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Hedges Second Circuit Motion for Supplemental Briefing

Hedges Second Circuit Motion for Supplemental Briefing

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Published by revolutiontruth
Hedges v. Obama - Motion for Supplemental Briefing
Hedges v. Obama - Motion for Supplemental Briefing

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Categories:Business/Law
Published by: revolutiontruth on Mar 23, 2013
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09/23/2013

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IN THE UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUITNo. 12-3644
-----------------------------------------------------------------------CHRISTOPHER HEDGES,DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY; ALEXA O’BRIEN,US DAY OF RAGE; KAI WARGALLA,HON. BRIGITTA JONSDOTTIR M.P.,Plaintiffs,v.BARACK OBAMA, individually and asrepresentative of the UNITED STATESOF AMERICA; LEON PANETTA,individually and in his capacity as theexecutive and representative of theDEPARTMENT OF DEFENSE,JOHN McCAIN, JOHN BOEHNER,HARRY REID, NANCY PELOSI,MITCH McCONNELL, ERIC CANTOR as representatives of the UNITED STATESOF AMERICADefendants.-----------------------------------------------------------------
PLAINTIFFS-APPELLEES’ MEMORANDUM OF LAW IN SUPPORT OFMOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND ORALARGUMENT AS TO ISSUES ARISING UNDER
CLAPPER V. AMNESTY  INTERNATIONAL
,
No. 11–1025 (S.Ct. February 26, 2013)
 
Bruce I. Afran, Esq.10 Braeburn Dr.Princeton, N.J. 08540609-924-2075Carl J. Mayer, Esq.MAYER LAW GROUP LLC1040 Avenue of the Americas, Suite 2400 New York, NY 10018212-382-4686
Case: 12-3176 Document: 229-2 Page: 1 03/22/2013 886049 10
 
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ARGUMENTThis motion seeks leave for the parties to file supplemental briefs in theinstant appeal and oral argument with respect to issues arising under the SupremeCourt’s determination in
Clapper v. Amnesty International
, No. 11–1025 (S.Ct.February 26, 2013). At oral argument, the hearing panel raised the question of deferring judgment until the Court could consider how the anticipated decision in
Clapper
would impact the issues in the present matter,
 Hedges v. Obama
. As aresult of the change in legal environment following the reversal in
Clapper
,fundamental fairness strongly suggests the need for supplemental briefing.In its Rule 28(j) letter, the government quoted selectively from certainphrases in
Clapper
suggesting that the judgment below must be reversed. But theRule 28j format, with its limitation of 350 words, is not proper for detaileddiscussion of how the Supreme Court’s holding in
Clapper
affects the outcome of the present appeal; plaintiffs, upon extended study of 
Clapper
, believesupplemental briefing and additional argument are necessary now that thisCircuit’s ruling in
Clapper
is no longer governing law.Plaintiffs note that the district court did not rely exclusively on this Circuit’sdecision in
Clapper
for its standing analysis but placed greater emphasis on theSupreme Court’s conventional First Amendment standing doctrine. Discussion of 1) the interrelationship between conventional and First Amendment overbreadth
Case: 12-3176 Document: 229-2 Page: 2 03/22/2013 886049 10
 
3
standing, 2) how these relate to the factual record below, 3) the district court’sreference to other standing precedent and 4) the factual differences between
Clapper
and
 Hedges v. Obama
is beyond the scope of the Rule 28j format and, infairness to the gravity of the issues, requires supplemental briefs and argument onthe
Clapper
issues.
 
The government’s Rule 28j letter states simply that
Clapper
requiresreversal of the district court ruling. But
Clapper’s
factual and legal predicatesdiffer dramatically from those in the instant appeal and have only superficialsimilarities to
 Hedges v. Obama
, as the brief discussion below shows.In
Clapper
, plaintiffs were lawyers and journalists who contended thatbroadened wiretap powers under the FISA Amendments Act (FAA) impermissiblychilled their own First Amendment interests. Though not directly targeted by theFAA, the
Clapper
plaintiffs claimed they would be chilled in their FirstAmendment rights for fear of being subject to federal wiretapping when theyinterview or counseled the actual wiretap targets. For this reason, the
Clapper
 plaintiffs sought to declare the FAA’s broadened wiretap powers unconstitutionaldue to their incidental effect upon plaintiffs’ journalistic or associational activities.As the Supreme Court recognized, the
Clapper
plaintiffs were
not 
thesubjects of the FAA but, instead, were asserting what the Court called an“attenuated” form of standing that was, in effect, derivative of the actual wiretap
Case: 12-3176 Document: 229-2 Page: 3 03/22/2013 886049 10

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