has
directly supported hostilities in aid of enemy armed forces.”38
Congress did not endorse this definition or otherwise speak directly to the scope of
detention authority during this period. It codified the CSRT process in the Detainee Treatment Act
of 2005, but that statute did not explain who could be detained.39 The Military Commissions Act
of 2006 defined the concept of an “unlawful enemy combatant,” but only with respect to eligibility
for trial by the military commissions created by that act, not to AUMF detention authority.40
37
553 U.S. at 771, 792.
38
Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing
Combatant Status Review Tribunal § a (July 7, 2004), available at
http://www.defense.gov/news/Jul2004/d20040707review.pdf; see Hamdan, 548 U.S. at 571
n.1 (citing this definition).
39
See DTA § 1005(e)(2)(C)(ii) (requiring only that D.C. Circuit ensure that Department of
Defense’s chosen CSRT standards comply with Constitution and federal law, as applicable).
40
See 2006 MCA § 3(a) (defining such individuals to include, inter alia, anyone who has
“engaged in hostilities or who has purposefully and materially supported hostilities against
the United States or its co-belligerents who is not a lawful enemy combatant (including a
person who is part of the Taliban, al-Qaeda, or associated forces)”); see also Military
14
2. Judicial Consideration post-Boumediene
Absent clarity from Congress, Boumediene opened the gates to judicial evaluation
of the scope of executive detention authority for Guantánamo detainees. On remand from the
Supreme Court, Judge Leon of the D.C. district court in the fall of 2008 declined to follow any of
the approaches set forth in Al-Marri and instead adopted the government’s prior 2004 CSRT
definition, concluding that it was consistent with the AUMF and the Constitution.41
a. March 2009 Memo
On March 13, 2009, the new administration, in a memorandum to the D.C. district
court (the “March 2009 Memo” or the “Memo”),42 “refin[ed]” the government’s position regarding
its detention authority for “those persons who are now being held at Guantánamo Bay.”43 Relying
on the Hamdi plurality opinion, the Memo asserted that the scope of executive detention authority
“is necessarily informed by principles of the laws of war,” as these principles “inform the
Commissions Act of 2009 (“2009 MCA”), P.L. 111-84, 123 Stat. 2190, Title XVIII, § 1802
(revising 2006 MCA definition somewhat and renaming the relevant term “unprivileged
enemy belligerent”); cf. Al-Marri, 534 F.3d at 328 n.9 (Wilkinson, J., concurring in part and
dissenting in part) (observing that 2006 MCA definition was “of limited assistance and
relevance” as it does “not specifically address the scope of the President’s detention power
under the AUMF”).
41
Boumediene v. Bush, 583 F. Supp.2d 133, 134–35 (D.D.C. 2008).
42
Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to
Detainees Held at Guantanamo Bay, In re Guantanamo Bay Detainee Litigation, Misc. No.
08-442 (TFH) (D.D.C. Mar 13, 2009).
43
The March 2009 Memo made clear that the position set forth “is limited to the authority
upon which the Government is relying to detain the persons now being held at Guantanamo
Bay” and is “not, at this point, meant to define the contours of authority for military
operations generally, or detention in other contexts.” Id. at 2.
15
understanding of what is ‘necessary and appropriate’” under the AUMF.44 With this predicate, the
Memo declared that the government, in addition to being able to detain individuals themselves
responsible for the attacks, had the authority
“to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States
or its coalition partners, including any person who has committed a belligerent act,
or has directly supported hostilities, in aid of such enemy armed forces.”45
It stated further that “[i]t is neither possible nor advisable” to identify what these terms mean in the
abstract.46 Nevertheless, the March 2009 Memo said that the inquiry with regard to whether an
individual is “part of” the enumerated forces may depend on either “a formal or functional analysis
of the individual’s role.”47 With regard to “associated forces,” it observed that “many different
private armed groups” fought alongside al-Qaeda and the Taliban in Afghanistan and therefore
declared the authority to detain individuals who “in analogous circumstances in a traditional
international armed conflict . . . would be detainable under principles of co-belligerency.”48 Finally,
it said that the term “substantial support” does not justify detaining “those who provide unwitting
44
Id. at 1, 3. The Memo recognized that the laws of war were “less well-codified with respect
to our current, novel type of armed conflict against armed groups such as al-Qaida and the
Taliban.” Id. at 1. Accordingly, it asserted that principles from traditional “international
armed conflicts between the armed forces of nation states” must inform the AUMF
authority. Id.
45
Id. at 2. The Memo no longer used the term “enemy combatant.”
46
Id.
47
Id. at 6.
48
Id. at 7.
16
or insignificant support” to the identified organizations.49 But, “[u]nder a functional analysis,
individuals who provide substantial support to al-Qaida forces in other parts of the world may
properly be deemed part of al-Qaida itself.”50 Moreover, “[s]uch activities may also constitute the
type of substantial support that, in analogous circumstances in a traditional international armed
conflict, is sufficient to justify detention.”51 In any event, the March 2009 Memo took the view that
“the AUMF is not limited to persons captured on the battlefields of Afghanistan” nor to those
“directly participating in hostilities.”52
b. District Court Reaction
District of Columbia district court reactions to the March 2009 Memo were mixed.
Judges uniformly accepted the government’s “part of” test but expressed considerable skepticism
about “substantial support.”53 One opinion adopted the government’s position, but only by reading
“substantial support” narrowly to permit detention of those “effectively part of the armed forces of
49
Id. at 2.
50
Id. at 7.
51
Id. (citing Boumediene v. Bush, 579 F. Supp.2d 191, 198 (D.D.C. 2008) (finding petitioner
properly detained under “support” prong of adopted 2004 CSRT definition)).
52
Id. at 7, 8 (internal quotation marks omitted).
53
Even judges otherwise supportive of the government’s position previously had not been
unanimous that being part of al-Qaeda was enough. See Al-Marri, 534 F.3d at 325(Wilkinson, J., concurring in part and dissenting in part) (opining that “membership, without
more” is insufficient).
17
the enemy.”54 In what became the majority view in the D.C. district court, another went one step
further and rejected the government’s reliance on “substantial support” and “directly support[ing]
hostilities” altogether, concluding that detention on such grounds was unsupported either by
domestic law or the laws of war.55
c. Al-Bihani
These decisions set the stage for the D.C. Circuit’s central ruling on the scope of
AUMF detention authority, Al-Bihani v. Obama.56 Petitioner Al-Bihani carried a weapon and was
a cook for a unit that fought alongside the Taliban.57 He contended that his detention was
inconsistent with the laws of war and thus not authorized as “necessary and appropriate” under the
AUMF.58 The majority opinion rejected the notion that the laws of war limit the government’s
54
Gherebi, 609 F. Supp.2d at 69 (Walton, J.) (internal quotation marks and alterations
omitted); accord Mohammed v. Obama, 704 F. Supp.2d 1, 4 (D.D.C. 2009) (Kessler, J.).
55
Hamlily v. Obama, 616 F. Supp.2d 63, 75–77 (D.D.C. 2009) (Bates, J.) (internal quotation
marks omitted); accord Mattan v. Obama, 618 F. Supp.2d 24, 26 (D.D.C. 2009) (Lamberth,
C. J.); Anam, 653 F. Supp.2d 62, 64 (D.D.C. 2009) (Hogan, J.); Al Mutairi v. United States,
644 F. Supp.2d 78, 85 (D.D.C. 2009) (Kollar-Kotelly, J.); Hatim v. Obama, 677 F. Supp.2d
1, 7 (D.D.C. 2009) (Urbina, J.), vacated sub nom. Hatim v. Gates, 632 F.3d 720 (D.C. Cir.
2011); Awad v. Obama, 646 F. Supp.2d 20, 23 (D.D.C. 2009) (Robertson, J.).
56
590 F.3d 866 (D.C. Cir. 2010).
57
Id. at 869.
58
Id. at 870–71.
18
AUMF authority at all—even though the government agreed with Al-Bihani on that point.59 Taking
the view that the “the government’s detention authority logically covers a category of persons no
narrower than is covered by its military commission authority,” the majority concluded that Al-
Bihani was properly detained because he fell within the latter standard, which Congress had set forth
in the Military Commissions Acts of 2006 and 2009.60 That is, the majority held that AUMF
detention authority “includes those who are part of forces associated with Al Qaeda or the Taliban
or those who purposefully and materially support such forces in hostilities against U.S. Coalition
partners.”61
While focusing on this “purposeful and material support” standard, the majority’s
discussion seemed generally supportive of the government’s “substantial support” standard as well.
The majority stated that Al-Bihani was detained lawfully under either the CSRT definition or the
59
Id. at 871 (“There is no indication . . . that Congress intended the international laws of war
to act as extra-textual limiting principles for the President’s war powers under the
AUMF.”); see id. at 885 (Williams, J., concurring in part and concurring in the judgment)
(observing that majority’s discussion on this point “goes well beyond what even the
government has argued in this case” (emphasis in original)); Al-Bihani v. Obama, 619 F.3d
1, 1 (D.C. Cir. 2010) (opinion by all active judges except those on Al-Bihani panel denying
en banc review but noting that panel’s discussion of laws of war was “not necessary to the
disposition of the merits”).
60
Al-Bihani, 590 F.3d at 872; but see Stephen I. Vladeck, The D.C. Circuit After Boumediene,
41 SETON HALL L. REV. 1451, 1460 (2011) (questioning this logical step); Oona Hathaway,
Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts & Sirine Shebaya, The Power
to Detain: Detention of Terrorism Suspects After 9/11, 38 YALE J. INT’L L. 123, 143–44
(2013) (similar); Sophia Brill, Comment, The National Security Court We Already Have,
28 YALE L. & POL’Y REV. 525, 533 n.42 (2010) (similar); H.R. Rep. No. 111-288, at
862–63 (2009) (2009 MCA committee report indicating that definition “is not intended to
address the scope of the authority of the United States to detain individuals in accordance
with the laws of war”).
61
590 F.3d at 872 (citing 2006 and 2009 MCAs).
19
government’s modified “substantial support” definition.62 Moreover, it later noted that Al-Bihani
“both [was] part of and [had] substantially supported enemy forces” and, without exploring the
bounds of these concepts, “recognize[d] that both prongs are valid criteria that are independently
sufficient to satisfy the [detention] standard.”63
d. Subsequent D.C. Circuit Case Law
Further decisions by the D.C. Circuit followed the principle that the AUMF
authorized detention not only of those who are “part of” al-Qaeda and the Taliban but also those who
“purposefully and materially support” such forces.64 Notably, however, the D.C. Circuit has not had
occasion to develop further the contours of the “support” prong, apparently because the government
appears rarely to rely on it. Rather, in numerous cases before the D.C. Circuit since Al-Bihani, the
government has relied on a theory that the detainee was “part of” al-Qaeda, the Taliban, or
62
Id.
63
Id. at 873–74.
64
See Hatim, 632 F.3d at 721 (vacating grant of habeas because district court did not consider
whether petitioner had “purposefully and materially supported” enemy forces); see also Gul
v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011) (reading Al-Bihani to set forth “purposeful and
material support” standard); Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011) (same);
Al-Madhwani v. Obama, 642 F.3d 1071, 1073–74 (D.C. Cir. 2011) (same); Uthman v.
Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011) (same); Salahi v. Obama, 625 F.3d 745,
747 (D.C. Cir. 2010) (same).
On the other hand, the D.C. Circuit does not appear to have read Al-Bihani as adopting a
“substantial support” standard. But see Al Alwi v. Obama, 653 F.3d 11, 15–16 (D.C. Cir.
2011) (citing to “substantial support” standard where detainee expressly did not challenge
its lawfulness); Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010) (same).
20
associated forces.65 In fact, in Bensayah v. Obama,66 a case argued before but decided after Al-
Bihani, the government specifically foreswore reliance on any support justification for detention.67
It did so despite the facts that (1) support was the sole ground on which the district court had relied
in finding Bensayah detainable, and (2) the March 2009 Memo had cited that district court decision
as its one example of when “substantial support” might apply.68 Moreover, the government dropped
reliance on a “purposeful and material support” theory in Salahi v. Obama.69
65
See, e.g., Awad v. Obama, 608 F.3d 1, 9 (D.C. Cir. 2010); Al-Adahi v. Obama, 613 F.3d
1102, 1106 (D.C. Cir. 2010); Barhoumi, 609 F.3d at 425; Al Odah v. Obama, 611 F.3d 8,
17 (D.C. Cir. 2010); Uthman, 637 F.3d at 402; Khan v. Obama, 655 F.3d 20, 33 (D.C. Cir.
2011); Al Alwi, 653 F.3d at 17; Esmail v. Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011);
Suleiman v. Obama, 670 F.3d 1311, 1313 (D.C. Cir. 2012); Khairkhwa v. Obama, 703 F.3d
547, 550 (D.C. Cir. 2012).
This may be explained by the “functional rather than . . . formal” approach the D.C. Circuit
has taken with the “part of” inquiry, which focuses “upon the actions of the individual in
relation to the organization” to determine whether “a particular individual was sufficiently
involved with the organization to be deemed part of it.” Salahi, 625 F.3d at 751–52
(internal quotation marks and alterations omitted).
66
610 F.3d 718 (D.C. Cir. 2010).
67
Id. at 722 (noting that government has “abandoned its argument that Bensayah is being
detained lawfully because of the support he rendered to al Qaeda”); cf. Charlie Savage,
Obama Team Is Divided on Anti-Terror Tactics, N.Y. TIMES, Mar. 29, 2010, at A1
(reporting on internal dissension within Obama administration regarding whether
government should argue that support justified Bensayah’s detention).
68
See Bensayah, 610 F.3d at 722; March 2009 Memo at 7.
69
625 F.3d at 747.
21
D. The 2012 NDAA
It was in this context that the 2012 NDAA was enacted on December 31, 2011.
Section 1021 of that statute provides in relevant part:
“SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF
THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE
AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General.-- Congress affirms that the authority of the President to use
all necessary and appropriate force pursuant to the Authorization for Use of
Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the
authority for the Armed Forces of the United States to detain covered persons
(as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons.-- A covered person under this section is any person as
follows:
(1) A person who planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored
those responsible for those attacks.
(2) A person who was 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, including any person who
has committed a belligerent act or has directly supported such
hostilities in aid of such enemy forces.
(c) Disposition Under Law of War.-- The disposition of a person under the
law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the
hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as
amended by the Military Commissions Act of 2009 (title XVIII of
Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal
having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of
origin, any other foreign country, or any other foreign entity.
22
(d) Construction.-- Nothing in this section is intended to limit or expand the
authority of the President or the scope of the Authorization for Use of
Military Force.
(e) 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.”70
But it is useful to set out the history of this provision, as it may shed light on its proper construction.
An initial version of this section was reported by the House Armed Services
Committee in May 2011.71 It affirmed that the United States “is engaged in an armed conflict with
al-Qaeda, the Taliban, and associated forces” and that the President has the authority to use force
against those who (A) are “part of, or are substantially supporting, al-Qaeda, the Taliban, or
associated forces” or (B) “have engaged in hostilities or have directly supported hostilities in aid of
a nation, organization, or person described in subparagraph (A).”72 Such use of force, the bill
provided, includes the power to detain such persons until the termination of hostilities.73 The
committee report stated the following about the provision:
“The committee notes that as the United States nears the tenth anniversary
of the attacks on September 11, 2001, the terrorist threat has evolved as a result of
intense military and diplomatic pressure from the United States and its coalition
partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave
threat to U.S. national security. The [AUMF] necessarily includes the authority to
address the continuing and evolving threat posed by these groups.
70
2012 NDAA § 1021.
71
H.R. 1540, 112th Cong. § 1034 (as reported by H. Comm. on Armed Services, May 17,
2011), available at
http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf.
72
Id.
73
Id.
23
“The committee supports the Executive Branch’s interpretation of the
[AUMF], as it was described in [the March 2009 Memo]. While this affirmation is
not intended to limit or alter the President’s existing authority pursuant to the
[AUMF], the Executive Branch’s March 13, 2009, interpretation remains consistent
with the scope of the authorities provided by Congress.”74
The Senate Armed Services Committee developed a different version of this section,
Section 1031 of S. 1253, which was reported out of committee on June 22, 2011.75 Subsections (a)-
(c) of that section were similar to subsections (a)-(c) of the later enacted Section 1021.76 Section
1031 of S. 1253, however, included a “limitation” stating that the detention authority “does not
extend to the detention of citizens or lawful resident aliens of the United States on the basis of
conduct taking place within the United States except to the extent permitted by the Constitution.”77
The committee report stated:
“[Section 1031] would authorize the [military] to detain unprivileged enemy
belligerents captured in the course of hostilities authorized by the [AUMF].
74
H.R. Rep. 112-78 at 209 (2011), available at
http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt78/pdf/CRPT-112hrpt78.pdf.
75
S. 1253, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, June 22, 2011),
available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1253rs/pdf/BILLS-112s1253rs.pdf.
Section 1031 was one of a number of sections in a subtitle entitled “Detainee Matters” in
this bill. The subtitle included also Section 1032, which mandated military detention of
non-citizen members of al-Qaeda who participated in planning or carrying out an attack
against the United States, subject to a national security waiver.
76
Id. There were some differences, however. The original Section 1031(a) did not use the
word “affirms” as did the eventual Section 1021(a). Moreover, this version described those
detainable as “unprivileged enemy belligerents” and limited detention to those “captured
in the course of hostilities,” both terms that were subsequently removed. Compare id.
§ 1031(a) with 2012 NDAA § 1021(a).
77
Id.
24
“The committee recognizes that the [military] do[es] not need specific
statutory authorization to detain enemy belligerents under the law of war when they
are captured in the course of any lawful armed conflict. Because the long-term nature
of the current conflict has led to the detention of a number of individuals for a period
that is not likely to end soon, the committee concludes that such statutory
authorization is appropriate in this case.”78
The detainee sections of S. 1253, including but not limited to Section 1031,
encountered some opposition from senators and the administration.79 After various consultations,
the Senate Armed Services Committee reported a revised version on November 15, 2011, as S. 1867.
Section 1031(a)–(d) of S. 1867 was identical to the ultimately enacted Section 1021(a)–(d).80 In
particular, S. 1867 removed the limitation regarding detention of citizens and lawful resident aliens
based on domestic conduct. It also added a provision stating, “Nothing in this section is intended
to limit or expand the authority of the President or the scope of the [AUMF].”81 On November 17,
the administration issued a Statement of Administration Policy which stated that Section 1031 was
unnecessary because the authority it attempted to codify already existed and expressed concern
about potential unintended consequences from legislative action in this area.82
78
S. Rep. 112-26 at 176 (2011), available at
http://www.gpo.gov/fdsys/pkg/CRPT-112srpt26/pdf/CRPT-112srpt26.pdf.
79
See Letter from Sen. Harry Reid to Sen. Carl Levin and Sen. John McCain (Oct. 4, 2011)
(stating that Sen. Reid would not bring bill to floor until concerns were resolved), reprinted
in 157 Cong. Rec. S6,323-03, S6,324 (daily ed. Oct. 6, 2011).
80
S. 1867, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, Nov. 15,
2011), available at
http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf.
81
Id. § 1031(d).
82
See Executive Office of the President, Statement of Administration Policy, S. 1867 –
National Defense Authorization Act for FY 2012 (Nov. 17, 2011), reprinted in 157 Cong.
25
In ensuing floor debates, a number of senators raised concerns that Section 1031
provided new authority to the President to detain American citizens indefinitely, with particular
concern about citizens captured domestically.83 Senator Dianne Feinstein unsuccessfully proposed
an amendment that would have provided: “The authority described in this section for the [military]
to detain a person does not include the authority to detain a citizen of the United States without trial
until the end of the hostilities.”84
Senator Feinstein prevailed in putting forth a second proposal, however, a so-called
“compromise amendment”85 that ultimately became Section 1021(e) and read, as enacted: “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
Rec. S7,943-01, S7,952 (daily ed. Nov. 29, 2011).
83
See, e.g., 157 Cong. Rec. S7,941-01, S7,941 (daily ed. Nov. 29, 2011) (“We are talking
about American citizens who could be taken from the United States and sent to a camp at
Guantanamo Bay and held indefinitely.”) (statement of Sen. Paul); 157 Cong. Rec. S7,943-
01, S7,945 (daily ed. Nov. 29, 2011) (“The provisions authorize the indefinite military
detention of American citizens who are suspected of involvement in terrorism—even those
captured here in our own country . . . .”) (statement of Sen. Udall); id. at S7,949 (“[Section
1031] will, for the first time in the history of the United States of America, authorize the
indefinite detention of American citizens in the United States.”) (statement of Sen. Durbin);
id. at S7,950 (“I am . . . very concerned about the notion of the protection of our own
citizens and our legal residents from military action inside our own country.”) (statement
of Sen. Webb); id. at S7,953 (“As currently written, the language in this bill would
authorize the military to indefinitely detain individuals—including U.S. citizens—without
charge or trial. I am fundamentally opposed to indefinite detention, and certainly when the
detainee is a U.S. citizen held without charge.”) (statement of Sen. Leahy); 157 Cong. Rec.
S7,956-02, S7,961 (daily ed. Nov. 29, 2011) (“Section 1031 runs the risk of authorizing the
indefinite detention without trial of Americans.”) (statement of Sen. Franken).
84
See 157 Cong. Rec. S7,716-01, S7,745 (daily ed. Nov. 17, 2011); 157 Cong. Rec. S8,094-
03, S8,125 (daily ed. Dec. 1, 2011).
85
Id. at S8,122.
26
captured or arrested in the United States.”86 In advancing this proposal, Senator Feinstein observed
that the dispute over Section 1031 boiled down to “different interpretations of what the current law
is.”87 Specifically, she noted that
“[t]he sponsors of the bill believe that current law authorizes the detention of
U.S. citizens arrested within the United States, without trial, until ‘the end of the
hostilities’ which, in my view, is indefinitely.
“Others of us believe that current law, including the Non-Detention Act that
was enacted in 1971, does not authorize such indefinite detention of U.S. citizens
arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case
supports their position, while others of us believe that Hamdi, by the plurality
opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on
the battlefield in Afghanistan, and does not extend to U.S. citizens arrested
domestically. And our concern was that section 1031 of the bill as originally drafted
could be interpreted as endorsing the broader interpretation of Hamdi and other
authorities.”88
Senator Feinstein went on to state that, through her second proposed amendment, the two camps
would agree to disagree:
“So our purpose in the second amendment, number 1456, is essentially to
declare a truce, to provide that section 1031 of this bill does not change existing law,
whichever side’s view is the correct one. So the sponsors can read Hamdi and other
authorities broadly, and opponents can read it more narrowly, and this bill does not
endorse either side’s interpretation, but leaves it to the courts to decide.”89
Senator Carl Levin, a principal sponsor of the bill and opponent of Senator Feinstein’s first proposed
amendment, supported her second proposal, stating:
86
2012 NDAA § 1021(e); see 157 Cong. Rec. S8,157-02, S8,157 (daily ed. Dec 1, 2011).
87
157 Cong Rec. S8,094-03, S8,122 (daily ed. Dec. 1, 2011) (statement of Sen. Feinstein).
88
Id. (case name italics added).
89
Id. (case name italics added).
27
“[I]t would provide the assurance that we are not adversely affecting the
rights of the U.S. citizens in this language. . . . It makes clear what we have been
saying this language already does, which is that it does not affect existing law
relative to the right of the executive branch to capture and detain a citizen. If that law
is there allowing it, it remains. If, as some argue, the law does not allow that, then
it continues that way.”90
Other senators, on both sides of the debate, also voiced their support and characterized the provision
similarly.91 The amendment passed by a vote of 99 to 1.92
Section 1031 of the Senate bill became the conference report’s Section 1021. It
passed Congress and was signed by President Obama on December 31, 2011. President Obama
issued a signing statement that reiterated his position that Section 1021 “breaks no new ground and
is unnecessary.”93 He cited Sections 1021(d) and (e) as “critical limitations” that “make clear
beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts
have recognized as lawful under the 2001 AUMF.”94 He stated also that his administration “will not
90
Id. at S8,124 (statement of Sen. Levin) (paragraph break omitted).
91
See id. (“To this day, the Supreme Court has never ruled on the question of whether it is
constitutional to indefinitely detain a U.S. citizen captured in the United States. Some of
my colleagues see this differently, but the language we have agreed on makes it clear that
section 1031 will not change that law in any way. The Supreme Court will decide who will
be detained; the Senate will not.”) (statement of Sen. Durbin); id. (“As to Senator Durbin,
he has one view, I have another, but we have a common view; that is, not to do anything to
1031 that would change the law. The ultimate authority on the law is not Lindsey Graham
or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be,
and that is exactly what we say here. We are doing nothing to change the law when it comes
to American citizen detention to enhance it or to restrict whatever rights the government has
or the citizen has.”) (statement of Sen. Graham).
92
Id. at S8,125.
93
Statement by the President on H.R. 1540, 2011 WL 6917659, *1 (Dec. 31, 2011).
94
Id.28
authorize the indefinite military detention without trial of American citizens” and “will interpret
section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution,
the laws of war, and all other applicable law.”95
E. Proceedings Below
Plaintiff Christopher Hedges filed the initial complaint in this case on January 13,
2012, alleging that Section 1021 violated, inter alia, the First and Fifth Amendments and seeking
declaratory and injunctive relief.96 On February 27, 2012, he filed a verified amended complaint,
which added a number of plaintiffs,97 and moved for a temporary restraining order against
enforcement of Section 1021, a motion that later was converted to a motion for a preliminary
injunction.98 Plaintiffs submitted a number of affidavits in support of their motion, and the district
court held an evidentiary hearing on March 30, 2012.99
Four plaintiffs submitted evidence that was considered by the district court and that
is relevant to this appeal: two American citizens, Hedges and Alexa O’Brien,100 and two non-
95
Id.96
Hedges v. Obama, No. 12 Civ. 331 (KBF), Dkt. 1 (S.D.N.Y.) [hereinafter “Dist. Ct. Dkt.”].
97
Dist. Ct. Dkt. 4-1 ¶¶ 2–8 (adding Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Kai
Wargalla, Birgitta Jonsdottir, Alexa O’Brien, and US Day of Rage as plaintiffs).
98
See Dist. Ct. Dkt. 6.
99
Dist. Ct. Dkt. 10–14, 17–18, 34.
100
The district court’s one reference to O’Brien’s citizenship status stated that she is a non-
citizen. Hedges v. Obama, 890 F. Supp.2d 424, 455 n.33 (S.D.N.Y. 2012). Both the
29
citizens, Birgitta Jonsdottir and Kai Wargalla.101 They are journalists or members of advocacy
organizations who assert that they fear that their work makes them subject to indefinite detention
under Section 1021.102 The government submitted no evidence.
The district court granted the preliminary injunction by opinion filed May 16, 2012.103
It concluded that each plaintiff had an actual fear of detention under Section 1021 and that this fear
was reasonable.104 In reaching this latter conclusion, the court relied in significant part on the
government’s initial refusal to represent that the plaintiffs’ activities would not subject them to
detention under Section 1021. It rejected the government’s contention that Section 1021 was just
an “affirmation” of the AUMF that did nothing new.105 Determining further that the expressive
conduct of each plaintiff had been chilled and that each had incurred concrete costs as a reasonable
complaint and O’Brien’s affidavit make clear that she asserts American citizenship, and
there is nothing in the record suggesting otherwise. The citizenship of the various plaintiffs
was not particularly relevant to the district court’s analysis. We conclude that its reference
to O’Brien as a non-citizen was a clerical error.
101
Hedges, O’Brien, and Wargalla were the only plaintiffs to testify at the hearing. Jonsdottir
did not testify but submitted an affidavit on consent of the parties. The district court did not
consider the other plaintiffs, and we need discuss them no further here. In the remainder
of this opinion, we refer to “plaintiffs” as denoting only these four individuals.
102
We discuss the testimony of plaintiffs in more detail as necessary below.
103
Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 1721124 (S.D.N.Y. May 16, 2012).
Although the initial order could have been read to suggest that the district court enjoined
Section 1021 in its entirety, see id. at *28, the court later clarified that the injunction applied
only to Section 1021(b)(2), see Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL
2044565, *1 (S.D.N.Y. June 6, 2012).
104
Hedges, 2012 WL 1721124 at *16–17.
105
Id. at *13–14.
30
consequence of this fear, the court concluded that each plaintiff had standing to challenge Section
1021.106 It held that plaintiffs had shown a likelihood of success on claims that Section 1021
violated the First Amendment and was impermissibly vague in violation of the Fifth Amendment.107
Finally, it concluded that the other relevant factors supported preliminary injunctive relief.108
The government moved for reconsideration on May 25, 2012, clarifying its position
by stating that, “[a]s 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.”109 By agreement of the
parties, the court proceeded directly to permanent injunction proceedings (thus mooting the motion
for reconsideration) and took no new evidence for purposes of the permanent injunction.
Concluding that the government’s “newly espoused position” did not alter its
previous conclusion as to plaintiffs’ standing,110 the court, on September 12, 2012, “permanently
enjoin[ed] enforcement of § 1021(b)(2) in any manner, as to any person,” generally affirming but
also significantly expanding its prior analysis.111 It further held that “[m]ilitary detention based on
106
Id. at *19.
107
Id. at *19–25.
108
Id. at *25–28.
109
Dist. Ct. Dkt. 38 at 4.
110
Hedges, 890 F. Supp.2d at 429.
111
Id. at 472.
31
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).”112
This appeal followed.113 We granted a temporary stay of the district court’s order on
September 17, 2012, and then granted a stay pending appeal on October 2, 2012.
II. Discussion
The parties raise a number of important and difficult questions, but we need not reach
most of them. We consider here only plaintiffs’ standing under Article III of the Constitution. We
begin with a brief discussion of the basic principles of Article III standing. We proceed to the proper
construction of Section 1021 in relation to the AUMF. After clarifying what Congress did and did
not do in passing Section 1021, we consider plaintiffs’ standing given the record in this case. In that
regard, we address first the American citizens, Hedges and O’Brien, and then the non-citizens,
Jonsdottir and Wargalla.
A. General Principles of Standing
The judicial power of the United States, and thus the jurisdiction of federal courts,
is limited by Article III of the Constitution to “Cases and Controversies.”114 One aspect of this
112
Id.
113
The government had appealed the district court’s preliminary injunction order as well, and
the two appeals were consolidated before this Court. The government correctly observes
that its appeal of the preliminary injunction is now moot. See Webb v. GAF Corp., 78 F.3d
53, 56 (2d Cir. 1996).
114
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (internal quotation marks
omitted).
32
limitation is the requirement that the plaintiff have standing to sue, which “serves to prevent the
judicial process from being used to usurp the powers of the political branches.”115 “The party
invoking federal jurisdiction bears the burden of establishing standing.”116 The “‘irreducible
constitutional minimum’” requires that (1) the plaintiff “‘have suffered an injury in fact—an
invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical,’” (2) the injury be “‘fairly traceable to the challenged
action of the defendant,’” and (3) it “‘be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.’”117 Actual injury-in-fact exists when a defendant’s actions
have inflicted a concrete, present harm on the plaintiff. But the Supreme Court has recognized that
a plaintiff in some circumstances may have standing to sue even when the plaintiff shows only an
imminent threat of future harm or a present harm incurred in consequence of such a threat.118 We
discuss these criteria in more detail as needed below.
B. The Proper Construction of Section 1021
We deal first with the meaning of Section 1021.
115
Id.116
Id. at 1148 (internal quotation marks omitted).
117
Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)) (alterations, emphasis, and other internal quotation
marks omitted).
118
See, e.g., Lujan, 504 U.S. at 564 & n.2; Clapper, 133 S. Ct. at 1150 n.5.
33
“As with any question of statutory interpretation, we begin by examining the text of
the statute.”119 In doing so, “we consider not only the bare meaning of the critical word or phrase
but also its placement and purpose in the statutory scheme.”120 It is “one of the most basic
interpretive canons[] that a statute should be construed so that effect is given to all its provisions,
so that no part will be inoperative or superfluous, void or insignificant.”121 But “in interpreting a
statute a court should always turn first to one, cardinal canon before all others,” namely that “courts
must presume that a legislature says in a statute what it means and means in a statute what it says
there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial
inquiry is complete.”122
The AUMF authorized the President to “use all necessary and appropriate force
against those nations, organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons.”123 Section 1021(a) “affirms” that the AUMF authority includes the detention of a “covered
119
Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012).
120
Id. (internal quotation marks omitted); see United States v. Robinson, 702 F.3d 22, 31 (2d
Cir. 2012) (“[T]he words of a statute are not to be read in isolation; statutory interpretation
is a holistic endeavor.” (emphasis and internal quotation marks omitted)).
121
Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and alterations
omitted).
122
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (internal quotation marks and
citations omitted); accord Carr v. United States, 560 U.S. 438, 130 S. Ct. 2229, 2241
(2010); United States v. Coppola, 671 F.3d 220, 240 (2d Cir. 2012).
123
AUMF § 2(a).
34
person[],” which under Section 1021(b) means (1) a “person who planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for
those attacks” or (2) a “person who was 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,
including any person who has committed a belligerent act or has directly supported such hostilities
in aid of such enemy forces.”
At first blush, Section 1021 may seem curious, if not contradictory. While Section
1021(b)(1) mimics language in the AUMF, Section 1021(b)(2) adds language absent from the
AUMF. Yet Section 1021(a) states that it only “affirms” authority included under the AUMF, and
Section 1021(d) indicates that Section 1021 is not “intended to limit or expand the authority of the
President or the scope of the [AUMF].”
Fortunately, this apparent contradiction—that Section 1021 merely affirms AUMF
authority even while it adds language not used in the AUMF—is readily resolved. It is true that the
language regarding persons who “planned, authorized, committed, or aided” the 9/11 attacks (or
harbored those who did) is identical in the AUMF and Section 1021(b)(1). The AUMF, however,
does not merely define persons who may be detained, as does Section 1021(b). Instead, it provides
the President authority to use “force” against the “nations, organizations, or persons” responsible
for 9/11.124 Section 1021(b)(1) (read with Section 1021(a)) affirms that the AUMF authority to use
force against the persons responsible for 9/11 includes a power to detain such persons. But it does
not speak to what additional detention authority, if any, is included in the President’s separate
AUMF authority to use force against the organizations responsible for 9/11.
124
For brevity in this section we refer to one “responsible for 9/11” as synonymous with one
who “planned, authorized, committed, or aided” the 9/11 attacks or harbored those who did
so, as those terms are used in the AUMF and Section 1021(b)(1).
35
This is where Section 1021(b)(2), a provision concerned with the organizations
responsible for 9/11—al-Qaeda and the Taliban—plays a role.125 Section 1021(b)(2) naturally is
understood to affirm that the general AUMF authority to use force against these organizations
includes the more specific authority to detain those who were part of, or those who substantially
supported, these organizations or associated forces.126 Because one obviously cannot “detain” an
organization, one must explain how the authority to use force against an organization translates into
detention authority.127 Hence, it is not surprising that Section 1021(b)(2) contains language that does
not appear in the AUMF, notwithstanding Section 1021(d). Plaintiffs create a false dilemma when
they suggest that either Section 1021 expands the AUMF detention authority or it serves no purpose.
Indeed, there are perfectly sensible and legitimate reasons for Congress to have
affirmed the nature of AUMF authority in this way. To the extent that reasonable minds might have
differed—and in fact very much did differ—over whether the administration could detain those who
125
The use of force against the Taliban may draw support also from the AUMF’s reference to
“nations” insofar as it was the government of Afghanistan when the AUMF was passed.
126
We are not the first to focus on the AUMF’s mention of “organizations.” Indeed, it is on
this reference that almost every inquiry into the scope of AUMF detention authority has
begun. See Hamdi, 542 U.S. at 518 (noting that AUMF authorizes use of force against
“nations, organizations or persons” associated with 9/11 and then stating that “[t]here can
be no doubt that individuals who fought against the United States in Afghanistan as part of
the Taliban, an organization known to have supported the al Qaeda terrorist network
responsible for those attacks, are individuals Congress sought to target in passing the
AUMF” (emphasis added) (internal quotation marks omitted)); Al-Bihani, 590 F.3d at 873;
Hamlily, 616 F. Supp.2d at 71; Gherebi, 609 F. Supp.2d at 55; Al-Marri, 534 F.3d at
259–61 (Traxler, J., concurring in judgment); id. at 286 (Williams, C.J., concurring in part
and dissenting in part); id. at 298 (Wilkinson, J., concurring in part and dissenting in part).
127
See Chesney, supra note 6, at 790 (“The AUMF is entirely silent with respect to the mix of
detention predicates and constraints that suffice to link a particular person to an
AUMF-covered group for purposes of detention or otherwise.”); see also Hathaway, supra
note 60, at 136–39.
36
were part of or substantially supported al-Qaeda, the Taliban, and associated forces under the AUMF
authority to use force against the “organizations” responsible for 9/11,128 Section 1021(b)(2)
eliminates any confusion on that particular point. At the same time, Section 1021(d) ensures that
Congress’ clarification may not properly be read to suggest that the President did not have this
authority previously—a suggestion that might have called into question prior detentions. This does
not necessarily make the section a “‘legislative attempt at an ex post facto “fix” . . . to try to ratify
past detentions which may have occurred under an overly-broad interpretation of the AUMF,’” as
plaintiffs contend.129 Rather, it is simply the 112th Congress’ express resolution of a previously
debated question about the scope of AUMF authority.130
It remains to consider what effect Section 1021(e) has on this understanding. That
provision states that “[n]othing in this section shall be construed to affect existing law or authorities
128
See, e.g., Al-Bihani, 590 F.3d at 872 (identifying authority to detain those “part of” and
those who “purposefully and materially support” enemy forces); Hamlily, 616 F. Supp.2d
at 77–78 (accepting “part of” but rejecting any reliance on “support”); Gherebi, 609 F.
Supp.2d at 70–71 (accepting both “part of” and “substantial support” but imposing
significant limits on what “substantial support” may encompass); Al-Marri, 534 F.3d at
323–29 (Wilkinson, J., concurring in part and dissenting in part) (identifying authority to
detain individuals only if they are both members of an enemy organization and have taken
steps to inflict harm to advance that organization’s military goals); id. at 285 (Williams,
C.J., concurring in part and dissenting in part) (requiring that individual have attempted or
have engaged in belligerent acts against the United States on behalf of enemy force); id. at
231 (Motz, J., concurring in judgment) (making enemy combatant status turn on “affiliation
with the military arm of an enemy nation”).
129
Appellee Br. 15 (quoting Hedges, 890 F. Supp.2d at 429).
130
In so construing the statute, we express no view regarding whether the original AUMF,
standing alone, implicitly authorized the detention of the individuals described by Section
1021(b)(2). See Fed. Hous. Admin. v. Darlington, Inc., 358 U.S. 84, 90 (1958)
(“Subsequent legislation which declares the intent of an earlier law is not, of course,
conclusive in determining what the previous Congress meant.”). We note only that this is
the view that the 112th Congress set forth in Section 1021.
37
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.” Although this provision may
appear superficially similar to Section 1021(d), nuances in the text and the legislative history make
clear that Section 1021(e) actually is a significantly different provision.
As discussed above, in stating that Section 1021 is not intended to limit or expand
the scope of the detention authority under the AUMF, Section 1021(d) mostly made a statement
about the original AUMF—that is, it indicated that the specific power to detain those who were part
of or who substantially supported the enumerated forces had been implicit in the more generally
phrased AUMF.131 By contrast, in saying that Section 1021 shall not be construed to affect “existing
law or authorities” relating to citizens, lawful resident aliens, or any other persons captured or
arrested in the United States, Section 1021(e) expressly disclaims any statement about existing
authority. Rather, it states only a limitation about how Section 1021 may be construed to affect that
existing authority, whatever that existing authority may be.132
This understanding is reinforced by the legislative history. As discussed above,
Senator Feinstein and others feared that Section 1021 would greatly expand the power of the
government with particular reference to the authority to detain American citizens captured
domestically. Senator Feinstein explained that she did not believe the government had such
authority while Senators Graham and Levin, perhaps among others, believed that the government
131
As we have no occasion in this opinion to construe the scope of the terms contained in
Section 1021(b)(2), we need not consider whether Section 1021(d) may have some bearing
also on how narrowly or broadly those terms should be construed.
132
A contrary interpretation of Section 1021(e) would risk rendering the provision surplusage
in light of Section 1021(d).
38
already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured
that—as to those covered by Section 1021(e)—courts would decide detention authority based not
on Section 1021(b), but on what the law previously had provided in the absence of that enactment.
This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s
AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens
from its requirements.133 Rather, 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.134
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
133
Under that section, the President shall hold in military detention members of al-Qaeda or
associated forces participating in an attack against the United States or coalition partners,
subject to a national security waiver. This requirement, however, “does not extend to [the
detention of] citizens of the United States.” 2012 NDAA § 1022(b)(1).
134
To the extent that the text of Section 1021(e) may not make explicit whether “captured or
arrested in the United States” is meant to modify only “any other persons” rather than
modifying also “United States citizens” and “lawful resident aliens of the United States,”
we conclude that the former reading is correct. First, because commas follow “United
States citizens” and “lawful resident aliens of the United States” but not “any other
persons,” under the rule of the last antecedent we read the limiting phrase as modifying only
the term immediately preceding it, unless a contrary intention is apparent. See Am. Int’l
Grp., Inc. v. Bank of Am. Corp., 712 F.3d 775, 782 (2d Cir. 2013); Allard K. Lowenstein
Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010).
Second, the alternative reading would render superfluous Congress’ references to citizens
and lawful resident aliens—Congress could have much more simply referred to “persons
captured or arrested in the United States.” Finally, legislative history provides no reason
to conclude otherwise. Although Senator Feinstein suggested that her principal concern was
the detention of American citizens apprehended on American soil, she and other senators
expressed concern about the detention of American citizens generally, see, e.g., 157 Cong.
Rec. S7,943-01, S7,953 (daily ed. Nov. 29, 2011) (statement of Sen. Leahy), and the
amendment was described in such terms, see 157 Cong. Rec. S8,094-03, S8,124 (daily ed.
Dec. 1, 2011) (statements of Sen. Levin and Sen. Graham).
39
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.135
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.136 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.137
135
Plaintiffs read Section 1021(e) as preserving only habeas corpus rights to such individuals.
This argument is unpersuasive. Section 1021(e) refers to “existing law or authorities”—a
broad term that bears no indication that it should be limited to habeas rights, particularly
when Section 1021 says nothing else about habeas.
136
See Hedges, 890 F. Supp.2d at 468 (noting that Section 1021(b)(2) “does not exclude
American citizens”).
We note further that while the district court erred in its treatment of Section 1021(e), see id.
at 466 n.40, the government invited the error by failing adequately to address the provision
throughout the proceedings below. While the government cited Section 1021(e) in its briefs
opposing the preliminary and permanent injunctions, the citations were brief and simply
combined Sections 1021(d) and (e) in support of the general argument that Section 1021
only reaffirmed the AUMF.
137
Because we conclude that the text of Section 1021(e) is clear and that our view of it is
confirmed by the legislative history, we need not consider whether our interpretation is
supported also by the requirement we previously have imposed for “clear congressional
authorization” of the detention of American citizens apprehended on American soil under
40
C. American Citizen Plaintiffs
With this understanding of Section 1021, we may dispose of the claims of the citizen
plaintiffs, Hedges and O’Brien. As discussed above, Section 1021 says nothing at all about the
authority of the government to detain citizens. There simply is no threat whatsoever that they could
be detained pursuant to that section.138 While it is true that Section 1021(e) does not foreclose the
possibility that previously “existing law” may permit the detention of American citizens in some
circumstances—a possibility that Hamdi clearly envisioned in any event—Section 1021 cannot itself
be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to
them it neither adds to nor subtracts from whatever authority would have existed in its absence. For
similar reasons, plaintiffs cannot show that any detention Hedges and O’Brien may fear would be
redressable by the relief they seek, an injunction of Section 1021.
Plaintiffs appear to contend that, even if Section 1021 is not applicable to Hedges and
O’Brien, the wording of Section 1021(e) seems to “assume” that citizens may be detained if they
have substantially supported al-Qaeda and that Hedges and O’Brien therefore have standing to
challenge it. We disagree. There is nothing in Section 1021 that makes any assumptions about the
government’s authority to detain citizens under the AUMF. Rather, Section 1021(e) quite
specifically makes clear that the section should not be construed to affect in any way existing law
or authorities relating to citizen detention, whatever those authorities may provide.
the Non-Detention Act. Padilla, 352 F.3d at 699, rev’d on jurisdictional grounds, 542 U.S.
426. Nor need we consider whether this interpretation is supported by the canon of
constitutional avoidance. See Ctr. for Nat’l Sec. Studies Amici Br. 7, 10, 12 (advancing
these arguments).
138
We have no occasion to consider whether Hedges and O’Brien would have standing to
challenge the AUMF, as no such challenge is presented here. Nor need we consider the
scope of the government’s authority to detain American citizens under the AUMF.
41
D. Non-citizen Plaintiffs
The claims of Jonsdottir and Wargalla stand differently. Whereas Section 1021 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.139 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. To be sure, Section
1021 in substance provides also that this authority was implicit in the original AUMF. But, as
discussed above, that the 112th Congress in passing Section 1021 expressed such a view does not
mean that Section 1021 itself is a nullity. It is not immediately apparent on the face of the AUMF
alone that the President had the authority to detain those who substantially supported al-Qaeda, and
indeed many federal judges had concluded otherwise prior to Section 1021's passage. Hence,
Section 1021(b)(2) sets forth an interpretation of the AUMF that had not previously been codified
by Congress. Where a statute codifies an interpretation of an earlier law that is subject to reasonable
dispute, the interpretive statute itself may affect the rights of persons under the earlier law.
As the standing inquiry as to these two plaintiffs is more involved, we discuss the
relevant facts and applicable law in detail.140
139
No party contends that either Jonsdottir or Wargalla is a lawful resident alien.
140
Our dismissal of the citizen plaintiffs exposes an issue that the district court did not have
occasion to address below, whether Jonsdottir and Wargalla may assert First or Fifth
Amendment rights under the Constitution. Both are non-citizens who live abroad and have
few, if any, connections to the United States. In United States v. Verdugo-Urquidez, the
Supreme Court observed that the First Amendment’s reference to “the people” suggested
that the rights belong “to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to be considered part of
that community.” 494 U.S. 259, 265 (1990) (suggesting further that an “[e]xcludable alien
is not entitled to First Amendment rights, because ‘he does not become one of the people
to whom these things are secured by our Constitution by an attempt to enter forbidden by
42
1. Relevant Facts
Jonsdottir is a citizen of Iceland and a member of its parliament. She is an activist
and spokesperson for a number of groups, including WikiLeaks, an organization famous for
releasing troves of classified information of the United States government to the public. In early
2010, Jonsdottir helped WikiLeaks produce the video Collateral Murder, which allegedly depicts
an American helicopter opening fire on unarmed individuals in Iraq. She testified that, around the
same time, she had been working with people around the world, including some at WikiLeaks, to
create a safe haven for freedom of information in Iceland. Jonsdottir testified that Collateral Murder
made WikiLeaks known to the world shortly before its release later in 2010 of the Afghan and Iraq
war logs and a substantial number of State Department cables—classified information allegedly
leaked to WikiLeaks by one Bradley Manning. Jonsdottir further testified that she is aware that
Manning has been charged by the United States government for aiding the enemy on the ground that
he knew the classified information he provided to WikiLeaks would end up in the hands of al-Qaeda.
She testified that a number of American politicians have called WikiLeaks a terrorist organization
law’” (quoting U.S. ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904)) (alterations
omitted)); see also DKT Mem’l Fund v. Agency for Int’l Dev., 887 F.2d 275, 284 (D.C. Cir.
1989). Moreover, Verdugo-Urquidez read Johnson v. Eisentrager, 339 U.S. 763, 784
(1950), as “emphatic[ally]” rejecting the “extraterritorial application of the Fifth
Amendment.” 494 U.S. at 269. But see id. at 290–91 (Brennan, J., dissenting) (contending
that Eisentrager was specific to the rights of enemy soldiers).
The case law regarding extraterritorial application of constitutional rights is sparse.
Verdugo-Urquidez itself was a Fourth Amendment case. The relevant facts in the present
case were not developed below as they were not necessary to the district court’s decision.
We therefore decline to consider this issue, which is not necessary in order to resolve the
case before us. We assume, without deciding, that Jonsdottir and Wargalla may assert First
and Fifth Amendment rights.
43
and that the government has been considering criminal charges against the organization and its
founder, Julian Assange. As part of this investigation, she has received a subpoena from a federal
grand jury for content from her Twitter account. She has received a number of invitations to speak
in the United States, but will not travel here—thereby forgoing contacts and compensation—because
of the subpoena and her fears of detention under Section 1021.
Wargalla, a German citizen, is an organizer and activist based in London, and is
associated with the organizations Revolution Truth, Occupy London, and Justice for Assange UK.
She testified that Occupy London has been listed as a terrorist group by the City of London police
department. Moreover, she testified that she has been a supporter of WikiLeaks since 2010 as it was
releasing the classified information noted above. Since January 2011, she has organized rallies,
demonstrations, and protests on behalf of Assange and Manning. She testified that she has met
Assange, who is familiar with her support, and has had contact with other employees of WikiLeaks.
Wargalla testified that her fears of detention under Section 1021 have made it nearly impossible to
pursue her everyday work.
The district court found that both Jonsdottir and Wargalla had an actual fear of
detention under Section 1021 and had incurred costs and other present injuries due to this fear.141
2. Fear-based Standing Law
We have no occasion to disturb the factual findings of the district court, which are
well-supported by the record, or to question the truth of the factual testimony of the plaintiffs, which
141
Hedges, 890 F. Supp.2d at 436–37.
44
the district court found credible.142 Rather, we are faced only with a question of law: whether the
non-citizen plaintiffs’ fears of enforcement, as well as any present costs they have incurred as a
result of those fears, establish their standing to bring this challenge.
As discussed earlier, the Supreme Court has recognized that such fears may support
standing when the threat creating the fear is sufficiently imminent. The Supreme Court’s
jurisprudence regarding how imminent a threat must be in order to support standing, however, has
been less than clear. In Clapper v. Amnesty International USA,143 the Court recently concluded that
the plaintiffs did not have standing to challenge a statute expanding the government’s surveillance
capabilities as violating, inter alia, the First and Fourth Amendments because they had failed to
show that government interceptions of their communications were “certainly impending.”144 The
Court further concluded that, to the extent the plaintiffs had suffered present injuries because of their
fear of such interception, they “cannot manufacture standing by choosing to make expenditures
based on hypothetical future harm that is not certainly impending.”145 Yet at the same time, a
footnote in Clapper recognized that the Court has not uniformly required that it be “literally certain
that the harms [plaintiffs] identify will come about” and sometimes found standing to sue where
142
See id. at 432.
143
133 S. Ct. 1138.
144
Id. at 1143 (internal quotation marks omitted). In applying the relevant standing principles
below, the district court did not have the benefit of Clapper—decided after oral argument
of this appeal—but instead was bound by our prior decision in that case, which the Supreme
Court reversed. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133
S. Ct. 1138.
145
Id.45
plaintiffs showed only a “‘substantial risk’ that the harm will occur, which may prompt plaintiffs
to reasonably incur costs to mitigate or avoid that harm.”146 The Court did not explain when such
a standard might apply, noting only that the plaintiffs in Clapper failed that test as well to whatever
extent it might have been relevant and distinct.147
One of the cases that Clapper cited as using a potentially more permissive standard
was a preenforcement challenge to a criminal statute.148 In Babbitt v. United Farm Workers National
Union,149 the Court held that when a plaintiff “has alleged an intention to engage in a course of
conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists
a credible threat of prosecution thereunder, he should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.”150 Put differently, the Court held that a
plaintiff has standing to make a preenforcement challenge “when fear of criminal prosecution under
an allegedly unconstitutional statute is not imaginary or wholly speculative.”151 It has applied that
146
Id. at 1150 n.5.
147
Id.148
Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Note
that Babbitt does not use the term “substantial risk,” however. That term came from a
different case cited by the Clapper footnote, Monsanto Co. v. Geertson Seed Farms, 130
S. Ct. 2743, 2754–55 (2010).
149
442 U.S. 289.
150
Id. at 298 (internal quotation marks omitted); see id. (noting more generally that a plaintiff
“must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s
operation or enforcement”).
151
Id. at 302.
46
principle in a number of cases challenging criminal statutes—finding standing where the plaintiff
“will have to take significant and costly compliance measures or risk criminal prosecution”152—and
in the civil context as well.153 The First Circuit has observed that the Babbitt standard sets a “low
threshold” and is “quite forgiving” to plaintiffs seeking such preenforcement review.154
Part of what makes the Court’s approach in these cases “forgiving” is that it appears
willing to presume that the government will enforce the law as long as the relevant statute is “recent
and not moribund.”155 Thus, in numerous preenforcement cases where the Supreme Court has found
152
Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988); see id. at 393 (finding
standing where plaintiffs had “actual and well-founded fear that the law will be enforced
against them”); Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010)
(“HLP”) (concluding that case was justiciable because plaintiffs faced “credible threat of
prosecution” under material support statute based on their stated intended activities (internal
quotation marks omitted)); Doe v. Bolton, 410 U.S. 179, 188–89 (1973) (identifying
justiciable controversy in challenge to recent criminal abortion statute because plaintiffs
faced “sufficiently direct threat of personal detriment” even though no prosecution had been
threatened); but see Poe v. Ullman, 367 U.S. 497, 507–08 (1961) (plurality opinion)
(concluding that where contraceptive statute had been on books for eighty years and been
enforced only once, preenforcement challenge was not justiciable); id. at 509 (Brennan, J.,
concurring in judgment) (similar).
We have read the differing language of these cases to imply that the requisite standard for
standing varies with the constitutional right asserted. See Am. Booksellers Found. v. Dean,
342 F.3d 96, 101 (2d Cir. 2003) (concluding that “actual and well-founded fear” standard
governed First Amendment challenges, while the “slightly higher” standard of “realistic
danger” governed non-First Amendment challenges (internal quotation marks omitted)).
We need not here decide whether this distinction survives subsequent Supreme Court
jurisprudence. See HLP, 130 S. Ct. at 2717 (applying “credible threat of prosecution”
standard to challenge involving both First and Fifth Amendments).
153
See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129–30 (2007) (concluding that
plaintiff need not expose itself to civil liability by breaching royalty agreement when it
seeks declaratory judgment that no royalties are owed).
154
N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14–15 (1st Cir. 1996).
155
Doe, 410 U.S. at 188.
47
standing on a showing that a statute indisputably proscribed the conduct at issue, it did not place the
burden on the plaintiff to show an intent by the government to enforce the law against it. Rather,
it presumed such intent in the absence of a disavowal by the government or another reason to
conclude that no such intent existed.156
These cases do not explain how to evaluate preenforcement standing when it is not
apparent whether a plaintiff is subject to the statute and when the government actively disputes that
it is. Nor do they address a situation in which the government disavowed any intention to prosecute
plaintiff, regardless of the appropriate interpretation of the statute.157 But this Court did consider
such circumstances in Vermont Right to Life Committee v. Sorrell.158
The state there argued that the plaintiff lacked standing because the statute did not
proscribe plaintiff’s conduct. A divided panel of this Court rejected that argument in reliance on
156
See HLP, 130 S. Ct. at 2717 (noting that “Government has not argued to this Court that
plaintiffs will not be prosecuted if they do what they say they wish to do”); Am. Booksellers,
484 U.S. at 393 (noting that “State has not suggested that the newly enacted law will not be
enforced, and we see no reason to assume otherwise”); Babbitt, 442 U.S. at 302 (identifying
justiciable controversy, even though “criminal penalty provision has not yet been applied
and may never be applied to commissions of unfair labor practices” in part because “State
has not disavowed any intention of invoking the criminal penalty provision against unions
that commit unfair labor practices”).
157
See HLP, 130 S. Ct. at 2717; Am. Booksellers, 484 U.S. at 393; Babbitt, 442 U.S. at 302.
In Poe v. Ullman, a plurality of the Court did opine that “the mere existence of a state penal
statute would constitute insufficient grounds to support a federal court’s adjudication of its
constitutionality in proceedings brought against the State’s prosecuting officials if real
threat of enforcement is wanting.” 367 U.S. at 507 (citing Ex parte La Prade, 289 U.S. 444,
458 (1933)). The plurality went on to observe that “[i]f the prosecutor expressly agrees not
to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary
case as will be reviewed here.” Id. (citing C.I.O. v. McAdory, 325 U.S. 472, 475 (1945)).
158
221 F.3d 376 (2d Cir. 2000).
48
Babbitt. The majority concluded that “while there may be other, perhaps even better, definitions”
of the disputed statutory term, plaintiff’s interpretation of the statute, which would have covered its
conduct, was “reasonable enough that [plaintiff] may legitimately fear that it will face enforcement
of the statute by the [s]tate brandishing the definition proffered” by plaintiff.159 To the extent that
the state contended that it had no intention of suing plaintiff for its activities, we said “there is
nothing that prevents the [s]tate from changing its mind” and that allowing the state’s presently
stated intention to defeat standing “would be placing [plaintiff’s] asserted First Amendment rights
at the sufferance of Vermont’s Attorney General.”160
Similarly, in Pacific Capital Bank v. Connecticut,161 we relied on Vermont Right to
Life to hold that plaintiff established standing to challenge a civil penalty provision despite the
state’s argument that it never had enforced the statute against anyone and that “it is unknown how
the [s]tate will apply that section in any future enforcement action.”162
3. Coverage Under Section 1021(b)(2)
As in Vermont Right to Life, the government here disputes that plaintiffs are subject
to the statute. Plaintiffs never articulate a precise theory on which they fear detention under Section
159
Id. at 383.
160
Id. (internal quotation marks omitted); accord Citizens for Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1192 (10th Cir. 2000) (rejecting reliance on
representation by state that plaintiffs will not be prosecuted, citing Vt. Right to Life).
161
542 F.3d 341 (2d Cir. 2008).
162
Id. at 350.
49
1021(b)(2)—that is, in what sense the government may conclude that they 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.” The strongest argument would seem to be a
contention that the work of Jonsdottir and Wargalla substantially, if indirectly, supports al-Qaeda
and the Taliban as the term “support” is understood colloquially.163 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.164 One perhaps might fear that
163
Both Jonsdottir and Wargalla refer extensively also to suggestions by some that WikiLeaks
is a terrorist organization. But Section 1021(b)(2) on its face does not authorize the
President to detain an individual solely for supporting any terrorist group. Rather, the
individual must have substantially supported “associated forces that are engaged in
hostilities against the United States or its coalition partners.” Plaintiffs do not attempt to
show that WikiLeaks could be deemed such a force.
Wargalla contends also that Occupy London is viewed as a terrorist group, and she fears
that the group may be deemed “associated” with al-Qaeda because both groups were
mentioned (along with the Revolutionary Armed Forces of Colombia (FARC) and two
individuals who bombed a railway in Belarus) on a London police document entitled
“Terrorism/Extremism update for the City of London Business Community.” Dist. Ct. Dkt.
18-2. We need not develop a sophisticated understanding of the term “associated” under
Section 1021(b)(2) to dismiss the contention that it is sufficient to show merely that the
group has been listed on the same government document as al-Qaeda.
164
One article reports that the Taliban threatened to hunt down Afghan civilians cooperating
with NATO forces whose names WikiLeaks revealed. See Philip Shenon, “U.S. Urges
Allies to Crack Down on WikiLeaks,” THE DAILY BEAST (Aug. 10, 2010), available at
http://www.thedailybeast.com/articles/2010/08/10/a-western-crackdown-on-wikileaks.html.
Another reports that WikiLeaks confirmed previously secret American involvement in an
50
Jonsdottir’s and Wargalla’s efforts on behalf of WikiLeaks 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. It points
to (1) the Hamdi plurality’s limitation of the duration of the detention authority it recognized based
on the laws of war, (2) the March 2009 Memo’s repeated invocation of law-of-war limiting
principles and the legislative history suggesting that Section 1021 was meant to codify the
interpretation that the Memo set forth, (3) Section 1021(d), to the extent that Hamdi and the
administration suggested that the laws of war inform AUMF authority, as bearing on how broadly
“substantial support” may be construed, and (4) the references to “law of war” in Section 1021 itself,
albeit not in Section 1021(b)(2). 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.
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
attack that allegedly killed al-Qaeda militants in Yemen. See Glenn Greenwald, “Obama’s
personal role in a journalist’s imprisonment,” SALON.COM (Mar. 14, 2012), available at
http://www.salon.com/2012/03/14/obamas_personal_role_in_a_journalists_imprisonment/.
Because standing is wanting in any event, we need not consider whether the fact that these
articles were not admitted for the truth of the matters they assert affects the analysis.
51
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.165
4. Threat of Enforcement
We next consider whether there is a sufficient threat of enforcement even given this
assumption. This inquiry corresponds to (1) our suggestions in Vermont Right to Life and Pacific
Capital Bank that a plaintiff has standing when it “‘may legitimately fear that it will face
enforcement’” under its reasonable interpretation of the statute166 and (2) the Supreme Court’s
recognition that a preenforcement challenge is justiciable when enforcement is a “realistic
danger,”167 when there is a “credible threat of prosecution,”168 or when a plaintiff has an “actual and
well-founded fear”169 of such enforcement. As noted above, however, neither this Court nor the
165
Of course, it would do so only insofar as they fear the United States apprehending them
abroad. Under Section 1021(e), Section 1021 has no bearing on the government’s authority
to detain any individual captured or arrested in the United States.
166
Pacific Capital Bank, 542 F.3d at 350 (quoting Vt. Right to Life, 221 F.3d at 383).
167
Babbitt, 442 U.S. at 298.
168
Id. (citing Doe, 410 U.S. at 188); accord HLP, 130 S. Ct. at 2717.
169
Am. Booksellers Ass’n, 484 U.S. at 393.
52
Supreme Court has required much to establish this final step in challenges to ordinary criminal or
civil punitive statutes. Rather, we have presumed that the government will enforce the law.
The question is the extent to which such a presumption is applicable here. The
district court concluded that it was, reasoning that Section 1021 “is equivalent to a criminal statute”
because “the possibility of being placed in indefinite military detention is the equivalent of a
criminal penalty.”170 Certainly we agree that military detention until the termination of hostilities
would be severe and that the prospect of such detention can be “as inhibiting of speech as can
trepidation in the face of threatened criminal prosecution.”171 But that is a separate question from
whether it is appropriate to presume that Section 1021 will be enforced as would any criminal or
civil punitive statute.
On this point, there are several important differences between Section 1021 and a
typical statute imposing criminal or civil penalties. Section 1021 is not a law enforcement statute,
but an affirmation of the President’s military authority.172 As discussed above, it applies only to
individuals who are not citizens, are not lawful resident aliens, and are apprehended outside the
United States. It thus speaks entirely to the authority of the President in the context of military
force, national security, and foreign affairs, areas in which the President generally enjoys “unique
170
Hedges, 890 F. Supp.2d at 450 n.29.
171
Vt. Right to Life, 221 F.3d at 382.
172
The Hamdi plurality observed that military detention “‘is neither a punishment nor an act
of vengeance, but merely a temporary detention which is devoid of all penal character. A
prisoner of war is no convict; his imprisonment is a simple war measure.’” 542 U.S. at 518
(quoting W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920)) (other internal
quotation marks and alterations omitted).
53
responsibility”173 and “broad discretion.”174 The Supreme Court has recognized that “Congress
cannot anticipate and legislate with regard to every possible action the President may find it
necessary to take” in the fields of national security and foreign affairs.175 As a result, “Congress—in
giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush
broader than that it customarily wields in domestic areas.”176
Moreover, Section 1021 “at most authorizes—but does not mandate or direct”— the
detention that plaintiffs fear.177 To be sure, the executive branch enjoys prosecutorial discretion with
regard to traditional punitive statutes. Congress generally does not mandate or direct criminal
prosecution or civil enforcement.178 But we can distinguish between Congress, on the one hand,
proscribing a certain act and then leaving it to the President to enforce the law under his
constitutional duty to “take Care that the Laws be faithfully executed”179 and Congress, on the other
hand, authorizing the President to use a certain kind of military force against non-citizens abroad.
173
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (internal quotation marks omitted).
174
Olegario v. United States, 629 F.2d 204, 233 (2d Cir. 1980).
175
Dames & Moore v. Regan, 453 U.S. 654, 678 (1981).
176
Haig v. Agee, 453 U.S. 280, 292 (1981) (emphasis and internal quotation marks omitted).
177
Clapper, 133 S. Ct. at 1149 (emphasis in original).
178
See Abuelhawa v. United States, 556 U.S. 816, 823 n.3 (2009) (recognizing that “Congress
legislates against a background assumption of prosecutorial discretion”).
179
U.S. CONST. art. II, § 3; accord United States v. Valenzuela-Bernal, 458 U.S. 858, 863
(1982) (“One of the duties of the Executive Branch, and a vitally important one, is that of
apprehending and obtaining the conviction of those who have violated criminal statutes of
the United States.”).
54
Consequently, there is a world of difference between assuming that a state executive
will enforce a statute imposing civil penalties for certain campaign finance violations180—or even
that the executive branch will enforce a federal criminal statute barring provision of material support
to terrorists181—and assuming that the President will detain any non-citizen abroad that Congress
authorizes him to detain under the AUMF. Clapper further supports this understanding, as it made
clear that plaintiffs cannot establish standing on the basis of speculation about how the government
may choose to utilize its authority to engage in foreign surveillance.182 In short, while it generally
may be appropriate to presume for standing purposes that the government will enforce the law
against a plaintiff covered by a traditional punitive statute, such a presumption carries less force with
regard to a statute concerned entirely with the President’s authority to use military force against non-
citizens abroad.183 Thus, in the circumstances of this case, Jonsdottir and Wargalla must show more
than that the statute covers their conduct to establish preenforcement standing.
180
Vt. Right to Life, 221 F.3d 376.
181
HLP, 130 S. Ct. 2705.
182
See 133 S. Ct. at 1148–49.
183
We do not rely on any notion that Article III standing rules are different just because this
case implicates national security and foreign affairs. Rather, we note only that plaintiffs in
the circumstances presented need to show more to establish a sufficiently imminent threat
of enforcement; Congress and the Constitution provide the President with broad discretion
in these areas and thus a presumption of enforcement may be less apt. This is consistent
with the Supreme Court’s observation that it has “often found a lack of standing in cases in
which the Judiciary has been requested to review actions of the political branches in the
fields of intelligence gathering and foreign affairs.” Id. at 1147.
55
We need not quantify precisely what more is required184 because Jonsdottir and
Wargalla have shown nothing further here. Indeed, they have not established a basis for concluding
that enforcement against them is even remotely likely. We reach this conclusion independent of the
government’s litigation position on appeal that plaintiffs are “in no danger whatsoever” of being
detained on the basis of their stated activities.185
First, even assuming that Jonsdottir and Wargalla fall within the ambit of authority
provided by the statute, this is certainly not a case in which “the law is aimed directly at
plaintiffs.”186 They point to nothing in the record, or in the text or legislative history of Section
1021, that suggests that the statute was passed to facilitate the military detention of individuals
specifically like them.
Second, while we do not hold that a specific threat of enforcement is necessary,
neither Jonsdottir nor Wargalla has adduced any evidence that the government intends or has
184
In particular, we need not determine whether, in light of the foregoing considerations, the
preenforcement Babbitt line of cases is inapplicable altogether and whether plaintiffs must
satisfy the Clapper “certainly impending” standard to prevail. Nor need we resolve whether
the proper preenforcement standard is “legitimate fear,” “realistic danger,” “credible threat
of prosecution,” or “actual and well-founded fear,” or—more to the point—whether there
is any meaningful difference among these standards. Cf. Amnesty Int’l USA v. McConnell,
646 F. Supp.2d 633, 644 n.12 (S.D.N.Y. 2009) (questioning this Court’s prior suggestion
that “realistic danger” is a slightly higher standard than “actual and well-founded fear”),
vacated on other grounds sub nom. 638 F.3d 118, rev’d, 133 S. Ct. 1138; Clapper, 133 S.
Ct. at 1160–61 (Breyer, J., dissenting) (listing other terms Supreme Court has used to
describe requisite imminence in cases of future harm).
185
Appellant Br. 1.
186
Am. Booksellers, 484 U.S. at 392.
56
threatened to place them in military detention.187
Third, they have not put forth evidence that individuals even remotely similarly
situated have been subjected to military detention.188 The government argues that this latter failure
187
Jonsdottir testified that she has been subject to a U.S. grand jury subpoena as part of a
criminal investigation into WikiLeaks. Even assuming that the mere issuance of a subpoena
demonstrates intent to prosecute Jonsdottir criminally—not a reasonable assumption in any
event—Clapper makes clear that this would not help her cause. The Court there concluded
that evidence of surveillance under a prior statute detracted from standing, because plaintiffs
could only speculate about whether any government surveillance would occur under the
new statute, rather than under other existing authority. See 133 S. Ct. at 1152. Likewise
here, the evidence that the government may have been criminally investigating Jonsdottir
would not support her fear of military detention.
For similar reasons, the evidence that the administration is prosecuting Bradley Manning
for aiding al-Qaeda and that administration officials and members of Congress have
described WikiLeaks as a terrorist organization does not support plaintiffs’ position.
188
A record article concerns one Sami Alhaj, who reportedly had worked for Al Jazeera as a
cameraman before his military detention at Guantánamo. See Magda Abu-Fadil, Sami
Alhaj: From Gitmo Detainee Back to Al Jazeera as Liberties/Human Rights Advocate,
HUFFINGTON POST (Jan. 6, 2012), available at
http://www.huffingtonpost.com/magda-abufadil/sami-alhaj-Guantanamo_b_1189590.html.
But that same article quotes a Department of Defense memorandum listing Alhaj as a
member of al-Qaeda who was a money courier, propagandist, and logistics expert involved
in a plan to provide Stinger missiles to Islamic extremists in Chechnya. We cannot
conclude that Alhaj is situated similarly to Jonsdottir and Wargalla in these circumstances.
Record articles report also that the Obama administration purportedly encouraged the
Yemeni government not to pardon a Yemeni journalist, Abdulelah Haider Shaye, convicted
of terrorism-related charges. See, e.g., Greenwald, supra note 164. The record does not
explain the administration’s concerns, however, notwithstanding the speculation of one
article’s author that it was upset about Shaye’s reporting of allegedly embarrassing
information. Moreover, Shaye was not held by the United States military, rendering his
case quite different from what plaintiffs fear.
The district court concluded that it was “patently unfair” to expect plaintiffs to point to
examples of similarly situated individuals being detained, as the reasons individuals may
be detained generally is known only to the government. Hedges, 890 F. Supp.2d at 439
n.19. But Clapper—issued after the district court’s decision—makes clear that the secrecy
of government action does not relieve plaintiffs of the burden to establish standing. In any
event, we do not require plaintiffs to come forward with any specific kind of evidence,
including that of similarly situated individuals who have been detained. We hold only that
57
is particularly meaningful because, it contends, Section 1021 codified an interpretation “that the
President had long articulated and exercised and that the Judiciary had repeatedly recognized.”189
To be sure, the government overstates its case on this point. As the history of
litigation regarding the scope of AUMF detention authority shows, numerous courts criticized or
rejected the government’s reliance on substantial support in the March 2009 Memo. Prior to that,
a divided Fourth Circuit set forth a number of different interpretations of executive detention
authority, none of which resembled the government’s position.190 While the D.C. Circuit’s decision
in Al-Bihani is supportive of the government’s standard, it focused primarily on a “purposeful and
material support” standard, the relationship of which to “substantial support” is not clear. Simply
put, to the extent that Congress resolved a previously debated question about the scope of AUMF
detention authority in passing Section 1021, it was not obvious that the answer it provided is the one
that ultimately would have prevailed had Congress not passed anything at all.191 In light of this
uncertainty, at least in principle Section 1021's codification of the “substantial support” standard
could place the administration on stronger footing to detain individuals under such a theory than it
might have been willing to risk previously.
the evidence submitted here is insufficient to meet plaintiffs’ burden.
189
Appellant Br. 8.
190
But see Vladeck, supra note 60, at 1457 n.36 (noting that some constraints identified by Al-
Marri judges may have been specific to context of lawfully present non-citizens
apprehended in United States).
191
Moreover, even the executive branch’s embrace of the “substantial support” standard prior
to Section 1021's passage had appeared cautious, at best. As noted above, it is not apparent
whether this administration ever has detained an individual solely as a substantial supporter.
It appears nearly exclusively to have relied on a “part of” theory to justify its detentions, and
it specifically has foresworn reliance on support in at least two cases.
58
Nevertheless, plaintiffs bear the burden of establishing standing.192 Whether Section
1021 can or will alter executive practice, particularly with regard to individuals like them, is purely
a matter of speculation. The fact remains that—despite the executive at least nominally asserting
the authority to detain on the basis of “support” since the 2004 CSRT enemy combatant definition,
and on the basis of “substantial support” since the March 2009 Memo,193 and despite the D.C.
Circuit recognizing the lawfulness of detention at least on the basis of “purposeful and material
support” since 2010—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.194
Nothing in this decision should be confused as deference to the political branches
because the case involves national security and foreign affairs. We adhere to the principle that
courts have a vigorous and meaningful role to play in assessing the propriety of military detention,
as the Supreme Court has made clear in cases from Hamdi to Boumediene.195 We hold only that a
192
See Clapper, 133 S. Ct. at 1149 n.4 (“[I]t is [plaintiffs’] burden to prove their standing by
pointing to specific facts, not the Government’s burden to disprove standing by revealing
details of its surveillance priorities.” (citation omitted)).
193
While the March 2009 Memo was, on its face, specific to authority to detain those then held
at Guantánamo, there is nothing in the record to suggest that the government had any
different view of its authority outside of Guantánamo.
194
Clapper, 133 S. Ct. at 1151.
195
See Hamdi, 542 U.S. at 532 (“It is during our most challenging and uncertain moments that
our Nation's commitment to due process is most severely tested; and it is in those times that
59
court first must satisfy itself that the case comports with the “irreducible constitutional minimum”
of Article III standing.196 This inquiry is rooted in fundamental separation-of-powers principles and
must be “especially rigorous” where, as here, the merits of the dispute require the court to “decide
whether an action taken by one of the other two branches of the Federal Government was
unconstitutional.”197 Section 1021 is concerned entirely with the military authority of the President
with respect to non-citizens abroad—a context in which Congress provides the President broad
authority to exercise with considerable discretion. Particularly after Clapper, plaintiffs must show
more than that they fall within the ambit of this authority to establish the sufficient threat of
enforcement necessary for Article III standing. They have failed to do so here.
A final note: Plaintiffs repeatedly refer to the First Amendment overbreadth doctrine
as if it were relevant to whether they have established Article III standing. It is not. Relaxing the
general prudential rule against third-party standing, the overbreadth doctrine permits a plaintiff to
represent the legal interests of parties not before the court when seeking facial invalidation of a
statute under the First Amendment, if certain conditions are met.198 Critically, “[w]e allow a party
to bring an overbreadth challenge where that party ‘satisfies the Article III requirement of “injury-in-
we must preserve our commitment at home to the principles for which we fight abroad.”);
Boumediene, 553 U.S. at 798 (“The laws and Constitution are designed to survive, and
remain in force, in extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law.”).
196
Lujan, 504 U.S. at 560.
197
Clapper, 133 S. Ct. at 1147 (internal quotation marks omitted).
198
Farrell v. Burke, 449 F.3d 470, 494–95 (2d Cir. 2006) (Sotomayor, J.); see Virginia v.
Hicks, 539 U.S. 113, 118–19 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 612–15 (1973).
60
fact” and where it can be expected satisfactorily to frame the issues in the case.’”199 In other words,
the overbreadth doctrine speaks to whose interests a plaintiff suffering Article III injury may
represent. It does not provide a reason to find such injury where none is present or imminently
threatened in the first instance.
III. Conclusion
In sum, Hedges and O’Brien do not have Article III standing to challenge the statute
because Section 1021 simply says nothing about the government’s authority to detain citizens.
While Section 1021 does have meaningful effect regarding the authority to detain individuals who
are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have
not established standing on this record. We VACATE the permanent injunction and REMAND for
further proceedings consistent with this opinion.
199
Farrell, 449 F.3d at 499 (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 958 (1984)) (alterations omitted).