Hedges v. Obama

12-3176 (L)
Hedges v. Obama

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-----

August Term, 2012

(Argued: February 6, 2013 Decided: July 17, 2013)

Docket Nos. 12-3176 (Lead), 12-3644 (Con)

-----

CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA
O’BRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BIRGITTA JONSDOTTIR M.P.,

Plaintiffs-Appellees,

v.

BARACK OBAMA, individually and as a representative of the UNITED STATES OF AMERICA, LEON
PANETTA, individually and as a representative of the DEPARTMENT OF DEFENSE,

Defendants-Appellants,

JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC
CANTOR, as representatives of the UNITED STATES OF AMERICA,

Defendants.*

-----

Before:

KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.**

*

The Clerk of the Court is directed to amend the official caption as shown above.
**

The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of
New York, sitting by designation.
 Defendants-appellants seek review of a district court decision permanently enjoining

enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground

that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on

the government’s authority to detain the American citizen plaintiffs and that those plaintiffs

therefore lack Article III standing. Moreover, the non-citizen plaintiffs have failed to establish a

sufficient basis to fear detention under the statute to give them standing to seek preenforcement

review. VACATED AND REMANDED.

ROBERT M. LOEB, Appellate Staff Civil Division, Department of Justice,
Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Washington,
DC; Beth S. Brinkmann, Deputy Assistant Attorney General, Washington, DC;
August E. Flentje, Civil Division, Department of Justice, Washington, DC; Jeh
Charles Johnson, General Counsel, Department of Defense, Washington, DC; Preet
Bharara, United States Attorney for the Southern District of New York, New York,
NY; Benjamin H. Torrance, Christopher B. Harwood, Assistant United States
Attorneys, New York, NY, on the brief)
Attorneys for Defendants-Appellants

CARL J. MAYER, Mayer Law Group LLC, New York, NY; BRUCE I. AFRAN,
ESQ., Princeton, NJ
Attorneys for Plaintiffs-Appellees

DAVID B. RIVKIN, JR. (Lee A. Casey, Andrew M. Grossman, on the brief),
BakerHostetler LLP, Washington, DC
Attorneys for Amici Curiae Senators John McCain, Lindsey Graham, and Kelly
Ayotte

Kent A. Yalowitz, Arnold & Porter LLP, New York, NY; L. Charles Landgraf,
Arpan A. Sura, Arnold & Porter LLP, Washington, DC
Attorneys for Amicus Curiae Bill of Rights Defense Committee

Matthew J. MacLean, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC
Attorney for Amici Curiae Center for National Security Studies and The Constitution
Project

Reem Salahi, Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA
Attorney for Amicus Curiae Government Accountability Project
 3

Eric K. Yamamoto, University of Hawaii School of Law, Honolulu, HI; Lorraine K.
Bannai, Anjana Malhotra, Seattle University School of Law, Seattle, WA
Attorneys for Amici Curiae Karen and Ken Korematsu, et al.

John W. Whitehead, Douglas R. McKusick, Lina M. Ragep, The Rutherford
Institute, Charlottesville, VA; Anand Agneshwar, Arnold & Porter LLP, New York,
NY
Attorneys for Amicus Curiae The Rutherford Institute

William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, Robert J.
Olson, William J. Olson, P.C., Vienna, VA; Steven J. Harfenist, Friedman Harfenist
Kraut & Perlstein LLP, Lake Success, NY; Gary G. Kreep, U.S. Justice Foundation,
Ramona, CA
Attorneys for Amici Curiae U.S. Congressman Steve Stockman, et al.

LEWIS A. KAPLAN, District Judge.

On September 11, 2001, the al-Qaeda terrorist network attacked multiple targets in

the United States with hijacked commercial airliners, killing approximately 3,000 people. A week

later, Congress enacted the Authorization for Use of Military Force (the “AUMF”),1 which

empowered President Bush to use all necessary and appropriate force against those nations,

organizations, and persons responsible for the attacks and those who harbored such organizations

or persons.

Nearly twelve years later, the hostilities continue. Presidents Bush and Obama have

asserted the right to place certain individuals in military detention, without trial, in furtherance of

their authorized use of force. Substantial litigation has ensued over the scope of presidential military

detention authority—that is, whom did Congress authorize the President to detain when it passed

the AUMF?

1

P.L. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. § 1541 note.
 4

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

Authorization Act for Fiscal Year 2012.2 Section 1021 of that statute, which fits on a single page,

is Congress’ first—and, to date, only—foray into providing further clarity on that question. Of

particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain

anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces.

The controversy over Section 1021 was immediate. The government contends that

Section 1021 simply reaffirms authority that the government already had under the AUMF,

suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They

are journalists and activists who allegedly fear that the government may construe their work as

having substantially supported al-Qaeda, the Taliban, or associated forces. They contend that

Section 1021 is a dramatic expansion of the President’s military detention authority, supposedly

authorizing the military, for the first time, to detain American citizens on American soil. As one

group of amici has noted, “[r]arely has a short statute been subject to more radically different

interpretations than Section 1021.”3

Plaintiffs brought this action shortly after the statute was enacted. They sought an

injunction barring enforcement of Section 1021 and a declaration that it violates, among other

things, their rights under the First and Fifth Amendments to the United States Constitution. The

district court agreed and entered a permanent injunction restraining detention pursuant to Section

1021(b)(2). It is that decision that we review here.

2

P.L. 112-81, 125 Stat. 1298 (2011) (“2012 NDAA”).
3

Stockman Amici Br. 3.
 5

We conclude that plaintiffs lack standing to seek preenforcement review of Section

1021 and vacate the permanent injunction. The American citizen plaintiffs lack standing because

Section 1021 says nothing at all about the President’s authority to detain American citizens. And

while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident

aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish

standing because they have not shown a sufficient threat that the government will detain them under

Section 1021. Accordingly, we do not address the merits of plaintiffs’ constitutional claims.

I. Background

Prior to the passage of Section 1021, a number of federal judges reached divergent

conclusions about the scope of AUMF detention authority. To appreciate what Congress did and

did not resolve in passing Section 1021, one must understand the nature of this debate. We thus

describe the history of the litigation over AUMF detention authority in some detail.

A. The AUMF

The AUMF, enacted on September 18, 2001, provides:

“[T]he President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or
persons.”4

President Bush ordered the United States military to Afghanistan to subdue al-Qaeda and the Taliban

4

AUMF § 2(a).
 6

regime known to support it. Soon thereafter, President Bush began to hold certain individuals in

military detention as “enemy combatants,” many of them at the United States Naval Base in

Guantánamo Bay, Cuba.5

B. The Citizen and Domestic Capture Cases: Hamdi, Padilla, and al-Marri

As one scholar has noted, the litigation regarding the scope of executive detention

authority may be divided into two “waves”: (1) litigation from 2002 to 2008 regarding three

individuals who were held as enemy combatants in military detention within the territorial United

States, and (2) litigation from 2008 to the present concerning Guantánamo detainees.6 The first

category comprises the cases of Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri.

1. Hamdi

Hamdi, then an American citizen, was in Afghanistan in the fall of 2001, where he

allegedly was armed and affiliated with a Taliban military unit that had provided him weapons

5

See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,
66 Fed. Reg. 57,833 (Nov. 13, 2001) (military order asserting authority, under AUMF and
Article II of United States Constitution, to detain and try by military tribunal non-citizens
who, there was reason to believe, were members of al-Qaeda, had been involved in
preparing terrorist attacks directed against United States interests, or had harbored
individuals who had done so); see generally Gherebi v. Obama, 609 F. Supp.2d 43, 46–47
(D.D.C. 2009); Rasul v. Bush, 542 U.S. 466, 471 (2004) (discussing the military detention
of over six hundred non-citizens at Guantánamo).
6

See Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens,
52 B.C. L. REV. 769, 805 (2011).
 7

training.7 He was apprehended when that unit surrendered after a battle.8 After entering military

detention within the United States, a habeas corpus petition was filed on his behalf, alleging inter

alia that his detention violated the Non-Detention Act of 1971, which provides, “No citizen shall

be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”9

Although the Supreme Court in June 2004 remanded Hamdi’s case to allow him to

challenge his status as an enemy combatant, it upheld the government’s authority to detain a

properly designated enemy combatant in Hamdi v. Rumsfeld,10 when “five Members of the Court

recognized that detention of individuals who fought against the United States in Afghanistan ‘for

the duration of the particular conflict in which they were captured, is so fundamental and accepted

an incident to war as to be an exercise of the “necessary and appropriate force” Congress has

authorized the President to use’” by the AUMF.11

In so doing, a four Justice plurality12 noted that “[t]he legal category of enemy

combatant has not been elaborated upon in great detail” and that “[t]he permissible bounds of the

7

Hamdi v. Rumsfeld, 542 U.S. 507, 513 (2004) (plurality opinion).
8

Id.
9

18 U.S.C. § 4001(a).
10

542 U.S. 507.
11

Boumediene v. Bush, 553 U.S. 723, 733 (2008) (discussing Hamdi).
12

Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer.
 8

category will be defined by the lower courts as subsequent cases are presented to them.”13 It

nevertheless concluded that the AUMF “clearly and unmistakably” authorized detaining at least

those who were “part of or supporting forces hostile to the United States or coalition partners in

Afghanistan and who engaged in an armed conflict against the United States there.”14 Thus, the

plurality reasoned that, if the government’s allegations were correct, Hamdi’s detention did not

violate the Non-Detention Act because the AUMF itself constituted the requisite “Act of

Congress.”15 To the extent Hamdi identified constitutional concerns with the military detention of

American citizens generally, the plurality concluded that there was “no bar to this Nation’s holding

one of its own citizens as an enemy combatant.”16 Nevertheless, the plurality suggested that this

detention authority was not boundless and that detention pursuant to it could not be indefinite.

Rather, “based on longstanding law-of-war principles,” the plurality construed the AUMF “to

include the authority to detain for the duration of the relevant conflict.”17 Justice Thomas wrote

separately and provided a fifth vote for upholding authority to detain Hamdi under the AUMF, but

rejected any limitations, derived from the laws of war, on the duration of the detention authority.18

13

Hamdi, 542 U.S. at 522 n.1 (plurality opinion).
14

Id. at 516, 519 (internal quotation marks omitted).
15

Id. at 517. The plurality did not reach the alternative argument that the President’s Article
II powers as Commander-in-Chief authorized the detention. Id. at 516–17.
16

Id. at 519 (citing Ex Parte Quirin, 317 U.S. 1, 37–38 (1942)).
17

Id. at 521.
18

Id. at 587–88 (Thomas, J., dissenting).
 9

The four remaining Justices dissented from the conclusion that Hamdi could be

detained, reasoning inter alia that the AUMF did not constitute sufficiently clear authorization of

his detention to satisfy the Non-Detention Act.19 Justice Scalia, joined by Justice Stevens, would

have held further that the government was without constitutional power to detain Hamdi militarily

absent congressional suspension of the writ of habeas corpus.20

2. Padilla

Padilla, also an American citizen, was apprehended at Chicago’s O’Hare

International Airport in May 2002 after allegedly receiving training from al-Qaeda in Afghanistan,

becoming involved in a plan to detonate a “dirty bomb” here, and returning to the United States to

conduct reconnaissance and facilitate attacks by al-Qaeda.21

In December 2003—prior to Hamdi—this Court held that because Padilla was an

American citizen arrested on domestic soil away from a zone of combat, his military detention

violated the Non-Detention Act and could not be justified by the President’s Article II war powers.22

The Supreme Court reversed our decision on procedural grounds on the day it decided Hamdi but

19

Id. at 547–51 (Souter, J., concurring in part, dissenting in part, and concurring in the
judgment) (reasoning further that while AUMF might provide clear authority to detain
Hamdi in accordance with laws of war, government was not doing so); id. at 574 (Scalia,
J., dissenting).
20

Id. at 571–75 (Scalia, J., dissenting) (citing Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2 (1866)).
21

Padilla v. Rumsfeld, 352 F.3d 695, 699–701 (2d Cir. 2003), rev’d on jurisdictional grounds,
542 U.S. 426 (2004).
22

Id. at 712, 722.
 10

did not reach the lawfulness of Padilla’s detention.23

Following the Supreme Court’s reversal of our Padilla ruling, a new habeas petition

was filed on his behalf. The Fourth Circuit in 2005 concluded that Padilla was lawfully detained

under the reasoning of Hamdi because it became known that he had been “armed and present in a

combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the

United States” while in Afghanistan prior to his return to the United States.24 Although Padilla had

been apprehended in the United States, the Fourth Circuit concluded that Hamdi had not relied on

the place of capture.25 The government subsequently indicted Padilla and transferred him to civilian

criminal custody. His petition for certiorari was denied.26

3. Al-Marri

The Fourth Circuit again considered the scope of military detention authority in the

case of al-Marri, a Qatari national apprehended in the United States while he was lawfully residing

here.27 Al-Marri allegedly was a “sleeper agent” who had met Osama Bin Laden, was trained by al-

23

Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). Justice Stevens (joined by Justices Souter,
Ginsburg, and Breyer) dissented and indicated that he would have held, consistent with our
decision, that Padilla’s detention violated the Non-Detention Act. Id. at 464 n.8.
24

Padilla v. Hanft, 423 F.3d 386, 390 (4th Cir. 2005) (internal quotation marks omitted).
25

Id. at 393–94.
26

Padilla v. Hanft, 547 U.S. 1062 (2006).
27

Al-Marri v. Wright, 487 F.3d 160, 164, 171 (4th Cir. 2007), rev’d sub nom. Al-Marri v.
Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated sub nom. Al-
Marri v. Spagone, 555 U.S. 1220 (2009).
 11

Qaeda, and had been sent to the United States to facilitate terrorist activities here.28 Unlike Padilla

and Hamdi, however, the government did not allege that al-Marri had stood alongside armed forces

hostile to the United States or had been present in a combat zone during hostilities.29

A splintered en banc Fourth Circuit concluded in July 2008 that the executive had

authority to detain al-Marri as an enemy combatant, assuming that the government’s allegations

were true.30 While each offered a different definition of those subject to detention, the three

principal opinions which voted in favor of this general proposition gave significant weight to the fact

that, if the government’s allegations were correct, al-Marri was little different from the 9/11

hijackers themselves, short of succeeding in the plot.31 The judges who took the contrary view

concluded that al-Marri was a civilian and therefore could not properly be detained militarily under

28

Id. at 165–66.
29

Id. at 183.
30

Al-Marri, 534 F.3d at 216.
31

See id. at 259–60 (Traxler, J., concurring in the judgment); id. at 287 (Williams, C.J.,
concurring in part and dissenting in part); id. at 297 (Wilkinson, J., concurring in part and
dissenting in part).

Judge Wilkinson proposed that the AUMF authorized detaining those who are (1) an
“enemy,” as a member of an organization against whom Congress has authorized the use
of military force, and (2) a “combatant,” as someone who knowingly acts to inflict harm
in order to further the military goals of that organization. Id. at 323–24.

Judge Williams focused instead on those who (1) “attempt[] or engage[] in belligerent acts
against the United States, either domestically or in a foreign combat zone; (2) on behalf of
an enemy force.” Id. at 285.
 12

traditional principles of the laws of war.32 The key question for them was whether he had affiliated

“with the military arm of an enemy nation.”33

The Supreme Court granted certiorari,34 but then vacated the decision below as moot

when the newly elected Obama administration indicted al-Marri and sought to transfer him to

civilian criminal custody.35

C. The Guantánamo Cases

Meanwhile, Congress and the courts were engaging in a dialogue over a more basic

question regarding the Guantánamo detainees—whether they had any right to petition for habeas

corpus at all.36 This culminated in June 2008 with Boumediene v. Bush, which held that the

Guantánamo detainees had constitutional habeas rights and that the procedures that Congress and

32

See generally id. at 230–31 (Motz, J., concurring in the judgment); but see id. at 314–22
(Wilkinson, J., concurring in part and dissenting in part) (concluding that law-of-war
principles must account for recent developments in how warfare is conducted).
33

Id. at 231 (emphasis added).
34

Al-Marri v. Pucciarelli, 555 U.S. 1066 (2008).
35

Al-Marri v. Spagone, 555 U.S. 1220.
36

See Rasul, 542 U.S. at 484 (holding that statutory habeas jurisdiction extended to
Guantánamo); Detainee Treatment Act of 2005, P.L. 109-148, 119 Stat. 2680, Title X
(“DTA”), § 1005(e)(1) (purporting to strip statutory habeas jurisdiction for Guantánamo
detainees); Hamdan v. Rumsfeld, 548 U.S. 557, 584 (2006) (concluding that Section
1005(e)(1) of the DTA did not apply to pending cases); Military Commissions Act of 2006,
P.L. 109-366, 120 Stat. 2600 (“2006 MCA”), § 7 (stripping habeas jurisdiction from future
and pending cases); Boumediene, 553 U.S. at 792 (concluding that Section 7 of the 2006
MCA is unconstitutional).
 13

the administration had provided were not an adequate substitute.37

1. Activity Pre-Boumediene

In July 2004, shortly after Hamdi, the government created Combatant Status Review

Tribunals (“CSRTs”) to determine whether the Guantánamo detainees were enemy combatants,

which the Department of Defense then defined to mean “an individual who was part of or supporting

Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United

States or its coalition partners. This includes any person who has committed a belligerent act or has

directly supported hostilities in aid of enemy armed forces.”38

Congress did not endorse this definition or otherwise speak directly to the scope of

detention authority during this period. It codified the CSRT process in the Detainee Treatment Act

of 2005, but that statute did not explain who could be detained.39 The Military Commissions Act

of 2006 defined the concept of an “unlawful enemy combatant,” but only with respect to eligibility

for trial by the military commissions created by that act, not to AUMF detention authority.40

37

553 U.S. at 771, 792.
38

Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing
Combatant Status Review Tribunal § a (July 7, 2004), available at
http://www.defense.gov/news/Jul2004/d20040707review.pdf; see Hamdan, 548 U.S. at 571
n.1 (citing this definition).
39

See DTA § 1005(e)(2)(C)(ii) (requiring only that D.C. Circuit ensure that Department of
Defense’s chosen CSRT standards comply with Constitution and federal law, as applicable).
40

See 2006 MCA § 3(a) (defining such individuals to include, inter alia, anyone who has
“engaged in hostilities or who has purposefully and materially supported hostilities against
the United States or its co-belligerents who is not a lawful enemy combatant (including a
person who is part of the Taliban, al-Qaeda, or associated forces)”); see also Military
 14

2. Judicial Consideration post-Boumediene

Absent clarity from Congress, Boumediene opened the gates to judicial evaluation

of the scope of executive detention authority for Guantánamo detainees. On remand from the

Supreme Court, Judge Leon of the D.C. district court in the fall of 2008 declined to follow any of

the approaches set forth in Al-Marri and instead adopted the government’s prior 2004 CSRT

definition, concluding that it was consistent with the AUMF and the Constitution.41

a. March 2009 Memo

On March 13, 2009, the new administration, in a memorandum to the D.C. district

court (the “March 2009 Memo” or the “Memo”),42 “refin[ed]” the government’s position regarding

its detention authority for “those persons who are now being held at Guantánamo Bay.”43 Relying

on the Hamdi plurality opinion, the Memo asserted that the scope of executive detention authority

“is necessarily informed by principles of the laws of war,” as these principles “inform the

Commissions Act of 2009 (“2009 MCA”), P.L. 111-84, 123 Stat. 2190, Title XVIII, § 1802
(revising 2006 MCA definition somewhat and renaming the relevant term “unprivileged
enemy belligerent”); cf. Al-Marri, 534 F.3d at 328 n.9 (Wilkinson, J., concurring in part and
dissenting in part) (observing that 2006 MCA definition was “of limited assistance and
relevance” as it does “not specifically address the scope of the President’s detention power
under the AUMF”).
41

Boumediene v. Bush, 583 F. Supp.2d 133, 134–35 (D.D.C. 2008).
42

Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to
Detainees Held at Guantanamo Bay, In re Guantanamo Bay Detainee Litigation, Misc. No.
08-442 (TFH) (D.D.C. Mar 13, 2009).
43

The March 2009 Memo made clear that the position set forth “is limited to the authority
upon which the Government is relying to detain the persons now being held at Guantanamo
Bay” and is “not, at this point, meant to define the contours of authority for military
operations generally, or detention in other contexts.” Id. at 2.
 15

understanding of what is ‘necessary and appropriate’” under the AUMF.44 With this predicate, the

Memo declared that the government, in addition to being able to detain individuals themselves

responsible for the attacks, had the authority

“to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States
or its coalition partners, including any person who has committed a belligerent act,
or has directly supported hostilities, in aid of such enemy armed forces.”45

It stated further that “[i]t is neither possible nor advisable” to identify what these terms mean in the

abstract.46 Nevertheless, the March 2009 Memo said that the inquiry with regard to whether an

individual is “part of” the enumerated forces may depend on either “a formal or functional analysis

of the individual’s role.”47 With regard to “associated forces,” it observed that “many different

private armed groups” fought alongside al-Qaeda and the Taliban in Afghanistan and therefore

declared the authority to detain individuals who “in analogous circumstances in a traditional

international armed conflict . . . would be detainable under principles of co-belligerency.”48 Finally,

it said that the term “substantial support” does not justify detaining “those who provide unwitting

44

Id. at 1, 3. The Memo recognized that the laws of war were “less well-codified with respect
to our current, novel type of armed conflict against armed groups such as al-Qaida and the
Taliban.” Id. at 1. Accordingly, it asserted that principles from traditional “international
armed conflicts between the armed forces of nation states” must inform the AUMF
authority. Id.
45

Id. at 2. The Memo no longer used the term “enemy combatant.”
46

Id.
47

Id. at 6.
48

Id. at 7.
 16

or insignificant support” to the identified organizations.49 But, “[u]nder a functional analysis,

individuals who provide substantial support to al-Qaida forces in other parts of the world may

properly be deemed part of al-Qaida itself.”50 Moreover, “[s]uch activities may also constitute the

type of substantial support that, in analogous circumstances in a traditional international armed

conflict, is sufficient to justify detention.”51 In any event, the March 2009 Memo took the view that

“the AUMF is not limited to persons captured on the battlefields of Afghanistan” nor to those

“directly participating in hostilities.”52

b. District Court Reaction

District of Columbia district court reactions to the March 2009 Memo were mixed.

Judges uniformly accepted the government’s “part of” test but expressed considerable skepticism

about “substantial support.”53 One opinion adopted the government’s position, but only by reading

“substantial support” narrowly to permit detention of those “effectively part of the armed forces of

49

Id. at 2.
50

Id. at 7.
51

Id. (citing Boumediene v. Bush, 579 F. Supp.2d 191, 198 (D.D.C. 2008) (finding petitioner
properly detained under “support” prong of adopted 2004 CSRT definition)).
52

Id. at 7, 8 (internal quotation marks omitted).
53

Even judges otherwise supportive of the government’s position previously had not been
unanimous that being part of al-Qaeda was enough. See Al-Marri, 534 F.3d at 325
(Wilkinson, J., concurring in part and dissenting in part) (opining that “membership, without
more” is insufficient).
 17

the enemy.”54 In what became the majority view in the D.C. district court, another went one step

further and rejected the government’s reliance on “substantial support” and “directly support[ing]

hostilities” altogether, concluding that detention on such grounds was unsupported either by

domestic law or the laws of war.55

c. Al-Bihani

These decisions set the stage for the D.C. Circuit’s central ruling on the scope of

AUMF detention authority, Al-Bihani v. Obama.56 Petitioner Al-Bihani carried a weapon and was

a cook for a unit that fought alongside the Taliban.57 He contended that his detention was

inconsistent with the laws of war and thus not authorized as “necessary and appropriate” under the

AUMF.58 The majority opinion rejected the notion that the laws of war limit the government’s

54

Gherebi, 609 F. Supp.2d at 69 (Walton, J.) (internal quotation marks and alterations
omitted); accord Mohammed v. Obama, 704 F. Supp.2d 1, 4 (D.D.C. 2009) (Kessler, J.).
55

Hamlily v. Obama, 616 F. Supp.2d 63, 75–77 (D.D.C. 2009) (Bates, J.) (internal quotation
marks omitted); accord Mattan v. Obama, 618 F. Supp.2d 24, 26 (D.D.C. 2009) (Lamberth,
C. J.); Anam, 653 F. Supp.2d 62, 64 (D.D.C. 2009) (Hogan, J.); Al Mutairi v. United States,
644 F. Supp.2d 78, 85 (D.D.C. 2009) (Kollar-Kotelly, J.); Hatim v. Obama, 677 F. Supp.2d
1, 7 (D.D.C. 2009) (Urbina, J.), vacated sub nom. Hatim v. Gates, 632 F.3d 720 (D.C. Cir.
2011); Awad v. Obama, 646 F. Supp.2d 20, 23 (D.D.C. 2009) (Robertson, J.).
56

590 F.3d 866 (D.C. Cir. 2010).
57

Id. at 869.
58

Id. at 870–71.
 18

AUMF authority at all—even though the government agreed with Al-Bihani on that point.59 Taking

the view that the “the government’s detention authority logically covers a category of persons no

narrower than is covered by its military commission authority,” the majority concluded that Al-

Bihani was properly detained because he fell within the latter standard, which Congress had set forth

in the Military Commissions Acts of 2006 and 2009.60 That is, the majority held that AUMF

detention authority “includes those who are part of forces associated with Al Qaeda or the Taliban

or those who purposefully and materially support such forces in hostilities against U.S. Coalition

partners.”61

While focusing on this “purposeful and material support” standard, the majority’s

discussion seemed generally supportive of the government’s “substantial support” standard as well.

The majority stated that Al-Bihani was detained lawfully under either the CSRT definition or the

59

Id. at 871 (“There is no indication . . . that Congress intended the international laws of war
to act as extra-textual limiting principles for the President’s war powers under the
AUMF.”); see id. at 885 (Williams, J., concurring in part and concurring in the judgment)
(observing that majority’s discussion on this point “goes well beyond what even the
government has argued in this case” (emphasis in original)); Al-Bihani v. Obama, 619 F.3d
1, 1 (D.C. Cir. 2010) (opinion by all active judges except those on Al-Bihani panel denying
en banc review but noting that panel’s discussion of laws of war was “not necessary to the
disposition of the merits”).
60

Al-Bihani, 590 F.3d at 872; but see Stephen I. Vladeck, The D.C. Circuit After Boumediene,
41 SETON HALL L. REV. 1451, 1460 (2011) (questioning this logical step); Oona Hathaway,
Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts & Sirine Shebaya, The Power
to Detain: Detention of Terrorism Suspects After 9/11, 38 YALE J. INT’L L. 123, 143–44
(2013) (similar); Sophia Brill, Comment, The National Security Court We Already Have,
28 YALE L. & POL’Y REV. 525, 533 n.42 (2010) (similar); H.R. Rep. No. 111-288, at
862–63 (2009) (2009 MCA committee report indicating that definition “is not intended to
address the scope of the authority of the United States to detain individuals in accordance
with the laws of war”).
61

590 F.3d at 872 (citing 2006 and 2009 MCAs).
 19

government’s modified “substantial support” definition.62 Moreover, it later noted that Al-Bihani

“both [was] part of and [had] substantially supported enemy forces” and, without exploring the

bounds of these concepts, “recognize[d] that both prongs are valid criteria that are independently

sufficient to satisfy the [detention] standard.”63

d. Subsequent D.C. Circuit Case Law

Further decisions by the D.C. Circuit followed the principle that the AUMF

authorized detention not only of those who are “part of” al-Qaeda and the Taliban but also those who

“purposefully and materially support” such forces.64 Notably, however, the D.C. Circuit has not had

occasion to develop further the contours of the “support” prong, apparently because the government

appears rarely to rely on it. Rather, in numerous cases before the D.C. Circuit since Al-Bihani, the

government has relied on a theory that the detainee was “part of” al-Qaeda, the Taliban, or

62

Id.
63

Id. at 873–74.
64

See Hatim, 632 F.3d at 721 (vacating grant of habeas because district court did not consider
whether petitioner had “purposefully and materially supported” enemy forces); see also Gul
v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011) (reading Al-Bihani to set forth “purposeful and
material support” standard); Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011) (same);
Al-Madhwani v. Obama, 642 F.3d 1071, 1073–74 (D.C. Cir. 2011) (same); Uthman v.
Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011) (same); Salahi v. Obama, 625 F.3d 745,
747 (D.C. Cir. 2010) (same).

On the other hand, the D.C. Circuit does not appear to have read Al-Bihani as adopting a
“substantial support” standard. But see Al Alwi v. Obama, 653 F.3d 11, 15–16 (D.C. Cir.
2011) (citing to “substantial support” standard where detainee expressly did not challenge
its lawfulness); Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010) (same).
 20

associated forces.65 In fact, in Bensayah v. Obama,66 a case argued before but decided after Al-

Bihani, the government specifically foreswore reliance on any support justification for detention.67

It did so despite the facts that (1) support was the sole ground on which the district court had relied

in finding Bensayah detainable, and (2) the March 2009 Memo had cited that district court decision

as its one example of when “substantial support” might apply.68 Moreover, the government dropped

reliance on a “purposeful and material support” theory in Salahi v. Obama.69

65

See, e.g., Awad v. Obama, 608 F.3d 1, 9 (D.C. Cir. 2010); Al-Adahi v. Obama, 613 F.3d
1102, 1106 (D.C. Cir. 2010); Barhoumi, 609 F.3d at 425; Al Odah v. Obama, 611 F.3d 8,
17 (D.C. Cir. 2010); Uthman, 637 F.3d at 402; Khan v. Obama, 655 F.3d 20, 33 (D.C. Cir.
2011); Al Alwi, 653 F.3d at 17; Esmail v. Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011);
Suleiman v. Obama, 670 F.3d 1311, 1313 (D.C. Cir. 2012); Khairkhwa v. Obama, 703 F.3d
547, 550 (D.C. Cir. 2012).

This may be explained by the “functional rather than . . . formal” approach the D.C. Circuit
has taken with the “part of” inquiry, which focuses “upon the actions of the individual in
relation to the organization” to determine whether “a particular individual was sufficiently
involved with the organization to be deemed part of it.” Salahi, 625 F.3d at 751–52
(internal quotation marks and alterations omitted).
66

610 F.3d 718 (D.C. Cir. 2010).
67

Id. at 722 (noting that government has “abandoned its argument that Bensayah is being
detained lawfully because of the support he rendered to al Qaeda”); cf. Charlie Savage,
Obama Team Is Divided on Anti-Terror Tactics, N.Y. TIMES, Mar. 29, 2010, at A1
(reporting on internal dissension within Obama administration regarding whether
government should argue that support justified Bensayah’s detention).
68

See Bensayah, 610 F.3d at 722; March 2009 Memo at 7.
69

625 F.3d at 747.
 21

D. The 2012 NDAA

It was in this context that the 2012 NDAA was enacted on December 31, 2011.

Section 1021 of that statute provides in relevant part:

“SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF
THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE
AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General.-- Congress affirms that the authority of the President to use
all necessary and appropriate force pursuant to the Authorization for Use of
Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the
authority for the Armed Forces of the United States to detain covered persons
(as defined in subsection (b)) pending disposition under the law of war.

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

(1) A person who planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored
those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda,
the Taliban, or associated forces that are engaged in hostilities against
the United 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.

(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 the
hostilities 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, any other foreign country, or any other foreign entity.
 22

(d) Construction.-- Nothing in this section is intended to limit or expand the
authority of the President or the scope of the Authorization for Use of
Military Force.

(e) Authorities.-- 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.”70

But it is useful to set out the history of this provision, as it may shed light on its proper construction.

An initial version of this section was reported by the House Armed Services

Committee in May 2011.71 It affirmed that the United States “is engaged in an armed conflict with

al-Qaeda, the Taliban, and associated forces” and that the President has the authority to use force

against those who (A) are “part of, or are substantially supporting, al-Qaeda, the Taliban, or

associated forces” or (B) “have engaged in hostilities or have directly supported hostilities in aid of

a nation, organization, or person described in subparagraph (A).”72 Such use of force, the bill

provided, includes the power to detain such persons until the termination of hostilities.73 The

committee report stated the following about the provision:

“The committee notes that as the United States nears the tenth anniversary
of the attacks on September 11, 2001, the terrorist threat has evolved as a result of
intense military and diplomatic pressure from the United States and its coalition
partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave
threat to U.S. national security. The [AUMF] necessarily includes the authority to
address the continuing and evolving threat posed by these groups.

70

2012 NDAA § 1021.
71

H.R. 1540, 112th Cong. § 1034 (as reported by H. Comm. on Armed Services, May 17,
2011), available at
http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf.
72

Id.
73

Id.
 23

“The committee supports the Executive Branch’s interpretation of the
[AUMF], as it was described in [the March 2009 Memo]. While this affirmation is
not intended to limit or alter the President’s existing authority pursuant to the
[AUMF], the Executive Branch’s March 13, 2009, interpretation remains consistent
with the scope of the authorities provided by Congress.”74

The Senate Armed Services Committee developed a different version of this section,

Section 1031 of S. 1253, which was reported out of committee on June 22, 2011.75 Subsections (a)-

(c) of that section were similar to subsections (a)-(c) of the later enacted Section 1021.76 Section

1031 of S. 1253, however, included a “limitation” stating that the detention authority “does not

extend to the detention of citizens or lawful resident aliens of the United States on the basis of

conduct taking place within the United States except to the extent permitted by the Constitution.”77

The committee report stated:

“[Section 1031] would authorize the [military] to detain unprivileged enemy
belligerents captured in the course of hostilities authorized by the [AUMF].

74

H.R. Rep. 112-78 at 209 (2011), available at
http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt78/pdf/CRPT-112hrpt78.pdf.
75

S. 1253, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, June 22, 2011),
available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1253rs/pdf/BILLS-112s1253rs.pdf.

Section 1031 was one of a number of sections in a subtitle entitled “Detainee Matters” in
this bill. The subtitle included also Section 1032, which mandated military detention of
non-citizen members of al-Qaeda who participated in planning or carrying out an attack
against the United States, subject to a national security waiver.
76

Id. There were some differences, however. The original Section 1031(a) did not use the
word “affirms” as did the eventual Section 1021(a). Moreover, this version described those
detainable as “unprivileged enemy belligerents” and limited detention to those “captured
in the course of hostilities,” both terms that were subsequently removed. Compare id.
§ 1031(a) with 2012 NDAA § 1021(a).
77

Id.
 24

“The committee recognizes that the [military] do[es] not need specific
statutory authorization to detain enemy belligerents under the law of war when they
are captured in the course of any lawful armed conflict. Because the long-term nature
of the current conflict has led to the detention of a number of individuals for a period
that is not likely to end soon, the committee concludes that such statutory
authorization is appropriate in this case.”78

The detainee sections of S. 1253, including but not limited to Section 1031,

encountered some opposition from senators and the administration.79 After various consultations,

the Senate Armed Services Committee reported a revised version on November 15, 2011, as S. 1867.

Section 1031(a)–(d) of S. 1867 was identical to the ultimately enacted Section 1021(a)–(d).80 In

particular, S. 1867 removed the limitation regarding detention of citizens and lawful resident aliens

based on domestic conduct. It also added a provision stating, “Nothing in this section is intended

to limit or expand the authority of the President or the scope of the [AUMF].”81 On November 17,

the administration issued a Statement of Administration Policy which stated that Section 1031 was

unnecessary because the authority it attempted to codify already existed and expressed concern

about potential unintended consequences from legislative action in this area.82

78

S. Rep. 112-26 at 176 (2011), available at
http://www.gpo.gov/fdsys/pkg/CRPT-112srpt26/pdf/CRPT-112srpt26.pdf.
79

See Letter from Sen. Harry Reid to Sen. Carl Levin and Sen. John McCain (Oct. 4, 2011)
(stating that Sen. Reid would not bring bill to floor until concerns were resolved), reprinted
in 157 Cong. Rec. S6,323-03, S6,324 (daily ed. Oct. 6, 2011).
80

S. 1867, 112th Cong. § 1031 (as reported by S. Comm. on Armed Services, Nov. 15,
2011), available at
http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf.
81

Id. § 1031(d).
82

See Executive Office of the President, Statement of Administration Policy, S. 1867 –
National Defense Authorization Act for FY 2012 (Nov. 17, 2011), reprinted in 157 Cong.
 25

In ensuing floor debates, a number of senators raised concerns that Section 1031

provided new authority to the President to detain American citizens indefinitely, with particular

concern about citizens captured domestically.83 Senator Dianne Feinstein unsuccessfully proposed

an amendment that would have provided: “The authority described in this section for the [military]

to detain a person does not include the authority to detain a citizen of the United States without trial

until the end of the hostilities.”84

Senator Feinstein prevailed in putting forth a second proposal, however, a so-called

“compromise amendment”85 that ultimately became Section 1021(e) and read, as enacted: “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

Rec. S7,943-01, S7,952 (daily ed. Nov. 29, 2011).
83

See, e.g., 157 Cong. Rec. S7,941-01, S7,941 (daily ed. Nov. 29, 2011) (“We are talking
about American citizens who could be taken from the United States and sent to a camp at
Guantanamo Bay and held indefinitely.”) (statement of Sen. Paul); 157 Cong. Rec. S7,943-
01, S7,945 (daily ed. Nov. 29, 2011) (“The provisions authorize the indefinite military
detention of American citizens who are suspected of involvement in terrorism—even those
captured here in our own country . . . .”) (statement of Sen. Udall); id. at S7,949 (“[Section
1031] will, for the first time in the history of the United States of America, authorize the
indefinite detention of American citizens in the United States.”) (statement of Sen. Durbin);
id. at S7,950 (“I am . . . very concerned about the notion of the protection of our own
citizens and our legal residents from military action inside our own country.”) (statement
of Sen. Webb); id. at S7,953 (“As currently written, the language in this bill would
authorize the military to indefinitely detain individuals—including U.S. citizens—without
charge or trial. I am fundamentally opposed to indefinite detention, and certainly when the
detainee is a U.S. citizen held without charge.”) (statement of Sen. Leahy); 157 Cong. Rec.
S7,956-02, S7,961 (daily ed. Nov. 29, 2011) (“Section 1031 runs the risk of authorizing the
indefinite detention without trial of Americans.”) (statement of Sen. Franken).
84

See 157 Cong. Rec. S7,716-01, S7,745 (daily ed. Nov. 17, 2011); 157 Cong. Rec. S8,094-
03, S8,125 (daily ed. Dec. 1, 2011).
85

Id. at S8,122.
 26

captured or arrested in the United States.”86 In advancing this proposal, Senator Feinstein observed

that the dispute over Section 1031 boiled down to “different interpretations of what the current law

is.”87 Specifically, she noted that

“[t]he sponsors of the bill believe that current law authorizes the detention of
U.S. citizens arrested within the United States, without trial, until ‘the end of the
hostilities’ which, in my view, is indefinitely.

“Others of us believe that current law, including the Non-Detention Act that
was enacted in 1971, does not authorize such indefinite detention of U.S. citizens
arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case
supports their position, while others of us believe that Hamdi, by the plurality
opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on
the battlefield in Afghanistan, and does not extend to U.S. citizens arrested
domestically. And our concern was that section 1031 of the bill as originally drafted
could be interpreted as endorsing the broader interpretation of Hamdi and other
authorities.”88

Senator Feinstein went on to state that, through her second proposed amendment, the two camps

would agree to disagree:

“So our purpose in the second amendment, number 1456, is essentially to
declare a truce, to provide that section 1031 of this bill does not change existing law,
whichever side’s view is the correct one. So the sponsors can read Hamdi and other
authorities broadly, and opponents can read it more narrowly, and this bill does not
endorse either side’s interpretation, but leaves it to the courts to decide.”89

Senator Carl Levin, a principal sponsor of the bill and opponent of Senator Feinstein’s first proposed

amendment, supported her second proposal, stating:

86

2012 NDAA § 1021(e); see 157 Cong. Rec. S8,157-02, S8,157 (daily ed. Dec 1, 2011).
87

157 Cong Rec. S8,094-03, S8,122 (daily ed. Dec. 1, 2011) (statement of Sen. Feinstein).
88

Id. (case name italics added).
89

Id. (case name italics added).
 27

“[I]t would provide the assurance that we are not adversely affecting the
rights of the U.S. citizens in this language. . . . It makes clear what we have been
saying this language already does, which is that it does not affect existing law
relative to the right of the executive branch to capture and detain a citizen. If that law
is there allowing it, it remains. If, as some argue, the law does not allow that, then
it continues that way.”90

Other senators, on both sides of the debate, also voiced their support and characterized the provision

similarly.91 The amendment passed by a vote of 99 to 1.92

Section 1031 of the Senate bill became the conference report’s Section 1021. It

passed Congress and was signed by President Obama on December 31, 2011. President Obama

issued a signing statement that reiterated his position that Section 1021 “breaks no new ground and

is unnecessary.”93 He cited Sections 1021(d) and (e) as “critical limitations” that “make clear

beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts

have recognized as lawful under the 2001 AUMF.”94 He stated also that his administration “will not

90

Id. at S8,124 (statement of Sen. Levin) (paragraph break omitted).
91

See id. (“To this day, the Supreme Court has never ruled on the question of whether it is
constitutional to indefinitely detain a U.S. citizen captured in the United States. Some of
my colleagues see this differently, but the language we have agreed on makes it clear that
section 1031 will not change that law in any way. The Supreme Court will decide who will
be detained; the Senate will not.”) (statement of Sen. Durbin); id. (“As to Senator Durbin,
he has one view, I have another, but we have a common view; that is, not to do anything to
1031 that would change the law. The ultimate authority on the law is not Lindsey Graham
or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be,
and that is exactly what we say here. We are doing nothing to change the law when it comes
to American citizen detention to enhance it or to restrict whatever rights the government has
or the citizen has.”) (statement of Sen. Graham).
92

Id. at S8,125.
93

Statement by the President on H.R. 1540, 2011 WL 6917659, *1 (Dec. 31, 2011).
94

Id.
 28

authorize the indefinite military detention without trial of American citizens” and “will interpret

section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution,

the laws of war, and all other applicable law.”95

E. Proceedings Below

Plaintiff Christopher Hedges filed the initial complaint in this case on January 13,

2012, alleging that Section 1021 violated, inter alia, the First and Fifth Amendments and seeking

declaratory and injunctive relief.96 On February 27, 2012, he filed a verified amended complaint,

which added a number of plaintiffs,97 and moved for a temporary restraining order against

enforcement of Section 1021, a motion that later was converted to a motion for a preliminary

injunction.98 Plaintiffs submitted a number of affidavits in support of their motion, and the district

court held an evidentiary hearing on March 30, 2012.99

Four plaintiffs submitted evidence that was considered by the district court and that

is relevant to this appeal: two American citizens, Hedges and Alexa O’Brien,100 and two non-

95

Id.
96

Hedges v. Obama, No. 12 Civ. 331 (KBF), Dkt. 1 (S.D.N.Y.) [hereinafter “Dist. Ct. Dkt.”].
97

Dist. Ct. Dkt. 4-1 ¶¶ 2–8 (adding Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Kai
Wargalla, Birgitta Jonsdottir, Alexa O’Brien, and US Day of Rage as plaintiffs).
98

See Dist. Ct. Dkt. 6.
99

Dist. Ct. Dkt. 10–14, 17–18, 34.
100

The district court’s one reference to O’Brien’s citizenship status stated that she is a non-
citizen. Hedges v. Obama, 890 F. Supp.2d 424, 455 n.33 (S.D.N.Y. 2012). Both the
 29

citizens, Birgitta Jonsdottir and Kai Wargalla.101 They are journalists or members of advocacy

organizations who assert that they fear that their work makes them subject to indefinite detention

under Section 1021.102 The government submitted no evidence.

The district court granted the preliminary injunction by opinion filed May 16, 2012.103

It concluded that each plaintiff had an actual fear of detention under Section 1021 and that this fear

was reasonable.104 In reaching this latter conclusion, the court relied in significant part on the

government’s initial refusal to represent that the plaintiffs’ activities would not subject them to

detention under Section 1021. It rejected the government’s contention that Section 1021 was just

an “affirmation” of the AUMF that did nothing new.105 Determining further that the expressive

conduct of each plaintiff had been chilled and that each had incurred concrete costs as a reasonable

complaint and O’Brien’s affidavit make clear that she asserts American citizenship, and
there is nothing in the record suggesting otherwise. The citizenship of the various plaintiffs
was not particularly relevant to the district court’s analysis. We conclude that its reference
to O’Brien as a non-citizen was a clerical error.
101

Hedges, O’Brien, and Wargalla were the only plaintiffs to testify at the hearing. Jonsdottir
did not testify but submitted an affidavit on consent of the parties. The district court did not
consider the other plaintiffs, and we need discuss them no further here. In the remainder
of this opinion, we refer to “plaintiffs” as denoting only these four individuals.
102

We discuss the testimony of plaintiffs in more detail as necessary below.
103

Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 1721124 (S.D.N.Y. May 16, 2012).
Although the initial order could have been read to suggest that the district court enjoined
Section 1021 in its entirety, see id. at *28, the court later clarified that the injunction applied
only to Section 1021(b)(2), see Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL
2044565, *1 (S.D.N.Y. June 6, 2012).
104

Hedges, 2012 WL 1721124 at *16–17.
105

Id. at *13–14.
 30

consequence of this fear, the court concluded that each plaintiff had standing to challenge Section

1021.106 It held that plaintiffs had shown a likelihood of success on claims that Section 1021

violated the First Amendment and was impermissibly vague in violation of the Fifth Amendment.107

Finally, it concluded that the other relevant factors supported preliminary injunctive relief.108

The government moved for reconsideration on May 25, 2012, clarifying its position

by stating that, “[a]s a matter of law, individuals who engage in the independent journalistic

activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without

more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis

of such independent journalistic activities or independent public advocacy.”109 By agreement of the

parties, the court proceeded directly to permanent injunction proceedings (thus mooting the motion

for reconsideration) and took no new evidence for purposes of the permanent injunction.

Concluding that the government’s “newly espoused position” did not alter its

previous conclusion as to plaintiffs’ standing,110 the court, on September 12, 2012, “permanently

enjoin[ed] enforcement of § 1021(b)(2) in any manner, as to any person,” generally affirming but

also significantly expanding its prior analysis.111 It further held that “[m]ilitary detention based on

106

Id. at *19.
107

Id. at *19–25.
108

Id. at *25–28.
109

Dist. Ct. Dkt. 38 at 4.
110

Hedges, 890 F. Supp.2d at 429.
111

Id. at 472.
 31

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).”112

This appeal followed.113 We granted a temporary stay of the district court’s order on

September 17, 2012, and then granted a stay pending appeal on October 2, 2012.

II. Discussion

The parties raise a number of important and difficult questions, but we need not reach

most of them. We consider here only plaintiffs’ standing under Article III of the Constitution. We

begin with a brief discussion of the basic principles of Article III standing. We proceed to the proper

construction of Section 1021 in relation to the AUMF. After clarifying what Congress did and did

not do in passing Section 1021, we consider plaintiffs’ standing given the record in this case. In that

regard, we address first the American citizens, Hedges and O’Brien, and then the non-citizens,

Jonsdottir and Wargalla.

A. General Principles of Standing

The judicial power of the United States, and thus the jurisdiction of federal courts,

is limited by Article III of the Constitution to “Cases and Controversies.”114 One aspect of this

112

Id.
113

The government had appealed the district court’s preliminary injunction order as well, and
the two appeals were consolidated before this Court. The government correctly observes
that its appeal of the preliminary injunction is now moot. See Webb v. GAF Corp., 78 F.3d
53, 56 (2d Cir. 1996).
114

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (internal quotation marks
omitted).
 32

limitation is the requirement that the plaintiff have standing to sue, which “serves to prevent the

judicial process from being used to usurp the powers of the political branches.”115 “The party

invoking federal jurisdiction bears the burden of establishing standing.”116 The “‘irreducible

constitutional minimum’” requires that (1) the plaintiff “‘have suffered an injury in fact—an

invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical,’” (2) the injury be “‘fairly traceable to the challenged

action of the defendant,’” and (3) it “‘be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.’”117 Actual injury-in-fact exists when a defendant’s actions

have inflicted a concrete, present harm on the plaintiff. But the Supreme Court has recognized that

a plaintiff in some circumstances may have standing to sue even when the plaintiff shows only an

imminent threat of future harm or a present harm incurred in consequence of such a threat.118 We

discuss these criteria in more detail as needed below.

B. The Proper Construction of Section 1021

We deal first with the meaning of Section 1021.

115

Id.
116

Id. at 1148 (internal quotation marks omitted).
117

Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)) (alterations, emphasis, and other internal quotation
marks omitted).
118

See, e.g., Lujan, 504 U.S. at 564 & n.2; Clapper, 133 S. Ct. at 1150 n.5.
 33

“As with any question of statutory interpretation, we begin by examining the text of

the statute.”119 In doing so, “we consider not only the bare meaning of the critical word or phrase

but also its placement and purpose in the statutory scheme.”120 It is “one of the most basic

interpretive canons[] that a statute should be construed so that effect is given to all its provisions,

so that no part will be inoperative or superfluous, void or insignificant.”121 But “in interpreting a

statute a court should always turn first to one, cardinal canon before all others,” namely that “courts

must presume that a legislature says in a statute what it means and means in a statute what it says

there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial

inquiry is complete.”122

The AUMF authorized the President to “use all necessary and appropriate force

against those nations, organizations, or persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or

persons.”123 Section 1021(a) “affirms” that the AUMF authority includes the detention of a “covered

119

Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012).
120

Id. (internal quotation marks omitted); see United States v. Robinson, 702 F.3d 22, 31 (2d
Cir. 2012) (“[T]he words of a statute are not to be read in isolation; statutory interpretation
is a holistic endeavor.” (emphasis and internal quotation marks omitted)).
121

Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and alterations
omitted).
122

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (internal quotation marks and
citations omitted); accord Carr v. United States, 560 U.S. 438, 130 S. Ct. 2229, 2241
(2010); United States v. Coppola, 671 F.3d 220, 240 (2d Cir. 2012).
123

AUMF § 2(a).
 34

person[],” which under Section 1021(b) means (1) a “person who planned, authorized, committed,

or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for

those attacks” or (2) a “person who was a part of or substantially supported al-Qaeda, the Taliban,

or associated forces that are engaged in hostilities against the United 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.”

At first blush, Section 1021 may seem curious, if not contradictory. While Section

1021(b)(1) mimics language in the AUMF, Section 1021(b)(2) adds language absent from the

AUMF. Yet Section 1021(a) states that it only “affirms” authority included under the AUMF, and

Section 1021(d) indicates that Section 1021 is not “intended to limit or expand the authority of the

President or the scope of the [AUMF].”

Fortunately, this apparent contradiction—that Section 1021 merely affirms AUMF

authority even while it adds language not used in the AUMF—is readily resolved. It is true that the

language regarding persons who “planned, authorized, committed, or aided” the 9/11 attacks (or

harbored those who did) is identical in the AUMF and Section 1021(b)(1). The AUMF, however,

does not merely define persons who may be detained, as does Section 1021(b). Instead, it provides

the President authority to use “force” against the “nations, organizations, or persons” responsible

for 9/11.124 Section 1021(b)(1) (read with Section 1021(a)) affirms that the AUMF authority to use

force against the persons responsible for 9/11 includes a power to detain such persons. But it does

not speak to what additional detention authority, if any, is included in the President’s separate

AUMF authority to use force against the organizations responsible for 9/11.

124

For brevity in this section we refer to one “responsible for 9/11” as synonymous with one
who “planned, authorized, committed, or aided” the 9/11 attacks or harbored those who did
so, as those terms are used in the AUMF and Section 1021(b)(1).
 35

This is where Section 1021(b)(2), a provision concerned with the organizations

responsible for 9/11—al-Qaeda and the Taliban—plays a role.125 Section 1021(b)(2) naturally is

understood to affirm that the general AUMF authority to use force against these organizations

includes the more specific authority to detain those who were part of, or those who substantially

supported, these organizations or associated forces.126 Because one obviously cannot “detain” an

organization, one must explain how the authority to use force against an organization translates into

detention authority.127 Hence, it is not surprising that Section 1021(b)(2) contains language that does

not appear in the AUMF, notwithstanding Section 1021(d). Plaintiffs create a false dilemma when

they suggest that either Section 1021 expands the AUMF detention authority or it serves no purpose.

Indeed, there are perfectly sensible and legitimate reasons for Congress to have

affirmed the nature of AUMF authority in this way. To the extent that reasonable minds might have

differed—and in fact very much did differ—over whether the administration could detain those who

125

The use of force against the Taliban may draw support also from the AUMF’s reference to
“nations” insofar as it was the government of Afghanistan when the AUMF was passed.
126

We are not the first to focus on the AUMF’s mention of “organizations.” Indeed, it is on
this reference that almost every inquiry into the scope of AUMF detention authority has
begun. See Hamdi, 542 U.S. at 518 (noting that AUMF authorizes use of force against
“nations, organizations or persons” associated with 9/11 and then stating that “[t]here can
be no doubt that individuals who fought against the United States in Afghanistan as part of
the Taliban, an organization known to have supported the al Qaeda terrorist network
responsible for those attacks, are individuals Congress sought to target in passing the
AUMF” (emphasis added) (internal quotation marks omitted)); Al-Bihani, 590 F.3d at 873;
Hamlily, 616 F. Supp.2d at 71; Gherebi, 609 F. Supp.2d at 55; Al-Marri, 534 F.3d at
259–61 (Traxler, J., concurring in judgment); id. at 286 (Williams, C.J., concurring in part
and dissenting in part); id. at 298 (Wilkinson, J., concurring in part and dissenting in part).
127

See Chesney, supra note 6, at 790 (“The AUMF is entirely silent with respect to the mix of
detention predicates and constraints that suffice to link a particular person to an
AUMF-covered group for purposes of detention or otherwise.”); see also Hathaway, supra
note 60, at 136–39.
 36

were part of or substantially supported al-Qaeda, the Taliban, and associated forces under the AUMF

authority to use force against the “organizations” responsible for 9/11,128 Section 1021(b)(2)

eliminates any confusion on that particular point. At the same time, Section 1021(d) ensures that

Congress’ clarification may not properly be read to suggest that the President did not have this

authority previously—a suggestion that might have called into question prior detentions. This does

not necessarily make the section a “‘legislative attempt at an ex post facto “fix” . . . to try to ratify

past detentions which may have occurred under an overly-broad interpretation of the AUMF,’” as

plaintiffs contend.129 Rather, it is simply the 112th Congress’ express resolution of a previously

debated question about the scope of AUMF authority.130

It remains to consider what effect Section 1021(e) has on this understanding. That

provision states that “[n]othing in this section shall be construed to affect existing law or authorities

128

See, e.g., Al-Bihani, 590 F.3d at 872 (identifying authority to detain those “part of” and
those who “purposefully and materially support” enemy forces); Hamlily, 616 F. Supp.2d
at 77–78 (accepting “part of” but rejecting any reliance on “support”); Gherebi, 609 F.
Supp.2d at 70–71 (accepting both “part of” and “substantial support” but imposing
significant limits on what “substantial support” may encompass); Al-Marri, 534 F.3d at
323–29 (Wilkinson, J., concurring in part and dissenting in part) (identifying authority to
detain individuals only if they are both members of an enemy organization and have taken
steps to inflict harm to advance that organization’s military goals); id. at 285 (Williams,
C.J., concurring in part and dissenting in part) (requiring that individual have attempted or
have engaged in belligerent acts against the United States on behalf of enemy force); id. at
231 (Motz, J., concurring in judgment) (making enemy combatant status turn on “affiliation
with the military arm of an enemy nation”).
129

Appellee Br. 15 (quoting Hedges, 890 F. Supp.2d at 429).
130

In so construing the statute, we express no view regarding whether the original AUMF,
standing alone, implicitly authorized the detention of the individuals described by Section
1021(b)(2). See Fed. Hous. Admin. v. Darlington, Inc., 358 U.S. 84, 90 (1958)
(“Subsequent legislation which declares the intent of an earlier law is not, of course,
conclusive in determining what the previous Congress meant.”). We note only that this is
the view that the 112th Congress set forth in Section 1021.
 37

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.” Although this provision may

appear superficially similar to Section 1021(d), nuances in the text and the legislative history make

clear that Section 1021(e) actually is a significantly different provision.

As discussed above, in stating that Section 1021 is not intended to limit or expand

the scope of the detention authority under the AUMF, Section 1021(d) mostly made a statement

about the original AUMF—that is, it indicated that the specific power to detain those who were part

of or who substantially supported the enumerated forces had been implicit in the more generally

phrased AUMF.131 By contrast, in saying that Section 1021 shall not be construed to affect “existing

law or authorities” relating to citizens, lawful resident aliens, or any other persons captured or

arrested in the United States, Section 1021(e) expressly disclaims any statement about existing

authority. Rather, it states only a limitation about how Section 1021 may be construed to affect that

existing authority, whatever that existing authority may be.132

This understanding is reinforced by the legislative history. As discussed above,

Senator Feinstein and others feared that Section 1021 would greatly expand the power of the

government with particular reference to the authority to detain American citizens captured

domestically. Senator Feinstein explained that she did not believe the government had such

authority while Senators Graham and Levin, perhaps among others, believed that the government

131

As we have no occasion in this opinion to construe the scope of the terms contained in
Section 1021(b)(2), we need not consider whether Section 1021(d) may have some bearing
also on how narrowly or broadly those terms should be construed.
132

A contrary interpretation of Section 1021(e) would risk rendering the provision surplusage
in light of Section 1021(d).
 38

already did. Thus, Section 1021(e) was introduced specifically to effect a “truce” that ensured

that—as to those covered by Section 1021(e)—courts would decide detention authority based not

on Section 1021(b), but on what the law previously had provided in the absence of that enactment.

This is not to say that Section 1021(e) specifically “exempts” these individuals from the President’s

AUMF detention authority, in the sense that Section 1022 expressly exempts United States citizens

from its requirements.133 Rather, Section 1021(e) provides that Section 1021 just does not

speak—one way or the other—to the government’s authority to detain citizens, lawful resident

aliens, or any other persons captured or arrested in the United States.134

We thus conclude, consistent with the text and buttressed in part by the legislative

history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful

133

Under that section, the President shall hold in military detention members of al-Qaeda or
associated forces participating in an attack against the United States or coalition partners,
subject to a national security waiver. This requirement, however, “does not extend to [the
detention of] citizens of the United States.” 2012 NDAA § 1022(b)(1).
134

To the extent that the text of Section 1021(e) may not make explicit whether “captured or
arrested in the United States” is meant to modify only “any other persons” rather than
modifying also “United States citizens” and “lawful resident aliens of the United States,”
we conclude that the former reading is correct. First, because commas follow “United
States citizens” and “lawful resident aliens of the United States” but not “any other
persons,” under the rule of the last antecedent we read the limiting phrase as modifying only
the term immediately preceding it, unless a contrary intention is apparent. See Am. Int’l
Grp., Inc. v. Bank of Am. Corp., 712 F.3d 775, 782 (2d Cir. 2013); Allard K. Lowenstein
Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 681 (2d Cir. 2010).
Second, the alternative reading would render superfluous Congress’ references to citizens
and lawful resident aliens—Congress could have much more simply referred to “persons
captured or arrested in the United States.” Finally, legislative history provides no reason
to conclude otherwise. Although Senator Feinstein suggested that her principal concern was
the detention of American citizens apprehended on American soil, she and other senators
expressed concern about the detention of American citizens generally, see, e.g., 157 Cong.
Rec. S7,943-01, S7,953 (daily ed. Nov. 29, 2011) (statement of Sen. Leahy), and the
amendment was described in such terms, see 157 Cong. Rec. S8,094-03, S8,124 (daily ed.
Dec. 1, 2011) (statements of Sen. Levin and Sen. Graham).
 39

resident aliens, and are not captured or arrested within the United States, the President’s AUMF

authority includes the authority to detain those responsible for 9/11 as well as those who were a part

of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in

hostilities against the United States or its coalition partners—a detention authority that Section 1021

concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens,

or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.135

We recognize that Section 1021 perhaps could have been drafted in a way that would

have made this clearer and that the absence of any reference to American citizens in Section 1021(b)

led the district court astray in this case.136 Perhaps the last-minute inclusion of Section 1021(e) as

an amendment introduced on the floor of the Senate explains the somewhat awkward construction.

But that is neither here nor there. It is only our construction, just described, that properly gives

effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.137

135

Plaintiffs read Section 1021(e) as preserving only habeas corpus rights to such individuals.
This argument is unpersuasive. Section 1021(e) refers to “existing law or authorities”—a
broad term that bears no indication that it should be limited to habeas rights, particularly
when Section 1021 says nothing else about habeas.
136

See Hedges, 890 F. Supp.2d at 468 (noting that Section 1021(b)(2) “does not exclude
American citizens”).

We note further that while the district court erred in its treatment of Section 1021(e), see id.
at 466 n.40, the government invited the error by failing adequately to address the provision
throughout the proceedings below. While the government cited Section 1021(e) in its briefs
opposing the preliminary and permanent injunctions, the citations were brief and simply
combined Sections 1021(d) and (e) in support of the general argument that Section 1021
only reaffirmed the AUMF.
137

Because we conclude that the text of Section 1021(e) is clear and that our view of it is
confirmed by the legislative history, we need not consider whether our interpretation is
supported also by the requirement we previously have imposed for “clear congressional
authorization” of the detention of American citizens apprehended on American soil under
 40

C. American Citizen Plaintiffs

With this understanding of Section 1021, we may dispose of the claims of the citizen

plaintiffs, Hedges and O’Brien. As discussed above, Section 1021 says nothing at all about the

authority of the government to detain citizens. There simply is no threat whatsoever that they could

be detained pursuant to that section.138 While it is true that Section 1021(e) does not foreclose the

possibility that previously “existing law” may permit the detention of American citizens in some

circumstances—a possibility that Hamdi clearly envisioned in any event—Section 1021 cannot itself

be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to

them it neither adds to nor subtracts from whatever authority would have existed in its absence. For

similar reasons, plaintiffs cannot show that any detention Hedges and O’Brien may fear would be

redressable by the relief they seek, an injunction of Section 1021.

Plaintiffs appear to contend that, even if Section 1021 is not applicable to Hedges and

O’Brien, the wording of Section 1021(e) seems to “assume” that citizens may be detained if they

have substantially supported al-Qaeda and that Hedges and O’Brien therefore have standing to

challenge it. We disagree. There is nothing in Section 1021 that makes any assumptions about the

government’s authority to detain citizens under the AUMF. Rather, Section 1021(e) quite

specifically makes clear that the section should not be construed to affect in any way existing law

or authorities relating to citizen detention, whatever those authorities may provide.

the Non-Detention Act. Padilla, 352 F.3d at 699, rev’d on jurisdictional grounds, 542 U.S.
426. Nor need we consider whether this interpretation is supported by the canon of
constitutional avoidance. See Ctr. for Nat’l Sec. Studies Amici Br. 7, 10, 12 (advancing
these arguments).
138

We have no occasion to consider whether Hedges and O’Brien would have standing to
challenge the AUMF, as no such challenge is presented here. Nor need we consider the
scope of the government’s authority to detain American citizens under the AUMF.
 41

D. Non-citizen Plaintiffs

The claims of Jonsdottir and Wargalla stand differently. Whereas Section 1021 says

nothing about the government’s authority to detain citizens, it does have real meaning regarding the

authority to detain individuals who are not citizens or lawful resident aliens and are apprehended

abroad.139 It provides that such individuals may be detained until the end of hostilities if they were

part of or substantially supported al-Qaeda, the Taliban, or associated forces. To be sure, Section

1021 in substance provides also that this authority was implicit in the original AUMF. But, as

discussed above, that the 112th Congress in passing Section 1021 expressed such a view does not

mean that Section 1021 itself is a nullity. It is not immediately apparent on the face of the AUMF

alone that the President had the authority to detain those who substantially supported al-Qaeda, and

indeed many federal judges had concluded otherwise prior to Section 1021's passage. Hence,

Section 1021(b)(2) sets forth an interpretation of the AUMF that had not previously been codified

by Congress. Where a statute codifies an interpretation of an earlier law that is subject to reasonable

dispute, the interpretive statute itself may affect the rights of persons under the earlier law.

As the standing inquiry as to these two plaintiffs is more involved, we discuss the

relevant facts and applicable law in detail.140

139

No party contends that either Jonsdottir or Wargalla is a lawful resident alien.
140

Our dismissal of the citizen plaintiffs exposes an issue that the district court did not have
occasion to address below, whether Jonsdottir and Wargalla may assert First or Fifth
Amendment rights under the Constitution. Both are non-citizens who live abroad and have
few, if any, connections to the United States. In United States v. Verdugo-Urquidez, the
Supreme Court observed that the First Amendment’s reference to “the people” suggested
that the rights belong “to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country to be considered part of
that community.” 494 U.S. 259, 265 (1990) (suggesting further that an “[e]xcludable alien
is not entitled to First Amendment rights, because ‘he does not become one of the people
to whom these things are secured by our Constitution by an attempt to enter forbidden by
 42

1. Relevant Facts

Jonsdottir is a citizen of Iceland and a member of its parliament. She is an activist

and spokesperson for a number of groups, including WikiLeaks, an organization famous for

releasing troves of classified information of the United States government to the public. In early

2010, Jonsdottir helped WikiLeaks produce the video Collateral Murder, which allegedly depicts

an American helicopter opening fire on unarmed individuals in Iraq. She testified that, around the

same time, she had been working with people around the world, including some at WikiLeaks, to

create a safe haven for freedom of information in Iceland. Jonsdottir testified that Collateral Murder

made WikiLeaks known to the world shortly before its release later in 2010 of the Afghan and Iraq

war logs and a substantial number of State Department cables—classified information allegedly

leaked to WikiLeaks by one Bradley Manning. Jonsdottir further testified that she is aware that

Manning has been charged by the United States government for aiding the enemy on the ground that

he knew the classified information he provided to WikiLeaks would end up in the hands of al-Qaeda.

She testified that a number of American politicians have called WikiLeaks a terrorist organization

law’” (quoting U.S. ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904)) (alterations
omitted)); see also DKT Mem’l Fund v. Agency for Int’l Dev., 887 F.2d 275, 284 (D.C. Cir.
1989). Moreover, Verdugo-Urquidez read Johnson v. Eisentrager, 339 U.S. 763, 784
(1950), as “emphatic[ally]” rejecting the “extraterritorial application of the Fifth
Amendment.” 494 U.S. at 269. But see id. at 290–91 (Brennan, J., dissenting) (contending
that Eisentrager was specific to the rights of enemy soldiers).

The case law regarding extraterritorial application of constitutional rights is sparse.
Verdugo-Urquidez itself was a Fourth Amendment case. The relevant facts in the present
case were not developed below as they were not necessary to the district court’s decision.
We therefore decline to consider this issue, which is not necessary in order to resolve the
case before us. We assume, without deciding, that Jonsdottir and Wargalla may assert First
and Fifth Amendment rights.
 43

and that the government has been considering criminal charges against the organization and its

founder, Julian Assange. As part of this investigation, she has received a subpoena from a federal

grand jury for content from her Twitter account. She has received a number of invitations to speak

in the United States, but will not travel here—thereby forgoing contacts and compensation—because

of the subpoena and her fears of detention under Section 1021.

Wargalla, a German citizen, is an organizer and activist based in London, and is

associated with the organizations Revolution Truth, Occupy London, and Justice for Assange UK.

She testified that Occupy London has been listed as a terrorist group by the City of London police

department. Moreover, she testified that she has been a supporter of WikiLeaks since 2010 as it was

releasing the classified information noted above. Since January 2011, she has organized rallies,

demonstrations, and protests on behalf of Assange and Manning. She testified that she has met

Assange, who is familiar with her support, and has had contact with other employees of WikiLeaks.

Wargalla testified that her fears of detention under Section 1021 have made it nearly impossible to

pursue her everyday work.

The district court found that both Jonsdottir and Wargalla had an actual fear of

detention under Section 1021 and had incurred costs and other present injuries due to this fear.141

2. Fear-based Standing Law

We have no occasion to disturb the factual findings of the district court, which are

well-supported by the record, or to question the truth of the factual testimony of the plaintiffs, which

141

Hedges, 890 F. Supp.2d at 436–37.
 44

the district court found credible.142 Rather, we are faced only with a question of law: whether the

non-citizen plaintiffs’ fears of enforcement, as well as any present costs they have incurred as a

result of those fears, establish their standing to bring this challenge.

As discussed earlier, the Supreme Court has recognized that such fears may support

standing when the threat creating the fear is sufficiently imminent. The Supreme Court’s

jurisprudence regarding how imminent a threat must be in order to support standing, however, has

been less than clear. In Clapper v. Amnesty International USA,143 the Court recently concluded that

the plaintiffs did not have standing to challenge a statute expanding the government’s surveillance

capabilities as violating, inter alia, the First and Fourth Amendments because they had failed to

show that government interceptions of their communications were “certainly impending.”144 The

Court further concluded that, to the extent the plaintiffs had suffered present injuries because of their

fear of such interception, they “cannot manufacture standing by choosing to make expenditures

based on hypothetical future harm that is not certainly impending.”145 Yet at the same time, a

footnote in Clapper recognized that the Court has not uniformly required that it be “literally certain

that the harms [plaintiffs] identify will come about” and sometimes found standing to sue where

142

See id. at 432.
143

133 S. Ct. 1138.
144

Id. at 1143 (internal quotation marks omitted). In applying the relevant standing principles
below, the district court did not have the benefit of Clapper—decided after oral argument
of this appeal—but instead was bound by our prior decision in that case, which the Supreme
Court reversed. See Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133
S. Ct. 1138.
145

Id.
 45

plaintiffs showed only a “‘substantial risk’ that the harm will occur, which may prompt plaintiffs

to reasonably incur costs to mitigate or avoid that harm.”146 The Court did not explain when such

a standard might apply, noting only that the plaintiffs in Clapper failed that test as well to whatever

extent it might have been relevant and distinct.147

One of the cases that Clapper cited as using a potentially more permissive standard

was a preenforcement challenge to a criminal statute.148 In Babbitt v. United Farm Workers National

Union,149 the Court held that when a plaintiff “has alleged an intention to engage in a course of

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder, he should not be required to await and undergo a

criminal prosecution as the sole means of seeking relief.”150 Put differently, the Court held that a

plaintiff has standing to make a preenforcement challenge “when fear of criminal prosecution under

an allegedly unconstitutional statute is not imaginary or wholly speculative.”151 It has applied that

146

Id. at 1150 n.5.
147

Id.
148

Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Note
that Babbitt does not use the term “substantial risk,” however. That term came from a
different case cited by the Clapper footnote, Monsanto Co. v. Geertson Seed Farms, 130
S. Ct. 2743, 2754–55 (2010).
149

442 U.S. 289.
150

Id. at 298 (internal quotation marks omitted); see id. (noting more generally that a plaintiff
“must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s
operation or enforcement”).
151

Id. at 302.
 46

principle in a number of cases challenging criminal statutes—finding standing where the plaintiff

“will have to take significant and costly compliance measures or risk criminal prosecution”152—and

in the civil context as well.153 The First Circuit has observed that the Babbitt standard sets a “low

threshold” and is “quite forgiving” to plaintiffs seeking such preenforcement review.154

Part of what makes the Court’s approach in these cases “forgiving” is that it appears

willing to presume that the government will enforce the law as long as the relevant statute is “recent

and not moribund.”155 Thus, in numerous preenforcement cases where the Supreme Court has found

152

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988); see id. at 393 (finding
standing where plaintiffs had “actual and well-founded fear that the law will be enforced
against them”); Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010)
(“HLP”) (concluding that case was justiciable because plaintiffs faced “credible threat of
prosecution” under material support statute based on their stated intended activities (internal
quotation marks omitted)); Doe v. Bolton, 410 U.S. 179, 188–89 (1973) (identifying
justiciable controversy in challenge to recent criminal abortion statute because plaintiffs
faced “sufficiently direct threat of personal detriment” even though no prosecution had been
threatened); but see Poe v. Ullman, 367 U.S. 497, 507–08 (1961) (plurality opinion)
(concluding that where contraceptive statute had been on books for eighty years and been
enforced only once, preenforcement challenge was not justiciable); id. at 509 (Brennan, J.,
concurring in judgment) (similar).

We have read the differing language of these cases to imply that the requisite standard for
standing varies with the constitutional right asserted. See Am. Booksellers Found. v. Dean,
342 F.3d 96, 101 (2d Cir. 2003) (concluding that “actual and well-founded fear” standard
governed First Amendment challenges, while the “slightly higher” standard of “realistic
danger” governed non-First Amendment challenges (internal quotation marks omitted)).
We need not here decide whether this distinction survives subsequent Supreme Court
jurisprudence. See HLP, 130 S. Ct. at 2717 (applying “credible threat of prosecution”
standard to challenge involving both First and Fifth Amendments).
153

See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129–30 (2007) (concluding that
plaintiff need not expose itself to civil liability by breaching royalty agreement when it
seeks declaratory judgment that no royalties are owed).
154

N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14–15 (1st Cir. 1996).
155

Doe, 410 U.S. at 188.
 47

standing on a showing that a statute indisputably proscribed the conduct at issue, it did not place the

burden on the plaintiff to show an intent by the government to enforce the law against it. Rather,

it presumed such intent in the absence of a disavowal by the government or another reason to

conclude that no such intent existed.156

These cases do not explain how to evaluate preenforcement standing when it is not

apparent whether a plaintiff is subject to the statute and when the government actively disputes that

it is. Nor do they address a situation in which the government disavowed any intention to prosecute

plaintiff, regardless of the appropriate interpretation of the statute.157 But this Court did consider

such circumstances in Vermont Right to Life Committee v. Sorrell.158

The state there argued that the plaintiff lacked standing because the statute did not

proscribe plaintiff’s conduct. A divided panel of this Court rejected that argument in reliance on

156

See HLP, 130 S. Ct. at 2717 (noting that “Government has not argued to this Court that
plaintiffs will not be prosecuted if they do what they say they wish to do”); Am. Booksellers,
484 U.S. at 393 (noting that “State has not suggested that the newly enacted law will not be
enforced, and we see no reason to assume otherwise”); Babbitt, 442 U.S. at 302 (identifying
justiciable controversy, even though “criminal penalty provision has not yet been applied
and may never be applied to commissions of unfair labor practices” in part because “State
has not disavowed any intention of invoking the criminal penalty provision against unions
that commit unfair labor practices”).
157

See HLP, 130 S. Ct. at 2717; Am. Booksellers, 484 U.S. at 393; Babbitt, 442 U.S. at 302.

In Poe v. Ullman, a plurality of the Court did opine that “the mere existence of a state penal
statute would constitute insufficient grounds to support a federal court’s adjudication of its
constitutionality in proceedings brought against the State’s prosecuting officials if real
threat of enforcement is wanting.” 367 U.S. at 507 (citing Ex parte La Prade, 289 U.S. 444,
458 (1933)). The plurality went on to observe that “[i]f the prosecutor expressly agrees not
to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary
case as will be reviewed here.” Id. (citing C.I.O. v. McAdory, 325 U.S. 472, 475 (1945)).
158

221 F.3d 376 (2d Cir. 2000).
 48

Babbitt. The majority concluded that “while there may be other, perhaps even better, definitions”

of the disputed statutory term, plaintiff’s interpretation of the statute, which would have covered its

conduct, was “reasonable enough that [plaintiff] may legitimately fear that it will face enforcement

of the statute by the [s]tate brandishing the definition proffered” by plaintiff.159 To the extent that

the state contended that it had no intention of suing plaintiff for its activities, we said “there is

nothing that prevents the [s]tate from changing its mind” and that allowing the state’s presently

stated intention to defeat standing “would be placing [plaintiff’s] asserted First Amendment rights

at the sufferance of Vermont’s Attorney General.”160

Similarly, in Pacific Capital Bank v. Connecticut,161 we relied on Vermont Right to

Life to hold that plaintiff established standing to challenge a civil penalty provision despite the

state’s argument that it never had enforced the statute against anyone and that “it is unknown how

the [s]tate will apply that section in any future enforcement action.”162

3. Coverage Under Section 1021(b)(2)

As in Vermont Right to Life, the government here disputes that plaintiffs are subject

to the statute. Plaintiffs never articulate a precise theory on which they fear detention under Section

159

Id. at 383.
160

Id. (internal quotation marks omitted); accord Citizens for Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1192 (10th Cir. 2000) (rejecting reliance on
representation by state that plaintiffs will not be prosecuted, citing Vt. Right to Life).
161

542 F.3d 341 (2d Cir. 2008).
162

Id. at 350.
 49

1021(b)(2)—that is, in what sense the government may conclude that they were a “part of or

substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities

against the United States or its coalition partners.” The strongest argument would seem to be a

contention that the work of Jonsdottir and Wargalla substantially, if indirectly, supports al-Qaeda

and the Taliban as the term “support” is understood colloquially.163 The record demonstrates a

number of ways in which the government has concluded, or would have a basis to conclude, that

WikiLeaks has provided some support to al-Qaeda and the Taliban. This includes the evidence that

the government is prosecuting Manning for aiding the enemy by his releases to WikiLeaks and news

articles in the record or cited by the Jonsdottir declaration reporting on the immense amount of

classified information that WikiLeaks made public, much of which is related specifically to the

government’s military efforts against al-Qaeda and the Taliban.164 One perhaps might fear that

163

Both Jonsdottir and Wargalla refer extensively also to suggestions by some that WikiLeaks
is a terrorist organization. But Section 1021(b)(2) on its face does not authorize the
President to detain an individual solely for supporting any terrorist group. Rather, the
individual must have substantially supported “associated forces that are engaged in
hostilities against the United States or its coalition partners.” Plaintiffs do not attempt to
show that WikiLeaks could be deemed such a force.

Wargalla contends also that Occupy London is viewed as a terrorist group, and she fears
that the group may be deemed “associated” with al-Qaeda because both groups were
mentioned (along with the Revolutionary Armed Forces of Colombia (FARC) and two
individuals who bombed a railway in Belarus) on a London police document entitled
“Terrorism/Extremism update for the City of London Business Community.” Dist. Ct. Dkt.
18-2. We need not develop a sophisticated understanding of the term “associated” under
Section 1021(b)(2) to dismiss the contention that it is sufficient to show merely that the
group has been listed on the same government document as al-Qaeda.
164

One article reports that the Taliban threatened to hunt down Afghan civilians cooperating
with NATO forces whose names WikiLeaks revealed. See Philip Shenon, “U.S. Urges
Allies to Crack Down on WikiLeaks,” THE DAILY BEAST (Aug. 10, 2010), available at
http://www.thedailybeast.com/articles/2010/08/10/a-western-crackdown-on-wikileaks.html.

Another reports that WikiLeaks confirmed previously secret American involvement in an
 50

Jonsdottir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them

indirect supporters of al-Qaeda and the Taliban as well.

The government rejoins that the term “substantial support” cannot be construed so

in this particular context. Rather, it contends that the term must be understood—and limited—by

reference to who would be detainable in analogous circumstances under the laws of war. It points

to (1) the Hamdi plurality’s limitation of the duration of the detention authority it recognized based

on the laws of war, (2) the March 2009 Memo’s repeated invocation of law-of-war limiting

principles and the legislative history suggesting that Section 1021 was meant to codify the

interpretation that the Memo set forth, (3) Section 1021(d), to the extent that Hamdi and the

administration suggested that the laws of war inform AUMF authority, as bearing on how broadly

“substantial support” may be construed, and (4) the references to “law of war” in Section 1021 itself,

albeit not in Section 1021(b)(2). The government then contends that individuals like Jonsdottir and

Wargalla are civilians who are not detainable under these law-of-war principles and so cannot

reasonably fear detention under Section 1021.

In these circumstances, we are faced with a somewhat peculiar situation. The

government has invited us to resolve standing in this case by codifying, as a matter of law, the

meaningful limits it has placed on itself in its interpretation of Section 1021. We decline the

government’s invitation to do so. Thus, we express no view regarding whether the laws of war

inform and limit detention authority under Section 1021(b)(2) or whether such principles would

attack that allegedly killed al-Qaeda militants in Yemen. See Glenn Greenwald, “Obama’s
personal role in a journalist’s imprisonment,” SALON.COM (Mar. 14, 2012), available at
http://www.salon.com/2012/03/14/obamas_personal_role_in_a_journalists_imprisonment/.

Because standing is wanting in any event, we need not consider whether the fact that these
articles were not admitted for the truth of the matters they assert affects the analysis.
 51

foreclose the detention of individuals like Jonsdottir and Wargalla. 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.165

4. Threat of Enforcement

We next consider whether there is a sufficient threat of enforcement even given this

assumption. This inquiry corresponds to (1) our suggestions in Vermont Right to Life and Pacific

Capital Bank that a plaintiff has standing when it “‘may legitimately fear that it will face

enforcement’” under its reasonable interpretation of the statute166 and (2) the Supreme Court’s

recognition that a preenforcement challenge is justiciable when enforcement is a “realistic

danger,”167 when there is a “credible threat of prosecution,”168 or when a plaintiff has an “actual and

well-founded fear”169 of such enforcement. As noted above, however, neither this Court nor the

165

Of course, it would do so only insofar as they fear the United States apprehending them
abroad. Under Section 1021(e), Section 1021 has no bearing on the government’s authority
to detain any individual captured or arrested in the United States.
166

Pacific Capital Bank, 542 F.3d at 350 (quoting Vt. Right to Life, 221 F.3d at 383).
167

Babbitt, 442 U.S. at 298.
168

Id. (citing Doe, 410 U.S. at 188); accord HLP, 130 S. Ct. at 2717.
169

Am. Booksellers Ass’n, 484 U.S. at 393.
 52

Supreme Court has required much to establish this final step in challenges to ordinary criminal or

civil punitive statutes. Rather, we have presumed that the government will enforce the law.

The question is the extent to which such a presumption is applicable here. The

district court concluded that it was, reasoning that Section 1021 “is equivalent to a criminal statute”

because “the possibility of being placed in indefinite military detention is the equivalent of a

criminal penalty.”170 Certainly we agree that military detention until the termination of hostilities

would be severe and that the prospect of such detention can be “as inhibiting of speech as can

trepidation in the face of threatened criminal prosecution.”171 But that is a separate question from

whether it is appropriate to presume that Section 1021 will be enforced as would any criminal or

civil punitive statute.

On this point, there are several important differences between Section 1021 and a

typical statute imposing criminal or civil penalties. Section 1021 is not a law enforcement statute,

but an affirmation of the President’s military authority.172 As discussed above, it applies only to

individuals who are not citizens, are not lawful resident aliens, and are apprehended outside the

United States. It thus speaks entirely to the authority of the President in the context of military

force, national security, and foreign affairs, areas in which the President generally enjoys “unique

170

Hedges, 890 F. Supp.2d at 450 n.29.
171

Vt. Right to Life, 221 F.3d at 382.
172

The Hamdi plurality observed that military detention “‘is neither a punishment nor an act
of vengeance, but merely a temporary detention which is devoid of all penal character. A
prisoner of war is no convict; his imprisonment is a simple war measure.’” 542 U.S. at 518
(quoting W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920)) (other internal
quotation marks and alterations omitted).
 53

responsibility”173 and “broad discretion.”174 The Supreme Court has recognized that “Congress

cannot anticipate and legislate with regard to every possible action the President may find it

necessary to take” in the fields of national security and foreign affairs.175 As a result, “Congress—in

giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush

broader than that it customarily wields in domestic areas.”176

Moreover, Section 1021 “at most authorizes—but does not mandate or direct”— the

detention that plaintiffs fear.177 To be sure, the executive branch enjoys prosecutorial discretion with

regard to traditional punitive statutes. Congress generally does not mandate or direct criminal

prosecution or civil enforcement.178 But we can distinguish between Congress, on the one hand,

proscribing a certain act and then leaving it to the President to enforce the law under his

constitutional duty to “take Care that the Laws be faithfully executed”179 and Congress, on the other

hand, authorizing the President to use a certain kind of military force against non-citizens abroad.

173

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (internal quotation marks omitted).
174

Olegario v. United States, 629 F.2d 204, 233 (2d Cir. 1980).
175

Dames & Moore v. Regan, 453 U.S. 654, 678 (1981).
176

Haig v. Agee, 453 U.S. 280, 292 (1981) (emphasis and internal quotation marks omitted).
177

Clapper, 133 S. Ct. at 1149 (emphasis in original).
178

See Abuelhawa v. United States, 556 U.S. 816, 823 n.3 (2009) (recognizing that “Congress
legislates against a background assumption of prosecutorial discretion”).
179

U.S. CONST. art. II, § 3; accord United States v. Valenzuela-Bernal, 458 U.S. 858, 863
(1982) (“One of the duties of the Executive Branch, and a vitally important one, is that of
apprehending and obtaining the conviction of those who have violated criminal statutes of
the United States.”).
 54

Consequently, there is a world of difference between assuming that a state executive

will enforce a statute imposing civil penalties for certain campaign finance violations180—or even

that the executive branch will enforce a federal criminal statute barring provision of material support

to terrorists181—and assuming that the President will detain any non-citizen abroad that Congress

authorizes him to detain under the AUMF. Clapper further supports this understanding, as it made

clear that plaintiffs cannot establish standing on the basis of speculation about how the government

may choose to utilize its authority to engage in foreign surveillance.182 In short, while it generally

may be appropriate to presume for standing purposes that the government will enforce the law

against a plaintiff covered by a traditional punitive statute, such a presumption carries less force with

regard to a statute concerned entirely with the President’s authority to use military force against non-

citizens abroad.183 Thus, in the circumstances of this case, Jonsdottir and Wargalla must show more

than that the statute covers their conduct to establish preenforcement standing.

180

Vt. Right to Life, 221 F.3d 376.
181

HLP, 130 S. Ct. 2705.
182

See 133 S. Ct. at 1148–49.
183

We do not rely on any notion that Article III standing rules are different just because this
case implicates national security and foreign affairs. Rather, we note only that plaintiffs in
the circumstances presented need to show more to establish a sufficiently imminent threat
of enforcement; Congress and the Constitution provide the President with broad discretion
in these areas and thus a presumption of enforcement may be less apt. This is consistent
with the Supreme Court’s observation that it has “often found a lack of standing in cases in
which the Judiciary has been requested to review actions of the political branches in the
fields of intelligence gathering and foreign affairs.” Id. at 1147.
 55

We need not quantify precisely what more is required184 because Jonsdottir and

Wargalla have shown nothing further here. Indeed, they have not established a basis for concluding

that enforcement against them is even remotely likely. We reach this conclusion independent of the

government’s litigation position on appeal that plaintiffs are “in no danger whatsoever” of being

detained on the basis of their stated activities.185

First, even assuming that Jonsdottir and Wargalla fall within the ambit of authority

provided by the statute, this is certainly not a case in which “the law is aimed directly at

plaintiffs.”186 They point to nothing in the record, or in the text or legislative history of Section

1021, that suggests that the statute was passed to facilitate the military detention of individuals

specifically like them.

Second, while we do not hold that a specific threat of enforcement is necessary,

neither Jonsdottir nor Wargalla has adduced any evidence that the government intends or has

184

In particular, we need not determine whether, in light of the foregoing considerations, the
preenforcement Babbitt line of cases is inapplicable altogether and whether plaintiffs must
satisfy the Clapper “certainly impending” standard to prevail. Nor need we resolve whether
the proper preenforcement standard is “legitimate fear,” “realistic danger,” “credible threat
of prosecution,” or “actual and well-founded fear,” or—more to the point—whether there
is any meaningful difference among these standards. Cf. Amnesty Int’l USA v. McConnell,
646 F. Supp.2d 633, 644 n.12 (S.D.N.Y. 2009) (questioning this Court’s prior suggestion
that “realistic danger” is a slightly higher standard than “actual and well-founded fear”),
vacated on other grounds sub nom. 638 F.3d 118, rev’d, 133 S. Ct. 1138; Clapper, 133 S.
Ct. at 1160–61 (Breyer, J., dissenting) (listing other terms Supreme Court has used to
describe requisite imminence in cases of future harm).
185

Appellant Br. 1.
186

Am. Booksellers, 484 U.S. at 392.
 56

threatened to place them in military detention.187

Third, they have not put forth evidence that individuals even remotely similarly

situated have been subjected to military detention.188 The government argues that this latter failure

187

Jonsdottir testified that she has been subject to a U.S. grand jury subpoena as part of a
criminal investigation into WikiLeaks. Even assuming that the mere issuance of a subpoena
demonstrates intent to prosecute Jonsdottir criminally—not a reasonable assumption in any
event—Clapper makes clear that this would not help her cause. The Court there concluded
that evidence of surveillance under a prior statute detracted from standing, because plaintiffs
could only speculate about whether any government surveillance would occur under the
new statute, rather than under other existing authority. See 133 S. Ct. at 1152. Likewise
here, the evidence that the government may have been criminally investigating Jonsdottir
would not support her fear of military detention.

For similar reasons, the evidence that the administration is prosecuting Bradley Manning
for aiding al-Qaeda and that administration officials and members of Congress have
described WikiLeaks as a terrorist organization does not support plaintiffs’ position.
188

A record article concerns one Sami Alhaj, who reportedly had worked for Al Jazeera as a
cameraman before his military detention at Guantánamo. See Magda Abu-Fadil, Sami
Alhaj: From Gitmo Detainee Back to Al Jazeera as Liberties/Human Rights Advocate,
HUFFINGTON POST (Jan. 6, 2012), available at
http://www.huffingtonpost.com/magda-abufadil/sami-alhaj-Guantanamo_b_1189590.html.
But that same article quotes a Department of Defense memorandum listing Alhaj as a
member of al-Qaeda who was a money courier, propagandist, and logistics expert involved
in a plan to provide Stinger missiles to Islamic extremists in Chechnya. We cannot
conclude that Alhaj is situated similarly to Jonsdottir and Wargalla in these circumstances.

Record articles report also that the Obama administration purportedly encouraged the
Yemeni government not to pardon a Yemeni journalist, Abdulelah Haider Shaye, convicted
of terrorism-related charges. See, e.g., Greenwald, supra note 164. The record does not
explain the administration’s concerns, however, notwithstanding the speculation of one
article’s author that it was upset about Shaye’s reporting of allegedly embarrassing
information. Moreover, Shaye was not held by the United States military, rendering his
case quite different from what plaintiffs fear.

The district court concluded that it was “patently unfair” to expect plaintiffs to point to
examples of similarly situated individuals being detained, as the reasons individuals may
be detained generally is known only to the government. Hedges, 890 F. Supp.2d at 439
n.19. But Clapper—issued after the district court’s decision—makes clear that the secrecy
of government action does not relieve plaintiffs of the burden to establish standing. In any
event, we do not require plaintiffs to come forward with any specific kind of evidence,
including that of similarly situated individuals who have been detained. We hold only that
 57

is particularly meaningful because, it contends, Section 1021 codified an interpretation “that the

President had long articulated and exercised and that the Judiciary had repeatedly recognized.”189

To be sure, the government overstates its case on this point. As the history of

litigation regarding the scope of AUMF detention authority shows, numerous courts criticized or

rejected the government’s reliance on substantial support in the March 2009 Memo. Prior to that,

a divided Fourth Circuit set forth a number of different interpretations of executive detention

authority, none of which resembled the government’s position.190 While the D.C. Circuit’s decision

in Al-Bihani is supportive of the government’s standard, it focused primarily on a “purposeful and

material support” standard, the relationship of which to “substantial support” is not clear. Simply

put, to the extent that Congress resolved a previously debated question about the scope of AUMF

detention authority in passing Section 1021, it was not obvious that the answer it provided is the one

that ultimately would have prevailed had Congress not passed anything at all.191 In light of this

uncertainty, at least in principle Section 1021's codification of the “substantial support” standard

could place the administration on stronger footing to detain individuals under such a theory than it

might have been willing to risk previously.

the evidence submitted here is insufficient to meet plaintiffs’ burden.
189

Appellant Br. 8.
190

But see Vladeck, supra note 60, at 1457 n.36 (noting that some constraints identified by Al-
Marri judges may have been specific to context of lawfully present non-citizens
apprehended in United States).
191

Moreover, even the executive branch’s embrace of the “substantial support” standard prior
to Section 1021's passage had appeared cautious, at best. As noted above, it is not apparent
whether this administration ever has detained an individual solely as a substantial supporter.
It appears nearly exclusively to have relied on a “part of” theory to justify its detentions, and
it specifically has foresworn reliance on support in at least two cases.
 58

Nevertheless, plaintiffs bear the burden of establishing standing.192 Whether Section

1021 can or will alter executive practice, particularly with regard to individuals like them, is purely

a matter of speculation. The fact remains that—despite the executive at least nominally asserting

the authority to detain on the basis of “support” since the 2004 CSRT enemy combatant definition,

and on the basis of “substantial support” since the March 2009 Memo,193 and despite the D.C.

Circuit recognizing the lawfulness of detention at least on the basis of “purposeful and material

support” since 2010—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.194

Nothing in this decision should be confused as deference to the political branches

because the case involves national security and foreign affairs. We adhere to the principle that

courts have a vigorous and meaningful role to play in assessing the propriety of military detention,

as the Supreme Court has made clear in cases from Hamdi to Boumediene.195 We hold only that a

192

See Clapper, 133 S. Ct. at 1149 n.4 (“[I]t is [plaintiffs’] burden to prove their standing by
pointing to specific facts, not the Government’s burden to disprove standing by revealing
details of its surveillance priorities.” (citation omitted)).
193

While the March 2009 Memo was, on its face, specific to authority to detain those then held
at Guantánamo, there is nothing in the record to suggest that the government had any
different view of its authority outside of Guantánamo.
194

Clapper, 133 S. Ct. at 1151.
195

See Hamdi, 542 U.S. at 532 (“It is during our most challenging and uncertain moments that
our Nation's commitment to due process is most severely tested; and it is in those times that
 59

court first must satisfy itself that the case comports with the “irreducible constitutional minimum”

of Article III standing.196 This inquiry is rooted in fundamental separation-of-powers principles and

must be “especially rigorous” where, as here, the merits of the dispute require the court to “decide

whether an action taken by one of the other two branches of the Federal Government was

unconstitutional.”197 Section 1021 is concerned entirely with the military authority of the President

with respect to non-citizens abroad—a context in which Congress provides the President broad

authority to exercise with considerable discretion. Particularly after Clapper, plaintiffs must show

more than that they fall within the ambit of this authority to establish the sufficient threat of

enforcement necessary for Article III standing. They have failed to do so here.

A final note: Plaintiffs repeatedly refer to the First Amendment overbreadth doctrine

as if it were relevant to whether they have established Article III standing. It is not. Relaxing the

general prudential rule against third-party standing, the overbreadth doctrine permits a plaintiff to

represent the legal interests of parties not before the court when seeking facial invalidation of a

statute under the First Amendment, if certain conditions are met.198 Critically, “[w]e allow a party

to bring an overbreadth challenge where that party ‘satisfies the Article III requirement of “injury-in-

we must preserve our commitment at home to the principles for which we fight abroad.”);
Boumediene, 553 U.S. at 798 (“The laws and Constitution are designed to survive, and
remain in force, in extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law.”).
196

Lujan, 504 U.S. at 560.
197

Clapper, 133 S. Ct. at 1147 (internal quotation marks omitted).
198

Farrell v. Burke, 449 F.3d 470, 494–95 (2d Cir. 2006) (Sotomayor, J.); see Virginia v.
Hicks, 539 U.S. 113, 118–19 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 612–15 (1973).
 60

fact” and where it can be expected satisfactorily to frame the issues in the case.’”199 In other words,

the overbreadth doctrine speaks to whose interests a plaintiff suffering Article III injury may

represent. It does not provide a reason to find such injury where none is present or imminently

threatened in the first instance.

III. Conclusion

In sum, Hedges and O’Brien do not have Article III standing to challenge the statute

because Section 1021 simply says nothing about the government’s authority to detain citizens.

While Section 1021 does have meaningful effect regarding the authority to detain individuals who

are not citizens or lawful resident aliens and are apprehended abroad, Jonsdottir and Wargalla have

not established standing on this record. We VACATE the permanent injunction and REMAND for

further proceedings consistent with this opinion.

199

Farrell, 449 F.3d at 499 (quoting Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S.
947, 958 (1984)) (alterations omitted).