Carl J.

Mayer (CM-6589) MAYER LAW GROUP LLC 1040 Avenue of the Americas, Suite 2400 New York, NY 10018 212-382-4686 Bruce I. Afran (BA-8583) 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075 Attorneys for Plaintiff UNITED STATES DISTRCT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------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 BRIEF IN SUPPORT OF APPLICATION FOR RESTRAINTS ON THE OPERATION OF THE HOMELAND BATTLEFIELD BILL PROVISIONS OF THE NATIONAL DEFENSE AUTHORIZATION ACT (2011) INDEX NO. 1:12-CV-331 (KBF)

TABLE OF CONTENTS

INTRODUCTION.6 PRELIMINARY STATEMENT...6 STANDING AND STANDARDS FOR INJUNCTIVE RELIEF9 A. STANDING CONSIDERATIONS...10 B. STANDARDS FOR TEMPORARY INJUNCTIVE RELIEF..12 ARGUMENT...14 I. THE ACT IMPROPERLY AUTHORIZES THAT CIVILIANS IN THE UNITED STATES BE DETAINED INDEFINITELY BY THE MILITARY, THAT THEY BE TRIED BY MILITARY COMMISSION OR MILITARY COURT AND THAT THEY MAY BE SUBJECT TO REMOVAL TO OTHER JURISDICTIONS IN VIOLATION OF THE AMENDMENTS V AND VI OF THE CONSTITTUION14 THE ACT FAILS TO GIVE REASONABLE NOTICE OF THE ACTS AND CONDUCT THAT WILL RENDER A PERSON LIABLE TO MILITARY DETENTION AND IS OVERBROAD THEREBY CHILLING AND IMPINGING UPON PROTECTED EXPRESSIVE AND ASSOCIATIVE RIGHTS.22

II.

CONCLUSION28

TABLE OF AUTHORITIES Cases: A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) Akins v. Penobscot Nation, 130 F.3d 482, 486 (1st Cir. 1997) Alleyne v. New York State Educ. Dep't, 516 F.3d 96 (2d Cir.2008) Amnesty Intl USA v. Clapper, 2011 U.S. App. LEXIS 19482 (2d Cir. 2011) Amnesty Intl v. Clapper, 638 F.3d 118 (2d Cir. 2011) Andino v. Fischer, 555 F.Supp.2d 418 (S.D.N.Y. 2008) Bates v. State Bar of Ariz., 433 U.S. 350 (1977) Baur v. Veneman, 352 F.3d 625, 637 (2d Cir. 2003) Beal v. Stern, 184 F.3d 117 (2d Cir. 1999) Boumediene v. Bush, 553 U.S. 723 (2008) Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) Brody v. Village of Port Chester, 261 F.3d 288 (2d Cir. 2001) Carrington Co. v. United States, 70 Cust. Ct. 105 (1973) Coleman v. Tennessee, 97 U.S. 509 (1879) Dombrowski v. Pfister, 380 U.S. 479, 491 (1965) Duncan v. Kahanamoku, 327 U.S. 304 (1946) Elrod v. Burns, 427 U.S. 347 (1976) Ex Parte Milligan, 71 U.S. 2 (1866) Ex parte Quiran, 317 U.S. 1 (1942) Givens v. Zerbst, 255 U.S. 11 (1921) 13 16 26 13 23 16 26 16 9,13 14,16,19,21 passim 21 17 15 22 12 10,22,12 10,11,12 13 27

Gosa v. Mayden, 413 U.S. 665 (1973) Grafton v. United States, 206 U.S. 333 (1907) Grisham v. Hagan, 361 U.S. 278 (1960) Hamden v. Rumsfeld, 548 U.S. 557 (2006) Hamdi v. Rumsfeld, 542 J.S. 507 (2004) Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919) Hirabayashi v. United States, 320 U.S. 81 (1943) Johnson v. Sayre, 158 U.S. 109 (1895) Kahn v. Anderson, 255 U.S. 1 (1921) Kinsella v. Singleton, 361 U.S. 234 (1960) Laird v. Tatum, 408 U.S. 1 (1972) Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935) Madsen v. Kinsella, 343 U.S. 341 (1952) McElroy v. Guagliardo, 361 U.S. 281 (1960) Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) NAACP v. Button, 371 U.S. 415 (1963) Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976) New York v. Ferber, 458 U.S. 747 (1982) New York Times Co. v. United States, 403 U.S. 71 (1971) Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341 (2d Cir. 2008) Parisi v. Davidson, 405 U.S. 34 (1972) Reid v. Covert, 354 U.S. 1 (1957)

16 16 14 18 19,20,22 passim 15 15 16 16,17 14,16 15,16 15 17 14 26 27 27 26 9 12 15 14,17

Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999) Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) Smith v. Whitney, 116 U.S. 167 (1886) Solorio v. United States, 483 U.S. 435 (1987) Spencer Trask Software Info. Servs., LLC v. RPost Intl, Ltd., 190 F.Supp.2d 577 (S.D.N.Y. 2002) Toth v. Quarles, 350 U.S. 11 (1955) United States ex rel. Hirshberg v. Cooke, 336 U.S. 210 (1949) Virginia v. Black, 538 U.S. 343 (2003) Virginia v. Hicks, 539 U.S. 113 (2003) Winters v. United States, 89 S. Ct. 57 (1968) Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597 (1963)

13 27 16 14 13 14,16,17,18 17 26 27 16 23

Constitution and Statutes: U.S. Const., Art. I, Sect. 8, Cl. 11 U.S. Const., Amend. I U.S. Const., Amend. V U.S. Const., Amend VI Homeland Battlefield Act, 1031(b)(2) Homeland Battlefield Act, 1031(c) 17,19 9,24,26,27 14,15 17 7,20,22,26 passim 5,7

INTRODUCTION This Memorandum of Law is respectfully submitted on behalf of Plaintiffs in support of their application for temporary and/or preliminary injunctive relief enjoining the Homeland Battlefield Act provision of the National Defense Authorization Act (NDAA) of 2012 (the Homeland Battlefield Act or the Act). PRELIMINARY STATEMENT On December 31, 2011, President Barack Obama signed into law the National Defense Authorization Act (NDAA) whose provisions incorporate the Homeland Battlefield Bill providing for military detention, military trial, rendition and indefinite detention for the duration of hostilities of civilians, both citizen and non-citizen, in the United States who fall within the designation of covered persons. The President, in a signing statement, said that he believed the act was troubling constitutionally and he stated he was signing it with severe reservations: I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. FBI Director Mueller said he feared the bill would actually impede the bureau's ability to investigate terrorism because it would be hard to win cooperation from suspects held by the military: "The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining." Mueller told Congress. Section1031 of the Act defines a covered person, subject to indefinite duration detention, in the following manner: (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. Homeland Battlefield Bill, 1031(b) [emphasis added]. The Act further provides that any person detained under its provisions, whether within or without the United States, may be: 1) held without trial until the end of the hostilities authorized by the Authorization for Use of Military Force (2001); 2) may be subject to military commission; 3) may be subject to trial by an alternative judicial procedure; or 4) may be subject to so-called rendition to any foreign jurisdiction by governmental fiat. Section 1031(c) states, particularly: (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 11184)). (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. Homeland Battlefield Bill, 1031(c). The Complaint alleges that Plaintiffs are individuals whose activities, contacts and associations may reasonably render them covered persons under the Act. The Act

makes a person a covered person who substantially supported al-Qaeda or the Taliban or their associated forces. Plaintiffs professional, journalistic and advocacy activities bring them into direct contact with leaders of the entities referred to in the Act and certain plaintiffs, such as Christopher Hedges and Noam Chomsky, produce writings incorporating the results of such meetings that have the effect of publicizing the ideology and methods of such entities and their leadership. As the Complaint sets forth, other plaintiffs are a part of advocacy movements that have been labeled terrorist organizations by certain governments and that advocate for and in connection with the activities of covered entities under the Act. Plaintiffs acts and advocacy in connection with the covered terrorist entities or their associated forces will create a reasonable basis for such plaintiffs to fear being deemed covered persons who, by their advocacy, substantially supported covered entities under the Act; as such, plaintiffs may be reasonably said to be subject to arrest, military detention and trial or hearing by military authorities under the Act. For the reasons set forth below, plaintiffs seek an order temporarily enjoining enforcement of the Act and ultimate relief declaring the Act to be unconstitutional in that it: 1) places civilians in the United States who are not in armed conflict with the United States into the custody and control of the military; and 2) that its overbroad reach will render persons engaged in legitimate protected speech, association and advocacy activities to be subject to indefinite detention in military or other custody or made subject to rendition to foreign jurisdictions or fear being placed in such jeopardy.

STANDING AND STANDARDS FOR INJUNCTIVE RELIEF As argued below, the facts substantiate the basis for, at the threshold, temporary injunctive relief. The President has stated that he will not enforce the Act in the United States as to U.S. citizens and members of the Administration, such as FBI Director Mueller, have questioned the need for the Acts provisions stating that existing law enforcement measures are sufficient. Since the Administration and the President have stated that there is no substantive need for the Acts provisions and that it will not be currently enforced (at least as to U.S. citizens) the Government will suffer little or no prejudice from an order temporarily restraining the operation of the Act. In the absence of such relief, Plaintiffs reasonably fear that they will be subject to the Acts provisions as covered persons because their ideological support of and their actual contacts with the covered entities and associated forces, will bring them within the broad reach of the Act. Accordingly, they will suffer an immediate chilling effect on their exercise of their First Amendment rights due to the fear of military detention in the absence of such injunctive relief. As has been long-held, the threatened loss or dilution of First Amendment rights for even minimal periods of time presents a per se claim of irreparable harm. See e.g. Elrod v. Burns, 427 U.S. 347, 373-374 (1976) where the Court recognized the need for injunctive relief for a mere threatened deprivation: It is clear, therefore, that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States, 403 U.S. 713 (1971).

Here the statutory language of the Act makes it clear that one who has substantially supported al-Qaeda, the Taliban or their associated forces will be subject to the Acts detention provisions and such looming threat in itself causes a reasonable person to fear that the exercise of their associational or expressive rights will result in detention under the Act. A. STANDING CONSIDERATIONS The Second Circuit has already held in a related matter that the journalistic interests at stake here will be impaired by the operation of statutes or policies that intrude upon associational and expressive rights. In Amnesty Intl USA v. Clapper, 2011 U.S. App. LEXIS 19482 (2d Cir. 2011), the Court of Appeals in its en banc affirmance of the merits judgment recognized that the very types of expressive contacts with foreign terror leaders and organizations as alleged here support injunctive relief and standing:

Likewise, journalist Chris Hedges, whose writing focuses on American and Middle Eastern politics and society, maintains regular contact with academics, journalists, politicians, and activists in places such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan. He also communicates with political activists and civil society leaders in Palestine, whom he believes are 'of interest' to the U.S. government."); id. at 143 ("[T]he various groups of plaintiffs attorneys, journalists, and human rights, labor, legal, and media organizations have established that they have legitimate interests in not being monitored."); id. ("Journalists Klein and Hedges, for example, assert that if their communications with their sources were overheard, those sources' identities, political activities, and other sensitive information would be disclosed, which would expose them to violence and retaliation by their own governments, non-state actors, and the U.S. government."); id. at 144 n.27 ("Both the attorneys and the non-attorneys have reason to fear being monitored under the challenged statute . . . .").

10

Amnesty Intl v. Clapper, supra at n. 5. As the Court in Clapper acknowledged, such persons are not merely those who unhappy with the Congresss resolution of the policy arguments for and against the FAA, seek to continue the political discussion, Id. at n. 6, but rather are individuals who assert that the law has specifically affected them in a way that gives them a concrete stake in the controversy Id. Here the journalists and advocates claim an even more concrete injury than in Clapper since, unlike in Clapper, the harm is not merely to their potential ability to speak to informants who fear being monitored but, rather, the harm is that the plaintiffs themselves will be the targets of the Act as covered persons subject to incarceration for these contacts. Thus, the law of the circuit as enunciated in Clapper would appear to support the plaintiffs claims for temporary injunctive relief. In its initial merits judgment in Clapper, Amnesty Intl v. Clapper, 638 F.3d 118 (2d Cir. 2011), the Court of Appeals recognized that a plaintiff may obtain standing by showing a sufficient likelihood of future injury, 638 F.3d at 136, or fear of future harm as the product of a governmental policy: Assessing whether a threatened injury, by itself, is sufficiently probable to support standing is a "qualitative, not quantitative" inquiry that is "highly case-specific." Baur v. Veneman, 352 F.3d 625, 637 (2d Cir. 2003) (internal quotation marks omitted). "[T]he question of whether anticipated future injury suffices to establish standing is approached as a question of judgment and degrees." Wright, Miller & Cooper, supra, 3531.4, at 264. Indeed, in future-injury cases, we have said that "the risk of harm necessary to support standing cannot be defined according to a universal standard." Baur, 352 F.3d at 637. One factor that bolsters a plaintiff's argument that the injury is likely to come to pass, according to both the Supreme Court and this Court, is the existence of a policy that authorizes the potentially harmful conduct. Amnesty Intl v. Clapper, 638 F.3d at 137.

11

Ultimately, the Court of Appeals held in Clapper that the test is simply that if the plaintiff 'may legitimately fear that it will face enforcement of the statute,' then the plaintiff has standing to challenge the statute." Clapper at 137 quoting Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir. 2008). As Clapper made clear, standing and the need for injunctive relief are enhanced where the injury that the plaintiffs fear results from conduct that is authorized by statute. Clapper at 138 [emphasis added]. As the fear of military detention, indefinite detention and the absence of trial is derived not from a subjective fear by the plaintiffs but from the very text of the statute, just as in Clapper standing and the basis for temporary restraints are present. Since plaintiffs here, by virtue of their profession and advocacy acts are distinguishable from the general population they have sufficiently concrete relationship to the Act so as to substantiate standing: The instant plaintiffs are not merely random citizens, indistinguishable from any other members of the public, who want to test in court the abstract theory that the FAA is inconsistent with the Constitution; rather, these plaintiffs have shown that, regardless of which course of action they elect, the FAA affects them. We therefore conclude that they have a sufficient "personal stake" to challenge the FAA. Clapper, 638 F.3d at 144-145. B. STANDARDS FOR TEMPORARY INJUNCTIVE RELIEF Pursuant to Rule 65 of the Federal Rules of Civil Procedure, "A district court may enter a preliminary injunction staying government action taken in the public interest pursuant to a statutory or regulatory scheme only when the moving party has demonstrated that he will suffer irreparable injury, and there is a likelihood that he will succeed on the merits of his claim." Alleyne v. New York State Educ. Dep't, 516 F.3d 96, 101 (2d Cir. 2008) (internal quotations and citations omitted).

12

Because the government's action in enacting the Act is presumed to be in the public interest, Plaintiffs must meet the likelihood-of success standard to obtain injunctive relief. Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999). The injury must be "actual and imminent" and not capable of remedy by monetary damages. Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (per curiam). When the preliminary injunction implicates public interests, a court should consider the balance of such public interests when evaluating the private injury. Brody v. Village of Port Chester, 261 F.3d 288, 290 (2d Cir.2001). The same standard applies to the Plaintiffs application for a temporary restraining order. See, e.g., Andino v. Fischer, 555 F.Supp.2d 418, 419 (S.D.N.Y.2008) ("It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction."); accord Spencer Trask Software & Info. Servs., LLC v. RPost Int'l, Ltd., 190 F.Supp.2d 577, 580 (S.D.N.Y.2002). Since the Administration disputes the need for the Act and has stated it will not seek to enforce it currently, the Acts intrusion into protected liberty interests shifts the balance of interests in favor of at least temporary restraints. The interests at stake freedom from a threat to First Amendment rights and detention of civilians by the military - are fundamental liberty interests the violation of which is irreparable. Elrod v. Burns, 427 U.S. at 373-374. As argued below, the Act imposes military detention and jurisdiction over civilians in the United States - against an unbroken line of case law reaching back to the Civil War era that prohibits military jurisdiction over non-combatant civilians. See Ex parte Milligan, supra. Plaintiffs have thus shown a likelihood of success on the merits and temporary or preliminary restraints should issue.

13

ARGUMENT I. THE ACT IMPROPERLY AUTHORIZES THAT CIVILIANS IN THE UNITED STATES BE DETAINED INDEFINITELY BY THE MILITARY, THAT THEY BE TRIED BY MILITARY COMMISSION OR MILITARY COURT AND THAT THEY MAY BE SUBJECT TO REMOVAL TO OTHER JURISDICTIONS IN VIOLATION OF AMENDMENTS V AND VI OF THE U. S. CONSTITTUION. Civilians in the United States may not be made subject to military jurisdiction, detention by the military or trial for any offense outside of the civil courts, even in times of civil insurrection, when the courts were open and ready to try them. Ex Parte Milligan, 71 U.S. 2, 127 (1866). The Fifth Amendment recognizes the prevailing requirement of civil jurisdiction except in cases arising in the land or naval forces, or in the militia...; U.S. Const., Amend. V [emphasis added]. As the Fifth Amendment makes clear, the military jurisdiction may extend to cases that arise in the land or naval forces, or in the militia, language that in itself precludes military jurisdiction over the civilian offender. As recognized in Ex Parte Miligan, only the person serving in the military is subject to military jurisdiction or adjudication, while All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. Ex Parte Milligan, 71 U.S. 2, 123 (1866)[emphasis added]; accord Reid v. Covert, 354 U.S. 1 (1957). The Supreme Court has iterated repeatedly this invocation against the expansion of the military jurisdiction over civilians: We held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times both of the offense and of the trial, which eliminates discharged soldiers. Toth v. Quarles, 350 U.S. 11. Neither civilian employees of the Armed Forces overseas, McElroy v. Guagliardo, 361 U.S. 281; Grisham v. Hagan, 361 U.S. 278, nor civilian dependents of military personnel accompanying them overseas, Kinsella v. Singleton, 361 U.S. 234; Reid v. Covert, 354 U.S. 1, may be tried by court-martial.

14

Laird v. Tatum, 408 U.S. 1, 19 (1972); see also Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919) (The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589, n.19 (1935) (War power is subject to the Fifth Amendment.); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 528 (1935) (Extraordinary conditions do not create or enlarge constitutional power, citing the War Power); Hirabayashi v. United States, 320 U.S. 81, 92-93 (1943) (distinguishing civil trial of Japanese American in the civil courts for violating curfew orders from military trial of civilians.) In Laird the Court recoiled against the very notion that Congress, absent martial law, could impose military jurisdiction over civilians. Laird noted that Congress has the power to raise armies and to regulate the military but not to expand the military authority to the civilian sphere: The most pointed and relevant decisions of the Court on the limitation of military authority concern the attempt of the military to try civilians. The first leading case was Ex parte Milligan, 4 Wall. 2, 124, where the Court noted that the conflict between "civil liberty" and "martial law" is "irreconcilable." The Court which made that announcement would have been horrified at the prospect of the military -- absent a regime of martial law -- establishing a regime of surveillance over civilians. The power of the military to establish such a system is obviously less than the power of Congress to authorize such surveillance. For the authority of Congress is restricted by its power to "raise" armies, Art. I, 8; and, to repeat its authority over the Armed Forces is stated in these terms, "To make Rules for the Government and Regulation of the land and naval Forces." 408 U.S. at 17.1 See also Parisi v. Davidson, 405 U.S. 34, 49 (1972) (One overriding function of habeas corpus is to enable the civilian authority to keep the military within

Laird recognized that persons whose First Amendment activities will be chilled by the legislative or executive act, may bring an action challenging the exercise of the military power but held that plaintiffs whose claim was that the military may at some 15

bounds.), Douglas, J. concurring opinion; Winters v. United States, 89 S. Ct. 57, 60 (1968) ([C]ivil liberty and unfettered military control are irreconcilably antagonistic.) In Boumediene v. Bush, 553 U.S. 723 (2008), the Court held that even detainees in Guantanamo, admittedly outside the civil jurisdiction of the United States, were entitled to civil proceeding regardless of the expense to the military: [C]ivilian courts and the Armed Forces have functioned alongside each other at various points in our history. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304, 66 S. Ct. 606, 90 L. Ed. 688 (1946); Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L. Ed. 281 (1866). The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims. And in light of the plenary control the United States asserts over the base, none are apparent to us. Boumediene v. Bush, 553 U.S. at 769. In Solorio v. United States, 483 U.S. 435, 439 (1987), the Court made it clear beyond dispute that the military jurisdiction is applicable only to persons in the military service: The test for jurisdiction . . . is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' . . ." Id., at 240-241 (emphasis in original).2 future date misuse the information gathered by its domestic intelligence operation did not give rise to standing to challenge the military operation. 408 U.S. at 13-14. In contrast to Laird, here the plaintiffs allege that they are themselves covered persons at the inception of the Act based upon their well-known journalistic and advocacy activity in association with persons or groups labeled as terroristic or entities associated with al-Qaeda or the Taliban or their associated forces. 1031(b)(2).
2

Solorio is based upon an unbroken line of decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused. See e.g. Gosa v. Mayden, 413 U.S. 665, 673 (1973) (plurality opinion); see Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U.S. 1, 22-23 (1957) (plurality opinion); Grafton v. United States, 206 U.S. 333, 348 (1907); Johnson v. Sayre, 158 U.S. 109, 114 (1895); Smith v. Whitney, 116 U.S. 167, 183-185 (1886); Coleman v. Tennessee, 97 U.S. 509, 513-514 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866); cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1955); Kahn v. 16

The Court has long recognized that even Congresss power to authorize trial by the military requires a narrow approach calling for the least possible power adequate to the end proposed.'" United States ex rel Toth v. Quarles, 350 U.S. 11, 22-23 (1955). The judicial policy against military jurisdiction over civilians is so pervasive that it has been held to bar military trial even as to civilians employed in military districts abroad. Citing a long train of authority, the Court in McElroy v. United States, 361 U.S. 281 (1960), recognized the near impermeable barrier against the assertion of military authority over the civilian defendant: That a civilian, entitled as he is, by Art. VI of the Amendments to the Constitution, to trial by jury, cannot legally be made liable to the military law and jurisdiction, in time of peace, is a fundamental principle of our public law . . . ." McElroy, 361 U.S. at 284, citing Ex parte Milligan, supra. The only recognized expansion of the military authority has been to enable court martial of former servicemen for offenses committed while in service, see e.g. United States ex rel Toth v. Quarles, 350 U.S. 11, 23 (1955); United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 214-215 (1949), and the use of military commissions in foreign areas of U.S. military occupation and control where due process due will be in accord, not with the Constitution, but with local conditions and expectations. Madsen v. Kinsella, 343 U.S. 341 (1952). In Toth, the Court permitted military trial of former servicemen for offenses committed while in service but noting that Congressional extension of the military jurisdiction must be

Anderson, 255 U.S. 1, 6-9 (1921); Givens v. Zerbst, 255 U.S. 11, 20-21 (1921). This view was premised on what the Court described as the "natural meaning" of Art. I, 8, cl. 14, as well as the Fifth Amendment's exception for "cases arising in the land or naval forces." Reid v. Covert, supra, at 19; United States ex rel. Toth v. Quarles, supra, at 15.

17

limited to the least possible power adequate to the end proposed. Toth, supra [emphasis added]. Contrary to this long line of authority, the Act by its very terms purports to impose military jurisdiction over civilians in the United States and without the procedural safeguards that protect even service personnel. As the Court recognized in Hamden v. Rumsfeld, 548 U.S. 557 (2006), military commissions, no matter how impartial their members may strive to be, clearly lack the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, 548 U.S. at 587588 [emphasis added]. In distinguishing the military commissions organized to try Hamden, the Court noted the procedural safeguards available to service personnel in the courts martial, particularly civil court appellate review, that are utterly absent in the military commission: [T]he tribunal convened to try Hamdan is not part of the integrated system of military courts, complete with independent review panels, that Congress has established. Unlike the officer in Councilman [citation omitted] Hamdan has no right to appeal any conviction to the civilian judges of the Court of Military Appeals (now called the United States Court of Appeals for the Armed Forces, see 924, 108 Stat. 2831). Instead, under Dept. of Defense Military Commission Order No. 1 (Commission Order No. 1),App. C to Brief for Petitioner 46a, which was issued by the Secretary of Defense on March 21, 2002, and amended most recently on August 31, 2005, and which governs the procedures for Hamdan's commission, any conviction would be reviewed by a panel consisting of three military officers designated by the Secretary. Id. 6(H)(4). Commission Order No. 1 provides that appeal of a review panel's decision may be had only to the Secretary himself, 6(H)(5), and then, finally, to the President, 6(H)(6). 548 U.S. at 587. As Hamden recognized, trial by military commission lacks the fundamental judicial independence of the charging body or any judicial appellate review, review by the Secretary of Defense or by the President being political, not judicial in nature.

18

Hamden, supra. Because of such due process concerns, Congresss power to create rules establishing military commissions has never been recognized to extend beyond prisoners of war captured in combat and, indeed, the Constitution itself conveys such authority to Congress solely as to Rules concerning Captures on Land and Water;. U.S. Const., Art. I, Sect. 8, Cl. 11. Milligans fundamental premise in barring military jurisdiction over a civilian was predicated on the fact that he was not a prisoner of war but a resident of Indiana arrested while at home there. Hamdi v. Rumsfeld, 542 J.S. 507, 522 (2004), citing Milligan. As Hamdi recognized, it was the fact that Milligan was a civilian living in civilian life at the time of his arrest that was central to the courts conclusion: In that case [Milligan], the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. [citation omitted] That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen. Hamdi, 542 U.S. at 522. Hamdi and Milligan thus recognize the gross distinction between Congressional power to try a person captured in combat by military commission and a civilian in the United States who has merely offered support for a hostile force who must remain and be tried within the ambit of federal judicial power.3

Thus, while Milligan inferentially, and Hamdi more directly, both recognize that a citizen may be brought within the military jurisdiction such holding is conditioned on the express and absolute condition that the citizen has participated in combat or active hostilities. The Act imposes no such requirement and permits military detention of a U.S. civilian simply because they substantially supported the covered foreign entities. 19

There is no factual dispute that the Act itself provides for military jurisdiction and detention of civilians on an effectively indefinite basis until the cessation of the conflict, trial by military commissions of civilians arrested in the United States and the rendition of such persons to any foreign jurisdiction at the Governments sole determination. The Act imposes no requirement that such persons actually be engaged in an armed conflict against the United States, as required by the Supreme Court in Hamdi where it was held that military detention of a citizen is predicated upon their being actual combatants in an armed conflict: Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States to justify his detention in the United States for the duration of the relevant conflict. 542 U.S. at 526 [emphasis added]. In contrast to the mandate of Hamdi, the Act is not predicated upon a covered person being engaged in an armed conflict against the United States, Hamdi, supra, but merely includes any person who has substantially supported certain forces and their allies, committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. Neither of these provisions reaches Hamdis requirement that the citizen-detainee to be held outside the judicial process - must be engaged in an armed conflict with the United States. Id. Neither the phrase belligerent act or the reference to a person who directly supportedhostilities in aid ofenemy forces, see 1031(b)(2), rises to the requirement of the Supreme Court in Hamdi that a citizen-detainee must be one who is engaged in an armed conflict with the United States. Hamdi, 542 U.S. at 526. Milligan, who was

20

accused of conspiracy and the planning of an attack on U.S. forces in the Southern States, had certainly committed a belligerent act or had directly supported such hostilities in aid of such enemy forces, Milligan, supra, but the Court in Ex parte Milligan plainly held that such acts were not sufficient to invoke military jurisdiction over a citizen arrested outside the field of combat where the civil courts were open and functioning. Id.4 As Hamdi not only adopts the holding of Ex parte Milligan but requires the far more stringent standard that a citizen must be engaged in an armed conflict with the United States, 542 U.S. at 526, to give rise to detention in military jurisdiction, it is clear that the NDAAs characterization of a covered person subject to military detention is unconstitutional and contrary to established precedent.

Obviously, as found in Ex parte Quiran, 317 U.S. 1 (1942), the result may well be different if aliens in the service of a hostile power infiltrate the United States with the intent of carrying on a belligerent or hostile attack. Such facts do not arise here where the Act seeks to assert military domain over citizens in the United States who are not in the service of a hostile power. 21

II. THE ACT FAILS TO GIVE REASONABLE NOTICE OF THE ACTS AND CONDUCT THAT WILL RENDER A PERSON LIABLE TO MILITARY DETENTION AND IS OVERBROAD IN ITS REACH THEREBY CHILLING AND IMPINGING UPON PROTECTED FIRST AMENDMENT AND ASSOCIATIVE RIGHTS. Hamdi requires that civilians must be engaged in armed conflict with the United States to be subject to military jurisdiction. Hamdi, 542 U.S. at 526. In contrast, the Act makes subject to military imprisonment and trial any person who substantially supported al-Qaeda, the Taliban or their associated forces, a term that is left undefined and without the limiting condition in Hamdi that civilians subject to military detention must be actually engaged in armed conflict with the United States to be subject to military jurisdiction. Hamdi, supra. While 1031(b)(2) does contain a secondary clause including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces, see Homeland Battlefield Act, 1031(b)(2), such additional language not only fails to contain the more stringent requirement under Hamdi that covered persons must be engaged in armed conflict with the United States, but it is a mere exemplar not a limitation - of the covered conduct. See e.g. Akins v. Penobscot Nation, 130 F.3d 482, 486 (1st Cir. 1997) (Because the wording used is "including," the specific categories are exemplars and not exclusive. The examples provide limited guidance.) The absence of limiting language in the Act, such as a reference to the fact that a covered person shall be or is one who has committed a belligerent act or shall be or is one who has directly supported such hostilities in aid of such enemy forces, renders the government free under 1031 to detain a citizen whose conduct is limited to the first clause of 1031(b)(2), namely one who has substantially supported the delineated

22

organizations and their associated forces, an overbroad mandate that renders subject to arrest and military detention civilians engaged in protected Constitutional conduct. See e.g., Carrington Co. v. United States, 70 Cust. Ct. 105, 111 (1973) (recognizing that statutory exemplars are at best directory only with the remaining language of the statute being determinative of its outer limits). And since the undefined term substantially supported can be contoured to a virtually endless array of acts, the text plainly fails to give reasonable notice as to what conduct will render one a covered person. Such vague construction would allow the Government to bring within its scope persons such as plaintiffs whose writings, journalistic and advocacy acts may well be deemed to substantially support such organizations or their associated forces but are otherwise protected First Amendment activities. Even if the Court were to interpret the general phrase substantially supported in the context of the somewhat more specific phrase in aid of such enemy forces that follows, cf., Weyerhaeuser S.S. Co. v. United States, 372 U.S. 597, 600-601 (1963) (general words in a statute should not be given a meaning totally unrelated to the more specific terms of a statute), the term in aid of enemy forces is still far removed from the mandate of Hamdi that a U.S. citizen may be placed in military detention only where engaged in armed conflict with the United States. 542 U.S. at 526. Indeed, it is difficult to see how plaintiffs, whose writings are often highly sympathetic or directly endorsing of such entities, can avoid being drawn into the undefined contours of the Act by the imprecision of its drafting. In sum, no definitional provision explains the meaning of substantially supported or directly supported, language capable of application to nearly any form of ideological support for such

23

entities and the statute is without sufficient direction to provide notice and is inherently overbroad. The phrase or associated forces is similarly left undefined and can apply to nearly any group that lends ideological or other support for al-Qaeda or the Taliban, including groups such as Hamas and Hezbollah that are de facto state actors and whose leadership is a normal subject for journalists and commentators such as plaintiffs Christopher Hedges and Noam Chomsky. Indeed, Iran has been labeled a terror state by the United States, a designation that would almost certainly render it and its leadership as associated forces under the Act rendering journalists and writers who cover Iran favorably, meet with its leaders and expound upon their ideas as likely covered persons. As in Amnesty Intl v. Clapper, supra, here the threatened harm is not derived from plaintiffs purely subjective fear, 638 F.3d at 131, but from the actual text of the statute. Clapper at 138. As the Second Circuit noted in Clapper, the threatened harm here also derives from the highest expression of governmental policy, a Congressional enactment: It is significant that the injury that the plaintiffs fear results from conduct that is authorized by statute. This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. 638 F.3d at 138. Indeed, the threatened harm is far more concrete here than in Clapper where the plaintiffs feared that their First Amendment activities would be chilled because the

24

government would access their conversations in the course of seeking to monitor the plaintiffs foreign contacts. In contrast, here the plaintiffs, including plaintiff Hedges who was also a plaintiff in Clapper, are themselves subject as covered persons under the Act whereas in Clapper the expected monitoring of the plaintiffs communications was incidental to the governments targeting of third parties. Just as the Court found in Clapper, the plaintiffs activities place them directly within the governments objectives: Furthermore, the plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor i.e., individuals "the U.S. government believes or believed to be associated with terrorist organizations," "political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government," and "people located in geographic areas that are a special focus of the U.S. government's counterterrorism or diplomatic efforts." The plaintiffs' assessment that these individuals are likely targets of FAA surveillance is reasonable, and the government has not disputed that assertion. On these facts, it is reasonably likely that the plaintiffs' communications will be monitored under the FAA. The instant plaintiffs' fears of surveillance are by no means based on "mere conjecture," delusional fantasy, or unfounded speculation. Baur, 352 F.3d at 636 (to establish standing, a plaintiff "must allege that he faces a direct risk of harm which rises above mere conjecture"). Their fears are fairly traceable to the FAA because they are based on a reasonable interpretation of the challenged statute and a realistic understanding of the world. Clapper at 138-139. Nothing in the Act precludes plaintiffs reasonable interpretation of the challenged statute. Clapper, supra. As in Clapper, the plaintiffs contacts with the terror organizations and their leadership and the plaintiffs promotion of the terror groups ideology through favorable news coverage or commentary of such entities can reasonably be deemed substantial support to the covered entities and their associated forces under the Act, making plaintiffs and others engaged in similar endeavors covered

25

persons and subject to indefinite military incarceration without trial or judicial access. This is not mere conjecture, delusional fantasy, or unfounded speculation, Clapper, supra, but a reasonable interpretation, Clapper, supra, of the very statutory text. In sum, the unrestrained breadth of language in the Act renders a covered person subject to unlimited military detention under 1031(b)(2) any person, including plaintiffs, who has substantially supported any group associated with al-Qaeda or the Taliban, a coverage realm that is virtually undefined by any contour that would limit its applicability to persons engaged in protected First Amendment conduct. Indeed, it is that very conduct that will render them subject to the Acts provisions. The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984). The showing that a law punishes a "substantial" amount of protected free speech, "judged in relation to the statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973), suffices to invalidate all enforcement of that law, "until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression." Id., at 613, 37 L Ed 2d 830, 93 S Ct 2908. See also Virginia v. Black, 538 U.S. 343, 155 L. Ed. 2d 535, 123 S. Ct. 1536 (2003); New York v. Ferber, 458 U.S. 747, 769, n. 24, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982); Dombrowski v. Pfister, 380 U.S. 479, 491, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965). Overbreadth doctrine eliminates the deterrence of legitimate speech caused by statutory text that intrudes upon protected First Amendment activities. The remedy has

26

arisen out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech--especially when the overbroad statute imposes criminal sanctions. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); Bates v. State Bar of Ariz., 433 U.S. 350, 380, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977); NAACP v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Plaintiffs like many persons, rather than undertake the considerable burden of vindicating their rights through case-by-case litigation, may be forced to simply to abstain from protected speech, Dombrowski, supra, at 486-487, 14 L Ed 2d 22, 85 S Ct 1116--harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Cf., Viginia v. Hicks, 539 U.S. 113, 119 (2003). As the case law makes clear, plaintiffs, facing the threat of indefinite detention, military trial and possible rendition to foreign jurisdictions by the sheer sweep of language of the Act, face the choice between speech with such risk and diminishing their speech or remaining silent. The very existence of this decided threat to their First Amendment activity in itself gives rise to irreparable harm. Elrod v. Burns, supra. Finally, since the Act provides that such persons can be immediately taken into military custody without access to the civil courts, they will have little or no opportunity to seek early or expeditious release based upon a defense that they were engaging in constitutionally protected conduct. Indeed, while the government may argue that the matter is not ripe and plaintiffs lack standing until actually incarcerated by the military,

27

such remedy effectively allows for the very deprivation of liberty under the Act that the instant action seeks to forgo.5 CONCLUSION For the reasons set forth herein, plaintiffs respectfully request entry of an order temporarily or preliminarily enjoining the operation of the Homeland Battlefield provisions of the NDAA. Respectfully submitted,

S/Bruce I. Afran 10 Braeburn Drive Princeton, New Jersey 08540 609-924-2075 S/Carl J. Mayer 66 Witherspoon Street Suite 414 Princeton, New Jersey 08542 609-921-0253 Attorneys for Plaintiff Robert Jaffe, Esq. Of Counsel

Citing Ex Parte Milligan, 71 U.S. 2 (1866), the Supreme Court has noted that the history of wartime suspensions of fundamental rights calls into question any doctrine limiting categorical guarantees. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976) (The history of even wartime suspension of categorical guarantees, such as habeas corpus or the right to trial by civilian courts, see Ex parte Milligan, 4 Wall. 2 (1867), cautions against suspending explicit guarantees.) 28