Hedges v. Obama

• Decision Date: 12 September 2012
• Docket Number: No. 12 Civ. 331(KBF).,12 Civ. 331(KBF).
• Citation: 890 F.Supp.2d 424
• Parties: Christopher HEDGES, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, U.S. Day of Rage, Kai Wargalla, Hon. Brigitta Jonsdottir M.P., Plaintiffs, v. Barack OBAMA, individually and as representative of the United States of America; Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense, John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, Eric Cantor as representatives of the United States of America, Defendants.
• Court: U.S. District Court — Southern District of New York

890 F.Supp.2d 424

Christopher HEDGES, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O'Brien, U.S. Day of Rage, Kai Wargalla, Hon. Brigitta Jonsdottir M.P., Plaintiffs,

v.Barack OBAMA, individually and as representative of the United States of America; Leon Panetta, individually and in his capacity as the executive and representative of the Department of Defense, John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell, Eric Cantor as representatives of the United States of America, Defendants.

No. 12 Civ. 331(KBF).

United States District Court, S.D. New York.

Sept. 12, 2012.

Bruce Ira Afran, Attorney at Law, Carl J. Mayer, Princeton, NJ, David H. Remes, Silver Spring MD, for Plaintiffs.

Benjamin H. Torrance, Christopher Blake Harwood, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE B. FORREST, District Judge:

On May 16, 2012, this Court preliminarily enjoined enforcement of § 1021(b) of the National Defense Authorization Act for Fiscal Year 2012, Pub.L. No. 112–81, 125 Stat. 1298 (Dec. 31, 2011)(“the NDAA”). See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting preliminary injunction) (the “May 16 Opinion”). On June 6, 2012, in response to a footnote contained in the Government's ¹ motion for reconsideration suggesting an unduly narrow interpretation of that ruling, this Court issued a summary order stating that the injunction was intended to—and did apply to—any and all enforcement of § 1021(b)(2), not simply to plaintiffs in this lawsuit.²See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565, at *1 (S.D.N.Y. June 6, 2012) (summary order). On June 8, 2012, the parties agreed that neither side would seek to add to the evidentiary record presented in support of the preliminary injunction and that they would proceed directly to a hearing on plaintiffs' request for a permanent injunction. ( See Order (June 8, 2012) (Dkt. No. 43) at 1.) Accordingly, the parties submitted additional legal memoranda but no additional factual materials.

On August 7, 2012, the Court held oral argument on the request for a permanent injunction (the “August hearing”). At the commencement of that argument, the Court confirmed that the parties agreed that the evidentiary record developed at the March 29, 2012, preliminary injunction hearing (the “March hearing”) would constitute the trial record for this matter. Hr'g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt. No. 59) (“Tr. II”) at 3. The Court bases its findings of fact on that record.

For the reasons set forth below, this Court grants plaintiffs' motion and permanently enjoins enforcement of § 1021(b)(2) of the NDAA (referred to herein as “§ 1021(b)(2)”).

I. SUMMARY OF OPINION

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs' activities (about which the Government had known—and indeed about which the Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to § 1021(b)(2). Following the March hearing (and the Court's May 16 Opinion on the preliminary injunction), the Government fundamentally changed its position.

In its May 25, 2012, motion for reconsideration, the Government put forth the qualified position that plaintiffs' particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under § 1021. The Government did not—and does not—generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under § 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.

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

Understanding the scope of § 1021(b)(2) requires defining key terms. At the March hearing, the Government was unable to provide definitions for those terms. The Government had prior notice of precisely which terms were at issue based upon allegations in the complaint, declarations, depositions, the briefing and oral argument. In particular, plaintiffs commenced this lawsuit asserting—and they continue to assert—that the phrases “associated forces,” “substantially supported,” and “directly supported” all are vague. Indeed, even after this Court's May 16 Opinion in which the Court preliminarily found a likelihood of success on the merits of plaintiffs' vagueness/due process challenge, the Government nevertheless did not provide particular definitions. Notably, the Government spent only one page of its 49–page memorandum in support of a final judgment denying a permanent injunction (the “pre-trial memorandum”) addressing the meaning of those terms. ( See Gov't's Mem. of Law in Support of Final J. Denying a Permanent Inj. and Dismissing this Action (Dkt. No. 53) (“Gov't Trial Mem.”).) The Government's terse arguments do not resolve the Court's concerns. The statute's vagueness falls short of what due process requires.

The Government presents a variety of arguments which, if accepted, would allow the Court to avoid answering the constitutional questions raised in this action. As discussed below, however, the Court rejects each.

First, the Government argues that this Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing. At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer. Hr'g Tr. of Oral Argument on Prelim. Inj., Mar. 29, 2012 (Dkt. No. 34) (“Tr. I”) at 236, 239, 245.

Article III of the Constitution, allowing federal courts to entertain only actual cases and controversies, requires that a plaintiff have standing to pursue a claim. Plaintiffs here, then, must show that they have a reasonable fear that their actions could subject them to detention under § 1021(b)(2). ³ The Court recited the Government's position—or lack thereof—in its May 16 Opinion. Following that Opinion, the Government changed its position. The Government stated its “new” position in two different ways. First, it expressed its position rather broadly: “[T]he conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Gov't's Mem. of Law in Support of its Mot. for Recons. (Dkt. No. 38) (“Recons. Mem.”) at 2.) Two pages later, the Government stated its full, qualified position:

As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs' affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs' descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.

( Id. at 4 (emphases added) (footnote omitted).) The Government reaffirmed that position in its pre-trial memorandum. ( See Gov't Trial Mem. at 20.) Arguing that belatedly providing this qualified statement eliminates plaintiffs' standing misunderstands controlling law: Standing is determined as of the outset of a case.

The Government's new position also ignores the posture in which it affirmatively placed itself—and plaintiffs—as a result of its shifting view. At the March hearing, plaintiffs testified credibly that they were engaged in, and would continue to engage in (without the threat of indefinite military detention), activities they feared would subject them to detention under § 1021. The Government had an opportunity, both then, and at the depositions it took of each of the testifying plaintiffs, to explore the nature of plaintiffs' activities, and to test whether plaintiffs' fears were actual and reasonable. Given that opportunity, the Court must—and does—take seriously the Government's position at the March hearing. In other words, the Government did not offer a position at the March hearing sufficient to rebut plaintiffs' credible testimony as to their reasonable fear of detention under § 1021(b)(2) and thus, its newly espoused position cannot erase what it said previously. Plaintiffs have standing.⁴

Second, the Government implicitly argues that its new position renders this action moot.⁵ It does not. The Government has explicitly stated that its position is...