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NDAA Lawsuit

NDAA Lawsuit

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Published by: tpmdocs on May 17, 2012
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1UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK----------------------------------------CHRISTOPHER HEDGES, DANIEL ELLSBERG,JENNIFER BOLEN, NOAM CHOMSKY, ALEXAO’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P.,Plaintiffs,-v-BARACK OBAMA, individually and asrepresentative of the UNITED STATES OFAMERICA; LEON PANETTA, individuallyand in his capacity as the executive andrepresentative of the DEPARTMENTOF DEFENSE, JOHN MCCAIN, JOHN BOEHNER,HARRY REID, NANCY PELOSI, MITCHMCCONNELL, ERIC CANTOR asrepresentatives of the UNITED STATESOF AMERICA,Defendants.----------------------------------------X::::::::::::::::::::::X12 Civ. 331 (KBF)OPINION AND ORDERKATHERINE B. FORREST, District Judge:On December 31, 2011, President Obama signed into law theNational Defense Authorization Act for Fiscal Year 2012, Pub. L.112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”). Plaintiffs,a group of writers and activists, brought a lawsuit on January 13,2012, seeking preliminary and permanent injunctive relief withrespect to one section (indeed, one page) of that voluminouslegislation: § 1021. Plaintiffs assert that Section 1021 isconstitutionally infirm, violating both their free speech andassociational rights guaranteed by the First Amendment as well as
May 16, 2012
Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 1 of 68
2due process rights guaranteed by the Fifth Amendment of the UnitedStates Constitution. On February 27, 2012, plaintiffs filed amotion for a temporary restraining order (which they subsequentlyconverted to a motion for preliminary injunction in a conferencewith the Court), seeking to enjoin enforcement of § 1021. Insupport of their motion, plaintiffs assert that § 1021 alreadyhas impacted their associational and expressive activities--andwould continue to impact them, and that § 1021 is vague to such anextent that it provokes fear that certain of their associationaland expressive activities could subject them to indefinite orprolonged military detention.On March 30, 2012, after expedited discovery, this Court heldan evidentiary hearing on plaintiffs’ motion. At the hearing,three plaintiffs testified live and, pursuant to stipulation,another by sworn declaration. The Government did not call anywitnesses, submit any documentary evidence, or file anydeclarations in connection with its opposition to plaintiffs’motion.
As mentioned, plaintiffs’ challenge § 1021 as vague and thus,violative of their First and Fifth Amendment rights. TheGovernment opposes plaintiffs’ request for preliminary injunctiverelief on three bases: first, that plaintiffs lack standing;The parties filed post-hearing memoranda; and the motionwas fully submitted on May 4, 2012.
“The Government” refers to all defendants in this action.
Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 2 of 68
3second, that even if they have standing, they have failed todemonstrate an imminent threat requiring preliminary relief; andfinally, through a series of arguments that counter plaintiffs’substantive constitutional challenges, that Section 1021 of theNDAA is simply an “affirmation” or “reaffirmation” of theauthority conferred by the 2001 Authorization for Use of MilitaryForce, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the“AUMF”), passed in the wake of September 11, 2001.In essence, the Government argues that as an “affirmation” ofthe AUMF, § 1021 of the NDAA does nothing new; and therefore,since the type of activities in which plaintiffs are engaged werenot subject to legal action under the AUMF, there is no reasonablebasis for plaintiffs to assert that § 1021 could suddenly subjectthem to governmental action now. According to the Government, asan affirmation of the AUMF, the NDAA must be “read against thebackdrop of Executive practice and court decisions”--a backdropwhich clarifies the scope of § 1021. (See Gov’t’s SupplementalMem. of Law in Opp’n to Pls.’ Mot. for a Prelim. Inj. (“Gov’tSupp. Mem.”) (Dkt. No. 33) at 1.)For the reasons set forth below, this Court finds that § 1021is not merely an “affirmation” of the AUMF. To so hold would becontrary to basic principles of legislative interpretation thatrequire Congressional enactments to be given independent meaning.To find that § 1021 is merely an “affirmation” of the AUMF would
Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 3 of 68

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