Hedges v. Obama
Justia.com Opinion Summary: Plaintiffs challenged Section 1021(b)(2) of the National Defense Authorization Act for Fiscal Year 2012 (2012 NDAA), Pub. L. 112-81, 125 Stat. 1298, which appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces. Plaintiffs, journalists and activists, sought an injunction barring enforcement of Section 1021 and a declaration that it violated, among other things, their rights under the First and Fifth Amendments. The court concluded that the American citizen plaintiffs lacked standing because Section 1021 says nothing at all about the President's authority to detain American citizens; while section 1021 had no real bearing on those who were neither citizens nor lawful residents and who were apprehended abroad, the non-citizen plaintiffs also failed to establish standing because they had not shown a sufficient threat that the government would detain them under Section 1021; and, therefore, the court vacated the permanent injunction, having no need to address the merits of plaintiffs' claims.
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12-3176 (L) Hedges v. Obama UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ----August Term, 2012 (Argued: February 6, 2013 Decided: July 17, 2013) Docket Nos. 12-3176 (Lead), 12-3644 (Con) ----CHRISTOPHER HEDGES, DANIEL ELLSBERG, JENNIFER BOLEN, NOAM CHOMSKY, ALEXA OâÄôBRIEN, US DAY OF RAGE, KAI WARGALLA, HON. BIRGITTA JONSDOTTIR M.P., Plaintiffs-Appellees, v. BARACK OBAMA, individually and as a representative of the UNITED STATES OF AMERICA, LEON PANETTA, individually and as a representative of the DEPARTMENT OF DEFENSE, Defendants-Appellants, JOHN MCCAIN, JOHN BOEHNER, HARRY REID, NANCY PELOSI, MITCH MCCONNELL, ERIC CANTOR, as representatives of the UNITED STATES OF AMERICA, Defendants.* ----Before: KEARSE and LOHIER, Circuit Judges, and KAPLAN, District Judge.** * The Clerk of the Court is directed to amend the official caption as shown above. ** The Honorable Lewis A. Kaplan, United States District Judge for the Southern District of New York, sitting by designation. Defendants-appellants seek review of a district court decision permanently enjoining enforcement of Section 1021(b)(2) of the 2012 National Defense Authorization Act on the ground that it violates the First and Fifth Amendments. We conclude that Section 1021 has no bearing on the governmentâÄôs authority to detain the American citizen plaintiffs and that those plaintiffs therefore lack Article III standing. Moreover, the non-citizen plaintiffs have failed to establish a sufficient basis to fear detention under the statute to give them standing to seek preenforcement review. VACATED AND REMANDED. ROBERT M. LOEB, Appellate Staff Civil Division, Department of Justice, Washington, DC (Stuart F. Delery, Acting Assistant Attorney General, Washington, DC; Beth S. Brinkmann, Deputy Assistant Attorney General, Washington, DC; August E. Flentje, Civil Division, Department of Justice, Washington, DC; Jeh Charles Johnson, General Counsel, Department of Defense, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY; Benjamin H. Torrance, Christopher B. Harwood, Assistant United States Attorneys, New York, NY, on the brief) Attorneys for Defendants-Appellants CARL J. MAYER, Mayer Law Group LLC, New York, NY; BRUCE I. AFRAN, ESQ., Princeton, NJ Attorneys for Plaintiffs-Appellees DAVID B. RIVKIN, JR. (Lee A. Casey, Andrew M. Grossman, on the brief), BakerHostetler LLP, Washington, DC Attorneys for Amici Curiae Senators John McCain, Lindsey Graham, and Kelly Ayotte Kent A. Yalowitz, Arnold & Porter LLP, New York, NY; L. Charles Landgraf, Arpan A. Sura, Arnold & Porter LLP, Washington, DC Attorneys for Amicus Curiae Bill of Rights Defense Committee Matthew J. MacLean, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC Attorney for Amici Curiae Center for National Security Studies and The Constitution Project Reem Salahi, Hadsell Stormer Richardson & Renick, LLP, Pasadena, CA Attorney for Amicus Curiae Government Accountability Project 3 Eric K. Yamamoto, University of Hawaii School of Law, Honolulu, HI; Lorraine K. Bannai, Anjana Malhotra, Seattle University School of Law, Seattle, WA Attorneys for Amici Curiae Karen and Ken Korematsu, et al. John W. Whitehead, Douglas R. McKusick, Lina M. Ragep, The Rutherford Institute, Charlottesville, VA; Anand Agneshwar, Arnold & Porter LLP, New York, NY Attorneys for Amicus Curiae The Rutherford Institute William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, Robert J. Olson, William J. Olson, P.C., Vienna, VA; Steven J. Harfenist, Friedman Harfenist Kraut & Perlstein LLP, Lake Success, NY; Gary G. Kreep, U.S. Justice Foundation, Ramona, CA Attorneys for Amici Curiae U.S. Congressman Steve Stockman, et al. LEWIS A. KAPLAN, District Judge. On September 11, 2001, the al-Qaeda terrorist network attacked multiple targets in the United States with hijacked commercial airliners, killing approximately 3,000 people. A week later, Congress enacted the Authorization for Use of Military Force (the âÄúAUMFâÄĚ),1 which empowered President Bush to use all necessary and appropriate force against those nations, organizations, and persons responsible for the attacks and those who harbored such organizations or persons. Nearly twelve years later, the hostilities continue. Presidents Bush and Obama have asserted the right to place certain individuals in military detention, without trial, in furtherance of their authorized use of force. Substantial litigation has ensued over the scope of presidential military detention authorityâÄĒthat is, whom did Congress authorize the President to detain when it passed the AUMF? 1 P.L. 107-40, 115 Stat. 224 (2001), codified at 50 U.S.C. Â§ 1541 note. 4 On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012.2 Section 1021 of that statute, which fits on a single page, is CongressâÄô firstâÄĒand, to date, onlyâÄĒforay into providing further clarity on that question. Of particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces. The controversy over Section 1021 was immediate. The government contends that Section 1021 simply reaffirms authority that the government already had under the AUMF, suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view. They are journalists and activists who allegedly fear that the government may construe their work as having substantially supported al-Qaeda, the Taliban, or associated forces. They contend that Section 1021 is a dramatic expansion of the PresidentâÄôs military detention authority, supposedly authorizing the military, for the first time, to detain American citizens on American soil. As one group of amici has noted, âÄú[r]arely has a short statute been subject to more radically different interpretations than Section 1021.âÄĚ3 Plaintiffs brought this action shortly after the statute was enacted. They sought an injunction barring enforcement of Section 1021 and a declaration that it violates, among other things, their rights under the First and Fifth Amendments to the United States Constitution. The district court agreed and entered a permanent injunction restraining detention pursuant to Section 1021(b)(2). It is that decision that we review here. 2 P.L. 112-81, 125 Stat. 1298 (2011) (âÄú2012 NDAAâÄĚ). 3 Stockman Amici Br. 3. 5 We conclude that plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction. The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the PresidentâÄôs authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021. Accordingly, we do not address the merits of plaintiffsâÄô constitutional claims. I. Background Prior to the passage of Section 1021, a number of federal judges reached divergent conclusions about the scope of AUMF detention authority. To appreciate what Congress did and did not resolve in passing Section 1021, one must understand the nature of this debate. We thus describe the history of the litigation over AUMF detention authority in some detail. A. The AUMF The AUMF, enacted on September 18, 2001, provides: âÄú[T]he President is authorized 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 September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.âÄĚ4 President Bush ordered the United States military to Afghanistan to subdue al-Qaeda and the Taliban 4 AUMF Â§ 2(a). 6 regime known to support it. Soon thereafter, President Bush began to hold certain individuals in military detention as âÄúenemy combatants,âÄĚ many of them at the United States Naval Base in GuantÃ¡namo Bay, Cuba.5 B. The Citizen and Domestic Capture Cases: Hamdi, Padilla, and al-Marri As one scholar has noted, the litigation regarding the scope of executive detention authority may be divided into two âÄúwavesâÄĚ: (1) litigation from 2002 to 2008 regarding three individuals who were held as enemy combatants in military detention within the territorial United States, and (2) litigation from 2008 to the present concerning GuantÃ¡namo detainees.6 The first category comprises the cases of Yaser Esam Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri. 1. Hamdi Hamdi, then an American citizen, was in Afghanistan in the fall of 2001, where he allegedly was armed and affiliated with a Taliban military unit that had provided him weapons 5 See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) (military order asserting authority, under AUMF and Article II of United States Constitution, to detain and try by military tribunal non-citizens who, there was reason to believe, were members of al-Qaeda, had been involved in preparing terrorist attacks directed against United States interests, or had harbored individuals who had done so); see generally Gherebi v. Obama, 609 F. Supp.2d 43, 46âÄď47 (D.D.C. 2009); Rasul v. Bush, 542 U.S. 466, 471 (2004) (discussing the military detention of over six hundred non-citizens at GuantÃ¡namo). 6 See Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REV. 769, 805 (2011). 7 training.7 He was apprehended when that unit surrendered after a battle.8 After entering military detention within the United States, a habeas corpus petition was filed on his behalf, alleging inter alia that his detention violated the Non-Detention Act of 1971, which provides, âÄúNo citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.âÄĚ9 Although the Supreme Court in June 2004 remanded HamdiâÄôs case to allow him to challenge his status as an enemy combatant, it upheld the governmentâÄôs authority to detain a properly designated enemy combatant in Hamdi v. Rumsfeld,10 when âÄúfive Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan âÄėfor 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 âÄúnecessary and appropriate forceâÄĚ Congress has authorized the President to useâÄôâÄĚ by the AUMF.11 In so doing, a four Justice plurality12 noted that âÄú[t]he legal category of enemy combatant has not been elaborated upon in great detailâÄĚ and that âÄú[t]he permissible bounds of the 7 Hamdi v. Rumsfeld, 542 U.S. 507, 513 (2004) (plurality opinion). 8 Id. 9 18 U.S.C. Â§ 4001(a). 10 542 U.S. 507. 11 Boumediene v. Bush, 553 U.S. 723, 733 (2008) (discussing Hamdi). 12 Justice OâÄôConnor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. 8 category will be defined by the lower courts as subsequent cases are presented to them.âÄĚ13 It nevertheless concluded that the AUMF âÄúclearly and unmistakablyâÄĚ authorized detaining at least those who were âÄúpart of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.âÄĚ14 Thus, the plurality reasoned that, if the governmentâÄôs allegations were correct, HamdiâÄôs detention did not violate the Non-Detention Act because the AUMF itself constituted the requisite âÄúAct of Congress.âÄĚ15 To the extent Hamdi identified constitutional concerns with the military detention of American citizens generally, the plurality concluded that there was âÄúno bar to this NationâÄôs holding one of its own citizens as an enemy combatant.âÄĚ16 Nevertheless, the plurality suggested that this detention authority was not boundless and that detention pursuant to it could not be indefinite. Rather, âÄúbased on longstanding law-of-war principles,âÄĚ the plurality construed the AUMF âÄúto include the authority to detain for the duration of the relevant conflict.âÄĚ17 Justice Thomas wrote separately and provided a fifth vote for upholding authority to detain Hamdi under the AUMF, but rejected any limitations, derived from the laws of war, on the duration of the detention authority.18 13 Hamdi, 542 U.S. at 522 n.1 (plurality opinion). 14 Id. at 516, 519 (internal quotation marks omitted). 15 Id. at 517. The plurality did not reach the alternative argument that the PresidentâÄôs Article II powers as Commander-in-Chief authorized the detention. Id. at 516âÄď17. 16 Id. at 519 (citing Ex Parte Quirin, 317 U.S. 1, 37âÄď38 (1942)). 17 Id. at 521. 18 Id. at 587âÄď88 (Thomas, J., dissenting). 9 The four remaining Justices dissented from the conclusion that Hamdi could be detained, reasoning inter alia that the AUMF did not constitute sufficiently clear authorization of his detention to satisfy the Non-Detention Act.19 Justice Scalia, joined by Justice Stevens, would have held further that the government was without constitutional power to detain Hamdi militarily absent congressional suspension of the writ of habeas corpus.20 2. Padilla Padilla, also an American citizen, was apprehended at ChicagoâÄôs OâÄôHare International Airport in May 2002 after allegedly receiving training from al-Qaeda in Afghanistan, becoming involved in a plan to detonate a âÄúdirty bombâÄĚ here, and returning to the United States to conduct reconnaissance and facilitate attacks by al-Qaeda.21 In December 2003âÄĒprior to HamdiâÄĒthis Court held that because Padilla was an American citizen arrested on domestic soil away from a zone of combat, his military detention violated the Non-Detention Act and could not be justified by the PresidentâÄôs Article II war powers.22 The Supreme Court reversed our decision on procedural grounds on the day it decided Hamdi but 19 Id. at 547âÄď51 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment) (reasoning further that while AUMF might provide clear authority to detain Hamdi in accordance with laws of war, government was not doing so); id. at 574 (Scalia, J., dissenting). 20 Id. at 571âÄď75 (Scalia, J., dissenting) (citing Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2 (1866)). 21 Padilla v. Rumsfeld, 352 F.3d 695, 699âÄď701 (2d Cir. 2003), revâÄôd on jurisdictional grounds, 542 U.S. 426 (2004). 22 Id. at 712, 722. 10 did not reach the lawfulness of PadillaâÄôs detention.23 Following the Supreme CourtâÄôs reversal of our Padilla ruling, a new habeas petition was filed on his behalf. The Fourth Circuit in 2005 concluded that Padilla was lawfully detained under the reasoning of Hamdi because it became known that he had been âÄúarmed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United StatesâÄĚ while in Afghanistan prior to his return to the United States.24 Although Padilla had been apprehended in the United States, the Fourth Circuit concluded that Hamdi had not relied on the place of capture.25 The government subsequently indicted Padilla and transferred him to civilian criminal custody. His petition for certiorari was denied.26 3. Al-Marri The Fourth Circuit again considered the scope of military detention authority in the case of al-Marri, a Qatari national apprehended in the United States while he was lawfully residing here.27 Al-Marri allegedly was a âÄúsleeper agentâÄĚ who had met Osama Bin Laden, was trained by al- 23 Rumsfeld v. Padilla, 542 U.S. 426, 430 (2004). Justice Stevens (joined by Justices Souter, Ginsburg, and Breyer) dissented and indicated that he would have held, consistent with our decision, that PadillaâÄôs detention violated the Non-Detention Act. Id. at 464 n.8. 24 Padilla v. Hanft, 423 F.3d 386, 390 (4th Cir. 2005) (internal quotation marks omitted). 25 Id. at 393âÄď94. 26 Padilla v. Hanft, 547 U.S. 1062 (2006). 27 Al-Marri v. Wright, 487 F.3d 160, 164, 171 (4th Cir. 2007), revâÄôd sub nom. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (en banc) (per curiam), vacated sub nom. AlMarri v. Spagone, 555 U.S. 1220 (2009). 11 Qaeda, and had been sent to the United States to facilitate terrorist activities here.28 Unlike Padilla and Hamdi, however, the government did not allege that al-Marri had stood alongside armed forces hostile to the United States or had been present in a combat zone during hostilities.29 A splintered en banc Fourth Circuit concluded in July 2008 that the executive had authority to detain al-Marri as an enemy combatant, assuming that the governmentâÄôs allegations were true.30 While each offered a different definition of those subject to detention, the three principal opinions which voted in favor of this general proposition gave significant weight to the fact that, if the governmentâÄôs allegations were correct, al-Marri was little different from the 9/11 hijackers themselves, short of succeeding in the plot.31 The judges who took the contrary view concluded that al-Marri was a civilian and therefore could not properly be detained militarily under 28 Id. at 165âÄď66. 29 Id. at 183. 30 Al-Marri, 534 F.3d at 216. 31 See id. at 259âÄď60 (Traxler, J., concurring in the judgment); id. at 287 (Williams, C.J., concurring in part and dissenting in part); id. at 297 (Wilkinson, J., concurring in part and dissenting in part). Judge Wilkinson proposed that the AUMF authorized detaining those who are (1) an âÄúenemy,âÄĚ as a member of an organization against whom Congress has authorized the use of military force, and (2) a âÄúcombatant,âÄĚ as someone who knowingly acts to inflict harm in order to further the military goals of that organization. Id. at 323âÄď24. Judge Williams focused instead on those who (1) âÄúattempt or engage in belligerent acts against the United States, either domestically or in a foreign combat zone; (2) on behalf of an enemy force.âÄĚ Id. at 285. 12 traditional principles of the laws of war.32 The key question for them was whether he had affiliated âÄúwith the military arm of an enemy nation.âÄĚ33 The Supreme Court granted certiorari,34 but then vacated the decision below as moot when the newly elected Obama administration indicted al-Marri and sought to transfer him to civilian criminal custody.35 C. The GuantÃ¡namo Cases Meanwhile, Congress and the courts were engaging in a dialogue over a more basic question regarding the GuantÃ¡namo detaineesâÄĒwhether they had any right to petition for habeas corpus at all.36 This culminated in June 2008 with Boumediene v. Bush, which held that the GuantÃ¡namo detainees had constitutional habeas rights and that the procedures that Congress and 32 See generally id. at 230âÄď31 (Motz, J., concurring in the judgment); but see id. at 314âÄď22 (Wilkinson, J., concurring in part and dissenting in part) (concluding that law-of-war principles must account for recent developments in how warfare is conducted). 33 Id. at 231 (emphasis added). 34 Al-Marri v. Pucciarelli, 555 U.S. 1066 (2008). 35 Al-Marri v. Spagone, 555 U.S. 1220. 36 See Rasul, 542 U.S. at 484 (holding that statutory habeas jurisdiction extended to GuantÃ¡namo); Detainee Treatment Act of 2005, P.L. 109-148, 119 Stat. 2680, Title X (âÄúDTAâÄĚ), Â§ 1005(e)(1) (purporting to strip statutory habeas jurisdiction for GuantÃ¡namo detainees); Hamdan v. Rumsfeld, 548 U.S. 557, 584 (2006) (concluding that Section 1005(e)(1) of the DTA did not apply to pending cases); Military Commissions Act of 2006, P.L. 109-366, 120 Stat. 2600 (âÄú2006 MCAâÄĚ), Â§ 7 (stripping habeas jurisdiction from future and pending cases); Boumediene, 553 U.S. at 792 (concluding that Section 7 of the 2006 MCA is unconstitutional). 13 the administration had provided were not an adequate substitute.37 1. Activity Pre-Boumediene In July 2004, shortly after Hamdi, the government created Combatant Status Review Tribunals (âÄúCSRTsâÄĚ) to determine whether the GuantÃ¡namo detainees were enemy combatants, which the Department of Defense then defined to mean âÄúan individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.âÄĚ38 Congress did not endorse this definition or otherwise speak directly to the scope of detention authority during this period. It codified the CSRT process in the Detainee Treatment Act of 2005, but that statute did not explain who could be detained.39 The Military Commissions Act of 2006 defined the concept of an âÄúunlawful enemy combatant,âÄĚ but only with respect to eligibility for trial by the military commissions created by that act, not to AUMF detention authority.40 37 553 U.S. at 771, 792. 38 Memorandum from Deputy Secretary of Defense Paul Wolfowitz re: Order Establishing Combatant Status Review Tribunal Â§ a (July 7, 2004), available at http://www.defense.gov/news/Jul2004/d20040707review.pdf; see Hamdan, 548 U.S. at 571 n.1 (citing this definition). 39 See DTA Â§ 1005(e)(2)(C)(ii) (requiring only that D.C. Circuit ensure that Department of DefenseâÄôs chosen CSRT standards comply with Constitution and federal law, as applicable). 40 See 2006 MCA Â§ 3(a) (defining such individuals to include, inter alia, anyone who has âÄúengaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces)âÄĚ); see also Military 14 2. Judicial Consideration post-Boumediene Absent clarity from Congress, Boumediene opened the gates to judicial evaluation of the scope of executive detention authority for GuantÃ¡namo detainees. On remand from the Supreme Court, Judge Leon of the D.C. district court in the fall of 2008 declined to follow any of the approaches set forth in Al-Marri and instead adopted the governmentâÄôs prior 2004 CSRT definition, concluding that it was consistent with the AUMF and the Constitution.41 a. March 2009 Memo On March 13, 2009, the new administration, in a memorandum to the D.C. district court (the âÄúMarch 2009 MemoâÄĚ or the âÄúMemoâÄĚ),42 âÄúrefin[ed]âÄĚ the governmentâÄôs position regarding its detention authority for âÄúthose persons who are now being held at GuantÃ¡namo Bay.âÄĚ43 Relying on the Hamdi plurality opinion, the Memo asserted that the scope of executive detention authority âÄúis necessarily informed by principles of the laws of war,âÄĚ as these principles âÄúinform the Commissions Act of 2009 (âÄú2009 MCAâÄĚ), P.L. 111-84, 123 Stat. 2190, Title XVIII, Â§ 1802 (revising 2006 MCA definition somewhat and renaming the relevant term âÄúunprivileged enemy belligerentâÄĚ); cf. Al-Marri, 534 F.3d at 328 n.9 (Wilkinson, J., concurring in part and dissenting in part) (observing that 2006 MCA definition was âÄúof limited assistance and relevanceâÄĚ as it does âÄúnot specifically address the scope of the PresidentâÄôs detention power under the AUMFâÄĚ). 41 Boumediene v. Bush, 583 F. Supp.2d 133, 134âÄď35 (D.D.C. 2008). 42 RespondentsâÄô Memorandum Regarding the GovernmentâÄôs Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. Mar 13, 2009). 43 The March 2009 Memo made clear that the position set forth âÄúis limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo BayâÄĚ and is âÄúnot, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.âÄĚ Id. at 2. 15 understanding of what is âÄėnecessary and appropriateâÄôâÄĚ under the AUMF.44 With this predicate, the Memo declared that the government, in addition to being able to detain individuals themselves responsible for the attacks, had the authority âÄúto detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.âÄĚ45 It stated further that âÄú[i]t is neither possible nor advisableâÄĚ to identify what these terms mean in the abstract.46 Nevertheless, the March 2009 Memo said that the inquiry with regard to whether an individual is âÄúpart ofâÄĚ the enumerated forces may depend on either âÄúa formal or functional analysis of the individualâÄôs role.âÄĚ47 With regard to âÄúassociated forces,âÄĚ it observed that âÄúmany different private armed groupsâÄĚ fought alongside al-Qaeda and the Taliban in Afghanistan and therefore declared the authority to detain individuals who âÄúin analogous circumstances in a traditional international armed conflict . . . would be detainable under principles of co-belligerency.âÄĚ48 Finally, it said that the term âÄúsubstantial supportâÄĚ does not justify detaining âÄúthose who provide unwitting 44 Id. at 1, 3. The Memo recognized that the laws of war were âÄúless well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.âÄĚ Id. at 1. Accordingly, it asserted that principles from traditional âÄúinternational armed conflicts between the armed forces of nation statesâÄĚ must inform the AUMF authority. Id. 45 Id. at 2. The Memo no longer used the term âÄúenemy combatant.âÄĚ 46 Id. 47 Id. at 6. 48 Id. at 7. 16 or insignificant supportâÄĚ to the identified organizations.49 But, âÄú[u]nder a functional analysis, individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself.âÄĚ50 Moreover, âÄú[s]uch activities may also constitute the type of substantial support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention.âÄĚ51 In any event, the March 2009 Memo took the view that âÄúthe AUMF is not limited to persons captured on the battlefields of AfghanistanâÄĚ nor to those âÄúdirectly participating in hostilities.âÄĚ52 b. District Court Reaction District of Columbia district court reactions to the March 2009 Memo were mixed. Judges uniformly accepted the governmentâÄôs âÄúpart ofâÄĚ test but expressed considerable skepticism about âÄúsubstantial support.âÄĚ53 One opinion adopted the governmentâÄôs position, but only by reading âÄúsubstantial supportâÄĚ narrowly to permit detention of those âÄúeffectively part of the armed forces of 49 Id. at 2. 50 Id. at 7. 51 Id. (citing Boumediene v. Bush, 579 F. Supp.2d 191, 198 (D.D.C. 2008) (finding petitioner properly detained under âÄúsupportâÄĚ prong of adopted 2004 CSRT definition)). 52 Id. at 7, 8 (internal quotation marks omitted). 53 Even judges otherwise supportive of the governmentâÄôs position previously had not been unanimous that being part of al-Qaeda was enough. See Al-Marri, 534 F.3d at 325 (Wilkinson, J., concurring in part and dissenting in part) (opining that âÄúmembership, without moreâÄĚ is insufficient). 17 the enemy.âÄĚ54 In what became the majority view in the D.C. district court, another went one step further and rejected the governmentâÄôs reliance on âÄúsubstantial supportâÄĚ and âÄúdirectly support[ing] hostilitiesâÄĚ altogether, concluding that detention on such grounds was unsupported either by domestic law or the laws of war.55 c. Al-Bihani These decisions set the stage for the D.C. CircuitâÄôs central ruling on the scope of AUMF detention authority, Al-Bihani v. Obama.56 Petitioner Al-Bihani carried a weapon and was a cook for a unit that fought alongside the Taliban.57 He contended that his detention was inconsistent with the laws of war and thus not authorized as âÄúnecessary and appropriateâÄĚ under the AUMF.58 The majority opinion rejected the notion that the laws of war limit the governmentâÄôs 54 Gherebi, 609 F. Supp.2d at 69 (Walton, J.) (internal quotation marks and alterations omitted); accord Mohammed v. Obama, 704 F. Supp.2d 1, 4 (D.D.C. 2009) (Kessler, J.). 55 Hamlily v. Obama, 616 F. Supp.2d 63, 75âÄď77 (D.D.C. 2009) (Bates, J.) (internal quotation marks omitted); accord Mattan v. Obama, 618 F. Supp.2d 24, 26 (D.D.C. 2009) (Lamberth, C. J.); Anam, 653 F. Supp.2d 62, 64 (D.D.C. 2009) (Hogan, J.); Al Mutairi v. United States, 644 F. Supp.2d 78, 85 (D.D.C. 2009) (Kollar-Kotelly, J.); Hatim v. Obama, 677 F. Supp.2d 1, 7 (D.D.C. 2009) (Urbina, J.), vacated sub nom. Hatim v. Gates, 632 F.3d 720 (D.C. Cir. 2011); Awad v. Obama, 646 F. Supp.2d 20, 23 (D.D.C. 2009) (Robertson, J.). 56 590 F.3d 866 (D.C. Cir. 2010). 57 Id. at 869. 58 Id. at 870âÄď71. 18 AUMF authority at allâÄĒeven though the government agreed with Al-Bihani on that point.59 Taking the view that the âÄúthe governmentâÄôs detention authority logically covers a category of persons no narrower than is covered by its military commission authority,âÄĚ the majority concluded that AlBihani was properly detained because he fell within the latter standard, which Congress had set forth in the Military Commissions Acts of 2006 and 2009.60 That is, the majority held that AUMF detention authority âÄúincludes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.âÄĚ61 While focusing on this âÄúpurposeful and material supportâÄĚ standard, the majorityâÄôs discussion seemed generally supportive of the governmentâÄôs âÄúsubstantial supportâÄĚ standard as well. The majority stated that Al-Bihani was detained lawfully under either the CSRT definition or the 59 Id. at 871 (âÄúThere is no indication . . . that Congress intended the international laws of war to act as extra-textual limiting principles for the PresidentâÄôs war powers under the AUMF.âÄĚ); see id. at 885 (Williams, J., concurring in part and concurring in the judgment) (observing that majorityâÄôs discussion on this point âÄúgoes well beyond what even the government has argued in this caseâÄĚ (emphasis in original)); Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (opinion by all active judges except those on Al-Bihani panel denying en banc review but noting that panelâÄôs discussion of laws of war was âÄúnot necessary to the disposition of the meritsâÄĚ). 60 Al-Bihani, 590 F.3d at 872; but see Stephen I. Vladeck, The D.C. Circuit After Boumediene, 41 SETON HALL L. REV. 1451, 1460 (2011) (questioning this logical step); Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts & Sirine Shebaya, The Power to Detain: Detention of Terrorism Suspects After 9/11, 38 YALE J. INTâÄôL L. 123, 143âÄď44 (2013) (similar); Sophia Brill, Comment, The National Security Court We Already Have, 28 YALE L. & POLâÄôY REV. 525, 533 n.42 (2010) (similar); H.R. Rep. No. 111-288, at 862âÄď63 (2009) (2009 MCA committee report indicating that definition âÄúis not intended to address the scope of the authority of the United States to detain individuals in accordance with the laws of warâÄĚ). 61 590 F.3d at 872 (citing 2006 and 2009 MCAs). 19 governmentâÄôs modified âÄúsubstantial supportâÄĚ definition.62 Moreover, it later noted that Al-Bihani âÄúboth [was] part of and [had] substantially supported enemy forcesâÄĚ and, without exploring the bounds of these concepts, âÄúrecognize[d] that both prongs are valid criteria that are independently sufficient to satisfy the [detention] standard.âÄĚ63 d. Subsequent D.C. Circuit Case Law Further decisions by the D.C. Circuit followed the principle that the AUMF authorized detention not only of those who are âÄúpart ofâÄĚ al-Qaeda and the Taliban but also those who âÄúpurposefully and materially supportâÄĚ such forces.64 Notably, however, the D.C. Circuit has not had occasion to develop further the contours of the âÄúsupportâÄĚ prong, apparently because the government appears rarely to rely on it. Rather, in numerous cases before the D.C. Circuit since Al-Bihani, the government has relied on a theory that the detainee was âÄúpart ofâÄĚ al-Qaeda, the Taliban, or 62 Id. 63 Id. at 873âÄď74. 64 See Hatim, 632 F.3d at 721 (vacating grant of habeas because district court did not consider whether petitioner had âÄúpurposefully and materially supportedâÄĚ enemy forces); see also Gul v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011) (reading Al-Bihani to set forth âÄúpurposeful and material supportâÄĚ standard); Almerfedi v. Obama, 654 F.3d 1, 3 n.2 (D.C. Cir. 2011) (same); Al-Madhwani v. Obama, 642 F.3d 1071, 1073âÄď74 (D.C. Cir. 2011) (same); Uthman v. Obama, 637 F.3d 400, 402 n.2 (D.C. Cir. 2011) (same); Salahi v. Obama, 625 F.3d 745, 747 (D.C. Cir. 2010) (same). On the other hand, the D.C. Circuit does not appear to have read Al-Bihani as adopting a âÄúsubstantial supportâÄĚ standard. But see Al Alwi v. Obama, 653 F.3d 11, 15âÄď16 (D.C. Cir. 2011) (citing to âÄúsubstantial supportâÄĚ standard where detainee expressly did not challenge its lawfulness); Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010) (same). 20 associated forces.65 In fact, in Bensayah v. Obama,66 a case argued before but decided after AlBihani, the government specifically foreswore reliance on any support justification for detention.67 It did so despite the facts that (1) support was the sole ground on which the district court had relied in finding Bensayah detainable, and (2) the March 2009 Memo had cited that district court decision as its one example of when âÄúsubstantial supportâÄĚ might apply.68 Moreover, the government dropped reliance on a âÄúpurposeful and material supportâÄĚ theory in Salahi v. Obama.69 65 See, e.g., Awad v. Obama, 608 F.3d 1, 9 (D.C. Cir. 2010); Al-Adahi v. Obama, 613 F.3d 1102, 1106 (D.C. Cir. 2010); Barhoumi, 609 F.3d at 425; Al Odah v. Obama, 611 F.3d 8, 17 (D.C. Cir. 2010); Uthman, 637 F.3d at 402; Khan v. Obama, 655 F.3d 20, 33 (D.C. Cir. 2011); Al Alwi, 653 F.3d at 17; Esmail v. Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011); Suleiman v. Obama, 670 F.3d 1311, 1313 (D.C. Cir. 2012); Khairkhwa v. Obama, 703 F.3d 547, 550 (D.C. Cir. 2012). This may be explained by the âÄúfunctional rather than . . . formalâÄĚ approach the D.C. Circuit has taken with the âÄúpart ofâÄĚ inquiry, which focuses âÄúupon the actions of the individual in relation to the organizationâÄĚ to determine whether âÄúa particular individual was sufficiently involved with the organization to be deemed part of it.âÄĚ Salahi, 625 F.3d at 751âÄď52 (internal quotation marks and alterations omitted). 66 610 F.3d 718 (D.C. Cir. 2010). 67 Id. at 722 (noting that government has âÄúabandoned its argument that Bensayah is being detained lawfully because of the support he rendered to al QaedaâÄĚ); cf. Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics, N.Y. TIMES, Mar. 29, 2010, at A1 (reporting on internal dissension within Obama administration regarding whether government should argue that support justified BensayahâÄôs detention). 68 See Bensayah, 610 F.3d at 722; March 2009 Memo at 7. 69 625 F.3d at 747. 21 D. The 2012 NDAA It was in this context that the 2012 NDAA was enacted on December 31, 2011. Section 1021 of that statute provides in relevant part: âÄúSEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE. (a) In General.-- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war. (b) Covered Persons.-- A covered person under this section is any person as follows: (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. (c) Disposition Under Law of War.-- The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the personâÄôs country of origin, any other foreign country, or any other foreign entity. 22 (d) Construction.-- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force. (e) Authorities.-- Nothing in this section shall be construed 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.âÄĚ70 But it is useful to set out the history of this provision, as it may shed light on its proper construction. An initial version of this section was reported by the House Armed Services Committee in May 2011.71 It affirmed that the United States âÄúis engaged in an armed conflict with al-Qaeda, the Taliban, and associated forcesâÄĚ and that the President has the authority to use force against those who (A) are âÄúpart of, or are substantially supporting, al-Qaeda, the Taliban, or associated forcesâÄĚ or (B) âÄúhave engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A).âÄĚ72 Such use of force, the bill provided, includes the power to detain such persons until the termination of hostilities.73 The committee report stated the following about the provision: âÄúThe committee notes that as the United States nears the tenth anniversary of the attacks on September 11, 2001, the terrorist threat has evolved as a result of intense military and diplomatic pressure from the United States and its coalition partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave threat to U.S. national security. The [AUMF] necessarily includes the authority to address the continuing and evolving threat posed by these groups. 70 2012 NDAA Â§ 1021. 71 H.R. 1540, 112th Cong. Â§ 1034 (as reported by H. Comm. on Armed Services, May 17, 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf. 72 Id. 73 Id. 23 âÄúThe committee supports the Executive BranchâÄôs interpretation of the [AUMF], as it was described in [the March 2009 Memo]. While this affirmation is not intended to limit or alter the PresidentâÄôs existing authority pursuant to the [AUMF], the Executive BranchâÄôs March 13, 2009, interpretation remains consistent with the scope of the authorities provided by Congress.âÄĚ74 The Senate Armed Services Committee developed a different version of this section, Section 1031 of S. 1253, which was reported out of committee on June 22, 2011.75 Subsections (a)(c) of that section were similar to subsections (a)-(c) of the later enacted Section 1021.76 Section 1031 of S. 1253, however, included a âÄúlimitationâÄĚ stating that the detention authority âÄúdoes not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution.âÄĚ77 The committee report stated: âÄú[Section 1031] would authorize the [military] to detain unprivileged enemy belligerents captured in the course of hostilities authorized by the [AUMF]. 74 H.R. Rep. 112-78 at 209 (2011), available at http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt78/pdf/CRPT-112hrpt78.pdf. 75 S. 1253, 112th Cong. Â§ 1031 (as reported by S. Comm. on Armed Services, June 22, 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1253rs/pdf/BILLS-112s1253rs.pdf. Section 1031 was one of a number of sections in a subtitle entitled âÄúDetainee MattersâÄĚ in this bill. The subtitle included also Section 1032, which mandated military detention of non-citizen members of al-Qaeda who participated in planning or carrying out an attack against the United States, subject to a national security waiver. 76 Id. There were some differences, however. The original Section 1031(a) did not use the word âÄúaffirmsâÄĚ as did the eventual Section 1021(a). Moreover, this version described those detainable as âÄúunprivileged enemy belligerentsâÄĚ and limited detention to those âÄúcaptured in the course of hostilities,âÄĚ both terms that were subsequently removed. Compare id. Â§ 1031(a) with 2012 NDAA Â§ 1021(a). 77 Id. 24 âÄúThe committee recognizes that the [military] do[es] not need specific statutory authorization to detain enemy belligerents under the law of war when they are captured in the course of any lawful armed conflict. Because the long-term nature of the current conflict has led to the detention of a number of individuals for a period that is not likely to end soon, the committee concludes that such statutory authorization is appropriate in this case.âÄĚ78 The detainee sections of S. 1253, including but not limited to Section 1031, encountered some opposition from senators and the administration.79 After various consultations, the Senate Armed Services Committee reported a revised version on November 15, 2011, as S. 1867. Section 1031(a)âÄď(d) of S. 1867 was identical to the ultimately enacted Section 1021(a)âÄď(d).80 In particular, S. 1867 removed the limitation regarding detention of citizens and lawful resident aliens based on domestic conduct. It also added a provision stating, âÄúNothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].âÄĚ81 On November 17, the administration issued a Statement of Administration Policy which stated that Section 1031 was unnecessary because the authority it attempted to codify already existed and expressed concern about potential unintended consequences from legislative action in this area.82 78 S. Rep. 112-26 at 176 (2011), available at http://www.gpo.gov/fdsys/pkg/CRPT-112srpt26/pdf/CRPT-112srpt26.pdf. 79 See Letter from Sen. Harry Reid to Sen. Carl Levin and Sen. John McCain (Oct. 4, 2011) (stating that Sen. Reid would not bring bill to floor until concerns were resolved), reprinted in 157 Cong. Rec. S6,323-03, S6,324 (daily ed. Oct. 6, 2011). 80 S. 1867, 112th Cong. Â§ 1031 (as reported by S. Comm. on Armed Services, Nov. 15, 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf. 81 Id. Â§ 1031(d). 82 See Executive Office of the President, Statement of Administration Policy, S. 1867 âÄď National Defense Authorization Act for FY 2012 (Nov. 17, 2011), reprinted in 157 Cong. 25 In ensuing floor debates, a number of senators raised concerns that Section 1031 provided new authority to the President to detain American citizens indefinitely, with particular concern about citizens captured domestically.83 Senator Dianne Feinstein unsuccessfully proposed an amendment that would have provided: âÄúThe authority described in this section for the [military] to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.âÄĚ84 Senator Feinstein prevailed in putting forth a second proposal, however, a so-called âÄúcompromise amendmentâÄĚ85 that ultimately became Section 1021(e) and read, as enacted: âÄúNothing in this section shall be construed 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 Rec. S7,943-01, S7,952 (daily ed. Nov. 29, 2011). 83 See, e.g., 157 Cong. Rec. S7,941-01, S7,941 (daily ed. Nov. 29, 2011) (âÄúWe are talking about American citizens who could be taken from the United States and sent to a camp at Guantanamo Bay and held indefinitely.âÄĚ) (statement of Sen. Paul); 157 Cong. Rec. S7,94301, S7,945 (daily ed. Nov. 29, 2011) (âÄúThe provisions authorize the indefinite military detention of American citizens who are suspected of involvement in terrorismâÄĒeven those captured here in our own country . . . .âÄĚ) (statement of Sen. Udall); id. at S7,949 (âÄú[Section 1031] will, for the first time in the history of the United States of America, authorize the indefinite detention of American citizens in the United States.âÄĚ) (statement of Sen. Durbin); id. at S7,950 (âÄúI am . . . very concerned about the notion of the protection of our own citizens and our legal residents from military action inside our own country.âÄĚ) (statement of Sen. Webb); id. at S7,953 (âÄúAs currently written, the language in this bill would authorize the military to indefinitely detain individualsâÄĒincluding U.S. citizensâÄĒwithout charge or trial. I am fundamentally opposed to indefinite detention, and certainly when the detainee is a U.S. citizen held without charge.âÄĚ) (statement of Sen. Leahy); 157 Cong. Rec. S7,956-02, S7,961 (daily ed. Nov. 29, 2011) (âÄúSection 1031 runs the risk of authorizing the indefinite detention without trial of Americans.âÄĚ) (statement of Sen. Franken). 84 See 157 Cong. Rec. S7,716-01, S7,745 (daily ed. Nov. 17, 2011); 157 Cong. Rec. S8,09403, S8,125 (daily ed. Dec. 1, 2011). 85 Id. at S8,122. 26 captured or arrested in the United States.âÄĚ86 In advancing this proposal, Senator Feinstein observed that the dispute over Section 1031 boiled down to âÄúdifferent interpretations of what the current law is.âÄĚ87 Specifically, she noted that âÄú[t]he sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until âÄėthe end of the hostilitiesâÄô which, in my view, is indefinitely. âÄúOthers of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme CourtâÄôs Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinionâÄôs express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.âÄĚ88 Senator Feinstein went on to state that, through her second proposed amendment, the two camps would agree to disagree: âÄúSo our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever sideâÄôs view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either sideâÄôs interpretation, but leaves it to the courts to decide.âÄĚ89 Senator Carl Levin, a principal sponsor of the bill and opponent of Senator FeinsteinâÄôs first proposed amendment, supported her second proposal, stating: 86 2012 NDAA Â§ 1021(e); see 157 Cong. Rec. S8,157-02, S8,157 (daily ed. Dec 1, 2011). 87 157 Cong Rec. S8,094-03, S8,122 (daily ed. Dec. 1, 2011) (statement of Sen. Feinstein). 88 Id. (case name italics added). 89 Id. (case name italics added). 27 âÄú[I]t would provide the assurance that we are not adversely affecting the rights of the U.S. citizens in this language. . . . It makes clear what we have been saying this language already does, which is that it does not affect existing law relative to the right of the executive branch to capture and detain a citizen. If that law is there allowing it, it remains. If, as some argue, the law does not allow that, then it continues that way.âÄĚ90 Other senators, on both sides of the debate, also voiced their support and characterized the provision similarly.91 The amendment passed by a vote of 99 to 1.92 Section 1031 of the Senate bill became the conference reportâÄôs Section 1021. It passed Congress and was signed by President Obama on December 31, 2011. President Obama issued a signing statement that reiterated his position that Section 1021 âÄúbreaks no new ground and is unnecessary.âÄĚ93 He cited Sections 1021(d) and (e) as âÄúcritical limitationsâÄĚ that âÄúmake clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.âÄĚ94 He stated also that his administration âÄúwill not 90 Id. at S8,124 (statement of Sen. Levin) (paragraph break omitted). 91 See id. (âÄúTo this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. Some of my colleagues see this differently, but the language we have agreed on makes it clear that section 1031 will not change that law in any way. The Supreme Court will decide who will be detained; the Senate will not.âÄĚ) (statement of Sen. Durbin); id. (âÄúAs to Senator Durbin, he has one view, I have another, but we have a common view; that is, not to do anything to 1031 that would change the law. The ultimate authority on the law is not Lindsey Graham or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be, and that is exactly what we say here. We are doing nothing to change the law when it comes to American citizen detention to enhance it or to restrict whatever rights the government has or the citizen has.âÄĚ) (statement of Sen. Graham). 92 Id. at S8,125. 93 Statement by the President on H.R. 1540, 2011 WL 6917659, *1 (Dec. 31, 2011). 94 Id. 28 authorize the indefinite military detention without trial of American citizensâÄĚ and âÄúwill interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.âÄĚ95 E. Proceedings Below Plaintiff Christopher Hedges filed the initial complaint in this case on January 13, 2012, alleging that Section 1021 violated, inter alia, the First and Fifth Amendments and seeking declaratory and injunctive relief.96 On February 27, 2012, he filed a verified amended complaint, which added a number of plaintiffs,97 and moved for a temporary restraining order against enforcement of Section 1021, a motion that later was converted to a motion for a preliminary injunction.98 Plaintiffs submitted a number of affidavits in support of their motion, and the district court held an evidentiary hearing on March 30, 2012.99 Four plaintiffs submitted evidence that was considered by the district court and that is relevant to this appeal: two American citizens, Hedges and Alexa OâÄôBrien,100 and two non95 Id. 96 Hedges v. Obama, No. 12 Civ. 331 (KBF), Dkt. 1 (S.D.N.Y.) [hereinafter âÄúDist. Ct. Dkt.âÄĚ]. 97 Dist. Ct. Dkt. 4-1 Â¶Â¶ 2âÄď8 (adding Daniel Ellsberg, Noam Chomsky, Jennifer Bolen, Kai Wargalla, Birgitta Jonsdottir, Alexa OâÄôBrien, and US Day of Rage as plaintiffs). 98 See Dist. Ct. Dkt. 6. 99 Dist. Ct. Dkt. 10âÄď14, 17âÄď18, 34. 100 The district courtâÄôs one reference to OâÄôBrienâÄôs citizenship status stated that she is a noncitizen. Hedges v. Obama, 890 F. Supp.2d 424, 455 n.33 (S.D.N.Y. 2012). Both the 29 citizens, Birgitta Jonsdottir and Kai Wargalla.101 They are journalists or members of advocacy organizations who assert that they fear that their work makes them subject to indefinite detention under Section 1021.102 The government submitted no evidence. The district court granted the preliminary injunction by opinion filed May 16, 2012.103 It concluded that each plaintiff had an actual fear of detention under Section 1021 and that this fear was reasonable.104 In reaching this latter conclusion, the court relied in significant part on the governmentâÄôs initial refusal to represent that the plaintiffsâÄô activities would not subject them to detention under Section 1021. It rejected the governmentâÄôs contention that Section 1021 was just an âÄúaffirmationâÄĚ of the AUMF that did nothing new.105 Determining further that the expressive conduct of each plaintiff had been chilled and that each had incurred concrete costs as a reasonable complaint and OâÄôBrienâÄôs affidavit make clear that she asserts American citizenship, and there is nothing in the record suggesting otherwise. The citizenship of the various plaintiffs was not particularly relevant to the district courtâÄôs analysis. We conclude that its reference to OâÄôBrien as a non-citizen was a clerical error. 101 Hedges, OâÄôBrien, and Wargalla were the only plaintiffs to testify at the hearing. Jonsdottir did not testify but submitted an affidavit on consent of the parties. The district court did not consider the other plaintiffs, and we need discuss them no further here. In the remainder of this opinion, we refer to âÄúplaintiffsâÄĚ as denoting only these four individuals. 102 We discuss the testimony of plaintiffs in more detail as necessary below. 103 Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 1721124 (S.D.N.Y. May 16, 2012). Although the initial order could have been read to suggest that the district court enjoined Section 1021 in its entirety, see id. at *28, the court later clarified that the injunction applied only to Section 1021(b)(2), see Hedges v. Obama, No. 12 Civ. 331 (KBF), 2012 WL 2044565, *1 (S.D.N.Y. June 6, 2012). 104 Hedges, 2012 WL 1721124 at *16âÄď17. 105 Id. at *13âÄď14. 30 consequence of this fear, the court concluded that each plaintiff had standing to challenge Section 1021.106 It held that plaintiffs had shown a likelihood of success on claims that Section 1021 violated the First Amendment and was impermissibly vague in violation of the Fifth Amendment.107 Finally, it concluded that the other relevant factors supported preliminary injunctive relief.108 The government moved for reconsideration on May 25, 2012, clarifying its position by stating that, âÄú[a]s a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffsâÄô affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.âÄĚ109 By agreement of the parties, the court proceeded directly to permanent injunction proceedings (thus mooting the motion for reconsideration) and took no new evidence for purposes of the permanent injunction. Concluding that the governmentâÄôs âÄúnewly espoused positionâÄĚ did not alter its previous conclusion as to plaintiffsâÄô standing,110 the court, on September 12, 2012, âÄúpermanently enjoin[ed] enforcement of Â§ 1021(b)(2) in any manner, as to any person,âÄĚ generally affirming but also significantly expanding its prior analysis.111 It further held that âÄú[m]ilitary detention based on 106 Id. at *19. 107 Id. at *19âÄď25. 108 Id. at *25âÄď28. 109 Dist. Ct. Dkt. 38 at 4. 110 Hedges, 890 F. Supp.2d at 429. 111 Id. at 472. 31 allegations of âÄėsubstantially supportingâÄô or âÄėdirectly supportingâÄô the Taliban, al-Qaeda, or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding Â§ 1021(b)(2).âÄĚ112 This appeal followed.113 We granted a temporary stay of the district courtâÄôs order on September 17, 2012, and then granted a stay pending appeal on October 2, 2012. II. Discussion The parties raise a number of important and difficult questions, but we need not reach most of them. We consider here only plaintiffsâÄô standing under Article III of the Constitution. We begin with a brief discussion of the basic principles of Article III standing. We proceed to the proper construction of Section 1021 in relation to the AUMF. After clarifying what Congress did and did not do in passing Section 1021, we consider plaintiffsâÄô standing given the record in this case. In that regard, we address first the American citizens, Hedges and OâÄôBrien, and then the non-citizens, Jonsdottir and Wargalla. A. General Principles of Standing The judicial power of the United States, and thus the jurisdiction of federal courts, is limited by Article III of the Constitution to âÄúCases and Controversies.âÄĚ114 One aspect of this 112 Id. 113 The government had appealed the district courtâÄôs preliminary injunction order as well, and the two appeals were consolidated before this Court. The government correctly observes that its appeal of the preliminary injunction is now moot. See Webb v. GAF Corp., 78 F.3d 53, 56 (2d Cir. 1996). 114 Clapper v. Amnesty IntâÄôl USA, 133 S. Ct. 1138, 1146 (2013) (internal quotation marks omitted). 32 limitation is the requirement that the plaintiff have standing to sue, which âÄúserves to prevent the judicial process from being used to usurp the powers of the political branches.âÄĚ115 âÄúThe party invoking federal jurisdiction bears the burden of establishing standing.âÄĚ116 The âÄúâÄėirreducible constitutional minimumâÄôâÄĚ requires that (1) the plaintiff âÄúâÄėhave suffered an injury in factâÄĒan invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,âÄôâÄĚ (2) the injury be âÄúâÄėfairly traceable to the challenged action of the defendant,âÄôâÄĚ and (3) it âÄúâÄėbe likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.âÄôâÄĚ117 Actual injury-in-fact exists when a defendantâÄôs actions have inflicted a concrete, present harm on the plaintiff. But the Supreme Court has recognized that a plaintiff in some circumstances may have standing to sue even when the plaintiff shows only an imminent threat of future harm or a present harm incurred in consequence of such a threat.118 We discuss these criteria in more detail as needed below. B. The Proper Construction of Section 1021 We deal first with the meaning of Section 1021. 115 Id. 116 Id. at 1148 (internal quotation marks omitted). 117 Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560âÄď61 (1992)) (alterations, emphasis, and other internal quotation marks omitted). 118 See, e.g., Lujan, 504 U.S. at 564 & n.2; Clapper, 133 S. Ct. at 1150 n.5. 33 âÄúAs with any question of statutory interpretation, we begin by examining the text of the statute.âÄĚ119 In doing so, âÄúwe consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.âÄĚ120 It is âÄúone of the most basic interpretive canons that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.âÄĚ121 But âÄúin interpreting a statute a court should always turn first to one, cardinal canon before all others,âÄĚ namely that âÄúcourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.âÄĚ122 The AUMF authorized the President to âÄúuse all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.âÄĚ123 Section 1021(a) âÄúaffirmsâÄĚ that the AUMF authority includes the detention of a â