When it comes to court cases, you don't get to declare that someone "won in court" after paraphrasing the suit. You have to provide a link to the exact wording of the judges decision. THAT is what was decided.
So, it would appear that your claim of "victory in court" was total dishonesty. There was a reason you didn't specify which court, i.e. you omitted the Supreme Court ruling which didn't go your way.
https://www.justice.gov/sites/default/files/osg/briefs/2013/01/01/2013-0758.resp.pdf
_______________________________________________________
No. 13-758
In the Supreme Court of the United States
CHRISTOPHER HEDGES, ET AL., PETITIONERS
v.
BARACK H. OBAMA, PRESIDENT OF THE
UNITED STATES, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
DONALD B. VERRILLI, JR. Solicitor General
Counsel of Record
STUART F. DELERY
Assistant Attorney General
AUGUST E. FLENTJE
BENJAMIN H. TORRANCE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether petitioners have standing to challenge the
constitutionality of Section 1021(b)(2) of the National
Defense Authorization Act for Fiscal Year 2012, Pub.
L. No. 112-81, 125 Stat. 1298 (10 U.S.C. 801 note).
PARTIES TO THE PROCEEDING
Petitioners are Christopher Hedges, Daniel Ells-
berg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien,
U.S. Day of Rage, Kai Wargalla, and Hon. Birgitta
Jónsdóttir, M.P.
Respondents are Barack Obama, individually and
as a representative of the United States of America,
and Leon Panetta, individually and as a representative
of the Department of Defense.* John McCain, John
Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell,
and Eric Cantor, as representatives of the United
States of America, were defendants in the district
court but were not parties in the court of appeals, as
the caption of that decision indicates. See Hedges v.
Obama, 724 F.3d 170, 170 (2d Cir. 2013). Contrary to
the petition (at iii), under Rule 12.6 of the Rules of this
Court, those persons are not parties to this proceed-
ing.
STATEMENT
1. a. In response to the attacks of September 11,
2001, Congress passed the Authorization for Use of
Military Force (AUMF), Pub. L. No. 107-40, 115 Stat.
224 (Sept. 18, 2001). The AUMF authorizes “the Pres-
ident * * * to use all necessary and appropriate
force against those nations, organizations, or persons
he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on Septem-
ber 11, 2001, or harbored such organizations or per-
sons.” AUMF § 2(a), 115 Stat. 224.
The President has exercised the authority granted
by the AUMF to order United States armed forces to
fight both al-Qaeda and the Taliban regime that har-
bored al-Qaeda in Afghanistan, as well as forces asso-
ciated with them. The armed conflict with al-Qaeda,
the Taliban, and associated forces remains ongoing in
Afghanistan and elsewhere abroad and has resulted in
the capture and detention of hundreds of individuals
under the AUMF. Interpreting the AUMF in response to a challenge to the detention of an American citizen, five Members
of this Court recognized in Hamdi v. Rumsfeld, 542
U.S. 507 (2004), that the “detention of individuals
* * * for the duration of the particular conflict in
which they were captured, is so fundamental and
accepted an incident to war as to be an exercise of the
‘necessary and appropriate force’ Congress has au-
thorized the President to use.” Id. at 518 (opinion of
O’Connor, J.); accord id. at 587 (Thomas, J., dissent-
ing); see Boumediene v. Bush, 553 U.S. 723, 733 (2008)
(noting that five Justices accepted that aspect of Hamdi). The plurality opinion in Hamdi further noted that “[t]he legal category of [detainable] enemy combatant has not been elaborated upon in great detail,” but would be further defined in subsequent
cases. 542 U.S. at 522 n.1; see id. at 584-586, 589, 592
(Thomas, J., dissenting) (Court owes deference to Executive’s determination of detainability).
b. On March 13, 2009, the government submitted
its definition of detainable individuals under the
AUMF to the United States District Court for the
District of Columbia in the ongoing habeas corpus
litigation brought by detainees held at Guantánamo
Bay, Cuba. See Memorandum Regarding Government
Detention Authority (Mar. 13, 2009) (March 2009 Mem-
orandum). 1 That definition, which the government
explained was “informed by principles of the laws of
war,” includes persons who were part of, or substantially support-
ed, Taliban or al-Qaida forces or associated forces
that are engaged in hostilities against the United
States or its coalition partners, including any per-
son who has committed a belligerent act, or has di-
rectly supported hostilities, in aid of such enemy
armed forces.
March 2009 Memorandum 1-2. 2 The Executive has
relied on the March 2009 interpretation of the AUMF
in the habeas litigation brought by Guantánamo de-
tainees, and the courts have accepted and approved
that interpretation, including the concepts of “sub-
stantial support” and “associated forces.” c. In 2011, Congress enacted the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1298 (10 U.S.C. 801 note). Section 1021(a) of the NDAA expressly “affirms that
the authority of the President” under the AUMF “includes the authority for the Armed Forces * * * to detain covered persons * * * under the law of war.” 125 Stat. 1562. In language closely tracking the government’s March 2009 Memorandum, Section
1021(b)(2) defines “covered person” to include: A person who was a part of or substantially sup-ported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any per-
son who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Ibid.
Section 1021 also contains two provisos. First, sub-
section (d) states that “[n]othing in this section is
intended to limit or expand the authority of the Presi-
dent or the scope of the Authorization for Use of Military Force.” 125 Stat. 1562. Second, subsection (e)
states that “[n]othing in this section shall be con-
strued to affect existing law or authorities relating to
the detention of United States citizens, lawful resident
aliens of the United States, or any other persons who
are captured or arrested in the United States.” Ibid.
2. Petitioners are journalists and other individuals
who filed this suit against the President, the Secretary
of Defense, and certain Members of Congress in the
United States District Court for the Southern District
of New York to obtain a declaratory judgment that
Section 1021(b)(2) violates the First and Fifth Amend-
ments and to enjoin the President’s exercise of deten-
tion authority under that section. See Pet. App. 185a.
Their challenge, however, does not encompass the
President’s exercise of authority under the AUMF.
See ibid. (explaining that “the plaintiffs sought relief
only as to [Section 1021(b)(2)]”); see also id. at 3a, 78a,
181a. They sought a preliminary injunction.
b. The district court later issued a permanent in-
junction barring the President and the Secretary of
Defense from invoking any detention authority under
Section 1021(b)(2). In opposing petitioners’ motion for
a permanent injunction, the government had express-
ly stated that the statute would not authorize deten-
tion based on petitioners’ stated activities, because
“individuals who engage in the independent journal-
istic activities or independent public advocacy de-
scribed in plaintiffs’ affidavits and testimony, without
more, are not subject to law of war detention as af-
firmed by section 1021(a)-(c), solely on the basis of
such independent journalistic activities or independ-
ent public advocacy.” Id. at 81a-82a (quoting Gov-
ernment Memorandum of Law in Support of Motion
for Reconsideration 4) (emphases omitted). The dis-
trict court nevertheless maintained its view that peti-
tioners had standing based on their fear of such de-
tention. Id. at 135a-139a. On the merits, the district court ruled that Section 1021(b)(2) is an unconstitutional content-based re*
striction on speech. Pet. App. 155a-169a. While the
court acknowledged a “legitimate, non-First Amend-
ment aspect” to the statute, id. at 157a, it believed
that Section 1021(b)(2) might authorize the President
to detain an individual based on “some amount of
undefined activities protected by the First Amend-
ment,” id. at 169a. The court also held that Section
1021(b)(2) is unconstitutionally vague. Id. at 170a-
179a.
The district court’s order “permanently enjoin[ed]
enforcement of § 1021(b)(2) in any manner, as to any
person.” Pet. App. 182a-183a. Despite the fact that
petitioners had not raised any challenge related to the
AUMF, the district court further stated that
“[m]ilitary detention based on allegations of ‘substan-
tially supporting’ or ‘directly supporting’ the Taliban,
al-Qaeda or associated forces, is not encompassed
within the AUMF and is enjoined by this Order regarding § 1021(b)(2).” Id. at 183a.
4. The court of appeals granted a stay of the dis-
trict court’s injunction pending appeal and subse-
quently vacated the district court’s order. Pet. App.
1a-75a. The court held that petitioners lacked Article
III standing.
a. The court of appeals began by construing Sec-
tion 1021. It first observed that subsections (a) and
(d) indicate that Section 1021 does nothing more than
“affirm[]” the detention authority granted to the Pres-
ident by the AUMF, but at the same time subsection
(b)(2) adds language not used in the AUMF. Pet. App.
41a. The court resolved this “apparent contradiction”
by concluding that subsection (b)(2) is “naturally
* * * understood to affirm that the general AUMF
authority to use force against these organizations
[responsible for the September 11, 2001, attacks]
includes the more specific authority to detain those
who were part of, or those who substantially support-
ed, these organizations or associated forces.” Id. at
41a-42a. “Because one obviously cannot ‘detain’ an
organization,” the court continued, “one must explain
how the authority to use force against an organization
translates into detention authority.” Id. at 42a-43a.
The court therefore held that the function of subsec-
tion (b)(2) is to clarify that the AUMF’s detention
authority encompasses those who were part of or
substantially supported one of the relevant organiza-
tions. And the court explained that the proviso in
subsection (d) “ensures that Congress’ clarification
may not properly be read to suggest that the Presi-
dent did not have this authority previously.” Id. at
44a.
The court of appeals also concluded that the provi-
so in subsection (e) “expressly disclaims any state-
ment about existing authority” to detain U.S. citizens,
permanent residents, or other persons captured or
arrested in the United States. Pet. App. 45a. Accord-
ingly, it held, Section 1021 “simply says nothing at all”
regarding the detention of those persons. Id. at 47a.
b. Based on that construction of the statute, the
court of appeals concluded that the U.S. citizen peti-
tioners—Hedges and O’Brien—lacked Article III
standing. Because Section 1021 “says nothing at all
about the authority of the government to detain citi-
zens,” the court explained, “[t]here simply is no threat
whatsoever that [the U.S. citizen petitioners] could be
detained pursuant to that section.” Pet. App. 49a.
Thus, it held, those petitioners suffer no injury from
Section 1021, nor could their fears of detention be
redressed by an injunction against the implementation
of Section 1021. Ibid.
c. The court of appeals further held that the for-
eign petitioners also lack standing to challenge Sec-
tion 1021(b)(2). See Pet. App. 50a-74a. The court first
“assume[d] without deciding” that Section 1021(b)(2)
authorizes the detention of the foreign petitioners
based on their stated activities, despite the govern-
ment’s assurance that it does not. Id. at 63a. But the
court concluded that the foreign petitioners had failed
to show that they were at risk of immediate injury by
the enactment of Section 1021 sufficient to establish
Article III standing. See id. at 63a-74a. The court
observed that “Section 1021 is not a law enforcement
statute, but an affirmation of the President’s military
authority.” Id. at 65a. The provision, it explained,
“‘at most authorizes—but does not mandate or di-
rect’—the detention that plaintiffs fear.” Id. at 66a
(quoting Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1149 (2013)). The court held that under this
Court’s standing precedents, “while it generally may
be appropriate to presume for standing purposes that
the government will enforce the law against a plaintiff
covered by a traditional punitive statute,” plaintiffs
challenging a statute that merely authorizes Execu-
tive action “must show more than that the statute
covers their conduct to establish preenforcement
standing.” Id. at 67a-68a. Because the two foreign
petitioners had “shown nothing further here,” the
court held that they lacked Article III standing, with-
out addressing “what more is required” to establish
standing. Id. at 68a.
[Initial sections of Supreme Court justification omitted]
Consistent with this Court’s settled framework,
and contrary to petitioners’ contention (Pet. 16-18),
the courts of appeals have required that a threatened
future injury be imminent. See, e.g., Wolfson v.
Brammer, 616 F.3d 1045, 1063 (9th Cir. 2010) (“genu-
ine threat of imminent prosecution”) (emphases and
citation omitted); Brammer-Hoelter v. Twin Peaks
Charter Acad., 602 F.3d 1175, 1183 n.6 (10th Cir. 2010)
(“imminent, credible threat” of enforcement); Ord v.
District of Columbia, 587 F.3d 1136, 1140-1141 (D.C.
Cir. 2009) (requiring showing of both credible and
imminent threat of prosecution); Fieger v. Michigan
Supreme Court, 553 F.3d 955, 978 (6th Cir. 2009)
(“sufficient immediacy” shown by “‘a realistic danger’
or ‘credible threat’” of enforcement), cert. denied, 558
U.S. 1110 (2010). The cases cited by petitioners—
none of which involved a mere authorization for the
Executive to take action in the areas of military and
intelligence affairs, as in this case and Clapper—do
not depart from that basic requirement. E.g., Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987) (examin-
ing “immediacy of the threat of harm”). Accordingly, further review of the court of appeals’ application of this Court’s settled standing principles to petitioners’ complaint is not warranted.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY
Assistant Attorney General
AUGUST E. FLENTJE
BENJAMIN H. TORRANCE
Attorneys
MARCH 2014
_______________________________________________________
Incorrect. This is not the ruling. Did you even read the case?
You made a 16-page post and don't even know what it said. How do you think a case gets to the supreme court? Keep believing you live in a capitalist system that doesn't go bankrupt every 7 years, and that US citizens didn't lose our right to due process.
Obama did away with Habeas Corpus, something people have had since the Magna Carta published in 1215. Obama abolished 800 years of human rights.
