government's post-hearing supplemental memorandum of law in opposition to plaintiffs' motion for a...
TRANSCRIPT
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
1/30
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------- x
CHRISTOPHER HEDGES et al.,
Plaintiffs,
v.
BARACK OBAMA et al.,
Defendants.
12 Civ. 331 (KBF)
----------------------------------------------------------------- x
Governments Supplemental Memorandum of Law in Opposition toPlaintiffs Motion for a Preliminary Injunction
PREET BHARARA
United States Attorney for the
Southern District of New York
86 Chambers Street
New York, New York 10007
Telephone: 212.637.2703, .2728
Fax: 212.637.2702
E-mail: [email protected]
BENJAMIN H. TORRANCE
CHRISTOPHER B. HARWOOD
Assistant United States Attorneys
Of Counsel
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 1 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
2/30
Table of Contents
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Section 1021 Codifies the Detention Authority Conferred by the AUMF, and
Must Be Read Against the Background of Existing Executive Practice. . . . . . . . 1
B. Plaintiffs Testimony Fails to Establish That Any Plaintiff Has Standing to
Challenge Section 1021. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Plaintiffs Asserted Fear That Section 1021 Will Be Applied Against
Them Is Based on Implausible Interpretations of the Statute and the
Documents on Which They Rely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Most of Plaintiffs Activities (and in the Case of the Non-Citizen
Plaintiffs, All of Their Activities) Relate to Groups Other Thanal-Qaeda, the Taliban, or Associated Forces. . . . . . . . . . . . . . . . . . . . . . . 12
3. The Presidents Signing Statement Precludes a Finding of Standing
as to Either of the U.S. Citizen Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4. The Governments Enforcement History Under the AUMF and Section
1021 Precludes a Finding That Any Plaintiff Has Standing. . . . . . . . . . . . 14
C. Injunctive or Declaratory Relief Against Application of Section 1021
Would Be Inconsistent with the Standards Required by Article III of the
Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Section 1021 Is Not Unconstitutional Under the Void-for-Vagueness
Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Military-Force Authorization Statutes Are Not Susceptible to
Vagueness Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Section 1021 Is Not Impermissibly Vague. . . . . . . . . . . . . . . . . . . . . . . . . . 21
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 2 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
3/30
Table of Authorities
Cases:
A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233 (1925). . . . . . . . . . . . . . . . . 19
Allen v. Wright, 468 U.S. 737 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
American Communications Assn v. Douds, 339 U.S. 382 (1950). . . . . . . . . . . . . . . . . . . . . 22
American Insurance Assn v. Garamendi, 539 U.S. 396 (2003). . . . . . . . . . . . . . . . . . . . . . . . 4
Amnesty Intl USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . 7, 8, 9
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Betancourt v. Bloomberg, 448 F.3d 547 (2d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Boumediene v. Bush, 553 U.S. 723 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20
Brache v. Westchester County, 658 F.2d 47 (2d Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219 (2d Cir. 2006).. . . . . . . . . 24
Cannon v. University of Chicago, 441 U.S. 677 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Chicago & Southern Air Lines v. Waterman S.S. Corp. , 333 U.S. 103 (1948). . . . . . . . . . . . . 4
City of Los Angeles v. Lyons, 461 U.S. 95 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Coates v. City of Cincinnati, 402 U.S. 611 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Connally v. General Construction Co., 269 U.S. 385 (1926).. . . . . . . . . . . . . . . . . . . . . . . . . 22
Dames & Moore v. Regan, 453 U.S. 654 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Duparquet Co. v. Evans, 297 U.S. 216 (1936).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Edelman v. Lynchburg College, 535 U.S. 106 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Evans v. United States, 504 U.S. 255 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957). . . . . . . . . . . . . . . . . . 2
Grayned v. City of Rockford, 408 U.S. 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Haig v. Agee, 453 U.S. 280 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Helco Prods. Co. v. McNutt, 137 F.2d 681 (D.C. Cir. 1943). . . . . . . . . . . . . . . . . . . . . . . . . . 17
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). . . . . . . . . . . . . . . . . . . . passim
ii
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 3 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
4/30
Jordan v. DeGeorge, 341 U.S. 223 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 130 S. Ct. 2433 (2010). . . . . . . . . . . . . . 2
Kinnell v. Graves, 265 F.3d 1125 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Laird v. Tatum, 408 U.S. 1 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
LeDuc v. Tilley, No. 05cv157, 2005 WL 1475334 (D. Conn. June 22, 2005). . . . . . . . . . . . . 20
In re Liberatore, 574 F.2d 78 (2d Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Lorillard v. Pons, 434 U.S. 575 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 17
Microsoft Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238 (2011). . . . . . . . . . . . . . . . . . . . . . . . 2
Mistretta v. United States, 488 U.S. 361 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
National Lead Co. v. United States, 252 U.S. 140 (1920). . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Prize Cases (The Amy Warwick), 67 U.S. (2 Black) 635 (1863). . . . . . . . . . . . . . . . . . . . . . . . 4
Reno v. ACLU, 521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Saxbe v. Bustos, 419 U.S. 65 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sompo Japan Ins. Co. of America v. Union Pacific R. Co., 456 F.3d 54 (2d Cir. 2006). . . . . 2
In re Territo, 156 F.2d 142 (9th Cir. 1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Clark, 582 F.3d 607 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). . . . . . . . . . . . . . . . . . . . 4
United States v. Faase, 265 F.3d 475 (6th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Leon, 203 F.3d 162 (2d Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Midwest Oil Co., 236 U.S. 459 (1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. National Dairy Products Corp., 372 U.S. 29 (1963). . . . . . . . . . . . . . . . . . 21
United States v. Payden, 598 F. Supp. 1388 (S.D.N.Y. 1984). . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Williams, 553 U.S. 285 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5
Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Virginia v. Hicks, 539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). . . . . . . . . . . . . . . . . . . . . . . . 4
Zemel v. Rusk, 381 U.S. 1 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 4 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
5/30
Statutes, Rules, and Legislative History:
10 U.S.C. 948a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 U.S.C. 948c.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Pub. L. No. 102-1, 105 Stat. 3 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3
Pub. L. No. 107-243, 116 Stat. 1498. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act of Apr. 25, 1898, ch. 189, 30 Stat. 364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Act of June 18, 1812, ch. 102, 2 Stat. 755. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Act of May 13, 1846, ch. 16, 9 Stat. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Joint Resolution of Dec. 11, 1941, ch. 564, 55 Stat. 796. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Joint Resolution of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384. . . . . . . . . . . . . . . . . . . 19
Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Fed. R. Evid. 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fed. R. Evid. 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14
147 Cong. Rec. S9949-51 (Oct. 1, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Secondary Sources:
Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on
Terrorism, 118 Harv. L. Rev. 2047 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527
(1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iv
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 5 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
6/30
Preliminary Statement
Following the hearing of March 29, 2012, and pursuant to this Courts order, the
government respectfully submits this supplemental memorandum in opposition to
plaintiffs motion for a preliminary injunction. As explained below and in the governments
initial memorandum, the challenged statute, section 1021 of the National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011)
(the NDAA), is a codification of the governments pre-existing authority to detain certain
persons under the 2001 Authorization for Use of Military Force, Pub. L. No. 10740, 115
Stat. 224 (Sept. 18, 2001) (the AUMF). As such, it must be read against the backdrop of
existing Executive practice and court decisions, which clarify the scope of section 1021.
Plaintiffs constitutional challenge, and their alleged fear that they will be subject to
detention under this statute, are based on an ungrounded and inaccurate interpretation of
this law that ignores its history and its context. They can establish no credible threat that
section 1021, as correctly interpreted, will be enforced against them. Therefore, they lack
standing and their motion for a preliminary injunction must be denied.
Argument
A. Section 1021 Codifies the Detention Authority Conferred by the AUMF, andMust Be Read Against the Background of Existing Executive Practice
As described in the governments opening brief, section 1021 affirms and codifies the
detention authority conferred by the AUMF. Govts Mem. of Law in Opp. to Pls. Mot. for
Prelim. Inj. dated Mar. 26, 2012 (Govt Mem.) 7-9. It is explicit on the face of section 1021
that it only affirms that the AUMF includes authority to detain certain persons; it is
further explicit that section 1021 was not intended to limit or expand the governments
authority or the scope of the AUMF. NDAA 1021(a), (d). Those understandings were
reiterated by the President upon signing the legislation. Statement by Pres. Barack Obama
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 6 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
7/30
upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec. 31, 2011) (Signing Statement).
This Courts observation that Congress writes legislation for a reason, Transcript of
March 29, 2012 (Tr.) 247, is surely true, but the text of section 1021 makes clear that
Congress passed the statute solely to place its imprimatur on the pre-existing AUMF
detention authority asserted by the President, authority that the courts had upheld and
further refined in numerous legal challenges brought by detainees. It is well-established
that in considering a codification of existing laws, courts should not infer that Congress
. . . intended to change their effect. Sompo Japan Ins. Co. of America v. Union Pacific R.
Co., 456 F.3d 54, 64 (2d Cir. 2006) (quoting Fourco Glass Co. v. Transmirra Products Corp.,
353 U.S. 222, 227 (1957) (alterations omitted)), abrogated on other grounds,Kawasaki
Kisen Kaisha Ltd. v. RegalBeloit Corp. 130 S. Ct. 2433 (2010). Nor is it unusual for
Congresss reason for legislating to consist of codifying existing understandings. Microsoft
Corp. v. i4i Ltd. Partnership, 131 S. Ct. 2238, 2249 n.8 (2011) (Congress meant to codify
[judge-made law], not to set forth a new [standard] of its own making); In re Liberatore,
574 F.2d 78, 86 (2d Cir. 1978). That Congress did just that here is demonstrated by its
clear statements that its reason was to affirm, codify, and make explicitrather than to
limit or expandthe governments authority to detain individuals pursuant to the AUMF.1
Plaintiffs argument that section 1021 is obviously broader than the AUMF, Pls.1
Post-Hrg. Mem. 14, ignores the fact that section 1021 is expressly no broader than the
AUMF. Their contention that section 1021 cannot be read to state the earlier Congresss
intent in the AUMF misses the point: the Supreme Court already determined that
Congress, in enacting the AUMF, meant to include detention authority as part of themilitary force it authorized, Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality); the
2011 Congress did not purport to state the 2001 Congresss intent, but instead to affirm the
scope of that authority as interpreted by the courts and as articulated by Executive
practice.
Also relevant to the scope of section 1021 is the legislative history of the AUMF itself.
As originally proposed, the AUMF would have authorized the Executive to use force to
deter and pre-empt any future acts of terrorism or aggression against the United States.
(continued...)
2
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 7 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
8/30
In doing so, Congress acted against the background of existing Executive practice
upheld by the courtswhich accordingly informs the meaning of the statute. That principle
is well established: Congress is presumed to have legislated with knowledge of such an
established usage of an executive department of the government, and when it does so it
amounts to an implied legislative recognition and approval of the executive construction of
the statute. National Lead Co. v. United States, 252 U.S. 140, 146-47 (1920); accord
United States v. Bailey, 34 U.S. (9 Pet.) 238, 256 (1835) (Congress must be presumed to
have legislated under this known state of the laws and usage of the treasury department
. . . [and] [t]he language of the act . . . should, then, be construed with reference to this
usage.). The relevant practices of the Executive Branch and the Executive Branchs
interpretation of the law through its implementation form background understandings
that Congress is presumed to preserve, not abrogate, and therefore place a gloss on
Congresss action in enacting a particular provision and provide a presumptive default.
United States v. Wilson, 290 F.3d 347, 356-57 (D.C. Cir. 2002) (quotation marks and
alterations omitted). Thus, the courts have adopted the wise and quieting rule that, in
determining the meaning of a statute or the existence of a power, weight shall be given to
the [Executives] usage itself,even when the validity of the practice is the subject of
investigation. United States v. Midwest Oil Co., 236 U.S. 459, 472-73 (1915); see Lorillard
v. Pons, 434 U.S. 575, 580 (1978); Saxbe v. Bustos, 419 U.S. 65, 74-75 (1974); see also
(...continued)
1
147 Cong. Rec. S9949-51 (daily ed. Oct. 1, 2001). Congress, however, limited the force
authorization to the use of force in order to prevent any future acts of international
terrorism against the United States by such nations, organizations, or persons (i.e., those
that the President determined planned, authorized, committed, or aided the [Sept. 11,
2001 attacks] or harbored such organizations or persons). 115 Stat. 224 (2001). This
history belies plaintiffs claims that section 1021, which neither limits nor expands the
scope of the AUMF, somehow authorizes the detention of persons based on their activities
in connection with groups other than al-Qaeda, the Taliban, or associated forces.
3
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 8 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
9/30
Mistretta v. United States, 488 U.S. 361, 408 (1989) (Our principle of separation of powers
anticipates that the coordinate Branches will converse with each other on matters of vital
common interest.).
The rule of interpreting statutes in light of prior Executive practice applies even more
strongly in the areas of foreign affairs, national security, and war powers, where the
President has broad authority independent of congressional enactments.American
Insurance Assn v. Garamendi, 539 U.S. 396, 414-15 (2003); Chicago & Southern Air Lines
v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 319-21 (1936);Prize Cases (The Amy Warwick), 67 U.S. (2 Black) 635,
668-70 (1863). [W]here there is no contrary indication of legislative intent and when . . .
there is a history of congressional acquiescence in conduct of the sort engaged in by the
President, Congress may be seen as invit[ing] the exercise of that independent
presidential responsibility in the areas of foreign policy and national security. Dames
& Moore v. Regan, 453 U.S. 654, 678-79 (1981) (quoting Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring), and Haig v. Agee, 453 U.S. 280,
291 (1981)). Thus, when Congress acts against a longstanding and officially promulgated
view that the Executive has [a certain] power . . . for reasons of national security and
foreign policy, and le[aves] [that power] untouched, it has implicitly approved it. Id. at
680, 682 n.10 (quotation marks omitted); accordHaig, 453 U.S. at 297-98, 301 (when there
is congressional awareness of the Executive policy in foreign affairs, and no evidence of
any intent to repudiate it, courts conclude that Congress . . . adopted the longstanding
administrative construction); Zemel v. Rusk, 381 U.S. 1, 11-12 (1965).
In this case, the Executives interpretation and application of the detention authority
conferred by the AUMF has been expressed in various related forms over the years,
4
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 9 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
10/30
including the Department of Defenses 2004 definition of a detainable person as one who
was part of or supporting al-Qaeda, Taliban, or associated forces, see Govt Mem. 5 n.4,
and, later, the governments March 2009 Memorandum to the District of Columbia district
courta document that was not merely a routine act of litigation advocacy, but the
Executives formal statement of the definitional framework governing detention in the
Guantanamo Bay cases. Congress was obviously aware of the Executives interpretation,2
as it adopted the language of the memorandum nearly verbatim into section 1021. Govt
Mem. 7-8; see Lorillard, 434 U.S. at 581 (where, as here, Congress adopts a new law
incorporating sections of a prior law, Congress normally can be presumed to have had
knowledge of the interpretation given to the incorporated law, at least insofar as it affects
the new statute (emphasis added)); National Lead, 252 U.S. at 146-47; Wilson, 290 F.3d at
356-57. Similarly, Congress is presumed to have known of judicial precedentshere, the
multiple decisions of the D.C. Circuit endorsing the governments detention standard, Govt
Mem. 6-7 & n.6, 18and to be expressing approval of that background law when it acts.
Edelman v. Lynchburg College, 535 U.S. 106, 116-17 (2002); Cannon v. University of
Chicago, 441 U.S. 677, 696-98 (1979).
Contrary to plaintiffs arguments, Pls. Post-Hrg. Mem. 8-9, the government does not
assert that the March 2009 Memorandum is itself authority to detain any personthat
authority was established by the AUMF, which the Supreme Court held in Hamdi v.
As directed by the court, Order in Hamlily, No. 05-cv-0763, docket no. 154 (D.D.C.
2
Feb. 11, 2009) (seeking clear, uniform understanding of core controlling legal standard
of detention authority to be applied in all cases), and as plaintiffs counsel acknowledged,
Tr. 255. Thus contrary to plaintiffs suggestion that it was confined to the Hamlily case,
Pls. Post-Hrg. Mem. 8-9, in fact it was submitted in all then-pending Guantanamo habeas
cases and has been consistently relied on by the government in later matters as well. As
described in the governments opening brief, that framework did not arise from a vacuum:
in 2004, the government had articulated the AUMF standard in similar, but broader,
terms. Govt Mem. 5 n.4.
5
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 10 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
11/30
Rumsfeld authorized detention of a U.S. citizen who was part of or supporting forces
hostile to the United States or coalition partners. 542 U.S. 507, 518, 526 (2004) (plurality)
(quotation marks omitted); see Boumediene v. Bush, 553 U.S. 723, 733 (2008) (Hamdi
plurality opinion regarding AUMF detention authority joined by five Justices). But
contrary to plaintiffs repeated and unsupported contentions, Pls. Post-Hrg. Mem. 7, 8-9,
13-14the Court expressly left open the permissible bounds of that detention authority
to be determined in subsequent cases. Hamdi, 542 U.S. at 516, 522 n.1; see Hamlily v.
Obama, 616 F. Supp. 2d 63, 66 & n.2 (D.D.C. 2009). The March 2009 Memorandum
expresses the Executive branchs interpretation and application of the detention authority
granted by the AUMF and recognized by Hamdi; and subsequent D.C. Circuit decisions in
Guantanamo habeas cases have endorsed the governments detention standard, e.g.,
Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); see Govt Mem. 6-7 & n.6, 18, and
themselves interpreted its scope, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir.
2010) (purely independent conduct of a freelancer is not enough to justify detention as
part of al-Qaeda); Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010) (same).
3
It is that interpretation and application that Congress affirmed by enacting section
1021: by taking the language of the Executives definitional framework set forth in the
March 2009 Memorandum nearly word for word, Congress approved the interpretations
Plaintiffs inaccurately suggest that the D.C. Circuit has abrogated the overall3
detention standard offered by the government. Pls. Post-Hrg. Mem. 12. To the contrary,the case they cite, Uthman v. Obama, joins the precedents that endorse and apply the gov-
ernments definitional framework. 637 F.3d 400, 402-03 (D.C. Cir. 2011); Govt Mem. 6-7 &
n.6, 18 (citing cases). Uthman merely rejected the assertion that a person must be part of
al-Qaedas command structure to be part of al-Qaeda and thus detainable. That
refinement to the detention standard hardly abrogates the standard itself. Plaintiffs
contention that Uthman rel[ied] upon a material support standard is entirely meritless,
as the court stated expressly in the footnote plaintiffs cite that it was not even considering
that standard as it was not at issue. 637 F.3d at 402 n.2.
6
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 11 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
12/30
the interpretation expressed in that same memorandum, as well as the interpretation of
the D.C. Circuit opinions endorsing the governments frameworkthat went along with it.4
Accordingly, section 1021 must take meaning from that history and contextincluding
that the detention authority is informed by principles of the law of war, when appropriate
by analogy to traditional international conflicts; that the term associated forces is to be
understood as based on principles of co-belligerency in the law of war; that the substantial
support prong does not permit detention of those who provide unwitting or insignificant
support to al-Qaeda, the Taliban, or associated forces; and that the latter two concepts
will develop in the context of applying law-of-war principles to concrete facts in individual
cases going forward. Govt Mem. 4-7 & n.5.
B. Plaintiffs Testimony Fails to Establish That Any Plaintiff Has Standing toChallenge Section 1021
A correct understanding of the statute and the Executives interpretation and
application of it demonstrates that plaintiffs claims of standing are meritless. As the
government explained in its opening brief, to establish standing, plaintiffs must show that
there is an objectively reasonable likelihood that they will be deemed covered persons
under section 1021,Amnesty Intl USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011),pet. for
As this Court noted at argument, if a word is obviously transplanted from another4
legal source, whether the common law or other legislation, it brings the old soil with it.
Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Although Evans
and other cases address statutory terms adopted from the common law, from the quotation
it is evident that Justice Frankfurter would apply the same maxim to words adopted fromother sources as well, contra Pls. Post-Hrg. Mem. 4 n.1. Indeed, Frankfurter quoted
Justice Cardozo: words may acquire scope and function from the history of events which
they summarize or from the purpose which they serve. . . . They came into the statute
freighted with the meaning imparted to them by the mischief to be remedied and by
contemporaneous discussion. In such conditions history is a teacher that is not to be
ignored. 47 Colum. L. Rev. at 536-37 (quotingDuparquet Co. v. Evans, 297 U.S. 216, 220,
221 (1936) (alterations omitted)). In particular, [t]he peculiar idiom of . . . administrative
practise [sic] often modifies the meaning that ordinary speech assigns to language. Id.
7
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 12 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
13/30
cert. filed (Feb. 17, 2012) (No. 11-1025), and that they face a credible and imminent
threat of enforcement, Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010);
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Moreover, to succeed on their
motion for a preliminary injunction, plaintiffs must show that it is likely that they can
meet these standards. See Govt Mem. 2 (citing cases). Based on their testimony, plaintiffs
have not carried their burdenwhich is that much greater because they seek to enjoin an
act of Congress. See id. 3 (citing cases). Not one of the four plaintiffs whose testimony is
before the CourtChristopher Hedges, Kai Wargalla, Alexa OBrien and Birgitta
Jonsdottirhas shown that he or she faces a credible and imminent threat of
enforcement under section 1021. Accordingly, plaintiffs fear that section 1021 will be5
applied against them is unreasonable, and their motion for a preliminary injunction should
be denied.
1. Plaintiffs Asserted Fear That Section 1021 Will Be Applied Against ThemIs Based on Implausible Interpretations of the Statute and the Documentson Which They Rely
As the government explained in its opening brief, plaintiffs cannot establish standing
if their fear that section 1021 will be applied against them is fanciful, paranoid, or
otherwise unreasonable. Govt Mem. 27 (quotingAmnesty Intl, 638 F.3d at 134). Their
testimony reveals that their purported fears are all of those things.
Christopher Hedges. Hedges interprets section 1021 as authorizing the
Plaintiffs assertion that [t]he [Amnesty Intl] plaintiffs faced a substantially greater
5
burden in establishing injury in fact than the plaintiffs here face, because the injury the
[Amnesty Intl] plaintiffs alleged was indirect, Pls. Post-Hrg. Mem. 17, misses the point.
UnderAmnesty Intl and the other cases cited above, plaintiffs have the burden of
establishing that they face a credible and imminent threat of injury. And it is this
burden that plaintiffs have failed to meet. Furthermore, plaintiffs observation that the
government has not offered any testimony of its own, e.g., id. 27; Tr. 15-16, is irrelevant.
Plaintiffs have the burden of proof as to standing and entitlement to a preliminary
injunction, and so it is plaintiffs (not the government) who must proffer testimony.
8
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 13 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
14/30
military to seize and detain citizens and deny legal recourse to anyone who defies
the corporate state, as allow[ing] . . . the proverbial black van to be sent to any
street in America and to pick up civilians and detain them, and removing any
legal protection for those who dissent or oppose the crimes of state. Tr. 194-97. A
better example of a fanciful or paranoid reading of the statute is difficult to
imagine, and indeed Hedges claims he is now fearful if [a]ny kind of language [is
uttered] in [his] presence that countenances violence against the United States. Id.
174-75, 177, 186. Hedges also interprets the phrase associated forces in section
1021 as encompassing all of the groups within the state departments list of
designated terrorist organizations, as well as other groups that have . . . very
tangential relationships with the groups on the list, id. 197-98; accord Hedges Aff.
27, a conclusion that is unreasonable in that it is inconsistent with the definition
of associated forces advocated by the government and adopted by the courts, adefinition that is based on the law of war. See, e.g., Hamlily, 616 F. Supp. 2d at 74-
75 & n.17 (For purposes of these habeas proceedings, the Court interprets the term
associated forces to mean co-belligerents as that term is understood under the law
of war. The government itself advocates this reading of the language. . . . Associated
forces do not include terrorist organizations who merely share an abstract
philosophy or even a common purpose with al Qaedathere must be an actual
association in the current conflict with al Qaeda or the Taliban.).
Kai Wargalla. Wargallas purported fearreally, conjecturethat section
1021 will be applied against her is based primarily on her understanding of a
document purportedly issued by the City of London Police on December 2, 2011,
titled Terrorism/Extremism update for the City of London Business Community
(the update). See, e.g., Wargalla Aff. 5-7, 13-15 & Att. A; Tr. 122-23. Wargalla
reads the update as drawing a connection between Occupy Londona group with
which she is involvedand al-Qaeda. Tr. 122-23. The update, however, does no such
thing. It provides information on four distinct groups, without suggesting a link
among any of them. See Wargalla Aff. Att. A. The update certainly does not, as
Wargalla claims, put Occupy London and al-Qaeda in the same category, Tr. 123,
much less show that they are associated forces. Moreover, the update was issued
by a foreign municipal police department; it therefore cannot be read as suggesting6
Plaintiffs describe the update as a government watch list, Pls. Post-Hrg. Mem. 26,6
(continued...)
9
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 14 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
15/30
that the U.S. government will apply section 1021 against Wargalla (or anyone else).
Furthermore, like Hedges, Wargalla interprets the phrase associated forces in
section 1021 as potentially encompassing any group that has been described as a
terrorist organization, see Wargalla Dep. Tr. 37-39a clear misunderstanding of
the phrase, seeinfra Part B.2.
Alexa OBrien. OBrien cites numerous documents as allegedly supporting
her asserted fear that section 1021 will be applied against her. Most of the
documents, however, reflect the actions and writings of private individuals (i.e., not
the government). See, e.g., Court Exs. 1, 2, 4, Q; Tr. 43, 47-50, 56-57, 62, 95-99.7
Moreover, OBriens apparent fear that the government may view these documents
as evidence of link between her and al-Qaeda, the Taliban, or associated forces is
paranoid and unreasonable. See, e.g., Court Ex. Q (emails stating that neither
the sender nor the recipient was aware of any concrete connections between USDay of Ragea group with which OBrien is involvedand fundamentalist
Islamist movements); Court Ex. 2 (article asserting that radical Islamists had
sought (unsuccessfully) to incite violence in connection with the first day of Occupy
Wall Street, September 17, 2011, which the article refers to as the US Day of
Rage). As such, these documents do not support OBriens professed fear that the
government will apply section 1021 against her. The two remaining documentsa
press release describing a statement allegedly made to OBrien by an unidentified
federal employee (the press release), Court Ex. U; Tr. 100-02, and a report issued
by the Department of Homeland Security (the DHS report), Court Ex. 5also do
not support OBriens alleged fear. The press release states, in relevant part, [t]he
federal government erroneously considers the organizers of US Day of Rage as
likely high level Anonymous, while the DHS report states, in relevant part,
(...continued)6
but provide no support for that characterization. The document purports to have been
issued by a local police department, apparently as an informational bulletin for the
business community of the City of London (i.e., the London financial district), andWargalla testified that she do[es]nt know whether the UK government had anything to do
with the issuance of th[e] update[.] Tr. 139.
To the extent that OBrien contends that these documents indicate that the7
government was directing the actions of the private individuals, her position is
unsupported, conjectural, and unreasonable. See Court Exs. 1, 2, 4, Q. Indeed, OBrien
conceded she does not know whether the government was involved in the creation of these
documents or the actions they reflect. Tr. 95-99.
10
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 15 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
16/30
Details On Anonymous Upcoming US Operations: 17 September 2011; Occupy
Wall Street; US Day of Rage. Neither of these documents alleges, or alleges facts8
supporting the conclusion, that these groups qualify as associated forces under
section 1021. None of these groups is alleged to be armed or to have entered the
fight alongside al-Qaeda and be co-belligerent with al-Qaeda in hostilities against
the United States or its coalition partners. See Govt Mem. 23. Accordingly, neither
of these documents can fairly be construed as suggesting that section 1021 will be
applied against OBrien.
OBrien also testified that, in October 2011, her then-employer told her that
his contacts in the government were asking about [her]. Tr. 66. Yet OBrien never
askedand was never toldwho the purported contacts were and what they had
asked about. Id. 67-68, 99-100. Notably, OBriens former employer performed work
for the federal government, and one of OBriens job duties was to perform relatedwork. Id. 65-66, 100. Therefore, OBriens suggestion that the inquiry had something
to do with her journalistic activities or political advocacy (as opposed to, for
example, her job performance) is mere speculation. Moreover, plaintiffs assertion
that OBrien was forced to leave her employment because of repeated contacts by
federal agents to her employer questioning her advocacy activities, Pls. Post-Hrg.
Mem. 25, is factually incorrect. OBrien testified that she voluntarily left her job
because of her employers reaction to the press around Occupy Wall Street. Tr. 65.
Birgitta Jonsdottir. Jonsdottir testified that she fears that section 1021 will
be applied against her because the U.S. government will view her support for
WikiLeaks as providing substantial support to terrorists and/or associated
forces. See Tr. 154. But substantially supported in section 1021 refers only to
persons who provided substantial support to al-Qaeda, Taliban, or associated forces;
the record is devoid of evidence that WikiLeaks falls within that category. See infra
Plaintiffs misleadingly imply the DHS report is a terrorist watch report. Pls. Post-8
Hrg. Mem. 25. In fact, the document purports to be a Bulletin concerning the upcomingactivities of two groups, Anonymous and Adbusters. See Court Ex. 5. Moreover,
plaintiffs assertions (for which they offer no citation) that DHS has included . . . U.S. Day
of Rage . . . in its investigation of terrorist organizations, Pls. Post-Hrg. Mem. 3, and that
U.S. Day of Rage . . . has been investigated by the Department of Homeland Security, id.
4, find no support in the record. Although OBrien asserted she had had a conversation
with a journalist who described an unspecified memo supposedly evidencing an unnamed
government agencys surveillance of US Day of Rage, she admitted she had never seen that
putative memo nor did she know its contents. Tr. 69.
11
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 16 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
17/30
Part B.2. Accordingly, whatever support Jonsdottir has provided to WikiLeaks is
irrelevant. Her alleged fear is based on a fundamental misreading of the statute.
In sum, because plaintiffs fears of enforcement are based on fanciful, paranoid, or
otherwise unreasonable interpretations of section 1021 and the documents on which they
rely, plaintiffs have failed to establish standing. Plaintiffs have also failed to establish9
standing for the additional reasons set forth below.
2. Most of Plaintiffs Activities (and in the Case of the Non-Citizen Plaintiffs,All of Their Activities) Relate to Groups Other Than al-Qaeda, theTaliban, or Associated Forces
By its terms, section 1021(b)(2) applies only to persons who are a part of or provided
substantial support to al-Qaeda, the Taliban, or associated forces. As the government
explained in its opening brief, the phrase associated forces encompasses only
co-belligerents (as that term is understood in light of principles of the law of war),
meaning, as interpreted by the Executive, an organized armed group that has entered the
fight alongside al-Qaeda and is a co-belligerent with al-Qaeda or Taliban forces in
hostilities against the United States or its coalition partners. See Govt Mem. 5-6, 23.
Based on their testimony, neither Wargalla nor Jonsdottir could possibly be deemed
to fall within the scope of section 1021. Putting aside the purely expressive nature of their
activities, none of the activities they have described relates to al-Qaeda, the Taliban, or an
associated force as defined by the Executive. Wargalla testified that her activities relate to
Occupy London, WikiLeaks, and Revolution Truth. Tr. 116-17, 133-34. None of these is
alleged to be an armed group, much less a co-belligerent with al-Qaeda or the Taliban
Plaintiffs also assert that testimony showed or [t]he record also shows certain9
facts based on hearsay documents offered into evidence. E.g., Pls. Post-Hrg. Mem. 3. Those
documents, and testimony based on them, were admitted solely to show the witnesses
states of mind, and cannot be considered for their truth. Fed. R. Evid. 801, 802.
12
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 17 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
18/30
against the United States or its coalition partners. Similarly, Jonsdottir testified that her10
activities relate exclusively to WikiLeaks. See Tr. 148-52. Because there is nothing to
support the conclusion that any of these groups is an associated force, the nature of
Wargalla and Jonsdottirs activities on their behalf is irrelevant. These plaintiffs cannot
establish that they face a credible and imminent threat of enforcement under section
1021.
Similarly, some of the activities OBrien and Hedges described relate to groups that
plaintiffs have acknowledged are not armed and co-belligerent with al-Qaeda or the
Taliban, such as US Day of Rage and WL Central. See, e.g., OBrien Aff. 3-4, 10-11; Tr.
40-42, 56. Others relate to groups that plaintiffs have not shown meet the requirements of
associated forces, including Hamas and the Kongra-Gel. See Hedges Aff. 14, 17, 19-20;
Tr. 170-72. Such groups do not qualify as associated forces simply because they commit
acts of terrorism. Govt Mem. 24 n.13. OBrien and Hedges few remaining activities are
limited to OBriens journalistic activities concerning detainees at Guantanamo Bay, see
OBrien Aff. 6-8, 27-28; Tr. 70-71, 77, and Hedges after-the-fact reconstructs of how
al-Qaeda planned and executed specific attacks and other news reports, see Hedges Aff.
15-16; Tr. 157-58, 183-85. The connection between these activities and al-Qaeda, the
Taliban, and associated forces is too attenuated to support a credible fear of
enforcement.
Wargalla testified that Revolution Truth conducts online live panel discussions, and10
that, in the future, it may refrain from inviting members of Hamas to participate in these
discussions. See Tr. 117, 125, 141-42. Plaintiffs, however, have not alleged or offered any
evidence to suggest that Hamas is a co-belligerent of al-Qaeda or the Taliban. See Govt
Mem. 24 n.13. Accordingly, this testimony is irrelevant. Moreover, even if Hamas were an
associated force, Wargalla acknowledged that Revolution Truth has never made any
concrete plans to have members of Hamas participate in panel discussions, Tr. 142, thus
rendering her testimony entirely speculative.
13
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 18 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
19/30
3. The Presidents Signing Statement Precludes a Finding of Standing as toEither of the U.S. Citizen Plaintiffs
In the Signing Statement, the President made clear that my Administration will not
authorize the indefinite military detention without trial of American citizens. NDAA
Signing Statement, 2011 U.S.C.C.A.N. at S12. Accordingly, neither of the U.S. citizen
plaintiffs, OBrien and Hedges, can show imminent injury.
During the March 29, 2012, hearing (the PI hearing), the Court questioned whether
the signing statement left open the possibility that Hedges and OBrien could be tried
before a military commission. Tr. 237, 244. It does not. Under the Military Commissions
Act of 2009, the jurisdiction of the military commissions is limited by its express terms to
non-citizens, 10 U.S.C. 948c & 948a(1), and applies only to offenses committed in the
context of and associated with hostilities, id. 950p(c).
Finally, any speculation that a future president may reverse the current policy and
apply section 1021 against U.S. citizens, see Tr. 121-3, is insufficient to confer standing.
See Lujan, 504 U.S. at 560-61 (injury must be imminent, not conjectural or hypothetical
(emphasis added; quotation marks omitted)); City of Los Angeles v. Lyons, 461 U.S. 95, 104-
06, 108 (1983) (speculation that the police would take action against the plaintiff in the
future was insufficient to confer standing). President Obama has said that his
Administration will not apply section 1021 in a way that implicates Hedges or OBrien (and
as discussed below, infra Part B.4, there is nothing to suggest that section 1021 would be
applied against them in any event). Therefore, neither Hedges nor OBrien can establish
that they face a credible and imminent threat of enforcement under section 1021.
4. The Governments Enforcement History Under the AUMF and Section 1021Precludes a Finding That Any Plaintiff Has Standing
For years, the government has had (and has viewed itself as having) the detention
14
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 19 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
20/30
authority that is now codified in section 1021. See Govt Mem. 5 & n. 4. And since well
before the NDAA, plaintiffs have been engaging in the same activities that they now claim
they fear will lead them to be deemed covered persons under section 1021. Indeed,
Hedges has been engaged in such activities for twenty years, Hedges Aff. 10; Jonsdottir
since early 2010, see Tr. 148-55; Wargalla since at least January 2011, see id. 133-34; and
OBrien since at least April 2011, seeid. 87.
Plaintiffs, however, have not identified a single instance in which the government has
exercised its detention authority under the AUMF or section 1021 against any of themor
anyone else who has engaged in the same type of conduct. In fact, OBrien and Wargalla
were unable to identify a single instance in which the U.S. government has taken, or
threatened to take, any action against them or the groups with which they are involved.
Tr. 90-93 (OBrien), 137 (Wargalla). And although Hedges testified that he was detained
for a few hours by military authorities on one occasion in 1991ten years before the
AUMF provided the authority at issue herehe admitted that this was because he had
been reporting outside of the press pool system, not because he had been providing support
for belligerents in an armed conflict with the United States. Id. 199-201.11
Nor did plaintiffs identify at the PI hearing a single instance in which the government
Hedges described one instance in which he was detained by non-military personnel.11
Hedges testified that shortly after 9/11, he was detained upon his arrival at Newark
Airport as a result of his purported inclusion on a watch list. Tr. 179-80. But Hedges also
testified that he was detained for only about one hour. Id. Moreover, Hedges has offerednothing to suggest that this short detention was the result of his journalistic activities
involving al-Qaeda, the Taliban, or associated forces. See id. In any event, this temporary
detentionwhich occurred approximately ten years agodoes not support a reasonable
fear of imminent enforcement, particularly since Hedges has continued to engage in the
same activities for the last ten years. Plaintiffs assertion (again without citation) that
Hedges testified that he has been repeatedly detained at airports, Pls. Post-Hrg. Mem. 25
(emphasis added), is unsupported and factually incorrect. Even if true, the assertion would
be irrelevant without information about the reasons for any such travel-related incidents.
15
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 20 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
21/30
has exercised its detention authority under the AUMF or section 1021 against anyone for
engaging in independent journalistic activities or public advocacy. In fact, as government12
counsel represented during the PI hearing, the government has never taken the position
that a person could be made subject to its detention authority under the AUMF or section
1021 merely for engaging in independent journalistic activities or public advocacy, and it is
not taking a contrary position here. Tr. 233-34. The fact that the government has had the
authority now described in section 1021 for yearsand that plaintiffs have not identified a
single instance in which the government has sought to use that authority against any
individual for engaging in independent journalistic activities or public advocacyis
dispositive of the standing issue here: against this backdrop, plaintiffs cannot show that
they face a credible and imminent threat of having section 1021 applied against them.
C. Injunctive or Declaratory Relief Against Application of Section 1021 Would BeInconsistent with the Standards Required by Article III of the Constitution
During the PI hearing, the Court asked whether, if it were to find that section 1021
could be applied unconstitutionally, it could declare either that (1) the statute cannot
constitutionally be applied to First Amendment protected speech; or (2) the statute cannot
be applied to the conduct set forth in [plaintiffs] certifications. Tr. 291. The Court further
questioned whether it could give plaintiffs and others comfort that section 1021 will not
be applied in a way that captures protected speech. Id. 272-75. But many facially valid
statutes can be applied unconstitutionally. Speculating about that risk does not establish
standing. And where, as here, none of the plaintiffs has standing, the Court lacks the
authority to issue any kind of declaratory or injunctive relief.
OBrien stated, based only on a media-related blog, that Sami al-Hajj was detained12
for being a journalist. Tr. 104-05. That hearsay-based speculation (admitted only to show
OBriens state of mind, not for its truth) is entitled to no weight.
16
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 21 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
22/30
As discussed above, plaintiffs have failed to establish that any plaintiff has standing,
supra Part B, and accordingly there is no justiciable case or controversy before the Court.
See Lujan, 504 U.S. at 560. In this context, in the absence of a case or controversy, a
declaration from the Court as to how section 1021 can or cannot be applied to their alleged
conduct would constitute an improper advisory opinion. See United States v. Leon, 203 F.3d
162, 164 (2d Cir. 2000) (declining to address the merits of the claim because there was no
case or controversy, and therefore any opinion [that the court] were to render on the
[merits] would be merely advisory); Laird v. Tatum, 408 U.S. 1, 13-14 (1972). The judicial
power may not be invoked to give comfort to those who lack standing but subjectively fear
enforcement of a federal law: no matter how much an advisory opinion would assist in
resolving conflicts or in the working out of policies and programs, or eliminating the
uncertainty of the application of federal lawin short, the comfort it would bring to
affected partiesit is still outside the power of the courts to issue. Helco Prods. Co. v.
McNutt, 137 F.2d 681, 684 (D.C. Cir. 1943); accord Laird, 408 U.S. at 13-14 (Allegations of
a subjective chill are not an adequate substitute for a claim of specific present objective
harm or a threat of specific future harm; the federal courts established pursuant to
Article III of the Constitution do not render advisory opinions. (quotation marks omitted)).
Issuing such an advisory opinion here would present especially acute harms, as doing so
would encroach on the prerogatives of coordinate branches on national security questions
at the heart of their constitutional authority, and could easily result in over-broad
pronouncements divorced from actual facts and cases, which may complicate the law or
misinterpret the scope of the law. See Allen v. Wright, 468 U.S. 737, 759-61 (1984)
(separation of powers principles counsel against finding standing in a case brought, not to
enforce specific legal obligations whose violation works a direct harm, but to seek a
17
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 22 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
23/30
restructuring of the apparatus established by the Executive Branch to fulfill its legal
duties); Holder, 130 S. Ct. at 2727 (noting lack of competence on the part of the courts in
national security and need for deference to Executive branch (quotation marks omitted)).
For these reasons, the Court also lacks authority to issue a declaration that section
1021 cannot constitutionally be applied to First Amendment protected speech. Such a
declaration would be a purely advisory opinion where, as here, no plaintiff has standing.
Moreover, even if plaintiffs had standing to pursue an as-applied challenge, the Court still
could not declare the statute unconstitutional as to First Amendment protected speech in
general. The only circumstance in which the Court could reach conduct not at issue here
would be if plaintiffs had standing and the Court were to find that section 1021 is facially
invalid. See United States v. Faase, 265 F.3d 475, 487 n.10 (6th Cir. 2001) (The
appropriate remedy for [an] as-applied challenge would be to invalidate the statute as to
[the particular plaintiff].). But, as the government explained in its opening brief, even if
plaintiffs could establish standing, their facial challenge fails because the statute has a
plainly legitimate sweep, is not unconstitutional in a substantial number of its
applications, and at most leave[s] room for uncertainty [only] at [its] periphery. See
Govt Mem. 10-14 (quoting cases); infra at 24 note 19. In any event, this discussion is
purely academic. For the reasons set forth above, there is no justiciable case or controversy
before the Court, thus precluding the Court from granting any kind of relieffacial or as
applied.
D. Section 1021 Is Not Unconstitutional Under the Void-for-Vagueness Doctrine
1. Military-Force Authorization Statutes Are Not Susceptible to VaguenessAnalysis
Although the Court should not reach it, plaintiffs vagueness challenge also fails. As
explained in the governments opening memorandum, application of vagueness doctrine to
18
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 23 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
24/30
section 1021 is misconceived, as the statute is a restatement and rearticulation of part of
a military-force authorization. Govt Mem. 14. Such authorizations of military force (which
encompass detention authority, Hamdi, 542 U.S. at 518) are always, and necessarily,
stated in general terms: given the constantly evolving nature of armed conflict, the13
governments ability to conduct military operations effectively and to succeed in its armed
conflicts requires flexibility and the ability to adjust to changing circumstances, including
the ability to identify hostile forces that were not involved at the outset or covered by
Congresss authorization. But despite the generality of historical authorizations of14
military force, no case has ever required Congress to enact such authorizations with any
particular level of specificity or to conform to the vagueness principles plaintiffs now
invoke. By extension, when Congress affirms one particular incident to war that is
included in a military-force authorization, Hamdi, 542 U.S. at 518, it similarly need not
conform to those vagueness principles.
Indeed, a military-force authorization is different in kind from the types of statutes
those that include the exaction of obedience to a rule or standard,A.B. Small Co. v.
American Sugar Refining Co., 267 U.S. 233, 239 (1925)to which vagueness principles
E.g., Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L.13
No. 107-243, 116 Stat. 1498; Authorization for Use of Military Force Against Iraq
Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991); Joint Resolution of Aug. 10, 1964, Pub. L.
No. 88-408, 78 Stat. 384 (Vietnam); Joint Resolution of Dec. 8, 1941, ch. 561, 55 Stat. 795
(Japan); Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1 (Germany); Act of Apr. 25, 1898,
ch. 189, 30 Stat. 364 (Spain); Act of May 13, 1846, ch. 16, 9 Stat. 9 (Mexico); Act of June 18,
1812, ch. 102, 2 Stat. 755 (Britain).
For example, in the Second World War, the United States engaged in military14
operations against military forces of Vichy Franceeven though Congress had not
specifically authorized the use of military force against it and despite initially maintaining
diplomatic relations with its governmentbecause it was allied with Germany and
engaged in hostilities against Britain. See Curtis A. Bradley & Jack L. Goldsmith,
Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2111-12
(2005), and sources cited at nn.286-90.
19
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 24 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
25/30
apply. Vagueness doctrine serves to give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited,Perez v. Hoblock, 368 F.3d 166, 174 (2d Cir. 2004),
but does not provide a basis for challenging a statute that does not prohibit any conduct,
Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001); accordLeDuc v. Tilley, No.
05cv157, 2005 WL 1475334 (D. Conn. June 22, 2005); United States v. Payden, 598 F. Supp.
1388, 1396 (S.D.N.Y. 1984), revd on other grounds, 759 F.2d 202 (2d Cir. 1985). Like any
military-force authorization that includes detention authority, section 1021 falls in the
latter category. It is not a criminal statute, as the Supreme Court has recognized: detention
of those engaged in hostilities against the United States serves to prevent them from
returning to the field of battle and taking up arms once again, and not as revenge [or]
punishment; it is devoid of all penal character, and the detainee is no convict. Hamdi,
542 U.S. at 518 (quotation marks omitted). Nor does it otherwise provide a rule or15
standard of conduct for any person outside the government. Under the law of war, it is
clear that those who engage in certain activities (in particular, joining an enemy force) may
be lawfully detained, and section 1021 affirms the governments authority to impose that
consequence in the present hostilities and states a definitional framework for doing so. But
it does not itself prohibit conductany more than the congressional resolution authorizing
military force against Germany in 1941 prohibited anyone from being part of the16
Wehrmacht, even though such a person was plainly subject to capture and detention. Id.;
Accordingly, the process accorded to a detainee need not meet standards for criminal15
trials.Boumediene, 553 U.S. at 783. Similarly, any scienter requirements are different,
contra Pls. Post-Hrg. Mem. 18; a conscripted member of an enemy force may undeniably be
detained.
Joint Res. of Dec. 11, 1941, ch. 564, 55 Stat. 796 (the President is hereby authorized16
and directed to employ the entire naval and military forces of the United States and the
resources of the Government to carry on war against the Government of Germany).
20
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 25 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
26/30
In re Territo, 156 F.2d 142, 143-48 (9th Cir. 1946), cited inHamdi, 542 U.S. at 518-19, 524;
Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956). Just as the bail statute inPayden
establishe[d] a framework . . . to detain an individual but [did] not prohibit conduct, 598
F. Supp. at 1396; see Kinnell, 265 F.3d at 1128, section 1021 specifies a framework for
imposing lawful consequences without itself proscribing any acts.
Therefore, section 1021 cannot be said to run afoul of vagueness doctrine. In fact,
plaintiffs entire vagueness argument is built on a paradox. They could not challenge the
AUMF itself for vagueness, as that statute, consistent with historical authorizations of
military force, grants authority to the President and does not state any standard for or
prohibition of conduct. But the AUMF includes the governments detention authority,
Hamdi, 542 U.S. at 518, and for years the government has been applying that authority
against the United States enemies in armed conflict according to the definitional
framework that it has explained to the courts. According to plaintiffs theory, by codifying
that definitional frameworkand thus providing more notice to the public about what the
government may doCongress has created an issue of vagueness, which is rooted in the
due-process concept oflack of notice. See Holder, 130 S. Ct. at 2719; United States v.
Williams, 553 U.S. 285, 304 (2008). Thus if the AUMF stood alone, the government could
continue to apply the Executives definitional framework, but once Congress endorses that
framework it becomes unconstitutional. That position is internally contradictory, and
cannot prevail.
2. Section 1021 Is Not Impermissibly Vague
In any event, properly construed, section 1021 is not unconstitutionally vague. The
strong presumptive validity that attaches to an Act of Congress has led [the Supreme]
Court to hold many times that statutes are not automatically invalidated as vague simply
21
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 26 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
27/30
because difficulty is found in determining whether certain marginal offenses fall within
their language. United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963).
Accordingly, perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity. Holder, 130 S. Ct. at 2719 (quotation marks
omitted); accordWilliams, 553 U.S. at 304. Words are incapable of mathematical
certainty, and no law is required to achieve meticulous specificity, which would come at
the cost of flexibility and reasonable breadth. Grayned v. City of Rockford, 408 U.S. 104,
110 (1972) (quotation marks omitted); accordBetancourt v. Bloomberg, 448 F.3d 547, 552
(2d Cir. 2006). Thus, even when criminal prosecutions are at issue, a statute is only
unconstitutionally vague when men of common intelligence must necessarily guess at its
meaning and differ as to its application. Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006)
(quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)). Phrases far less
definite than substantially support or associated forces have been held to be imprecise
. . . but . . . surely not incomprehensible, and thus to survive vagueness review. United
States v. Clark, 582 F.3d 607, 614 & n.11 (5th Cir. 2009) (quoting Coates v. City of
Cincinnati, 402 U.S. 611, 614 (1971), and listing phrases).17
In assessing a vagueness challenge, [t]he particular context is all important.
American Communications Assn v. Douds, 339 U.S. 382, 412 (1950). There is little doubt
that imagination can conjure hypothetical cases in which the meaning of [broad] terms will
Clark upheld immoral purpose, and (citing the list in Jordan v. DeGeorge, 341 U.S.17
223, 231 n.15 (1951)), noted other phrases held not to be vague: restraint of trade, crime
involving moral turpitude, in excess of the number of employees needed by such licensee
to perform actual services, any offensive, derisive or annoying word, connected with or
related to the national defense, psychopathic personality, willfully overvalues any
security, fair and open competition, reasonable variations shall be permitted,
unreasonable waste of natural gas, political purposes, range usually occupied by any
cattle grower.
22
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 27 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
28/30
be in nice question. The applicable standard, however, is not one of wholly consistent
academic definition of abstract terms. It is, rather, the practical criterion of fair notice to
those to whom the statute is directed. Id. Thus, a statute must be construed as a whole,
and in light of narrowing context and settled legal meanings to ensure that it does not
call for untethered, subjective judgments. Holder, 130 S. Ct. at 2720.
Read as a whole and taken in context, section 1021 is clear enough to satisfy
constitutional requirements. As the government explained in its initial brief, it is tied to
the military action against al-Qaeda and Taliban forces authorized by the AUMF,
permitting certain detention (including of those whom Hamdi recognized could be
detained) and stating a definitional framework respecting the governments detention
authority established by the AUMF. All the terms of the provision are informed by this
context, and, as previously explained, principles of the law of war provide additional
interpretive context to the phrase substantially supported and others used in section
1021. Indeed, in the context of a statute affirming the detention authority contained in an
authorization of military force, one of plaintiffs own dictionary definitions jumps out as
obviously most relevant: ASSIST , HELP . Id.; http://
www.merriam-webster.com/dictionary/support. Although that definition of support lends
itself easily to the military example given, but has nothing to do with expression, plaintiffs
somehow contend that support must mean speech independent of al-Qaeda, the Taliban,
or associated forces. Pls. Post-Hrg. Mem. 23. Common sense and the context of the18
Nothing supports (in the non-expressive sense) plaintiffs view that support has a18
primary definition that must include expression. Indeed, the m-w.com dictionary
quotation they offer is the second of six definitions, and many of the sub-definitions there
are not, or not necessarily, speech-related.
23
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 28 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
29/30
statute require otherwise.19
Although plaintiffs rely heavily on Reno v. ACLU, that case is easily distinguished. As
the Supreme Court observed, the statute at issue, banning indecent and patently
offensive material on the Internet, was a content-based regulation of speech, and the
vagueness of such a regulation raises special First Amendment concerns because of its
obvious chilling effect on free speech. 521 U.S. 844, 871-72 (1997). In sharp contrast,20
section 1021 is not only not a content-based regulation of speech, it is not a regulation of
speech at all. Moreover, the Reno statute was untethered to any context, simply announc-
ing a prohibition on expression; here, section 1021, as described above, is on its face an
affirmation of the authority upheld by the Supreme Court and contained in a preexisting
Plaintiffs facial vagueness challenge is completely meritless. [I]f a statute has a core19
meaning that can reasonably be understood, then it may validly be applied to conduct
within the core meaning, and the possibility of such a valid application necessarily means
that the statute is not vague on its face.Brache v. Westchester County, 658 F.2d 47, 51 (2d
Cir. 1981). That section 1021 has a reasonably understandable core meaningto detain
and incapacitate those who engage in hostilities against the United Statesis beyond any
serious question. Govt Mem. 10-12.Similarly, the overbreadth challengea variant of plaintiffs facial challengefails as
well. Govt Mem. 13-14. In their supplemental brief, plaintiffs repeatedly misrepresent the
law, e.g., Pls. Post-Hrg. Mem. 21-22 (overbreadth does not typically arise where the
statute is focused upon protected speech, contraVirginia v. Hicks, 539 U.S. 113, 124
(2003) ([r]arely, if ever, will an overbreadth challenge succeed against a law or regulation
that is not specifically addressed to speech or to conduct necessarily associated with
speech)); id. 22 (describing Holder as reasoning that nothing in [statutes] definitional
provisions contained any reference to protected speech, contraHolder, 130 S. Ct. at 2723-
24 ( 2339B regulates speech on the basis of its content)).
Finally, plaintiffs suggest that the substantive constitutional standard is different for
facial and as-applied challenges. Pls. Post-Hrg. Mem. 24 (the test for as applied uncon-stitutionality . . . .). That is wrong: Facial and as-applied challenges differ in the extent to
which the invalidity of a statute need be demonstrated (facial, in all applications; as-
applied, in a personal application). Invariant, however, is the substantive rule of law to be
used.Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 228 (2d Cir. 2006).
In one instance, plaintiffs cite not the holding ofReno, but the Courts description of20
what one of the members of the three-judge district court had written. Pls. Post-Hrg. Mem.
10.
24
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 29 of 30
-
7/30/2019 Government's Post-Hearing Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary
30/30
statute authorizing the use of military force against those who had attacked the United
States, and all its words and phrases take meaning from that setting. Similar factors
distinguishAshcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002). Plaintiffs also point
to the narrowing definitions the Supreme Court cited in upholding the material-support
statute in Holder. Pls. Post-Hrg. Mem. 18-19; 130 S. Ct. at 2720. But narrowing context
may serve the same function, 130 S. Ct. at 2720, as it does here, and while statutory
definitions mitigated possible vagueness in Holder, nowhere did the Court say that such a
definitional section is necessary for a statute to be saved from constitutional challenge.
Read as a whole and in context, section 1021 cannot reasonably be seen as vague, and
easily survives plaintiffs constitutional challenge.
Conclusion
The motion for a preliminary injunction should be denied.
Dated: New York, New York Respectfully submitted,
May 4, 2012
PREET BHARARA
United States Attorney for the
Southern District of New York
By: /s/ Benjamin H. Torrance
BENJAMIN H. TORRANCE
CHRISTOPHER B. HARWOOD
Assistant United States Attorneys
86 Chambers Street
New York, New York 10007
Telephone: 212.637.2703, .2728
Fax: 212.637.2702
E-mail: [email protected]
Case 1:12-cv-00331-KBF Document 33 Filed 05/04/12 Page 30 of 30