brief final 1 12 cv 331(kbf)

8/2/2019 Brief Final 1 12 Cv 331(KBF)

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Carl J. Mayer (CM-6589)MAYER LAW GROUP LLC

1040 Avenue of the Americas, Suite 2400New York, NY 10018

212-382-4686

Bruce I. Afran (BA-8583)10 Braeburn Drive

Princeton, New Jersey 08540609-924-2075

Attorneys for Plaintiff

UNITED STATES DISTRCT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------CHRISTOPHER HEDGES,

DANIEL ELLSBERG, JENNIFER BOLEN,NOAM CHOMSKY; ALEXA OBRIEN,

US DAY OF RAGE; KAI WARGALLA,HON. BRIGITTA JONSDOTTIR M.P.,

Plaintiffs, INDEX NO. 1:12-CV-331 (KBF)

v.

BARACK OBAMA, individually and as

representative of the UNITED STATESOF AMERICA; LEON PANETTA,

individually and in his capacity as theexecutive and representative of the

DEPARTMENT OF DEFENSE,JOHN McCAIN, JOHN BOEHNER,

HARRY REID, NANCY PELOSI,MITCH McCONNELL, ERIC CANTOR

as representatives of the UNITED STATESOF AMERICA

Defendants.

-------------------------------------------------------

PLAINTIFFS BRIEF IN SUPPORT OF APPLICATION FORRESTRAINTS ON THE OPERATION OF THE HOMELAND BATTLEFIELD BILL

PROVISIONS OF THE NATIONAL DEFENSE AUTHORIZATION ACT (2011)


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TABLE OF CONTENTS

INTRODUCTION.6

PRELIMINARY STATEMENT...6

STANDING AND STANDARDS FOR INJUNCTIVE RELIEF9

A. STANDING CONSIDERATIONS...10

B. STANDARDS FOR TEMPORARY INJUNCTIVE RELIEF..12

ARGUMENT...14

I.

THE ACT IMPROPERLY AUTHORIZES THAT CIVILIANSIN THE UNITED STATES BE DETAINED INDEFINITELY BY THE

MILITARY, THAT THEY BE TRIED BY MILITARY COMMISSIONOR MILITARY COURT AND THAT THEY MAY BE SUBJECT TO

REMOVAL TO OTHER JURISDICTIONS IN VIOLATION OF THEAMENDMENTS V AND VI OF THE CONSTITTUION14

II. THE ACT FAILS TO GIVE REASONABLE NOTICE OF THE ACTS

AND CONDUCT THAT WILL RENDER A PERSON LIABLE TO

MILITARY DETENTION AND IS OVERBROAD THEREBY

CHILLING AND IMPINGING UPON PROTECTED EXPRESSIVE

AND ASSOCIATIVE RIGHTS.22

CONCLUSION28


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TABLE OF AUTHORITIES

Cases:

A. L. A. Schechter Poultry Corp. v. United States, 15

295 U.S. 495 (1935)

Akins v. Penobscot Nation, 130 F.3d 482, 486 (1st

Cir. 1997) 22

Alleyne v. New York State Educ. Dep't, 516 F.3d 96 (2d Cir.2008) 12

Amnesty Intl USA v. Clapper, 10,22,122011 U.S. App. LEXIS 19482 (2d Cir. 2011)

Amnesty Intl v. Clapper, 638 F.3d 118 (2d Cir. 2011) 10,11,12

Andino v. Fischer, 555 F.Supp.2d 418 (S.D.N.Y. 2008) 13

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) 27

Baur v. Veneman, 352 F.3d 625, 637 (2d Cir. 2003)

Beal v. Stern, 184 F.3d 117 (2d Cir. 1999) 13

Boumediene v. Bush, 553 U.S. 723 (2008) 16

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) 26

Brody v. Village of Port Chester, 261 F.3d 288 (2d Cir. 2001) 13

Carrington Co. v. United States, 70 Cust. Ct. 105 (1973) 23

Coleman v. Tennessee, 97 U.S. 509 (1879) 16

Dombrowski v. Pfister, 380 U.S. 479, 491 (1965) 26

Duncan v. Kahanamoku, 327 U.S. 304 (1946) 16

Elrod v. Burns, 427 U.S. 347 (1976) 9,13

Ex Parte Milligan, 71 U.S. 2 (1866) 14,16,19,21

passimEx parte Quiran, 317 U.S. 1 (1942) 21

Givens v. Zerbst, 255 U.S. 11 (1921) 17


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Gosa v.Mayden, 413 U.S. 665 (1973) 16

Grafton v. United States, 206 U.S. 333 (1907) 16

Grisham v. Hagan, 361 U.S. 278 (1960) 14

Hamden v. Rumsfeld, 548 U.S. 557 (2006) 18

Hamdi v. Rumsfeld, 542 J.S. 507 (2004) 19,20,22passim

Hamilton v. Kentucky Distilleries & Warehouse Co., 15251 U.S. 146 (1919)

Hirabayashi v. United States, 320 U.S. 81 (1943) 15

Johnson v. Sayre, 158 U.S. 109 (1895) 16

Kahn v. Anderson, 255 U.S. 1 (1921) 16,17

Kinsella v. Singleton, 361 U.S. 234 (1960) 14,16

Laird v. Tatum, 408 U.S. 1 (1972) 15,16

Louisville Joint Stock Land Bank v. Radford, 15

295 U.S. 555 (1935)

Madsen v. Kinsella, 343 U.S. 341 (1952) 17

McElroy v. Guagliardo, 361 U.S. 281 (1960) 14

Members of City Council of Los Angeles v. Taxpayers for Vincent, 26466 U.S. 789 (1984)

NAACP v. Button, 371 U.S. 415 (1963) 27

Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976) 27

New York v. Ferber, 458 U.S. 747 (1982) 26

New York Times Co. v. United States, 403 U.S. 71 (1971) 9

Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008) 12

Parisi v. Davidson, 405 U.S. 34 (1972) 15

Reid v. Covert, 354 U.S. 1 (1957) 14,17


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Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999) 13

Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) 27

Smith v. Whitney, 116 U.S. 167 (1886) 16

Solorio v. United States, 483 U.S. 435 (1987) 14

Spencer Trask Software Info. Servs., LLC v. RPost Intl, Ltd., 13

190 F.Supp.2d 577 (S.D.N.Y. 2002)

Toth v. Quarles, 350 U.S. 11 (1955) 14,16,17,18

United States ex rel.Hirshberg v. Cooke, 17336 U.S. 210 (1949)

Virginia v. Black, 538 U.S. 343 (2003) 26

Virginia v. Hicks, 539 U.S. 113 (2003) 27

Winters v. United States, 89 S. Ct. 57 (1968) 16

Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597 (1963) 23

Constitution and Statutes:

U.S. Const., Art. I, Sect. 8, Cl. 11 17,19

U.S. Const., Amend. I 9,24,26,27

U.S. Const., Amend. V 14,15

U.S. Const., Amend VI 17

Homeland Battlefield Act, 1031(b)(2) 7,20,22,26passim

Homeland Battlefield Act, 1031(c) 5,7


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INTRODUCTION

This Memorandum of Law is respectfully submitted on behalf of Plaintiffs in

support of their application for temporary and/or preliminary injunctive relief enjoining

the Homeland Battlefield Act provision of the National Defense Authorization Act

(NDAA) of 2012 (the Homeland Battlefield Act or the Act).

PRELIMINARY STATEMENT

On December 31, 2011, President Barack Obama signed into law the National

Defense Authorization Act (NDAA) whose provisions incorporate the Homeland

Battlefield Bill providing for military detention, military trial, rendition and indefinite

detention for the duration of hostilities of civilians, both citizen and non-citizen, in the

United States who fall within the designation of covered persons.

The President, in a signing statement, said that he believed the act was troubling

constitutionally and he stated he was signing it with severe reservations:

I have signed this bill despite having serious reservations with certain provisionsthat regulate the detention, interrogation, and prosecution of suspected terrorists.

FBI Director Mueller said he feared the bill would actually impede the bureau's ability to

investigate terrorism because it would be hard to win cooperation from suspects held by

the military: "The possibility looms that we will lose opportunities to obtain cooperation

from the persons in the past that we've been fairly successful in gaining." Mueller told

Congress.

Section1031 of the Act defines a covered person, subject to indefinite

duration detention, in the following manner:

(b) Covered Persons- A covered person under this section is any person as

follows:


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(1) A person who planned, authorized, committed, or aided the terrorist

attacks that occurred on September 11, 2001, or harbored thoseresponsible for those attacks.

(2) A person who was a part ofor substantially supportedal-Qaeda, the

Taliban, or associated forces that are engaged in hostilities against theUnited 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.

Homeland Battlefield Bill, 1031(b) [emphasis added].

The Act further provides that any person detained under its provisions, whether

within or without the United States, may be: 1) held without trial until the end of the

hostilities authorized by the Authorization for Use of Military Force (2001); 2) may be

subject to military commission; 3) may be subject to trial by an alternative judicial

procedure; or 4) may be subject to so-called rendition to any foreign jurisdiction by

governmental fiat. Section 1031(c) states, particularly:

(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 thehostilities 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, anyother foreign country, or any other foreign entity.

Homeland Battlefield Bill, 1031(c).

The Complaint alleges that Plaintiffs are individuals whose activities, contacts

and associations may reasonably render them covered persons under the Act. The Act


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makes a person a covered person who substantially supported al-Qaeda or the

Taliban or their associated forces. Plaintiffs professional, journalistic and advocacy

activities bring them into direct contact with leaders of the entities referred to in the Act

and certain plaintiffs, such as Christopher Hedges and Noam Chomsky, produce writings

incorporating the results of such meetings that have the effect of publicizing the ideology

and methods of such entities and their leadership. As the Complaint sets forth, other

plaintiffs are a part of advocacy movements that have been labeled terrorist organizations

by certain governments and that advocate for and in connection with the activities of

covered entities under the Act.

Plaintiffs acts and advocacy in connection with the covered terrorist entities or

their associated forces will create a reasonable basis for such plaintiffs to fear being

deemed covered persons who, by their advocacy, substantially supported covered

entities under the Act; as such, plaintiffs may be reasonably said to be subject to arrest,

military detention and trial or hearing by military authorities under the Act.

For the reasons set forth below, plaintiffs seek an order temporarily enjoining

enforcement of the Act and ultimate relief declaring the Act to be unconstitutional in that

it:

1) places civilians in the United States who are not in armed conflict with theUnited States into the custody and control of the military; and

2) that its overbroad reach will render persons engaged in legitimate protected

speech, association and advocacy activities to be subject to indefinite detention inmilitary or other custody or made subject to rendition to foreign jurisdictions or

fear being placed in such jeopardy.


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STANDING AND STANDARDS FOR INJUNCTIVE RELIEF

As argued below, the facts substantiate the basis for, at the threshold, temporary

injunctive relief.

The President has stated that he will not enforce the Act in the United States as to

U.S. citizens and members of the Administration, such as FBI Director Mueller, have

questioned the need for the Acts provisions stating that existing law enforcement

measures are sufficient. Since the Administration and the President have stated that there

is no substantive need for the Acts provisions and that it will not be currently enforced

(at least as to U.S. citizens) the Government will suffer little or no prejudice from an

order temporarily restraining the operation of the Act. In the absence of such relief,

Plaintiffs reasonably fear that they will be subject to the Acts provisions as covered

persons because their ideological support of and their actual contacts with the covered

entities and associated forces, will bring them within the broad reach of the Act.

Accordingly, they will suffer an immediate chilling effect on their exercise of their First

Amendment rights due to the fear of military detention in the absence of such injunctive

relief. As has been long-held, the threatened loss or dilution of First Amendment rights

for even minimal periods of time presents a per se claim of irreparable harm. See

e.g.Elrod v. Burns, 427 U.S. 347, 373-374 (1976) where the Court recognized the need

for injunctive relief for a mere threatened deprivation:

It is clear, therefore, that First Amendment interests were either threatened or infact being impaired at the time relief was sought. The loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutesirreparable injury. See New York Times Co. v. United States, 403 U.S. 713

(1971).


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Here the statutory language of the Act makes it clear that one who has substantially

supported al-Qaeda, the Taliban or their associated forces will be subject to the Acts

detention provisions and such looming threat in itself causes a reasonable person to fear

that the exercise of their associational or expressive rights will result in detention under

the Act.

A. STANDING CONSIDERATIONS

The Second Circuit has already held in a related matter that the journalistic

interests at stake here will be impaired by the operation of statutes or policies that intrude

upon associational and expressive rights. InAmnesty Intl USA v. Clapper, 2011 U.S.

App. LEXIS 19482 (2d Cir. 2011), the Court of Appeals in its en banc affirmance of the

merits judgment recognized that the very types of expressive contacts with foreign terror

leaders and organizations as alleged here support injunctive relief and standing:

Likewise, journalist Chris Hedges, whose writing focuses on American and

Middle Eastern politics and society, maintains regular contact with academics,

journalists, politicians, and activists in places such as Iran, Syria, Libya, Kosovo,

Bosnia, and Sudan. He also communicates with political activists and civil

society leaders in Palestine, whom he believes are 'of interest' to the U.S.

government."); id. at 143 ("[T]he various groups of plaintiffs attorneys,

journalists, and human rights, labor, legal, and media organizations have

established that they have legitimate interests in not being monitored."); id.

("Journalists Klein and Hedges, for example, assert that if their communications

with their sources were overheard, those sources' identities, political activities,

and other sensitive information would be disclosed, which would expose them to

violence and retaliation by their own governments, non-state actors, and the U.S.

government."); id. at 144 n.27 ("Both the attorneys and the non-attorneys have

reason to fear being monitored under the challenged statute . . . .").


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Amnesty Intl v. Clapper, supra at n. 5. As the Court in Clapperacknowledged, such

persons are not merely those who unhappy with the Congresss resolution of the policy

arguments for and against the FAA, seek to continue the political discussion,Id. at n. 6,

but rather are individuals who assert that the law has specifically affected them in a way

that gives them a concrete stake in the controversy Id.

Here the journalists and advocates claim an even more concrete injury than in

Clappersince, unlike in Clapper, the harm is not merely to their potential ability to speak

to informants who fear being monitored but, rather, the harm is that the plaintiffs

themselves will be the targets of the Act as covered persons subject to incarceration for

these contacts. Thus, the law of the circuit as enunciated in Clapperwould appear to

support the plaintiffs claims for temporary injunctive relief.

In its initial merits judgment in Clapper,Amnesty Intl v. Clapper, 638 F.3d 118

(2d Cir. 2011), the Court of Appeals recognized that a plaintiff may obtain standing by

showing a sufficient likelihood of future injury, 638 F.3d at 136, or fear of future harm

as the product of a governmental policy:

Assessing whether a threatened injury, by itself, is sufficiently probable to support

standing is a "qualitative, not quantitative" inquiry that is "highly case-specific."Baur v. Veneman, 352 F.3d 625, 637 (2d Cir. 2003) (internal quotation marks

omitted). "[T]he question of whether anticipated future injury suffices to establishstanding is approached as a question of judgment and degrees." Wright, Miller &

Cooper, supra, 3531.4, at 264. Indeed, in future-injury cases, we have said that"the risk of harm necessary to support standing cannot be defined according to a

universal standard." Baur, 352 F.3d at 637.

One factor that bolsters a plaintiff's argument that the injury is likely to come topass, according to both the Supreme Court and this Court, is the existence of a

policy that authorizes the potentially harmful conduct.

Amnesty Intl v. Clapper, 638 F.3d at 137.


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Ultimately, the Court of Appeals held in Clapperthat the test is simply that if the

plaintiff 'may legitimately fear that it will face enforcement of the statute,' then the

plaintiff has standing to challenge the statute." Clapperat 137 quotingPac. Capital

Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008). As Clappermade clear,

standing and the need for injunctive relief are enhanced where the injury that the

plaintiffs fear results from conduct that is authorized by statute. Clapperat 138

[emphasis added]. As the fear of military detention, indefinite detention and the absence

of trial is derived not from a subjective fear by the plaintiffs but from the very text of the

statute, just as in Clapperstanding and the basis for temporary restraints are present.

Since plaintiffs here, by virtue of their profession and advocacy acts are distinguishable

from the general population they have sufficiently concrete relationship to the Act so as

to substantiate standing:

The instant plaintiffs are not merely random citizens, indistinguishable from anyother members of the public, who want to test in court the abstract theory that the

FAA is inconsistent with the Constitution; rather, these plaintiffs have shown that,regardless of which course of action they elect, the FAA affects them. We

therefore conclude that they have a sufficient "personal stake" to challenge theFAA.

Clapper, 638 F.3d at 144-145.

B. STANDARDS FOR TEMPORARY INJUNCTIVE RELIEFPursuant to Rule 65 of the Federal Rules of Civil Procedure,

"A district court may enter a preliminary injunction staying government action

taken in the public interest pursuant to a statutory or regulatory scheme only whenthe moving party has demonstrated that he will suffer irreparable injury, and there

is a likelihood that he will succeed on the merits of his claim."

Alleyne v. New York State Educ. Dep't, 516 F.3d 96, 101 (2d Cir. 2008) (internal

quotations and citations omitted).


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Because the government's action in enacting the Act is presumed to be in the

public interest, Plaintiffs must meet the likelihood-of success standard to obtain

injunctive relief. Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999). The injury must be

"actual and imminent" and not capable of remedy by monetary damages.Rodriguez v.

DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (per curiam). When the preliminary

injunction implicates public interests, a court should consider the balance of such public

interests when evaluating the private injury.Brody v. Village of Port Chester, 261 F.3d

288, 290 (2d Cir.2001). The same standard applies to the Plaintiffs application for a

temporary restraining order. See, e.g., Andino v. Fischer, 555 F.Supp.2d 418, 419

(S.D.N.Y.2008) ("It is well established that in this Circuit the standard for an entry of a

TRO is the same as for a preliminary injunction."); accord Spencer Trask Software &

Info. Servs., LLC v. RPost Int'l, Ltd., 190 F.Supp.2d 577, 580 (S.D.N.Y.2002).

Since the Administration disputes the need for the Act and has stated it will not

seek to enforce it currently, the Acts intrusion into protected liberty interests shifts the

balance of interests in favor of at least temporary restraints. The interests at stake

freedom from a threat to First Amendment rights and detention of civilians by the

military - are fundamental liberty interests the violation of which is irreparable. Elrod v.

Burns, 427 U.S. at 373-374. As argued below, the Act imposes military detention and

jurisdiction over civilians in the United States - against an unbroken line of case law

reaching back to the Civil War era that prohibits military jurisdiction over non-combatant

civilians. SeeEx parte Milligan, supra. Plaintiffs have thus shown a likelihood of

success on the merits and temporary or preliminary restraints should issue.


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ARGUMENT

I. THE ACT IMPROPERLY AUTHORIZES THAT CIVILIANS IN THE

UNITED STATES BE DETAINED INDEFINITELY BY THE MILITARY, THAT

THEY BE TRIED BY MILITARY COMMISSION OR MILITARY COURT AND

THAT THEY MAY BE SUBJECT TO REMOVAL TO OTHER JURISDICTIONSIN VIOLATION OF AMENDMENTS V AND VI OF THE U. S. CONSTITTUION.

Civilians in the United States may not be made subject to military jurisdiction,

detention by the military or trial for any offense outside of the civil courts, even in times

of civil insurrection, when the courts were open and ready to try them. Ex Parte

Milligan, 71 U.S. 2, 127 (1866). The Fifth Amendment recognizes the prevailing

requirement of civil jurisdiction exceptin cases arising in the land or naval forces, or in

the militia...; U.S. Const., Amend. V [emphasis added]. As the Fifth Amendment

makes clear, the military jurisdiction may extend to cases that arise in the land or naval

forces, orin the militia, language that in itself precludes military jurisdiction over the

civilian offender. As recognized inEx Parte Miligan, only the person serving in the

military is subject to military jurisdiction or adjudication, while

All other persons, citizens of states where the courts are open, if charged withcrime, are guaranteed the inestimable privilege of trial by jury.

Ex Parte Milligan, 71 U.S. 2, 123 (1866)[emphasis added]; accordReid v. Covert, 354

U.S. 1 (1957).

The Supreme Court has iterated repeatedly this invocation against the expansion

of the military jurisdiction over civilians:

We held that court-martial jurisdiction cannot be extended to reach any person nota member of the Armed Forces at the times both of the offense and of the trial,

which eliminates discharged soldiers. Toth v. Quarles, 350 U.S. 11. Neithercivilian employees of the Armed Forces overseas,McElroy v. Guagliardo, 361

U.S. 281; Grisham v.Hagan, 361 U.S. 278, nor civilian dependents of militarypersonnel accompanying them overseas,Kinsella v. Singleton, 361 U.S. 234;Reid

v. Covert, 354 U.S. 1, may be tried by court-martial.


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Laird v. Tatum, 408 U.S. 1, 19 (1972); see alsoHamilton v. Kentucky Distilleries &

Warehouse Co., 251 U.S. 146, 156 (1919) (The war power of the United States, like its

other powers and like the police power of the States, is subject to applicable

constitutional limitations);Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555,

589, n.19 (1935) (War power issubject to the Fifth Amendment.);A. L. A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 , 528 (1935) (Extraordinary conditions do

not create or enlarge constitutional power, citing the War Power);Hirabayashi v. United

States, 320 U.S. 81, 92-93 (1943) (distinguishing civil trial of Japanese American in the

civil courts for violating curfew orders from military trial of civilians.)

InLairdthe Court recoiled against the very notion that Congress, absent martial

law, could impose military jurisdiction over civilians. Lairdnoted that Congress has the

power to raise armies and to regulate the military but not to expand the military

authority to the civilian sphere:

The most pointed and relevant decisions of the Court on the limitation of militaryauthority concern the attempt of the military to try civilians. The first leading case

wasEx parte Milligan, 4 Wall. 2, 124, where the Court noted that the conflictbetween "civil liberty" and "martial law" is "irreconcilable." The Court which

made that announcement would have been horrified at the prospect of the military-- absent a regime of martial law -- establishing a regime of surveillance over

civilians. The power of the military to establish such a system is obviously lessthan the power of Congress to authorize such surveillance. For the authority of

Congress is restricted by its power to "raise" armies, Art. I, 8; and, to repeat itsauthority over the Armed Forces is stated in these terms, "To make Rules for the

Government and Regulation of the land and naval Forces."

408 U.S. at 17.1

See alsoParisi v. Davidson, 405 U.S. 34, 49 (1972) (One overriding

function of habeas corpus is to enable the civilian authority to keep the military within

1Lairdrecognized that persons whose First Amendment activities will be chilled bythe legislative or executive act, may bring an action challenging the exercise of the

military power but held that plaintiffs whose claim was that the military may at some


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bounds.), Douglas, J. concurring opinion; Winters v. United States, 89 S. Ct. 57, 60

(1968) ([C]ivil liberty and unfettered military control are irreconcilably antagonistic.)

InBoumediene v. Bush, 553 U.S. 723 (2008), the Court held that even detainees

in Guantanamo, admittedly outside the civil jurisdiction of the United States, were

entitled to civil proceeding regardless of the expense to the military:

[C]ivilian courts and the Armed Forces have functioned alongside each other atvarious points in our history. See, e.g.,Duncan v.Kahanamoku, 327 U.S. 304, 66

S. Ct. 606, 90 L. Ed. 688 (1946);Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866). The Government presents no credible arguments that the military

mission at Guantanamo would be compromised if habeas corpus courts hadjurisdiction to hear the detainees' claims. And in light of the plenary control the

United States asserts over the base, none are apparent to us.

Boumediene v. Bush, 553 U.S. at 769.

In Solorio v. United States, 483 U.S. 435, 439 (1987), the Court made it clear

beyond dispute that the military jurisdiction is applicable only to persons in the military

service:

The test for jurisdiction . . . is one ofstatus, namely, whether the accused in thecourt-martial proceeding is a person who can be regarded as falling within the

term 'land and naval Forces.' . . ."Id., at 240-241 (emphasis in original).2

future date misuse the information gathered by its domestic intelligence operation did

not give rise to standing to challenge the military operation. 408 U.S. at 13-14. Incontrast toLaird, here the plaintiffs allege that they are themselves covered persons at

the inception of the Act based upon their well-known journalistic and advocacy activityin association with persons or groups labeled as terroristic or entities associated with

al-Qaeda or the Taliban or their associated forces. 1031(b)(2).

2Solorio is based upon an unbroken line of decisions from 1866 to 1960, this Court

interpreted the Constitution as conditioning the proper exercise of court-martial

jurisdiction over an offense on one factor: the military status of the accused. See e.g.Gosa v.Mayden, 413 U.S. 665, 673 (1973) (plurality opinion); seeKinsella v. United

States ex rel. Singleton, 361 U.S. 234, 240-241, 243 (1960);Reidv. Covert, 354 U.S. 1,22-23 (1957) (plurality opinion); Grafton v. United States, 206 U.S. 333, 348 (1907);

Johnson v. Sayre, 158 U.S. 109, 114 (1895); Smith v. Whitney, 116 U.S. 167, 183-185(1886); Coleman v. Tennessee, 97 U.S. 509, 513-514 (1879);Ex parte Milligan, 4 Wall.

2, 123 (1866); cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1955);Kahn v.


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The Court has long recognized that even Congresss power to authorize trial by the

military requires a narrow approach calling for the least possible power adequate to the

end proposed.'" United States ex rel Toth v. Quarles, 350 U.S. 11, 22-23 (1955).

The judicial policy against military jurisdiction over civilians is so pervasive that

it has been held to bar military trial even as to civilians employed in military districts

abroad. Citing a long train of authority, the Court inMcElroy v. United States, 361 U.S.

281 (1960), recognized the near impermeable barrier against the assertion of military

authority over the civilian defendant:

That a civilian, entitled as he is, by Art. VI of the Amendments to theConstitution, to trial by jury, cannot legally be made liable to the military law and

jurisdiction, in time of peace, is a fundamental principle of our public law . . . ."

McElroy, 361 U.S. at 284, citingEx parte Milligan, supra. The only recognized

expansion of the military authority has been to enable court martial of former servicemen

for offenses committed while in service, see e.g. United States ex rel Toth v. Quarles, 350

U.S. 11, 23 (1955); United States ex rel.Hirshberg v. Cooke, 336 U.S. 210, 214-215

(1949), and the use of military commissions in foreign areas of U.S. military occupation

and control where due process due will be in accord, not with the Constitution, but with

local conditions and expectations. Madsen v. Kinsella, 343 U.S. 341 (1952). In Toth, the

Court permitted military trial of former servicemen for offenses committed while in

service but noting that Congressional extension of the military jurisdiction must be

Anderson, 255 U.S. 1, 6-9 (1921); Givens v.Zerbst, 255 U.S. 11, 20-21 (1921). This viewwas premised on what the Court described as the "natural meaning" of Art. I, 8, cl. 14,

as well as the Fifth Amendment's exception for "cases arising in the land or naval forces."Reidv. Covert, supra, at 19; United States ex rel. Toth v. Quarles, supra, at 15.


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limited to the least possible poweradequate to the end proposed. Toth, supra

[emphasis added].

Contrary to this long line of authority, the Act by its very terms purports to

impose military jurisdiction over civilians in the United States and without the procedural

safeguards that protect even service personnel. As the Court recognized inHamden v.

Rumsfeld, 548 U.S. 557 (2006), military commissions, no matter how impartial their

members may strive to be, clearly lack the structural insulation from military

influence that characterizes the Court of Appeals for the Armed Forces, 548 U.S. at 587-

588 [emphasis added]. In distinguishing the military commissions organized to try

Hamden, the Court noted the procedural safeguards available to service personnel in the

courts martial, particularly civil court appellate review, that are utterly absent in the

military commission:

[T]he tribunal convened to try Hamdan is not part of the integrated system ofmilitary courts, complete with independent review panels, that Congress has

established. Unlike the officer in Councilman [citation omitted] Hamdan has noright to appeal any conviction to the civilian judges of the Court of Military

Appeals (now called the United States Court of Appeals for the Armed Forces,see 924, 108 Stat. 2831). Instead, under Dept. of Defense Military Commission

Order No. 1 (Commission Order No. 1),App. C to Brief for Petitioner 46a, whichwas issued by the Secretary of Defense on March 21, 2002, and amended most

recently on August 31, 2005, and which governs the procedures for Hamdan'scommission, any conviction would be reviewed by a panel consisting of three

military officers designated by the Secretary.Id. 6(H)(4). Commission Order No.1 provides that appeal of a review panel's decision may be had only to the

Secretary himself, 6(H)(5), and then, finally, to the President, 6(H)(6).

548 U.S. at 587.

AsHamden recognized, trial by military commission lacks the fundamental

judicial independence of the charging body or anyjudicialappellate review, review by

the Secretary of Defense or by the President being political, not judicial in nature.


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Hamden, supra. Because of such due process concerns, Congresss power to create rules

establishing military commissions has never been recognized to extend beyond prisoners

of war captured in combat and, indeed, the Constitution itself conveys such authority to

Congress solely as to Rules concerning Captures on Land and Water;. U.S.Const., Art.

I, Sect. 8, Cl. 11.

Milligans fundamental premise in barring military jurisdiction over a civilian was

predicated on the fact that he was not a prisoner of war but a resident of Indiana arrested

while at home there. Hamdi v. Rumsfeld, 542 J.S. 507, 522 (2004), citingMilligan. As

Hamdi recognized, it was the fact that Milligan was a civilian living in civilian life at the

time of his arrest that was central to the courts conclusion:

In that case [Milligan], the Court made repeated reference to the fact that itsinquiry into whether the military tribunal had jurisdiction to try and punish

Milligan turned in large part on the fact that Milligan was not a prisoner of war,but a resident of Indiana arrested while at home there. [citation omitted] That fact

was central to its conclusion. Had Milligan been captured while he was assistingConfederate soldiers by carrying a rifle against Union troops on a Confederate

battlefield, the holding of the Court might well have been different. The Court'srepeated explanations that Milligan was not a prisoner of war suggest that had

these different circumstances been present he could have been detained undermilitary authority for the duration of the conflict, whether or not he was a citizen.

Hamdi, 542 U.S. at 522. Hamdi andMilligan thus recognize the gross distinction

between Congressional power to try a person captured in combat by military commission

and a civilian in the United States who has merely offered support for a hostile force

who mustremain and be tried within the ambit of federal judicial power.3

3Thus, whileMilligan inferentially, andHamdi more directly, both recognize that a

citizen may be brought within the military jurisdiction such holding is conditioned on the

express and absolute condition that the citizen has participated in combat or activehostilities. The Act imposes no such requirement and permits military detention of a U.S.

civilian simply because they substantially supported the covered foreign entities.


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There is no factual dispute that the Act itself provides for military jurisdiction and

detention of civilians on an effectively indefinite basis until the cessation of the conflict,

trial by military commissions of civilians arrested in the United States and the rendition

of such persons to any foreign jurisdiction at the Governments sole determination. The

Act imposes no requirement that such persons actually be engaged in an armed conflict

against the United States, as required by the Supreme Court inHamdi where it was held

that military detention of a citizen is predicated upon their being actual combatants in an

armed conflict:

Under the definition of enemy combatant that we accept today as falling withinthe scope of Congress' authorization, Hamdi would need to be part of or

supporting forces hostile to the United States or coalition partners andengagedin an armed conflict against the United States to justify his detention in the

United States for the duration of the relevant conflict.

542 U.S. at 526 [emphasis added].

In contrast to the mandate ofHamdi, the Act is notpredicated upon a covered

person being engaged in an armed conflict against the United States,Hamdi, supra,

but merely includes any person who has substantially supported certain forces and their

allies, committed a belligerent act or has directly supportedsuch hostilities in aid of

such enemy forces. Neither of these provisions reachesHamdis requirement that the

citizen-detainee to be held outside the judicial process - mustbe engaged in an armed

conflict with the United States. Id.

Neither the phrase belligerent act or the reference to a person who directly

supportedhostilities in aid ofenemy forces, see 1031(b)(2), rises to the requirement

of the Supreme Court inHamdi that a citizen-detainee must be one who is engaged in an

armed conflict with the United States. Hamdi, 542 U.S. at 526. Milligan, who was


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accused of conspiracy and the planning of an attack on U.S. forces in the Southern States,

had certainly committed a belligerent act or had directly supported such hostilities in

aid of such enemy forces,Milligan, supra, but the Court inEx parte Milligan plainly

held that such acts were notsufficient to invoke military jurisdiction over a citizen

arrested outside the field of combat where the civil courts were open and functioning.

Id.4

AsHamdi not only adopts the holding ofEx parte Milligan but requires the far

more stringent standard that a citizen mustbe engaged in an armed conflict with the

United States, 542 U.S. at 526, to give rise to detention in military jurisdiction, it is clear

that the NDAAs characterization of a covered person subject to military detention is

unconstitutional and contrary to established precedent.

4Obviously, as found inEx parte Quiran, 317 U.S. 1 (1942), the result may well be

different if aliens in the service of a hostile power infiltrate the United States with the

intent of carrying on a belligerent or hostile attack. Such facts do not arise here where theAct seeks to assert military domain over citizens in the United States who are not in the

service of a hostile power.


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II. THE ACT FAILS TO GIVE REASONABLE NOTICE OF THE ACTS AND

CONDUCT THAT WILL RENDER A PERSON LIABLE TO MILITARY

DETENTION AND IS OVERBROAD IN ITS REACH THEREBY CHILLING

AND IMPINGING UPON PROTECTED FIRST AMENDMENT AND

ASSOCIATIVE RIGHTS.

Hamdi requires that civilians mustbe engaged in armed conflict with the United

States to be subject to military jurisdiction. Hamdi, 542 U.S. at 526. In contrast, the

Act makes subject to military imprisonment and trial any person who substantially

supported al-Qaeda, the Taliban or their associated forces, a term that is left undefined

and without the limiting condition inHamdi that civilians subject to military detention

mustbe actually engaged in armed conflict with the United States to be subject to

military jurisdiction. Hamdi, supra.

While 1031(b)(2) does contain a secondary clause including any person who

has committed a belligerent actor hasdirectly supported such hostilities in aid of such

enemy forces, see Homeland Battlefield Act, 1031(b)(2), such additional language not

only fails to contain the more stringent requirement underHamdi that covered persons

must be engaged in armed conflict with the United States, but it is a mere exemplar -

not a limitation - of the covered conduct. See e.g.Akins v. Penobscot Nation, 130 F.3d

482, 486 (1st

Cir. 1997) (Because the wording used is "including," the specific

categories are exemplars and not exclusive. The examples provide limited guidance.)

The absence of limiting language in the Act, such as a reference to the fact that a covered

person shall be or is one who has committed a belligerent act or shall be or is

one who has directly supported such hostilities in aid of such enemy forces, renders the

government free under 1031 to detain a citizen whose conduct is limited to the first

clause of 1031(b)(2), namely one who has substantially supported the delineated


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organizations and their associated forces, an overbroad mandate that renders subject to

arrest and military detention civilians engaged in protected Constitutional conduct. See

e.g., Carrington Co. v. United States, 70 Cust. Ct. 105, 111 (1973) (recognizing that

statutory exemplars are at best directory onlywith the remaining language of the statute

being determinative of its outer limits).

And since the undefined term substantially supported can be contoured to a

virtually endless array of acts, the text plainly fails to give reasonable notice as to what

conduct will render one a covered person. Such vague construction would allow the

Government to bring within its scope persons such as plaintiffs whose writings,

journalistic and advocacy acts may well be deemed to substantially support such

organizations or their associated forces but are otherwise protected First Amendment

activities. Even if the Court were to interpret the general phrase substantially

supported in the context of the somewhat more specific phrase in aid of such enemy

forces that follows, cf., Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 600-601

(1963) (general words in a statute should not be given a meaning totally unrelated to

the more specific terms of a statute), the term in aid of enemy forces is still far

removed from the mandate ofHamdi that a U.S. citizen may be placed in military

detention only where engaged in armed conflict with the United States. 542 U.S. at

526. Indeed, it is difficult to see how plaintiffs, whose writings are often highly

sympathetic or directly endorsing of such entities, can avoid being drawn into the

undefined contours of the Act by the imprecision of its drafting. In sum, no definitional

provision explains the meaning of substantially supported or directly supported,

language capable of application to nearly any form of ideological support for such


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entities and the statute is without sufficient direction to provide notice and is inherently

overbroad.

The phrase or associated forces is similarly left undefined and can apply to

nearly any group that lends ideological or other support for al-Qaeda or the Taliban,

including groups such as Hamas and Hezbollah that are de facto state actors and whose

leadership is a normal subject for journalists and commentators such as plaintiffs

Christopher Hedges and Noam Chomsky. Indeed, Iran has been labeled a terror state by

the United States, a designation that would almost certainly render it and its leadership as

associated forces under the Act rendering journalists and writers who cover Iran

favorably, meet with its leaders and expound upon their ideas as likely covered

persons.

As inAmnesty Intl v. Clapper, supra, here the threatened harm is not derived

from plaintiffs purely subjective fear, 638 F.3d at 131, but from the actual text of the

statute. Clapper at 138. As the Second Circuit noted in Clapper, the threatened harm

here also derives from the highest expression of governmental policy, a Congressional

enactment:

It is significant that the injury that the plaintiffs fear results from conduct that isauthorized by statute. This case is not like Lyons, where the plaintiff feared injury

from officers who would have been acting outside the law, making the injury lesslikely to occur. Here, the fact that the government has authorized the potentially

harmful conduct means that the plaintiffs can reasonably assume that governmentofficials will actually engage in that conduct by carrying out the authorized

surveillance.

638 F.3d at 138.

Indeed, the threatened harm is far more concrete here than in Clapperwhere the

plaintiffs feared that their First Amendment activities would be chilled because the


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government would access their conversations in the course of seeking to monitor the

plaintiffs foreign contacts. In contrast, here the plaintiffs, including plaintiff Hedges

who was also a plaintiff in Clapper, are themselves subject as covered persons under

the Act whereas in Clapperthe expected monitoring of the plaintiffs communications

was incidental to the governments targeting of third parties. Just as the Court found in

Clapper, the plaintiffs activities place them directly within the governments objectives:

Furthermore, the plaintiffs have good reason to believe that their communications,in particular, will fall within the scope of the broad surveillance that they can

assume the government will conduct. The plaintiffs testify that in order to carryout their jobs they must regularly communicate by telephone and e-mail with

precisely the sorts of individuals that the government will most likely seek tomonitor i.e., individuals "the U.S. government believes or believed to be

associated with terrorist organizations," "political and human rights activists whooppose governments that are supported economically or militarily by the U.S.

government," and "people located in geographic areas that are a special focus ofthe U.S. government's counterterrorism or diplomatic efforts." The plaintiffs'

assessment that these individuals are likely targets of FAA surveillance isreasonable, and the government has not disputed that assertion.

On these facts, it is reasonably likely that the plaintiffs' communications will be

monitored under the FAA. The instant plaintiffs' fears of surveillance are by nomeans based on "mere conjecture," delusional fantasy, or unfounded speculation.

Baur, 352 F.3d at 636 (to establish standing, a plaintiff "must allege that he facesa direct risk of harm which rises above mere conjecture"). Their fears are fairly

traceable to the FAA because they are based on a reasonable interpretation of thechallenged statute and a realistic understanding of the world.

Clapperat 138-139.

Nothing in the Act precludes plaintiffs reasonable interpretation of the

challenged statute. Clapper, supra. As in Clapper, the plaintiffs contacts with the terror

organizations and their leadership and the plaintiffs promotion of the terror groups

ideology through favorable news coverage or commentary of such entities can reasonably

be deemed substantial support to the covered entities and their associated forces

under the Act, making plaintiffs and others engaged in similar endeavors covered


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persons and subject to indefinite military incarceration without trial or judicial access.

This is not mere conjecture, delusional fantasy, or unfounded speculation, Clapper,

supra, but a reasonable interpretation, Clapper, supra, of the very statutory text.

In sum, the unrestrained breadth of language in the Act renders a covered

person subject to unlimited military detention under 1031(b)(2) any person, including

plaintiffs, who has substantially supported any group associated with al-Qaeda or the

Taliban, a coverage realm that is virtually undefined by any contour that would limit its

applicability to persons engaged in protected First Amendment conduct. Indeed, it is that

very conduct that will render them subject to the Acts provisions.

The First Amendment doctrine of overbreadth is an exception to our normal rule

regarding the standards for facial challenges. SeeMembers of City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 80 L. Ed. 2d 772, 104 S. Ct. 2118

(1984). The showing that a law punishes a "substantial" amount of protected free speech,

"judged in relation to the statute's plainly legitimate sweep,"Broadrickv. Oklahoma,

413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973), suffices to invalidate all

enforcement of that law, "until and unless a limiting construction or partial invalidation

so narrows it as to remove the seeming threat or deterrence to constitutionally protected

expression."Id., at 613, 37 L Ed 2d 830, 93 S Ct 2908. See also Virginia v. Black, 538

U.S. 343, 155 L. Ed. 2d 535, 123 S. Ct. 1536 (2003);New Yorkv.Ferber, 458 U.S. 747,

769, n. 24, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982); Dombrowski v.Pfister, 380 U.S.

479, 491, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965).

Overbreadth doctrine eliminates the deterrence of legitimate speech caused by

statutory text that intrudes upon protected First Amendment activities. The remedy has


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arisen out of concern that the threat of enforcement of an overbroad law may deter or

"chill" constitutionally protected speech--especially when the overbroad statute imposes

criminal sanctions. See Schaumburgv. Citizens for a Better Environment, 444 U.S. 620,

634, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980);Bates v. State Bar of Ariz., 433 U.S. 350,

380, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977);NAACPv.Button, 371 U.S. 415, 433, 9 L.

Ed. 2d 405, 83 S. Ct. 328 (1963). Plaintiffs like many persons, rather than undertake the

considerable burden of vindicating their rights through case-by-case litigation, may be

forced to simply to abstain from protected speech,Dombrowski,supra, at 486-487, 14 L

Ed 2d 22, 85 S Ct 1116--harming not only themselves but society as a whole, which is

deprived of an uninhibited marketplace of ideas. Cf., Viginia v. Hicks, 539 U.S. 113, 119

(2003).

As the case law makes clear, plaintiffs, facing the threat of indefinite detention,

military trial and possible rendition to foreign jurisdictions by the sheer sweep of

language of the Act, face the choice between speech with such risk and diminishing their

speech or remaining silent. The very existence of this decided threat to their First

Amendment activity in itself gives rise to irreparable harm. Elrod v. Burns, supra.

Finally, since the Act provides that such persons can be immediately taken into military

custody without access to the civil courts, they will have little or no opportunity to seek

early or expeditious release based upon a defense that they were engaging in

constitutionally protected conduct. Indeed, while the government may argue that the

matter is not ripe and plaintiffs lack standing until actually incarcerated by the military,


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such remedy effectively allows for the very deprivation of liberty under the Act that the

instant action seeks to forgo.5

CONCLUSION

For the reasons set forth herein, plaintiffs respectfully request entry of an order

temporarily or preliminarily enjoining the operation of the Homeland Battlefield

provisions of the NDAA.

Respectfully submitted,

S/Bruce I. Afran10 Braeburn Drive

Princeton, New Jersey 08540609-924-2075

S/Carl J. Mayer

66 Witherspoon Street Suite 414Princeton, New Jersey 08542

609-921-0253

Attorneys for Plaintiff

Robert Jaffe, Esq.Of Counsel

5 CitingEx Parte Milligan, 71 U.S. 2 (1866), the Supreme Court has noted that the

history of wartime suspensions of fundamental rights calls into question any doctrinelimiting categorical guarantees. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976)

(The history of even wartime suspension of categorical guarantees, such as habeas corpusor the right to trial by civilian courts, see Ex parte Milligan, 4 Wall. 2 (1867), cautions

against suspending explicit guarantees.)

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