Defendants Barack Obama,Leon Panetta, and the Department of Defense (collectively, the “government”) respectfully submit this memorandum in opposition to plaintiffs’ request for a permanent injunction against the operation of a portion of section 1021 of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (Dec. 31, 2011) (the “NDAA”), and in support of the government’s request that the Court enter final judgment in its favor.
Plaintiffs present a truly extraordinary claim in this action. They seek to enjoin the operation of a statute enacted by Congress and signed into law by the President, a statute that codifies a longstanding Executive military-detention authority that has been upheld by the courts, and therefore enjoys the endorsement of all three branches of the government. While that alone would be an ambitious endeavor, plaintiffs reach even further, and claim that they, as journalists and activists, may obtain an injunction to invalidate the statute on its face, to apply worldwide, and, most unusually, to prohibit certain uses of the military detention authority exercised by the United States and the Commander-in-Chief during an ongoing armed conflict. Any one of those facts should cause extreme hesitation by the Court; taken together, they require the most exacting scrutiny to ensure that if the judicial power is to be exercised in such a far-reaching manner it is clearly within the Court’s jurisdiction to do so. Yet plaintiffs cannot come close to establishing that jurisdiction, as they cannot carry their burden of demonstrating even the basic elements of standing. They claim they fear military detention, based on an erroneous interpretation of the statute that would extend its scope in direct contradiction of the statute’s words, and with no regard for the context that gives it meaning. They persist in asserting that interpretation even though it is contravened by over a decade of history; they cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention. And they continue to seek unprecedented injunctive relief despite already obtaining assurance from the government in this case that based on their allegations they are not detainable under this statute. Plaintiffs therefore have fallen far short of meeting their burden to show they have been injured by the statute; their complaints are the types of generalized grievances of allegedly unlawful government conduct that have been repeatedly held insufficient to support standing.
Even if plaintiffs had some cognizable injuries, those harms would not be redressed by an injunction against section 1021; as plaintiffs themselves acknowledge, such an injunction would have “nil” effect, for the government would continue to possess the identical detention authority under the 2001 Authorization for the Use of Military Force. Plaintiffs thus would achieve no meaningful relief from the injunction they seek, and lack standing for that reason as well. Because plaintiffs lack standing, this Court need not (and must not) unnecessarily decide the constitutional questions plaintiffs present.
If it were necessary to reach the merits, plaintiffs’ claims would fail. Their facial and overbreadth challenges, if even appropriate in this context, founder on the indisputable fact that section 1021 has a plainly legitimate sweep that dwarfs the purported infringement on free expression; indeed, the statute is not even aimed at speech or expressive conduct. Nor is the statute unconstitutionally vague: it does not prohibit any conduct and therefore is not even subject to vagueness analysis. Even if it were it would still be valid, as its meaning as informed by context is more than clear enough to meet constitutional standards. All of plaintiffs’ claims on the merits fail, but in particular none of their theories can come close to justifying the invalidation of the non-punitive war-time authority that Congress affirmed in section 1021.
For all those reasons, the Court should enter judgment for the government.