890 F. Supp. 2d 424
S.D.N.Y.2012Background
- This action permanently enjoins § 1021(b)(2) of the NDAA, which authorizes military detention; the court previously issued a May 16, 2012 preliminary injunction and a June 6, 2012 summary order clarifying scope.
- Plaintiffs are five individuals (Hedges, O’Brien, Wargalla, Jonsdottir) plus others linked to WikiLeaks/advocacy who fear indefinite detention under § 1021(b)(2) for First Amendment activities.
- The Government failed to present live witnesses or documentary evidence at the March hearing and later shifted positions regarding the statute’s reach; the court relies on the March record.
- The court finds § 1021(b)(2) is facially unconstitutional as overbroad with protected First Amendment activity and vague under due process.
- The court contrasts § 1021(b)(2) with the AUMF, noting § 1021(b)(2)’s broader, law-of-war language and its lack of definitional structure; it concludes the statute is not a mere reaffirmation of the AUMF.
- The court permanently enjoins § 1021(b)(2) and invites Congress to consider amendments or alternative tools for counterterrorism.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge § 1021(b)(2) | Hedges et al. have a reasonable fear of detention. | Standing rests on the interpretation of § 1021(b)(2) and prior positions; no assured enforcement. | Plaintiffs have standing to seek preenforcement, facial relief. |
| Vagueness under the Fifth Amendment | Key terms (substantially supported, directly supported, associated forces) are undefined. | Detention authority is inherently vague but can be read in context. | § 1021(b)(2) is impermissibly vague and violates due process. |
| First Amendment overbreadth | § 1021(b)(2) chills protected speech and association. | Statute targets real terrorism; First Amendment concerns are outweighed by national security needs. | § 1021(b)(2) is facially unconstitutional as overbroad. |
| Relation to the AUMF and scope of detention authority | § 1021(b)(2) expands beyond the AUMF and is not a mere reaffirmation. | § 1021(b)(2) is a reaffirmation of the President’s authority under the AUMF. | § 1021(b)(2) differs in scope and is not coextensive with the AUMF. |
| Remedy and mootness | Permanent injunction is necessary to prevent ongoing chilling and potential detention. | Contends relief moot or limited to habeas context. | Permanent injunction warranted; not moot. |
Key Cases Cited
- Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004) (limits on detention under the AUMF and the perils of unchecked detention power)
- Al-Bihani v. Obama, 590 F.3d 871 (D.C. Cir. 2010) (law-of-war concepts not domestically binding; limits on detention authority)
- U.S. v. Stevens, 130 S. Ct. 1577 (U.S. 2010) (First Amendment constraints; overbreadth/speech regulation limits)
- Stevens v. Stevens", 130 S. Ct. 1587 (U.S. 2010) (touchstone for assessing statute breadth against protected speech)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires injury, causation, redressability)