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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------X CHRISTOPHER HEDGES, Plaintiffs, -againstBARACK OBAMA, individually, BARACK OBAMA, as a representative of the United States of America, LEON PANETTA, individually, and LEON PANETTA, in his capacity as the executive and representative of the Department of Defense, Defendants. ------------------------------------------------------X AMICUS CURIAE BRIEF OF VIRGINIA STATE DELEGATE BOB MARSHALL, VIRGINIA STATE SENATOR DICK BLACK, DOWNSIZE DC FOUNDATION, DOWNSIZEDC.ORG, INC., U.S. JUSTICE FOUNDATION, INSTITUTE ON THE CONSTITUTION, GUN OWNERS FOUNDATION, GUN OWNERS OF AMERICA, INC., THE LINCOLN INSTITUTE FOR RESEARCH AND EDUCATION, THE WESTERN CENTER FOR JOURNALISM, CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, U.S. BORDER CONTROL, RESTORING LIBERTY ACTIONCOMMITTEE, TENTH AMENDMENT CENTER, CENTER FOR MEDIA AND DEMOCRACY, BILL OF RIGHTS DEFENSE COMMITTEE, PASTOR CHUCK BALDWIN, PROFESSOR JEROME AUMENTE, AND THE CONSTITUTION PARTY NATIONAL COMMITTEE IN SUPPORT OF PLAINTIFFS Case No. 12-CV-331 (KBF)

FRIEDMAN, HARFENIST, KRAUT & PERLSTEIN, LLP 3000 Marcus Avenue, Suite 2E1 Lake Success, New York 11042 (516) 355-9600 Of Counsel: WILLIAM J. OLSON, PC 370 Maple Avenue West, Suite 4 Vienna, Virginia 22180 703-356-5070 U.S. JUSTICE FOUNDATION 932 D Street, Suite 2 Ramona, California 92065 (760) 788-6624

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TABLE OF CONTENTS Page STATEMENT OF THE CASE........................................................................................................1 ARGUMENT ...................................................................................................................................4 I. ON ITS FACE, SECTION 1021(b)(2) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. ...........................................................................................4 A. Section 1021(b)(2) is Designedly Indeterminate. .............................................................4 B. Section 1021(b)(2) is Unconstitutionally Vague...............................................................7 1. The Definition of Covered Person in Section 1021(b)(2) is Vague...........................7 2. The Reach of Section 1021(b)(2) is Vague. ..................................................................8 C. Section 1021(b)(2) is Unconstitutionally Overbroad. .......................................................9 II. SECTION 1021 IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT IS ROOTED IN AUMF, AN UNCONSTITUTIONAL DELEGATION OF CONGRESSIONAL POWER. ..........................................................................................11

III. WITH RESPECT TO THE AMERICAN CITIZEN PLAINTIFFS, SECTION 1021 VIOLATES THE ARTICLE III TREASON CLAUSE AND IS UNCONSTITUTIONAL ON ITS FACE. .........................................................................15 IV. THE THREAT TO THE AMERICAN CONSTITUTIONAL REPUBLIC IS SERIOUS AND LASTING. .........................................................................................17 CONCLUSION..............................................................................................................................19

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TABLE OF AUTHORITIES Cases City of Chicago v. Morales, 527 U.S. 41, 56 (1999) ................................................................................................................. 8 Elfbrandt v. Russell, 384 U.S. 11 (1966) .............................................................................................................. passim Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................................................................. 14, 16 Keyishian v. Board of Regents, 385 U.S. 589 (1967) ............................................................................................................ passim Kolender v. Lawson, 461 U.S. 352, 361 (1983) ............................................................................................................. 7 United States v. Stevens, 559 U.S., 130 S.Ct. 1577, 1591 (2010) ...................................................................................... 11 Woods v. Cloyd W. Miller Co., 333 U.S. 138, 141 (1948) ..................................................................................................... 17, 18 Youngstown Sheet & Tube v. Sawyer 343 U.S. 579, 588 (1952) ............................................................................................................. 6 Statutes 50 U.S.C. 1541 ..................................................................................................................... passim AUMF Public Law 107-40 .............................................................................................................. 1 NDAA 1021& 1022 ............................................................................................................ passim U.S. Constitution Article III, Section 3, Clause 1............................................................................ 3 Other Gans, David H., Strategic Facial Challenges. 85 BOSTON UNIV. L. REV. 1333, 1371 (2005)7 L. Tribe, American Constitutional Law 4-7, p. 232 (2d ed. 1987) ........................................ 12, 16 The Federalist No. 43 at pg. 224 (G. Carey & J. McClellan, eds., Liberty Fund, Indianapolis: 2001).......................................... 15 The Federalist No. 78 at pg. 404 (A. Hamilton) ............................................................................................................................. 18

ii

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STATEMENT OF THE CASE On September 18, 2001, just 7 days after 9/11, Congress acting in the heat of passion against acts of treacherous violence ... committed against the United States and its citizens enacted into law the Authorization for Use of Military Force (AUMF), Public Law 107-40. By this joint resolution, Congress authorized the President: (a) to identify the nations,

organizations, or persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001; and (b) to determine the necessary and appropriate force to be used against those identified and any others who harbored them. Such authority was conferred upon the President in order to prevent any future attacks of international terrorism against the United States by such nations, organizations or persons. See 50 U.S.C. 1541 note. A decade later, on December 31, 2011, Congress enacted into law section 1021 of the National Defense Authorization Act of 2012 (NDAA), affirming that the Presidents authority under AUMF include[d] the authority for the Armed Forces of the United States to detain covered persons, as defined by section 1021(b), pending disposition under the law of war. While the persons covered by NDAA included persons responsible for 9/11 (section 1021(b)(1)), the purpose of the Act was not primarily to affirm the means by which persons would be punished for past acts of terrorism. Rather, the main purpose was to provide for the preventive detention of persons who are engaged in hostilities against the United States or its coalition partners in the present and on into the future. See NDAA section 1021(b)(2)

(emphasis added). To the latter end, Congress elected to align its definition of covered persons in section 1021(b)(2) with the Obama Administrations view of those persons who are subject to

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the law of war, including preventive detention, as had been submitted in a court brief on March 13, 2009.1 In his statement explaining his decision to sign NDAA into law, President Obama emphasized that section 1021 breaks no new ground and is unnecessary, accomplishing nothing more than [to] confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.2 Further, the President explained that sections 1021(d) and (e) were deliberately designed to codif[y] established authorities. Id. And he maintained that those authorities, in turn, best preserve[] the flexibility on which our safety depends and uphold[] the values on which this country was founded. Id. This is precisely the position taken by counsel for defendants (Government counsel) at the hearing on plaintiffs motion for a preliminary

In its March brief, the Obama Administration asserted: The President ... has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda 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 the aid of enemy forces. [Respondents Memorandum Regarding the Governments Detention Authority, U.S. District Court, District of Columbia, Misc. No. 08-442 (TFH) (Mar. 13, 2009) (emphasis added) (hereinafter Government Memorandum on Detention Authority) http://www.justice.gov/opa/documents/ memo-re-det-auth.pdf/.] NDAA section 1021(b)(2) tracks this language closely: 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 the aid of enemy forces. [Emphasis added.] See also Congressional Research Service, Jennifer K. Elsea, Michael John Garcia, The National Defense Authorization Act for FY 2012: Detainee Matters, pp. 6-7 (Jan. 11, 2012) (CRS Detainee Report). http://www.fas.org/sgp/crs/natsec/R42143.pdf. 2 Statement by President Obama on H.R. 1540 (Dec. 31, 2011) (hereinafter Signing Statement). http://www.whitehouse.gov/the-press-office/2011/12/31/statementpresident-hr-1540. 2

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injunction. See Hedges v. Obama, Transcript of PI Hearing, pp. 214, l. 19 - 215, l. 2. (U.S.D.C. S.D.N.Y., 12 Civ.331) (Mar. 30, 2012) (hereinafter Tr.).3 In sum, NDAA section 1021(b)(2)s definition of those persons who may be detain[ed] ... pending disposition under the law of war is one that has been fashioned by the President, not by Congress, and is designed to be construed and applied by counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people.... Signing Statement (emphasis added). Even viewed in this light most favorable to the Government, section 1021(b)(2) is unconstitutional on its face. Argument I demonstrates that section 1021(b)(2) is fatally vague in violation of the notice principle embodied in the Fifth Amendment due process guarantee, and fatally overbroad in violation of the First Amendment guarantee of the freedom of speech. Argument II shows that section 1021(b) is unconstitutional on its face because its authority is completely dependent on AUMF which, in turn, is based upon an unconstitutional delegation of the power to declare war to the President. Argument III shows with respect to plaintiff U.S. citizens that section 1021 on its face violates Article III, Section 3, Clause 1 of the U.S. Constitution. Argument IV demonstrates section 1021 is not a light or transient matter.

Of course, nothing President Obama or his Department of Justice says about how this vague statute would be interpreted and applied tells us anything about any future president, and President Obama has only nine more months in his current term of office. 3

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ARGUMENT I. ON ITS FACE, SECTION 1021(b)(2) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. A. Section 1021(b)(2) is Designedly Indeterminate.

At the March 30, 2012 hearing, Government counsel was asked by the Court to clarify two key terms substantially support4 and associated forces5 appearing in section 1021(b)(2). At each opportunity, Government counsel declined. When asked for an example of substantial support, Government counsel replied: Im not in a position to give specific examples.6 When asked for one example of a statutory boundary around associated forces, Government counsel responded with an example of an armed group that a court had found to be an associated force.7 In response, the Court asked: [A]re we to have to wait until courts ... decide on a fact scenario who the associated forces are? Is that the only way we can figure this out?8 To which question Government counsel had already given the answer: it will be ... on a case-by-case determination of what precisely may be permissible on consideration of habeas applications being made by detainees.9 This is not the first time that Government lawyers have taken this position. In its January 11, 2012 report to Congress, Congressional Research Service attorneys reported that:

4 5 6 7 8 9

Tr., pp. 224, l. 14 - 225, l. 1. Tr., pp. 227, l.24 - 228, l. 1. Tr., p. 226, ll. 10-16. Tr., p. 228, ll. 2-10. Tr., p. 229, ll. 8-10. Tr., p. 227, ll. 7-11. 4

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In its 2009 brief, the government declined to clarify these aspects of its detention authority: It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of substantial support, or the precise characteristics of associated forces, that are or would be sufficient to bring persons and organizations within the foregoing framework. [CRS Detainee Report, p. 7 (emphasis added).] Instead, it is Government policy that: Section 1021 does not attempt to clarify the circumstances in which a U.S. citizen ... captured within the United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if the executive branch decides to hold such a person under the detention authority affirmed in Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention when it enacted the AUMF in 2001. [Id. at 16 (emphasis added).] After a survey of the relevant cases, the CRS report concludes that, regardless of their citizenship, the circumstances in which persons captured in the United States may be subject to preventive military detention have not been definitively adjudicated. Id. (emphasis added). Because of the lack of definitive judicial resolution as to whether U.S. citizens could be preventively detained under AUMF, attempts were made in Congress to adopt an amendment to NDAA that would have expressly barred U.S. citizens from long-term military detention on account of enemy belligerent status.... Id. at 15. The amendment was considered and rejected. Id. Thus, the CRS report concludes that the legality and constitutionality of the preventive detention of U.S. citizens, even those captured on American soil, is left unsettled by section 1021. Id. at 10. Actually, the definitional standard by which a court is to make the decision whether a person is subject to preventive detention under NDAA section 1021 is not only unsettled, it is deliberately indeterminate. For example, the CRS report states that the

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inclusion of associated forces in the definition of covered persons is a category of indeterminate breadth, as is the substantial support prong of the executives description of its detention authority.... CRS Report, p. 7 (emphasis added). The definition of covered persons subject to preventive detention was deliberately left unsettled and fluid, in order to maximize presidential discretion. Indeed, since 9/11, Congress has given the President carte blanche power to determine how and against whom he would take the nation to war. That very process policy by presidential initiative and congressional acquiescence does not yield the rule of law. Rather, it bows down to executive prerogative. Instead of Congress setting the rules to govern the Presidents actions, Congress delegates the rule making power to the President and, then, acquiesces to those rules. That is exactly what happened in the formulation of NDAA section 1021(b)(2). As pointed out, supra, the definition of covered person in section 1021(b)(2) appeared initially in a U.S. Department of Justice brief filed in the case known as In re Guantanamo Bay Detainee Litigation. CRS Detainee Report, p. 7, n.18. Instead of exercising its independent judgment to fashion a rule to govern the exercise of presidential discretion, Congress has simply conformed section 1021(b)(2) to accommodate executive experience and practice. This is not the process by which law is to be made under the United States Constitution. Paraphrasing Justice Hugo Blacks keen observation in Youngstown Sheet & Tube v. Sawyer: section 1021(b)(2) does not direct that a congressional policy be executed in a manner prescribed by Congress it directs that a presidential policy be executed in a manner prescribed by the President. See id., 343 U.S. 579, 588 (1952).

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B.

Section 1021(b)(2) is Unconstitutionally Vague.

A legislature has a constitutional duty to define the conduct it chooses to make criminal in order to preserve the rule of law.10 Otherwise, courts will be left with little guidance to assess whether a particular person is entitled to constitutional and legal criminal procedural protections, or whether he is subject to indefinite detention or trial by military commission. A vague statute gives excessive discretion to the President permitting discriminatory treatment, resulting in a breakdown of the rule of law. See Gans Facial Challenges at 1359-61.11 The liberty interest of the individual is even more paramount in times of war, for at stake is whether the person may be held indefinitely without trial (or trial by military commission), or whether that person entitled to the procedural safeguards of the Bill of Rights. 1. The Definition of Covered Person in Section 1021(b)(2) is Vague.

NDAA section 1021(b)(2)s definition of covered person is permeated with vagueness. First, section 1021 contains absolutely no mens rea requirement.12 A person may be found to have substantially supported al-Qaeda or the Taliban without any intent, knowledge, recklessness, or even negligence, or to have given such support to associated forces without any intent, knowledge, recklessness or negligence as to whether those forces were engaged in hostilities

See David H. Gans, Strategic Facial Challenges, 85 BOSTON UNIV. L. REV. 1333, 1371 (2005), http://128.197.26.36/law/central/jd/organizations/journals/ bulr/volume85n5/Gans.pdf (hereinafter Gans Facial Challenges). 11 President Obamas plea for flexibility to protect the safety of the American people in the nations war against international terrorism is no different from similar efforts in the 1970's and 1980's for law enforcement tools to combat the epidemic of crime that plague[d] our Nation. See Kolender v. Lawson, 461 U.S. 352, 361 (1983). As was true with regard to the war on crime, so the war on terrorism cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity. See id. 7

10

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with the United States or its partners. A person could also be found to have committed a belligerent act ... in aid of ... enemy forces without any proof of intent, knowledge, or breach of any standard of care. Finally, a person could be found to have directly supported ... hostilities against the United States or its partners in aid of ... enemy forces without having any idea that such an act was being committed. Having dispensed with any mens rea requirement whatsoever, section 1021(b)(2) fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits [and] may authorize and even encourage arbitrary and discriminatory enforcement. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (emphasis added). Indeed, it appears from the legislative history that the section 1021(b)(2) definition of covered person was left deliberately indeterminate in order to maximize presidential discretion, at the price of abandoning the rule of law. 2. The Reach of Section 1021(b)(2) is Vague. While President Obama has

attempted to reassure American citizens in his December 2011 signing statement, such assurance, like section 1021(b)(2), is vague. The President has stated that he want[ed] to clarify that [his] administration will not authorize the indefinite military detention without trial of American citizens, but when asked by this Court to clarify whether without trial meant a military or civilian trial, Government counsel stated that he would have to look at the signing statement again.13 Later, Government counsel asserted emphatically that, if a person is an American citizen, the Presidents signing statement would make his fear of indefinite detention

Nor is there any mens rea requirement in the AUMF text. It makes an unwitting appearance, if at all, only in case law. See Tr., pp. 230, l. 30 - 232, l. 10. 8

12

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under this provision unreasonable.14 But a presidential signing statement is not binding law on President Obamas successor in office; indeed, the statement does not even estop the president who wrote it. Some claim that NDAA section 1022(b)(1) exempts U.S. Citizens from detention, but that exemption is only from mandatory detention, not detention at the discretion of the president.15 Additionally, some claim that NDAA section 1021(e) exempts U.S. citizens from preventive detention: Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens ... who are captured or arrested in the United States. [Emphasis added.] And, as detailed above, the executives existing authority to detain U.S. Citizens is left to the courts to decide case by case. CRS Detainee Report, p. 16. C. Section 1021(b)(2) is Unconstitutionally Overbroad.

NDAA section 1021(b)(2)s unconstitutional vagueness also imposes a chilling effect upon the exercise of the First Amendment freedoms of speech, press, and assembly. As the Supreme Court stated in Keyishian v. Board of Regents, 385 U.S. 589 (1967), precision of regulation must be the touchstone in an area so closely touching our most precious freedoms...

Tr., p. 237, ll. 16-25. Tr., p. 244, ll. 8-10. 15 Section 1022(b)(1) reads: The requirement to detain a person in military custody under this section does not extend to citizens of the United States. (Emphasis added.) As the plain language of this provision states, American citizens are exempt only from the military detention required under section 1022(a); such citizens are not exempted from the preventive detention permitted by section 1021(a). As the CRS report has stated, NDAA authorizes the detention of certain categories of persons and requires the military detention of a subset of them.... Id. at 1 (emphasis added). Thus, if a U.S. citizen is found to be a
14

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for standards of permissible statutory vagueness are strict in the area of free expression... Id. at 603. There is no doubt that the plain language of section 1021(b)(2) could reach journalists, Internet bloggers, political activists, and others engaged in First Amendment activities. Any publication of views contrary to the official government policy concerning the war on terror could be construed as substantially supporting not only al-Qaeda and the Taliban, but also associated forces. And certainly membership in an associated force could well be construed to constitute substantial support of al-Qaeda or the Taliban. Under questioning by the Court at the March 30 hearing whether section 1021(b)(2)s associated forces would reach political advocacy activities, Government counsel replied that for ten years this authority has been in existence and the government has never taken the position that any kind of independent advocacy or expression [like that engaged in by Plaintiff Hedges] could put someone within that authority16 and that associated forces cannot extend to groups that are not armed at all.17 Remarkably, in making these and like statements, Government

counsel did not base them upon any construction or interpretation of the language of section 1021(b)(2). Rather, counsel relied solely upon the claim that the Government has chosen not to extend its preventive detention so far, noting that during that entire time the Government had the same authority as it does now under section 1021 and the plaintiffs have been engaging in the

covered person as defined by section 1022(a)(2), requiring detention, the citizen is still subject to permissible preventive detention under section 1021(a). 16 Tr., p. 237, ll. 7-10. 17 Tr., p. 236, ll. 17-18. 10

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same activities that they claim fear and nothing has happened to them.18 But, as the Supreme Court recently ruled, the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. United States v. Stevens, 559 U.S., 130 S.Ct. 1577, 1591 (2010). As Chief Justice Roberts observed: The Governments assurance that it will apply [a statutory provision] more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading. Id. The U.S. Supreme Court ruled long ago that making it unlawful to join, or otherwise to support, an organization without knowledge of [its] unlawful purposes and specific intent to further its unlawful aims would run afoul of the Constitution. Keyishian, 385 U.S. at 606-07. As noted above, section 1021(b)(2)s definition of covered person contains no mens rea requirement whatsoever, much less the specific intent requirement commanded by the First Amendment. Thus, section 1021 is overly broad, violating the rights of American citizens to the freedoms of speech, of the press, and of association. See Elfbrandt v. Russell, 384 U.S. 11 (1966). II. SECTION 1021 IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT IS ROOTED IN AUMF, AN UNCONSTITUTIONAL DELEGATION OF CONGRESSIONAL POWER. In his signing statement, President Obama stated: Section 1021 affirms the executive branchs authority to detain persons covered by the 2001 [AUMF].... This section breaks no new ground and is unnecessary. Indeed, section 1021 presupposes that the law of war is applicable to American citizens in an ongoing offensive war against international terrorism, having been invoked by Congress with the
18

Tr., p. 242, ll.17-21. 11

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passage of AUMF. This further assumes that AUMF is the product of a constitutional exercise of Congressional power, delegating to the President the power to define and identify the enemy and to determine the means by which that enemy will be deterred from future attacks. These assumptions of constitutionality are false. In the preamble to AUMF, Congress asserted that the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States. (Emphasis added.) This broad statement is untrue. It has long been recognized that a Presidents unilateral authority to employ military force is constitutionally limited to repel sudden attacks. See L. Tribe, American Constitutional Law 4-7, p. 232 (2d ed. 1987) (emphasis added). Accordingly, as Professor Tribe has observed, the Supreme Court in the Prize Cases recognized an inherent executive power, exercised derivatively through the Commander in Chief clause, to repel an invasion or rebellion without first seeking legislative approval.19 Id. (emphasis added). President Obamas reading of AUMF, however, assumes that a President also has the unilateral constitutional authority to deter and prevent acts of international terrorism, rendering it unnecessary for Congress to make the rules governing the Presidents use of military force in the nations ongoing war against international terrorism. But it is Congress, not the President, that has the enumerated power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. Constitution. See Article I, Section 8, Clause 10, U.S.

19

See 67 U.S. (2 Black) 635 (1863). 12

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Moreover, Article I, Section 8, Clause 11 of the United States Constitution vests Congress with the power to declare war. That power includes the prerogative to determine whether the nation is legally entitled to take the nation into war and whether it is prudent to do so. See J. Tuomala, Just Cause: The Thread that Runs So True, 13 Dick. J. of Intl Law 1, 4147 (1994). In order to make the legal judgment to go to war, the nation or other body against which war is being declared must be identified specifically. The legal judgment that is required cannot be exercised generally, as in the AUMF. Likewise, the prudential judgment of counting the cost20 cannot be performed generally, but must be specific lest the nation discover later that it did not have the resources necessary to defeat the enemy. Both of these twin decisions are to be made by Congress, not by the President, and cannot be delegated. Id. at 45. Only after Congress has made both the legal and the prudential decisions to go to war may the President as Commander-in-Chief prosecute the war effort, including designating certain individuals to be enemy combatants, subject to the jurisdiction of military commissions, not civilian courts. AUMF, however, authorizes the President to use all necessary and appropriate force against those ... he determines were responsible for 9/11. (Emphasis added.) Accordingly, by the terms of AUMF, it was the President, not Congress, who in effect declared war against the Taliban in Afghanistan. And, because AUMF also delegates to the President the power to use armed force in order to prevent future acts of international terrorism against the United States, it is the President, not Congress, who has the power to take any war including the war against terrorism to any other nation, organization, or person. AUMF, then, is unconstitutional because it purports to delegate to the President the authority to make both the legal and the
20

See, e.g., Luke 14: 31-32. 13

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prudential decisions to invoke the nations war power. After unconstitutionally imposing a state of war upon the nation, the Government may not claim AUMF as the authority for section 1021. Nor can the Government rely on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its contention that NDAA section 1021 is constitutionally legitimate. To be sure, Hamdi ruled that an American citizen was not constitutionally entitled to the procedural protections of the Bill of Rights as they apply to a criminal prosecution if the citizen was an enemy combatant. But the Hamdi court stated that it would only decide the narrow question before it; namely, whether an American citizen carrying a weapon against American troops on a foreign battlefield was an enemy combatant. Id. at 522, n.1. The constitutionality of AUMF was not addressed by the Court. Additionally, the Court left the question entirely open whether a citizen arrested on American soil could be detained without trial until the end of hostilities, or whether the Government was obliged by the Constitution to comply with the Bill of Rights guarantees extended to criminal defendants. As the Congressional Research Service has documented, since Hamdi, it has not yet been definitely adjudicated whether an American citizen captured in the United States can be treated as an enemy combatant. CRS Detainee Report, p. 16, n.67. Although the U.S. Court of Appeals for the Fourth Circuit has extended the Hamdi ruling to two such citizens, the Government tactically declined to avoid obtaining a definite ruling on that issue when it chose to transfer[] [the detainee] to civilian law enforcement custody for criminal prosecution before the Supreme Court could consider the merits of the case. Id.

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III.

WITH RESPECT TO THE AMERICAN CITIZEN PLAINTIFFS, SECTION 1021 VIOLATES THE ARTICLE III TREASON CLAUSE AND IS UNCONSTITUTIONAL ON ITS FACE. Although NDAA section 1021(b)s definition of covered person may not discriminate

between enemy combatants who are United States citizens and other such combatants who are not such citizens, the Treason Clause in the United States Constitution does: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. [Article III, Section 3, Clauses 1 and 2 (emphasis added).] In Federalist No. 43, James Madison explained that the Treason Clause was one of the enumerated powers of the federal government.21 By defining treason in the Constitution and placing it in Article III, the founders intended the power to be checked by the judiciary, ruling out trial by military commission. As Madison noted, the Treason Clause also was designed to limit the power of the federal government to punish its citizens for adhering to [the United Statess] enemies, giving them aid and comfort. In such cases, Madison warned: [N]ew-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other. [Id. (emphasis added).] Therefore, Madison concluded, the Constitutional Convention:

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it.... [The Federalist, p. 224 (G. Carey & J. McClellan, eds., Liberty Fund, Indianapolis: 2001).] 15

21

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with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the congress, even in punishing it, from extending the consequences of guilt beyond the person of its author. [Id. (emphasis added).] The Government appears to believe that Congress and the President may ignore these constitutional strictures and, in reliance on the war power, treat an American citizen who is allegedly substantially support[ing] al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States, as an enemy combatant, with complete discretion not to charge that person with the crime of treason to circumvent the substantive and procedural protections of Article III, Section 3. According to the Treason Clause, an American citizen may not be punished for levying war or adhering to the nations enemies under any statute other than one complying strictly with the Constitutional definition of treason.22 As Joseph Story observed, there is very good reason that treasons true nature and limits should be exactly ascertained: [A] charge of this nature, made against an individual, is deemed so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in the times of high political excitement, acts of a very subordinate nature are often, by popular prejudices ... magnified into this ruinous importance. [2 J. Story,

Hamdi should not be read to the contrary. As Justice OConnor emphasized, Hamdi, although an American citizen, was captured in a foreign combat zone, not arrested on American soil. Id. 542 U.S. at 523. Section 1021(b)(2) sweeps more broadly, reaching citizens and their actions on American soil. As Professor Tribe has noted, in Ex parte Milligan the Court held that martial law during the Civil War could not be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed, L. Tribe, American Constitutional Law at 4-7, p. 238. See also Hamdi, 542 U.S. at 554-63 (Scalia, J., dissenting). As Justices Scalia and Stevens observed in their Hamdi dissent, [w]here the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Id. at 554. 16

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Commentaries on the Constitution, 1797, p. 577 (5th ed., Little, Brown: 1891) (emphasis added).] The true nature of NDAA section 1021's definition of covered person as one who substantially supports or commits a belligerent act is precisely the kind of indeterminate definition that is prohibited by the Treason Clause. As Story also observed, any departure from the constitutional definition alone is sufficient to make any government degenerate into arbitrary power. Id. IV. THE THREAT TO THE AMERICAN CONSTITUTIONAL REPUBLIC IS SERIOUS AND LASTING. It is generally assumed that the law of war is temporary, and that the powers conferred by AUMF and NDAA section 1021 will cease when the war effort against those responsible for the attacks against the nation on 9/11. But AUMF authorizes the President not only to use all necessary and appropriate force against those nations, organizations, or persons he determines were responsible for 9/11, but also to prevent any future acts of international terrorism. (Emphasis added.) So the end of hostilities will not occur until the war on international terrorism comes to an end. Thus, the law of war invoked by AUMF, and continued under NDAA section 1021, will continue so long as the President determines that the threat of future acts of terrorism, whatever their source, continues. The Supreme Court has ruled that, the war power does not necessarily end with the cessation of hostilities. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 141 (1948). In that light, the Court warned that, because the effects of war under modern conditions may be felt in the economy for years and years, the war power may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. Id. at 143-44. Rather 17

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than assume the end of hostilities, and thus the cessation of the law of war, it would be wise to heed these words of wisdom penned by Robert Jackson, a former attorney general, then sitting as an associate justice of the U.S. Supreme Court: [T]he arguments that have been addressed to us lead me to utter more explicit misgivings about war powers than the Court has done. The Government asserts no constitutional basis for this legislation other than this vague, undefined and undefinable war power. No one will question that this power is the most dangerous one to free government in the whole catalogue of powers. It is usually invoked in haste and excitement, when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by judges under the influence of the same passions and pressures. [Id., at 146 (Jackson, J., concurring).] While Justice Jackson recognized that even the judiciary could be caught up in the emotions of war, it is incumbent on the third branch of government to exercise its independent judgment.23

As Alexander Hamilton wrote in Federalist No. 78: The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. The Federalist, p. 404.

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CONCLUSION Amici curiae urge the Court to exercise its solemn duty and rule that NDAA section 1021 is unconstitutional on its face.

Dated: Lake Success, New York April 16, 2012 Respectfully submitted,

_________/s/_______________________ Steven J. Harfenist (SJH 6930) FRIEDMAN HARFENIST KRAUT & PERLSTEIN LLP 3000 Marcus Avenue, Suite 2E1 Lake Success, New York 11042 (516) 355-9600 [email protected] OF COUNSEL: Herbert W. Titus William J. Olson John S. Miles Jeremiah L. Morgan Robert J. Olson WILLIAM J. OLSON, PC 370 Maple Avenue West, Suite 4 Vienna, Virginia 22180 703-356-5070 [email protected] Gary G. Kreep U.S. JUSTICE FOUNDATION 932 D Street, Suite 2 Ramona, California 92065 (760) 788-6624 [email protected]

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