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C875hedA argument UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x CHRISTOPHER HEDGES, ET AL., Plaintiffs, v. BARACK OBAMA, et al., Defendants. ------------------------------x August 7, 2012 2:12 p.m. Before: HON. KATHERINE B. FORREST, District Judge APPEARANCES BRUCE I. AFRAN Attorney for Plaintiffs MAYER LAW GROUP, LLC Attorneys for Plaintiffs BY: CARL J. MAYER APPEAL FOR JUSTICE Attorneys for Plaintiffs BY: DAVID H. REMES PREET BHARARA United States Attorney for the Southern District of New York BY: BENJAMIN TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorneys ALSO PRESENT: ROBERT JAFFE, of Counsel RITA AGUE ZACH LISZKA SAM AFRAN, paralegal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 Civ. 331 (KBF)

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argument

(Case called) THE COURT: Counsel, please state your names for the MR. REMES: David Remes. MR. AFRAN: Bruce Afran. MR. MAYER: Carl Mayer for plaintiff. THE COURT: Good afternoon, all. MR. TORRANCE: For the government, your Honor, Benjamin Torrance. Good afternoon. THE COURT: Good afternoon, Mr. Torrance. MR. HARWOOD: Chris Harwood for the government. THE COURT: Let me understand who else is sitting at counsel table here. From the left we have seen you before here. MR. JAFFEE: Robert Jaffee, of counsel. THE COURT: All right. MS. AGUE: Rita Ague, certified legal assistant. THE COURT: Okay. MR. LISZKA: Zach Liszka, Cardozo Law student. MR. AFRAN: Your Honor, may I acknowledge an undergraduate, Sam Afran, who has been a paralegal on our case? THE COURT: Terrific. I like to see who is around. We are here today for the final arguments in the motion for a permanent injunction in this proceeding. Let me just do a couple of housekeeping matters first and then I want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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3 C875hedA argument to go through and throw out some questions for you all that you can think about and work into your arguments. The housekeeping is that for the record, by consent, the trial record in this matter is limited to that which we had established during the proceeding on March 29th, 2012, and there were a limited number of exhibits which had been admitted during that proceeding and that constitutes the factual record in this matter. Is there any dispute or debate about that fact? MR. AFRAN: No, your Honor. MR. TORRANCE: No, your Honor. THE COURT: All right. I have also read the briefs very closely, as well as the cases, and so when you make your arguments you need not necessarily go back through and assume that I haven't read things, although you can of course feel free to emphasize whatever you would like to emphasize on from the briefs themselves. Let me give you each some questions. I have a number of other questions which will, as you know, come out as we're going along which is my way of proceeding, but I will go through the questions for the plaintiffs first and then for the government. The first two questions are for each of you. One is I assume that we all agree that plaintiffs bear the burden of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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4 C875hedA argument proof as to each element of standing. However, standing will, in part, be based upon whether or not there is an objectively reasonable fear of detention under the statute, and I assume that it is the government's burden to help us understand what the statute means so that we can figure out whether or not the plaintiffs have an objectively reasonable fear. That is what I'm going to call a nuance on the burden of proof. It adds not an element to the standing but a question to the standing, which is, If you don't understand what it is necessarily that you're supposed to be in fear of, who bears the burden of clarification, if you will. So, I will have you each address that. The second is whether or not either side sees any difference in between a permanent and preliminary injunction in terms of standing. If you do think that there are any differences, I would like to know about it. Let me go through some questions for the plaintiffs. And, these are by no means the only questions I will have, but these are a few things that I will throw out: Is there anything in the public record that does not require going to anything outside of the public record that demonstrates that the plaintiffs have still continued to work in the same areas in which they were working in before? In other words, has Mr. Hedges published anything else or has Ms. O'Brien published anything else that is actually cited in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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5 C875hedA argument the public record and available? Another question is what is the plaintiff's basis for believing that the government, which has stated that these particular plaintiffs -- and I won't try to paraphrase our language, we are all well now familiar with it -- do not have to fear detention under the statute. What is the basis of the view by the plaintiffs that the government is likely to change its mind? Or do the plaintiffs not have that view? Would they agree that the government is not likely to change its mind? And, if so, why would there be standing still? I would like the plaintiffs to explain why the word "independent," as used by the government in connection with their discussion of what kind of conduct will not subject the named plaintiffs here to detention under 1021, why they have a problem with the word "independent." MR. AFRAN: Could your Honor repeat that? I'm sorry. THE COURT: Yes. The plaintiffs have made a big point out of the word "independent" adding an additional element of vagueness, if you will, to 1021 or an interpretation of 1021. I don't quite get why the word "independent" adds such confusion. It strikes me as a word. All words are open to meaning but "independent" doesn't strike me as a particularly vague word. In terms of the First Amendment, I would like the plaintiffs to address -- and also this will be for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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6 C875hedA argument defendants as well but I will go through the government's questions in a moment -- must a statute be aimed at First Amendment activities for a facial challenge or must it merely reach First Amendment activities? Obviously here I have already stated that I don't believe the statute is aimed primarily at First Amendment activities, but for a facial challenge is reaching First Amendment activities going to be sufficient. Then, in the Stevens case, which is a case which I assume you folks are familiar with, it has been cited, the Stevens case talks about, that's the Chief Justice Roberts case where he, very recently, talks about a statute being considered problematic and he talks about judging the constitutionality of a statute in relationship to its plainly legitimate sweep. And the question for the Court is what is the metric that the Court is to use to determine the plainly legitimate sweep of a statute? Are you measuring, for instance, what the core heart of the statute is against conduct which either on the fringe or deeper in than the fringe gets swept up, or is it something else? I note that the Stevens case also states that it is impossible to determine whether a statute reaches too far without first knowing what it covers. But, I would like to have the plaintiff's view on what is the metric that the Court is to use to determine how I weigh the conduct. I am almost done with questions for the plaintiff. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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7 C875hedA argument have a lot of them here. I would like to know whether or not that plaintiffs believe SEC v. Fox, June 21st, 2012, whether or not you think that is relevant to this case and you folks are, I'm sure, prepared to address that. And then also the Second Circuit Rothenberg case which also talks about construing a statute in its overall context. I would like you to comment on that. And then also what the retroactive impact of an injunction, in your view, would be. If there were a permanent injunction to issue, would there be any retroactive impact on anyone. MR. AFRAN: I'm sorry, your Honor. That was a question for the plaintiffs? THE COURT: Yes. Now I'm going to go to the defendants. They're going to have that same question. The defendants or the government still has the same questions on the burden of proof and whether or not the government believes that they have any burden at all in connection with the burden of proof on standing, assisting us and helping us define the conduct which the plaintiffs would, may or may not have an actively reasonable fear of detention for, or with respect to. And the question also for the government is what do you mean by the word "independent" when you talk about independent as used in the context of your phrasing of the kind of conduct for these plaintiffs that would not be reached. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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8 argument I would like to know whether or not anyone has been detained at all under 1021 and whether or not anybody has been detained under the AUMF as originally drafted, and whether or not anybody has been detained under the AUMF as drafted and interpreted by the March 2009 brief, then underneath that whether or not anybody has been detained underneath the AUMF as most expansively determined by the government relating at all to any journalistic or written activities. In other words, is there anybody in Guantanamo who has been detained under the AUMF or under the March 2009 interpretation which expands or elucidates -- however you want to describe a detention authority -- whether or not anybody who is sitting there or is detained there or anywhere else, I'm just using that as an example, for juristic activities. I note that on page 2 of the government's brief they, just to give you a sense of where I am coming from, Mr. Torrance and Mr. Harwood, on page 2 of your brief you state that plaintiffs can't point to a single example of the military's detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention. So, while the plaintiffs can't point to it I'm wondering whether or not there is any -- anybody has been detained for those similar activities who we just don't know about. There may be cases, for instance, reported cases, some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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9 C875hedA argument of the habeas cases that are cited down in D.C. Or not. Let me go on. For the government, is it the government's position that the plaintiffs need to make their own independent determination of activity that might run afoul of 1021? And, am I correct that the comment by the government as to the conduct of plaintiffs, which they need not be concerned about bringing them within the ambit of 1021, is limited to, and I think this is clear on its face but I just want to confirm, that activity which was specifically described in the trial record before this Court? In other words, past tense. Another way of putting it. Anything that Mr. Hedges may have written since is not intended to be covered by that particular statement. I would like to understand the evolution of the AUMF. One thing I am concerned about is the AUMF starts off at 9/11 and in a number of cases, let's take the Hamdi case in 2004 which is a case that people recite and have cited to quite a lot, there is a discussion there of some of the language that then eventually finds its way into 1021 but that was tied, really, to the 9/11 conduct. So, I understand that there is an evolution of the AUMF that results eventually in the March 2009 memorandum and the question for the government is walk me through how that evolution occurs and when and pursue it to what authority. Is it an executive power or a legislative power? A war power under the executive power? Under what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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10 C875hedA argument power was the government expanding the definition of detention authority? Has anybody ever been detained not in the field of battle for 1021 or for the AUMF/march 2009 interpretation of that? For the defendants, a similar question I asked the plaintiff: What is to prevent the government from changing its mind as to whether or not it will detain these plaintiffs? Since there is an election in the offing, how do we have comfort that the new administration would take the same position as the current administration? The government may also find it useful to comment on the Stevens case. I would also like to hear the government's view as to whether or not a statute must be aimed at First Amendment activities or merely reach them in order for there to be a facial challenge. Does it have to be aimed or merely reached for a facial challenge? All right, the metric, the same question I had for the plaintiffs which is if I am supposed to consider the array of conduct that is captured or intended to be captured by a statute and measure the impact of the First Amendment conduct that's captured, what is the metric that I am supposed to be applying? For the government, since I think I -- well, the plaintiffs can comment as well but it is really more for the government. Is there a reasonable fear of self-censorship SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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11 C875hedA argument based on the defendant's statement regarding what conduct will not be captured by detention? And I am thinking about the Secretary of State of Maryland v. J.H. Munson case which is a Supreme Court case in 1984 which also quotes Broadrick v. Oklahoma case. Here is a good one for you: The International Law of War. The government spends a lot of time talking about the international Law of War. In the al-Bihani case it appears that they take the position which the government does note in its papers, that the Law of War is not an authority for the U.S. Courts to rely upon because it is necessarily flexible and it says that the lack of controlling force and firm definition renders their use both inapposite and inadvisable. So, I'm wondering how this Court -- this is a D.C. circuit case, it is not a Second Circuit case, it is not a Supreme Court case, but should this Court -- is the government's point that this Court should use the Law of War to assist it in interpreting some of the definitions? My last question for the government is the variety of language that is relied upon for 1021 comes out of the Military Commission Act, out of the MCA. The MCA is then really the statute that forms the basis for many of the cases which are brought before the D.C. District Court and then go up on to appeal and the MCA has a whole series of definitions which are included within it including terrorist act, including enemy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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12 C875hedA argument belligerent, alien and enemy belligerent -- I have the statute here. Is when the government takes the position that when the legislature legislates against the background of different laws and executive pronouncements, is it the government's position that you are including the Military Commission Act within that background? So, is 1021 written against the background of the Military Commission Act? All right. I know that's a lot, but these are the points which perhaps you were already going to cover and can work into whatever statements you were going to make. All right? Now, let's go. It is the plaintiff's motion. Mr. Remes, Mr. Afran, Mr. Mayer, who is going to start? MR. AFRAN: Mr. Remes will start, then Mr. Mayer, and then I will speak. We only ask that as plaintiffs we would like the right of rebuttal following the government's presentation. THE COURT: Here is what I suspect. I suspect that -I mean, you have been before me now. You know that I won't let you get very far before I'm peppering you with questions and I may interrupt you to ask them for their position and whether I have gotten something right. I will give you a chance to make your last final points in rebuttal before we close but I can't guarantee you how that's actually going to evolve, if you will. MR. AFRAN: We did not expect a linear proceeding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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13 argument THE COURT: All right. People will, I hope, have a chance to say most of what they want to say. I can't guarantee you will get to say everything you want to say. All right. Mr. Remes? MR. REMES: Good afternoon, your Honor. THE COURT: Good afternoon. MR. REMES: I didn't come prepared with affirmative argument because you have heard affirmative argument in this case at least twice. I will try to answer your Honor's questions to the best of my ability admitting that I am not prepared for all of them, but I have two other co-counsel. The first question, just to lead back to something your Honor said at the end, is that the Military Commissions Act includes language for the Section 1021 issue here but the Section 1021 issue doesn't come from the Military Commissions Act, per se. The MCA is Title 10 of the chapter that deals with military criminal proceedings and I wouldn't make the argument that 1021 was an act against the backdrop of the Military Commissions Act. And, I would also point out that the Military Commissions Act hasn't been the basis of more than one case in the District of Columbia and that was on appeal from a decision of the Court of Review of Military Commissions in a separate proceeding from one of the Military Commissions cases, that is to say the Military Commissions Act has not been a source of law in the habeas cases which are cases that really SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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14 C875hedA argument apply here. THE COURT: Well, let me sort of tell you where I'm coming with the Military Commissions Act. The MCA, in my view, ought not to have any application here. I'm not suggesting it should have application at all, I will be perfectly transparent about that. However, it does appear that to the extent that there is interpretation of words like "substantially supported" which does occur in the Hamdi case, that is against the backdrop of the MCA and it is not against the backdrop of something else. So, we have what I'm going to call an organic or mixed evolution where the AUMF ends up being interpreted -- there is detention authority under the AUMF. It ends up intersecting with the MCA for individuals who are detained. And there is, of course, the '06 and the '09 MCA and the question is to what extent is the fact that there is case law which develops which is based in part on the MCA, does that then become part of our domestic law. I think you're saying it shouldn't but I'm just saying it works its way into some court cases that have then been relied upon. MR. REMES: Well, I agree certainly that it shouldn't, but I'm puzzled by the suggestion that it has worked its way into some of the habeas cases. Your Honor has read them probably more recently than I have, but I think that all of those cases were directly on authority claim to derive from the AUMF. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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15 argument THE COURT: That's true. I'm not saying they work in necessarily one or the other. The MCA also talks about the procedural process rights that are available to those who are detained. It is not itself, I don't think, a detention. It is in part a detention act but the AUMF may be how they got detained and the MCA is how they end up being processed, if you will. MR. REMES: I'm not quite sure. THE COURT: We don't have to dwell too much on it. MR. REMES: The second thing is to answer your Honor's first point, I think that it's intuitive that it's hard for us to establish objectively reasonable fear if we don't know -- I think we've done it but I don't know how we can be fully expected to do it when one of the issues in the case is what the statute means. The government's answer is, well, that's easy. We know what it means because it means the same thing that the AUMF meant, and since the AUMF hasn't been a problem for anybody then they don't have an objectively reasonable fear. But that sort of begs the question of whether the AUMF and 1021 are substantively identical. THE COURT: Well, let's assume for the moment that -and when we talk about AUMF for me I talk about two different versions of AUMF; there is the AUMF as of shortly after 9/11, original AUMF, then there is the AUMF which evolves at unknown points in time and then is presented in a March 2009 memorandum SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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16 C875hedA argument from the government and that's a second version of the AUMF. All right? So, I will call that evolved AUMF. And so, part of the issue becomes if you accept that there is an evolved AUMF as of March '09, let's just accept that as a proposition -MR. REMES: I can't. THE COURT: Let's assume for the moment that there is an AUMF that exists in March 2009, it is in fact true, whether you like it or not, there is an AUMF that was put into a brief, there was a statement of detention authority put into a brief, submitted to the Court in March of 2009. Fact. The government's main point is whether you believe you understand it or not really matters not at this point because you have never been detained under it -- you, being the plaintiffs, have never been detained under it. So, whatever it means it doesn't mean anything about you. So, their view would be we don't think it is that confusing in the first place -and I'm sure Mr. Torrance and Mr. Harwood will correct me if they need to -- we don't think it is you can't understand it in the first place but if you can't, don't worry about it, because you have never been detained by it. So, why are you worried? MR. REMES: Well, your Honor, I have to go back to the point that you can't consider the March 2009 memorandum AUMF II because -THE COURT: I will let you get there, I promise. Stick with my hypothetical. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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17 argument Assume for the moment that AUMF plus March 2009 evolved AUMF exists. You may tell me and I know you will tell me that you don't think it should have evolved, could have evolved or did evolve. We will get there. Let's assume that it exists March of 2009. We are now in August of 2012. It is, I think, undenied that your clients have not been detained under evolved AUMF. MR. REMES: That's correct, your Honor. THE COURT: Why are you guys worried about it as codified in 1021? MR. REMES: It is hard to answer the question without accepting a premise that I don't think is a valid premise. THE COURT: So answer my question and then go back and tell me why it is not a valid premise. MR. REMES: Okay. The problem with a vague statute in the First Amendment area is it chills speech. The danger presented by the Sword of Damocles is not that it falls but that it remains up there and can fall. Therefore, the fact that it has never been a problem for our clients may very well reflect the fact that they've allowed their speech to be chilled by the vagueness of these provisions. But the fact -THE COURT: Let's stick with our trial record. Our trial record is that your clients had no fear until the NDAA 1021 was passed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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18 argument MR. REMES: Yes, your Honor. That's because the March 2009 memo was limited to the Guantanamo context. They had no reason to fear that. That's why I say, your Honor, respectfully, that I can't accept the premise of the argument. That March 19, 2009 memo, by its very terms, was limited to Guantanamo. And the reason it isn't a formal statement of policy by the administration was that it was submitted for the purposes of helping the Courts decide the Guantanamo habeas cases. THE COURT: Although it was labeled something along the lines -- and I'm not attempting to quote it -- Government's Detention Policy. MR. REMES: That's correct. But the government was very specific and very clear that they had announced it for the purpose of the Guantanamo cases and only for the purposes of the Guantanamo cases. They pointed out that another task force created by President Obama was studying detention authority in general and would report back with a statement of the government's general detention authority and policy. THE COURT: Where, in your brief, if in your brief, does it have to be in your brief? Do you folks talk about how March 2009 was really, on its face, limited to Guantanamo by virtue of saying there was going to be additional work done by the government? MR. REMES: I don't know if we mentioned the language SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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19 C875hedA argument referencing the task force that had been created by separate executive order to establish general detention policy but it is in there. That's all I can say. I'm not sure that we cited it. THE COURT: You're saying that in the briefing relating to the March 2009 statement by the government regarding their detention authority there will be an accompanying statement that says our work is ongoing and this is limited to Guantanamo? MR. REMES: In that very filing, your Honor. In that very March 2009 filing. The government makes a point that it has chosen to use this standard for purposes of detention in Bagram. I think that that is too attenuated and not inapposite anyway because how the government chose, on an ad hoc basis to apply a standard -- I bring it up, your Honor, because the government does rest on the fact that this has been applied beyond Guantanamo, that an ad hoc application in a rather singular context doesn't establish a general policy of applying this definition anywhere and everywhere. The government has yet to establish a general formal policy on detention authority. That's my basic point. The March 2009 memorandum was, by its terms, limited to Guantanamo, by its terms it was provisional pending development of the general policy by the separately created task force on detention policy, and what we have here is the government is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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20 C875hedA argument offering a gloss on the meaning of the AUMF and then saying that Congress adopted the gloss. That's what the government is calling the definitional framework. And then the government, to anticipate my point later, is adding a second gloss to its first gloss with its offer of the limitation of independently, which doesn't appear anywhere in either statute. THE COURT: So why do you have a problem with the word "independently"? MR. REMES: Oh. Well, the problem is that independent, your Honor, is hedged and qualified in the government's own statement including the use of it. The government stated, as a matter of law, individuals who engage in the independent journalistic activity or independent public advocacy derived, described in plaintiff's affidavit with testimony without more are not subject to law of detention as affirmed by Section 1021 A through C solely on the basis of such independent journalistic activities and independent public advocacy. The qualifiers appear otherwise. For one thing I would say that independent, is in itself, a rather vague term because it is not defined, but I go beyond that and say that even in the government's formulation of the independent standard, there are about three or four asterisks after it if it is independent and solely independent, if it is independent and without more independent, if it is independent and that's all there is to it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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21 argument THE COURT: I read this as saying essentially that if Plaintiff Hedges is engaged in his own journalistic activities independently, on his own writing his own book, got a book deal, he is going to fly to the Middle East, he is going to do his book, he is independent, he is not doing it with a group, he is just doing it himself, that that activity, without more, would not subject him to detention. So, the without more is really just referring to what we've established in the trial record as the type of activity that the plaintiffs have been involved in. MR. REMES: But who is to decide what without more is? Or what solely is? THE COURT: Well, I think the word without more, or solely, is defined by the contours of the trial testimony. The government will let me know whether that is right or wrong but I assumed that the parameters are if what you're asking is whether or not what was described at our trial in this matter would subject these particular plaintiffs to detention under 1021(b), the answer is no. MR. REMES: The problem I have with that, your Honor, is that here we are looking at the past retroactively whereas this statute is going to govern conduct prospectively. The Chinese proverb that is a cliche that no person steps into the same river twice, applies here. Take the government at its word, these people didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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22 C875hedA argument do anything that we think, at this point, could be the basis for detention. They're not going to do exactly the same thing tomorrow. They're not going to do exactly the same thing in five years and other people whose speech may be chilled and may yet be chilled in the future may not do the same thing. So, this is in connection with another of your Honor's requests which is why do these particular plaintiffs believe they remain in danger? And the answer is because these clients aren't going to do exactly the same thing the next time. They've done what they've done. They may want to do something else. They may want to do it in a different way. They don't know whether that will be considered independent without more; solely independent. THE COURT: Well, let me posit sort of an unusual hypothetical. We have a trial record here where we've had plaintiffs who have described live, in testimony, what their journalistic or associational activities were. Those descriptions provide a definitional framework, if you will, that the government has now said you may pull into 1021 as descriptive of the kinds of activities that would not result in detention under 1021. So, the trial testimony becomes the definitional schema, if you will, for 1021. MR. REMES: How do we know whether it is a ceiling or a floor? THE COURT: Well, because you're told that it is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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C875hedA ceiling.

argument

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MR. REMES: Not really. THE COURT: You're told solely without more. Ceiling. MR. REMES: But, again, I say that it is a floor, your Honor, because these people have engaged in certain activities that the government now, in retrospect, says are unproblematic. Fine. So, your Honor's decision becomes authority on the question of what safe harbor there is for journalistic activity or independent activity. At most it is a safe harbor. It is not a maximum. And, again, this is a statute that is to be construed and applied prospectively. I don't think that anybody is going to remember these exact facts as a gloss on the government's gloss on the government's gloss on Section 1021. I think it is about three steps too far and, in any event, the best you have is a safe harbor. THE COURT: Let me suggest that you think we are using ceiling and floor synonymously because what I am suggesting is that the definitions that are established by the trial record are the only safe harbor and so that's when I am calling a ceiling. I'm saying if you go beyond the parameters of the trial record you are into an unknown zone. MR. REMES: Precisely my point. THE COURT: That's why I am calling it a ceiling because once you break through that trial record you are into the unknown versus a floor which could be that's a minimum SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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24 C875hedA argument amount of conduct that would -- that you can engage in that would not subject you to detention. We don't know what outside of that conduct would -MR. REMES: Your Honor, that's exactly my point. It is the fact that we don't know that continues to leave plaintiff such as -- journalists such as these and authors such as these in doubt as to what they can do outside of this safe harbor assuming that they know all the details of the trial record in this case. I think that's asking too much of journalists, in general, to know the trial record in this case. But, even assuming they did, they'd say, okay, we can do this and we are okay. But are we supposed to limit ourselves to this? Is there anything that we can do differently? Is there anything we'll get in trouble for if we did it differently? This becomes, to switch metaphors yet again, a straight jacket, and I don't think that's consistent with the First Amendment. THE COURT: Well now, the government has stated that it will not detain these particular plaintiffs for the conduct which they have described in the trial record. Do you have any reason to believe that they would change their mind? MR. REMES: I have no way of knowing whether they'll change their minds. THE COURT: Is there any reasonable basis to believe that the government would change its mind? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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25 argument MR. REMES: Was there any reasonable basis to believe that the policies of the last administration would be the same as the policies of the administration before it? I think no one can't predict what new policies a new administration will undertake. In fact, the March 2009 memorandum says that it is a "refinement" of the previous standard. Whether it was a refinement or a change can be questioned but I don't think that you can assume that because one administration has one policy and one reading of the law that the next administration will have the same policy and the same reading of the law. THE COURT: Stay with this administration for a moment. I understand, because I did ask the question about what happens if the administration changes -- we're in an election year but the government currently, in the executive office, has stated that it will not detain your clients for the conduct in which they engaged which was set forth in the trial record. My question is, Is there any reason why you don't believe that that cannot be reasonably relied upon for the next few months? MR. REMES: My answer, I guess, has to be I don't have any reason to assume that it will or that it won't. MR. AFRAN: We have other positions on that issue, your. THE COURT: All right. You will have it. MR. REMES: You will have it in stereo. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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26 argument Then, your Honor asked the question of whether the statute has to be aimed at or merely reach protected speech for there to be a facial challenge. The alternative, I suppose, is you look after the fact at how the statute has been applied and you consider the challenge in the context of an as-applied challenge. We suggest, your Honor, that the problem is that if the statute has chilled the speech you will never have the as-applied challenge and that even if you do have the as-applied challenge, it will be an after the fact challenge, it doesn't cure the problem of vagueness that is inherent in the statute. If your Honor concludes that the vagueness substantially supports and other terms in the -- which even I will get back to that in a second -- if the Court concludes that that is vague enough to present a chilling effect, then it is a problem on the face of the statute whether or not the statute was aimed at it. It is the impact on speech that one must consider and this is not a situation in which you can wait for an as-applied challenge to come along since the problem with a statute like this is that it chills speech by virtue of the vagueness in advance. THE COURT: Let me ask you, as a constitutional scholar, if you have any cases where there has been a facial challenge on First Amendment grounds to a statute which was not aimed at First Amendment conduct but which reached First SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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27 C875hedA argument Amendment conduct. MR. REMES: I will have to supply the Court with a post-hearing memorandum on that if my colleagues don't have examples. THE COURT: Do the plaintiffs dispute that 1021 is not aimed at First Amendment conduct? It is aimed at something else but captures, potentially, First Amendment conduct. MR. REMES: I agree that it certainly captures First Amendment conduct. THE COURT: It is not aimed at First Amendment conduct. Would you agree with that? It is not its core mission. MR. REMES: It is not its core mission. I think your Honor already said that in her preliminary injunction opinion. THE COURT: I was wondering if you agreed. MR. AFRAN: We do not agree. THE COURT: You do not agree. Okay. MR. REMES: All right. THE COURT: You believe that the statute is aimed at First Amendment conduct? MR. REMES: I better allow Mr. Afran to address that point. I apologize for the split nature of this. THE COURT: All right. Well, let me just -MR. REMES: But I still say that my argument holds that if it is reasonable for a journalist to think that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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28 C875hedA argument statute could be applied to him because of the vagueness of substantially supports and how it interrelates with the journalist's own activities, it is a facial problem. And if I may, your Honor, go back to the March 2009 memorandum, right after the government provides the so-called definitional framework it has a paragraph extolling the virtues of the vagueness of the substantially supports and associated forces. The government is proud that it is vague. I think that that should reinforce a journalist's fear that this could be applied to them. THE COURT: All right. MR. REMES: I don't know that I have more unless your Honor has more for me. THE COURT: Are you the person for the metric? MR. REMES: I didn't understand what you meant by metric, your Honor. THE COURT: Are you familiar with the Stevens case? MR. REMES: No. THE COURT: This is the Justice Roberts case that has to do with the depictions of animal cruelty. MR. REMES: Yes. THE COURT: In that case, U.S. v. Stevens, Justice Roberts says that the statute is unconstitutionally vague. Does this ring any bells? MR. REMES: It is but I haven't studied the case, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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C875hedA Honor.

argument

29

THE COURT: Okay. One of the issues there says that you need to judge constitutionality of a statute in relationship to the plainly legitimate sweep of the statute. So, if the plainly legitimate sweep of a statute includes going after terrorists who were involved in 9/11 and there is some First Amendment activity somewhere -- I won't call it fringe because it may be bigger than that -- but there is some non-core First Amendment activity that is captured within the language of the statute, when I'm judging, as the Stevens case requires me to do, the constitutionality of that statute in relationship to its plainly legitimate sweep, what is my metric? Am I measuring there is 75 percent of it is legitimate and 25 percent is unconstitutional, therefore I don't have a facial challenge or I don't declare it unconstitutional or something else? MR. REMES: Something else. I would say if there is -- again, I will defer to co-counsel on this, but I think that if there is a reasonable basis for individuals engaged in First Amendment activity, to fear that the statute will be or could be or might be applied to them in a way that chills their speech or restricts their activities, the statute has to be assessed on its face because the only alternative is to challenge after the fact an application of the statute and, by definition, vague statutes under the First Amendment or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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30 C875hedA argument statutes with vague language chill speech and therefore you don't even get to the issue of an as applied challenge. That is to say, either the statute is subject to a facial First Amendment challenge or you may never get to a First Amendment challenge because the speech that triggers the statute will be self-censored. THE COURT: That's like the Virginia v. American Book Sellers case which is a Supreme Court case also which, in that case, they said that there could be a pre-enforcement facial challenge because of the possibility of self-chilling. Let me ask you another question: Are you aware of any provision in the Constitution that allows the president to detain citizens? MR. REMES: I'm glad your Honor asked that question because I meant to raise it in connection with the March 2009 memorandum. In the previous administration the government took the position that its detention -- the government grounded its detention authority on two sources, the AUMF and the president's inherent Article II powers. In the current administration, reliance on the Constitution's Article II power of the president has been abandoned, they no longer rely on that. They say that even in the March 2009 memorandum if I'm -- I'm certain that I'm correct that they're only relying on their authority under the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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31 C875hedA argument AUMF and have abandoned reliance on their claimed constitutional authority under Article II. THE COURT: Okay. Do you believe that the international Laws of War have been pulled into domestic common law? MR. REMES: It should be or what it is. THE COURT: One of the arguments that the government has relied upon extensively in its briefing that the international Laws of War assist us in defining some of the terminology here and also help us understand the evolution of the AUMF and there are then the cases, the al-Bihani case which says that the International Laws of War are in fact not pulled into the domestic common law and they shouldn't be relied upon, they're inapposite, and it would be ill-advised to rely upon them. What is your position, if you have one? MR. REMES: Your Honor, my position is that al-Bihani states the law in the D.C. Circuit. I don't know that I want to make a general statement about whether domestic law incorporates international law. The language -THE COURT: International Laws of War. MR. REMES: The International Laws of War. THE COURT: Not just international law. MR. REMES: International Laws of War. I think that the government's formulation is usually that the, and I think this is used in the March 2009 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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32 C875hedA argument memorandum, that the government's detention authority should be "informed" by the Laws of War. It is not a term that requires it to be or -- that requires it to be, certainly, and I think that the D.C. Circuit has certainly read the law not to incorporate in terms of detention authority the Laws of War. That's really all I can say. THE COURT: Would you agree with me that there are instances where, when the United States is looking at a particular issue, sometimes in the human rights field, where there is not a particular United States pronouncement in a Court of the United States on a particular issue, that we have looked to the way in which that particular matter might be dealt with internationally? MR. REMES: I think that there is a vigorous dispute among the justices as to whether or not that approach is a legitimate approach. THE COURT: But you would agree with me that it has occurred in circuit courts? MR. REMES: I'm sure that it has without knowing for sure. THE COURT: It has. MR. REMES: Okay. THE COURT: All right. Did you have other parts of this you were going to deal with? You were going to talk about the FCC v. Fox case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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33 argument MR. REMES: No, your Honor. THE COURT: All right. Then now who wants to -- on the plaintiff's side was there somebody else? Mr. Mayer, were you going to say something else? MR. MAYER: Well, I think both myself and Mr. Afran were going to add some points. THE COURT: Okay. Whoever is next. Please. MR. MAYER: Thank you, your Honor. Justice Holmes observed that the life of the law has not been logic, it has been experience, and that is sort of a phrase that I didn't really understand as a law student or even as a young law professor, but I thought I would offer some insight from my 25 years of litigating civil rights cases -often with Mr. Afran -- and I hope your Honor will take them in that vein. I don't profess to have any great wisdom in this area and I know your Honor has a better command of the constitutional law, and I certainly know your Honor works harder because I had the opportunity, last time we appeared before you, to speak with the marshal downstairs who takes the cell phones and he says that every morning when the building is open the first person is in is Judge Forrest. THE COURT: Yes, but I go to sleep immediately. They don't know that. MR. MAYER: I think we are probably going to bed about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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34 C875hedA argument the time that you are getting up so you are the early to bed early to rise version and you have better command of this and, therefore, feel free to interrupt me, but I thought I would offer some ideas in this vein. I think Mr. Afran is going to pursue the First Amendment issues and I have some broader points to make. I don't know if you ever read the historical essay by Isaiah Berlin that talks about two different types of a animals in the story, the hedgehog and the fox. The fox comes out every day and knows everything about the forest, and the hedgehog comes out infrequently and has general observations. So, I would like to make general observations about the Law of War amongst other things and Mr. Afran will get into the particulars of the First Amendment. THE COURT: And, if anybody can talk about Federalist 78, then I would be appreciative. MR. MAYER: We both would love to talk about that. So, my first sort of experiential -- based on my experience my experiential hedgehog point would be to go to your question: The Laws of War, I think, are completely inapposite to Section 1021 for a couple of reasons, not just because of the cases that your Honor cites but because the origins of the Laws of War really only date back to the 17th century and they were originally designed to find some sort of natural law basis for justifying a war between sovereign SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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35 C875hedA argument states. There was an evolution of the Laws of War sort of in the 19th Century, particularly in this country really under Lincoln, in which the Laws of War came to apply to prisoners who were taken from a standing army of another sovereign state or another military force. So, it is this development of Laws of War that really has to do with conflicts between standing armies, conflicts between sovereign states and not to this, what is sometimes called a war on terrorism, sometimes called other things -but, the Laws of War don't at all address these issues. Now today, but only since really 9/11 or maybe shortly before, the Laws of War have begun to incorporate some of these topics but the government's suggestion that somehow the Laws of War provide a fixed meaning to the NDAA, I don't see how that is at all possible in this case. THE COURT: They don't say it is a fixed meaning. I mean, to be fair, they're saying that it helps us -- if we're looking for definitions, particularly with reference to the phrase associated forces, associated forces has a well understood meaning under the International Laws of War, and so to say that we have no idea, what that means would be to ignore the International Laws of War and to ignore the cases that have been litigated within the United States which have referred to the International Laws of War, though not necessarily relied upon them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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36 argument MR. MAYER: Well, they may refer to them -- and they may -- but they don't specially incorporate into our domestic law or constitutional law but the references are recent. I took the government's position to be that whether this is a firm definition or not it is adding some definitional structure to the provision of the NDAA that is at issue here and that position is directly opposite to the position taken by not just this administration but the prior administration that they want the flexibility to have not just -- not only to not have definitions in the statute but to have the flexibility and the ambiguity to go after these new entities which are terrorist groups, terrorist cells, etc. They want the flexibility, the problem is it is not very flexible, it is the enemy of due process and it is the mother of vagueness. That is the problem. That is the issue in this case. The government can't ride both horses. They can't say on the one hand we need the ambiguity and we need the flexibility to deal with these new hostile forces and say on the other hand, well, there really are some definitions here. And, I further don't accede even if the Law of War has been referenced, how can they expect the citizens of the United States to understand what the Law of War means when it defines these provisions of 1021? They can't expect journalists to be sitting around the table on their lunch break talking about the international law theories like a variety of the international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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37 C875hedA argument law philosophers Pufendorf, and Grotius and Montesquieu who all wrote, they created the International Law of War. I don't see any way that one could expect, or the government of either branch could expect that the citizenry could view that as anything other than vague. THE COURT: But that is putting, I think, the standard too high because it not as if journalists sit around and talk about 18, U.S.C.A. Section 891 either and I would hardly expect any of them, unless they deal frequently in this court house with matters which we have to even know what I'm talking about. So, I don't think that the standard is whether or not a particular individual has memorized a criminal statute or provisions of the International Laws of War or how they've come to be interpreted under, I don't know, case law interpretations theory. MR. MAYER: Well, fair enough, your Honor, but then the other side of that coin is that it would then be up to Congress to integrate into the statutory structure those provisions and definitions of the International Law of War that would be applicable in this case and Congress didn't do that, and they didn't do it with this Executive Branch and the last Executive Branch and the next. And every Executive Branch always wants to expand its power, and maybe rightfully so, they want to expand their power to deal with a new form of enemy. However, going about it in a way that utterly undermines SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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38 C875hedA argument fundamental rights is why where he here. So, that's my first point. My second point is my sort of second experiential hedgehog point, if you will, is the violations of the First Amendment and equal protection clause that your Honor noted in the, or the possible violations that your Honor noted in your preliminary injunction hearing and we have talked about in our papers, I think, creates a serious breach of separation of powers. I don't think that has been talked about significantly enough. The government actually touches on the separation of powers issues in their papers but I want -- but our point, I believe, is that the essential thrust of the NDAA is to create a system of justice that essentially violates the separation of powers because it puts everything within the Executive Branch and the military and this is -- unfortunately it is entirely consistent with the position of this administration and the last administration that, for example, the phrase that they have now put front and center of their policy is that due process does not mean judicial process. And that is the same here. You have taken, essentially, detention out of judicial process and tried to put it into Executive Branch or Legislative Branch process. That is what is forbidden under the Constitution. So, that is my second sort of overarching point. THE COURT: Let me sort of put a little footnote on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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39 C875hedA argument that point because then I want to give Mr. Torrance and Mr. Harwood a chance when it is their turn to speak about it. I found myself going back to Chief Justice Taney who is somebody I didn't think I would ever cite affirmatively, but Ex parte Merryman, in that case in which he is talking about the suspension of habeas corpus by President Lincoln during The Civil War, and he says that that was an on unconstitutional suspension and he says: With such provisions in the Constitution expressed in language too clear to be misunderstood by anyone, I can see no ground whatever for supposing that the president, in any emergency or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus or the arrest of a citizen except in aid of a judicial power does not execute the laws if he takes, upon himself, legislative power by suspending the writ of habeas corpus and judicial power also by arresting and imprisoning a person without due process of law. So, it is just a -- I think it goes to your point, Mr. Mayer, a little bit. I'm not quite sure what one does with Mr. Taney these days, but there you are. There you have it. MR. MAYER: I think that was echoed by the Court in Ex parte Milligan as well, that it is not for the militia -- it is not for the military to be a judge and jury and police; police our citizens, our streets. So, to me this policy of the NDAA is unfortunately, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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40 C875hedA argument believe, consistent with the government policy of claiming that targeted assassinations, for example, even of U.S. citizens, is providing a sort of due process, just not judicial process, and that is what I think our Constitution rejects. THE COURT: I'm just going to stop you on the targeting of American citizens for assassination because that sounds a little far out there to me. How does that relate to what we are talking about? MR. MAYER: It relates to what we are talking about because they're of the same piece. Two successive administrations have taken the view in other contexts and in this context that the separations of powers need not exist. That's what I find objectionable, your Honor, is that here the Executive Branch, with the authority of Congress is saying, in essence, we don't need to worry about the judiciary. That's my own point. THE COURT: That's where the Federalist 78 comes into play. MR. MAYER: My third experiential or hedgehog point is the government makes much in its papers of the grave burden that plaintiffs have when a Court declares unconstitutional an act of Congress. And I understand that burden but it only goes as far as it goes in that Congress has shown itself perfectly capable of fixing a problem when there is either a constitutional or some other problem with a statute. Mr. Afran SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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41 C875hedA argument and I, for example, have litigated the warrantless wiretapping cases, they were originally brought here before Judge Sand and transferred to the MDL in San Francisco, and those cases were brought against both the government and the phone companies. And shortly after the San Francisco District Court Judge Vaughn Walker upheld our complaint on a motion to dismiss, the Congress then went back and retroactively changed the statute to retroactively immunize the phone companies because there had been a prior statute which made it a violation for the phone companies to give private records of Americans over to the federal government. So, Congress then fixed the problem. So, I understand the government's point in this case and Mr. Harwood and Mr. Torrance are very capable adversaries and have put in, I thought, superb papers, but I think that point ought not to be overstated because Congress can go back and fix things. THE COURT: Well, but isn't this sort of a fix? I mean, to take that point in a way let's assume for the moment that you have got the Executive Branch which is given authority under the AUMF right after 9/11 and it is very limited to 9/11 and going after those folks involved in 9/11. Right? Then the AUMF, in the Executive Branch, evolves. The Executive Branch engages in interpretation where it evolves and the detention authority slowly grows, if you will, until March of '09. And let's assume for the moment that there are people who are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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42 C875hedA argument detained in the delta between where the AUMF originally from where 9/11 leaves off and the March of '09 evolution ends. Are you with me? MR. MAYER: I think so. THE COURT: Okay. MR. MAYER: I don't want to overpromise. THE COURT: Okay. Then you have got some people who may be detained and there is no statute pursuant to which they've been detained. There is an AUMF that was appropriately, Congressionally authorized for the 9/11 folks but then the Executive Branch interpreted that more broadly until March of '09 and detained people and now they're sitting there with a lot of people who are detained and they don't have a statute so they passed 1021(b) which codifies that detention authority through a represented group of people -- the Congress, they represent us, we voted them in -- and they codify that detention authority so they fix it. And now the people who have been detained for all of those years are -there is no issue. Congress went back and fixed it. MR. MAYER: I don't regard it as a fix, your Honor. What I regard it as is Executive Branch overreaching which I think is why we are here because the definition is so vague and loose you could -- you are now talking not only -- before you had a statute with a definitional section and targeted to a narrow group of people. Now you have a statute that has no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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43 C875hedA argument definitional section, maybe, supposedly it codifies the AUMF although I am not really certain that it does, supposedly it incorporates principles of Laws of War which are inherently ambiguous and not part of our laws in any event, supposedly it does those things, but really another way to read it is that there are so many loose and undefined terms that this statute captures whole new categories. There are now new categories created called belligerents, co-belligerents, enemies of our allies, people who substantially support terrorists. So, the way I read the statute is it could cover virtually any American journalist activist and it could cover whole groups of people that are plain -- that are alleged to be terrorists or near terrorists by the United States government. THE COURT: But then the government says but it could, hypothetically, theoretically, speculatively, figuratively conjecturely but it has never has, so how do you meet the Lujan threshold of standing if you don't have a realistic fear or threat, objectively reasonable, that it would? MR. MAYER: I think our plaintiffs were very clear on that point and the only record in this case is very clear on that point, they all have the fear and they all believe that it is objectively reasonable for two reasons: Number one, because of the various encounters they had with different branches of the United States government, mostly the Executive Branch; and number two, because the only statements we have on the record SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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44 C875hedA argument from the government are that these -- they couldn't guarantee that these people would not be detained or brought under the ambit of Section 1021. Now, the government's position, I think Mr. Afran is going to get into this -- Mr. Afran is going to get into this more later but the government supposedly changed its position in a footnote in a brief for reconsideration and maybe in their papers here, but as far as I know that doesn't constitute evidence. And if they are changing their position that is, to our minds, Exhibit A in why wouldn't they change it again. And if they have changed their position and they are going to change it again, that's exactly the vagueness that we're pointing to in this statute. So, my final hedgehog point for your Honor would be to pick up on the government's brief at page 44 when the government talks about the balancing of public policy and the equities in a permanent injunction situation. It strikes me that the government has to make some sort of showing which they haven't done on the record in this case. They have to make some sort of showing that the statutory language here is somehow directed at what the statute purports to do which is going after terrorists and they haven't because they have been completely silent on the record. THE COURT: It is your burden. You are the plaintiff, you bear the burden of proof by a preponderance of the evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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45 C875hedA argument on each and every element of obtaining an injunction so you bear the burden of proof on public interest. By a preponderance of the evidence. MR. MAYER: Right. And what I am saying is because the government didn't put in any evidence, I think on this issue, I think that we have -- that is one factor that goes to our meeting our burden of proof. THE COURT: Proof you have would be the opposite point. I mean, where we start is you've got to put forward your proof that an injunction is in the public interest. MR. MAYER: And I think we put forward our proofs with all of the statements on the record, your Honor, about how this statute has had a chilling effect and will continue to have the chilling effect absent an injunction on our most cherished democratic institutions and rights namely the right of citizens, activists and journalists to speak out and I think that is all clear on the record. But, I would also say that -and I don't want to go too far afield because I know your Honor doesn't want me to go too far afield, but I think it would be perfectly appropriate for the Court to take judicial notice of how our society and government has changed, generally, since we are talking about the public interest. THE COURT: Got it. Won't. I have got a very limited -- in terms of public interest the issue on this motion is not -- I understand the sociological point and I'm not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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46 C875hedA argument trying to minimize it. I'm just trying to focus on really the core issue of your burden of proof on this issue which is to show that this injunction which the plaintiffs have asked this Court to impose, which is extraordinarily broad and would enjoin all of 1021(b) as to all people, why that is in the public interest versus allowing a statute which could capture conduct by individuals seeking to commit terrorist acts against the United States within and without the boundaries of the United States, for them to be detained. MR. MAYER: Right. THE COURT: How do those get weighed? MR. MAYER: Well, one of the weighing processes would be, your Honor, that there are other statutes that do have definitional sections and that are more narrowly targeted to achieve the aims of those statutes, and those aims are similar to the supposed aim of this statute which is to combat terrorism. But, that's not the case here and everything on the record, both from the testimony of the government and from the plaintiffs, is that there are other -- this statute captures too much. It captures too much. In that vein, your Honor each -THE COURT: Are you almost ready for Mr. Afran? MR. MAYER: I am almost ready for Mr. Afran. I thought I would end, since you quoted Justice Taney I would end with the dissent of the Justice Holmes in Abrams v. United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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47 C875hedA argument States who characterized the Constitution as an experiment, as all of life as an experiment and believes that as a consequence of that, quote, we should be eternally vigilant against attempts to check the expressions of opinions that we loathe and believe to be fraught with death." And I think that that quotation captures precisely the language of the statute and what the Executive is trying to do here. Thank you, your Honor. THE COURT: Thank you. And there is also an interesting, as long as we are talking about dissent from Jackson, in the Korematsu case. Mr. Afran? MR. AFRAN: Your Honor, I think with respect to Lujan, which your Honor was addressing to Mr. Mayer, the Court would be ill-advised to rely upon Lujan because Lujan represents standing in a conventional context. Justice Scalia said in majority holding in Virginia v. Hicks and Board of Trustees, an overbreadth of First Amendment case, rather standing is an expansion or an expanding doctrine beyond conventional standing. Lujan does not involve strictly First Amendment issues. It is relied upon as a conventional standing case where this is concrete nexus shown between -THE COURT: Let me make sure I understand because this is a novel argument. So you are suggesting that the Court should not use SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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48 C875hedA argument the Lujan -- or Lujan, however one pronounces this word, L-U-J-A-N -MR. AFRAN: I think I was saying it both ways. THE COURT: -- standard for standing. Is that what you're saying? You are saying that one, because those elements strike me as straight forward and not necessarily inapplicable even in the First Amendment context, the question is whether or not these plaintiffs have actual injury and/or a reasonably objective fear. MR. AFRAN: Precisely. It is the second part that is the relevant question. THE COURT: That's also under Lujan. MR. AFRAN: Well, it is under Lujan that concrete nexus has to exist with any claim, however, the point Justice Scalia raised which is governing law -- and our colleagues are probably surprised that we cite Justice Scalia -- but we understand that with respect to speech questions the Constitution is clear and specific and even a textualist will rely on its terms and have a broad application of the First Amendment. So, with respect to Lujan, Lujan is valid as to the threshold and standing as a consideration. But what justice Scalia says is that in First Amendment cases we have a broader concept of the nature of injury. THE COURT: And here is the question I think that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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49 C875hedA argument was trying to get at before which is whether or not what we have here is truly something that we should call core First Amendment because if a statute is not aimed at the First Amendment but reaches the First Amendment, do I look primarily at First Amendment standards for that? MR. AFRAN: The answer to that I think would be yes because -THE COURT: What cases are you suggesting? MR. AFRAN: Actually, every case that addresses the question deals with statutes that bring within their scope a substantial amount of protected First Amendment conduct. THE COURT: Typically most of the cases where there are facial challenges are on First Amendment grounds which deal with standing -- really with pre-enforcement standing facial challenges. MR. AFRAN: I think typically so. THE COURT: Right. Those are real often, in fact usually, cases where speech is the conduct at issue; in Virginia v. American Book Sellers where they're looking at obscenity and limitation on how books can be displayed within a store, limitations on how someone can leaflet in a particular place. Here we've got something really quite different. MR. AFRAN: I would say we don't. THE COURT: So, you can explain to me why we don't. MR. AFRAN: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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50 argument THE COURT: But I also would just before we leave this because the government may want to comment on it, the Commack Self-service Kosher Meats case, the Second Circuit case which talks about when a statute is capable of reaching the First Amendment, then the amount of tolerable vagueness is very limited. MR. AFRAN: Well, that's precisely the point. In Commack they were clearly regulating consumer rights as legislature sought and it was stating that the standard for advertising kosher products would be orthodox Jewish standards and the purpose of that was not to endorse religion, the purpose of that was to create a standard that consumers could rely on but the Court says it is unconstitutional for several reasons. Number one, we don't know what that means; what are Orthodox Jewish standards? You can put five Orthodox Jewish rabbis in a room and get many, many interpretations. THE COURT: More than five. MR. AFRAN: I didn't want to get too much in a cliche, but yes. And how many Jewish denominations are there that calls themselves orthodox? My brother met his wife in a traditional synagogue that didn't have a orthodox in it's name and has a divider of flower pots where you can look over conveniently. What is traditional orthodox? So, the statute, by using a generalized term, is implanting itself in vagueness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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51 argument There are other concerns in Commack, whether the Court can adjudicate what is an Orthodox Jewish. So, Commack is dealing with a vagueness. THE COURT: Commack said it was not void for vagueness. It does have a language which we are talking about but the Court there did find the statute was not for vagueness. MR. AFRAN: The problem in Commack is that you are intruding into an area in which some definitional provision is needed and the problem we have here is we don't have the definitional standard at all. Now, when we talk about substantially supporting, the government chose to put a definition in its brief pretty far down the list in terms of giving air power support and the government says, well, supporting doesn't mean speech necessarily. Look. In the definitions we cited from the Oxford English dictionary or whichever dictionary we were using there is reference to giving air support. Clearly that is not speech, that's conduct. But, the primary definition we cited, the Oxford English, and that's an authoritative source, is that "support" means to advocate for. So, without any cabining definition, the word "support" inherently touches speech. It has to. If we give credit to the typical dictionary definition of the word "support" we have to accept that it is touching speech inherently. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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52 argument Now, what is Congress' intent? Your Honor suggests Congress' intent here is to attack terrorism, to find a further device for attacking terrorism. Well, its intent may be that, we don't really know for sure from the statutory text, but the question is not the intent of Congress. The question is what does a statute say and by its language what does it reach. Many statutes have a benign intent but a pernicious text and that text becomes distorted in ways that are not anticipated. And so, when we deal with First Amendment rights we can't say well, Congress has good motives. We all respect, I think, that minimizing, negating and fighting terrorism is a proper governmental objective, but if one accomplishes that by a statute that clearly touches other interests such as speech, then we have to look to see, well, how much does it touch. THE COURT: Right. MR. AFRAN: What is the metric, and how do we evaluate that? THE COURT: Tell me the answer to that. MR. AFRAN: The answer to the specific question of what is the metric is that there is no specific answer. One can't say well, a statute has too much effect on speech if it is 75 percent versus 25 percent. The only guidance -[Phone ringing] THE COURT: How did that person get that phone in here? It was you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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53 argument UNIDENTIFIED SPEAKER: No. THE COURT: I don't mean to have them arrested. You got past the metal detector. MR. AFRAN: I thought it was a substantially supporting punctuation. The question thus becomes in the case law does it bring it within a substantial amount of protected conduct. I mean, I don't know that you can quantify specifically. I think what we have to look at is what is the policy of the First Amendment. THE COURT: Well, but what the Supreme Court requires under the Stevens case, and there are actually a variety of cases, and the government has cited them and they've done a good job, better than good, your papers were very well written -- all the papers were very well written in this matter -- but of capturing a series of cases which do stand for the proposition that one is to read a statute against its overall context. So, I've got to -MR. AFRAN: Right. THE COURT: -- I have to measure it somehow in terms of what it is supposed to capture versus what it actually captures to determine whether its -- let me put it in colloquial terms -- more bad than good. So, I have got -- I have to do that exercise. I'm required to do that exercise. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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54 argument MR. AFRAN: I would agree. I would agree. I think what we saw in the AEDPA case, which for the benefit of those listening is the Anti-Terrorism and Effective Death Penalty Act of 1996 and the initials are no better to pronounce, but with respect to the AEDPA the Court noted, look, there is some speech that is impacted but that's incidental and it is not really within the scope of the definitional proscribed activities. It does tend to touch some speech. Obviously giving advice on how to train members of a terrorist group invokes some speech conduct but the Court said its focus is plainly on specific, defined criminal acts such as financially supporting a terrorist group, providing material to a terrorist group -- military material, providing training to terrorist members. So, the Court says clearly there is some effect on speech but that is minor because the defined criminalized provisions, the criminalized conduct are clear. And because Congress has gone out of its way to define those proscribed activities we can see where the focus is. Congress clearly has a focus in the AEDPA prohibiting certain criminal support activities and it defines precisely what they are. So, in that context one can make that Stevens metric in a kind of quantified way because we see clearly Congress has gone to the trouble of telling us precisely what conduct is proscribed and by defining the proscribed conduct it tells us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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55 C875hedA argument what the focus is. But, what do we have here? We have a statute that simply says substantial support for these groups will invoke military detention until the end of hostilities which we say is indefinite. I think the Court accepts that it is an undetermined time. So, we don't have in this statute any of what Holder had and so in Holder you can make that Stevens analysis fairly easily because Congress has gone out of its way to push the statute clearly in a defined area of criminal conduct. But now what has Congress done here? Knowing it has the AEDPA which clearly delineates core activities that are barred, Congress then creates a statute that has no description at all of the activities except the word substantially supported. THE COURT: Well, the government says it is not a criminal statute. MR. AFRAN: Well, you said it is, your Honor, because you said in your preliminary injunction holding that where detention, particularly on an indefinite basis in incarceration. Through incarceration is the focus. Then it has effectively a criminal context and someone has to look at it at least in terms of basic due process. THE COURT: I still believe that but they told me I'm wrong. But we will talk about that because I'm curious whether anybody has been imprisoned under a non-criminal statute. MR. AFRAN: Well, the statute is only several months SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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C875hedA old.

argument

56

THE COURT: Just generally in life. MR. AFRAN: I think it is an astounding proposition that the government could say this does not have a quasi-criminal impact or should not be treated in a quasi-criminal impact for analysis. If one is to be detained, in custody, in the military, for an indefinite period without any due process, one is in an even worse position than the typical criminal case. So, I think clearly we have to look at it in that setting. So, in terms of how we quantify, Congress isn't really even letting us make that judgment because Congress has given no structure at all to allow the analysis to begin and that's why it is inherently facially invalid. THE COURT: Can I change your focus for one moment? MR. AFRAN: Yes. THE COURT: Can you tell me whether or not there is anything in the public record which suggests that Mr. Hedges, Ms. O'Brien, Ms. Jonsdottir, Mrs. Wargalla, anybody has published a book or article since our last hearing that is public record? MR. AFRAN: I'm not sure there is any new conduct. I do know that Mr. Hedges, well, he wrote about his deposition, actually, but there -- I believe Mr. Hedges has an article coming out but I don't know specifically the subject matter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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57 argument THE COURT: I will take judicial notice of that. MR. MAYER: For the record, Mr. Hedges has published a book that came out since the last hearing. THE COURT: Since March 29? MR. MAYER: I don't know what the exact publication date is. We can find out. I believe the topic was domestic politics. It wasn't of an international source. MR. REMES: Your Honor, we can pin that down and report back. THE COURT: I can also pin that down. Okay. MR. AFRAN: We don't know the publication date. It may have been published before his testimony. THE COURT: But I'm trying if figure out if there is a way in which the Court can take legitimate judicial notice of ongoing conduct. The factual record is closed but is there any ongoing conduct which is of sufficient public record that a Court can take judicial notice of? If the answer is no then it is not. MR. AFRAN: I just don't know -THE COURT: Okay. MR. AFRAN: -- aside from what we have just discussed. Now, with respect to the -- I would like to go back to the core question of speech. We need to look further at the distinction between the AUMF, the AEDPA and the NDAA. Now, we have noted that the substantially supporting sentence or aspect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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58 C875hedA argument of that March 2009 briefing does not appear in the AUMF and, it is interesting, your Honor was willing to attribute immense powers to all of us sitting here by suggesting we can make a statute evolve by the briefs we file in court. THE COURT: Well, I wasn't suggesting that that's legislatively appropriate. MR. AFRAN: Right. THE COURT: I was noting that the -- to be clear, my view, and the government can address whether or not my view is wrong, but my view is that there was the AUMF, duly passed by Congress. What likely happened is that there was an expansion of interpretation which occurred. Maybe it didn't need legislative authorization to be determined, but there was an expansion of the AUMF interpretation which occurred that was then set forth in a filing in Court in March of 2009 which has now been codified in 1021(b). So, it is not that I suggest that we can legislate through our filings, it is that the Executive Branch of the government set forth its expanded interpretation in a filing which was later codified by a duly represented -- a Congress, representatives of the people. MR. AFRAN: I was speaking somewhat ironically in the sense that we are not supposed to do that. We are not supposed to suggest that a executive scope is expanded because of what counsel put in a brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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59 argument THE COURT: Although it is true, I think the government is correct, that the legislature is deemed to legislate against the backdrop of either agency interpretations and/or executive interpretations. MR. AFRAN: Well, when we go to the question of agency interpretations the cases the government cites are all concerned with expert agency findings. For example, the Chase Bank case concerned when a bank is obligated to issue notice of interest rate increases and the Court said that the secretary -- I think it is Secretary of the Treasury's viewpoint as to what is an appropriate regulatory interpretation is acceptable to the Court. That's an example. But, all of the cases are identical in dealing with agencies that have expertise in a given field who had experts within the agency and who are pronouncing on appropriate industry practices based on their expertise. THE COURT: But maybe that is not so different from an executive branch which has expertise which the Supreme Court has acknowledged in the Holder v. Humanitarian Law Project case for, as one example where they've got expertise in security and terrorism in the way that none of the rest of us have. MR. AFRAN: No one would suggest the government's views, coming through the appropriate agency, of how to detain inmates at Guantanamo should not be given weight. It doesn't mean it should be given untrampled weight. Cruelty is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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60 C875hedA argument acceptable. Courts have the power to say, no, you are going beyond what is humane or reasonable. But, in the context of expert handling of inmates, the government's expert view is entitled to weight but we are talking about the First Amendment. We are talking about what a statute says. We are not dealing with a question that is normally handled by internal experts who have knowledge that the average person does not have. The government attorneys -- the assistant's view of what a statute means is no different than my view or Mr. Jaffee's view or Ms. Bolen's or Mr. Mayer's view. It is a lawyer's view. It is not expert determination. To suggest that the AUMF always embraced by its terms the substantially supporting standard that they argue in March 2009 is simply a lawyer's interpretation of a statute. The AUMF which, by the way, every single Court that considered it on its four corners rejected and I think this is a critical point, the government says there is a long-standing executive practice that Congress recognized and subsumes into Section 1021 yet there is no long standing executive practice for two reasons: One, they claim they never used this authority before; and two, no Court has ever recognized it. Now, Hamlilly is very clear on this point. Hamlilly is where the March 2009 decision was made and Hamlilly directly rejects the very proposition the government raises. The only Court that was ever squarely asked to adjudicate this question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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61 C875hedA argument states as follows: From Hamlilly: Detaining an individual who 'substantially supports' such an organization but is not part of it is simply not authorized by the AUMF itself or by the Law of War. Hence, the government's reliance on substantial support as a basis for detention independent of membership in the Taliban, Al Qaeda or associated force is rejected. Nothing could be clearer. The Court where this was offered said this does not exist in the statute. Now, if any of us are experts on the law it is the Court. That pronouncement has weight. Now, what does the government say? Now, in Gherebi the Court made the same finding only it said the substantially supported text might have applicability to combatants held in a theater of combat but it cannot be applied to persons under the protection of the U.S. Constitution. So, in both contexts the notion that the AUMF supports "substantially supported" as a basis for citizen detention or civilian detention in the United States was rejected. Now, al-Bihani does make reference to that quoted section of the March 2009 brief but it only applies a part of the brief. It does not apply the substantially supported part. It simply quotes the provision in the brief. Not one Court in the D.C. system ever applied the substantially supported aspect of the government's March 2009 briefing and after al-Bihani the Court supplied and referred to only a part of context. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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62 argument So, what we have is an absurd situation where the government says it has always been the practice under the AUMF to do this yet they say we've never done it and they say, and no Court has ever accepted the doctrine and those Courts that were asked specifically to accept it reject it square on its face. So, how is it that we can say Section 1021 simply embraces long-standing authority under the AUMF when the government says it has never done that and when every Court that considered it said it is not part of it? And so, what we have is a failed standing defense for the government. This whole argument is construed by the government in order to say, well, if we've never used it but we've always had the power since 2001 when the AUMF came into force and we have never used it against people like you, you have got no reason to fear anything since it is quite clear that power has been known to be in the government's hands and we have never used it for such purposes. But Section 1021 is not a recodification of the AUMF substantially supported power because it never existed in the AUMF. It is a new legislative enactment. Now, Congress might say, and really what has happened here is Congress has seen that the Courts does not accept this reasoning of substantially supported. And what Congress did was by statute it imposed what the government could not achieve by common law. So, the NDAA, Section 1021, is a legislative SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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63 C875hedA argument effort to create what has never been accepted judicially. It is very similar, Mr. Mayer mentioned the NSA case involving phone surveillance. The statute in the NSA case was a legislative reaction to Smith v. Maryland in which the Supreme Court said that phone records are not protected under the Fourth Amendment because it is something you give to a third-party, you are not keeping it privately. So, Congress creates the ECPA, Restored Communications Act, to create, by statute, what the Court would not accept by common law or constitutional doctrine. This is very clear we have to look at NDAA Section 1021 as a legislative effort to create what the Courts have rejected as being under the AUMF. Now, they do say we affirm the AUMF for very simple reason. They don't want to create legislative confusion. What is the likely meaning of that affirmation sentence? It is that they want to be certain the president's war power is not impugned. The other statute adds new material and before they do that they say, by the way, we reaffirm the original statute, here is the new part we are putting in. This is the only fair way to read this. When we look at the failed judicial history of the government effort to persuade Courts to accept this standard, we have to see Section 1021 as an attempt by Congress to create by statute what the government could not achieve by common law. There has never been this power under the AUMF except in the mind of government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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64 C875hedA argument attorneys which is not the same thing as existing in law. THE COURT: I do want to give the government a chance to have their say and we will take a short break so that we can get there but tell me, Mr. Afran, are there -- is there one or two more points that you would like to make? MR. AFRAN: There most certainly I am sure are. I want to make sure we have addressed your questions to us. Your Honor, if I could ask the favor, if your Honor feels we have not, if you can let us know at some point today? I am just scanning, your Honor. THE COURT: Between you and the others I think we have covered my questions. MR. AFRAN: There is one thing I want to address which is Fox v. FCC which I think is important. THE COURT: Yes. MR. AFRAN: Fox gives the lie to the government's position -- I don't mean that disrespectfully, I mean it as a metaphor -- very interestingly in Fox the government took the view that the notion of non-repeated obscenities or expletives would still violate the statute governing the FCC. One of the things the government said was, well, we have gone back to 1960 and have opinions from the FCC in which they said just this and the Supreme Court looked at this and said, look, you can't tell us that the public, particularly the broadcasting corporate public which is a sophisticated member of the public and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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65 C875hedA argument presumably has full access to whatever legislative, judicial and administrative history that is relevant, you can't say to us that their notice of what is barred under the statute is known to them because of your decisions going back to 1960. THE COURT: And the Supreme Court, which just last, actually June of 2012, in that case said that the statute must give fair notice of what is required. MR. AFRAN: It does. THE COURT: Who bears the burden of giving fair notice? MR. AFRAN: If we are talking about a statute? Congress does. THE COURT: Yes. MR. AFRAN: If we are talking about a regulation, the regulatory body would have the burden of drafting that. Sometimes it is a hybrid case such as Rule 10B5 where there is a rule following the statute. I think one -- I think clearly it is the entity that promulgated the enactment, here it is Congress, it is not a regulation. Now, if the government is taking the position that our military branches have always said this power existed, well, I don't want to go back to that because I think we have addressed that, but in terms of what is definable or what is known in the statute, the body enacting the law has to make that known and that is really what the security says here. At the very least SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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66 C875hedA argument they say the statute can't be given life, informative definitional life merely because you have had administrative proceedings or policy statements going back many years. So, very significantly in Fox they go back 52 years, they say over a 52-year period we have taken this position in multiple incarnations. Here we go back at best to 2009 if we want to accept the March 2009 briefing as form of notice. THE COURT: Well, it is a little bit different because there it was -- well, it was the FCC, an agency of the government which said that they had taken these positions. MR. AFRAN: Which makes it more compelling. The assistant U.S. Attorney is counsel for the government. It is not an agency that has direct responsibility for implementing a given regulation or statute. And so, I think it is more compelling here in favor of plaintiffs even than it was in Fox. THE COURT: I guess the argument would be that there was a newly created statute here which, under the case law, is deemed to be written against the background of Executive Branch pronouncements, a judicial state of play, the common law, and that that was not the case in FCC v. Fox. MR. AFRAN: I think the answer then has to lie in those three areas. Number one, criminal law can't really be informed anymore by common law. We don't define criminal statutes by old common law standards. Fifth Amendment due SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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67 C875hedA argument process generally requires description in the statute of the proscribed act. THE COURT: I would disagree only because I think that mens rea is read into every criminal statute by virtue of the common law. MR. AFRAN: Right, but that's a global provision. In terms of what conduct is criminal, the mens rea is just an intent question. THE COURT: At the heart of criminal conduct. MR. AFRAN: Right; that it forms every act. THE COURT: Yes. MR. AFRAN: But the question is what is forms the act and the description of due process requires that there be notice and description of the act itself. Once you know what the act is the question becomes do you have mens rea. And so, the starting point must be under Fifth Amendment due process what is the description in the statute. And so, we can't look at the Military Commissions Act, for example, because the public itself has no point of reference to that. We don't even have an executive order here. We have a brief in one case, in Hamlilly. Now, if the broadcasters in Fox, who have expert counsel who focus all of their work on communications industry and administrative agency announcements in these fields were not chargeable with notice or policy statements going back by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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68 C875hedA argument the agency, then it is even more compelling here because we have ordinary citizens who are not within the scope of an expert industry. And so, if the broadcaster in Fox is not chargeable with notice of what his supervising agency has said over 52 years, it seems reasonable to say the plaintiffs here, who are not within the scope of an agency that supervises them, have even less reason to think that the Military Commissions Act reasoning could apply to them. THE COURT: Right. MR. AFRAN: So, the juxtaposition of Fox to this case is that Fox strengthens our position, I think, very strongly. THE COURT: I hear you. I hear you. MR. AFRAN: I would like to look at my notes for one moment, your Honor. I think we've -- I do want to raise one final point and that is on the independent expression standard what the government is doing is reversing First Amendment jurisprudence in the following way: THE COURT: You will tell me how, what that means. MR. AFRAN: I will. I think I will. Congress shall make no law respecting speech or the press. The presumption in First Amendment jurisprudence is that all speech is permitted and fully protected unless otherwise described. That's the general way First Amendment jurisprudence works. What the government is saying here is that we will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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69 C875hedA argument protect independent expression under this law but other expression is fair game for detention. And so, we have one -THE COURT: And another way of saying it, that they were simply answering my question which was are these plaintiffs who have done the things they've testified about in the trial record before this Court going to be subject to military detention? And the answer was quite careful but the answer was no. So, it wasn't an attempt to generally describe the statute or generally describe conduct. It was really going after the standing of the plaintiffs and whether the plaintiffs have an objectively reasonable fear -MR. AFRAN: In spite of that they do. THE COURT: -- of detention. MR. AFRAN: In spite of that they do. Mr. Hedges was arrested by the United States. THE COURT: For a few hours. Not that I'm minimizing being arrested for a few hours but it is not like he was thrown into a cell for six months. MR. AFRAN: He was a New York Times correspondent, clearly independent in the government's reasoning, and yet because he asserted that independence by leaving the press pool he was arrested and ordered to report to some agency -THE COURT: Not under 1021. MR. AFRAN: Couldn't, because 1021 didn't exist. THE COURT: Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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70 argument So, why should his fear be enhanced by 1021? He ought to have the same fear based upon whatever rationale or non-rationale caused his detention back then. There shouldn't be any heightened fear -MR. AFRAN: There was no statute that actually governed him. Now there is a statute that says one who substantially supports these groups is subject to detention. So, if once one is arrested -THE COURT: He wasn't arrested because he was substantially supporting, he was arrested because he had left the pool. So, there was something that said in the trial record he said, testifies, he is in Kuwait, he was supposed to be part of the pool and not leave the pool -- and the record will speak for itself so I don't mean to not state the record correctly -but he left the pool and he was detained. MR. AFRAN: He was very careful to testify that he was admitted to Saudi Arabia on a Saudi visa. He said he had no obligation to remain with the pool, he was under no governmental orders to do so. He simply acted as an independent journalist. THE COURT: All I'm saying is that's not at all about whether or not there was a -- whether or not he was detained for substantially supporting anybody, directly supporting anybody or having anything to do with conduct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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71 argument MR. AFRAN: He couldn't, because the AUMF didn't provide for that at the time but in his mind, an objectively reasonable actor, says I was detained once before as a New York Times reporter, I was clearly an independently acting in an independent capacity yet I was detained. So, the expression standard, I don't think, is much solace to them. THE COURT: Let's take away 1021 and deal with that example. Why does he still have exactly the same fear today that he could if he wandered away from a press pool under those circumstances and be detained again? He would. MR. AFRAN: If it is government policy to do that to journalists, I think then they have the right to go to court and say this policy is unconstitutional. And the fact is he is not in Saudi Arabia at the moment but this statute now governs activity in the U.S. so it creates a new level of juridical power that existed in the government that didn't. THE COURT: Although the Obama administration said that it will not enforce 1021 against American citizens. MR. AFRAN: With all due respect, they did not say that in the signing statement. They said we will not subject Americans to indefinite military detention without trial under Section 1021. THE COURT: That is true. MR. AFRAN: That is a significant difference. Your Honor actually said in the first hearing it was a very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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72 C875hedA argument carefully parsed statement and so the president was being a bit cagey, I think, in trying to cut it both ways; not eliminate the ability to use a statute but to appear to say that it won't be used. The government's statement here does not give that much solace to our plaintiffs. Number one, their activities are arguably not independent. When they would set up a webcast and invite people associated with these types of organizations to appear, they're not acting independently in a logical concept. THE COURT: Well, doesn't the word independent on its face mean not associated with one of these bad guys, e.g. the Taliban or Al Qaeda or so-called associated forces pertaining to the International Laws of War? MR. AFRAN: Does your Honor know what it means? I don't know. THE COURT: I have yet to reach a determination. MR. AFRAN: I am being rhetorical. If this is a statute, if the independent express standard were a statute it probably would fail because it clearly lacks sufficient guidance in itself. Independent expression without more and solely on the -- these things are generalized terms and in the case, generally, does not prohibit that. THE COURT: And I do want to go on to the government so I want to wrap ourselves up here, but people use the phrase SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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73 C875hedA argument independent journalist all the time. He's an independent journalist, she's an independent journalist. That is hardly an extraordinary phrase. MR. AFRAN: They don't say that. They say independent expression or independent advocacy without more will not implicate Section 1021. They don't say one who is an independent journalist. They don't even go that far. They say independent expression. Now they back this into two cases and this is the point I wanted to raise, they say there is judicial authority for this in the Salahi case and Bensayah case but those cases weren't dealing with expression, they were dealing with independent freelance military acts. THE COURT: It says independent journalistic activities. MR. AFRAN: They don't say independent journalist. They go out of their way to give a great deal of wiggle room in even this formulation. We would submit the following: That our clients don't know what that means, they do not have a statement that they will not be detained. What the government actually said in its brief was that independent expression or advocacy will not implicate Section 1021 activities, Law of War detention, and therefore plaintiffs don't have anything to worry about. They've never actually said these people will not be detained for this activity. They simply say since the statute does not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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74 C875hedA argument implicate independent journalistic expression -- independent expressive activities, advocacy or at one point they may say journalistic activities, they don't have standing because their activities don't implicate the statute. They don't say they won't ever be detained. They still don't say that. They still have not answered your Honor's question. THE COURT: They answered the question I asked -- I asked a series of questions. One of the questions I asked was, in sum or substance, or just in substance, will these folks who have testified here be detained for the activities about which they have testified they have -- past tense -- engaged in? And Mr. Torrance and Mr. Harwood will tell me if I'm right but I thought that their statement on page 20 of their brief was no. And so, if what they did was simply quote my question and say, no, I take that as the same thing. MR. AFRAN: Well, they say as a matter of law individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiff's 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 conduct. Put simply, which is rather bizarre in view of what just came before it, plaintiffs descriptions in this litigation of their activities, if accurate -- if accurate -- do not implicate the military detention authority affirmed in Section SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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C875hedA 1021.

argument

75

Now, when I went to law school we were taught that the word "no" is acceptable in Court. Are you going to detain them for what you've done? Yes or no? They didn't say so in the hearing and in their motion for reconsideration they essentially say this and they still don't say so. And in this brief they now still don't say so. And what they say is significant. The plaintiff's activities, if accurate -THE COURT: Let me ask you this. MR. AFRAN: -- they're leaving room for further -THE COURT: I will give -- here is one last question and we are going to take a break. MR. AFRAN: Yes. THE COURT: If Mr. Torrance and Mr. Harwood gets up and I say does this mean no, and they say it means no, do your plaintiffs have standing? MR. AFRAN: Yes. THE COURT: Why? MR. AFRAN: Number one, standing doctrine -- and we didn't reach this issue generally attached at the outset of litigation particularly when the interests at issue can be asserted on behalf of third-parties. THE COURT: And that's the Lujan case. MR. AFRAN: Yes; and so, number one, we had standing at the outset and we had standing during the hearing when they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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76 C875hedA argument would not answer your Honor's questions in any guise whatsoever. The answer was we can't answer those questions. So, standing existed all throughout this case. If they now say no after not saying no in the hearing and not saying no in the motion for reconsideration and not saying no in their trial brief, if now at the last hour in the trial they say no, that, number one, it is not fair play, it is not credible. THE COURT: But they might say that this means no. MR. AFRAN: They might. THE COURT: They might say this means no. They've said it before. MR. AFRAN: If this means no I would like to see the word no in what is submitted to the Court because future plaintiffs aren't going to order the transcript of this oral argument and then go to their interrogator and say, look, I had the transcript ordered and in the final argument, when the Court finally put the question to the government, the government said no, we didn't mean to detain them and that tells us now what the law means. It is an unrealistic way of giving notice as to proscribed conduct or for conduct that is outside the statute. The brief itself is not even realistic. In Fox, 52 years of administrative determinations as to other parties was not deemed sufficient notice and now we are told a statement in a brief that might be elaborated upon in oral argument might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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77 C875hedA argument give us the standard to know what conduct is proscribable and what is not. The other point I would say is this: All this says is -- well, going back to standing on Lujan, standing attaches at the outset and especially where Justice Scalia in the majority holding in Hicks and Board of Trustees says standing is applicable to third-parties, and Broadrick makes the same point, parties who are not before us because they share the same expressional interests, where standing has existed at the outset, where it has existed all throughout the case until oral argument and finally, parties have juridical right to stand for third-parties who are not here, clearly it is too late to say no. Standing attaches in this case. Thank you. THE COURT: Thank you. Why don't we take a, for counsel, if you guys leave and then don't come back we are going to start without you because there are too many of you guys to wait for all of you, but what we are going to do is resume in, why don't we say, six minutes. I know it is not a long break. I want you to go, come back in, and I want to go straight into Mr. Torrance and Mr. Harwood, whoever is going to speak. (Recess) THE COURT: Mr. Hedges' book came out on June 12th, 2012. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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78 argument MR. TORRANCE: I won't delay things further. THE COURT: Here he comes. MR. TORRANCE: Thank you, we appreciate the accommodation. I do want to start with the general principle, the plaintiff's, their beginning principal, the uncontroversial premise that a person who is charged with a crime, terrorist or otherwise, is entitled to criminal process and entitled to a statute that conforms to the criminal constitutional standards and cannot be held by the Executive Branch alone. As we say, that's not controversial. But equally controversial is that when the United States is at war against an enemy armed group, it can detain those who are part of that enemy armed group through the end of hostilities. When the United States was at war with Germany 70 years ago, the members of the German armed forces were detained, without trial, and from the perspective of 1942 for an indefinite period, so were members of the co-belligerent forces, even if there was no authorization of military force against them, and all of that is completely within the Constitution. THE COURT: Now, let me just ask you, so within the Constitution you are talking about Article II. MR. TORRANCE: All of that is okay within any part of the Constitution. It is not forbidden by the Constitution. The foreign affairs and military power, of course there is an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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79 C875hedA argument interplay between the legislative and the executive branches although it excludes the judiciary but, yes, when you have, as both in World War II and here, you have congressional authorization of military force and then you have the executive using that authorization of military force to detain people under the Laws of War. That is constitutional. And that has never been controversial throughout our nation's history. THE COURT: All right. Well, you would agree with me that when President Lincoln suspended the writ of habeas corpus in 1861 and imprisoned an American citizen, that was found by Chief Justice Taney to have been, in fact, unconstitutional? MR. TORRANCE: Yes, but there are -THE COURT: That's not been overruled. MR. TORRANCE: That has not been overruled but that case is quite different. First of all, the issue in Merryman is which branch of government could suspend the writ. The Constitution's plain language says it is Congress, President Lincoln did it through unilateral executive action. So, that was -THE COURT: Could Merryman have been arrested, in your view, under some provision by President Lincoln that would have been constitutional? Were they on a detour and frolic, if you will, on the road of habeas corpus? MR. TORRANCE: First, I don't like the word arrested because that implies a criminal context, but could an American SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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80 C875hedA argument citizen be detained under the Law of War? Yes. And, in fact, quite a few were, certainly considering all of the confederate forces to be U.S. citizens, they were all detained. But even people in loyal states or border states were detained under the Law of War. This goes even in more recent history, Ex parte Quirin from the Supreme Court in 1940, affirms that the Law of War can be applied to a U.S. citizen. Hamdi was a U.S. citizen and was detained under the Law of War. THE COURT: Well, Hamdi was detained under the AUMF as originally passed which was under not the Law of War, it is under the AUMF. I mean are you, maybe -- I want to make sure the vocabulary that we are using following each other is meeting on all fours. There is the reference to the International Laws of War which the al-Bihani case talks about and that case talks about how the International Laws of War should not be incorporated into domestic common law. And I know that you folks in your briefing have said that you disagreed with that and you disagreed with that at the time. Are you suggesting, when you use the word Law of War, something different? MR. TORRANCE: No. It is the same International Law of War. THE COURT: Okay, so -MR. TORRANCE: In Hamdi what the Court does is it interprets the AUMF in light of long-standing principles of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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81 C875hedA argument Law of War. THE COURT: I read Hamdi as interpreting just the AUMF presidential authority to detain one who was considered to have been involved in, shall I say, the activities of 9/11. MR. TORRANCE: An interpretation that the Court did expressly with reference to the Law of War. THE COURT: Under the Military Commission Act. MR. TORRANCE: No, not under the Military Commission Act. The MCA did not exist in 2004, first of all. THE COURT: I'm sorry. It existed in '06. It was for some of the later cases. MR. TORRANCE: Right. And I will agree with what I think Mr. Remes said, the MCA has no applicability in this case. The detention standard that the Executive Branch has enunciated goes back to 2004, slightly after Hamdi, and we refer to that several times in our brief. The 2004 standard, that differs from the current standard only by one word, the word "substantially." So, they were asserting the authority to detain people who were part of Al Qaeda, Taliban and associated forces and also those who supported. Now, actually the Court referred earlier to expanding in March 2009 litigation filing, that actually reduced the -- it actually narrowed the category of those whom the Executive said it could detain, not those who just supported but those who substantially supported. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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82 argument THE COURT: Let's just pause there and I'm going to actually ask you to adjust the mic or lean into the mic so we can get a better projection. MR. TORRANCE: Actually -THE COURT: It is a short mic, just project a couple of inches out. It would be easier. Walk me through, if you will, the evolution of the AUMF into the March 2009 filing? Because you have heard me today, Mr. Torrance, talk about what I perceive to be an original Congressional authorization under the AUMF and then what I assume happened, but you will correct me, is I assume that the Executive Branch then interpreted the AUMF over a period of years from the initial AUMF authorization and expanded, if you will, the AUMF to include, effectively, the language, much of which has now been codified in 1021(b), and that was put forward in the March 2009 brief. Is that proximately correct or did it occur in another way? MR. TORRANCE: Well, I do -- I want to -- again, I think I'm agreeing with Mr. Remes on this point. I don't believe that we view the AUMF as having different iterations. There is one AUMF and it has always included the authority to detain enemy belligerents in the course of the armed conflict as authorized by the AUMF. THE COURT: So, in your view, just so I'm clear, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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83 C875hedA argument 1021(b)-2, which is what the, this lawsuit is about, a person who was part of or substantially supported Al Qaeda and Taliban, etc., etc., that, you believe, was encapsulated within the original AUMF authorization? Because the words weren't used so your view is it was encapsulated within. MR. TORRANCE: That's right; and the history and authorizations of military support that going back to the World War II example. Immediately upon the passage of the authorization of military force in 1941, upon the first encounters with enemy armed services the United States began detaining them. That's always been part of the authority to use force under the Law of War. And similarly here, just to go back to the question of walking through the evolution, it is my understanding that immediately upon the passage of the AUMF, and I'm trying to just glance at Hamdi to determine when exactly he was detained but he was in the U.S. Naval custody in January 2002, so -THE COURT: Yes. MR. TORRANCE: -- not much time. It is my understanding that it was an immediate interpretation of the AUMF that as with every other AUMF within the nation's history that the force that was authorized included the force to detain the enemy belligerents and that has been a consistent position of the United States government. Now, Hamdi affirms that in 2004. Sometime after that, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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84 C875hedA argument a few years after that, the Boumediene case comes out. THE COURT: Which one? MR. TORRANCE: Boumediene; and that case of course says that there has to be habeas right for those who are detained at Guantanamo. So, following that the government had already, after Hamdi in a Department of Defense document that we again refer to several times in all our briefs, that had already enunciated a detention standard: Support or part of, including associated forces, including direct support, including everything except for the word "substantially." THE COURT: So, it is the government's position that the language which is codified in 1021(b)-2 was encapsulated within the original AUMF that was passed shortly after 9/11? MR. TORRANCE: Yes. That's right. THE COURT: All right. So then it is the government's view that it did not evolve its interpretation of what military detention involved over the years, that essentially it had that view back right after 9/11 when the AUMF was passed. MR. TORRANCE: At the very least the core view was the same. As I say, the government narrowed it somewhat in 2009 and there may have been other fluctuations at the margins like that. THE COURT: Would you agree with me that the executive branch would not have the right to expand the definition of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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85 C875hedA argument military detention on its own, that it doesn't have the right to do that? MR. TORRANCE: Beyond what? THE COURT: Let's assume for the moment that the AUMF didn't have certain types of detention authority within its bounds on September 11 or thereabouts. MR. TORRANCE: Right. THE COURT: If that's the case, that hypothetical is the case, would you agree with me that the Executive Branch doesn't, on its own, have the power to expand detention authority? MR. TORRANCE: I would say not necessarily for the following reason: Mr. Remes referred to inherent Article II authority and correctly noted that the government, at least since 2009, is not asserting authority under the -- under Article II directly. We are asserting the authority under the AUMF. Now, that doesn't mean that we're abandoning the concept that that authority might exist. It is just that as with, as Courts often avoid different constitutional questions, the branch has the same interest in avoiding constitutional questions and it is simply not asserting that constitutional authority here. So, when, in the Court's hypothetical, you are basically getting into a steal/seizure type of situation and Judge Jackson, in his famous concurrence, discussed where you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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86 C875hedA argument have situations where they have the military foreign affairs national security power, that is something that is inherent in the Executive Branch itself but then Congress also has foreign affairs and military power -THE COURT: Right, but foreign affairs and military powers is typically -- and I don't disagree with you that the President has foreign affairs and military foreign affairs and military powers and that he is, for foreign affairs -certainly his view predominates. And there is lots of case law that is supportive of that. However, those cases that the government cites are different from cases which talk about the ability of the Executive Branch to interpret domestic military detention in a particular way. MR. TORRANCE: I'm not sure what domestic military detention is. THE COURT: 1021 is not just an exercise of the president's foreign or diplomatic powers. 1021 also, or the AUMF is also, if you are correct, would have allowed the President to have engaged in military detention on American soil. MR. TORRANCE: I don't -- well, first of all, I don't think that question has ever been reached because it has been the practice of the government not to detain people apprehended on U.S. soil in military custody. There have been two instances in which that was the case for some time but both of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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87 C875hedA argument them were then transferred into criminal proceedings and convicted under normal criminal law. So, that question has never been -- has never been reached and, again, it is not a question that need be reached. These are difficult questions about the independent authority of each of the two branches that has foreign affairs power and the extent to which Congress can limit one and whether, at some point, its limitations on that foreign affairs power becomes an intrusion on what has to be inherent in the President, those are some very difficult questions that, again, need not be reached in this case. THE COURT: But you would agree with me that if the executive branch goes too far and does something that is unconstitutional in terms of military detention, that the Court does have the power and indeed the obligation to enjoin that act as unconstitutional, it is a co-equal branch of government? MR. TORRANCE: Well, not necessarily, again, because there are other remedies that are more appropriate, particularly habeas after the fact as applied, there is an after the fact as applied remedy for that. Enjoining prospectively causes a whole separate powers concern. It means that the president, who as far as I'm aware, has never been directly enjoined -THE COURT: The cases you cite where the President has not been directly enjoined were cases like Briggs, whatever it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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88 C875hedA argument was, it was the boat and these go back into the 1800s and I don't have any dispute with those cases but those cases were about enjoining the President's diplomatic abilities, very different, and his treaty ability to negotiate treaties so they have to be passed by the Senate. Those cases are very different from the President's ability to, for instance, just decide what he thinks is appropriate in terms of the extent of his ability to detain people in the name of national security. MR. TORRANCE: Well, I don't think it has ever been strictly in the name of national security. It is in the name of an ongoing armed conflict which is a little more severe. THE COURT: We are supposed to take an armed conflict, terrorism, worldwide, occurs in the United States, also occurs overseas, so it is not just ex-U.S., it is also within the boundaries of the United States. Do you agree, as a principled matter, that the President can't, in the name of the national security of the United States, just decide to detain whomever he believes it is important to detain or necessary to detain to prevent a terrorist act within the United States? MR. TORRANCE: That does -- yes. I mean, that seems quite broad. That seems to simply just do it unilaterally within the United States especially if citizens, that would be overly broad. But, as I say, the practice of the government consistently throughout the 10 years except for the two cases temporarily has been not to keep people apprehended in the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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89 C875hedA argument in military custody to avoid these questions. THE COURT: Now, would you agree that -- we don't know if Romney or Obama is going to be elected in the next presidential election. We don't know. MR. TORRANCE: I don't know. THE COURT: Okay. And it is reasonable to assume, people can take -have their views, but it is reasonable to assume that I won't be president next. MR. TORRANCE: Yes. THE COURT: Okay. Would you agree with me that a different administration could change its mind with respect to whether or not 1021 would be applied in any way to American citizens; that the signing statement, the Obama signing statement is not binding, legally, on a subsequent administration as a matter of law? MR. TORRANCE: Is that possible? Yes, but it is speculative and conjecture and that cannot be the basis for an injury in fact. THE COURT: Would you agree with me that there is nothing legally binding on a Romney administration terms of the Obama signing statement as a matter of law? MR. TORRANCE: I think that's correct. Yes. THE COURT: Has anybody ever been detained under 1021? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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90 argument MR. TORRANCE: Your Honor asked that at the outset and my understanding of the practice is detention in ongoing military armed conflict is that they don't name the source, whether it is the AUMF or 1021. They don't have a piece of paper that checks a box for one or the other. THE COURT: So, let me ask you -- I'm sorry. I know I pepper you with questions but you know I did this last time too. MR. TORRANCE: Please. THE COURT: Here is this statement that you have on page 2 of your papers which is: They cannot point to a single example of the military's detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention. It is at the top of your second page. MR. TORRANCE: Right. THE COURT: So, do you know whether or not anybody has been detained for any type of expressive activities under 1021 or under the AUMF? MR. TORRANCE: Right. I don't believe -- I believe that they cannot show that because it is not true. Now -THE COURT: I'm sorry. I didn't hear. MR. TORRANCE: They cannot show that because it is not true. I'm not sure anything comes close to the kind of activities that they allege that has led to detention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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91 argument Now, to make sure we are all in full candor here, the only case that I'm aware of that could conceivably come close to that is there is a detainee by the name of al-Bahlul who has been convicted by military commission of crimes against the Law of War. He was charged with quite a number of things including conspiracy to murder and participation in the 9/11 attacks and convicted of those things, but one of the acts that supported that conspiracy charge against him was that he was, in his own words, the media man for Al Qaeda and he made a propaganda video that documented the bombing of the U.S.S. Cole, and he also made what are called martyrs wills which are video statements of the 9/11 bombers -- excuse me, the 9/11 attackers that were designed both as propaganda and, essentially, to lock them into their conduct and to make sure that they would go through with it. That kind of -- so, he was a propagandist, he was a media relations person, and that was his role within Al Qaeda. Now, he was, as I said, convicted of the crimes of Laws of War by the Commission that is up for review with the D.C. Circuit. THE COURT: Habeas? MR. TORRANCE: No, direct review of the military commission's conviction which is provided, I believe, by the Military Commission Act which is under review in the D.C. Circuit, it is now being re-briefed in the D.C. Circuit. THE COURT: Do you know if anyone has been detained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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92 C875hedA argument under the AUMF or 1021 or, generally speaking, for any journalistic activities apart from this individual that you have named? MR. TORRANCE: I am not. No, I do not. THE COURT: You don't know one way or the other? MR. TORRANCE: I don't believe that is the case. I think someone would have told me if it were. I am not aware of any case even remotely similar to that. THE COURT: When you say case, if we think of all the individuals who have been detained under military detention, I am talking about a broad group of people, do you know whether or not any individuals who have been detained under military detention for the AUMF have been detained for any journalistic activities? MR. TORRANCE: No. THE COURT: You don't know? MR. TORRANCE: I don't know. THE COURT: How about for religious activities? Do you know whether or not anybody had been detained under the AUMF anywhere under, for military detention and placed in military detention for any religious activities? MR. TORRANCE: I don't quite know what religious activities means. I think a number of the detainees would say they were religiously inspired to wage war against the United States. If that was the motive -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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93 argument THE COURT: Purely nonviolent religious activists. MR. TORRANCE: I don't know of any cases and don't believe there are any cases. THE COURT: How about for nonviolent associational activities? Do you know whether or not anybody has been placed in military detention under the AUMF or 1021 for non-violent purely associational activities? MR. TORRANCE: Again, I don't know what that means. In the al-Bihani case one of the allegations -- again, there are many allegations against him but one was that he was the cook for the front line troops so in that sense he was associated with them. THE COURT: He carried a rifle though. MR. TORRANCE: He carried a rifle, but I believe the government asserted that in that case even had he not carried a rifle, simply traveling to and associating with and cooking for these enemy belligerents would make him detainable. So, yes, he was clearly part of Al Qaeda or the associated force and again, let me correct myself, either the Taliban or an associated force, the 55th Arab Brigade which was considered an associated force in that case. But part of what made him part of that was this association as being the cook. Even without carrying the rifle, he would have been detainable. THE COURT: So, is it your view that it is certainly possible that among the individuals who have been detained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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94 C875hedA argument under the AUMF, there could be some individuals detained for nonviolent or other types of associational activities not having to do with cooking? MR. TORRANCE: Well, again, I just don't know what associational means. I don't know -- I don't believe that there has been anyone detained for what we would generally -just advocating on behalf of Al Qaeda or saying something in support of Al Qaeda. If that's what the Court means by associational activities I don't believe that there is anyone. But, you know, when we are talking about a battle field, what an association is can mean a lot of different things so I'm not able to make a blanket statement without knowing precisely what the Court means by that. Associating with -- you know, under general domestic First Amendment law simply joining an organization is protected activity. Joining Al Qaeda is not protected activity. Somebody who is a member of or part of Al Qaeda is getting detained. THE COURT: How about somebody who is just hanging out with Al Qaeda? MR. TORRANCE: Depending on what they're doing. THE COURT: What does it depend on? Give me an example of what would be a problem and what wouldn't be a problem. If somebody is just hanging out with Al Qaeda -- let me not use that word, I don't mean to be too colloquial. There SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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95 C875hedA argument is somebody who is not a part of Al Qaeda but is in the presence of Al Qaeda. Are there types of types of activities that have resulted in military detention? Let's take that first. MR. TORRANCE: Right. Without saying they have resulted under the Law of War, particularly the Geneva Convention, the Third Geneva Convention, Article 4A4, speaks about something very similar to what the Court just referred to. It refers to people who accompany the armed forces without actually being members thereof. Now, let me just say as a preface, Article 4 of the Third Geneva Convention governs international armed conflict, people taken as prisoners of war in that term of art meaning and the meaning of Law of War of prisoner of war. And so, it is not directly applicable because it would not be applicable in a non-international conflict but it is, by analogy to that, the Law of War does support people who accompany the armed forces without actually being members thereof. And I'm quoting from the Geneva Convention here such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces. So, those people would be, even in an international conflict, they can be taken as prisoners of war. THE COURT: They could. MR. TORRANCE: They could. In a non-international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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96 C875hedA argument conflict the same analogy principle would apply. THE COURT: Let's talk about 1021. And to the extent that I'm assuming you're analogizing between the principles you have just talked about in 1021, is it the case that being in the presence of Al Qaeda could result in detention under 1021? MR. TORRANCE: Well -THE COURT: It could. MR. TORRANCE: Again, there are so many facts and circumstances that could support that. There is case law in the D.C. Circuit that says being a guest at an Al Qaeda guest house is powerful evidence that that person is part of Al Qaeda. And there are reasons for that because, generally, Al Qaeda doesn't put out a vacancy sign at its guest houses and people who know how to find those guest houses know that for a reason. So, that becomes evidence. But that kind of travel to a guest house alone, I believe, has been held by the D.C. Circuit to support detention. So, if that's what you mean by just hanging out -THE COURT: Presence of. I want to use the words presence of. I switched. MR. TORRANCE: Again, it is going to depend on what they're doing and the specific facts. If somebody is peacefully standing in the middle of Afghanistan and Osama Bin Laden happens to walk by, no. But, there is going to be a whole lot of shades of gray between the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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97 C875hedA argument one and the other. THE COURT: You can't walk by him anymore. MR. TORRANCE: He can't walk by anymore. That's true. THE COURT: But are you aware of anybody who has been detained under the AUMF or 1021 who was captured or detained not on the field of battle? Do you know one way or the other? MR. TORRANCE: Well, not a hundred percent sure. I did refer to earlier -- I did refer to earlier the U.S. citizen Padilla who was detained for some time under Law of War authority and, as I say, that was then ended and he was transferred to criminal custody and convicted but he was apprehended in Chicago. So, at least for a time there was one but I don't know if there is any other. And I don't know whether that's been a practice or if that's been a practice that's been disavowed. So, I just don't know the answer to that. THE COURT: You're familiar, obviously, with the activities of the plaintiffs in this case? MR. TORRANCE: As they allege them. THE COURT: As they not just allege them but as they've testified to them here in court. Are you aware of anyone who has been detained? And by that I don't mean for whom there has been a reported lawsuit citation, who has engaged in similar activities? MR. TORRANCE: No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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98 argument THE COURT: Let's go to this point that I was talking about with Mr. Afran before the break which is what you mean on page 20 of your brief where you talk about independent journalistic activities and whether or not that just means no. MR. TORRANCE: It just means no. And I will say, Mr. Afran makes a point about how standing attaches at the outset and this is true as a matter of law, it does not attach, though, for prospective relief which is the only relief they can obtain. The Lyons case, City of Los Angeles v. Lyons talks about how to have standing for prospective relief you need to allege future effect. So, whether it attached at the outset or not it is not present now and SEC v. Davis talks about you have to have alleged standing for each form of relief that you are stating and so prospective relief, they do not have standing. Of course our position is that it was not our burden to make that representation and so they never had standing in the first place. But, regardless, the standing inquiry should be over at this point. THE COURT: Let me back up for a second because I want to understand the difference between prospective and retrospective and your statement on page 20, which I will take now as a no, and that is the as a matter of law statement -MR. TORRANCE: Correct; and the following sentence, that whole paragraph. THE COURT: It is the whole paragraph, right. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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99 C875hedA argument I have assumed that it has been the government's position that they are not making a blanket statement that there are no activities that are journalistic by these five paragraphs that would not subject them to 1021. What you're saying here is that there is nothing in the record so far that has indicated that 1021 would apply. MR. TORRANCE: That's what we say in the second sentence but I do think we say something a little more broad in the first sentence which is that these independent journalistic activities and independent public advocacies would not subject someone to, as they describe them, would not subject them to Law of War of detention. So, we use the word independent and we say use the word "without more" to separate ourselves from the al-Bahlul case that I referred to a moment ago in which the media activities of that particular defendant in the military commissions proceeding were part of his conspiracy to commit murder. So, that becomes a whole different thing. That person was a sworn member of Al Qaeda and committing crimes against Law of War but those often involve media acts, propaganda acts, recruitment through media, recruitment through advocacy, through videotapes and what would be called speech. That's a whole different thing. THE COURT: And so you're saying that that type of activity which you have just described would fit within the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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100 C875hedA argument phrase "without more." MR. TORRANCE: The type of activities for Mr. al-Bahlul. THE COURT: Yes. MR. TORRANCE: That would constitute more. THE COURT: More, yes. MR. TORRANCE: That would not -THE COURT: What else? MR. TORRANCE: We would not be bound by that. THE COURT: What else? What other kinds of activities would these five plaintiffs have to engage in that would subject them to 1021? MR. TORRANCE: Picking up a rifle, shooting at American soldiers. All sorts of acts of war. All sorts of belligerent activities on behalf of an enemy. THE COURT: How about propaganda? MR. TORRANCE: I just want to say that of course there is no indication that they would do that but we need to -- it is not unreasonable for us to say "without more" because we have no idea what they intend to do or would do or what someone else similar to them would do and we can't insulate anybody from any future activity. THE COURT: How about propaganda? MR. TORRANCE: Well, again, first of all, I'm going to say propaganda, it depends again on the relationship to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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C875hedA Al Qaeda. Al Qaeda.

argument THE COURT: Let's say propaganda on behalf of

101

MR. TORRANCE: But what does on behalf of mean? It depends on the nexus of connectivity to it and this is why we have been so reluctant and supported by the case law that says the Court should not decide constitutional questions based on hypotheticals; that the gray area, that there is always going to be a gray area at the margin of a statute and that's perfectly fine for vagueness and for First Amendment under Holder, under all the other cases, and we really don't believe that we can be forced to make that gray area a sharp black and white. It is not that -- that is just not constitutional law to do that. THE COURT: What Mr. Afran was saying is this is not the margin of the statute, it is the heart of the statute because 1021(b)(2) refers to substantially support, support means in part to advocate, and that substantially support implicates conduct. Conduct is protected by the First Amendment unless it runs afoul of the very few narrow exceptions to First Amendment protection so it is not fringe. He argued it is core. MR. TORRANCE: That's just not a fair reading of the statute. It is a reading of the statute that takes all context out of it. What we are talking about is a statute that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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102 C875hedA argument directly refers to the Law of War, directly refers to the AUMF, directly refers to Al Qaeda and the Taliban. All of these things are contextual indicators that support means supporting the military belligerency, supporting -- supporting the fight against the United States, the kind of belligerency against the United States that would lead to one being detained under the Law of War as people have been detained under the Law of War for centuries. So, to read support, to just take a dictionary definition without paying any attention to the context of this statute and in fact the words of the statute that refer to war and military force, it simply is just not a reasonable reading of the statute. Also, I would point to the statement in Holder that says if the enforcement authority offers a limiting instruction, the Court has to take that into effect. So, what we are saying is that that context has to inform the meaning of the word substantially support and direct support and that it is not reasonable to read it to mean the kind of things that Mr. Afran referred to. THE COURT: Also, the Supreme Court, though, said in Stevens, and this is Chief Justice Roberts, that the government said, I'm quoting from the opinion page 1591, the government said it would not bring suits for certain conduct. The government hit the theme hard invoking its prosecutorial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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103 C875hedA argument discretion but the First Amendment protects against the government, it does not leave us at the mercy of no less obliged. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly. There is a difference between prompting to use it responsibly and making a specific representation to a particular kind of conduct. Holder had something to say about this. In Holder the Court relies on a government statement that the statute did not prohibit independent advocacy of any kind and so that's, by far, the more recent Supreme Court statement on this kind of representation. THE COURT: Interestingly, Roberts was involved in both of those cases. Holder, of course, is a series of definitional standards that were attached to the language there. There is also, and maybe you're familiar also with, I think it is the Nitke v. Gonzalez case. MR. TORRANCE: I am quite familiar with that. I litigated that case. THE COURT: You argued it, didn't you? MR. TORRANCE: Yes. THE COURT: In that case, and I think you may have been on the other side of that case as well, you argue there assurances of the government, and the Court there said that mere assurances by the government that it does not seek to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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104 C875hedA argument enforce the statute do not, ipso facto, make such a fear unreasonable because there is nothing that prevents the government from changing its mind and the resulting uncertainty is sufficient to establish the reasonableness of the fear. What would you have me do with that kind of language? MR. TORRANCE: Well, I have to admit I don't remember what we said -- exactly what we said but, again, I think there is a difference between just saying -- between just saying, well, enforce it in a kind of broader, responsible way as opposed to simply saying in a more specific way that the statute does not apply to this particular type of protected conduct. THE COURT: So, would you agree with me that the statute, and here we are talking about 1021(b)(2), is open to interpretation? MR. TORRANCE: No. We think it is quite clear, actually. THE COURT: So you think it is very clear. MR. TORRANCE: Yes. THE COURT: Are you absolutely confident that the individuals who run the next Department of Justice will believe that the clarity of your interpretation is the same as the clarity of theirs? MR. TORRANCE: Yes, because the statute in and of itself says all they're doing is affirming the AUMF detention SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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105 C875hedA argument authority, that they are specifically saying that Congress specifically said they are not expanding or limiting. Those are clear and unequivocal words and I don't believe that they can be escaped. THE COURT: So you don't believe it is open to interpretation? MR. TORRANCE: Anything is open to some interpretation but we believe it is crystal clear that Congress is not intending to change the law. THE COURT: Well, here is the -- I hear your position. The issue I'm having is I'm trying to reconcile the fact that the AUMF, as originally drafted in 9/11, right after 9/11, which was limited to 1021, the beginning of 1021, right? MR. TORRANCE: I think. Your Honor may have misspoke there by saying it was limited to -THE COURT: So, it says, or whatever the AUMF says, the AUMF provides that the 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. That's the AUMF; September 18, 2001, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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106 argument MR. TORRANCE: Yes. THE COURT: Now, so 1021(b)(2) does not require that the individuals who are detained had anything to do with any individual associated with 9/11. Would you agree? MR. TORRANCE: That is -- there are layers in which there is an association with 9/11 but a direct association. THE COURT: Correct. MR. TORRANCE: No. Mr. Hamdi was not alleged to be involved in 9/11. But he was still upheld -- his detention was upheld by the Supreme Court. THE COURT: You would agree with me that 1021(b)(2) does not require that an individual have -- I will quote the language -- planned, authorized, committed or aided terrorist attacks that occurred on September 11, 2001. MR. TORRANCE: The individual need not have done that. That's correct. THE COURT: Okay. And the individual need not have harbored such organizations or persons? MR. TORRANCE: That's correct. THE COURT: Okay. So, that's the AUMF. Now here is my issue. So, if 1021 doesn't require what we just talked about, which is a connection to 9/11, then how is it the same? Because September 18, 2001 Congress passes that AUMF. I get it. December 31st, 2011 they pass the MDAA 1021(b)(2) which strikes me as much SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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107 C875hedA argument broader so I don't see them as one and the same. MR. TORRANCE: Right. Here is how to see them as one in the same. First of all, because Hamdi says that the detention authority reaches well beyond but second of all the textual reason to say that they're one in the same there are two textual phrases in the AUMF, first of all, it authorizes force against the organizations, whether they committed the terrorist act or whether they harbored the terrorist. Now, if force is authorized against an organization, say, the Taliban, anyone who joins that organization after the fact, force against that individual is still authorized. The organization is not frozen in time on September 11th or September 18th, 2001. THE COURT: Hold on. MR. TORRANCE: The organization is ongoing. THE COURT: That's interesting. So, what you're saying is once the Taliban or Al Qaeda engaged in 9/11, every individual associated with them thereafter can be considered to have also, somehow through layers, have been involved in 9/11? MR. TORRANCE: Not to have been involved but to be subject to the authorization of military force. There is a difference. It is not an accusation that somebody who joined Al Qaeda yesterday and is detained tomorrow was himself involved but it is a matter of saying Al Qaeda was involved and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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108 C875hedA argument this person belongs to or, in the words of the statute, is part of Al Qaeda, and therefore the United States can exercise force as part of exercising force against Al Qaeda, can exercise force against that individual regardless of the date on which he joined. He could have been born -- he could have been 5 years old in 2001 but the fact remains that he joined Al Qaeda, he can be detained. So, it is the organization as a whole that is subject to the authorization of military force. THE COURT: Okay. I hear you. Let me ask you then, if that's right, if I limited 1021(b)(2) specifically to 9/11, I wouldn't be doing any interpretive damage because it has a lineal connection to 9/11 by virtue of what you just said, right? MR. TORRANCE: It has a lineal connection to the AUMF which authorizes force against, as your Honor just read it, which specifically refers to 9/11. So, in that sense, yes, it can be clearly, on its terms -- 1021 can, on its terms, be limited to affirming the AUMF's detention authority. THE COURT: I want to do something a little different. I want to say can I take 1021(b)(2) and say that 1021(b)(2) can only be enforced against individuals who planned, authorized, committed or aided the terrorist attacks for 9/11. MR. TORRANCE: That would be wrong. THE COURT: Okay. Let me ask you one more question: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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109 C875hedA argument Could I limit 1021(b)(2) to individuals who harbored such organizations or persons who were involved in 9/11? MR. TORRANCE: No. THE COURT: I don't understand how they're the same thing. MR. TORRANCE: Because, as I say, the authorization of military force extends to the whole organization. Your Honor asked me the two questions in terms of the individuals, individuals who planned, committed, etc., etc. They may not be -- they may not be the individual who planned or committed 9/11. They may be individuals who joined the organization that planned, committed 9/11. So, what your Honor just asked me in terms of individual, then that would be incorrect as to a matter of law as to those individuals, but -THE COURT: Okay, so. MR. TORRANCE: 1021 ties itself to the organizations against whom -THE COURT: Let me -MR. TORRANCE: Part of the conceptual reason is you can apply most military force against an organization or a state or an entity but detention can only be applied against an individual, so that's why they have to be phrased in different ways. 1021 is phrased in ways that refers to individuals who are part of or substantially support Al Qaeda, Taliban forces. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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110 C875hedA argument The AUMF is broader than that. The AUMF encompasses all sorts of military force including the actual force, killing people or exercising military force against these organizations, their property, the people who belong to them, whatever else it is. But, the reason for the difference in phrasing is because of the nature of detention and how it can only be against individuals. The other thing I want to point to textually is the phrase: Necessary and appropriate force against those nations, organizations or persons. That would be, you know, if one is exercising -- so, the President determines after the AUMF that the Taliban and Al Qaeda are subject to this military force. Now, if the United States is waging or in conflict against the Taliban and, you know, they're interspersed with separate but supporting militias such as in al-Bihani 55th Arab Brigade, if the United States is in a firefight with these people there are no distinctions between them. The United States can exercise military force against both the Taliban in that situation and what are now called the associated force or somebody who, in that situation, is substantially supporting them. So, the phrase necessary and appropriate force encompasses, also gives some leeway in applying this to people who are actually on the field of combat in that kind of belligerent relationship. THE COURT: But it could be applied to people not on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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111 C875hedA argument the field of combat? MR. TORRANCE: What could be applied? THE COURT: The AUMF. MR. TORRANCE: Well, depending -- in what sense? In the detention sense? Probably, yes. I think that's right. THE COURT: Yes. That's the sense I was talking about. So, when did "directly support" come into the government's interpretation of the AUMF? MR. TORRANCE: In the 2004 Department of Defense articulation of the detention standard that we referred to, it is in footnote 5 on page 5 of our current brief but it is in all our briefing before, I'm quoting from the D.C. Circuit case of Parhat for which an attorney is quoting the 2004 documents here, but the standard there is an 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 including any person who has committed a belligerent act or who has directly supported hostilities in aid of enemy armed forces. So, that is essentially identical except for the word "substantially" in front of "support." Essentially identical to the March 2009 filing which, and just to correct Mr. Remes on a point that was just a few months later published in a published document referred to in footnote -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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argument

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THE COURT: 16? MR. TORRANCE: Is it 16? No. Sorry, footnote 3 of our brief, there is a published document and I probably should have supplied that but the addendum that we referred to there, and I am happy to supply the Court with that document, but that applies the same standard beyond Guantanamo. So, the idea that this is simply limited to Guantanamo is not correct. But, anyway, going back, just to going back to the 2004 standard, that's the first articulation of which I am aware that direct support comes into play. THE COURT: Okay. In your view, was direct support encompassed within the AUMF authority as passed on September 18th, 2001? MR. TORRANCE: Yes. THE COURT: Now, footnote 16, let's talk about the al-Bihani case and the Law of War principles. The al-Bihani case says, the D.C. Court of Appeals says that the Law of War should not be pulled into the domestic common law and that it would be ill advised because it needs to be very flexible and you disagree with -- you, the government disagree with that. Are you asking me in the Southern District first and then ultimately the Second Circuit to disagree with the D.C. Circuit on this point? MR. TORRANCE: No. It is not necessary to do that. First of all, the question is really moot at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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113 C875hedA argument point. If the Court were to read perhaps Cortez, the en banc denial in al-Bihani, Judge Kavanaugh, who was part of the panel and who was part of the majority -- as the Court said the Law of War should not be part of domestic law -- wrote a long concurrence in which he explains his views on that point. One of the things he said is that if the statute specifically refers to the Law of War, then it is a whole different question but the AUMF does not refer to the Law of War so that's at least part of the reason why he reached a conclusion that the AUMF, the detention authority under the AUMF should not incorporate the Law of War. THE COURT: And so it shouldn't incorporate it here. MR. TORRANCE: No, because 1021 does refer to the Law of War in the sense that Judge Kavanaugh referred to in his concurring opinion. 1021 now, as a statutory matter, refers to Law of War several times. THE COURT: Here is the conundrum. On one hand the AUMF is not different from 1021. On the other hand, 1021 is different from the AUMF. MR. TORRANCE: No, not a matter -- it is a matter of Congress agreeing with the Executive. It is a matter of Congress just saying we are -- we are, and it is not only a matter of using the phrase Law of War, it is against acting against that background of consistent executive practice. The government has consistently, in accordance with Hamdi, says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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114 C875hedA argument that this is going to be informed by the Law of War. This detention authority will be informed by the Law of War. And so Congress, in adopting the identical language that the executive has used, brings all of those associations with it and is agreeing with the Executive and putting its imprimatur on the executive's view that the Law of War will inform this detention authority. So, it is not a matter of -- it is a matter of just disagreeing, it is taking a different view than the two Judges in the D.C. Circuit took on this particular point. THE COURT: So, 1021, what you are referring to is C, which is disposition under the Law of War which is really talking about military detention and what happens to a person under, specifically, A in terms of detention. MR. TORRANCE: I'm not sure -- I think there are several references to the Law of War but in A to talk about pending disposition under the Law of War but, yes, C also refers to the Law of War. THE COURT: But B does not. MR. TORRANCE: What is that? THE COURT: B does not. MR. TORRANCE: That's true, but the statute has to be read as a whole. It is a fundamental principle of statutory construction that the statute has to be read as a whole. We can't just take sections or even paragraphs, subsections or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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115 C875hedA argument even paragraphs out of the statute and, as a whole, there is a clear reference that Congress was contemplating Law of War. THE COURT: Let me ask you. You had said in your papers that you disagreed with my statement 1021 is like a criminal statute. MR. TORRANCE: Right. THE COURT: Okay. Are you aware of any provision, constitutionally, which allows for the incarceration of an American citizen without trial? MR. TORRANCE: It depends on what incarceration means. The military detention, yes, that can be -- in Hamdi the Court specifically recognized that a U.S. citizen, such as the petitioner in that case, could be detained as an enemy belligerent. The citizenship doesn't matter. What matters is that he had joined an enemy armed force. THE COURT: How about on American soil? So, because eventually Padilla was sent to -- was criminally prosecuted. MR. TORRANCE: Right. THE COURT: Are you aware of any situation in which under the Constitution an individual, on American soil, can be incarcerated without trial? MR. TORRANCE: Well, the Quirin case from the 1940s, those were members of German armed forces who infiltrated the continental United States and were apprehended in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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116 C875hedA argument continental United States with the intent, as they were accused and then later convicted of, of committing belligerent acts against the United States; acts of sabotage I think it was. Now, they were tried by a military commission. So, was there a trial? Yes, there was. But the same principle that one can apply the Law of War to a U.S. citizen apprehended on U.S. soil, if he can be tried by military commission and convicted of a crime against the Law of War, then afortiori he can be detained, the lesser remedy of detention would apply to him too. The Law of War would provide detention for that U.S. citizen apprehended on U.S. soil. As it was, of course, he was held pending his Military Commission trial. THE COURT: Let's take that to an extreme, a logical extreme. That would suggest that you could have an interpretation of the AUMF and 1021(b)(2) that an individual who is American on American soil, in New York City, could substantially support an associated force and then be subject to military detention but for the Obama signing statement. MR. TORRANCE: It is not just but for the Obama signing statement. There has been consistent executive practice not to do that. It is also not at all clear that substantial support could extend to anything that's in -- that is not in proximity to the battlefield. THE COURT: Where does it say that? MR. TORRANCE: It doesn't say that but, as I say, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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117 C875hedA argument is not clear that that could be the case. So, I think that hypothetical is not at all likely. In any event, that person would clearly be entitled to habeas and would have a judicial review in that context. THE COURT: You're familiar, of course, with the Korematsu case. MR. TORRANCE: Yes. THE COURT: Which many people think of as an embarrassment, the internment of the Japanese case during World War II. The Supreme Court case that provides if we confine military expedience by the Constitution, neither would distort the Constitution to approve all the military may deem to be expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say from any evidence before me that the orders of General DeWitt were not necessarily expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court held today does follow, then we may as well say that any military order will be constitutional and have done with it. So, the issue I have is sort of analogous to that which is if we extend the government's reasoning relating to 1021 to its logical conclusion, then it strikes me that the government, and here I mean the President, the Executive Branch, would have the ability to make determinations about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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118 C875hedA argument military detention extremely broadly and without a lot of definition. MR. TORRANCE: Right. Nobody is denying that the Constitution applies to the President's action even in military matters. It is really a question of the remedy. It is a question of, perhaps, in fact it seems to be the historical consensus that Korematsu was wrongly decided but they should have been entitled to their liberty through habeas remedy, not through some prospective injunctive relief that would put the threat of Contempt of Court from a single judge over the entire military operation of the United States. To the extent the military acts unconstitutionally, which certainly it is capable of doing, that can be remedied through as applied individual habeas challenges. THE COURT: So, in the government's view it would be an adequate remedy for an individual who was wrongfully detained and put into military detention to have habeas review? MR. TORRANCE: Yes. THE COURT: Okay. MR. TORRANCE: And I do note that of course there would be, you know, not everything despite Tocqueville's observation is a judicial question in this country, there would be would be a political outcry, I would think, if the government were to just start detaining people willy-nilly on the basis of military authority. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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119 argument THE COURT: How would we know? MR. TORRANCE: Well, we would know because they would file for habeas and those are public proceedings, as they have been in the D.C. Circuit repeatedly, as they were in Mr. Padilla's case and Mr. al-Marri's case. THE COURT: How long does the average operation from date of filing to resolution of petition take? MR. TORRANCE: I don't know. THE COURT: Couple of years, right? MR. TORRANCE: But most of them are found detainable so that does make is somewhat different. THE COURT: Let me just ask a couple more questions. We were back on the criminal statute. Are you aware of any criminal statute -- strike that. Are you aware of any noncriminal statute which allows for imprisonment? MR. TORRANCE: There are confinement statutes such as civil dangerousness; people were found to be a danger to themselves or others. The name is escaping me but there was a recent, within the last 10 years, Supreme Court decision that upheld a state scheme that said post conviction, post prison term, post expiration of a prison term certain people could continue to be confined civilly under those circumstances. So, there are situations. Of course there is also immigration detention in civil confinement. There is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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120 C875hedA argument criminal conviction or criminal proceeding there but they can be detained for quite some time. THE COURT: So you're maintaining your position that if one was detained -- let me ask it differently. If an individual was detained under 1021(b)(2), is it possible that they could be detained for 10 years? MR. TORRANCE: Yes. THE COURT: If one were to believe that the state, that terrorism in the fight against the war on terrorism could go on indefinitely they could essentially be indefinitely detained? MR. TORRANCE: Hamdi addressed that point and Hamdi said -THE COURT: But yes, right? MR. TORRANCE: Well, yes, but not without review because there is, as a matter of executive practice, the executive has been conducting reviews of people who were detained. So, I think that that, in part, results from Hamdi's observation of exactly the point that the Court just made, that there could be -- indefinite is probably the wrong word, there could be perpetual detention so Hamdi said if it ever becomes the case that the premise of the Law of War, that this will end sometime is called into question, then the Court would be willing to revisit that premise. But I think that given the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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121 C875hedA argument executive practice of ongoing review of existing detainees, perhaps that would be avoided but in theory, yes, one could be detained, continually found to be a continuing danger and detained until the end of his or her life. There is no doubt about that but that doesn't undermine the constitutionality of the statute. THE COURT: And so 1021(b)(2) could be used for perpetual detainment? MR. TORRANCE: Again, in theory there is, as a matter of fact, and -- I'm sorry, the other provisions of the NDAA talk about the review procedures and so there is Congressional support for that. I'm not prepared entirely to address the nuances of that. THE COURT: Okay. MR. TORRANCE: But. THE COURT: Let me just sort of see if I understand about times of war. Is it the government's view that in times of war the President and the Congress should determine who is detained or can be detained and that the Courts should stay, essentially, out of it? MR. TORRANCE: Well, no, because there is the habeas remedy. THE COURT: Putting aside the habeas remedy. Obviously there is an ex post facto habeas remedy but let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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122 C875hedA argument assume for the moment that we have a statute which is passed and the statute is passed by the Congress and it is signed into law by the president and it deals with detention during wartime. Is it the government's view that because of that military necessity essentially the Court should not, itself, engage in a review other than a habeas review? MR. TORRANCE: The only review of which I'm aware that would be appropriate would be the habeas review but of course the Court could, as part of that habeas opinion, declare the whole thing to be unconstitutional or something like that. But, habeas is the right avenue. Prospective injunctive relief is not. THE COURT: Let's back up to the Federalist papers and to number 78 which I know was a very long time ago which does, however, talk about the co-equal branches of government and does talk about the Courts having the right to review legislation and the executive powers and when they go too far and become unconstitutional it has an obligation to stop it, not just habeas review, but to undertake judicial review. So, I take it that that -- maybe you have a different reading -- I mean, I know I didn't preview Federalist 78 so you probably don't have it handy. MR. TORRANCE: I don't. It is in my office though. THE COURT: Have you looked at it recently? MR. TORRANCE: That depends what recently means. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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123 argument THE COURT: In connection with this matter? MR. TORRANCE: In connection with this matter, no. THE COURT: So, it says: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of the particular rights or privileges would amount to nothing. And then it says: No legislative act therefore contrary to the Constitution can be valid. So, this suggests that the habeas would come too late. MR. TORRANCE: I don't agree that it suggests that. I think that the Supreme Court has made it quite clear that in each sphere of the legislative action there may be standards for judicial review. Nobody is denying the principle of judicial review. But as we quote in our brief, the Rostker case, the Constitution itself requires deference to choices in military war and national security matters. So, the standards of that review are going to change depending on the sphere and the types of action that the Court can take, will change based SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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124 C875hedA argument on the types of action that are at stake. So, as in the D.C. Circuit case Sanchez-Espinosa, that we quote, Justice Scalia says it would always be an abuse of discretion to enjoin military action and that's because of the specific provisions of the Constitution that say it is outside the expertise and outside the province of the judiciary to weigh in on those matters. Those are matters that are specifically committed by the Constitution to Executive and Legislative. THE COURT: For foreign relations. MR. TORRANCE: And military matters and war matters. It is not just foreign relations. THE COURT: Military in terms of the declaration of war would have to be through Congress and the president and Court would not overrule a valid declaration of war. MR. TORRANCE: Well, that's a separate question. That becomes a political question. THE COURT: Correct. MR. TORRANCE: That becomes nonjusticiable as a political question. THE COURT: Let me go to that point in a way which is, because this Federalist 78 which I have become quite enamored with says: Or, in other words, the Constitution ought to be preferred to the statute. MR. TORRANCE: Right. But as I just said, the Supreme SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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125 C875hedA argument Court has held that the Constitution itself requires deference, a special deference in these military spheres and so it begs the question in a sense. Nobody is saying don't apply the Constitution. It is a question of saying what does the Constitution say? And the Constitution says that the legislative and executive branches in military matters have a very, very wide range of permissible action, even where they would not be able to do that in other spheres. THE COURT: Here it also says: Nor does this conclusion by any means suppose a superiority of a judicial to legislative power. It only supposes that the power of the people is superior to both in that where the will of the legislature declared, in its statutes, stands in opposition to that of the people as declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental. It just seems to be in contradiction to what you are saying. MR. TORRANCE: No, I totally disagree. The fundamental law, the Constitution, provides that there is deference of the Judicial Branch to executive and legislative and military affairs. That's in the Constitution. THE COURT: Right. MR. TORRANCE: So you apply the Constitution by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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126 C875hedA argument deferring to Congress. THE COURT: But the place that you are referring to then is Article II. MR. TORRANCE: And Article I. THE COURT: And Article I. But what you're talking about though, effectively, is that the President and the Legislature have the ability, according to the government, under Article II and Article I of the Constitution, to pass, essentially, any law they want with respect to detention of anybody they want under, by virtue of military necessity, and that that should be reviewable only on a habeas petition. That's the position? MR. TORRANCE: I think that there may be some extreme case in which that would break down. I think that there may be some case in which there is not, as in this statute, a military ongoing armed conflict or an enemy belligerent force. But here we are clearly within the war power so there is no need to determine the exact boundaries of when the Judicial Branch can do that kind of boundary patrol, as a matter of fact, as my fed courts professor used to say. So, there is going to be a clear area in which the Executive and Legislature can act. Whether the Judiciary can ever, in an extreme case can intervene we can leave to the side today because this question is quite clearly within the proper powers of the Legislature and the Executive. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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127 argument THE COURT: And in the government's view the Judiciary, in general, should not intervene in military matters? MR. TORRANCE: Yes; as the Supreme Court has repeatedly held. THE COURT: And that, so ergo, the legislature could pass a law signed by the President relating to military necessity and have to do with military detention which the Court shouldn't do except for habeas, in general? MR. TORRANCE: In general, yes. THE COURT: Okay. Now, let's see if I have any other questions. I do want to give you a chance to also say other things that you may have as well. You do agree that the branches of government are co-equal, right? MR. TORRANCE: Absolutely. Absolutely. But that's part of the reason we take issue with the idea that Congress has quite clearly said that they're endorsing, not expanding or limiting but only affirming the President's authority that has been articulated. So, we have two branches that agree with that and the third branch has concurred in that. I do want to point out that they've said in their brief -- the plaintiffs have said in their brief and have said here today that the Hamlilly case strikes down the substantial support. They're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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128 C875hedA argument correct that Hamlilly said substantial support is not authorized by Law of War but that has been abrogated by higher Court at a later date, the al-Bihani decision, and they're incorrect to say that al-Bihani simply didn't apply it. Let me just, if I may for a second? THE COURT: Yes. And then while you are doing that, I want you to think about if this Court were to enjoin 1021(b)(2) permanently, tell me if there is any retroactive impact on anybody who is currently detained. MR. TORRANCE: Can I do my al-Bihani first? THE COURT: Yes, you may. MR. TORRANCE: Al-Bihani said: Al-Bihani is lawfully detained under the modified definition offered by the government that requires that an individual substantially supports enemy forces. So, they clearly are applying it. THE COURT: What is the pin cite? MR. TORRANCE: 872. Also on page 872 they say: The facts place al-Bihani within the "part of" and "support" prongs of the relevant statutory definition. So, then they also say at another point for which I don't have a pin cite, I'm afraid, but they say both prongs are valid. So, Hamlilly, which was a very influential and very intelligent decision, had simply been abrogated on that point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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129 C875hedA argument It is just not the law anymore. THE COURT: Well, you know, it is interesting because one of the chief disputes between the parties here is whether or not in fact the third branch of government has actually agreed with the various interpretations that you folks put forward. You folks say, the government says yes, quite strongly, and the plaintiffs say no, quite strongly, and the case law is complicated because you do have to thread your way through a number of these, the Military Commission Act which does come into play, whether people want to think about it or not, and the AUMF and how that expands. MR. TORRANCE: Can I just, on the MCA, again, the detention standard in almost identical terms was articulated by the Executive Branch in 2004. The MCA, the first one, it isn't enacted until 2006. THE COURT: I understand. MR. TORRANCE: So, we just simply disagree that that -- there is nothing in the March 2009 filing, there is nothing in the 2004 DOD statement. There is nothing in any of the history that indicates that this is informed by the Military Commissions Act. THE COURT: The only reason I bring it up is because some of the cases that have been cited for the propaganda -not Hamdi, it must be the other one. These names sometimes -MR. TORRANCE: Hamdan? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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130 argument THE COURT: The Hamdan case, it is against the backdrop of the Military Commissions Act but, anyway, that is for me to worry about. MR. TORRANCE: That is respectfully also incorrect because Hamdan also predates the MCA. Hamdan was the impetus for it. THE COURT: I will see where it fits in as we progress. So, you were going to tell me about whether or not, if it is true, that the AUMF is the same as 1021(b)(2), then it would strike me that enjoining 1021(b)(2) can be -- we can take in both directions, it could either create no problem for the government which is what I said in my original opinion, or putting aside the fact that you think I shouldn't do it and shouldn't have done it preliminarily, or it creates a very big problem because if it is done on the basis that there is a constitutional infirmity to the language of 1021(b)(2), then it could potentially call into question similar interpretations under the AUMF if they truly overlap. So, what I want to understand from the government is what would the Court be doing, tell me now, if it enjoins 1021(b)(2); nothing or a lot? MR. TORRANCE: Well, again -THE COURT: Apart from the theoretical issue the Court should stay out of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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131 argument MR. TORRANCE: Right, can we adhere to. But, as we say in our brief, that is going to depend of course, on how the Court words the injunction. We believe -THE COURT: If the Court decided to issue such an injunction. MR. TORRANCE: Exactly. We believe on the one hand they have not challenged the AUMF so it would be improper for a Court to reach out and find a new challenge to a statute. THE COURT: I agree with that. It is the Court does not have before it the actual statute, AUMF passed on September 18th, 2001. MR. TORRANCE: Right. THE COURT: We can debate whether or not it happens to overlap with a subsequently passed statute but the September 18th, 2001 statute is not the one that is currently being challenged. MR. TORRANCE: Right. So, it would not be proper to reach out and do that. We think that the Court, if it were to issue that injunction, should do what it did in the preliminary injunction and make it clear that the AUMF remains in effect. And, in fact, the plaintiffs rely on this as part of their argument. So, that creates a quasi judicial estoppel, if they're going to rely on it and be successful then they have to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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132 C875hedA argument be stopped from taking it any further. THE COURT: Here is the nub of the issue: If it is right that the AUMF is the same as 1021(b)(2), and let's assume for a moment that you have a Federal Court which says that 1021(b)(2) violates due process because it doesn't put people on notice of what they can do that would subject them to military detention, if that's the same as the AUMF, by enjoining (b)(2) has the Court effectively tread upon the carpet of the AUMF? Or are you able to keep them separate just as a matter of strict legal interpretation? MR. TORRANCE: It is our belief that because that's a difficult question the Court should keep them separate and the Court should do what it did in the earlier order and expressly keep them separate for the reasons that we've discussed. THE COURT: Okay. What impact, in your view, does the appeal of the preliminary injunction have on any appeal -- let's assume for the moment, hypothetically, and the Court has not reached a determination, I really haven't and I have to go through an awful lot of material here to figure this out -- but let's assume for the moment were the Court to make the injunction permanent in that there was an appeal immediately, I assume the Second Circuit would take both up; what is the effect of the one on the other? Does it change the standard of review? MR. TORRANCE: No. I don't think so. I haven't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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133 C875hedA argument researched this fully so I'm not completely in a position to answer. I believe the one merges into the other. I think if the permanent injunction is issued, whether it is issued or granted -- I'm sorry, issued or granted or whether it is denied, that dissolves the preliminary injunction simply by operation of a final judgment. It is the final judgment that controls. So, I think that probably the preliminary injunction -- I say probably, I don't want to be committed to this because I don't know that this is the answer, but -- I think the preliminary injunction appeal becomes moot at that point and the only thing that has to proceed is the permanent injunction appeal. THE COURT: Right. I think that's right. You guys will figure it out, depending upon what occurs. MR. TORRANCE: Right. THE COURT: Were there any other final points -- and I want to say, Pam, thank you very much -- that is the court reporter, for the record -- points, Mr. Torrance, that you wanted to make which I did not let you make? MR. TORRANCE: May I have a second? THE COURT: Absolutely. Now I did say that you folks, plaintiffs, that I would, unsure as to how the evolution of this would occur, but we are going to have a very limited time. If you have got one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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134 C875hedA argument or two points to make, pick your best shot, your best spokesperson; not the best in terms of who wins the gold medal but who is going to address the particular point. We will do one jack in the box. MR. TORRANCE: A couple of points. First of all, again on the scope of the injunction, they have not challenged the part of language in the scope of the injunction. THE COURT: I'm sorry. The what language? MR. TORRANCE: The part of language. So, their challenge here is to the "substantially support" prong. So, again, we disagree that there should be injunction at all both on the merit and on jurisdictional grounds but if there were, it should be limited to part of. I'm sorry, it should be limited to "substantially support." THE COURT: Well, they do say directly support, actually in their papers in the injunction below, which is why it was part of the PI. MR. TORRANCE: Well, the directly support, on a close examination of the statutory words, it says the standard is substantially support or part of. I got that backwards. And then it says including those who directly support belligerent acts. So, whatever falls within direct support has to fall within either part of or substantially support. THE COURT: Well, let me then put it this way. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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135 C875hedA argument challenge is as it was on a preliminary injunction as to 1021(b)(2) which is what we've been talking about here. It is not to 1021(b)(1). MR. TORRANCE: That's correct, but we think it is even narrower than that. We think it is only to the substantially support prong of (b)(2) and that would be the only proper -again, no injunction is proper but that would be the only, given the challenge that they've brought, the only proper injunction would be substantially support. THE COURT: That's interesting, because obviously the associated force has been a big part of this in terms of the void for vagueness, the vagueness arguments for that. MR. TORRANCE: But if one is part of an associated force, if one is part of the 55th Arab Brigade that Mr. al-Bihani was part of, I don't believe the plaintiffs have even challenged that. What they challenge is a vagueness matter as to substantially support an associated force in the conjunctive vagueness of those two phrases which, of course, we deny. THE COURT: But there is also the phrase "or." There is an "or," has directly supported such hostilities in aid of. There is an "or." MR. TORRANCE: The "or" comes after including. THE COURT: Yes. MR. TORRANCE: So the statutory text is that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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136 C875hedA argument entire including phrase falls within either substantially support or part of. So, all that needs to be done is the two words, "substantially support." THE COURT: Well, this is a new argument. MR. TORRANCE: Well, no. We actually made it as part of our reconsideration motion. THE COURT: Oh. Well, it is a new argument and that we denied as moot, that no longer exists, but I will read this closely and see whether or not I can understand what you are saying. MR. TORRANCE: That also brings me to the question of the denominator or the scope of the metric I think was the term that we were using. THE COURT: Thank you for reminding me of that. MR. TORRANCE: I refer the Court to Virginia v. Hicks but the Court is quite clear in that case that they are considering the allegedly unconstitutional application of the statute as against the statute, taken as a whole, including actually not even the statute taken as a whole, the entire practice that occurs under this statute taken as a whole. This is illuminated somewhat by Justice Souter's concurring opinion in which he asks I think what is the same question that the Court is asking which is essentially, as he puts it, what is the denominator, the scope of the law that forms the denominator of the fraction and the numerator is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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137 C875hedA argument potential invalid applications. So, the statute -- and, as he says, we look to the entire statute. Now, he questions then whether it might actually include other practices. He says it might be in a hypothetical future case, a city speech ordinance might be analyzed alone or as one element of combined policies. So, it could be broader than the statute taken as a whole but at least it has to be this statute taken as a whole. So, the potential invalid applications has to be considered not just against (b)(2) but as (b)(1) and (b)(2) and I would say even -- well, the AUMF, since it is -- I don't need to go on to that but it has to be considered as against all the people, and there are many of them, who have been detained as part of Al Qaeda and the Taliban, putting aside any of the controversial parts -- controversial at least in this litigation, controversial in substantially support or associated forces. The number of people who have been detained as Al Qaeda or the Taliban is quite large compared to the number of people who have been detained for independent expressive activities, which is zero. So, the fraction is -THE COURT: But under 1021 has anybody been detained under 1021 yet? MR. TORRANCE: As I said before, we don't believe the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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138 C875hedA argument Department of Defense, the military makes a distinction as to whether they're doing it under the AUMF or 1021 since the authorities are the same. I don't think that they -THE COURT: Well, they haven't since I issued the injunction though, right? MR. TORRANCE: They certainly haven't, but they are continuing to apply AUMF detention authority as the Court endorsed. But even before that injunction they weren't specifying whether the source was 1021 or the AUMF. There is no need to specify that authority. THE COURT: So, that is just a sort of, then, and we have to move on to the very end, but part of what you are saying is that the effect of the injunction was nil because there was nothing to change since the AUMF completely overlaps with 1021, therefore the effect of the injunction was not to inhibit any practice at all. MR. TORRANCE: Yes, and that is another reason to deny standing in this case because their injury, as they asserted, has not been redressed. THE COURT: Well, it is an interesting position because otherwise you would be in contempt, but. MR. TORRANCE: Well -THE COURT: I mean, if you were wrong and 1021 is different from the AUMF and nobody has changed a single practice, then you folks would be in contempt of Court order. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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139 argument MR. TORRANCE: I think if the government were saying to this Court that 1021 and AUMF were the same -THE COURT: Which you are. MR. TORRANCE: -- which we are, but out in the field interpreting 1021 to be broader and applying that broader fraction of 1021 then, yes, that would be in violation of this Court's order. But that's not happening. The government is, continues to be, will continue to be convinced that 1021 and AUMF detention authority are coterminous, as Congress said that it would be. So. THE COURT: I asked you this last time and I will look at your answer again, but I don't understand why you guys needed to pass 1021 at all. MR. TORRANCE: The President didn't say that we did but there are reasons to codify existing practice. There is real value in Congress putting its imprimatur on a practice and saying that the elected representatives -THE COURT: Hold on. I actually agree with that statement, codify an existing practice, but you see that's different from saying that the AUMF is 1021 because that's not codifying an existing practice, that is codifying what was already codified. If it is true that AUMF that was passed on 9/18/2001 is the same as 1021(b)(2), it is not codifying an existing practice, it is codifying what was codified. If as I believe what happened was there was an evolution of the AUMF SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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140 C875hedA argument from 9/18/2001 up to 2009, then it is codified an existing practice. That I understand. But, it is not both. MR. TORRANCE: It can be both because the existing practice is interpretation of the authorization for use of military force. The existing practice is when Congress -Congress passes these military force authorizations, as we say in the brief, in these broad and general terms, always has, ever since the War of 1812, we cite a list of authorizations of military force in our brief, all phrases that broadly. Detention authority was included in all of them. THE COURT: Those were all with foreign relations. MR. TORRANCE: This is for foreign relations too. THE COURT: It is also people who are wandering around the streets of Manhattan. MR. TORRANCE: Well, again as in Quirin, there were German soldiers wandering around the streets somewhere in the United States. THE COURT: I'm not talking about German soldiers, though, I'm talking about Birgitta Jonsdottir comes to the United States, does something that's not been blessed and, you know, have an issue here. She is not a German soldier. MR. TORRANCE: As we said in our brief, her activities as she alleges them, do not implicate this. THE COURT: In the past activities. MR. TORRANCE: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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141 argument THE COURT: We don't know about her future activities. MR. TORRANCE: I don't know what she is going to do. I have no way to know that and it is unfair to ask us to predict and provide some sort of promise that no matter what she does it is going to be immune. That is just not reasonable. So, if I could just look through my notes? THE COURT: Yes. And then you guys are going to have a quick point or two? MR. AFRAN: Yes, your Honor. There is one point Mr. Remes wants to address and I have one or two points. I can promise not to go into what he does if the Court would allow us to divide it that way. THE COURT: Okay, but it is going to have to be like really brief because we've overstayed our welcome. MR. AFRAN: We will be brief. THE COURT: It is just that we've got people, the marshals are here because of the crowd. MR. AFRAN: We will be brief. THE COURT: Okay. Let me just give Mr. Torrance his last shot. He has got something. MR. TORRANCE: I think the Court has already understood this but plaintiff's counsel has said that the government is now saying that expression outside of the representation we've made to the Court is fair game as if we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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142 C875hedA argument promising that that will be detainable under 1021 and that's just simply not a fair reading of what we said. What we said is a response to the Court's concern. THE COURT: You have not said one way or the other what would happen as to conduct that was not at issue in the March 29th proceeding, is that right? MR. TORRANCE: Yes. That's right. THE COURT: Okay. MR. TORRANCE: And I think that they commit the logical error of an extensive negative implication where it is just not warranted. THE COURT: Well, I get your point which is you have made a statement we now have said no to, that as to the conduct which was specifically outlined in the March 29th proceeding, that and no more, the government has said that's not going to subject those particular individuals to detention under 1021. MR. TORRANCE: Right. THE COURT: You are not going further than that, right? MR. TORRANCE: Right, but that doesn't mean anything else. THE COURT: It doesn't mean anything one way or the other. It means that the government is giving no representations one way or the other about any other conduct. MR. TORRANCE: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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143 argument THE COURT: Okay. MR. TORRANCE: There has been some reference to the lack of definitional proceedings. I think as a logical matter that can't be the law, that the simple existence of a proceeding make something not vague that would invite Congress to pass vague definitions. On the other hand, if something is crystal clear in the text of the main law itself without a definitional proceeding, that somehow they would be required to pass definitional sections for no reason, essentially. But, I point the Court to Brockett v. Spokane Arcades which is a case that the Court says even if there were no definitional provision in this statute it would still not be subject to this overbreadth challenge. THE COURT: The real issue is the fact that you have got 1022 and the Holder case. But I hear you and I will take a look at this other case. MR. TORRANCE: Well, on 1021 I continue to not really understand the relevance of that. THE COURT: I understand. I have read the briefs on that so we don't need to go into that. I understand that you guys disagree. MR. TORRANCE: Mr. Afran says that Lujan is not applicable. That is simply wrong. Standing is standing. There is a situation, and the Court has said, as he noted, that standing doctrine is some of the more expansive and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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144 C875hedA argument First Amendment law and that's because an overbreadth plaintiff can assert the rights not of himself but of a third-party. So, if in general standing law third-party standing is not allowed, there is an exception to that for an overbreadth challenge. It does not call into the question the core Lujan fact causation redressability. THE COURT: The Court believes that it has to cite Lujan in whatever decision comes down. MR. TORRANCE: I think it was Mr. Mayer talked about how this is a violation of separation of powers because it takes the judicial process out of Law of War determinations and I would just point again to Quirin which says expressly that the Constitution, including the Bill of Rights provisions that provide for criminal process and jury trials, they don't apply to everything. They don't apply, for instance, to petty crimes and misdemeanors and -THE COURT: But they would for 10 years' imprisonment which would be a felony. MR. TORRANCE: No. One of the things that Quirin says is that they don't apply to either the detention that the Quirin petitioners were subject to, or in fact their trial by military commission which was outside the judicial branch or their execution at the end of that trial. THE COURT: That's the military commission, unfortunately, but in terms of a civil trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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145 argument MR. TORRANCE: But they were not entitled -- the application of the Law of War to them, to detain those, one of whom was a U.S. citizen, did not necessarily have to involve the judicial branch. So, it is incorrect for Mr. Mayer to say that it violates the Constitution to have no judicial process in that determination because Quirin affirmed it. THE COURT: Now, we are going to make this really brief. Mr. Torrance, thank you very much. MR. TORRANCE: Thank you. THE COURT: I do appreciate your ability to spar with me on all of these questions. Thank you. MR. TORRANCE: My pleasure. THE COURT: Mr. Remes, you are going to make it concise and quick. MR. REMES: Quick and concise, your Honor. First of all, in the habeas case the AUMF has been applied. I have three cases myself where the detainee was picked up outside of the field of battle; just to know I can provide citations if you would like. THE COURT: We are not going to have post trial briefings so do you have them now? MR. REMES: My cases -THE COURT: Give me a name. MR. REMES: Look up Almerfedi v. Obama. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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146 argument THE COURT: How do you spell that? MR. REMES: A-L-M-E-R-F-E-D-I. That's a decided case. THE COURT: I think Mr. Torrance said there would be situations where, Mr. Torrance said, individuals could be picked up outside the battlefields. MR. REMES: There have also been cases, we argue, where association was on the basis of association or religion. So, I don't think anyone can categorically say that there weren't. I would say it is a dispute between us and the government in particular of cases as to whether that is the real basis for detention. So, I just want to make that a categorical point. THE COURT: Is there a case where that has been briefed publicly? MR. REMES: Yes. THE COURT: Can you give me the name? MR. REMES: Almerfedi and a couple of other cases. THE COURT: All right. MR. REMES: I will provide the cites because that's not the only case. It may not even be the best case. The appeal in the al-Bahlul case, which is the one involving the propagandist, as my friend said, is on appeal and it is a First Amendment challenge to conviction based on the exercise of propaganda. Then I think I have just -THE COURT: That individual was also convicted of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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C875hedA murder.

argument

147

MR. REMES: Well, I'm simply pointing to the propaganda aspect of it. THE COURT: All right. MR. REMES: The difference between the permanent injunction and preliminary injunction standard is under the preliminary injunction the harm needs to be imminent whereas under permanent injunction it is long term. Then finally, and this is my only sort of substantive point, Hamdi speaks to a lot here. First of all, I call attention to Justice O'Connor's statement in her plurality opinion that war is not a blank check for the Executive. Second, with respect to Law of War detention, she also said in her plurality opinion that the Law of War is based on the idea of a finite period of war and if the time of the war stretches beyond that to infinity, the Law of War understanding could unravel. Thirdly, with respect to Hamdi, he was fighting for the Taliban on the battlefield in the very action that the AUMF was intended to target so it can't be distinguished on the basis that somehow it was attenuated from the circumstances that gave rise to the AUMF in the first place. The Court also said that as a U.S. citizen Hamdi was entitled to due process despite the fact that he was picked up on the battle field armed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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148 argument Finally, to get to citing venerable authority, I close by saying, as Chief Justice Marshall said in Marbury v. Madison that it is emphatically the province of the Courts to say what the law is. Thank you. THE COURT: Thank you. Mr. Afran? MR. AFRAN: It is important to note the narrowness of what Hamdi itself said in its narrow application. So, to the extent there is any intrusion into the realm of a U.S. citizen being detained, Hamdi was intended by the Supreme Court to have narrow application. In addition, we need to recognize the Korematsu era could come back through statutes like this and really it is a question of, you know, where with the lawful base of Korematsu it has been discredited, but it is the same basis here because in some conflict someplace within the United States we can engage in detentions based on some degree of support. If we go back to that era we open up the country to virtual unlimited types of detention on the pretext of any military conduct. What we need to be aware of is Milligan and Merryman. The Court addresses Merryman but Milligan is in the same direction. THE COURT: I'm aware of that. MR. AFRAN: Of course. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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149 argument The fact that Milligan says very clearly despite the state of civil war within the United States where one is accused of attempting to aid the enemy force but is in a part of the country where the civil course open and further, there can be no military detention. Milligan is an absolute barrier to this statute. There is no way around that. Either Milligan is wrong or Congress is wrong. THE COURT: Unless one thinks that the battlefield of terrorism has extended beyond the boundaries of state lines. MR. AFRAN: I have not seen any missiles flying past the windows in any of our hearings in New York. We had one horrible and tragic date. That does not convert the United States into a battleground. The lesson of Milligan is that we don't make that inference even though the war may be taking place within the United States itself. So, surely if we are within a state of war within the U.S. and Milligan says we can't infer that the civil jurisdiction has disappeared in parts of the country where there is no act, surely we can't say civil jurisdiction appears because terrorists might make an attack within the U.S. THE COURT: Have pity on poor Pam here. She has been going for a couple of hours. MR. AFRAN: One point I want to very quickly raise is Lyons. The government concedes, attaches at the beginning of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C875hedA

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150 C875hedA argument the case and continues from that point in its incarnation at the outset of the case, if the Court please, Lyons, you may lose that because you can't lose prospectively. THE COURT: Lyons? MR. TORRANCE: Lyons. City of Los Angeles v. Lyons. L-Y-O-N-S. MR. AFRAN: In Lujan the plaintiff was beaten up by the police and the Court said you don't have standing to enjoin future conduct for two reasons: One, you can't show policy to keep beating people up; and two, you have no reason to believe you are going to be beaten up in the future. Here we have a statute that will continue to be enforced regulating speech tomorrow just as it does today, so the degree of chilling effect and fear that the plaintiff expresses, assuming the Court agrees with that finding, that the finding is justified, is going to continue because the statute is a policy that is continuing in force. Lyons held the standing you may, you don't have standing because you can't show a continuing policy to keep doing what they did to you. Here we have a policy that will continue in the form of the Congressional enactment so it is not a Lyons case. And since the government concedes standing at the outset, continues there is standing, the argument is dead. The Court needs to go to the merits. THE COURT: Do you have another zinger? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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151 argument MR. AFRAN: I think I'm done, your Honor. THE COURT: Thank you. All right. I want to thank everyone for very useful papers and such really very useful argument on this matter, and the Court will try to do its best to sort through everything and if I have any additional questions I will ask for additional materials. But, in the absence of that, I really don't need anything else at this point in time so we don't start sort of a round of extra briefing. I will let you know if I run into an issue. Okay? Thank you. We are adjourned. o0o C875hedA

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