1 C875hedA argument 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 CHRISTOPHER HEDGES, ET AL., 3 4 Plaintiffs, 4 5 v. 12 Civ. 331 (KBF) 5 6 BARACK OBAMA, et al., 6 7 Defendants. 7 8 ------------------------------x 8 9 August 7, 2012 9 2:12 p.m. 10 Before: 10 11 HON. KATHERINE B. FORREST, 11 12 District Judge 12 13 APPEARANCES 13 14 BRUCE I. AFRAN 14 Attorney for Plaintiffs 15 15 MAYER LAW GROUP, LLC 16 Attorneys for Plaintiffs 16 BY: CARL J. MAYER 17 17 APPEAL FOR JUSTICE 18 Attorneys for Plaintiffs 18 BY: DAVID H. REMES 19 19 PREET BHARARA 20 United States Attorney for the 20 Southern District of New York 21 BY: BENJAMIN TORRANCE 21 CHRISTOPHER B. HARWOOD 22 Assistant United States Attorneys 22 23 ALSO PRESENT: ROBERT JAFFE, of Counsel 23 RITA AGUE 24 ZACH LISZKA 24 SAM AFRAN, paralegal 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

2 C875hedA argument 1 (Case called) 2 THE COURT: Counsel, please state your names for the 3 record. 4 MR. REMES: David Remes. 5 MR. AFRAN: Bruce Afran. 6 MR. MAYER: Carl Mayer for plaintiff. 7 THE COURT: Good afternoon, all. 8 MR. TORRANCE: For the government, your Honor, 9 Benjamin Torrance. Good afternoon. 10 THE COURT: Good afternoon, Mr. Torrance. 11 MR. HARWOOD: Chris Harwood for the government. 12 THE COURT: Let me understand who else is sitting at 13 counsel table here. From the left we have seen you before 14 here. 15 MR. JAFFEE: Robert Jaffee, of counsel. 16 THE COURT: All right. 17 MS. AGUE: Rita Ague, certified legal assistant. 18 THE COURT: Okay. 19 MR. LISZKA: Zach Liszka, Cardozo Law student. 20 MR. AFRAN: Your Honor, may I acknowledge an 21 undergraduate, Sam Afran, who has been a paralegal on our case? 22 THE COURT: Terrific. I like to see who is around. 23 We are here today for the final arguments in the 24 motion for a permanent injunction in this proceeding. Let me 25 just do a couple of housekeeping matters first and then I want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

3 C875hedA argument 1 to go through and throw out some questions for you all that you 2 can think about and work into your arguments. 3 The housekeeping is that for the record, by consent, 4 the trial record in this matter is limited to that which we had 5 established during the proceeding on March 29th, 2012, and 6 there were a limited number of exhibits which had been admitted 7 during that proceeding and that constitutes the factual record 8 in this matter. 9 Is there any dispute or debate about that fact? 10 MR. AFRAN: No, your Honor. 11 MR. TORRANCE: No, your Honor. 12 THE COURT: All right. 13 I have also read the briefs very closely, as well as 14 the cases, and so when you make your arguments you need not 15 necessarily go back through and assume that I haven't read 16 things, although you can of course feel free to emphasize 17 whatever you would like to emphasize on from the briefs 18 themselves. 19 Let me give you each some questions. I have a number 20 of other questions which will, as you know, come out as we're 21 going along which is my way of proceeding, but I will go 22 through the questions for the plaintiffs first and then for the 23 government. 24 The first two questions are for each of you. One is I 25 assume that we all agree that plaintiffs bear the burden of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

4 C875hedA argument 1 proof as to each element of standing. However, standing will, 2 in part, be based upon whether or not there is an objectively 3 reasonable fear of detention under the statute, and I assume 4 that it is the government's burden to help us understand what 5 the statute means so that we can figure out whether or not the 6 plaintiffs have an objectively reasonable fear. That is what 7 I'm going to call a nuance on the burden of proof. It adds not 8 an element to the standing but a question to the standing, 9 which is, If you don't understand what it is necessarily that 10 you're supposed to be in fear of, who bears the burden of 11 clarification, if you will. So, I will have you each address 12 that. 13 The second is whether or not either side sees any 14 difference in between a permanent and preliminary injunction in 15 terms of standing. If you do think that there are any 16 differences, I would like to know about it. 17 Let me go through some questions for the plaintiffs. 18 And, these are by no means the only questions I will have, but 19 these are a few things that I will throw out: 20 Is there anything in the public record that does not 21 require going to anything outside of the public record that 22 demonstrates that the plaintiffs have still continued to work 23 in the same areas in which they were working in before? In 24 other words, has Mr. Hedges published anything else or has 25 Ms. O'Brien published anything else that is actually cited in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

5 C875hedA argument 1 the public record and available? 2 Another question is what is the plaintiff's basis for 3 believing that the government, which has stated that these 4 particular plaintiffs -- and I won't try to paraphrase our 5 language, we are all well now familiar with it -- do not have 6 to fear detention under the statute. What is the basis of the 7 view by the plaintiffs that the government is likely to change 8 its mind? Or do the plaintiffs not have that view? Would they 9 agree that the government is not likely to change its mind? 10 And, if so, why would there be standing still? 11 I would like the plaintiffs to explain why the word 12 "independent," as used by the government in connection with 13 their discussion of what kind of conduct will not subject the 14 named plaintiffs here to detention under 1021, why they have a 15 problem with the word "independent." 16 MR. AFRAN: Could your Honor repeat that? I'm sorry. 17 THE COURT: Yes. 18 The plaintiffs have made a big point out of the word 19 "independent" adding an additional element of vagueness, if you 20 will, to 1021 or an interpretation of 1021. I don't quite get 21 why the word "independent" adds such confusion. It strikes me 22 as a word. All words are open to meaning but "independent" 23 doesn't strike me as a particularly vague word. 24 In terms of the First Amendment, I would like the 25 plaintiffs to address -- and also this will be for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

6 C875hedA argument 1 defendants as well but I will go through the government's 2 questions in a moment -- must a statute be aimed at First 3 Amendment activities for a facial challenge or must it merely 4 reach First Amendment activities? Obviously here I have 5 already stated that I don't believe the statute is aimed 6 primarily at First Amendment activities, but for a facial 7 challenge is reaching First Amendment activities going to be 8 sufficient. 9 Then, in the Stevens case, which is a case which I 10 assume you folks are familiar with, it has been cited, the 11 Stevens case talks about, that's the Chief Justice Roberts case 12 where he, very recently, talks about a statute being considered 13 problematic and he talks about judging the constitutionality of 14 a statute in relationship to its plainly legitimate sweep. And 15 the question for the Court is what is the metric that the Court 16 is to use to determine the plainly legitimate sweep of a 17 statute? Are you measuring, for instance, what the core heart 18 of the statute is against conduct which either on the fringe or 19 deeper in than the fringe gets swept up, or is it something 20 else? I note that the Stevens case also states that it is 21 impossible to determine whether a statute reaches too far 22 without first knowing what it covers. But, I would like to 23 have the plaintiff's view on what is the metric that the Court 24 is to use to determine how I weigh the conduct. 25 I am almost done with questions for the plaintiff. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

7 C875hedA argument 1 have a lot of them here. I would like to know whether or not 2 that plaintiffs believe SEC v. Fox, June 21st, 2012, whether or 3 not you think that is relevant to this case and you folks are, 4 I'm sure, prepared to address that. And then also the Second 5 Circuit Rothenberg case which also talks about construing a 6 statute in its overall context. I would like you to comment on 7 that. And then also what the retroactive impact of an 8 injunction, in your view, would be. If there were a permanent 9 injunction to issue, would there be any retroactive impact on 10 anyone. 11 MR. AFRAN: I'm sorry, your Honor. That was a 12 question for the plaintiffs? 13 THE COURT: Yes. Now I'm going to go to the 14 defendants. They're going to have that same question. 15 The defendants or the government still has the same 16 questions on the burden of proof and whether or not the 17 government believes that they have any burden at all in 18 connection with the burden of proof on standing, assisting us 19 and helping us define the conduct which the plaintiffs would, 20 may or may not have an actively reasonable fear of detention 21 for, or with respect to. 22 And the question also for the government is what do 23 you mean by the word "independent" when you talk about 24 independent as used in the context of your phrasing of the kind 25 of conduct for these plaintiffs that would not be reached. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

8 C875hedA argument 1 I would like to know whether or not anyone has been 2 detained at all under 1021 and whether or not anybody has been 3 detained under the AUMF as originally drafted, and whether or 4 not anybody has been detained under the AUMF as drafted and 5 interpreted by the March 2009 brief, then underneath that 6 whether or not anybody has been detained underneath the AUMF as 7 most expansively determined by the government relating at all 8 to any journalistic or written activities. In other words, is 9 there anybody in Guantanamo who has been detained under the 10 AUMF or under the March 2009 interpretation which expands or 11 elucidates -- however you want to describe a detention 12 authority -- whether or not anybody who is sitting there or is 13 detained there or anywhere else, I'm just using that as an 14 example, for juristic activities. 15 I note that on page 2 of the government's brief they, 16 just to give you a sense of where I am coming from, 17 Mr. Torrance and Mr. Harwood, on page 2 of your brief you state 18 that plaintiffs can't point to a single example of the 19 military's detaining anyone for engaging in conduct even 20 remotely similar to the type of expressive activities they 21 allege could lead to detention. 22 So, while the plaintiffs can't point to it I'm 23 wondering whether or not there is any -- anybody has been 24 detained for those similar activities who we just don't know 25 about. There may be cases, for instance, reported cases, some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

9 C875hedA argument 1 of the habeas cases that are cited down in D.C. Or not. 2 Let me go on. For the government, is it the 3 government's position that the plaintiffs need to make their 4 own independent determination of activity that might run afoul 5 of 1021? And, am I correct that the comment by the government 6 as to the conduct of plaintiffs, which they need not be 7 concerned about bringing them within the ambit of 1021, is 8 limited to, and I think this is clear on its face but I just 9 want to confirm, that activity which was specifically described 10 in the trial record before this Court? In other words, past 11 tense. Another way of putting it. Anything that Mr. Hedges 12 may have written since is not intended to be covered by that 13 particular statement. 14 I would like to understand the evolution of the AUMF. 15 One thing I am concerned about is the AUMF starts off at 9/11 16 and in a number of cases, let's take the Hamdi case in 2004 17 which is a case that people recite and have cited to quite a 18 lot, there is a discussion there of some of the language that 19 then eventually finds its way into 1021 but that was tied, 20 really, to the 9/11 conduct. So, I understand that there is an 21 evolution of the AUMF that results eventually in the March 2009 22 memorandum and the question for the government is walk me 23 through how that evolution occurs and when and pursue it to 24 what authority. Is it an executive power or a legislative 25 power? A war power under the executive power? Under what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

10 C875hedA argument 1 power was the government expanding the definition of detention 2 authority? Has anybody ever been detained not in the field of 3 battle for 1021 or for the AUMF/march 2009 interpretation of 4 that? 5 For the defendants, a similar question I asked the 6 plaintiff: What is to prevent the government from changing its 7 mind as to whether or not it will detain these plaintiffs? 8 Since there is an election in the offing, how do we have 9 comfort that the new administration would take the same 10 position as the current administration? 11 The government may also find it useful to comment on 12 the Stevens case. I would also like to hear the government's 13 view as to whether or not a statute must be aimed at First 14 Amendment activities or merely reach them in order for there to 15 be a facial challenge. Does it have to be aimed or merely 16 reached for a facial challenge? 17 All right, the metric, the same question I had for the 18 plaintiffs which is if I am supposed to consider the array of 19 conduct that is captured or intended to be captured by a 20 statute and measure the impact of the First Amendment conduct 21 that's captured, what is the metric that I am supposed to be 22 applying? 23 For the government, since I think I -- well, the 24 plaintiffs can comment as well but it is really more for the 25 government. Is there a reasonable fear of self-censorship SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

11 C875hedA argument 1 based on the defendant's statement regarding what conduct will 2 not be captured by detention? And I am thinking about the 3 Secretary of State of Maryland v. J.H. Munson case which is a 4 Supreme Court case in 1984 which also quotes Broadrick v. 5 Oklahoma case. 6 Here is a good one for you: The International Law of 7 War. The government spends a lot of time talking about the 8 international Law of War. In the al-Bihani case it appears 9 that they take the position which the government does note in 10 its papers, that the Law of War is not an authority for the 11 U.S. Courts to rely upon because it is necessarily flexible and 12 it says that the lack of controlling force and firm definition 13 renders their use both inapposite and inadvisable. So, I'm 14 wondering how this Court -- this is a D.C. circuit case, it is 15 not a Second Circuit case, it is not a Supreme Court case, but 16 should this Court -- is the government's point that this Court 17 should use the Law of War to assist it in interpreting some of 18 the definitions? 19 My last question for the government is the variety of 20 language that is relied upon for 1021 comes out of the Military 21 Commission Act, out of the MCA. The MCA is then really the 22 statute that forms the basis for many of the cases which are 23 brought before the D.C. District Court and then go up on to 24 appeal and the MCA has a whole series of definitions which are 25 included within it including terrorist act, including enemy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

12 C875hedA argument 1 belligerent, alien and enemy belligerent -- I have the statute 2 here. Is when the government takes the position that when the 3 legislature legislates against the background of different laws 4 and executive pronouncements, is it the government's position 5 that you are including the Military Commission Act within that 6 background? So, is 1021 written against the background of the 7 Military Commission Act? 8 All right. I know that's a lot, but these are the 9 points which perhaps you were already going to cover and can 10 work into whatever statements you were going to make. All 11 right? 12 Now, let's go. It is the plaintiff's motion. 13 Mr. Remes, Mr. Afran, Mr. Mayer, who is going to start? 14 MR. AFRAN: Mr. Remes will start, then Mr. Mayer, and 15 then I will speak. We only ask that as plaintiffs we would 16 like the right of rebuttal following the government's 17 presentation. 18 THE COURT: Here is what I suspect. I suspect that -- 19 I mean, you have been before me now. You know that I won't let 20 you get very far before I'm peppering you with questions and I 21 may interrupt you to ask them for their position and whether I 22 have gotten something right. I will give you a chance to make 23 your last final points in rebuttal before we close but I can't 24 guarantee you how that's actually going to evolve, if you will. 25 MR. AFRAN: We did not expect a linear proceeding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

13 C875hedA argument 1 THE COURT: All right. People will, I hope, have a 2 chance to say most of what they want to say. I can't guarantee 3 you will get to say everything you want to say. 4 All right. Mr. Remes? 5 MR. REMES: Good afternoon, your Honor. 6 THE COURT: Good afternoon. 7 MR. REMES: I didn't come prepared with affirmative 8 argument because you have heard affirmative argument in this 9 case at least twice. I will try to answer your Honor's 10 questions to the best of my ability admitting that I am not 11 prepared for all of them, but I have two other co-counsel. 12 The first question, just to lead back to something 13 your Honor said at the end, is that the Military Commissions 14 Act includes language for the Section 1021 issue here but the 15 Section 1021 issue doesn't come from the Military Commissions 16 Act, per se. The MCA is Title 10 of the chapter that deals 17 with military criminal proceedings and I wouldn't make the 18 argument that 1021 was an act against the backdrop of the 19 Military Commissions Act. And, I would also point out that the 20 Military Commissions Act hasn't been the basis of more than one 21 case in the District of Columbia and that was on appeal from a 22 decision of the Court of Review of Military Commissions in a 23 separate proceeding from one of the Military Commissions cases, 24 that is to say the Military Commissions Act has not been a 25 source of law in the habeas cases which are cases that really SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

14 C875hedA argument 1 apply here. 2 THE COURT: Well, let me sort of tell you where I'm 3 coming with the Military Commissions Act. 4 The MCA, in my view, ought not to have any application 5 here. I'm not suggesting it should have application at all, I 6 will be perfectly transparent about that. However, it does 7 appear that to the extent that there is interpretation of words 8 like "substantially supported" which does occur in the Hamdi 9 case, that is against the backdrop of the MCA and it is not 10 against the backdrop of something else. So, we have what I'm 11 going to call an organic or mixed evolution where the AUMF ends 12 up being interpreted -- there is detention authority under the 13 AUMF. It ends up intersecting with the MCA for individuals who 14 are detained. And there is, of course, the '06 and the '09 MCA 15 and the question is to what extent is the fact that there is 16 case law which develops which is based in part on the MCA, does 17 that then become part of our domestic law. I think you're 18 saying it shouldn't but I'm just saying it works its way into 19 some court cases that have then been relied upon. 20 MR. REMES: Well, I agree certainly that it shouldn't, 21 but I'm puzzled by the suggestion that it has worked its way 22 into some of the habeas cases. Your Honor has read them 23 probably more recently than I have, but I think that all of 24 those cases were directly on authority claim to derive from the 25 AUMF. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

15 C875hedA argument 1 THE COURT: That's true. I'm not saying they work in 2 necessarily one or the other. The MCA also talks about the 3 procedural process rights that are available to those who are 4 detained. It is not itself, I don't think, a detention. It is 5 in part a detention act but the AUMF may be how they got 6 detained and the MCA is how they end up being processed, if you 7 will. 8 MR. REMES: I'm not quite sure. 9 THE COURT: We don't have to dwell too much on it. 10 MR. REMES: The second thing is to answer your Honor's 11 first point, I think that it's intuitive that it's hard for us 12 to establish objectively reasonable fear if we don't know -- I 13 think we've done it but I don't know how we can be fully 14 expected to do it when one of the issues in the case is what 15 the statute means. The government's answer is, well, that's 16 easy. We know what it means because it means the same thing 17 that the AUMF meant, and since the AUMF hasn't been a problem 18 for anybody then they don't have an objectively reasonable 19 fear. But that sort of begs the question of whether the AUMF 20 and 1021 are substantively identical. 21 THE COURT: Well, let's assume for the moment that -- 22 and when we talk about AUMF for me I talk about two different 23 versions of AUMF; there is the AUMF as of shortly after 9/11, 24 original AUMF, then there is the AUMF which evolves at unknown 25 points in time and then is presented in a March 2009 memorandum SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

16 C875hedA argument 1 from the government and that's a second version of the AUMF. 2 All right? So, I will call that evolved AUMF. And so, part of 3 the issue becomes if you accept that there is an evolved AUMF 4 as of March '09, let's just accept that as a proposition -- 5 MR. REMES: I can't. 6 THE COURT: Let's assume for the moment that there is 7 an AUMF that exists in March 2009, it is in fact true, whether 8 you like it or not, there is an AUMF that was put into a brief, 9 there was a statement of detention authority put into a brief, 10 submitted to the Court in March of 2009. Fact. 11 The government's main point is whether you believe you 12 understand it or not really matters not at this point because 13 you have never been detained under it -- you, being the 14 plaintiffs, have never been detained under it. So, whatever it 15 means it doesn't mean anything about you. So, their view would 16 be we don't think it is that confusing in the first place -- 17 and I'm sure Mr. Torrance and Mr. Harwood will correct me if 18 they need to -- we don't think it is you can't understand it in 19 the first place but if you can't, don't worry about it, because 20 you have never been detained by it. So, why are you worried? 21 MR. REMES: Well, your Honor, I have to go back to the 22 point that you can't consider the March 2009 memorandum AUMF II 23 because -- 24 THE COURT: I will let you get there, I promise. 25 Stick with my hypothetical. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

17 C875hedA argument 1 Assume for the moment that AUMF plus March 2009 2 evolved AUMF exists. You may tell me and I know you will tell 3 me that you don't think it should have evolved, could have 4 evolved or did evolve. We will get there. Let's assume that 5 it exists March of 2009. We are now in August of 2012. It is, 6 I think, undenied that your clients have not been detained 7 under evolved AUMF. 8 MR. REMES: That's correct, your Honor. 9 THE COURT: Why are you guys worried about it as 10 codified in 1021? 11 MR. REMES: It is hard to answer the question without 12 accepting a premise that I don't think is a valid premise. 13 THE COURT: So answer my question and then go back and 14 tell me why it is not a valid premise. 15 MR. REMES: Okay. 16 The problem with a vague statute in the First 17 Amendment area is it chills speech. The danger presented by 18 the Sword of Damocles is not that it falls but that it remains 19 up there and can fall. Therefore, the fact that it has never 20 been a problem for our clients may very well reflect the fact 21 that they've allowed their speech to be chilled by the 22 vagueness of these provisions. But the fact -- 23 THE COURT: Let's stick with our trial record. Our 24 trial record is that your clients had no fear until the NDAA 25 1021 was passed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

18 C875hedA argument 1 MR. REMES: Yes, your Honor. That's because the March 2 2009 memo was limited to the Guantanamo context. They had no 3 reason to fear that. That's why I say, your Honor, 4 respectfully, that I can't accept the premise of the argument. 5 That March 19, 2009 memo, by its very terms, was limited to 6 Guantanamo. And the reason it isn't a formal statement of 7 policy by the administration was that it was submitted for the 8 purposes of helping the Courts decide the Guantanamo habeas 9 cases. 10 THE COURT: Although it was labeled something along 11 the lines -- and I'm not attempting to quote it -- Government's 12 Detention Policy. 13 MR. REMES: That's correct. But the government was 14 very specific and very clear that they had announced it for the 15 purpose of the Guantanamo cases and only for the purposes of 16 the Guantanamo cases. They pointed out that another task force 17 created by President Obama was studying detention authority in 18 general and would report back with a statement of the 19 government's general detention authority and policy. 20 THE COURT: Where, in your brief, if in your brief, 21 does it have to be in your brief? Do you folks talk about how 22 March 2009 was really, on its face, limited to Guantanamo by 23 virtue of saying there was going to be additional work done by 24 the government? 25 MR. REMES: I don't know if we mentioned the language SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

19 C875hedA argument 1 referencing the task force that had been created by separate 2 executive order to establish general detention policy but it is 3 in there. That's all I can say. I'm not sure that we cited 4 it. 5 THE COURT: You're saying that in the briefing 6 relating to the March 2009 statement by the government 7 regarding their detention authority there will be an 8 accompanying statement that says our work is ongoing and this 9 is limited to Guantanamo? 10 MR. REMES: In that very filing, your Honor. In that 11 very March 2009 filing. The government makes a point that it 12 has chosen to use this standard for purposes of detention in 13 Bagram. I think that that is too attenuated and not inapposite 14 anyway because how the government chose, on an ad hoc basis to 15 apply a standard -- I bring it up, your Honor, because the 16 government does rest on the fact that this has been applied 17 beyond Guantanamo, that an ad hoc application in a rather 18 singular context doesn't establish a general policy of applying 19 this definition anywhere and everywhere. 20 The government has yet to establish a general formal 21 policy on detention authority. That's my basic point. The 22 March 2009 memorandum was, by its terms, limited to Guantanamo, 23 by its terms it was provisional pending development of the 24 general policy by the separately created task force on 25 detention policy, and what we have here is the government is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

20 C875hedA argument 1 offering a gloss on the meaning of the AUMF and then saying 2 that Congress adopted the gloss. That's what the government is 3 calling the definitional framework. And then the government, 4 to anticipate my point later, is adding a second gloss to its 5 first gloss with its offer of the limitation of independently, 6 which doesn't appear anywhere in either statute. 7 THE COURT: So why do you have a problem with the word 8 "independently"? 9 MR. REMES: Oh. Well, the problem is that 10 independent, your Honor, is hedged and qualified in the 11 government's own statement including the use of it. 12 The government stated, as a matter of law, individuals 13 who engage in the independent journalistic activity or 14 independent public advocacy derived, described in plaintiff's 15 affidavit with testimony without more are not subject to law of 16 detention as affirmed by Section 1021 A through C solely on the 17 basis of such independent journalistic activities and 18 independent public advocacy. The qualifiers appear otherwise. 19 For one thing I would say that independent, is in 20 itself, a rather vague term because it is not defined, but I go 21 beyond that and say that even in the government's formulation 22 of the independent standard, there are about three or four 23 asterisks after it if it is independent and solely independent, 24 if it is independent and without more independent, if it is 25 independent and that's all there is to it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

21 C875hedA argument 1 THE COURT: I read this as saying essentially that if 2 Plaintiff Hedges is engaged in his own journalistic activities 3 independently, on his own writing his own book, got a book 4 deal, he is going to fly to the Middle East, he is going to do 5 his book, he is independent, he is not doing it with a group, 6 he is just doing it himself, that that activity, without more, 7 would not subject him to detention. So, the without more is 8 really just referring to what we've established in the trial 9 record as the type of activity that the plaintiffs have been 10 involved in. 11 MR. REMES: But who is to decide what without more is? 12 Or what solely is? 13 THE COURT: Well, I think the word without more, or 14 solely, is defined by the contours of the trial testimony. The 15 government will let me know whether that is right or wrong but 16 I assumed that the parameters are if what you're asking is 17 whether or not what was described at our trial in this matter 18 would subject these particular plaintiffs to detention under 19 1021(b), the answer is no. 20 MR. REMES: The problem I have with that, your Honor, 21 is that here we are looking at the past retroactively whereas 22 this statute is going to govern conduct prospectively. The 23 Chinese proverb that is a cliche that no person steps into the 24 same river twice, applies here. 25 Take the government at its word, these people didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

22 C875hedA argument 1 do anything that we think, at this point, could be the basis 2 for detention. They're not going to do exactly the same thing 3 tomorrow. They're not going to do exactly the same thing in 4 five years and other people whose speech may be chilled and may 5 yet be chilled in the future may not do the same thing. 6 So, this is in connection with another of your Honor's 7 requests which is why do these particular plaintiffs believe 8 they remain in danger? And the answer is because these clients 9 aren't going to do exactly the same thing the next time. 10 They've done what they've done. They may want to do something 11 else. They may want to do it in a different way. They don't 12 know whether that will be considered independent without more; 13 solely independent. 14 THE COURT: Well, let me posit sort of an unusual 15 hypothetical. We have a trial record here where we've had 16 plaintiffs who have described live, in testimony, what their 17 journalistic or associational activities were. Those 18 descriptions provide a definitional framework, if you will, 19 that the government has now said you may pull into 1021 as 20 descriptive of the kinds of activities that would not result in 21 detention under 1021. So, the trial testimony becomes the 22 definitional schema, if you will, for 1021. 23 MR. REMES: How do we know whether it is a ceiling or 24 a floor? 25 THE COURT: Well, because you're told that it is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

23 C875hedA argument 1 ceiling. 2 MR. REMES: Not really. 3 THE COURT: You're told solely without more. Ceiling. 4 MR. REMES: But, again, I say that it is a floor, your 5 Honor, because these people have engaged in certain activities 6 that the government now, in retrospect, says are unproblematic. 7 Fine. So, your Honor's decision becomes authority on the 8 question of what safe harbor there is for journalistic activity 9 or independent activity. At most it is a safe harbor. It is 10 not a maximum. And, again, this is a statute that is to be 11 construed and applied prospectively. I don't think that 12 anybody is going to remember these exact facts as a gloss on 13 the government's gloss on the government's gloss on Section 14 1021. I think it is about three steps too far and, in any 15 event, the best you have is a safe harbor. 16 THE COURT: Let me suggest that you think we are using 17 ceiling and floor synonymously because what I am suggesting is 18 that the definitions that are established by the trial record 19 are the only safe harbor and so that's when I am calling a 20 ceiling. I'm saying if you go beyond the parameters of the 21 trial record you are into an unknown zone. 22 MR. REMES: Precisely my point. 23 THE COURT: That's why I am calling it a ceiling 24 because once you break through that trial record you are into 25 the unknown versus a floor which could be that's a minimum SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

24 C875hedA argument 1 amount of conduct that would -- that you can engage in that 2 would not subject you to detention. We don't know what outside 3 of that conduct would -- 4 MR. REMES: Your Honor, that's exactly my point. It 5 is the fact that we don't know that continues to leave 6 plaintiff such as -- journalists such as these and authors such 7 as these in doubt as to what they can do outside of this safe 8 harbor assuming that they know all the details of the trial 9 record in this case. I think that's asking too much of 10 journalists, in general, to know the trial record in this case. 11 But, even assuming they did, they'd say, okay, we can do this 12 and we are okay. But are we supposed to limit ourselves to 13 this? Is there anything that we can do differently? Is there 14 anything we'll get in trouble for if we did it differently? 15 This becomes, to switch metaphors yet again, a 16 straight jacket, and I don't think that's consistent with the 17 First Amendment. 18 THE COURT: Well now, the government has stated that 19 it will not detain these particular plaintiffs for the conduct 20 which they have described in the trial record. Do you have any 21 reason to believe that they would change their mind? 22 MR. REMES: I have no way of knowing whether they'll 23 change their minds. 24 THE COURT: Is there any reasonable basis to believe 25 that the government would change its mind? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

25 C875hedA argument 1 MR. REMES: Was there any reasonable basis to believe 2 that the policies of the last administration would be the same 3 as the policies of the administration before it? I think no 4 one can't predict what new policies a new administration will 5 undertake. In fact, the March 2009 memorandum says that it is 6 a "refinement" of the previous standard. Whether it was a 7 refinement or a change can be questioned but I don't think that 8 you can assume that because one administration has one policy 9 and one reading of the law that the next administration will 10 have the same policy and the same reading of the law. 11 THE COURT: Stay with this administration for a 12 moment. I understand, because I did ask the question about 13 what happens if the administration changes -- we're in an 14 election year but the government currently, in the executive 15 office, has stated that it will not detain your clients for the 16 conduct in which they engaged which was set forth in the trial 17 record. My question is, Is there any reason why you don't 18 believe that that cannot be reasonably relied upon for the next 19 few months? 20 MR. REMES: My answer, I guess, has to be I don't have 21 any reason to assume that it will or that it won't. 22 MR. AFRAN: We have other positions on that issue, 23 your. 24 THE COURT: All right. You will have it. 25 MR. REMES: You will have it in stereo. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

26 C875hedA argument 1 Then, your Honor asked the question of whether the 2 statute has to be aimed at or merely reach protected speech for 3 there to be a facial challenge. The alternative, I suppose, is 4 you look after the fact at how the statute has been applied and 5 you consider the challenge in the context of an as-applied 6 challenge. We suggest, your Honor, that the problem is that if 7 the statute has chilled the speech you will never have the 8 as-applied challenge and that even if you do have the 9 as-applied challenge, it will be an after the fact challenge, 10 it doesn't cure the problem of vagueness that is inherent in 11 the statute. 12 If your Honor concludes that the vagueness 13 substantially supports and other terms in the -- which even I 14 will get back to that in a second -- if the Court concludes 15 that that is vague enough to present a chilling effect, then it 16 is a problem on the face of the statute whether or not the 17 statute was aimed at it. It is the impact on speech that one 18 must consider and this is not a situation in which you can wait 19 for an as-applied challenge to come along since the problem 20 with a statute like this is that it chills speech by virtue of 21 the vagueness in advance. 22 THE COURT: Let me ask you, as a constitutional 23 scholar, if you have any cases where there has been a facial 24 challenge on First Amendment grounds to a statute which was not 25 aimed at First Amendment conduct but which reached First SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

27 C875hedA argument 1 Amendment conduct. 2 MR. REMES: I will have to supply the Court with a 3 post-hearing memorandum on that if my colleagues don't have 4 examples. 5 THE COURT: Do the plaintiffs dispute that 1021 is not 6 aimed at First Amendment conduct? It is aimed at something 7 else but captures, potentially, First Amendment conduct. 8 MR. REMES: I agree that it certainly captures First 9 Amendment conduct. 10 THE COURT: It is not aimed at First Amendment 11 conduct. Would you agree with that? It is not its core 12 mission. 13 MR. REMES: It is not its core mission. I think your 14 Honor already said that in her preliminary injunction opinion. 15 THE COURT: I was wondering if you agreed. 16 MR. AFRAN: We do not agree. 17 THE COURT: You do not agree. Okay. 18 MR. REMES: All right. 19 THE COURT: You believe that the statute is aimed at 20 First Amendment conduct? 21 MR. REMES: I better allow Mr. Afran to address that 22 point. I apologize for the split nature of this. 23 THE COURT: All right. Well, let me just -- 24 MR. REMES: But I still say that my argument holds 25 that if it is reasonable for a journalist to think that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

28 C875hedA argument 1 statute could be applied to him because of the vagueness of 2 substantially supports and how it interrelates with the 3 journalist's own activities, it is a facial problem. 4 And if I may, your Honor, go back to the March 2009 5 memorandum, right after the government provides the so-called 6 definitional framework it has a paragraph extolling the virtues 7 of the vagueness of the substantially supports and associated 8 forces. The government is proud that it is vague. I think 9 that that should reinforce a journalist's fear that this could 10 be applied to them. 11 THE COURT: All right. 12 MR. REMES: I don't know that I have more unless your 13 Honor has more for me. 14 THE COURT: Are you the person for the metric? 15 MR. REMES: I didn't understand what you meant by 16 metric, your Honor. 17 THE COURT: Are you familiar with the Stevens case? 18 MR. REMES: No. 19 THE COURT: This is the Justice Roberts case that has 20 to do with the depictions of animal cruelty. 21 MR. REMES: Yes. 22 THE COURT: In that case, U.S. v. Stevens, Justice 23 Roberts says that the statute is unconstitutionally vague. 24 Does this ring any bells? 25 MR. REMES: It is but I haven't studied the case, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

29 C875hedA argument 1 Honor. 2 THE COURT: Okay. One of the issues there says that 3 you need to judge constitutionality of a statute in 4 relationship to the plainly legitimate sweep of the statute. 5 So, if the plainly legitimate sweep of a statute 6 includes going after terrorists who were involved in 9/11 and 7 there is some First Amendment activity somewhere -- I won't 8 call it fringe because it may be bigger than that -- but there 9 is some non-core First Amendment activity that is captured 10 within the language of the statute, when I'm judging, as the 11 Stevens case requires me to do, the constitutionality of that 12 statute in relationship to its plainly legitimate sweep, what 13 is my metric? Am I measuring there is 75 percent of it is 14 legitimate and 25 percent is unconstitutional, therefore I 15 don't have a facial challenge or I don't declare it 16 unconstitutional or something else? 17 MR. REMES: Something else. I would say if there 18 is -- again, I will defer to co-counsel on this, but I think 19 that if there is a reasonable basis for individuals engaged in 20 First Amendment activity, to fear that the statute will be or 21 could be or might be applied to them in a way that chills their 22 speech or restricts their activities, the statute has to be 23 assessed on its face because the only alternative is to 24 challenge after the fact an application of the statute and, by 25 definition, vague statutes under the First Amendment or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

30 C875hedA argument 1 statutes with vague language chill speech and therefore you 2 don't even get to the issue of an as applied challenge. That 3 is to say, either the statute is subject to a facial First 4 Amendment challenge or you may never get to a First Amendment 5 challenge because the speech that triggers the statute will be 6 self-censored. 7 THE COURT: That's like the Virginia v. American Book 8 Sellers case which is a Supreme Court case also which, in that 9 case, they said that there could be a pre-enforcement facial 10 challenge because of the possibility of self-chilling. 11 Let me ask you another question: Are you aware of any 12 provision in the Constitution that allows the president to 13 detain citizens? 14 MR. REMES: I'm glad your Honor asked that question 15 because I meant to raise it in connection with the March 2009 16 memorandum. 17 In the previous administration the government took the 18 position that its detention -- the government grounded its 19 detention authority on two sources, the AUMF and the 20 president's inherent Article II powers. 21 In the current administration, reliance on the 22 Constitution's Article II power of the president has been 23 abandoned, they no longer rely on that. They say that even in 24 the March 2009 memorandum if I'm -- I'm certain that I'm 25 correct that they're only relying on their authority under the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

31 C875hedA argument 1 AUMF and have abandoned reliance on their claimed 2 constitutional authority under Article II. 3 THE COURT: Okay. 4 Do you believe that the international Laws of War have 5 been pulled into domestic common law? 6 MR. REMES: It should be or what it is. 7 THE COURT: One of the arguments that the government 8 has relied upon extensively in its briefing that the 9 international Laws of War assist us in defining some of the 10 terminology here and also help us understand the evolution of 11 the AUMF and there are then the cases, the al-Bihani case which 12 says that the International Laws of War are in fact not pulled 13 into the domestic common law and they shouldn't be relied upon, 14 they're inapposite, and it would be ill-advised to rely upon 15 them. What is your position, if you have one? 16 MR. REMES: Your Honor, my position is that al-Bihani 17 states the law in the D.C. Circuit. I don't know that I want 18 to make a general statement about whether domestic law 19 incorporates international law. The language -- 20 THE COURT: International Laws of War. 21 MR. REMES: The International Laws of War. 22 THE COURT: Not just international law. 23 MR. REMES: International Laws of War. 24 I think that the government's formulation is usually 25 that the, and I think this is used in the March 2009 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

32 C875hedA argument 1 memorandum, that the government's detention authority should be 2 "informed" by the Laws of War. It is not a term that requires 3 it to be or -- that requires it to be, certainly, and I think 4 that the D.C. Circuit has certainly read the law not to 5 incorporate in terms of detention authority the Laws of War. 6 That's really all I can say. 7 THE COURT: Would you agree with me that there are 8 instances where, when the United States is looking at a 9 particular issue, sometimes in the human rights field, where 10 there is not a particular United States pronouncement in a 11 Court of the United States on a particular issue, that we have 12 looked to the way in which that particular matter might be 13 dealt with internationally? 14 MR. REMES: I think that there is a vigorous dispute 15 among the justices as to whether or not that approach is a 16 legitimate approach. 17 THE COURT: But you would agree with me that it has 18 occurred in circuit courts? 19 MR. REMES: I'm sure that it has without knowing for 20 sure. 21 THE COURT: It has. 22 MR. REMES: Okay. 23 THE COURT: All right. Did you have other parts of 24 this you were going to deal with? You were going to talk about 25 the FCC v. Fox case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

33 C875hedA argument 1 MR. REMES: No, your Honor. 2 THE COURT: All right. Then now who wants to -- on 3 the plaintiff's side was there somebody else? Mr. Mayer, were 4 you going to say something else? 5 MR. MAYER: Well, I think both myself and Mr. Afran 6 were going to add some points. 7 THE COURT: Okay. Whoever is next. Please. 8 MR. MAYER: Thank you, your Honor. 9 Justice Holmes observed that the life of the law has 10 not been logic, it has been experience, and that is sort of a 11 phrase that I didn't really understand as a law student or even 12 as a young law professor, but I thought I would offer some 13 insight from my 25 years of litigating civil rights cases -- 14 often with Mr. Afran -- and I hope your Honor will take them in 15 that vein. 16 I don't profess to have any great wisdom in this area 17 and I know your Honor has a better command of the 18 constitutional law, and I certainly know your Honor works 19 harder because I had the opportunity, last time we appeared 20 before you, to speak with the marshal downstairs who takes the 21 cell phones and he says that every morning when the building is 22 open the first person is in is Judge Forrest. 23 THE COURT: Yes, but I go to sleep immediately. They 24 don't know that. 25 MR. MAYER: I think we are probably going to bed about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

34 C875hedA argument 1 the time that you are getting up so you are the early to bed 2 early to rise version and you have better command of this and, 3 therefore, feel free to interrupt me, but I thought I would 4 offer some ideas in this vein. 5 I think Mr. Afran is going to pursue the First 6 Amendment issues and I have some broader points to make. 7 I don't know if you ever read the historical essay by 8 Isaiah Berlin that talks about two different types of a animals 9 in the story, the hedgehog and the fox. The fox comes out 10 every day and knows everything about the forest, and the 11 hedgehog comes out infrequently and has general observations. 12 So, I would like to make general observations about the Law of 13 War amongst other things and Mr. Afran will get into the 14 particulars of the First Amendment. 15 THE COURT: And, if anybody can talk about Federalist 16 78, then I would be appreciative. 17 MR. MAYER: We both would love to talk about that. 18 So, my first sort of experiential -- based on my 19 experience my experiential hedgehog point would be to go to 20 your question: The Laws of War, I think, are completely 21 inapposite to Section 1021 for a couple of reasons, not just 22 because of the cases that your Honor cites but because the 23 origins of the Laws of War really only date back to the 17th 24 century and they were originally designed to find some sort of 25 natural law basis for justifying a war between sovereign SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

35 C875hedA argument 1 states. There was an evolution of the Laws of War sort of in 2 the 19th Century, particularly in this country really under 3 Lincoln, in which the Laws of War came to apply to prisoners 4 who were taken from a standing army of another sovereign state 5 or another military force. 6 So, it is this development of Laws of War that really 7 has to do with conflicts between standing armies, conflicts 8 between sovereign states and not to this, what is sometimes 9 called a war on terrorism, sometimes called other things -- 10 but, the Laws of War don't at all address these issues. 11 Now today, but only since really 9/11 or maybe shortly 12 before, the Laws of War have begun to incorporate some of these 13 topics but the government's suggestion that somehow the Laws of 14 War provide a fixed meaning to the NDAA, I don't see how that 15 is at all possible in this case. 16 THE COURT: They don't say it is a fixed meaning. I 17 mean, to be fair, they're saying that it helps us -- if we're 18 looking for definitions, particularly with reference to the 19 phrase associated forces, associated forces has a well 20 understood meaning under the International Laws of War, and so 21 to say that we have no idea, what that means would be to ignore 22 the International Laws of War and to ignore the cases that have 23 been litigated within the United States which have referred to 24 the International Laws of War, though not necessarily relied 25 upon them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

36 C875hedA argument 1 MR. MAYER: Well, they may refer to them -- and they 2 may -- but they don't specially incorporate into our domestic 3 law or constitutional law but the references are recent. I 4 took the government's position to be that whether this is a 5 firm definition or not it is adding some definitional structure 6 to the provision of the NDAA that is at issue here and that 7 position is directly opposite to the position taken by not just 8 this administration but the prior administration that they want 9 the flexibility to have not just -- not only to not have 10 definitions in the statute but to have the flexibility and the 11 ambiguity to go after these new entities which are terrorist 12 groups, terrorist cells, etc. They want the flexibility, the 13 problem is it is not very flexible, it is the enemy of due 14 process and it is the mother of vagueness. That is the 15 problem. That is the issue in this case. 16 The government can't ride both horses. They can't say 17 on the one hand we need the ambiguity and we need the 18 flexibility to deal with these new hostile forces and say on 19 the other hand, well, there really are some definitions here. 20 And, I further don't accede even if the Law of War has been 21 referenced, how can they expect the citizens of the United 22 States to understand what the Law of War means when it defines 23 these provisions of 1021? They can't expect journalists to be 24 sitting around the table on their lunch break talking about the 25 international law theories like a variety of the international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

37 C875hedA argument 1 law philosophers Pufendorf, and Grotius and Montesquieu who all 2 wrote, they created the International Law of War. I don't see 3 any way that one could expect, or the government of either 4 branch could expect that the citizenry could view that as 5 anything other than vague. 6 THE COURT: But that is putting, I think, the standard 7 too high because it not as if journalists sit around and talk 8 about 18, U.S.C.A. Section 891 either and I would hardly expect 9 any of them, unless they deal frequently in this court house 10 with matters which we have to even know what I'm talking about. 11 So, I don't think that the standard is whether or not a 12 particular individual has memorized a criminal statute or 13 provisions of the International Laws of War or how they've come 14 to be interpreted under, I don't know, case law interpretations 15 theory. 16 MR. MAYER: Well, fair enough, your Honor, but then 17 the other side of that coin is that it would then be up to 18 Congress to integrate into the statutory structure those 19 provisions and definitions of the International Law of War that 20 would be applicable in this case and Congress didn't do that, 21 and they didn't do it with this Executive Branch and the last 22 Executive Branch and the next. And every Executive Branch 23 always wants to expand its power, and maybe rightfully so, they 24 want to expand their power to deal with a new form of enemy. 25 However, going about it in a way that utterly undermines SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

38 C875hedA argument 1 fundamental rights is why where he here. 2 So, that's my first point. 3 My second point is my sort of second experiential 4 hedgehog point, if you will, is the violations of the First 5 Amendment and equal protection clause that your Honor noted in 6 the, or the possible violations that your Honor noted in your 7 preliminary injunction hearing and we have talked about in our 8 papers, I think, creates a serious breach of separation of 9 powers. I don't think that has been talked about significantly 10 enough. The government actually touches on the separation of 11 powers issues in their papers but I want -- but our point, I 12 believe, is that the essential thrust of the NDAA is to create 13 a system of justice that essentially violates the separation of 14 powers because it puts everything within the Executive Branch 15 and the military and this is -- unfortunately it is entirely 16 consistent with the position of this administration and the 17 last administration that, for example, the phrase that they 18 have now put front and center of their policy is that due 19 process does not mean judicial process. And that is the same 20 here. You have taken, essentially, detention out of judicial 21 process and tried to put it into Executive Branch or 22 Legislative Branch process. That is what is forbidden under 23 the Constitution. 24 So, that is my second sort of overarching point. 25 THE COURT: Let me sort of put a little footnote on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

39 C875hedA argument 1 that point because then I want to give Mr. Torrance and 2 Mr. Harwood a chance when it is their turn to speak about it. 3 I found myself going back to Chief Justice Taney who 4 is somebody I didn't think I would ever cite affirmatively, but 5 Ex parte Merryman, in that case in which he is talking about 6 the suspension of habeas corpus by President Lincoln during The 7 Civil War, and he says that that was an on unconstitutional 8 suspension and he says: With such provisions in the 9 Constitution expressed in language too clear to be 10 misunderstood by anyone, I can see no ground whatever for 11 supposing that the president, in any emergency or in any state 12 of things, can authorize the suspension of the privileges of 13 the writ of habeas corpus or the arrest of a citizen except in 14 aid of a judicial power does not execute the laws if he takes, 15 upon himself, legislative power by suspending the writ of 16 habeas corpus and judicial power also by arresting and 17 imprisoning a person without due process of law. 18 So, it is just a -- I think it goes to your point, 19 Mr. Mayer, a little bit. I'm not quite sure what one does with 20 Mr. Taney these days, but there you are. There you have it. 21 MR. MAYER: I think that was echoed by the Court in Ex 22 parte Milligan as well, that it is not for the militia -- it is 23 not for the military to be a judge and jury and police; police 24 our citizens, our streets. 25 So, to me this policy of the NDAA is unfortunately, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

40 C875hedA argument 1 believe, consistent with the government policy of claiming that 2 targeted assassinations, for example, even of U.S. citizens, is 3 providing a sort of due process, just not judicial process, and 4 that is what I think our Constitution rejects. 5 THE COURT: I'm just going to stop you on the 6 targeting of American citizens for assassination because that 7 sounds a little far out there to me. How does that relate to 8 what we are talking about? 9 MR. MAYER: It relates to what we are talking about 10 because they're of the same piece. Two successive 11 administrations have taken the view in other contexts and in 12 this context that the separations of powers need not exist. 13 That's what I find objectionable, your Honor, is that here the 14 Executive Branch, with the authority of Congress is saying, in 15 essence, we don't need to worry about the judiciary. That's my 16 own point. 17 THE COURT: That's where the Federalist 78 comes into 18 play. 19 MR. MAYER: My third experiential or hedgehog point is 20 the government makes much in its papers of the grave burden 21 that plaintiffs have when a Court declares unconstitutional an 22 act of Congress. And I understand that burden but it only goes 23 as far as it goes in that Congress has shown itself perfectly 24 capable of fixing a problem when there is either a 25 constitutional or some other problem with a statute. Mr. Afran SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

41 C875hedA argument 1 and I, for example, have litigated the warrantless wiretapping 2 cases, they were originally brought here before Judge Sand and 3 transferred to the MDL in San Francisco, and those cases were 4 brought against both the government and the phone companies. 5 And shortly after the San Francisco District Court Judge Vaughn 6 Walker upheld our complaint on a motion to dismiss, the 7 Congress then went back and retroactively changed the statute 8 to retroactively immunize the phone companies because there had 9 been a prior statute which made it a violation for the phone 10 companies to give private records of Americans over to the 11 federal government. So, Congress then fixed the problem. 12 So, I understand the government's point in this case 13 and Mr. Harwood and Mr. Torrance are very capable adversaries 14 and have put in, I thought, superb papers, but I think that 15 point ought not to be overstated because Congress can go back 16 and fix things. 17 THE COURT: Well, but isn't this sort of a fix? I 18 mean, to take that point in a way let's assume for the moment 19 that you have got the Executive Branch which is given authority 20 under the AUMF right after 9/11 and it is very limited to 9/11 21 and going after those folks involved in 9/11. Right? Then the 22 AUMF, in the Executive Branch, evolves. The Executive Branch 23 engages in interpretation where it evolves and the detention 24 authority slowly grows, if you will, until March of '09. And 25 let's assume for the moment that there are people who are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

42 C875hedA argument 1 detained in the delta between where the AUMF originally from 2 where 9/11 leaves off and the March of '09 evolution ends. 3 Are you with me? 4 MR. MAYER: I think so. 5 THE COURT: Okay. 6 MR. MAYER: I don't want to overpromise. 7 THE COURT: Okay. Then you have got some people who 8 may be detained and there is no statute pursuant to which 9 they've been detained. There is an AUMF that was 10 appropriately, Congressionally authorized for the 9/11 folks 11 but then the Executive Branch interpreted that more broadly 12 until March of '09 and detained people and now they're sitting 13 there with a lot of people who are detained and they don't have 14 a statute so they passed 1021(b) which codifies that detention 15 authority through a represented group of people -- the 16 Congress, they represent us, we voted them in -- and they 17 codify that detention authority so they fix it. And now the 18 people who have been detained for all of those years are -- 19 there is no issue. Congress went back and fixed it. 20 MR. MAYER: I don't regard it as a fix, your Honor. 21 What I regard it as is Executive Branch overreaching which I 22 think is why we are here because the definition is so vague and 23 loose you could -- you are now talking not only -- before you 24 had a statute with a definitional section and targeted to a 25 narrow group of people. Now you have a statute that has no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

43 C875hedA argument 1 definitional section, maybe, supposedly it codifies the AUMF 2 although I am not really certain that it does, supposedly it 3 incorporates principles of Laws of War which are inherently 4 ambiguous and not part of our laws in any event, supposedly it 5 does those things, but really another way to read it is that 6 there are so many loose and undefined terms that this statute 7 captures whole new categories. There are now new categories 8 created called belligerents, co-belligerents, enemies of our 9 allies, people who substantially support terrorists. 10 So, the way I read the statute is it could cover 11 virtually any American journalist activist and it could cover 12 whole groups of people that are plain -- that are alleged to be 13 terrorists or near terrorists by the United States government. 14 THE COURT: But then the government says but it could, 15 hypothetically, theoretically, speculatively, figuratively 16 conjecturely but it has never has, so how do you meet the Lujan 17 threshold of standing if you don't have a realistic fear or 18 threat, objectively reasonable, that it would? 19 MR. MAYER: I think our plaintiffs were very clear on 20 that point and the only record in this case is very clear on 21 that point, they all have the fear and they all believe that it 22 is objectively reasonable for two reasons: Number one, because 23 of the various encounters they had with different branches of 24 the United States government, mostly the Executive Branch; and 25 number two, because the only statements we have on the record SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

44 C875hedA argument 1 from the government are that these -- they couldn't guarantee 2 that these people would not be detained or brought under the 3 ambit of Section 1021. 4 Now, the government's position, I think Mr. Afran is 5 going to get into this -- Mr. Afran is going to get into this 6 more later but the government supposedly changed its position 7 in a footnote in a brief for reconsideration and maybe in their 8 papers here, but as far as I know that doesn't constitute 9 evidence. And if they are changing their position that is, to 10 our minds, Exhibit A in why wouldn't they change it again. And 11 if they have changed their position and they are going to 12 change it again, that's exactly the vagueness that we're 13 pointing to in this statute. 14 So, my final hedgehog point for your Honor would be to 15 pick up on the government's brief at page 44 when the 16 government talks about the balancing of public policy and the 17 equities in a permanent injunction situation. It strikes me 18 that the government has to make some sort of showing which they 19 haven't done on the record in this case. They have to make 20 some sort of showing that the statutory language here is 21 somehow directed at what the statute purports to do which is 22 going after terrorists and they haven't because they have been 23 completely silent on the record. 24 THE COURT: It is your burden. You are the plaintiff, 25 you bear the burden of proof by a preponderance of the evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

45 C875hedA argument 1 on each and every element of obtaining an injunction so you 2 bear the burden of proof on public interest. By a 3 preponderance of the evidence. 4 MR. MAYER: Right. And what I am saying is because 5 the government didn't put in any evidence, I think on this 6 issue, I think that we have -- that is one factor that goes to 7 our meeting our burden of proof. 8 THE COURT: Proof you have would be the opposite 9 point. I mean, where we start is you've got to put forward 10 your proof that an injunction is in the public interest. 11 MR. MAYER: And I think we put forward our proofs with 12 all of the statements on the record, your Honor, about how this 13 statute has had a chilling effect and will continue to have the 14 chilling effect absent an injunction on our most cherished 15 democratic institutions and rights namely the right of 16 citizens, activists and journalists to speak out and I think 17 that is all clear on the record. But, I would also say that -- 18 and I don't want to go too far afield because I know your Honor 19 doesn't want me to go too far afield, but I think it would be 20 perfectly appropriate for the Court to take judicial notice of 21 how our society and government has changed, generally, since we 22 are talking about the public interest. 23 THE COURT: Got it. Won't. I have got a very 24 limited -- in terms of public interest the issue on this motion 25 is not -- I understand the sociological point and I'm not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

46 C875hedA argument 1 trying to minimize it. I'm just trying to focus on really the 2 core issue of your burden of proof on this issue which is to 3 show that this injunction which the plaintiffs have asked this 4 Court to impose, which is extraordinarily broad and would 5 enjoin all of 1021(b) as to all people, why that is in the 6 public interest versus allowing a statute which could capture 7 conduct by individuals seeking to commit terrorist acts against 8 the United States within and without the boundaries of the 9 United States, for them to be detained. 10 MR. MAYER: Right. 11 THE COURT: How do those get weighed? 12 MR. MAYER: Well, one of the weighing processes would 13 be, your Honor, that there are other statutes that do have 14 definitional sections and that are more narrowly targeted to 15 achieve the aims of those statutes, and those aims are similar 16 to the supposed aim of this statute which is to combat 17 terrorism. But, that's not the case here and everything on the 18 record, both from the testimony of the government and from the 19 plaintiffs, is that there are other -- this statute captures 20 too much. It captures too much. 21 In that vein, your Honor each -- 22 THE COURT: Are you almost ready for Mr. Afran? 23 MR. MAYER: I am almost ready for Mr. Afran. I 24 thought I would end, since you quoted Justice Taney I would end 25 with the dissent of the Justice Holmes in Abrams v. United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

47 C875hedA argument 1 States who characterized the Constitution as an experiment, as 2 all of life as an experiment and believes that as a consequence 3 of that, quote, we should be eternally vigilant against 4 attempts to check the expressions of opinions that we loathe 5 and believe to be fraught with death." And I think that that 6 quotation captures precisely the language of the statute and 7 what the Executive is trying to do here. 8 Thank you, your Honor. 9 THE COURT: Thank you. 10 And there is also an interesting, as long as we are 11 talking about dissent from Jackson, in the Korematsu case. 12 Mr. Afran? 13 MR. AFRAN: Your Honor, I think with respect to Lujan, 14 which your Honor was addressing to Mr. Mayer, the Court would 15 be ill-advised to rely upon Lujan because Lujan represents 16 standing in a conventional context. Justice Scalia said in 17 majority holding in Virginia v. Hicks and Board of Trustees, an 18 overbreadth of First Amendment case, rather standing is an 19 expansion or an expanding doctrine beyond conventional 20 standing. Lujan does not involve strictly First Amendment 21 issues. It is relied upon as a conventional standing case 22 where this is concrete nexus shown between -- 23 THE COURT: Let me make sure I understand because this 24 is a novel argument. 25 So you are suggesting that the Court should not use SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

48 C875hedA argument 1 the Lujan -- or Lujan, however one pronounces this word, 2 L-U-J-A-N -- 3 MR. AFRAN: I think I was saying it both ways. 4 THE COURT: -- standard for standing. Is that what 5 you're saying? You are saying that one, because those elements 6 strike me as straight forward and not necessarily inapplicable 7 even in the First Amendment context, the question is whether or 8 not these plaintiffs have actual injury and/or a reasonably 9 objective fear. 10 MR. AFRAN: Precisely. It is the second part that is 11 the relevant question. 12 THE COURT: That's also under Lujan. 13 MR. AFRAN: Well, it is under Lujan that concrete 14 nexus has to exist with any claim, however, the point Justice 15 Scalia raised which is governing law -- and our colleagues are 16 probably surprised that we cite Justice Scalia -- but we 17 understand that with respect to speech questions the 18 Constitution is clear and specific and even a textualist will 19 rely on its terms and have a broad application of the First 20 Amendment. 21 So, with respect to Lujan, Lujan is valid as to the 22 threshold and standing as a consideration. But what justice 23 Scalia says is that in First Amendment cases we have a broader 24 concept of the nature of injury. 25 THE COURT: And here is the question I think that I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

49 C875hedA argument 1 was trying to get at before which is whether or not what we 2 have here is truly something that we should call core First 3 Amendment because if a statute is not aimed at the First 4 Amendment but reaches the First Amendment, do I look primarily 5 at First Amendment standards for that? 6 MR. AFRAN: The answer to that I think would be yes 7 because -- 8 THE COURT: What cases are you suggesting? 9 MR. AFRAN: Actually, every case that addresses the 10 question deals with statutes that bring within their scope a 11 substantial amount of protected First Amendment conduct. 12 THE COURT: Typically most of the cases where there 13 are facial challenges are on First Amendment grounds which deal 14 with standing -- really with pre-enforcement standing facial 15 challenges. 16 MR. AFRAN: I think typically so. 17 THE COURT: Right. Those are real often, in fact 18 usually, cases where speech is the conduct at issue; in 19 Virginia v. American Book Sellers where they're looking at 20 obscenity and limitation on how books can be displayed within a 21 store, limitations on how someone can leaflet in a particular 22 place. Here we've got something really quite different. 23 MR. AFRAN: I would say we don't. 24 THE COURT: So, you can explain to me why we don't. 25 MR. AFRAN: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

50 C875hedA argument 1 THE COURT: But I also would just before we leave this 2 because the government may want to comment on it, the Commack 3 Self-service Kosher Meats case, the Second Circuit case which 4 talks about when a statute is capable of reaching the First 5 Amendment, then the amount of tolerable vagueness is very 6 limited. 7 MR. AFRAN: Well, that's precisely the point. In 8 Commack they were clearly regulating consumer rights as 9 legislature sought and it was stating that the standard for 10 advertising kosher products would be orthodox Jewish standards 11 and the purpose of that was not to endorse religion, the 12 purpose of that was to create a standard that consumers could 13 rely on but the Court says it is unconstitutional for several 14 reasons. Number one, we don't know what that means; what are 15 Orthodox Jewish standards? You can put five Orthodox Jewish 16 rabbis in a room and get many, many interpretations. 17 THE COURT: More than five. 18 MR. AFRAN: I didn't want to get too much in a cliche, 19 but yes. And how many Jewish denominations are there that 20 calls themselves orthodox? My brother met his wife in a 21 traditional synagogue that didn't have a orthodox in it's name 22 and has a divider of flower pots where you can look over 23 conveniently. What is traditional orthodox? 24 So, the statute, by using a generalized term, is 25 implanting itself in vagueness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

51 C875hedA argument 1 There are other concerns in Commack, whether the Court 2 can adjudicate what is an Orthodox Jewish. So, Commack is 3 dealing with a vagueness. 4 THE COURT: Commack said it was not void for 5 vagueness. It does have a language which we are talking about 6 but the Court there did find the statute was not for vagueness. 7 MR. AFRAN: The problem in Commack is that you are 8 intruding into an area in which some definitional provision is 9 needed and the problem we have here is we don't have the 10 definitional standard at all. Now, when we talk about 11 substantially supporting, the government chose to put a 12 definition in its brief pretty far down the list in terms of 13 giving air power support and the government says, well, 14 supporting doesn't mean speech necessarily. 15 Look. In the definitions we cited from the Oxford 16 English dictionary or whichever dictionary we were using there 17 is reference to giving air support. Clearly that is not 18 speech, that's conduct. But, the primary definition we cited, 19 the Oxford English, and that's an authoritative source, is that 20 "support" means to advocate for. 21 So, without any cabining definition, the word 22 "support" inherently touches speech. It has to. If we give 23 credit to the typical dictionary definition of the word 24 "support" we have to accept that it is touching speech 25 inherently. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

52 C875hedA argument 1 Now, what is Congress' intent? Your Honor suggests 2 Congress' intent here is to attack terrorism, to find a further 3 device for attacking terrorism. Well, its intent may be that, 4 we don't really know for sure from the statutory text, but the 5 question is not the intent of Congress. The question is what 6 does a statute say and by its language what does it reach. 7 Many statutes have a benign intent but a pernicious text and 8 that text becomes distorted in ways that are not anticipated. 9 And so, when we deal with First Amendment rights we can't say 10 well, Congress has good motives. We all respect, I think, that 11 minimizing, negating and fighting terrorism is a proper 12 governmental objective, but if one accomplishes that by a 13 statute that clearly touches other interests such as speech, 14 then we have to look to see, well, how much does it touch. 15 THE COURT: Right. 16 MR. AFRAN: What is the metric, and how do we evaluate 17 that? 18 THE COURT: Tell me the answer to that. 19 MR. AFRAN: The answer to the specific question of 20 what is the metric is that there is no specific answer. One 21 can't say well, a statute has too much effect on speech if it 22 is 75 percent versus 25 percent. The only guidance -- 23 [Phone ringing] 24 THE COURT: How did that person get that phone in 25 here? It was you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

53 C875hedA argument 1 UNIDENTIFIED SPEAKER: No. 2 THE COURT: I don't mean to have them arrested. You 3 got past the metal detector. 4 MR. AFRAN: I thought it was a substantially 5 supporting punctuation. 6 The question thus becomes in the case law does it 7 bring it within a substantial amount of protected conduct. I 8 mean, I don't know that you can quantify specifically. I think 9 what we have to look at is what is the policy of the First 10 Amendment. 11 THE COURT: Well, but what the Supreme Court requires 12 under the Stevens case, and there are actually a variety of 13 cases, and the government has cited them and they've done a 14 good job, better than good, your papers were very well 15 written -- all the papers were very well written in this 16 matter -- but of capturing a series of cases which do stand for 17 the proposition that one is to read a statute against its 18 overall context. So, I've got to -- 19 MR. AFRAN: Right. 20 THE COURT: -- I have to measure it somehow in terms 21 of what it is supposed to capture versus what it actually 22 captures to determine whether its -- let me put it in 23 colloquial terms -- more bad than good. 24 So, I have got -- I have to do that exercise. I'm 25 required to do that exercise. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

54 C875hedA argument 1 MR. AFRAN: I would agree. I would agree. 2 I think what we saw in the AEDPA case, which for the 3 benefit of those listening is the Anti-Terrorism and Effective 4 Death Penalty Act of 1996 and the initials are no better to 5 pronounce, but with respect to the AEDPA the Court noted, look, 6 there is some speech that is impacted but that's incidental and 7 it is not really within the scope of the definitional 8 proscribed activities. It does tend to touch some speech. 9 Obviously giving advice on how to train members of a terrorist 10 group invokes some speech conduct but the Court said its focus 11 is plainly on specific, defined criminal acts such as 12 financially supporting a terrorist group, providing material to 13 a terrorist group -- military material, providing training to 14 terrorist members. 15 So, the Court says clearly there is some effect on 16 speech but that is minor because the defined criminalized 17 provisions, the criminalized conduct are clear. And because 18 Congress has gone out of its way to define those proscribed 19 activities we can see where the focus is. Congress clearly has 20 a focus in the AEDPA prohibiting certain criminal support 21 activities and it defines precisely what they are. 22 So, in that context one can make that Stevens metric 23 in a kind of quantified way because we see clearly Congress has 24 gone to the trouble of telling us precisely what conduct is 25 proscribed and by defining the proscribed conduct it tells us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

55 C875hedA argument 1 what the focus is. But, what do we have here? We have a 2 statute that simply says substantial support for these groups 3 will invoke military detention until the end of hostilities 4 which we say is indefinite. I think the Court accepts that it 5 is an undetermined time. 6 So, we don't have in this statute any of what Holder 7 had and so in Holder you can make that Stevens analysis fairly 8 easily because Congress has gone out of its way to push the 9 statute clearly in a defined area of criminal conduct. But now 10 what has Congress done here? Knowing it has the AEDPA which 11 clearly delineates core activities that are barred, Congress 12 then creates a statute that has no description at all of the 13 activities except the word substantially supported. 14 THE COURT: Well, the government says it is not a 15 criminal statute. 16 MR. AFRAN: Well, you said it is, your Honor, because 17 you said in your preliminary injunction holding that where 18 detention, particularly on an indefinite basis in 19 incarceration. Through incarceration is the focus. Then it 20 has effectively a criminal context and someone has to look at 21 it at least in terms of basic due process. 22 THE COURT: I still believe that but they told me I'm 23 wrong. But we will talk about that because I'm curious whether 24 anybody has been imprisoned under a non-criminal statute. 25 MR. AFRAN: Well, the statute is only several months SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

56 C875hedA argument 1 old. 2 THE COURT: Just generally in life. 3 MR. AFRAN: I think it is an astounding proposition 4 that the government could say this does not have a 5 quasi-criminal impact or should not be treated in a 6 quasi-criminal impact for analysis. If one is to be detained, 7 in custody, in the military, for an indefinite period without 8 any due process, one is in an even worse position than the 9 typical criminal case. So, I think clearly we have to look at 10 it in that setting. 11 So, in terms of how we quantify, Congress isn't really 12 even letting us make that judgment because Congress has given 13 no structure at all to allow the analysis to begin and that's 14 why it is inherently facially invalid. 15 THE COURT: Can I change your focus for one moment? 16 MR. AFRAN: Yes. 17 THE COURT: Can you tell me whether or not there is 18 anything in the public record which suggests that Mr. Hedges, 19 Ms. O'Brien, Ms. Jonsdottir, Mrs. Wargalla, anybody has 20 published a book or article since our last hearing that is 21 public record? 22 MR. AFRAN: I'm not sure there is any new conduct. I 23 do know that Mr. Hedges, well, he wrote about his deposition, 24 actually, but there -- I believe Mr. Hedges has an article 25 coming out but I don't know specifically the subject matter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

57 C875hedA argument 1 THE COURT: I will take judicial notice of that. 2 MR. MAYER: For the record, Mr. Hedges has published a 3 book that came out since the last hearing. 4 THE COURT: Since March 29? 5 MR. MAYER: I don't know what the exact publication 6 date is. We can find out. I believe the topic was domestic 7 politics. It wasn't of an international source. 8 MR. REMES: Your Honor, we can pin that down and 9 report back. 10 THE COURT: I can also pin that down. Okay. 11 MR. AFRAN: We don't know the publication date. It 12 may have been published before his testimony. 13 THE COURT: But I'm trying if figure out if there is a 14 way in which the Court can take legitimate judicial notice of 15 ongoing conduct. The factual record is closed but is there any 16 ongoing conduct which is of sufficient public record that a 17 Court can take judicial notice of? If the answer is no then it 18 is not. 19 MR. AFRAN: I just don't know -- 20 THE COURT: Okay. 21 MR. AFRAN: -- aside from what we have just discussed. 22 Now, with respect to the -- I would like to go back to 23 the core question of speech. We need to look further at the 24 distinction between the AUMF, the AEDPA and the NDAA. Now, we 25 have noted that the substantially supporting sentence or aspect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

58 C875hedA argument 1 of that March 2009 briefing does not appear in the AUMF and, it 2 is interesting, your Honor was willing to attribute immense 3 powers to all of us sitting here by suggesting we can make a 4 statute evolve by the briefs we file in court. 5 THE COURT: Well, I wasn't suggesting that that's 6 legislatively appropriate. 7 MR. AFRAN: Right. 8 THE COURT: I was noting that the -- to be clear, my 9 view, and the government can address whether or not my view is 10 wrong, but my view is that there was the AUMF, duly passed by 11 Congress. What likely happened is that there was an expansion 12 of interpretation which occurred. Maybe it didn't need 13 legislative authorization to be determined, but there was an 14 expansion of the AUMF interpretation which occurred that was 15 then set forth in a filing in Court in March of 2009 which has 16 now been codified in 1021(b). 17 So, it is not that I suggest that we can legislate 18 through our filings, it is that the Executive Branch of the 19 government set forth its expanded interpretation in a filing 20 which was later codified by a duly represented -- a Congress, 21 representatives of the people. 22 MR. AFRAN: I was speaking somewhat ironically in the 23 sense that we are not supposed to do that. We are not supposed 24 to suggest that a executive scope is expanded because of what 25 counsel put in a brief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

59 C875hedA argument 1 THE COURT: Although it is true, I think the 2 government is correct, that the legislature is deemed to 3 legislate against the backdrop of either agency interpretations 4 and/or executive interpretations. 5 MR. AFRAN: Well, when we go to the question of agency 6 interpretations the cases the government cites are all 7 concerned with expert agency findings. For example, the Chase 8 Bank case concerned when a bank is obligated to issue notice of 9 interest rate increases and the Court said that the 10 secretary -- I think it is Secretary of the Treasury's 11 viewpoint as to what is an appropriate regulatory 12 interpretation is acceptable to the Court. That's an example. 13 But, all of the cases are identical in dealing with 14 agencies that have expertise in a given field who had experts 15 within the agency and who are pronouncing on appropriate 16 industry practices based on their expertise. 17 THE COURT: But maybe that is not so different from an 18 executive branch which has expertise which the Supreme Court 19 has acknowledged in the Holder v. Humanitarian Law Project case 20 for, as one example where they've got expertise in security and 21 terrorism in the way that none of the rest of us have. 22 MR. AFRAN: No one would suggest the government's 23 views, coming through the appropriate agency, of how to detain 24 inmates at Guantanamo should not be given weight. It doesn't 25 mean it should be given untrampled weight. Cruelty is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

60 C875hedA argument 1 acceptable. Courts have the power to say, no, you are going 2 beyond what is humane or reasonable. But, in the context of 3 expert handling of inmates, the government's expert view is 4 entitled to weight but we are talking about the First 5 Amendment. We are talking about what a statute says. We are 6 not dealing with a question that is normally handled by 7 internal experts who have knowledge that the average person 8 does not have. The government attorneys -- the assistant's 9 view of what a statute means is no different than my view or 10 Mr. Jaffee's view or Ms. Bolen's or Mr. Mayer's view. It is a 11 lawyer's view. It is not expert determination. To suggest 12 that the AUMF always embraced by its terms the substantially 13 supporting standard that they argue in March 2009 is simply a 14 lawyer's interpretation of a statute. The AUMF which, by the 15 way, every single Court that considered it on its four corners 16 rejected and I think this is a critical point, the government 17 says there is a long-standing executive practice that Congress 18 recognized and subsumes into Section 1021 yet there is no long 19 standing executive practice for two reasons: One, they claim 20 they never used this authority before; and two, no Court has 21 ever recognized it. 22 Now, Hamlilly is very clear on this point. Hamlilly 23 is where the March 2009 decision was made and Hamlilly directly 24 rejects the very proposition the government raises. The only 25 Court that was ever squarely asked to adjudicate this question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

61 C875hedA argument 1 states as follows: From Hamlilly: Detaining an individual who 2 'substantially supports' such an organization but is not part 3 of it is simply not authorized by the AUMF itself or by the Law 4 of War. Hence, the government's reliance on substantial 5 support as a basis for detention independent of membership in 6 the Taliban, Al Qaeda or associated force is rejected. 7 Nothing could be clearer. The Court where this was 8 offered said this does not exist in the statute. Now, if any 9 of us are experts on the law it is the Court. That 10 pronouncement has weight. Now, what does the government say? 11 Now, in Gherebi the Court made the same finding only 12 it said the substantially supported text might have 13 applicability to combatants held in a theater of combat but it 14 cannot be applied to persons under the protection of the U.S. 15 Constitution. 16 So, in both contexts the notion that the AUMF supports 17 "substantially supported" as a basis for citizen detention or 18 civilian detention in the United States was rejected. Now, 19 al-Bihani does make reference to that quoted section of the 20 March 2009 brief but it only applies a part of the brief. It 21 does not apply the substantially supported part. It simply 22 quotes the provision in the brief. Not one Court in the D.C. 23 system ever applied the substantially supported aspect of the 24 government's March 2009 briefing and after al-Bihani the Court 25 supplied and referred to only a part of context. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

62 C875hedA argument 1 So, what we have is an absurd situation where the 2 government says it has always been the practice under the AUMF 3 to do this yet they say we've never done it and they say, and 4 no Court has ever accepted the doctrine and those Courts that 5 were asked specifically to accept it reject it square on its 6 face. 7 So, how is it that we can say Section 1021 simply 8 embraces long-standing authority under the AUMF when the 9 government says it has never done that and when every Court 10 that considered it said it is not part of it? And so, what we 11 have is a failed standing defense for the government. This 12 whole argument is construed by the government in order to say, 13 well, if we've never used it but we've always had the power 14 since 2001 when the AUMF came into force and we have never used 15 it against people like you, you have got no reason to fear 16 anything since it is quite clear that power has been known to 17 be in the government's hands and we have never used it for such 18 purposes. But Section 1021 is not a recodification of the AUMF 19 substantially supported power because it never existed in the 20 AUMF. It is a new legislative enactment. 21 Now, Congress might say, and really what has happened 22 here is Congress has seen that the Courts does not accept this 23 reasoning of substantially supported. And what Congress did 24 was by statute it imposed what the government could not achieve 25 by common law. So, the NDAA, Section 1021, is a legislative SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

63 C875hedA argument 1 effort to create what has never been accepted judicially. It 2 is very similar, Mr. Mayer mentioned the NSA case involving 3 phone surveillance. The statute in the NSA case was a 4 legislative reaction to Smith v. Maryland in which the Supreme 5 Court said that phone records are not protected under the 6 Fourth Amendment because it is something you give to a 7 third-party, you are not keeping it privately. So, Congress 8 creates the ECPA, Restored Communications Act, to create, by 9 statute, what the Court would not accept by common law or 10 constitutional doctrine. 11 This is very clear we have to look at NDAA Section 12 1021 as a legislative effort to create what the Courts have 13 rejected as being under the AUMF. Now, they do say we affirm 14 the AUMF for very simple reason. They don't want to create 15 legislative confusion. What is the likely meaning of that 16 affirmation sentence? It is that they want to be certain the 17 president's war power is not impugned. The other statute adds 18 new material and before they do that they say, by the way, we 19 reaffirm the original statute, here is the new part we are 20 putting in. This is the only fair way to read this. When we 21 look at the failed judicial history of the government effort to 22 persuade Courts to accept this standard, we have to see Section 23 1021 as an attempt by Congress to create by statute what the 24 government could not achieve by common law. There has never 25 been this power under the AUMF except in the mind of government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

64 C875hedA argument 1 attorneys which is not the same thing as existing in law. 2 THE COURT: I do want to give the government a chance 3 to have their say and we will take a short break so that we can 4 get there but tell me, Mr. Afran, are there -- is there one or 5 two more points that you would like to make? 6 MR. AFRAN: There most certainly I am sure are. I 7 want to make sure we have addressed your questions to us. Your 8 Honor, if I could ask the favor, if your Honor feels we have 9 not, if you can let us know at some point today? 10 I am just scanning, your Honor. 11 THE COURT: Between you and the others I think we have 12 covered my questions. 13 MR. AFRAN: There is one thing I want to address which 14 is Fox v. FCC which I think is important. 15 THE COURT: Yes. 16 MR. AFRAN: Fox gives the lie to the government's 17 position -- I don't mean that disrespectfully, I mean it as a 18 metaphor -- very interestingly in Fox the government took the 19 view that the notion of non-repeated obscenities or expletives 20 would still violate the statute governing the FCC. One of the 21 things the government said was, well, we have gone back to 1960 22 and have opinions from the FCC in which they said just this and 23 the Supreme Court looked at this and said, look, you can't tell 24 us that the public, particularly the broadcasting corporate 25 public which is a sophisticated member of the public and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

65 C875hedA argument 1 presumably has full access to whatever legislative, judicial 2 and administrative history that is relevant, you can't say to 3 us that their notice of what is barred under the statute is 4 known to them because of your decisions going back to 1960. 5 THE COURT: And the Supreme Court, which just last, 6 actually June of 2012, in that case said that the statute must 7 give fair notice of what is required. 8 MR. AFRAN: It does. 9 THE COURT: Who bears the burden of giving fair 10 notice? 11 MR. AFRAN: If we are talking about a statute? 12 Congress does. 13 THE COURT: Yes. 14 MR. AFRAN: If we are talking about a regulation, the 15 regulatory body would have the burden of drafting that. 16 Sometimes it is a hybrid case such as Rule 10B5 where 17 there is a rule following the statute. I think one -- I think 18 clearly it is the entity that promulgated the enactment, here 19 it is Congress, it is not a regulation. 20 Now, if the government is taking the position that our 21 military branches have always said this power existed, well, I 22 don't want to go back to that because I think we have addressed 23 that, but in terms of what is definable or what is known in the 24 statute, the body enacting the law has to make that known and 25 that is really what the security says here. At the very least SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

66 C875hedA argument 1 they say the statute can't be given life, informative 2 definitional life merely because you have had administrative 3 proceedings or policy statements going back many years. 4 So, very significantly in Fox they go back 52 years, 5 they say over a 52-year period we have taken this position in 6 multiple incarnations. Here we go back at best to 2009 if we 7 want to accept the March 2009 briefing as form of notice. 8 THE COURT: Well, it is a little bit different because 9 there it was -- well, it was the FCC, an agency of the 10 government which said that they had taken these positions. 11 MR. AFRAN: Which makes it more compelling. 12 The assistant U.S. Attorney is counsel for the 13 government. It is not an agency that has direct responsibility 14 for implementing a given regulation or statute. And so, I 15 think it is more compelling here in favor of plaintiffs even 16 than it was in Fox. 17 THE COURT: I guess the argument would be that there 18 was a newly created statute here which, under the case law, is 19 deemed to be written against the background of Executive Branch 20 pronouncements, a judicial state of play, the common law, and 21 that that was not the case in FCC v. Fox. 22 MR. AFRAN: I think the answer then has to lie in 23 those three areas. Number one, criminal law can't really be 24 informed anymore by common law. We don't define criminal 25 statutes by old common law standards. Fifth Amendment due SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

67 C875hedA argument 1 process generally requires description in the statute of the 2 proscribed act. 3 THE COURT: I would disagree only because I think that 4 mens rea is read into every criminal statute by virtue of the 5 common law. 6 MR. AFRAN: Right, but that's a global provision. In 7 terms of what conduct is criminal, the mens rea is just an 8 intent question. 9 THE COURT: At the heart of criminal conduct. 10 MR. AFRAN: Right; that it forms every act. 11 THE COURT: Yes. 12 MR. AFRAN: But the question is what is forms the act 13 and the description of due process requires that there be 14 notice and description of the act itself. Once you know what 15 the act is the question becomes do you have mens rea. And so, 16 the starting point must be under Fifth Amendment due process 17 what is the description in the statute. And so, we can't look 18 at the Military Commissions Act, for example, because the 19 public itself has no point of reference to that. We don't even 20 have an executive order here. We have a brief in one case, in 21 Hamlilly. 22 Now, if the broadcasters in Fox, who have expert 23 counsel who focus all of their work on communications industry 24 and administrative agency announcements in these fields were 25 not chargeable with notice or policy statements going back by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

68 C875hedA argument 1 the agency, then it is even more compelling here because we 2 have ordinary citizens who are not within the scope of an 3 expert industry. And so, if the broadcaster in Fox is not 4 chargeable with notice of what his supervising agency has said 5 over 52 years, it seems reasonable to say the plaintiffs here, 6 who are not within the scope of an agency that supervises them, 7 have even less reason to think that the Military Commissions 8 Act reasoning could apply to them. 9 THE COURT: Right. 10 MR. AFRAN: So, the juxtaposition of Fox to this case 11 is that Fox strengthens our position, I think, very strongly. 12 THE COURT: I hear you. I hear you. 13 MR. AFRAN: I would like to look at my notes for one 14 moment, your Honor. I think we've -- I do want to raise one 15 final point and that is on the independent expression standard 16 what the government is doing is reversing First Amendment 17 jurisprudence in the following way: 18 THE COURT: You will tell me how, what that means. 19 MR. AFRAN: I will. I think I will. 20 Congress shall make no law respecting speech or the 21 press. The presumption in First Amendment jurisprudence is 22 that all speech is permitted and fully protected unless 23 otherwise described. That's the general way First Amendment 24 jurisprudence works. 25 What the government is saying here is that we will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

69 C875hedA argument 1 protect independent expression under this law but other 2 expression is fair game for detention. And so, we have one -- 3 THE COURT: And another way of saying it, that they 4 were simply answering my question which was are these 5 plaintiffs who have done the things they've testified about in 6 the trial record before this Court going to be subject to 7 military detention? And the answer was quite careful but the 8 answer was no. So, it wasn't an attempt to generally describe 9 the statute or generally describe conduct. It was really going 10 after the standing of the plaintiffs and whether the plaintiffs 11 have an objectively reasonable fear -- 12 MR. AFRAN: In spite of that they do. 13 THE COURT: -- of detention. 14 MR. AFRAN: In spite of that they do. 15 Mr. Hedges was arrested by the United States. 16 THE COURT: For a few hours. Not that I'm minimizing 17 being arrested for a few hours but it is not like he was thrown 18 into a cell for six months. 19 MR. AFRAN: He was a New York Times correspondent, 20 clearly independent in the government's reasoning, and yet 21 because he asserted that independence by leaving the press pool 22 he was arrested and ordered to report to some agency -- 23 THE COURT: Not under 1021. 24 MR. AFRAN: Couldn't, because 1021 didn't exist. 25 THE COURT: Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

70 C875hedA argument 1 So, why should his fear be enhanced by 1021? He ought 2 to have the same fear based upon whatever rationale or 3 non-rationale caused his detention back then. There shouldn't 4 be any heightened fear -- 5 MR. AFRAN: There was no statute that actually 6 governed him. Now there is a statute that says one who 7 substantially supports these groups is subject to detention. 8 So, if once one is arrested -- 9 THE COURT: He wasn't arrested because he was 10 substantially supporting, he was arrested because he had left 11 the pool. 12 So, there was something that said in the trial record 13 he said, testifies, he is in Kuwait, he was supposed to be part 14 of the pool and not leave the pool -- and the record will speak 15 for itself so I don't mean to not state the record correctly -- 16 but he left the pool and he was detained. 17 MR. AFRAN: He was very careful to testify that he was 18 admitted to Saudi Arabia on a Saudi visa. He said he had no 19 obligation to remain with the pool, he was under no 20 governmental orders to do so. He simply acted as an 21 independent journalist. 22 THE COURT: All I'm saying is that's not at all about 23 whether or not there was a -- whether or not he was detained 24 for substantially supporting anybody, directly supporting 25 anybody or having anything to do with conduct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

71 C875hedA argument 1 MR. AFRAN: He couldn't, because the AUMF didn't 2 provide for that at the time but in his mind, an objectively 3 reasonable actor, says I was detained once before as a New York 4 Times reporter, I was clearly an independently acting in an 5 independent capacity yet I was detained. So, the expression 6 standard, I don't think, is much solace to them. 7 THE COURT: Let's take away 1021 and deal with that 8 example. Why does he still have exactly the same fear today 9 that he could if he wandered away from a press pool under those 10 circumstances and be detained again? He would. 11 MR. AFRAN: If it is government policy to do that to 12 journalists, I think then they have the right to go to court 13 and say this policy is unconstitutional. And the fact is he is 14 not in Saudi Arabia at the moment but this statute now governs 15 activity in the U.S. so it creates a new level of juridical 16 power that existed in the government that didn't. 17 THE COURT: Although the Obama administration said 18 that it will not enforce 1021 against American citizens. 19 MR. AFRAN: With all due respect, they did not say 20 that in the signing statement. They said we will not subject 21 Americans to indefinite military detention without trial under 22 Section 1021. 23 THE COURT: That is true. 24 MR. AFRAN: That is a significant difference. Your 25 Honor actually said in the first hearing it was a very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

72 C875hedA argument 1 carefully parsed statement and so the president was being a bit 2 cagey, I think, in trying to cut it both ways; not eliminate 3 the ability to use a statute but to appear to say that it won't 4 be used. 5 The government's statement here does not give that 6 much solace to our plaintiffs. Number one, their activities 7 are arguably not independent. When they would set up a webcast 8 and invite people associated with these types of organizations 9 to appear, they're not acting independently in a logical 10 concept. 11 THE COURT: Well, doesn't the word independent on its 12 face mean not associated with one of these bad guys, e.g. the 13 Taliban or Al Qaeda or so-called associated forces pertaining 14 to the International Laws of War? 15 MR. AFRAN: Does your Honor know what it means? I 16 don't know. 17 THE COURT: I have yet to reach a determination. 18 MR. AFRAN: I am being rhetorical. If this is a 19 statute, if the independent express standard were a statute it 20 probably would fail because it clearly lacks sufficient 21 guidance in itself. Independent expression without more and 22 solely on the -- these things are generalized terms and in the 23 case, generally, does not prohibit that. 24 THE COURT: And I do want to go on to the government 25 so I want to wrap ourselves up here, but people use the phrase SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

73 C875hedA argument 1 independent journalist all the time. He's an independent 2 journalist, she's an independent journalist. That is hardly an 3 extraordinary phrase. 4 MR. AFRAN: They don't say that. They say independent 5 expression or independent advocacy without more will not 6 implicate Section 1021. They don't say one who is an 7 independent journalist. They don't even go that far. They say 8 independent expression. Now they back this into two cases and 9 this is the point I wanted to raise, they say there is judicial 10 authority for this in the Salahi case and Bensayah case but 11 those cases weren't dealing with expression, they were dealing 12 with independent freelance military acts. 13 THE COURT: It says independent journalistic 14 activities. 15 MR. AFRAN: They don't say independent journalist. 16 They go out of their way to give a great deal of wiggle room in 17 even this formulation. 18 We would submit the following: That our clients don't 19 know what that means, they do not have a statement that they 20 will not be detained. What the government actually said in its 21 brief was that independent expression or advocacy will not 22 implicate Section 1021 activities, Law of War detention, and 23 therefore plaintiffs don't have anything to worry about. 24 They've never actually said these people will not be detained 25 for this activity. They simply say since the statute does not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

74 C875hedA argument 1 implicate independent journalistic expression -- independent 2 expressive activities, advocacy or at one point they may say 3 journalistic activities, they don't have standing because their 4 activities don't implicate the statute. They don't say they 5 won't ever be detained. They still don't say that. They still 6 have not answered your Honor's question. 7 THE COURT: They answered the question I asked -- I 8 asked a series of questions. One of the questions I asked was, 9 in sum or substance, or just in substance, will these folks who 10 have testified here be detained for the activities about which 11 they have testified they have -- past tense -- engaged in? And 12 Mr. Torrance and Mr. Harwood will tell me if I'm right but I 13 thought that their statement on page 20 of their brief was no. 14 And so, if what they did was simply quote my question 15 and say, no, I take that as the same thing. 16 MR. AFRAN: Well, they say as a matter of law 17 individuals who engage in the independent journalistic 18 activities or independent public advocacy described in 19 plaintiff's affidavits and testimony, without more, are not 20 subject to Law of War detention as affirmed by Section 21 1021(a)-(c) solely on the basis of such conduct. 22 Put simply, which is rather bizarre in view of what 23 just came before it, plaintiffs descriptions in this litigation 24 of their activities, if accurate -- if accurate -- do not 25 implicate the military detention authority affirmed in Section SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

75 C875hedA argument 1 1021. 2 Now, when I went to law school we were taught that the 3 word "no" is acceptable in Court. Are you going to detain them 4 for what you've done? Yes or no? They didn't say so in the 5 hearing and in their motion for reconsideration they 6 essentially say this and they still don't say so. And in this 7 brief they now still don't say so. And what they say is 8 significant. The plaintiff's activities, if accurate -- 9 THE COURT: Let me ask you this. 10 MR. AFRAN: -- they're leaving room for further -- 11 THE COURT: I will give -- here is one last question 12 and we are going to take a break. 13 MR. AFRAN: Yes. 14 THE COURT: If Mr. Torrance and Mr. Harwood gets up 15 and I say does this mean no, and they say it means no, do your 16 plaintiffs have standing? 17 MR. AFRAN: Yes. 18 THE COURT: Why? 19 MR. AFRAN: Number one, standing doctrine -- and we 20 didn't reach this issue generally attached at the outset of 21 litigation particularly when the interests at issue can be 22 asserted on behalf of third-parties. 23 THE COURT: And that's the Lujan case. 24 MR. AFRAN: Yes; and so, number one, we had standing 25 at the outset and we had standing during the hearing when they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

76 C875hedA argument 1 would not answer your Honor's questions in any guise 2 whatsoever. The answer was we can't answer those questions. 3 So, standing existed all throughout this case. If they now say 4 no after not saying no in the hearing and not saying no in the 5 motion for reconsideration and not saying no in their trial 6 brief, if now at the last hour in the trial they say no, that, 7 number one, it is not fair play, it is not credible. 8 THE COURT: But they might say that this means no. 9 MR. AFRAN: They might. 10 THE COURT: They might say this means no. They've 11 said it before. 12 MR. AFRAN: If this means no I would like to see the 13 word no in what is submitted to the Court because future 14 plaintiffs aren't going to order the transcript of this oral 15 argument and then go to their interrogator and say, look, I had 16 the transcript ordered and in the final argument, when the 17 Court finally put the question to the government, the 18 government said no, we didn't mean to detain them and that 19 tells us now what the law means. It is an unrealistic way of 20 giving notice as to proscribed conduct or for conduct that is 21 outside the statute. 22 The brief itself is not even realistic. In Fox, 52 23 years of administrative determinations as to other parties was 24 not deemed sufficient notice and now we are told a statement in 25 a brief that might be elaborated upon in oral argument might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

77 C875hedA argument 1 give us the standard to know what conduct is proscribable and 2 what is not. 3 The other point I would say is this: All this says 4 is -- well, going back to standing on Lujan, standing attaches 5 at the outset and especially where Justice Scalia in the 6 majority holding in Hicks and Board of Trustees says standing 7 is applicable to third-parties, and Broadrick makes the same 8 point, parties who are not before us because they share the 9 same expressional interests, where standing has existed at the 10 outset, where it has existed all throughout the case until oral 11 argument and finally, parties have juridical right to stand for 12 third-parties who are not here, clearly it is too late to say 13 no. Standing attaches in this case. 14 Thank you. 15 THE COURT: Thank you. Why don't we take a, for 16 counsel, if you guys leave and then don't come back we are 17 going to start without you because there are too many of you 18 guys to wait for all of you, but what we are going to do is 19 resume in, why don't we say, six minutes. I know it is not a 20 long break. I want you to go, come back in, and I want to go 21 straight into Mr. Torrance and Mr. Harwood, whoever is going to 22 speak. 23 (Recess) 24 THE COURT: Mr. Hedges' book came out on June 12th, 25 2012. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

78 C875hedA argument 1 MR. TORRANCE: I won't delay things further. 2 THE COURT: Here he comes. 3 MR. TORRANCE: Thank you, we appreciate the 4 accommodation. 5 I do want to start with the general principle, the 6 plaintiff's, their beginning principal, the uncontroversial 7 premise that a person who is charged with a crime, terrorist or 8 otherwise, is entitled to criminal process and entitled to a 9 statute that conforms to the criminal constitutional standards 10 and cannot be held by the Executive Branch alone. As we say, 11 that's not controversial. But equally controversial is that 12 when the United States is at war against an enemy armed group, 13 it can detain those who are part of that enemy armed group 14 through the end of hostilities. When the United States was at 15 war with Germany 70 years ago, the members of the German armed 16 forces were detained, without trial, and from the perspective 17 of 1942 for an indefinite period, so were members of the 18 co-belligerent forces, even if there was no authorization of 19 military force against them, and all of that is completely 20 within the Constitution. 21 THE COURT: Now, let me just ask you, so within the 22 Constitution you are talking about Article II. 23 MR. TORRANCE: All of that is okay within any part of 24 the Constitution. It is not forbidden by the Constitution. 25 The foreign affairs and military power, of course there is an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

79 C875hedA argument 1 interplay between the legislative and the executive branches 2 although it excludes the judiciary but, yes, when you have, as 3 both in World War II and here, you have congressional 4 authorization of military force and then you have the executive 5 using that authorization of military force to detain people 6 under the Laws of War. That is constitutional. And that has 7 never been controversial throughout our nation's history. 8 THE COURT: All right. Well, you would agree with me 9 that when President Lincoln suspended the writ of habeas corpus 10 in 1861 and imprisoned an American citizen, that was found by 11 Chief Justice Taney to have been, in fact, unconstitutional? 12 MR. TORRANCE: Yes, but there are -- 13 THE COURT: That's not been overruled. 14 MR. TORRANCE: That has not been overruled but that 15 case is quite different. First of all, the issue in Merryman 16 is which branch of government could suspend the writ. The 17 Constitution's plain language says it is Congress, President 18 Lincoln did it through unilateral executive action. So, that 19 was -- 20 THE COURT: Could Merryman have been arrested, in your 21 view, under some provision by President Lincoln that would have 22 been constitutional? Were they on a detour and frolic, if you 23 will, on the road of habeas corpus? 24 MR. TORRANCE: First, I don't like the word arrested 25 because that implies a criminal context, but could an American SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

80 C875hedA argument 1 citizen be detained under the Law of War? Yes. And, in fact, 2 quite a few were, certainly considering all of the confederate 3 forces to be U.S. citizens, they were all detained. But even 4 people in loyal states or border states were detained under the 5 Law of War. This goes even in more recent history, Ex parte 6 Quirin from the Supreme Court in 1940, affirms that the Law of 7 War can be applied to a U.S. citizen. Hamdi was a U.S. citizen 8 and was detained under the Law of War. 9 THE COURT: Well, Hamdi was detained under the AUMF as 10 originally passed which was under not the Law of War, it is 11 under the AUMF. I mean are you, maybe -- I want to make sure 12 the vocabulary that we are using following each other is 13 meeting on all fours. 14 There is the reference to the International Laws of 15 War which the al-Bihani case talks about and that case talks 16 about how the International Laws of War should not be 17 incorporated into domestic common law. And I know that you 18 folks in your briefing have said that you disagreed with that 19 and you disagreed with that at the time. Are you suggesting, 20 when you use the word Law of War, something different? 21 MR. TORRANCE: No. It is the same International Law 22 of War. 23 THE COURT: Okay, so -- 24 MR. TORRANCE: In Hamdi what the Court does is it 25 interprets the AUMF in light of long-standing principles of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

81 C875hedA argument 1 Law of War. 2 THE COURT: I read Hamdi as interpreting just the AUMF 3 presidential authority to detain one who was considered to have 4 been involved in, shall I say, the activities of 9/11. 5 MR. TORRANCE: An interpretation that the Court did 6 expressly with reference to the Law of War. 7 THE COURT: Under the Military Commission Act. 8 MR. TORRANCE: No, not under the Military Commission 9 Act. The MCA did not exist in 2004, first of all. 10 THE COURT: I'm sorry. It existed in '06. It was for 11 some of the later cases. 12 MR. TORRANCE: Right. And I will agree with what I 13 think Mr. Remes said, the MCA has no applicability in this 14 case. The detention standard that the Executive Branch has 15 enunciated goes back to 2004, slightly after Hamdi, and we 16 refer to that several times in our brief. The 2004 standard, 17 that differs from the current standard only by one word, the 18 word "substantially." 19 So, they were asserting the authority to detain people 20 who were part of Al Qaeda, Taliban and associated forces and 21 also those who supported. Now, actually the Court referred 22 earlier to expanding in March 2009 litigation filing, that 23 actually reduced the -- it actually narrowed the category of 24 those whom the Executive said it could detain, not those who 25 just supported but those who substantially supported. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

82 C875hedA argument 1 THE COURT: Let's just pause there and I'm going to 2 actually ask you to adjust the mic or lean into the mic so we 3 can get a better projection. 4 MR. TORRANCE: Actually -- 5 THE COURT: It is a short mic, just project a couple 6 of inches out. It would be easier. 7 Walk me through, if you will, the evolution of the 8 AUMF into the March 2009 filing? Because you have heard me 9 today, Mr. Torrance, talk about what I perceive to be an 10 original Congressional authorization under the AUMF and then 11 what I assume happened, but you will correct me, is I assume 12 that the Executive Branch then interpreted the AUMF over a 13 period of years from the initial AUMF authorization and 14 expanded, if you will, the AUMF to include, effectively, the 15 language, much of which has now been codified in 1021(b), and 16 that was put forward in the March 2009 brief. 17 Is that proximately correct or did it occur in another 18 way? 19 MR. TORRANCE: Well, I do -- I want to -- again, I 20 think I'm agreeing with Mr. Remes on this point. I don't 21 believe that we view the AUMF as having different iterations. 22 There is one AUMF and it has always included the authority to 23 detain enemy belligerents in the course of the armed conflict 24 as authorized by the AUMF. 25 THE COURT: So, in your view, just so I'm clear, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

83 C875hedA argument 1 1021(b)-2, which is what the, this lawsuit is about, a person 2 who was part of or substantially supported Al Qaeda and 3 Taliban, etc., etc., that, you believe, was encapsulated within 4 the original AUMF authorization? Because the words weren't 5 used so your view is it was encapsulated within. 6 MR. TORRANCE: That's right; and the history and 7 authorizations of military support that going back to the World 8 War II example. Immediately upon the passage of the 9 authorization of military force in 1941, upon the first 10 encounters with enemy armed services the United States began 11 detaining them. That's always been part of the authority to 12 use force under the Law of War. And similarly here, just to go 13 back to the question of walking through the evolution, it is my 14 understanding that immediately upon the passage of the AUMF, 15 and I'm trying to just glance at Hamdi to determine when 16 exactly he was detained but he was in the U.S. Naval custody in 17 January 2002, so -- 18 THE COURT: Yes. 19 MR. TORRANCE: -- not much time. It is my 20 understanding that it was an immediate interpretation of the 21 AUMF that as with every other AUMF within the nation's history 22 that the force that was authorized included the force to detain 23 the enemy belligerents and that has been a consistent position 24 of the United States government. 25 Now, Hamdi affirms that in 2004. Sometime after that, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

84 C875hedA argument 1 a few years after that, the Boumediene case comes out. 2 THE COURT: Which one? 3 MR. TORRANCE: Boumediene; and that case of course 4 says that there has to be habeas right for those who are 5 detained at Guantanamo. So, following that the government had 6 already, after Hamdi in a Department of Defense document that 7 we again refer to several times in all our briefs, that had 8 already enunciated a detention standard: Support or part of, 9 including associated forces, including direct support, 10 including everything except for the word "substantially." 11 THE COURT: So, it is the government's position that 12 the language which is codified in 1021(b)-2 was encapsulated 13 within the original AUMF that was passed shortly after 9/11? 14 MR. TORRANCE: Yes. That's right. 15 THE COURT: All right. 16 So then it is the government's view that it did not 17 evolve its interpretation of what military detention involved 18 over the years, that essentially it had that view back right 19 after 9/11 when the AUMF was passed. 20 MR. TORRANCE: At the very least the core view was the 21 same. As I say, the government narrowed it somewhat in 2009 22 and there may have been other fluctuations at the margins like 23 that. 24 THE COURT: Would you agree with me that the executive 25 branch would not have the right to expand the definition of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

85 C875hedA argument 1 military detention on its own, that it doesn't have the right 2 to do that? 3 MR. TORRANCE: Beyond what? 4 THE COURT: Let's assume for the moment that the AUMF 5 didn't have certain types of detention authority within its 6 bounds on September 11 or thereabouts. 7 MR. TORRANCE: Right. 8 THE COURT: If that's the case, that hypothetical is 9 the case, would you agree with me that the Executive Branch 10 doesn't, on its own, have the power to expand detention 11 authority? 12 MR. TORRANCE: I would say not necessarily for the 13 following reason: Mr. Remes referred to inherent Article II 14 authority and correctly noted that the government, at least 15 since 2009, is not asserting authority under the -- under 16 Article II directly. We are asserting the authority under the 17 AUMF. Now, that doesn't mean that we're abandoning the concept 18 that that authority might exist. It is just that as with, as 19 Courts often avoid different constitutional questions, the 20 branch has the same interest in avoiding constitutional 21 questions and it is simply not asserting that constitutional 22 authority here. 23 So, when, in the Court's hypothetical, you are 24 basically getting into a steal/seizure type of situation and 25 Judge Jackson, in his famous concurrence, discussed where you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

86 C875hedA argument 1 have situations where they have the military foreign affairs 2 national security power, that is something that is inherent in 3 the Executive Branch itself but then Congress also has foreign 4 affairs and military power -- 5 THE COURT: Right, but foreign affairs and military 6 powers is typically -- and I don't disagree with you that the 7 President has foreign affairs and military foreign affairs and 8 military powers and that he is, for foreign affairs -- 9 certainly his view predominates. And there is lots of case law 10 that is supportive of that. However, those cases that the 11 government cites are different from cases which talk about the 12 ability of the Executive Branch to interpret domestic military 13 detention in a particular way. 14 MR. TORRANCE: I'm not sure what domestic military 15 detention is. 16 THE COURT: 1021 is not just an exercise of the 17 president's foreign or diplomatic powers. 1021 also, or the 18 AUMF is also, if you are correct, would have allowed the 19 President to have engaged in military detention on American 20 soil. 21 MR. TORRANCE: I don't -- well, first of all, I don't 22 think that question has ever been reached because it has been 23 the practice of the government not to detain people apprehended 24 on U.S. soil in military custody. There have been two 25 instances in which that was the case for some time but both of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

87 C875hedA argument 1 them were then transferred into criminal proceedings and 2 convicted under normal criminal law. 3 So, that question has never been -- has never been 4 reached and, again, it is not a question that need be reached. 5 These are difficult questions about the independent authority 6 of each of the two branches that has foreign affairs power and 7 the extent to which Congress can limit one and whether, at some 8 point, its limitations on that foreign affairs power becomes an 9 intrusion on what has to be inherent in the President, those 10 are some very difficult questions that, again, need not be 11 reached in this case. 12 THE COURT: But you would agree with me that if the 13 executive branch goes too far and does something that is 14 unconstitutional in terms of military detention, that the Court 15 does have the power and indeed the obligation to enjoin that 16 act as unconstitutional, it is a co-equal branch of government? 17 MR. TORRANCE: Well, not necessarily, again, because 18 there are other remedies that are more appropriate, 19 particularly habeas after the fact as applied, there is an 20 after the fact as applied remedy for that. Enjoining 21 prospectively causes a whole separate powers concern. It means 22 that the president, who as far as I'm aware, has never been 23 directly enjoined -- 24 THE COURT: The cases you cite where the President has 25 not been directly enjoined were cases like Briggs, whatever it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

88 C875hedA argument 1 was, it was the boat and these go back into the 1800s and I 2 don't have any dispute with those cases but those cases were 3 about enjoining the President's diplomatic abilities, very 4 different, and his treaty ability to negotiate treaties so they 5 have to be passed by the Senate. Those cases are very 6 different from the President's ability to, for instance, just 7 decide what he thinks is appropriate in terms of the extent of 8 his ability to detain people in the name of national security. 9 MR. TORRANCE: Well, I don't think it has ever been 10 strictly in the name of national security. It is in the name 11 of an ongoing armed conflict which is a little more severe. 12 THE COURT: We are supposed to take an armed conflict, 13 terrorism, worldwide, occurs in the United States, also occurs 14 overseas, so it is not just ex-U.S., it is also within the 15 boundaries of the United States. Do you agree, as a principled 16 matter, that the President can't, in the name of the national 17 security of the United States, just decide to detain whomever 18 he believes it is important to detain or necessary to detain to 19 prevent a terrorist act within the United States? 20 MR. TORRANCE: That does -- yes. I mean, that seems 21 quite broad. That seems to simply just do it unilaterally 22 within the United States especially if citizens, that would be 23 overly broad. But, as I say, the practice of the government 24 consistently throughout the 10 years except for the two cases 25 temporarily has been not to keep people apprehended in the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

89 C875hedA argument 1 in military custody to avoid these questions. 2 THE COURT: Now, would you agree that -- we don't know 3 if Romney or Obama is going to be elected in the next 4 presidential election. We don't know. 5 MR. TORRANCE: I don't know. 6 THE COURT: Okay. 7 And it is reasonable to assume, people can take -- 8 have their views, but it is reasonable to assume that I won't 9 be president next. 10 MR. TORRANCE: Yes. 11 THE COURT: Okay. 12 Would you agree with me that a different 13 administration could change its mind with respect to whether or 14 not 1021 would be applied in any way to American citizens; that 15 the signing statement, the Obama signing statement is not 16 binding, legally, on a subsequent administration as a matter of 17 law? 18 MR. TORRANCE: Is that possible? Yes, but it is 19 speculative and conjecture and that cannot be the basis for an 20 injury in fact. 21 THE COURT: Would you agree with me that there is 22 nothing legally binding on a Romney administration terms of the 23 Obama signing statement as a matter of law? 24 MR. TORRANCE: I think that's correct. Yes. 25 THE COURT: Has anybody ever been detained under 1021? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

90 C875hedA argument 1 MR. TORRANCE: Your Honor asked that at the outset and 2 my understanding of the practice is detention in ongoing 3 military armed conflict is that they don't name the source, 4 whether it is the AUMF or 1021. They don't have a piece of 5 paper that checks a box for one or the other. 6 THE COURT: So, let me ask you -- I'm sorry. I know I 7 pepper you with questions but you know I did this last time 8 too. 9 MR. TORRANCE: Please. 10 THE COURT: Here is this statement that you have on 11 page 2 of your papers which is: They cannot point to a single 12 example of the military's detaining anyone for engaging in 13 conduct even remotely similar to the type of expressive 14 activities they allege could lead to detention. 15 It is at the top of your second page. 16 MR. TORRANCE: Right. 17 THE COURT: So, do you know whether or not anybody has 18 been detained for any type of expressive activities under 1021 19 or under the AUMF? 20 MR. TORRANCE: Right. I don't believe -- I believe 21 that they cannot show that because it is not true. Now -- 22 THE COURT: I'm sorry. I didn't hear. 23 MR. TORRANCE: They cannot show that because it is not 24 true. I'm not sure anything comes close to the kind of 25 activities that they allege that has led to detention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

91 C875hedA argument 1 Now, to make sure we are all in full candor here, the 2 only case that I'm aware of that could conceivably come close 3 to that is there is a detainee by the name of al-Bahlul who has 4 been convicted by military commission of crimes against the Law 5 of War. He was charged with quite a number of things including 6 conspiracy to murder and participation in the 9/11 attacks and 7 convicted of those things, but one of the acts that supported 8 that conspiracy charge against him was that he was, in his own 9 words, the media man for Al Qaeda and he made a propaganda 10 video that documented the bombing of the U.S.S. Cole, and he 11 also made what are called martyrs wills which are video 12 statements of the 9/11 bombers -- excuse me, the 9/11 attackers 13 that were designed both as propaganda and, essentially, to lock 14 them into their conduct and to make sure that they would go 15 through with it. That kind of -- so, he was a propagandist, he 16 was a media relations person, and that was his role within 17 Al Qaeda. Now, he was, as I said, convicted of the crimes of 18 Laws of War by the Commission that is up for review with the 19 D.C. Circuit. 20 THE COURT: Habeas? 21 MR. TORRANCE: No, direct review of the military 22 commission's conviction which is provided, I believe, by the 23 Military Commission Act which is under review in the D.C. 24 Circuit, it is now being re-briefed in the D.C. Circuit. 25 THE COURT: Do you know if anyone has been detained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

92 C875hedA argument 1 under the AUMF or 1021 or, generally speaking, for any 2 journalistic activities apart from this individual that you 3 have named? 4 MR. TORRANCE: I am not. No, I do not. 5 THE COURT: You don't know one way or the other? 6 MR. TORRANCE: I don't believe that is the case. I 7 think someone would have told me if it were. I am not aware of 8 any case even remotely similar to that. 9 THE COURT: When you say case, if we think of all the 10 individuals who have been detained under military detention, I 11 am talking about a broad group of people, do you know whether 12 or not any individuals who have been detained under military 13 detention for the AUMF have been detained for any journalistic 14 activities? 15 MR. TORRANCE: No. 16 THE COURT: You don't know? 17 MR. TORRANCE: I don't know. 18 THE COURT: How about for religious activities? Do 19 you know whether or not anybody had been detained under the 20 AUMF anywhere under, for military detention and placed in 21 military detention for any religious activities? 22 MR. TORRANCE: I don't quite know what religious 23 activities means. I think a number of the detainees would say 24 they were religiously inspired to wage war against the United 25 States. If that was the motive -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

93 C875hedA argument 1 THE COURT: Purely nonviolent religious activists. 2 MR. TORRANCE: I don't know of any cases and don't 3 believe there are any cases. 4 THE COURT: How about for nonviolent associational 5 activities? Do you know whether or not anybody has been placed 6 in military detention under the AUMF or 1021 for non-violent 7 purely associational activities? 8 MR. TORRANCE: Again, I don't know what that means. 9 In the al-Bihani case one of the allegations -- again, there 10 are many allegations against him but one was that he was the 11 cook for the front line troops so in that sense he was 12 associated with them. 13 THE COURT: He carried a rifle though. 14 MR. TORRANCE: He carried a rifle, but I believe the 15 government asserted that in that case even had he not carried a 16 rifle, simply traveling to and associating with and cooking for 17 these enemy belligerents would make him detainable. So, yes, 18 he was clearly part of Al Qaeda or the associated force and 19 again, let me correct myself, either the Taliban or an 20 associated force, the 55th Arab Brigade which was considered an 21 associated force in that case. But part of what made him part 22 of that was this association as being the cook. Even without 23 carrying the rifle, he would have been detainable. 24 THE COURT: So, is it your view that it is certainly 25 possible that among the individuals who have been detained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

94 C875hedA argument 1 under the AUMF, there could be some individuals detained for 2 nonviolent or other types of associational activities not 3 having to do with cooking? 4 MR. TORRANCE: Well, again, I just don't know what 5 associational means. I don't know -- I don't believe that 6 there has been anyone detained for what we would generally -- 7 just advocating on behalf of Al Qaeda or saying something in 8 support of Al Qaeda. If that's what the Court means by 9 associational activities I don't believe that there is anyone. 10 But, you know, when we are talking about a battle field, what 11 an association is can mean a lot of different things so I'm not 12 able to make a blanket statement without knowing precisely what 13 the Court means by that. Associating with -- you know, under 14 general domestic First Amendment law simply joining an 15 organization is protected activity. Joining Al Qaeda is not 16 protected activity. Somebody who is a member of or part of 17 Al Qaeda is getting detained. 18 THE COURT: How about somebody who is just hanging out 19 with Al Qaeda? 20 MR. TORRANCE: Depending on what they're doing. 21 THE COURT: What does it depend on? Give me an 22 example of what would be a problem and what wouldn't be a 23 problem. 24 If somebody is just hanging out with Al Qaeda -- let 25 me not use that word, I don't mean to be too colloquial. There SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

95 C875hedA argument 1 is somebody who is not a part of Al Qaeda but is in the 2 presence of Al Qaeda. Are there types of types of activities 3 that have resulted in military detention? Let's take that 4 first. 5 MR. TORRANCE: Right. Without saying they have 6 resulted under the Law of War, particularly the Geneva 7 Convention, the Third Geneva Convention, Article 4A4, speaks 8 about something very similar to what the Court just referred 9 to. It refers to people who accompany the armed forces without 10 actually being members thereof. Now, let me just say as a 11 preface, Article 4 of the Third Geneva Convention governs 12 international armed conflict, people taken as prisoners of war 13 in that term of art meaning and the meaning of Law of War of 14 prisoner of war. And so, it is not directly applicable because 15 it would not be applicable in a non-international conflict but 16 it is, by analogy to that, the Law of War does support people 17 who accompany the armed forces without actually being members 18 thereof. And I'm quoting from the Geneva Convention here such 19 as civilian members of military aircraft crews, war 20 correspondents, supply contractors, members of labor units or 21 of services responsible for the welfare of the armed forces. 22 So, those people would be, even in an international 23 conflict, they can be taken as prisoners of war. 24 THE COURT: They could. 25 MR. TORRANCE: They could. In a non-international SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

96 C875hedA argument 1 conflict the same analogy principle would apply. 2 THE COURT: Let's talk about 1021. And to the extent 3 that I'm assuming you're analogizing between the principles you 4 have just talked about in 1021, is it the case that being in 5 the presence of Al Qaeda could result in detention under 1021? 6 MR. TORRANCE: Well -- 7 THE COURT: It could. 8 MR. TORRANCE: Again, there are so many facts and 9 circumstances that could support that. There is case law in 10 the D.C. Circuit that says being a guest at an Al Qaeda guest 11 house is powerful evidence that that person is part of 12 Al Qaeda. And there are reasons for that because, generally, 13 Al Qaeda doesn't put out a vacancy sign at its guest houses and 14 people who know how to find those guest houses know that for a 15 reason. So, that becomes evidence. But that kind of travel to 16 a guest house alone, I believe, has been held by the D.C. 17 Circuit to support detention. So, if that's what you mean by 18 just hanging out -- 19 THE COURT: Presence of. I want to use the words 20 presence of. I switched. 21 MR. TORRANCE: Again, it is going to depend on what 22 they're doing and the specific facts. 23 If somebody is peacefully standing in the middle of 24 Afghanistan and Osama Bin Laden happens to walk by, no. But, 25 there is going to be a whole lot of shades of gray between the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

97 C875hedA argument 1 one and the other. 2 THE COURT: You can't walk by him anymore. 3 MR. TORRANCE: He can't walk by anymore. That's true. 4 THE COURT: But are you aware of anybody who has been 5 detained under the AUMF or 1021 who was captured or detained 6 not on the field of battle? Do you know one way or the other? 7 MR. TORRANCE: Well, not a hundred percent sure. I 8 did refer to earlier -- I did refer to earlier the U.S. citizen 9 Padilla who was detained for some time under Law of War 10 authority and, as I say, that was then ended and he was 11 transferred to criminal custody and convicted but he was 12 apprehended in Chicago. So, at least for a time there was one 13 but I don't know if there is any other. And I don't know 14 whether that's been a practice or if that's been a practice 15 that's been disavowed. So, I just don't know the answer to 16 that. 17 THE COURT: You're familiar, obviously, with the 18 activities of the plaintiffs in this case? 19 MR. TORRANCE: As they allege them. 20 THE COURT: As they not just allege them but as 21 they've testified to them here in court. Are you aware of 22 anyone who has been detained? And by that I don't mean for 23 whom there has been a reported lawsuit citation, who has 24 engaged in similar activities? 25 MR. TORRANCE: No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

98 C875hedA argument 1 THE COURT: Let's go to this point that I was talking 2 about with Mr. Afran before the break which is what you mean on 3 page 20 of your brief where you talk about independent 4 journalistic activities and whether or not that just means no. 5 MR. TORRANCE: It just means no. 6 And I will say, Mr. Afran makes a point about how 7 standing attaches at the outset and this is true as a matter of 8 law, it does not attach, though, for prospective relief which 9 is the only relief they can obtain. The Lyons case, City of 10 Los Angeles v. Lyons talks about how to have standing for 11 prospective relief you need to allege future effect. So, 12 whether it attached at the outset or not it is not present now 13 and SEC v. Davis talks about you have to have alleged standing 14 for each form of relief that you are stating and so prospective 15 relief, they do not have standing. Of course our position is 16 that it was not our burden to make that representation and so 17 they never had standing in the first place. But, regardless, 18 the standing inquiry should be over at this point. 19 THE COURT: Let me back up for a second because I want 20 to understand the difference between prospective and 21 retrospective and your statement on page 20, which I will take 22 now as a no, and that is the as a matter of law statement -- 23 MR. TORRANCE: Correct; and the following sentence, 24 that whole paragraph. 25 THE COURT: It is the whole paragraph, right. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

99 C875hedA argument 1 I have assumed that it has been the government's position that 2 they are not making a blanket statement that there are no 3 activities that are journalistic by these five paragraphs that 4 would not subject them to 1021. What you're saying here is 5 that there is nothing in the record so far that has indicated 6 that 1021 would apply. 7 MR. TORRANCE: That's what we say in the second 8 sentence but I do think we say something a little more broad in 9 the first sentence which is that these independent journalistic 10 activities and independent public advocacies would not subject 11 someone to, as they describe them, would not subject them to 12 Law of War of detention. 13 So, we use the word independent and we say use the 14 word "without more" to separate ourselves from the al-Bahlul 15 case that I referred to a moment ago in which the media 16 activities of that particular defendant in the military 17 commissions proceeding were part of his conspiracy to commit 18 murder. So, that becomes a whole different thing. That person 19 was a sworn member of Al Qaeda and committing crimes against 20 Law of War but those often involve media acts, propaganda acts, 21 recruitment through media, recruitment through advocacy, 22 through videotapes and what would be called speech. That's a 23 whole different thing. 24 THE COURT: And so you're saying that that type of 25 activity which you have just described would fit within the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

100 C875hedA argument 1 phrase "without more." 2 MR. TORRANCE: The type of activities for 3 Mr. al-Bahlul. 4 THE COURT: Yes. 5 MR. TORRANCE: That would constitute more. 6 THE COURT: More, yes. 7 MR. TORRANCE: That would not -- 8 THE COURT: What else? 9 MR. TORRANCE: We would not be bound by that. 10 THE COURT: What else? What other kinds of activities 11 would these five plaintiffs have to engage in that would 12 subject them to 1021? 13 MR. TORRANCE: Picking up a rifle, shooting at 14 American soldiers. All sorts of acts of war. All sorts of 15 belligerent activities on behalf of an enemy. 16 THE COURT: How about propaganda? 17 MR. TORRANCE: I just want to say that of course there 18 is no indication that they would do that but we need to -- it 19 is not unreasonable for us to say "without more" because we 20 have no idea what they intend to do or would do or what someone 21 else similar to them would do and we can't insulate anybody 22 from any future activity. 23 THE COURT: How about propaganda? 24 MR. TORRANCE: Well, again, first of all, I'm going to 25 say propaganda, it depends again on the relationship to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

101 C875hedA argument 1 Al Qaeda. 2 THE COURT: Let's say propaganda on behalf of 3 Al Qaeda. 4 MR. TORRANCE: But what does on behalf of mean? It 5 depends on the nexus of connectivity to it and this is why we 6 have been so reluctant and supported by the case law that says 7 the Court should not decide constitutional questions based on 8 hypotheticals; that the gray area, that there is always going 9 to be a gray area at the margin of a statute and that's 10 perfectly fine for vagueness and for First Amendment under 11 Holder, under all the other cases, and we really don't believe 12 that we can be forced to make that gray area a sharp black and 13 white. It is not that -- that is just not constitutional law 14 to do that. 15 THE COURT: What Mr. Afran was saying is this is not 16 the margin of the statute, it is the heart of the statute 17 because 1021(b)(2) refers to substantially support, support 18 means in part to advocate, and that substantially support 19 implicates conduct. Conduct is protected by the First 20 Amendment unless it runs afoul of the very few narrow 21 exceptions to First Amendment protection so it is not fringe. 22 He argued it is core. 23 MR. TORRANCE: That's just not a fair reading of the 24 statute. It is a reading of the statute that takes all context 25 out of it. What we are talking about is a statute that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

102 C875hedA argument 1 directly refers to the Law of War, directly refers to the AUMF, 2 directly refers to Al Qaeda and the Taliban. All of these 3 things are contextual indicators that support means supporting 4 the military belligerency, supporting -- supporting the fight 5 against the United States, the kind of belligerency against the 6 United States that would lead to one being detained under the 7 Law of War as people have been detained under the Law of War 8 for centuries. 9 So, to read support, to just take a dictionary 10 definition without paying any attention to the context of this 11 statute and in fact the words of the statute that refer to war 12 and military force, it simply is just not a reasonable reading 13 of the statute. 14 Also, I would point to the statement in Holder that 15 says if the enforcement authority offers a limiting 16 instruction, the Court has to take that into effect. 17 So, what we are saying is that that context has to 18 inform the meaning of the word substantially support and direct 19 support and that it is not reasonable to read it to mean the 20 kind of things that Mr. Afran referred to. 21 THE COURT: Also, the Supreme Court, though, said in 22 Stevens, and this is Chief Justice Roberts, that the government 23 said, I'm quoting from the opinion page 1591, the government 24 said it would not bring suits for certain conduct. The 25 government hit the theme hard invoking its prosecutorial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

103 C875hedA argument 1 discretion but the First Amendment protects against the 2 government, it does not leave us at the mercy of no less 3 obliged. We would not uphold an unconstitutional statute 4 merely because the government promised to use it responsibly. 5 There is a difference between prompting to use it responsibly 6 and making a specific representation to a particular kind of 7 conduct. 8 Holder had something to say about this. In Holder the 9 Court relies on a government statement that the statute did not 10 prohibit independent advocacy of any kind and so that's, by 11 far, the more recent Supreme Court statement on this kind of 12 representation. 13 THE COURT: Interestingly, Roberts was involved in 14 both of those cases. Holder, of course, is a series of 15 definitional standards that were attached to the language 16 there. There is also, and maybe you're familiar also with, I 17 think it is the Nitke v. Gonzalez case. 18 MR. TORRANCE: I am quite familiar with that. I 19 litigated that case. 20 THE COURT: You argued it, didn't you? 21 MR. TORRANCE: Yes. 22 THE COURT: In that case, and I think you may have 23 been on the other side of that case as well, you argue there 24 assurances of the government, and the Court there said that 25 mere assurances by the government that it does not seek to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

104 C875hedA argument 1 enforce the statute do not, ipso facto, make such a fear 2 unreasonable because there is nothing that prevents the 3 government from changing its mind and the resulting uncertainty 4 is sufficient to establish the reasonableness of the fear. 5 What would you have me do with that kind of language? 6 MR. TORRANCE: Well, I have to admit I don't remember 7 what we said -- exactly what we said but, again, I think there 8 is a difference between just saying -- between just saying, 9 well, enforce it in a kind of broader, responsible way as 10 opposed to simply saying in a more specific way that the 11 statute does not apply to this particular type of protected 12 conduct. 13 THE COURT: So, would you agree with me that the 14 statute, and here we are talking about 1021(b)(2), is open to 15 interpretation? 16 MR. TORRANCE: No. We think it is quite clear, 17 actually. 18 THE COURT: So you think it is very clear. 19 MR. TORRANCE: Yes. 20 THE COURT: Are you absolutely confident that the 21 individuals who run the next Department of Justice will believe 22 that the clarity of your interpretation is the same as the 23 clarity of theirs? 24 MR. TORRANCE: Yes, because the statute in and of 25 itself says all they're doing is affirming the AUMF detention SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

105 C875hedA argument 1 authority, that they are specifically saying that Congress 2 specifically said they are not expanding or limiting. Those 3 are clear and unequivocal words and I don't believe that they 4 can be escaped. 5 THE COURT: So you don't believe it is open to 6 interpretation? 7 MR. TORRANCE: Anything is open to some interpretation 8 but we believe it is crystal clear that Congress is not 9 intending to change the law. 10 THE COURT: Well, here is the -- I hear your position. 11 The issue I'm having is I'm trying to reconcile the fact that 12 the AUMF, as originally drafted in 9/11, right after 9/11, 13 which was limited to 1021, the beginning of 1021, right? 14 MR. TORRANCE: I think. Your Honor may have misspoke 15 there by saying it was limited to -- 16 THE COURT: So, it says, or whatever the AUMF says, 17 the AUMF provides that the President is authorized to use all 18 necessary and appropriate force against those nations, 19 organizations or persons he determines planned, authorized 20 committed or aided the terrorist attacks that occurred on 21 September 11, 2001 or harbored such organizations or persons in 22 order to prevent any future acts of international terrorism 23 against the United States by such nations, organizations or 24 persons. 25 That's the AUMF; September 18, 2001, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

106 C875hedA argument 1 MR. TORRANCE: Yes. 2 THE COURT: Now, so 1021(b)(2) does not require that 3 the individuals who are detained had anything to do with any 4 individual associated with 9/11. Would you agree? 5 MR. TORRANCE: That is -- there are layers in which 6 there is an association with 9/11 but a direct association. 7 THE COURT: Correct. 8 MR. TORRANCE: No. Mr. Hamdi was not alleged to be 9 involved in 9/11. But he was still upheld -- his detention was 10 upheld by the Supreme Court. 11 THE COURT: You would agree with me that 1021(b)(2) 12 does not require that an individual have -- I will quote the 13 language -- planned, authorized, committed or aided terrorist 14 attacks that occurred on September 11, 2001. 15 MR. TORRANCE: The individual need not have done that. 16 That's correct. 17 THE COURT: Okay. And the individual need not have 18 harbored such organizations or persons? 19 MR. TORRANCE: That's correct. 20 THE COURT: Okay. 21 So, that's the AUMF. Now here is my issue. So, if 22 1021 doesn't require what we just talked about, which is a 23 connection to 9/11, then how is it the same? Because September 24 18, 2001 Congress passes that AUMF. I get it. December 31st, 25 2011 they pass the MDAA 1021(b)(2) which strikes me as much SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

107 C875hedA argument 1 broader so I don't see them as one and the same. 2 MR. TORRANCE: Right. Here is how to see them as one 3 in the same. First of all, because Hamdi says that the 4 detention authority reaches well beyond but second of all the 5 textual reason to say that they're one in the same there are 6 two textual phrases in the AUMF, first of all, it authorizes 7 force against the organizations, whether they committed the 8 terrorist act or whether they harbored the terrorist. 9 Now, if force is authorized against an organization, 10 say, the Taliban, anyone who joins that organization after the 11 fact, force against that individual is still authorized. The 12 organization is not frozen in time on September 11th or 13 September 18th, 2001. 14 THE COURT: Hold on. 15 MR. TORRANCE: The organization is ongoing. 16 THE COURT: That's interesting. 17 So, what you're saying is once the Taliban or Al Qaeda 18 engaged in 9/11, every individual associated with them 19 thereafter can be considered to have also, somehow through 20 layers, have been involved in 9/11? 21 MR. TORRANCE: Not to have been involved but to be 22 subject to the authorization of military force. There is a 23 difference. It is not an accusation that somebody who joined 24 Al Qaeda yesterday and is detained tomorrow was himself 25 involved but it is a matter of saying Al Qaeda was involved and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

108 C875hedA argument 1 this person belongs to or, in the words of the statute, is part 2 of Al Qaeda, and therefore the United States can exercise force 3 as part of exercising force against Al Qaeda, can exercise 4 force against that individual regardless of the date on which 5 he joined. He could have been born -- he could have been 5 6 years old in 2001 but the fact remains that he joined Al Qaeda, 7 he can be detained. 8 So, it is the organization as a whole that is subject 9 to the authorization of military force. 10 THE COURT: Okay. I hear you. Let me ask you then, 11 if that's right, if I limited 1021(b)(2) specifically to 9/11, 12 I wouldn't be doing any interpretive damage because it has a 13 lineal connection to 9/11 by virtue of what you just said, 14 right? 15 MR. TORRANCE: It has a lineal connection to the AUMF 16 which authorizes force against, as your Honor just read it, 17 which specifically refers to 9/11. So, in that sense, yes, it 18 can be clearly, on its terms -- 1021 can, on its terms, be 19 limited to affirming the AUMF's detention authority. 20 THE COURT: I want to do something a little different. 21 I want to say can I take 1021(b)(2) and say that 1021(b)(2) can 22 only be enforced against individuals who planned, authorized, 23 committed or aided the terrorist attacks for 9/11. 24 MR. TORRANCE: That would be wrong. 25 THE COURT: Okay. Let me ask you one more question: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

109 C875hedA argument 1 Could I limit 1021(b)(2) to individuals who harbored such 2 organizations or persons who were involved in 9/11? 3 MR. TORRANCE: No. 4 THE COURT: I don't understand how they're the same 5 thing. 6 MR. TORRANCE: Because, as I say, the authorization of 7 military force extends to the whole organization. Your Honor 8 asked me the two questions in terms of the individuals, 9 individuals who planned, committed, etc., etc. They may not 10 be -- they may not be the individual who planned or committed 11 9/11. They may be individuals who joined the organization that 12 planned, committed 9/11. 13 So, what your Honor just asked me in terms of 14 individual, then that would be incorrect as to a matter of law 15 as to those individuals, but -- 16 THE COURT: Okay, so. 17 MR. TORRANCE: 1021 ties itself to the organizations 18 against whom -- 19 THE COURT: Let me -- 20 MR. TORRANCE: Part of the conceptual reason is you 21 can apply most military force against an organization or a 22 state or an entity but detention can only be applied against an 23 individual, so that's why they have to be phrased in different 24 ways. 1021 is phrased in ways that refers to individuals who 25 are part of or substantially support Al Qaeda, Taliban forces. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

110 C875hedA argument 1 The AUMF is broader than that. The AUMF encompasses all sorts 2 of military force including the actual force, killing people or 3 exercising military force against these organizations, their 4 property, the people who belong to them, whatever else it is. 5 But, the reason for the difference in phrasing is because of 6 the nature of detention and how it can only be against 7 individuals. 8 The other thing I want to point to textually is the 9 phrase: Necessary and appropriate force against those nations, 10 organizations or persons. That would be, you know, if one is 11 exercising -- so, the President determines after the AUMF that 12 the Taliban and Al Qaeda are subject to this military force. 13 Now, if the United States is waging or in conflict against the 14 Taliban and, you know, they're interspersed with separate but 15 supporting militias such as in al-Bihani 55th Arab Brigade, if 16 the United States is in a firefight with these people there are 17 no distinctions between them. The United States can exercise 18 military force against both the Taliban in that situation and 19 what are now called the associated force or somebody who, in 20 that situation, is substantially supporting them. 21 So, the phrase necessary and appropriate force 22 encompasses, also gives some leeway in applying this to people 23 who are actually on the field of combat in that kind of 24 belligerent relationship. 25 THE COURT: But it could be applied to people not on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

111 C875hedA argument 1 the field of combat? 2 MR. TORRANCE: What could be applied? 3 THE COURT: The AUMF. 4 MR. TORRANCE: Well, depending -- in what sense? In 5 the detention sense? Probably, yes. I think that's right. 6 THE COURT: Yes. That's the sense I was talking 7 about. 8 So, when did "directly support" come into the 9 government's interpretation of the AUMF? 10 MR. TORRANCE: In the 2004 Department of Defense 11 articulation of the detention standard that we referred to, it 12 is in footnote 5 on page 5 of our current brief but it is in 13 all our briefing before, I'm quoting from the D.C. Circuit case 14 of Parhat for which an attorney is quoting the 2004 documents 15 here, but the standard there is an individual who was part of 16 or supporting Taliban or Al Qaeda forces or associated forces 17 that are engaged in hostilities against the United States or 18 its coalition partners including any person who has committed a 19 belligerent act or who has directly supported hostilities in 20 aid of enemy armed forces. 21 So, that is essentially identical except for the word 22 "substantially" in front of "support." Essentially identical 23 to the March 2009 filing which, and just to correct Mr. Remes 24 on a point that was just a few months later published in a 25 published document referred to in footnote -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

112 C875hedA argument 1 THE COURT: 16? 2 MR. TORRANCE: Is it 16? No. Sorry, footnote 3 of 3 our brief, there is a published document and I probably should 4 have supplied that but the addendum that we referred to there, 5 and I am happy to supply the Court with that document, but that 6 applies the same standard beyond Guantanamo. So, the idea that 7 this is simply limited to Guantanamo is not correct. 8 But, anyway, going back, just to going back to the 9 2004 standard, that's the first articulation of which I am 10 aware that direct support comes into play. 11 THE COURT: Okay. In your view, was direct support 12 encompassed within the AUMF authority as passed on September 13 18th, 2001? 14 MR. TORRANCE: Yes. 15 THE COURT: Now, footnote 16, let's talk about the 16 al-Bihani case and the Law of War principles. 17 The al-Bihani case says, the D.C. Court of Appeals 18 says that the Law of War should not be pulled into the domestic 19 common law and that it would be ill advised because it needs to 20 be very flexible and you disagree with -- you, the government 21 disagree with that. Are you asking me in the Southern District 22 first and then ultimately the Second Circuit to disagree with 23 the D.C. Circuit on this point? 24 MR. TORRANCE: No. It is not necessary to do that. 25 First of all, the question is really moot at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

113 C875hedA argument 1 point. If the Court were to read perhaps Cortez, the en banc 2 denial in al-Bihani, Judge Kavanaugh, who was part of the panel 3 and who was part of the majority -- as the Court said the Law 4 of War should not be part of domestic law -- wrote a long 5 concurrence in which he explains his views on that point. One 6 of the things he said is that if the statute specifically 7 refers to the Law of War, then it is a whole different question 8 but the AUMF does not refer to the Law of War so that's at 9 least part of the reason why he reached a conclusion that the 10 AUMF, the detention authority under the AUMF should not 11 incorporate the Law of War. 12 THE COURT: And so it shouldn't incorporate it here. 13 MR. TORRANCE: No, because 1021 does refer to the Law 14 of War in the sense that Judge Kavanaugh referred to in his 15 concurring opinion. 1021 now, as a statutory matter, refers to 16 Law of War several times. 17 THE COURT: Here is the conundrum. On one hand the 18 AUMF is not different from 1021. On the other hand, 1021 is 19 different from the AUMF. 20 MR. TORRANCE: No, not a matter -- it is a matter of 21 Congress agreeing with the Executive. It is a matter of 22 Congress just saying we are -- we are, and it is not only a 23 matter of using the phrase Law of War, it is against acting 24 against that background of consistent executive practice. The 25 government has consistently, in accordance with Hamdi, says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

114 C875hedA argument 1 that this is going to be informed by the Law of War. This 2 detention authority will be informed by the Law of War. And so 3 Congress, in adopting the identical language that the executive 4 has used, brings all of those associations with it and is 5 agreeing with the Executive and putting its imprimatur on the 6 executive's view that the Law of War will inform this detention 7 authority. 8 So, it is not a matter of -- it is a matter of just 9 disagreeing, it is taking a different view than the two Judges 10 in the D.C. Circuit took on this particular point. 11 THE COURT: So, 1021, what you are referring to is C, 12 which is disposition under the Law of War which is really 13 talking about military detention and what happens to a person 14 under, specifically, A in terms of detention. 15 MR. TORRANCE: I'm not sure -- I think there are 16 several references to the Law of War but in A to talk about 17 pending disposition under the Law of War but, yes, C also 18 refers to the Law of War. 19 THE COURT: But B does not. 20 MR. TORRANCE: What is that? 21 THE COURT: B does not. 22 MR. TORRANCE: That's true, but the statute has to be 23 read as a whole. It is a fundamental principle of statutory 24 construction that the statute has to be read as a whole. We 25 can't just take sections or even paragraphs, subsections or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

115 C875hedA argument 1 even paragraphs out of the statute and, as a whole, there is a 2 clear reference that Congress was contemplating Law of War. 3 THE COURT: Let me ask you. You had said in your 4 papers that you disagreed with my statement 1021 is like a 5 criminal statute. 6 MR. TORRANCE: Right. 7 THE COURT: Okay. 8 Are you aware of any provision, constitutionally, 9 which allows for the incarceration of an American citizen 10 without trial? 11 MR. TORRANCE: It depends on what incarceration means. 12 The military detention, yes, that can be -- in Hamdi the Court 13 specifically recognized that a U.S. citizen, such as the 14 petitioner in that case, could be detained as an enemy 15 belligerent. The citizenship doesn't matter. What matters is 16 that he had joined an enemy armed force. 17 THE COURT: How about on American soil? So, because 18 eventually Padilla was sent to -- was criminally prosecuted. 19 MR. TORRANCE: Right. 20 THE COURT: Are you aware of any situation in which 21 under the Constitution an individual, on American soil, can be 22 incarcerated without trial? 23 MR. TORRANCE: Well, the Quirin case from the 1940s, 24 those were members of German armed forces who infiltrated the 25 continental United States and were apprehended in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

116 C875hedA argument 1 continental United States with the intent, as they were accused 2 and then later convicted of, of committing belligerent acts 3 against the United States; acts of sabotage I think it was. 4 Now, they were tried by a military commission. So, was there a 5 trial? Yes, there was. But the same principle that one can 6 apply the Law of War to a U.S. citizen apprehended on U.S. 7 soil, if he can be tried by military commission and convicted 8 of a crime against the Law of War, then afortiori he can be 9 detained, the lesser remedy of detention would apply to him 10 too. The Law of War would provide detention for that U.S. 11 citizen apprehended on U.S. soil. As it was, of course, he was 12 held pending his Military Commission trial. 13 THE COURT: Let's take that to an extreme, a logical 14 extreme. That would suggest that you could have an 15 interpretation of the AUMF and 1021(b)(2) that an individual 16 who is American on American soil, in New York City, could 17 substantially support an associated force and then be subject 18 to military detention but for the Obama signing statement. 19 MR. TORRANCE: It is not just but for the Obama 20 signing statement. There has been consistent executive 21 practice not to do that. It is also not at all clear that 22 substantial support could extend to anything that's in -- that 23 is not in proximity to the battlefield. 24 THE COURT: Where does it say that? 25 MR. TORRANCE: It doesn't say that but, as I say, it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

117 C875hedA argument 1 is not clear that that could be the case. So, I think that 2 hypothetical is not at all likely. In any event, that person 3 would clearly be entitled to habeas and would have a judicial 4 review in that context. 5 THE COURT: You're familiar, of course, with the 6 Korematsu case. 7 MR. TORRANCE: Yes. 8 THE COURT: Which many people think of as an 9 embarrassment, the internment of the Japanese case during World 10 War II. The Supreme Court case that provides if we confine 11 military expedience by the Constitution, neither would distort 12 the Constitution to approve all the military may deem to be 13 expedient. This is what the Court appears to be doing, whether 14 consciously or not. I cannot say from any evidence before me 15 that the orders of General DeWitt were not necessarily 16 expedient military precautions, nor could I say that they were. 17 But even if they were permissible military procedures, I deny 18 that it follows that they are constitutional. If, as the Court 19 held today does follow, then we may as well say that any 20 military order will be constitutional and have done with it. 21 So, the issue I have is sort of analogous to that 22 which is if we extend the government's reasoning relating to 23 1021 to its logical conclusion, then it strikes me that the 24 government, and here I mean the President, the Executive 25 Branch, would have the ability to make determinations about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

118 C875hedA argument 1 military detention extremely broadly and without a lot of 2 definition. 3 MR. TORRANCE: Right. Nobody is denying that the 4 Constitution applies to the President's action even in military 5 matters. It is really a question of the remedy. It is a 6 question of, perhaps, in fact it seems to be the historical 7 consensus that Korematsu was wrongly decided but they should 8 have been entitled to their liberty through habeas remedy, not 9 through some prospective injunctive relief that would put the 10 threat of Contempt of Court from a single judge over the entire 11 military operation of the United States. To the extent the 12 military acts unconstitutionally, which certainly it is capable 13 of doing, that can be remedied through as applied individual 14 habeas challenges. 15 THE COURT: So, in the government's view it would be 16 an adequate remedy for an individual who was wrongfully 17 detained and put into military detention to have habeas review? 18 MR. TORRANCE: Yes. 19 THE COURT: Okay. 20 MR. TORRANCE: And I do note that of course there 21 would be, you know, not everything despite Tocqueville's 22 observation is a judicial question in this country, there would 23 be would be a political outcry, I would think, if the 24 government were to just start detaining people willy-nilly on 25 the basis of military authority. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

119 C875hedA argument 1 THE COURT: How would we know? 2 MR. TORRANCE: Well, we would know because they would 3 file for habeas and those are public proceedings, as they have 4 been in the D.C. Circuit repeatedly, as they were in 5 Mr. Padilla's case and Mr. al-Marri's case. 6 THE COURT: How long does the average operation from 7 date of filing to resolution of petition take? 8 MR. TORRANCE: I don't know. 9 THE COURT: Couple of years, right? 10 MR. TORRANCE: But most of them are found detainable 11 so that does make is somewhat different. 12 THE COURT: Let me just ask a couple more questions. 13 We were back on the criminal statute. Are you aware 14 of any criminal statute -- strike that. 15 Are you aware of any noncriminal statute which allows 16 for imprisonment? 17 MR. TORRANCE: There are confinement statutes such as 18 civil dangerousness; people were found to be a danger to 19 themselves or others. The name is escaping me but there was a 20 recent, within the last 10 years, Supreme Court decision that 21 upheld a state scheme that said post conviction, post prison 22 term, post expiration of a prison term certain people could 23 continue to be confined civilly under those circumstances. 24 So, there are situations. Of course there is also 25 immigration detention in civil confinement. There is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

120 C875hedA argument 1 criminal conviction or criminal proceeding there but they can 2 be detained for quite some time. 3 THE COURT: So you're maintaining your position that 4 if one was detained -- let me ask it differently. 5 If an individual was detained under 1021(b)(2), is it 6 possible that they could be detained for 10 years? 7 MR. TORRANCE: Yes. 8 THE COURT: If one were to believe that the state, 9 that terrorism in the fight against the war on terrorism could 10 go on indefinitely they could essentially be indefinitely 11 detained? 12 MR. TORRANCE: Hamdi addressed that point and Hamdi 13 said -- 14 THE COURT: But yes, right? 15 MR. TORRANCE: Well, yes, but not without review 16 because there is, as a matter of executive practice, the 17 executive has been conducting reviews of people who were 18 detained. 19 So, I think that that, in part, results from Hamdi's 20 observation of exactly the point that the Court just made, that 21 there could be -- indefinite is probably the wrong word, there 22 could be perpetual detention so Hamdi said if it ever becomes 23 the case that the premise of the Law of War, that this will end 24 sometime is called into question, then the Court would be 25 willing to revisit that premise. But I think that given the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

121 C875hedA argument 1 executive practice of ongoing review of existing detainees, 2 perhaps that would be avoided but in theory, yes, one could be 3 detained, continually found to be a continuing danger and 4 detained until the end of his or her life. There is no doubt 5 about that but that doesn't undermine the constitutionality of 6 the statute. 7 THE COURT: And so 1021(b)(2) could be used for 8 perpetual detainment? 9 MR. TORRANCE: Again, in theory there is, as a matter 10 of fact, and -- I'm sorry, the other provisions of the NDAA 11 talk about the review procedures and so there is Congressional 12 support for that. I'm not prepared entirely to address the 13 nuances of that. 14 THE COURT: Okay. 15 MR. TORRANCE: But. 16 THE COURT: Let me just sort of see if I understand 17 about times of war. 18 Is it the government's view that in times of war the 19 President and the Congress should determine who is detained or 20 can be detained and that the Courts should stay, essentially, 21 out of it? 22 MR. TORRANCE: Well, no, because there is the habeas 23 remedy. 24 THE COURT: Putting aside the habeas remedy. 25 Obviously there is an ex post facto habeas remedy but let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

122 C875hedA argument 1 assume for the moment that we have a statute which is passed 2 and the statute is passed by the Congress and it is signed into 3 law by the president and it deals with detention during 4 wartime. Is it the government's view that because of that 5 military necessity essentially the Court should not, itself, 6 engage in a review other than a habeas review? 7 MR. TORRANCE: The only review of which I'm aware that 8 would be appropriate would be the habeas review but of course 9 the Court could, as part of that habeas opinion, declare the 10 whole thing to be unconstitutional or something like that. 11 But, habeas is the right avenue. Prospective 12 injunctive relief is not. 13 THE COURT: Let's back up to the Federalist papers and 14 to number 78 which I know was a very long time ago which does, 15 however, talk about the co-equal branches of government and 16 does talk about the Courts having the right to review 17 legislation and the executive powers and when they go too far 18 and become unconstitutional it has an obligation to stop it, 19 not just habeas review, but to undertake judicial review. 20 So, I take it that that -- maybe you have a different 21 reading -- I mean, I know I didn't preview Federalist 78 so you 22 probably don't have it handy. 23 MR. TORRANCE: I don't. It is in my office though. 24 THE COURT: Have you looked at it recently? 25 MR. TORRANCE: That depends what recently means. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

123 C875hedA argument 1 THE COURT: In connection with this matter? 2 MR. TORRANCE: In connection with this matter, no. 3 THE COURT: So, it says: The complete independence of 4 the courts of justice is peculiarly essential in a limited 5 Constitution. By a limited Constitution, I understand one 6 which contains certain specified exceptions to the legislative 7 authority; such, for instance, as that it shall pass no bills 8 of attainder, no ex post facto laws, and the like. Limitations 9 of this kind can be preserved in practice no other way than 10 through the medium of courts of justice, whose duty it must be 11 to declare all acts contrary to the manifest tenor of the 12 Constitution void. Without this, all the reservations of the 13 particular rights or privileges would amount to nothing. 14 And then it says: No legislative act therefore 15 contrary to the Constitution can be valid. 16 So, this suggests that the habeas would come too late. 17 MR. TORRANCE: I don't agree that it suggests that. I 18 think that the Supreme Court has made it quite clear that in 19 each sphere of the legislative action there may be standards 20 for judicial review. Nobody is denying the principle of 21 judicial review. But as we quote in our brief, the Rostker 22 case, the Constitution itself requires deference to choices in 23 military war and national security matters. So, the standards 24 of that review are going to change depending on the sphere and 25 the types of action that the Court can take, will change based SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

124 C875hedA argument 1 on the types of action that are at stake. 2 So, as in the D.C. Circuit case Sanchez-Espinosa, that 3 we quote, Justice Scalia says it would always be an abuse of 4 discretion to enjoin military action and that's because of the 5 specific provisions of the Constitution that say it is outside 6 the expertise and outside the province of the judiciary to 7 weigh in on those matters. Those are matters that are 8 specifically committed by the Constitution to Executive and 9 Legislative. 10 THE COURT: For foreign relations. 11 MR. TORRANCE: And military matters and war matters. 12 It is not just foreign relations. 13 THE COURT: Military in terms of the declaration of 14 war would have to be through Congress and the president and 15 Court would not overrule a valid declaration of war. 16 MR. TORRANCE: Well, that's a separate question. That 17 becomes a political question. 18 THE COURT: Correct. 19 MR. TORRANCE: That becomes nonjusticiable as a 20 political question. 21 THE COURT: Let me go to that point in a way which is, 22 because this Federalist 78 which I have become quite enamored 23 with says: Or, in other words, the Constitution ought to be 24 preferred to the statute. 25 MR. TORRANCE: Right. But as I just said, the Supreme SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

125 C875hedA argument 1 Court has held that the Constitution itself requires deference, 2 a special deference in these military spheres and so it begs 3 the question in a sense. Nobody is saying don't apply the 4 Constitution. It is a question of saying what does the 5 Constitution say? And the Constitution says that the 6 legislative and executive branches in military matters have a 7 very, very wide range of permissible action, even where they 8 would not be able to do that in other spheres. 9 THE COURT: Here it also says: Nor does this 10 conclusion by any means suppose a superiority of a judicial to 11 legislative power. It only supposes that the power of the 12 people is superior to both in that where the will of the 13 legislature declared, in its statutes, stands in opposition to 14 that of the people as declared in the Constitution, the judges 15 ought to be governed by the latter rather than the former. 16 They ought to regulate their decisions by the fundamental laws 17 rather than by those which are not fundamental. 18 It just seems to be in contradiction to what you are 19 saying. 20 MR. TORRANCE: No, I totally disagree. The 21 fundamental law, the Constitution, provides that there is 22 deference of the Judicial Branch to executive and legislative 23 and military affairs. That's in the Constitution. 24 THE COURT: Right. 25 MR. TORRANCE: So you apply the Constitution by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

126 C875hedA argument 1 deferring to Congress. 2 THE COURT: But the place that you are referring to 3 then is Article II. 4 MR. TORRANCE: And Article I. 5 THE COURT: And Article I. But what you're talking 6 about though, effectively, is that the President and the 7 Legislature have the ability, according to the government, 8 under Article II and Article I of the Constitution, to pass, 9 essentially, any law they want with respect to detention of 10 anybody they want under, by virtue of military necessity, and 11 that that should be reviewable only on a habeas petition. 12 That's the position? 13 MR. TORRANCE: I think that there may be some extreme 14 case in which that would break down. I think that there may be 15 some case in which there is not, as in this statute, a military 16 ongoing armed conflict or an enemy belligerent force. But here 17 we are clearly within the war power so there is no need to 18 determine the exact boundaries of when the Judicial Branch can 19 do that kind of boundary patrol, as a matter of fact, as my fed 20 courts professor used to say. 21 So, there is going to be a clear area in which the 22 Executive and Legislature can act. Whether the Judiciary can 23 ever, in an extreme case can intervene we can leave to the side 24 today because this question is quite clearly within the proper 25 powers of the Legislature and the Executive. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

127 C875hedA argument 1 THE COURT: And in the government's view the 2 Judiciary, in general, should not intervene in military 3 matters? 4 MR. TORRANCE: Yes; as the Supreme Court has 5 repeatedly held. 6 THE COURT: And that, so ergo, the legislature could 7 pass a law signed by the President relating to military 8 necessity and have to do with military detention which the 9 Court shouldn't do except for habeas, in general? 10 MR. TORRANCE: In general, yes. 11 THE COURT: Okay. 12 Now, let's see if I have any other questions. I do 13 want to give you a chance to also say other things that you may 14 have as well. 15 You do agree that the branches of government are 16 co-equal, right? 17 MR. TORRANCE: Absolutely. Absolutely. But that's 18 part of the reason we take issue with the idea that Congress 19 has quite clearly said that they're endorsing, not expanding or 20 limiting but only affirming the President's authority that has 21 been articulated. So, we have two branches that agree with 22 that and the third branch has concurred in that. I do want to 23 point out that they've said in their brief -- the plaintiffs 24 have said in their brief and have said here today that the 25 Hamlilly case strikes down the substantial support. They're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

128 C875hedA argument 1 correct that Hamlilly said substantial support is not 2 authorized by Law of War but that has been abrogated by higher 3 Court at a later date, the al-Bihani decision, and they're 4 incorrect to say that al-Bihani simply didn't apply it. 5 Let me just, if I may for a second? 6 THE COURT: Yes. And then while you are doing that, I 7 want you to think about if this Court were to enjoin 1021(b)(2) 8 permanently, tell me if there is any retroactive impact on 9 anybody who is currently detained. 10 MR. TORRANCE: Can I do my al-Bihani first? 11 THE COURT: Yes, you may. 12 MR. TORRANCE: Al-Bihani said: Al-Bihani is lawfully 13 detained under the modified definition offered by the 14 government that requires that an individual substantially 15 supports enemy forces. 16 So, they clearly are applying it. 17 THE COURT: What is the pin cite? 18 MR. TORRANCE: 872. Also on page 872 they say: The 19 facts place al-Bihani within the "part of" and "support" prongs 20 of the relevant statutory definition. 21 So, then they also say at another point for which I 22 don't have a pin cite, I'm afraid, but they say both prongs are 23 valid. 24 So, Hamlilly, which was a very influential and very 25 intelligent decision, had simply been abrogated on that point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

129 C875hedA argument 1 It is just not the law anymore. 2 THE COURT: Well, you know, it is interesting because 3 one of the chief disputes between the parties here is whether 4 or not in fact the third branch of government has actually 5 agreed with the various interpretations that you folks put 6 forward. You folks say, the government says yes, quite 7 strongly, and the plaintiffs say no, quite strongly, and the 8 case law is complicated because you do have to thread your way 9 through a number of these, the Military Commission Act which 10 does come into play, whether people want to think about it or 11 not, and the AUMF and how that expands. 12 MR. TORRANCE: Can I just, on the MCA, again, the 13 detention standard in almost identical terms was articulated by 14 the Executive Branch in 2004. The MCA, the first one, it isn't 15 enacted until 2006. 16 THE COURT: I understand. 17 MR. TORRANCE: So, we just simply disagree that 18 that -- there is nothing in the March 2009 filing, there is 19 nothing in the 2004 DOD statement. There is nothing in any of 20 the history that indicates that this is informed by the 21 Military Commissions Act. 22 THE COURT: The only reason I bring it up is because 23 some of the cases that have been cited for the propaganda -- 24 not Hamdi, it must be the other one. These names sometimes -- 25 MR. TORRANCE: Hamdan? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

130 C875hedA argument 1 THE COURT: The Hamdan case, it is against the 2 backdrop of the Military Commissions Act but, anyway, that is 3 for me to worry about. 4 MR. TORRANCE: That is respectfully also incorrect 5 because Hamdan also predates the MCA. Hamdan was the impetus 6 for it. 7 THE COURT: I will see where it fits in as we 8 progress. 9 So, you were going to tell me about whether or not, if 10 it is true, that the AUMF is the same as 1021(b)(2), then it 11 would strike me that enjoining 1021(b)(2) can be -- we can take 12 in both directions, it could either create no problem for the 13 government which is what I said in my original opinion, or 14 putting aside the fact that you think I shouldn't do it and 15 shouldn't have done it preliminarily, or it creates a very big 16 problem because if it is done on the basis that there is a 17 constitutional infirmity to the language of 1021(b)(2), then it 18 could potentially call into question similar interpretations 19 under the AUMF if they truly overlap. 20 So, what I want to understand from the government is 21 what would the Court be doing, tell me now, if it enjoins 22 1021(b)(2); nothing or a lot? 23 MR. TORRANCE: Well, again -- 24 THE COURT: Apart from the theoretical issue the Court 25 should stay out of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

131 C875hedA argument 1 MR. TORRANCE: Right, can we adhere to. 2 But, as we say in our brief, that is going to depend 3 of course, on how the Court words the injunction. We 4 believe -- 5 THE COURT: If the Court decided to issue such an 6 injunction. 7 MR. TORRANCE: Exactly. 8 We believe on the one hand they have not challenged 9 the AUMF so it would be improper for a Court to reach out and 10 find a new challenge to a statute. 11 THE COURT: I agree with that. It is the Court does 12 not have before it the actual statute, AUMF passed on September 13 18th, 2001. 14 MR. TORRANCE: Right. 15 THE COURT: We can debate whether or not it happens to 16 overlap with a subsequently passed statute but the September 17 18th, 2001 statute is not the one that is currently being 18 challenged. 19 MR. TORRANCE: Right. So, it would not be proper to 20 reach out and do that. We think that the Court, if it were to 21 issue that injunction, should do what it did in the preliminary 22 injunction and make it clear that the AUMF remains in effect. 23 And, in fact, the plaintiffs rely on this as part of their 24 argument. So, that creates a quasi judicial estoppel, if 25 they're going to rely on it and be successful then they have to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

132 C875hedA argument 1 be stopped from taking it any further. 2 THE COURT: Here is the nub of the issue: If it is 3 right that the AUMF is the same as 1021(b)(2), and let's assume 4 for a moment that you have a Federal Court which says that 5 1021(b)(2) violates due process because it doesn't put people 6 on notice of what they can do that would subject them to 7 military detention, if that's the same as the AUMF, by 8 enjoining (b)(2) has the Court effectively tread upon the 9 carpet of the AUMF? Or are you able to keep them separate just 10 as a matter of strict legal interpretation? 11 MR. TORRANCE: It is our belief that because that's a 12 difficult question the Court should keep them separate and the 13 Court should do what it did in the earlier order and expressly 14 keep them separate for the reasons that we've discussed. 15 THE COURT: Okay. 16 What impact, in your view, does the appeal of the 17 preliminary injunction have on any appeal -- let's assume for 18 the moment, hypothetically, and the Court has not reached a 19 determination, I really haven't and I have to go through an 20 awful lot of material here to figure this out -- but let's 21 assume for the moment were the Court to make the injunction 22 permanent in that there was an appeal immediately, I assume the 23 Second Circuit would take both up; what is the effect of the 24 one on the other? Does it change the standard of review? 25 MR. TORRANCE: No. I don't think so. I haven't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

133 C875hedA argument 1 researched this fully so I'm not completely in a position to 2 answer. I believe the one merges into the other. I think if 3 the permanent injunction is issued, whether it is issued or 4 granted -- I'm sorry, issued or granted or whether it is 5 denied, that dissolves the preliminary injunction simply by 6 operation of a final judgment. It is the final judgment that 7 controls. 8 So, I think that probably the preliminary 9 injunction -- I say probably, I don't want to be committed to 10 this because I don't know that this is the answer, but -- I 11 think the preliminary injunction appeal becomes moot at that 12 point and the only thing that has to proceed is the permanent 13 injunction appeal. 14 THE COURT: Right. I think that's right. You guys 15 will figure it out, depending upon what occurs. 16 MR. TORRANCE: Right. 17 THE COURT: Were there any other final points -- and I 18 want to say, Pam, thank you very much -- that is the court 19 reporter, for the record -- points, Mr. Torrance, that you 20 wanted to make which I did not let you make? 21 MR. TORRANCE: May I have a second? 22 THE COURT: Absolutely. 23 Now I did say that you folks, plaintiffs, that I 24 would, unsure as to how the evolution of this would occur, but 25 we are going to have a very limited time. If you have got one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

134 C875hedA argument 1 or two points to make, pick your best shot, your best 2 spokesperson; not the best in terms of who wins the gold medal 3 but who is going to address the particular point. We will do 4 one jack in the box. 5 MR. TORRANCE: A couple of points. 6 First of all, again on the scope of the injunction, 7 they have not challenged the part of language in the scope of 8 the injunction. 9 THE COURT: I'm sorry. The what language? 10 MR. TORRANCE: The part of language. So, their 11 challenge here is to the "substantially support" prong. So, 12 again, we disagree that there should be injunction at all both 13 on the merit and on jurisdictional grounds but if there were, 14 it should be limited to part of. I'm sorry, it should be 15 limited to "substantially support." 16 THE COURT: Well, they do say directly support, 17 actually in their papers in the injunction below, which is why 18 it was part of the PI. 19 MR. TORRANCE: Well, the directly support, on a close 20 examination of the statutory words, it says the standard is 21 substantially support or part of. I got that backwards. And 22 then it says including those who directly support belligerent 23 acts. So, whatever falls within direct support has to fall 24 within either part of or substantially support. 25 THE COURT: Well, let me then put it this way. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

135 C875hedA argument 1 challenge is as it was on a preliminary injunction as to 2 1021(b)(2) which is what we've been talking about here. It is 3 not to 1021(b)(1). 4 MR. TORRANCE: That's correct, but we think it is even 5 narrower than that. We think it is only to the substantially 6 support prong of (b)(2) and that would be the only proper -- 7 again, no injunction is proper but that would be the only, 8 given the challenge that they've brought, the only proper 9 injunction would be substantially support. 10 THE COURT: That's interesting, because obviously the 11 associated force has been a big part of this in terms of the 12 void for vagueness, the vagueness arguments for that. 13 MR. TORRANCE: But if one is part of an associated 14 force, if one is part of the 55th Arab Brigade that 15 Mr. al-Bihani was part of, I don't believe the plaintiffs have 16 even challenged that. What they challenge is a vagueness 17 matter as to substantially support an associated force in the 18 conjunctive vagueness of those two phrases which, of course, we 19 deny. 20 THE COURT: But there is also the phrase "or." There 21 is an "or," has directly supported such hostilities in aid of. 22 There is an "or." 23 MR. TORRANCE: The "or" comes after including. 24 THE COURT: Yes. 25 MR. TORRANCE: So the statutory text is that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

136 C875hedA argument 1 entire including phrase falls within either substantially 2 support or part of. So, all that needs to be done is the two 3 words, "substantially support." 4 THE COURT: Well, this is a new argument. 5 MR. TORRANCE: Well, no. We actually made it as part 6 of our reconsideration motion. 7 THE COURT: Oh. Well, it is a new argument and that 8 we denied as moot, that no longer exists, but I will read this 9 closely and see whether or not I can understand what you are 10 saying. 11 MR. TORRANCE: That also brings me to the question of 12 the denominator or the scope of the metric I think was the term 13 that we were using. 14 THE COURT: Thank you for reminding me of that. 15 MR. TORRANCE: I refer the Court to Virginia v. Hicks 16 but the Court is quite clear in that case that they are 17 considering the allegedly unconstitutional application of the 18 statute as against the statute, taken as a whole, including 19 actually not even the statute taken as a whole, the entire 20 practice that occurs under this statute taken as a whole. 21 This is illuminated somewhat by Justice Souter's 22 concurring opinion in which he asks I think what is the same 23 question that the Court is asking which is essentially, as he 24 puts it, what is the denominator, the scope of the law that 25 forms the denominator of the fraction and the numerator is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

137 C875hedA argument 1 potential invalid applications. 2 So, the statute -- and, as he says, we look to the 3 entire statute. 4 Now, he questions then whether it might actually 5 include other practices. He says it might be in a hypothetical 6 future case, a city speech ordinance might be analyzed alone or 7 as one element of combined policies. So, it could be broader 8 than the statute taken as a whole but at least it has to be 9 this statute taken as a whole. 10 So, the potential invalid applications has to be 11 considered not just against (b)(2) but as (b)(1) and (b)(2) and 12 I would say even -- well, the AUMF, since it is -- I don't need 13 to go on to that but it has to be considered as against all the 14 people, and there are many of them, who have been detained as 15 part of Al Qaeda and the Taliban, putting aside any of the 16 controversial parts -- controversial at least in this 17 litigation, controversial in substantially support or 18 associated forces. The number of people who have been detained 19 as Al Qaeda or the Taliban is quite large compared to the 20 number of people who have been detained for independent 21 expressive activities, which is zero. 22 So, the fraction is -- 23 THE COURT: But under 1021 has anybody been detained 24 under 1021 yet? 25 MR. TORRANCE: As I said before, we don't believe the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

138 C875hedA argument 1 Department of Defense, the military makes a distinction as to 2 whether they're doing it under the AUMF or 1021 since the 3 authorities are the same. I don't think that they -- 4 THE COURT: Well, they haven't since I issued the 5 injunction though, right? 6 MR. TORRANCE: They certainly haven't, but they are 7 continuing to apply AUMF detention authority as the Court 8 endorsed. But even before that injunction they weren't 9 specifying whether the source was 1021 or the AUMF. There is 10 no need to specify that authority. 11 THE COURT: So, that is just a sort of, then, and we 12 have to move on to the very end, but part of what you are 13 saying is that the effect of the injunction was nil because 14 there was nothing to change since the AUMF completely overlaps 15 with 1021, therefore the effect of the injunction was not to 16 inhibit any practice at all. 17 MR. TORRANCE: Yes, and that is another reason to deny 18 standing in this case because their injury, as they asserted, 19 has not been redressed. 20 THE COURT: Well, it is an interesting position 21 because otherwise you would be in contempt, but. 22 MR. TORRANCE: Well -- 23 THE COURT: I mean, if you were wrong and 1021 is 24 different from the AUMF and nobody has changed a single 25 practice, then you folks would be in contempt of Court order. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

139 C875hedA argument 1 MR. TORRANCE: I think if the government were saying 2 to this Court that 1021 and AUMF were the same -- 3 THE COURT: Which you are. 4 MR. TORRANCE: -- which we are, but out in the field 5 interpreting 1021 to be broader and applying that broader 6 fraction of 1021 then, yes, that would be in violation of this 7 Court's order. But that's not happening. The government is, 8 continues to be, will continue to be convinced that 1021 and 9 AUMF detention authority are coterminous, as Congress said that 10 it would be. So. 11 THE COURT: I asked you this last time and I will look 12 at your answer again, but I don't understand why you guys 13 needed to pass 1021 at all. 14 MR. TORRANCE: The President didn't say that we did 15 but there are reasons to codify existing practice. There is 16 real value in Congress putting its imprimatur on a practice and 17 saying that the elected representatives -- 18 THE COURT: Hold on. I actually agree with that 19 statement, codify an existing practice, but you see that's 20 different from saying that the AUMF is 1021 because that's not 21 codifying an existing practice, that is codifying what was 22 already codified. If it is true that AUMF that was passed on 23 9/18/2001 is the same as 1021(b)(2), it is not codifying an 24 existing practice, it is codifying what was codified. If as I 25 believe what happened was there was an evolution of the AUMF SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

140 C875hedA argument 1 from 9/18/2001 up to 2009, then it is codified an existing 2 practice. That I understand. But, it is not both. 3 MR. TORRANCE: It can be both because the existing 4 practice is interpretation of the authorization for use of 5 military force. The existing practice is when Congress -- 6 Congress passes these military force authorizations, as we say 7 in the brief, in these broad and general terms, always has, 8 ever since the War of 1812, we cite a list of authorizations of 9 military force in our brief, all phrases that broadly. 10 Detention authority was included in all of them. 11 THE COURT: Those were all with foreign relations. 12 MR. TORRANCE: This is for foreign relations too. 13 THE COURT: It is also people who are wandering around 14 the streets of Manhattan. 15 MR. TORRANCE: Well, again as in Quirin, there were 16 German soldiers wandering around the streets somewhere in the 17 United States. 18 THE COURT: I'm not talking about German soldiers, 19 though, I'm talking about Birgitta Jonsdottir comes to the 20 United States, does something that's not been blessed and, you 21 know, have an issue here. She is not a German soldier. 22 MR. TORRANCE: As we said in our brief, her activities 23 as she alleges them, do not implicate this. 24 THE COURT: In the past activities. 25 MR. TORRANCE: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

141 C875hedA argument 1 THE COURT: We don't know about her future activities. 2 MR. TORRANCE: I don't know what she is going to do. 3 I have no way to know that and it is unfair to ask us to 4 predict and provide some sort of promise that no matter what 5 she does it is going to be immune. That is just not 6 reasonable. 7 So, if I could just look through my notes? 8 THE COURT: Yes. And then you guys are going to have 9 a quick point or two? 10 MR. AFRAN: Yes, your Honor. 11 There is one point Mr. Remes wants to address and I 12 have one or two points. I can promise not to go into what he 13 does if the Court would allow us to divide it that way. 14 THE COURT: Okay, but it is going to have to be like 15 really brief because we've overstayed our welcome. 16 MR. AFRAN: We will be brief. 17 THE COURT: It is just that we've got people, the 18 marshals are here because of the crowd. 19 MR. AFRAN: We will be brief. 20 THE COURT: Okay. Let me just give Mr. Torrance his 21 last shot. He has got something. 22 MR. TORRANCE: I think the Court has already 23 understood this but plaintiff's counsel has said that the 24 government is now saying that expression outside of the 25 representation we've made to the Court is fair game as if we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

142 C875hedA argument 1 promising that that will be detainable under 1021 and that's 2 just simply not a fair reading of what we said. What we said 3 is a response to the Court's concern. 4 THE COURT: You have not said one way or the other 5 what would happen as to conduct that was not at issue in the 6 March 29th proceeding, is that right? 7 MR. TORRANCE: Yes. That's right. 8 THE COURT: Okay. 9 MR. TORRANCE: And I think that they commit the 10 logical error of an extensive negative implication where it is 11 just not warranted. 12 THE COURT: Well, I get your point which is you have 13 made a statement we now have said no to, that as to the conduct 14 which was specifically outlined in the March 29th proceeding, 15 that and no more, the government has said that's not going to 16 subject those particular individuals to detention under 1021. 17 MR. TORRANCE: Right. 18 THE COURT: You are not going further than that, 19 right? 20 MR. TORRANCE: Right, but that doesn't mean anything 21 else. 22 THE COURT: It doesn't mean anything one way or the 23 other. It means that the government is giving no 24 representations one way or the other about any other conduct. 25 MR. TORRANCE: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

143 C875hedA argument 1 THE COURT: Okay. 2 MR. TORRANCE: There has been some reference to the 3 lack of definitional proceedings. I think as a logical matter 4 that can't be the law, that the simple existence of a 5 proceeding make something not vague that would invite Congress 6 to pass vague definitions. On the other hand, if something is 7 crystal clear in the text of the main law itself without a 8 definitional proceeding, that somehow they would be required to 9 pass definitional sections for no reason, essentially. But, I 10 point the Court to Brockett v. Spokane Arcades which is a case 11 that the Court says even if there were no definitional 12 provision in this statute it would still not be subject to this 13 overbreadth challenge. 14 THE COURT: The real issue is the fact that you have 15 got 1022 and the Holder case. But I hear you and I will take a 16 look at this other case. 17 MR. TORRANCE: Well, on 1021 I continue to not really 18 understand the relevance of that. 19 THE COURT: I understand. I have read the briefs on 20 that so we don't need to go into that. I understand that you 21 guys disagree. 22 MR. TORRANCE: Mr. Afran says that Lujan is not 23 applicable. That is simply wrong. Standing is standing. 24 There is a situation, and the Court has said, as he 25 noted, that standing doctrine is some of the more expansive and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

144 C875hedA argument 1 First Amendment law and that's because an overbreadth plaintiff 2 can assert the rights not of himself but of a third-party. So, 3 if in general standing law third-party standing is not allowed, 4 there is an exception to that for an overbreadth challenge. It 5 does not call into the question the core Lujan fact causation 6 redressability. 7 THE COURT: The Court believes that it has to cite 8 Lujan in whatever decision comes down. 9 MR. TORRANCE: I think it was Mr. Mayer talked about 10 how this is a violation of separation of powers because it 11 takes the judicial process out of Law of War determinations and 12 I would just point again to Quirin which says expressly that 13 the Constitution, including the Bill of Rights provisions that 14 provide for criminal process and jury trials, they don't apply 15 to everything. They don't apply, for instance, to petty crimes 16 and misdemeanors and -- 17 THE COURT: But they would for 10 years' imprisonment 18 which would be a felony. 19 MR. TORRANCE: No. One of the things that Quirin says 20 is that they don't apply to either the detention that the 21 Quirin petitioners were subject to, or in fact their trial by 22 military commission which was outside the judicial branch or 23 their execution at the end of that trial. 24 THE COURT: That's the military commission, 25 unfortunately, but in terms of a civil trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

145 C875hedA argument 1 MR. TORRANCE: But they were not entitled -- the 2 application of the Law of War to them, to detain those, one of 3 whom was a U.S. citizen, did not necessarily have to involve 4 the judicial branch. So, it is incorrect for Mr. Mayer to say 5 that it violates the Constitution to have no judicial process 6 in that determination because Quirin affirmed it. 7 THE COURT: Now, we are going to make this really 8 brief. 9 Mr. Torrance, thank you very much. 10 MR. TORRANCE: Thank you. 11 THE COURT: I do appreciate your ability to spar with 12 me on all of these questions. Thank you. 13 MR. TORRANCE: My pleasure. 14 THE COURT: Mr. Remes, you are going to make it 15 concise and quick. 16 MR. REMES: Quick and concise, your Honor. 17 First of all, in the habeas case the AUMF has been 18 applied. I have three cases myself where the detainee was 19 picked up outside of the field of battle; just to know I can 20 provide citations if you would like. 21 THE COURT: We are not going to have post trial 22 briefings so do you have them now? 23 MR. REMES: My cases -- 24 THE COURT: Give me a name. 25 MR. REMES: Look up Almerfedi v. Obama. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

146 C875hedA argument 1 THE COURT: How do you spell that? 2 MR. REMES: A-L-M-E-R-F-E-D-I. That's a decided case. 3 THE COURT: I think Mr. Torrance said there would be 4 situations where, Mr. Torrance said, individuals could be 5 picked up outside the battlefields. 6 MR. REMES: There have also been cases, we argue, 7 where association was on the basis of association or religion. 8 So, I don't think anyone can categorically say that there 9 weren't. I would say it is a dispute between us and the 10 government in particular of cases as to whether that is the 11 real basis for detention. So, I just want to make that a 12 categorical point. 13 THE COURT: Is there a case where that has been 14 briefed publicly? 15 MR. REMES: Yes. 16 THE COURT: Can you give me the name? 17 MR. REMES: Almerfedi and a couple of other cases. 18 THE COURT: All right. 19 MR. REMES: I will provide the cites because that's 20 not the only case. It may not even be the best case. 21 The appeal in the al-Bahlul case, which is the one 22 involving the propagandist, as my friend said, is on appeal and 23 it is a First Amendment challenge to conviction based on the 24 exercise of propaganda. Then I think I have just -- 25 THE COURT: That individual was also convicted of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

147 C875hedA argument 1 murder. 2 MR. REMES: Well, I'm simply pointing to the 3 propaganda aspect of it. 4 THE COURT: All right. 5 MR. REMES: The difference between the permanent 6 injunction and preliminary injunction standard is under the 7 preliminary injunction the harm needs to be imminent whereas 8 under permanent injunction it is long term. 9 Then finally, and this is my only sort of substantive 10 point, Hamdi speaks to a lot here. First of all, I call 11 attention to Justice O'Connor's statement in her plurality 12 opinion that war is not a blank check for the Executive. 13 Second, with respect to Law of War detention, she also 14 said in her plurality opinion that the Law of War is based on 15 the idea of a finite period of war and if the time of the war 16 stretches beyond that to infinity, the Law of War understanding 17 could unravel. 18 Thirdly, with respect to Hamdi, he was fighting for 19 the Taliban on the battlefield in the very action that the AUMF 20 was intended to target so it can't be distinguished on the 21 basis that somehow it was attenuated from the circumstances 22 that gave rise to the AUMF in the first place. 23 The Court also said that as a U.S. citizen Hamdi was 24 entitled to due process despite the fact that he was picked up 25 on the battle field armed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

148 C875hedA argument 1 Finally, to get to citing venerable authority, I close 2 by saying, as Chief Justice Marshall said in Marbury v. Madison 3 that it is emphatically the province of the Courts to say what 4 the law is. 5 Thank you. 6 THE COURT: Thank you. 7 Mr. Afran? 8 MR. AFRAN: It is important to note the narrowness of 9 what Hamdi itself said in its narrow application. So, to the 10 extent there is any intrusion into the realm of a U.S. citizen 11 being detained, Hamdi was intended by the Supreme Court to have 12 narrow application. 13 In addition, we need to recognize the Korematsu era 14 could come back through statutes like this and really it is a 15 question of, you know, where with the lawful base of Korematsu 16 it has been discredited, but it is the same basis here because 17 in some conflict someplace within the United States we can 18 engage in detentions based on some degree of support. If we go 19 back to that era we open up the country to virtual unlimited 20 types of detention on the pretext of any military conduct. 21 What we need to be aware of is Milligan and Merryman. 22 The Court addresses Merryman but Milligan is in the same 23 direction. 24 THE COURT: I'm aware of that. 25 MR. AFRAN: Of course. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

149 C875hedA argument 1 The fact that Milligan says very clearly despite the 2 state of civil war within the United States where one is 3 accused of attempting to aid the enemy force but is in a part 4 of the country where the civil course open and further, there 5 can be no military detention. 6 Milligan is an absolute barrier to this statute. 7 There is no way around that. Either Milligan is wrong or 8 Congress is wrong. 9 THE COURT: Unless one thinks that the battlefield of 10 terrorism has extended beyond the boundaries of state lines. 11 MR. AFRAN: I have not seen any missiles flying past 12 the windows in any of our hearings in New York. We had one 13 horrible and tragic date. That does not convert the United 14 States into a battleground. 15 The lesson of Milligan is that we don't make that 16 inference even though the war may be taking place within the 17 United States itself. So, surely if we are within a state of 18 war within the U.S. and Milligan says we can't infer that the 19 civil jurisdiction has disappeared in parts of the country 20 where there is no act, surely we can't say civil jurisdiction 21 appears because terrorists might make an attack within the U.S. 22 THE COURT: Have pity on poor Pam here. She has been 23 going for a couple of hours. 24 MR. AFRAN: One point I want to very quickly raise is 25 Lyons. The government concedes, attaches at the beginning of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

150 C875hedA argument 1 the case and continues from that point in its incarnation at 2 the outset of the case, if the Court please, Lyons, you may 3 lose that because you can't lose prospectively. 4 THE COURT: Lyons? 5 MR. TORRANCE: Lyons. City of Los Angeles v. Lyons. 6 L-Y-O-N-S. 7 MR. AFRAN: In Lujan the plaintiff was beaten up by 8 the police and the Court said you don't have standing to enjoin 9 future conduct for two reasons: One, you can't show policy to 10 keep beating people up; and two, you have no reason to believe 11 you are going to be beaten up in the future. 12 Here we have a statute that will continue to be 13 enforced regulating speech tomorrow just as it does today, so 14 the degree of chilling effect and fear that the plaintiff 15 expresses, assuming the Court agrees with that finding, that 16 the finding is justified, is going to continue because the 17 statute is a policy that is continuing in force. Lyons held 18 the standing you may, you don't have standing because you can't 19 show a continuing policy to keep doing what they did to you. 20 Here we have a policy that will continue in the form 21 of the Congressional enactment so it is not a Lyons case. And 22 since the government concedes standing at the outset, continues 23 there is standing, the argument is dead. The Court needs to go 24 to the merits. 25 THE COURT: Do you have another zinger? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

151 C875hedA argument 1 MR. AFRAN: I think I'm done, your Honor. 2 THE COURT: Thank you. 3 All right. I want to thank everyone for very useful 4 papers and such really very useful argument on this matter, and 5 the Court will try to do its best to sort through everything 6 and if I have any additional questions I will ask for 7 additional materials. But, in the absence of that, I really 8 don't need anything else at this point in time so we don't 9 start sort of a round of extra briefing. I will let you know 10 if I run into an issue. Okay? 11 Thank you. We are adjourned. 12 o0o 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300