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Case Name Hedges v. Obama NS-NY-0001
Docket / Court 1:12-cv-00331-KBF ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Speech and Religious Freedom
Case Summary
This case was filed by a group of writers and activists on January 13, 2012, in the U.S. District Court for the Southern District of New York. They asked the Court to hold one unconstitutional one provision of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 12 ... read more >
This case was filed by a group of writers and activists on January 13, 2012, in the U.S. District Court for the Southern District of New York. They asked the Court to hold one unconstitutional one provision of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. 112-81, 125 Stat. 1298 (the NDAA). The NDAA had been enacted two weeks before; plaintiffs charged that § 1021 of the NDAA violates their free speech and associational rights, under the Constitution's First Amendment, and also violates due process.

Section 1021 of the NDAA--entitled "Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force"--provides for detention without trial, under the law of war, for "A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." It states, however, that "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens."

On February 27, 2012, they filed a motion for a for a temporary restraining order. The court held an evidentiary hearing on March 30, 2012. On May 16, 2012, Judge Forrest preliminarily enjoined operation of the challenged section. Several of the plaintiffs testified that they feared that their reporting or related work that involved contact with terrorists would render them subject to military detention, even though they did not support violence. As the district court's opinion explained: "At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years," for conduct protected by the First Amendment. Judge Katherine Forrest therefore found that plaintiffs were entitled to a preliminary injunction: they had shown that they were likely to succeed on the merits of their claim, that they faced irreparable harm, and that the balance of equities tilted in their favor. Hedges v. Obama, 12 CIV. 331 KBF, 2012 WL 1721124 (S.D.N.Y. May 16, 2012).

On June 6, 2012, Judge Forrest issued an order to clarify whom the injunction covers, mainly that the injunction applies generally and not just to the parties to the action. Hedges v. Obama, 12 CIV. 331 KBF, 2012 WL 2044565 (S.D.N.Y. June 6, 2012).

On August 7, 2012, Judge Forrest held a hearing on whether the preliminary injunction should be converted to a permanent injunction. That same day, the government appealed the preliminary injunction. On September 12, 2012, Judge Forrest issued a permanent injunction. Hedges v. Obama, 890 F.Supp.2d 424 (S.D.N.Y 2012). On September 14, 2012, Judge Forrest denied the government's motion to stay pending appeal.

On September 17, 2012, in an opinion by Judge Raymond J. Lohier, the Second Circuit Court of Appeals ordered a stay of the District Court's permanent injunction pending a decision on the defendants' motion to stay. Hedges v. Obama, 12-3176 L, 2012 WL 4075626 (2d Cir. Sept. 17, 2012). On October 3, 2012, the Second Circuit granted the government's motion to stay.

On February 19, 2013, the Supreme Court of the United States denied the plaintiffs' application to vacate the stay. Hedges v. Obama, 133 S. Ct. 1307 (2013).

On July 17, 2013, the Second Circuit vacated the District Court's decision and remanded. In an opinion by Judge Lewis A. Kaplan, the Second Circuit held that Section 1021 of the 2012 National Defense Authorization Act had no bearing on the government's authority to detain the American citizen plaintiffs and that those plaintiffs therefore lack Article III standing. Moreover, the non-citizen plaintiffs failed to establish a sufficient basis to fear detention under the statute to give them standing to seek preenforcement review. Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013).

On February 11, 2014, Judge Forrest dismissed the case as there were no remaining issues in this matter following the determination of the Second Circuit. On April 28, 2014, the Supreme Court of the United States denied the plaintiffs' petition for writ of certiorari. Hedges v. Obama, 134 S. Ct. 1936 (2014).

Jessica Kincaid - 06/16/2014
- 06/16/2014


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Freedom of speech/association
General
Placement in detention facilities
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Bivens
Defendant(s) U.S.
Plaintiff Description Journalists and activists who fear that their contact with terrorists might subject them to military detention.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2014
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
1:12−cv−00331 (S.D.N.Y.) 02/11/2014
NS-NY-0001-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint 01/13/2012
NS-NY-0001-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Amended Verified Complaint 02/23/2012
NS-NY-0001-0001.pdf | Detail
Notice of Motion for Temporary Restraining Order 02/27/2012
NS-NY-0001-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Supplemental Brief of Plaintiffs in Support of Application for Restraints on the Operation of the Homeland Battlefield Bill Provisions in the NDA 03/13/2012
NS-NY-0001-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Government's Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary Injunction 03/26/2012
NS-NY-0001-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion and Order 05/16/2012 (2012 WL 1721124) (S.D.N.Y.)
NS-NY-0001-0002.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Government's Memorandum of Law in Support of its Motion for Reconsideration of the May 16, 2012, Opinion and Order 05/25/2012
NS-NY-0001-0016.pdf | Detail
Memorandum Opinion and Order 06/06/2012 (2012 WL 2044565) (S.D.N.Y.)
NS-NY-0001-0005.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Notice of Appeal 08/06/2012
NS-NY-0001-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [Permanent Injunction] 09/12/2012 (890 F.Supp.2d 424) (S.D.N.Y.)
NS-NY-0001-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: Non-web U.S. District Court Clerk's Office
Notice of Appeal 09/13/2012
NS-NY-0001-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Government's Memorandum of Law in Support of its Motion for an Immediate Interim Stay and Stay Pending Appeal 09/14/2012
NS-NY-0001-0015.pdf | Detail
Defendants-Appellants' Emergency Motion for Stay Pending Appeal and for Immediate Stay During the Consideration of this Motion 09/17/2012
NS-NY-0001-0014.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 10/03/2012
NS-NY-0001-0010.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 07/17/2013 (724 F.3d 170)
NS-NY-0001-0012.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' report to the court as to remaining Issues on Remand 02/11/2014
NS-NY-0001-0013.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Chin, Denny (Second Circuit, S.D.N.Y.)
NS-NY-0001-0010
Droney, Christopher Fitzgerald (Second Circuit, D. Conn.)
NS-NY-0001-0010
Forrest, Katherine Bolan (S.D.N.Y.)
NS-NY-0001-0002 | NS-NY-0001-0003 | NS-NY-0001-0005 | NS-NY-0001-9000
Kearse, Amalya Lyle (Second Circuit)
NS-NY-0001-0012
Lohier, Raymond Joseph Jr. (Second Circuit)
NS-NY-0001-0010 | NS-NY-0001-0012
Monitors/Masters None on record
Plaintiff's Lawyers Afran, Bruce I. (New Jersey)
NS-NY-0001-0001 | NS-NY-0001-0004 | NS-NY-0001-0006 | NS-NY-0001-0007 | NS-NY-0001-0013 | NS-NY-0001-9000
Mayer, Carl J. (New York)
NS-NY-0001-0001 | NS-NY-0001-0004 | NS-NY-0001-0006 | NS-NY-0001-0007 | NS-NY-0001-0013 | NS-NY-0001-9000
Remes, David (District of Columbia)
NS-NY-0001-9000
Defendant's Lawyers Bharara, Preetinder S. (New York)
NS-NY-0001-0008 | NS-NY-0001-0009 | NS-NY-0001-0011 | NS-NY-0001-0014 | NS-NY-0001-0015 | NS-NY-0001-0016
Brinkmann, Beth S (District of Columbia)
NS-NY-0001-0014
Delery, Stuart F. (District of Columbia)
NS-NY-0001-0014 | NS-NY-0001-0015
Harfenist, Steven Jay (New York)
NS-NY-0001-9000
Harwood, Christopher Blake (New York)
NS-NY-0001-0008 | NS-NY-0001-0009 | NS-NY-0001-0014 | NS-NY-0001-0015 | NS-NY-0001-9000
Johnson, Jeh Charles (New York)
NS-NY-0001-0014 | NS-NY-0001-0015
Loeb, Robert Mark (District of Columbia)
NS-NY-0001-0014
Torrance, Benjamin H. (New York)
NS-NY-0001-0008 | NS-NY-0001-0009 | NS-NY-0001-0011 | NS-NY-0001-0014 | NS-NY-0001-0015 | NS-NY-0001-0016 | NS-NY-0001-9000
Other Lawyers Stone, Jed H. (Illinois)
NS-NY-0001-9000

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