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

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

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

Judge Forrest was requested by the Obama administration to undo her ruling.^[43] In a footnote of the request, the Administration claimed "The government construes this Court's Order as applying only as to the named plaintiffs in this suit".^[44] In an opinion and order^[45] filed June 6, 2012, Judge Forrest clarified her statement, saying that her injunction applies not just to the named plaintiffs in the suit, contrary to government's narrow interpretation. She wrote, "Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress ... This order should eliminate any doubt as to the May 16 order's scope". The detention provision was not blocked for any persons connected to the September 11 attacks,^[43] as Section 1021(b)(1), which essentially restates the scope of the AUMF, was not blocked.^[46]

U.S. government appeal of preliminary injunction

On August 6, 2012, the US Department of Justice (DOJ) filed a notice of appeal with the 2nd U.S. Circuit Court of Appeals seeking to have Judge Forrest's preliminary injunctions vacated. The federal government argued that in cases dealing with "militants" and those offering "substantial support" to them indefinite detention without due process is appropriate.^[12][47] On November 6, 2012, the U.S. government noted that "[g]iven the district court's entry of a permanent injunction, the government's appeal of the preliminary injunction ... is moot".^[48]

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

A hearing on the plaintiffs' motion for a permanent injunction of the indefinite detention provisions of the NDAA came before Judge Forrest on August 7, 2012.^[49]

On September 12, 2012, U.S. District Judge Katherine Forrest granted the plaintiffs' motion for a permanent injunction of § 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 in a 112-page opinion. The permanent injunction issued by Judge Forrest barred the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they "substantially supported" Al Qaeda or its allies — at least if they had no connection to the September 11 attacks. Forrest held that the law's definitions of "substantially supported" and "associated forces" were unconstitutionally vague in that a reporter or activist could not be sure they would not be covered under the provision if they worked with a group deemed to be associated with terrorists, or perhaps circulated the message of an associated individual by printing an interview. Forrest acknowledged the importance of the government's efforts to safeguard the country from terrorism, but ruled that the law's broad language violated First Amendment right to free speech, as well as the Fifth Amendment and Fourteenth Amendment right to due process that holds that a person must be able to understand what actions would subject them to penalties.^{[50][51][52][53][54]}

Forrest wrote: "First Amendment rights are guaranteed by the Constitution and cannot be legislated away. This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention."^[55] "When the government was asked by the court what the words 'substantially supported' mean, it was unable to provide a definition; the same was true for 'directly supported'," she wrote in her order, which makes the preliminary injunction permanent. "There can be no doubt, then, these terms are vague."^[56] That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.^[56]

A key question throughout these proceedings has been ... precisely what the statute means—what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual's core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity—and that specificity is absent from Section 1021(b)(2). Understanding the scope of Section 1021(b)(2) requires defining key terms.^[57]

Forrest also rejected the US government's position that federal courts should provide habeas corpus, rather than judicial, review to military detainees as "without merit" and "dangerous".^[56] The government argued that the issue is not the court's business and that courts could consider individual habeas corpus petitions from prisoners who have been detained. "That argument is without merit and, indeed, dangerous," wrote Judge Forrest. "Habeas petitions (which take years to be resolved following initial detention) are reviewed under a 'preponderance of the evidence' standard (versus the criminal standard of 'beyond a reasonable doubt') by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous."^[58] "If only habeas review is available to those detained ... even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated," she wrote. "No court can accept this proposition and adhere truthfully to its oath."^[58]

Forrest refused to "abdicate" her duty to protect constitutional rights out of deference for executive power.^[56] "Courts must safeguard core constitutional rights," she wrote.

A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases – primarily decided during World War II – in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.^[56]

The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said.^[56]

The court is mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch's expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security ... Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold.^[56]

Forrest declared that the NDAA cannot be used to hold people in indefinite military detention on suspicion of having "substantially supported" al-Qaeda or its allies.^[13] "The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity – it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."^[55] Forrest also argued that in passing the law, Congress had dramatically expanded the categories of people that can be detained.^[59] The U.S. government had argued that the NDAA was a reassertion of powers provided by Congress in the 2001 Authorization for Use of Military Force, which targeted perpetrators of the September 11 attacks and those who helped them. Judge Forrest said the new measure was broader, because it covered people beyond those connected to the 9/11 attacks.^[53]

In sum Judge Forrest ruled:

For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any person. The Court invites Congress to examine whether there are amendments that might cure the statute/s deficiencies or whether in light of existing authorization and existing criminal statutes § 1021 is needed at all. This Court has stated its position, as directly presented to it by the Government, that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly supporting" the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.^[60]

In her permanent injunction order Judge Forrest invited Congress to examine whether it needed the NDAA at all, or whether it wanted to fix what she had found to be its "deficiencies". As of December 12, 2012, Congress did not respond.^[61]

U.S. government appeal and stay of permanent injunction

On September 13, 2012, federal prosecutors in Manhattan, acting on behalf of the U.S. government, appealed the judge's permanent injunction.^[62][3][6] In court papers on September 14, 2012, they also asked the judge to immediately freeze her order until it is taken up by the 2nd U.S. Circuit Court of Appeals in New York.^{[3][5][7][63]} More precisely the U.S. government sought both an immediate temporary stay on Judge Forrest's September 12, 2012 ruling so that the matter can be argued, and a permanent one lasting until higher courts resolve the case.^[59]

In their court papers on September 14, 2012^[64] government lawyers said the plaintiffs had no basis to fear being locked up for their activities, and that the judge's order interfered with the president's powers at a time of war.^[3] Government attorneys argue that the executive branch is entitled to latitude when it comes to cases of national security and that the law is neither too broad nor overly vague.^[3] Judge Forrest's opinion is "unprecedented, and the government has compelling arguments that it should be reversed," prosecutors said. They called the permanent injunction an "extraordinary injunction of worldwide scope".^[3] Lawyers for the Obama administration also argued that the United States will be irreparably harmed if it has to abide by a judge's ruling that it can no longer hold terrorism suspects indefinitely without trial in military custody.^[59] The government said that the injunction was an "unprecedented" trespass on power of the president and the legislature that by its very nature was doing irreparable harm.^[59] They also argued that the injunction places an undue burden on military commanders in a time of war while the plaintiffs had no reasonable fear of ever being detained "in the foreseeable future".^[59]

The Court's injunction against application of section 1021 'in any manner, as to any person,' ... combined with its mistaken view that section 1021 goes beyond reaffirming the authority contained in the AUMF, could impose entirely unjustified burdens on military officials worldwide, complicating the ability to carry out an armed conflict authorized by Congress in the public interest ... Given the absence of any risk of impending harm to plaintiffs, the serious injury to the government and the public interest in the invalidation of a statute enacted by public representatives, and the possible effect on an ongoing armed conflict and the Executive's prerogatives in military affairs, a stay is necessary.^[59]

Judge Forrest denied on September 14, 2012, the government's request for an immediate stay of her injunction^{[5][7][59][65]} so that § 1021(b)(2) of the NDAA law cannot currently be used and said she would rule on September 19, 2012, on whether to suspend it from then on.^[3][59] At that juncture the U.S. Justice Department said it would not wait until September 19, 2012, and will file emergency papers on September 17, 2012, morning.^[54][66]

The U.S. Department of Justice (DOJ) had asked on September 17, 2012, the U.S. Second Circuit Court of Appeals to place an emergency stay on the permanent injunction made by Judge Forrest on September 12, 2012, so that the U.S. president's power to indefinitely detain without charge people accused of providing substantial support to terrorist groups is reaffirmed immediately.^{[67][68][69][70][71]} The Justice Department wanted the U.S. Second Circuit Court of Appeals to put the judge's ruling on hold while they challenge her decision on appeal.^[67][72] The DOJ contended that Judge Katherine Forrest's ruling incorrectly interpreted the Authorization for Use of Military Force (AUMF).^[71] The Justice Department also said Forrest's decision not only invalidated the NDAA, but went further: rejecting the White House's long-standing interpretation of the President's and the military's authority to detain terror suspects.^[67] In a 42-page court filing,^[73] the government argued that "the district court expressly invites actions for contempt sanctions if the military exercises detention authority in a manner inconsistent with the court's deeply flawed understanding of the scope of that authority" and that "the order "threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict".^[67]

Stay pending appeal

On September 17, 2012, the U.S. Department of Justice (DOJ) asked the U.S. Second Circuit Court of Appeals to place a temporary emergency stay on the permanent injunction made by Judge Forrest five days earlier.^{[15][67][69][72]} Judge Raymond Lohier issued a one-page order granting the motion on the same day, staying the permanent injunction in Hedges, pending the Second Circuit's consideration of the government's motion to stay the injunction throughout its appeal and consideration of the government's motion for stay pending appeal by the Second Circuit motions panel w on September 28, 2012.^{[14][4][16][57][74][75][76][71][77]}

One day before the September 28, 2012 U.S. Second Circuit Court of Appeals hearing, Hedges asserted in a Reddit question-and-answer session: "I suspect, that U.S. citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home."^[78][79]

Following briefing from the plaintiffs and the government on the motion to stay,^{[80][81][82][83]} the Second Circuit granted the motion to stay the injunction pending resolution on the government's appeal.^[84] In the order granting the motion to stay, the court wrote:

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

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

Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force ...^{[17][85][86][87]}

The court said it would consider arguments in the case on an expedited basis,^[17] and Judges Denny Chin, Raymond Lohier and Christopher Droney set a briefing schedule.^[17] Carl Mayer, an attorney for the plaintiffs, said they disagree with the decision to stay the case but that "the appeals court is obviously taking this very seriously."^[17]

Briefing and oral argument

On November 6, 2012, the government filed its opening brief in the Second Circuit.^[48][88] The government argued that the plaintiffs lacked standing because "there is no actual or imminent injury to be redressed,"^[88] stating that plaintiffs had never been detained and face no threat of detention, and criticized Judge Forrest's interpretation of the term "associated forces," writing: "The term is well understood to cover cobelligerent groups that fight together with al-Qaeda or Taliban forces in the armed conflict against the United States," and it is not and cannot be "read to cover the types of unarmed advocacy organizations involved in this suit."^[88] The government also noted that none of the plaintiffs allege having a fear of detention, nor have they offered any evidence of the U.S. military detaining journalists or advocates.^[89] The defendants added that there is no precedent for hearing a lawsuit to block the president in advance from conducting an armed conflict using congressionally conferred authority.^[88] The government also argued that war authorizations have historically been broad and that section 1021(b)(2) is more specific than other authorizations, therefore it should not be subject to a First Amendment or due process vagueness challenge.^[90]

Hedges and the other plaintiffs-appellants filed their appeal brief on December 10, 2012.^[91][92] In an article on December 24, 2012, Hedges opined that unless the courts ruled in his favor, "a gulag state will be cemented into place."^[93] He further voiced his opinion, provided that the Second Court of Appeals upholds Judge Forrest's ruling, the case will most likely be before the Supreme Court within weeks.^[93]

Oral argument was heard before the Second Circuit on February 6, 2013,^[94] The dominating topic at oral argument was press rights.^[20] before a three-judge panel composed of Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya Lyle Kearse).^[95][96] At oral argument, U.S. government attorney Robert Loeb argued that journalists had nothing to fear from the NDAA because it represented no change in law since the September 11, 2001 attacks, pointing to NDAA Section 1021(e), which states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."^[20] In response to questioning from the court, Loeb stated that independent journalists had no reason to fear detention from the NDAA "and would not be treated as combatants unless there was evidence they were only using journalism as a cover and were in fact members of a designated enemy group."^[97] Afran, the lawyer for Hedges and the other plaintiffs, countered that a number of ostensibly protected activities could fall under the NDAA's ill-defined language on "substantial support" for terrorism: "For example, raising money for Guantanamo inmates. Is that substantial support? ... Hosting a webcast with al-Qaida members. Is that substantial support?"^[19] He also argued that plaintiffs had legal standing to challenge Section 1021(b)(2) because it interfered with plaintiffs' right to free speech by creating a basis to fear that they might be placed in military detention on the basis of their activities.^[95] Loeb argued that plaintiffs had failed to show an "objectively reasonable fear of being placed in long-term detention"^[95] and that it was "not reasonable" for independent journalists or activists to expect detention under NDAA,^[19] since "we have about a decade of experience, and we have nobody being held for acts of independent journalism."^[20]

While the case was pending in the Second Circuit, the Supreme Court ruled on Clapper v. Amnesty International USA in February 2013. The U.S. government filed a letter with the Second Circuit arguing that, like the Clapper plaintiffs, the Hedges plaintiffs could not "establish a present or 'certainly impending' injury-in-fact" because that the NDAA's detention provisions, like the NSA warrantless wiretapping authorization, merely permitted rather than required the government to take a particular action. The government argued that Clapper supported its argument that dismissal of the Hedges suit was required due to lack of standing.^[98][99] The Hedges plaintiffs responded in mid-March 2013, arguing that Clapper had "factual and legal predicates differ dramatically from those in the instant appeal and have only superficial similarities to Hedges," and seeking supplemental briefing and argument.^[100][98] The government responded on April 4, 2013.^[101] On April 24, 2013, the Second Circuit denied the Hedges plaintiffs' motion for supplemental briefing and argument on the effect of Clapper.^[102]

Second Circuit's ruling

In a 3–0 ruling issued on July 13, 2013, the U.S. Court of Appeals for the Second Circuit overturned Judge Forrest's ruling striking down Section 1021(b)(2) and lifted the injunction. The court of appeals held that Hedges and the other plaintiffs lacked legal standing to challenge the law.^{[23][103][104][105]} In a 60-page opinion written by U.S. District Judge Lewis A. Kaplan (who sat with the Second Circuit by designation)^[25][103] the court held that Hedges and his American co-plaintiffs lacked standing to challenge the indefinite detention provisions of Section 1021 because a subsection of the section, Section 1021(e), made clear that the statute "simply says nothing about the government's authority to detain citizens."^[23][25] The court held that while Section 1021 could have been drafted more clearly, Section 1021(e) made clear that "with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all."^[25] The court added that section 1021 "does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens," citing as an example Yaser Esam Hamdi, a U.S. citizen detained after allegedly fighting alongside the Taliban in Afghanistan in 2001.^[103]

With respect to the non-citizen plaintiffs, such as Birgitta of Iceland and Kai Wargalla of Germany, the court determined that "while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad," the foreign plaintiffs also "failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021."^[23][25] The court held that "plaintiffs have provided no basis for believing that the government will place Jonsdottir and Wargalla in military detention for their supposed substantial support. In all the circumstances, plaintiffs have not shown a sufficient threat of enforcement to establish standing. Moreover, they cannot'"manufacture standing' based on any present injuries incurred due to their expressed fears."^[25] The court "express[ed] no view regarding whether the laws of war inform and limit detention authority under Section 1021(b)(2) or whether such principles would foreclose the detention of individuals like Jonsdottir and Wargalla" and stated: "This issue presents important questions about the scope of the government's detention authority under the AUMF, and we are wary of allowing a preenforcement standing inquiry to become the vehicle by which a court addresses these matters unless it is necessary. Because we conclude that standing is absent in any event, we will assume without deciding that Section 1021(b)(2) covers Jonsdottir and Wargalla in light of their stated activities."^[25] The Second Circuit vacated the permanent injunction and remanded the case to the district court for further proceedings consistent with its ruling.^[103]

Bruce Afran, a lawyer for Hedges, said the ruling "continues a distressing trend in which American federal courts are refusing to rule in cases where the U.S. government is over-reaching and violating civil liberties."^[103] The Manhattan U.S. Attorney's Office, which represents the government in the case, declined to comment.^[103]