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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 12-3644
----------------------------------------------------------------------CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY; ALEXA OBRIEN, US DAY OF RAGE; KAI WARGALLA, HON. BRIGITTA JONSDOTTIR M.P., Plaintiffs, v. BARACK OBAMA, individually and as representative of the UNITED STATES OF AMERICA; LEON PANETTA, individually and in his capacity as the executive and representative of the DEPARTMENT OF DEFENSE, JOHN McCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH McCONNELL, ERIC CANTOR as representatives of the UNITED STATES OF AMERICA Defendants. -----------------------------------------------------------------

PLAINTIFFS-APPELLEES MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND ORAL ARGUMENT AS TO ISSUES ARISING UNDER CLAPPER V. AMNESTY INTERNATIONAL, No. 111025 (S.Ct. February 26, 2013)
Bruce I. Afran, Esq. 10 Braeburn Dr. Princeton, N.J. 08540 609-924-2075 Carl J. Mayer, Esq. MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686

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ARGUMENT This motion seeks leave for the parties to file supplemental briefs in the instant appeal and oral argument with respect to issues arising under the Supreme Courts determination in Clapper v. Amnesty International, No. 111025 (S.Ct. February 26, 2013). At oral argument, the hearing panel raised the question of deferring judgment until the Court could consider how the anticipated decision in Clapper would impact the issues in the present matter, Hedges v. Obama. As a result of the change in legal environment following the reversal in Clapper, fundamental fairness strongly suggests the need for supplemental briefing. In its Rule 28(j) letter, the government quoted selectively from certain phrases in Clapper suggesting that the judgment below must be reversed. But the Rule 28j format, with its limitation of 350 words, is not proper for detailed discussion of how the Supreme Courts holding in Clapper affects the outcome of the present appeal; plaintiffs, upon extended study of Clapper, believe supplemental briefing and additional argument are necessary now that this Circuits ruling in Clapper is no longer governing law. Plaintiffs note that the district court did not rely exclusively on this Circuits decision in Clapper for its standing analysis but placed greater emphasis on the Supreme Courts conventional First Amendment standing doctrine. Discussion of 1) the interrelationship between conventional and First Amendment overbreadth

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standing, 2) how these relate to the factual record below, 3) the district courts reference to other standing precedent and 4) the factual differences between Clapper and Hedges v. Obama is beyond the scope of the Rule 28j format and, in fairness to the gravity of the issues, requires supplemental briefs and argument on the Clapper issues. The governments Rule 28j letter states simply that Clapper requires reversal of the district court ruling. But Clappers factual and legal predicates differ dramatically from those in the instant appeal and have only superficial similarities to Hedges v. Obama, as the brief discussion below shows. In Clapper, plaintiffs were lawyers and journalists who contended that broadened wiretap powers under the FISA Amendments Act (FAA) impermissibly chilled their own First Amendment interests. Though not directly targeted by the FAA, the Clapper plaintiffs claimed they would be chilled in their First Amendment rights for fear of being subject to federal wiretapping when they interview or counseled the actual wiretap targets. For this reason, the Clapper plaintiffs sought to declare the FAAs broadened wiretap powers unconstitutional due to their incidental effect upon plaintiffs journalistic or associational activities. As the Supreme Court recognized, the Clapper plaintiffs were not the subjects of the FAA but, instead, were asserting what the Court called an attenuated form of standing that was, in effect, derivative of the actual wiretap

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subjects who were the intended targets of the FAA. The reversal in Clapper was predicated in substantial part on the finding that the FAA required the intercession of an independent court of Article III judges in the form of the FISA court to give consent to any wiretap order. Thus, the Supreme Court held, there could be no imminent fear that the FAA could be applied to the Clapper plaintiffs (or anyone else) since the government could not implement the FAA on its own initiative but required resort to an independent body of judges whose decisions could not be predicted. In contrast, 1021(b)(2) of the NDAA at issue in Hedges v. Obama is a selfexecuting statute that does not require the government to seek permission of an independent body before acting under its provisions, a major factual distinction between the two cases. And unlike Clapper, Congress has mandated no due process at all under 1021(b)(2) or any rules of procedure as it did with the FAA, as well as the companion provision in the NDAA - 1022 - that governs foreign combatants. Consequently, unlike the FAA as construed in Clapper (or 1022 of the NDAA applying to foreign detentions), 1021(b)(2) does allow the government to act without any independent assessment of due process considerations or resort to an independent Article III body. On this basis alone, Clapper is not analogous to Hedges but is factually distinct.

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Plaintiffs in Hedges v. Obama, unlike those in Clapper, are not asserting standing derivative of the actual targets of the statute, but assert rights that derive directly from the broad language of 1021(b)(2) embracing anyone who substantially supports such groups. As the District Court found, plaintiffs in Hedges v. Obama are within the scope of 1021(b)(2)s detention provisions, as contrasted with the Clapper plaintiffs who were never the intended targets of the FISA act and whose relationship to the law was, as the Court found, attenuated. Such standing issues, as raised in both Clapper and in the district court below, involve a complex interaction of First Amendment jurisprudence and conventional standing doctrine; as explained below, following the reversal of Clapper such issues require additional briefing. In its Rule 28(j) letter the government relies heavily on language from Clapper that the threatened injury must be certainly impending to constitute injury in fact. Clapper, 2013 U.S. LEXIS 1858 at 21 [emphasis added] citing, inter alia, Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) and DaimlerChrysler Corp., 547 U.S. 332, 345 (2006). But the phrase certainly impending as used in Clapper arises out of the Supreme Courts non-First Amendment jurisprudence where the standard for standing requires a far closer nexus to the threatened harm than in First Amendment overbreadth cases such as Hedges v. Obama. This

distinction between Hedges and Clapper is seen in the fact that none of the

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decisions cited in Clapper for the certainly impending standard concern a First Amendment overbreadth case. See Clapper at 11 citing Whitmore and DaimlerChrysler. Hedges and Clapper differ in that Hedges concerns a statute embracing speech within its ambit while Clapper concerned a non-speech enactment governing wiretap procedures. Unlike NDAA 1021(b)(2), the statute in Clapper was not directed at speech and any intrusion into the Clapper plaintiffs First Amendment rights was incidental to the FAA, a statute amending wiretap authorization procedures but not one whose language brought speech within its ambit. Since the impact on speech caused by the FAA in Clapper was incidental at best, it required the stronger conventional standing doctrine associated with nonspeech cases. In contrast to Clapper, the district court in Hedges found 1021(b)(2) to be directed, at least in part, at speech, a conclusion the government has not disputed in this Court. To the contrary, the government acknowledges that 1021(b)(2)s substantial support language is directed at speech: though the government suggests that it now views independent speech as outside of the statutes scope, it contends that other forms of speech, i.e., non-independent speech, are within the scope of 1021(b)(2) and can lead to detention. Consequently, it is not disputed that 1021(b)(2) is directed at speech, unlike the FAA in Clapper.

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Moreover, the term support used in section 1021(b)(2), left alone and without definition, is understood to be a term embracing First Amendment activity. See e.g. Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 63-64 (1st Cir. 2011) (noting that terms including support without definition embrace speech activity). As brought out in oral argument, section 1021(b)(2)s floor manager, Senator Graham, himself acknowledged on the floor of the Senate that citizens may fear that the language of 1021 may cause them to be detained by the military for First Amendment activities. 157 Cong. Rec. S8102-8103. Since 1021(b)(2)

undoubtedly encompasses speech, a finding the government has effectively conceded, it falls under the relaxed standing requirements governing overbreadth cases, not the traditional standing of certainly impending harm that governs nonoverbreadth cases such as Clapper and those non-speech decisions the Supreme Court relied upon in Clapper, i.e., Hedges, Daimler, et al. In overbreadth cases, the Supreme Court has repeatedly held that standing is based on whether the statute can be applied to persons not present before the court, even where the government claims it will not apply the statute to the plaintiffs themselves. In recognition that "the First Amendment needs breathing space," the Supreme Court has relaxed the prudential requirements of standing in the First Amendment context. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 956, 81 L. Ed. 2d

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786, 104 S. Ct. 2839 (1984). Where, as here, plaintiffs raise an overbreadth challenge to a statute under the First Amendment, standing arises "not because [the plaintiff's] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute's] very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick, 413 U.S. at 612. Clapper does not overrule such wellestablished line of precedent. While the government now suggests having lost the injunction application - that the plaintiffs will not be detained for so-called independent speech they have testified to, that claim (weak as it is and never made unreservedly) came only after the entry of the preliminary injunction. During the trial, the government asserted that it could give no assurance that plaintiffs would not be detained, JA 138-140, and, hence, regardless of the governments later effort to shift its position, the plaintiffs standing continues as a ripe matter, since in First Amendment cases plaintiffs are permitted to assert the rights of third parties not before the court. See e.g. Eisenstadt v. Baird, 405 U.S. 438 n5 (1972); Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). This tradition has a long and continuing acceptance in the Courts of Appeal. See e.g. Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 47 (1st Cir. 2011).

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Nowhere in Clapper does the Supreme overrule or even address its First Amendment overbreadth case law in Broadrick and its progeny. Such judicial silence on this important standing doctrine is recognition that Clapper was not a First Amendment overbreadth case, as is Hedges v. Obama, and that Clapper is not dispositive of the claims before this Court. Even if, arguendo, the certainly impending language of Clapper is deemed to apply to an overbreadth challenge (a conclusion not supported by the Supreme Courts reliance on non-overbreadth cases in Clapper), the Courts First Amendment jurisprudence accepts that self-censorship, as has been found by the District Court here and not disputed by the government, comprises an actual injury in fact. See e.g. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988); see also N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) ("[I]t is not necessary that a person expose herself to arrest or prosecution under a statute in order to challenge that statute in a federal court."). Nat'l Org. for Marriage v. McKee, 649 F.3d 34 at 47 (The chilling of protected speech may thus alone qualify as a cognizable, Article III injury.) Not only is such threatened injury to First Amendment interests an actual harm, but it comprises irreparable harm, even if only for a short period. See e.g. Elrod v. Burns, 427 U.S. 347, 373-374 (1976) citing New York Times Co. v.

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United States, 403 U.S. 713 (1971). Judge Forrest, citing Elrod, expressly found that the plaintiffs self-censorship comprised irreparable harm. JA 140. A finding of injury that meets the irreparable harm test without question also meets the certainly impending test, even under Clapper. As this brief discussion shows, the Supreme Courts decision in Clapper should not bar the relief below but fundamental fairness and the public importance of these questions require that these substantial and weighty issues be adequately briefed by the parties and that the parties have the opportunity for argument limited to the Clapper issues. Respectfully submitted, S/Bruce I. Afran S/Carl J. Mayer

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