724 F.3d 170 (2nd Cir. 2013), 12-3176 (Lead), Hedges v. Obama

Docket Nº:12-3176 (Lead), 12-3644(Con).
Citation:724 F.3d 170
Opinion Judge:LEWIS A. KAPLAN, District Judge.
Party Name:Christopher HEDGES, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, U.S. 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-Appe
Attorney:Robert M. Loeb, Appellate Staff Civil Division, Department of Justice, Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, August E. Flentje, Civil Division, Department of Justice, Jeh Charles Johnson, General Counsel, Departm...
Judge Panel:Before: KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.[**]
Case Date:July 17, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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724 F.3d 170 (2nd Cir. 2013)

Christopher HEDGES, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, U.S. 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. [*]

Nos. 12-3176 (Lead), 12-3644(Con).

United States Court of Appeals, Second Circuit.

July 17, 2013

Argued: Feb. 6, 2013.

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[Copyrighted Material Omitted]

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Robert M. Loeb, Appellate Staff Civil Division, Department of Justice, Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, August E. Flentje, Civil Division, Department of Justice, Jeh Charles Johnson, General Counsel, Department of Defense, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, 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.

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,

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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.

Before: KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.[**]

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?

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.

We conclude that plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction.

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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 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 training.7 He was apprehended

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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 plurality 12 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 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...

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