Hedges v. Obama Hearing Transcript
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C3trhedh UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x CHRISTOPHER HEDGES, Plaintiff, v. BARACK OBAMA, et al., Defendants. ------------------------------x New York, N.Y. March 30. 2012 9:00 a.m. Before: HON. KATHERINE B. FORREST District Judge 12 Civ. 331 (KBF) PI Hearing
APPEARANCES
CARL J. MAYER BRUCE I. AFRAN DAVID H. REMES Attorneys for Plaintiff ROBERT J. JAFFE Volunteer Attorney for Plaintiff PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendant BENJAMIN H. TORRANCE CHRISTOPHER B. HARWOOD Assistant United States Attorney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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(Case called) MR. REMES: Your Honor, I'm new to the legal team. I have an order for admission pro hac vice on oral submission that I could submit, if I may. I would also appreciate if your Honor could, I don't know whether you do or not, waive the $200 fee for admission. I'm doing this work pro bono and I'm from Washington, D.C., so I have a lot of expenses. The third thing is may I have from your Honor, please, an order allowing me to bring electronic devices to the courtroom? Today I'm told they hand out the stickers. THE COURT: Does the government have a position on Mr. Remes' application for admission pro hac vice? MR. TORRANCE: No, your Honor, we take no position on that. THE COURT: Mr. Remes, you are admitted pro hac vice. Your motion is granted. I don't know what we do with the filing fee. If I have the discretion to waive the $200 filing fee, then I will do it. I have not been asked to do so before, but I will do so if I can. I leave that up to you and the clerk's office. You can tell the clerk's office that the Court has agreed to waive it and see whether or not that works. MR. REMES: Thank you. THE COURT: In terms of the electronic media that you would like to bring, you are granted authorization to bring it. It still requires there to be certain forms filled out and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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3 C3trhedh stickers I think are given out, the paperwork has to go around the courthouse. It goes to the marshals. MR. REMES: Thank you, your Honor. THE COURT: Here is how I would like to proceed this morning. I'd like to do a couple of housekeeping matters first, figure out if the plaintiffs are in fact going to call witnesses, and if so who, and what the expected duration is of that testimony. Then I would like to make some short statements about the questions that are on my mind. These will be by no means the exclusive questions that I have throughout these proceedings, but will give you a sense of what's been jumping out at me, just to help you think about things as we proceed. Then what I would like to do is move on. If you folks would like to make short statements to begin, you are welcome to do so, but you need not think of it as an opening. We'll go through the witnesses, and then I'd like to go to the oral argument. That is the manner in which I had been thinking of proceeding. Is that acceptable to you folks? MR. TORRANCE: Yes, your Honor. MR. AFRAN: Yes, your Honor. THE COURT: Mr. Mayer or Mr. Afran or Mr. Remes, why don't you tell me who is going to, if anyone, testify on behalf of the plaintiffs today. MR. MAYER: Your Honor, we plan on calling three live SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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4 C3trhedh witnesses today. Those would be, in the order they will be called, Alexa O'Brien, Kai Wargalla, and Christopher Hedges. We also, per our discussions and agreement with the government, would intend to read the statement of Ms. Jonsdottir, who is the Icelandic parliamentarian. For various reasons we did not arrange a video deposition of her. We'll talk about that later before we read the statement. I wanted to see if your Honor had any preference, if you object to us choosing someone to read the statement. THE COURT: I do not object to you choosing who reads the statement. It can be done by anyone. I would ask that there not be voice inflection that we are unable to determine as the voice inflection of the witness. It would be read like a deposition designation, where it would just be read out. But it can be done by anybody. The declaration itself was sworn, so the reader need not be sworn. MR. MAYER: Our intention would be to have that read after the first two witnesses and prior to Mr. Hedges, if that is acceptable to your Honor. THE COURT: It is. Does the government plan on calling anybody? MR. TORRANCE: We will not call anyone. Thank you, your Honor. May I ask one clarifying question? THE COURT: Certainly. MR. TORRANCE: There was a question about which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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5 C3trhedh declaration of Ms. Jonsdottir would be submitted. We have not received the new one. May I confirm that the declaration to be read is the same as the one that was filed a few weeks ago? MR. MAYER: You have that confirmation. MR. TORRANCE: Thank you. THE COURT: Give me a sense, Mr. Mayer, of the length expected length of Ms. O'Brien's testimony. Let's go through this to get a sense of how long we are thinking. MR. AFRAN: I'll address that, your Honor. I think her testimony on direct will probably be 35 to 40 minutes. It could be faster. That's a rough estimate. Based on the deposition, I assume the government probably has a half hour of cross perhaps. I don't want to speak for them, though. THE COURT: Mr. Torrance, Mr. Harwood? MR. HARWOOD: Your Honor, that would be about right, although it could be faster depending on how fast the direct goes. THE COURT: For Ms. Wargalla? Have I pronounced her name correctly? MR. AFRAN: Yes, your Honor. That probably will be short. Her testimony probably will be 20 to 25 minutes on direct. THE COURT: For the government? MR. HARWOOD: The government's cross will likely be shorter as well, probably about 20 minutes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: We know the proximate length of Ms. Jonsdottir's declarations. For Mr. Hedges? MR. MAYER: I would say for Mr. Hedges it should be slightly longer than Ms. O'Brien. I would say perhaps an hour and 15 to an hour and a half. I would anticipate that the cross might be longer, but I'll leave that to the government. MR. TORRANCE: I would guess, your Honor, that we can get the cross in in about half an hour. THE COURT: Thank you. That means that we will either complete the live testimony and the declaration of Ms. Jonsdottir at probably close to lunch, which would leave us the afternoon for what I'm going to call oral argument on both what you believe the evidence has shown in terms of what it goes to in terms of standing issues, likelihood of success, and any other elements of the preliminary injunction standard, as well as anything else that you would want to highlight in terms of this motion. Does it all make sense to you folks? Let me tell you a little bit about where my head is in terms of some of the questions. I've got a large number of questions, but I'm not going to go through them all now. Much of it I would expect will be brought out by you folks, so I'll let you do your thing. But let me highlight for you some of the issues that have jumped to mind. I assume that we all are in agreement that the burden of proof here is on the plaintiffs for the preliminary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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7 C3trhedh injunction. The first issue is going to be the standing issue. The standing issue is an issue that is for each of the plaintiffs. If you have one plaintiff who survives standing, that is sufficient to have the case go forward. If you have no plaintiffs who survive standing, then the case would not go forward. I perceive the standing issue as a plaintiff-byplaintiff issue. Each of the plaintiffs has separate circumstances. One may pass, one may not pass the standing. That's one thing to highlight. In terms of the standard, I am assuming that we agree, but tell me if you don't, that there are essentially three elements. One, present harm, is where the bulk of the time I think has been spent so far in the papers. Two is causation, and three is redressability. In terms of the plaintiffs, I think the plaintiffs here have to address why this section 1021 that we are dealing with in terms of the legislation at issue is analogous to the statute in amnesty sufficient that the Amnesty International v. Clapper decision could and should be the precedent that I should refer to most directly. There are arguments made in the government's papers that the FAA and the particular situation of the plaintiffs in the FAA is different than the circumstances here, that those folks were much more directly potentially impacted. While I understand you filed your brief on cert. and you're taking that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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8 C3trhedh up and there is a lengthy series of dissents pointing out various potential issues with the decision, nonetheless it is the Second Circuit precedent right now that is before me. Also for the plaintiffs, in terms of Holder, essentially it is the same issue, which is: Is the fear or concern of the criminal prosecution reasonable? The Holder decision, which the government did not spend a lot of time on in their papers, really goes to the reasonableness and the credibility of the fear of prosecution. For the defendants, it's possible that Amnesty International v. Clapper, which is the current Second Circuit precedent which I'm bound to follow, has put forward, one arguably could say, a lower threshold in the Second Circuit than maybe had existed before in the Second Circuit. Of course, I am bound by Supreme Court precedent first and foremost, so I would look to the Holder decision if there were things in the Holder v. Humanitarian Law Project decision and any other decisions that were by the Supreme Court if they trumped, if you will, the Second Circuit, as I would be obligated to do. In the Holder decision, of course, Justice Roberts assumes standing because of the criminal nature of the statute. He fairly quickly passes over standing, saying that there was a credible fear, I think is the language that he used, for standing. I'll find that language in due course. Standing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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9 C3trhedh does merge into likelihood of success on the merits, and I agree, I have to say, at this point with the government on that. The plaintiffs can try to argue me out of that. One thing I would like to hear from the government on, and I think you have addressed this in part in our papers but I want to get as crystal clear a statement as I can: Can you represent that these plaintiffs' activities do not make them covered persons under the statute? There are certain activities which are in their declarations and affidavits and that they will, I assume, testify to. The question becomes: Can you say it's crystal clear those activities would not make them covered persons? The government also does represent that the plaintiffs have not pointed to a situation in which the AUMF has been used to detain a journalist. My question for the government is: Has the AUMF been applied against anyone for speech that you are aware of? Back to the plaintiffs. The government asserts that 1021 is really a codification and simply a repetition, and an unnecessary one, according to the President's signing statement of the AUMF. If that is the case, if the Court accepts that, would you agree that the plaintiffs therefore do not have standing? You need to address that. If you don't agree, you will need to point out how this is different from the AUMF. Assuming we get beyond standing -- and we will today SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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10 C3trhedh because we will cover everything today. I will not make a ruling on the record, in case anybody is waiting for that today, on standing. I will reserve. Assuming we get beyond standing and we get to the statute, then we get to whether or not there is a realistic fear sufficient to challenge as well that also goes to standing. Then we have to ask about vagueness and overbreadth of the statute itself, if there is a vagueness or overbreadth, if there is a remedy. I will tell you that I am extremely skeptical that there could be a facial challenge here but not necessarily as a reply challenge. The reason for that is that the statute clearly appears to have some potentially constitutional applications to nonspeech activities. My reading of the law is that if there are a substantial number of plainly constitutional applications of the statute, then the Court really should stay away from a facial challenge. This is not a primarily First Amendment piece of legislation, which would normally reduce the threshold for a facial challenge. While your plaintiffs have brought forward First Amendment allegations, they are not what I perceive to be the heart of this statute at all. They are just potentially covered or encompassed -- let me not use the word "covered" here in the context of the statute without using it in terms of covered persons, that it is potentially encompassed activities. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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11
For the plaintiffs, I also want to make it clear that my view is that not all speech is encompassed by the First Amendment, that there are certain carve-outs that are in a long line of cases that put this speech outside the coverage of the First Amendment. Obscenity is outside the main protections of the First Amendment, incitement to violence is outside the main protections of the First Amendment, and conduct integral to criminal activity is also outside of the core protections of the First Amendment. If it were to be the case that an individual engaged in speech which was core to a criminal enterprise, core to a criminal activity, then I don't, and this is what I would need you to address, perceive that as a First Amendment issue. I see it as potentially a criminal activity. Now, there is a question as to whether or not the speech is a criminal activity or not a criminal activity. But once it reaches the threshold of criminal activity, based upon the case law, there is criminal activity which not considered to be captured by the First Amendment. For instance, if somebody picked up the telephone and called up al-Qaeda and said, here is how you make a bomb, I don't think anybody is suggesting that that speech would be protected speech under the First Amendment. But maybe I'm wrong and maybe your position is that it would reach that. Then, if speech is -- and you can try to talk me out SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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12 C3trhedh of this -- if speech is not covered by the First Amendment -obviously, most speech is. But if a certain type of speech is not covered by the First Amendment and that is the only type of speech which could be captured by this statute, if that were to be the case, then we get to the question of military detention, because that person would be a covered person who may have substantially assisted. We also get to the question of, of course, whether "substantially assisted" is adequately defined and whether it is too vague and all of that. But we get to military detention after we have figured out whether or not there is an activity which brings somebody within the statute. I will tell you that there is a fair amount of case law with the AUMF on military detention. I think the government's papers are fairly persuasive in the sense of the Hamdi line of cases and the other cases showing that there are protections for certain types of military detention. We can address that later. For the government, this is my last point, you talk about the phrase "substantially supported" being well defined in the cases, but you also cite repeatedly to a brief that the government filed in 2009. I see the brief as just the executive branch's statement. It is not a congressional act. It is the government's current perhaps position, but of course administrations can change and positions can change. So SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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13 C3trhedh whether or not a particular administration's position can be a position that we think or have confidence will stick around is something to be determined. The question I have is: What certainty do we have regarding the stability of the definition of "substantially supported"? Also, the cases don't seem to define what equals substantial. If we get past standing and we are into a question as to what constitutes substantial, I need to understand why that is not vague. Lastly, in addition to the language of "substantially supported," there is language in the statute, "directly supported," which I don't find in the other AUMF cases. I note in the government's papers that you were careful not to say that there was identity of language but that the language was virtually identical, nearly identical. I think you are correct in that. However, there are differences. The "directly supported" language is a difference. There is also a difference in 1022, between 1021 and 1022, where American citizens are carved out of certain military detention in 1022. Of course, the law assumes that if Congress put something in one part of the statute and left it out of another part of the statute, it did so intentionally. Lastly, there is no knowledge requirement in 1021. You do say that there is an unwittingly standard, that no one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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14 C3trhedh would be prosecuted who unwittingly substantially supported al-Qaeda, Taliban, or associated forces, but the main support for that I see is in your brief, not in a knowledge component of the statute or in the legislative history. Those are some of my thoughts and questions. If I'm really off on a detour and frolic, you will bring me back to the train tracks in the right way. With that, I will give you folks an opportunity to make some preliminary statements. You need not feel that you need to do so. You can go straight into the witnesses, as you folks see fit. I see this afternoon the oral argument as our main time to address the questions in full that I have just described as well as anything else that you would like to say. But if you want to give brief opening remarks, I'm happy to let you do so. MR. MAYER: Yes, your Honor, if the plaintiffs may make some brief remarks. I'll have some brief remarks, and Mr. Afran will also have some brief remarks on a separate area. Mr. Remes may chime in on a separate point as well. We are very conscious of your time, your Honor. Mr. Afran and I have done this for a while. We were counsel in the Giles case and McMurray case that was recently reinstated against the government for wiretapping in the Ninth Circuit. We promise not to burden your time with repetitive comments or redundancies. We are sort of like an old married SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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15 C3trhedh couple; we finish each other's sentences. THE COURT: That's fine. Let me just say, so that we understand the rules of the road -- and I have had this happen before, what I call the jack-in-the-box phenomenon -- when we get to the witnesses, I assume that you will have only one individual put a witness on direct and one lawyer cross-examine the witness. If it's going to be different from that, then I would ask that you make it discrete topics and try very hard if you are going to split a direct or split a cross really not to cover anything in a duplicative fashion. MR. MAYER: Yes, your Honor. On one of the witnesses we will have just one attorney. On the other two we will divide into discrete topics, if that is acceptable. THE COURT: As long as it is discrete topics, it's OK. MR. MAYER: Thank you, your Honor. THE COURT: Why don't you go up to the podium. There is a microphone there. MR. MAYER: Thank you. If I might begin, your Honor by pointing to what I think is an important argument in the case. (Pause) I don't mean to be overrule dramatic here. I am trying to establish that the argument I'm pointing to is silence. I don't want to burden the court reporter, but if he might indicate there were a few seconds of silence in the room. The silence which I'm pointing to and I think is important, your Honor, is the silence of the government in not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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16 C3trhedh Opening - Mr. Mayer calling any witnesses. I think as a technical matter that, if not shifting the burden on the preliminary injunction standard, eases the burden of the plaintiff, in that one of the factors for the Court to consider is the weighing of the public interest. Since the government will not be offering an explanation for the public interest, I of course would argue that for the plaintiff that should in fact reverse the burden and suggest that we have met our burden on that issue. At a minimum, it certainly eases it, because we are going to discuss how it is in the public interest to place an injunction, and it is unrebutted. The other fact of the government's silence I think also goes to the fact that our witnesses are now uncontradicted. They will be subject to cross-examination, but there is no evidence that will be put in by the government, which also eases our burden. I would also at the outset, your Honor, address a second silence that I think is equally profound and equally important to our case. That silence is the silence of Congress in not defining these terms in the applicable statute, section 1021. There are statutes that define these terms. There are other statutes, such as the Holder case, that refer to material support, arms support, etc. None of that is in section 1021. There isn't even a definitional section. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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17 Opening - Mr. Mayer The second point I want to make about the silence of Congress and the language -- language is important -- is that they could have written into the act a safe harbor for journalists, for activists, for attorneys, and that wasn't written in. My experience is in securities law. There are elaborate safe harbor provisions in the securities statutes for different types of investors. But there is nothing like that in what we call the homeland battlefield provision. The very vague definitional terms that are used in the statute I think, and we submit to the Court, is what is so chilling of free speech. Clapper is chilling. The Clapper case involves, as we have litigated these issues, the question of warrantless wiretapping by the government. This case involves the threat of detention until the end of hostilities, which would be an infinite time. I would submit that this is far more chilling than Clapper. This takes speech out of the refrigerator, takes it down to the basement, and puts it in the deep freeze. The sanctions are so draconian that it can't help to have an even more chilling, I would say freezing, effect on journalists, lawyers. There aren't even any exceptions, incidentally, for judges, for activists. There is no bounds to this vague language. In the absence of language or in the silence of the government in not calling witnesses today -- incidentally, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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18 C3trhedh Opening - Mr. Mayer an aside, your Honor, I want to say that Mr. Harwood and Mr. Torrance have done a very professional job of presenting the government's case. I'm a former special counsel to the Attorney General in this state and actually worked for a summer at the U.S. Attorney's office. I think it is the unwillingness of their client to bring a witness to explain this section of the statute that is telling. They could have had someone from Justice or Homeland Security or any of the other national security agencies to explain the importance of this in the government's program of protecting the country, but they did not. So, I think that in the absence of speech and in the presence of silence, what we really are left with are the President's statements about this bill. The President, in his signing statement, I think he telegraphed the constitutional problems with this section. He said, and I'm quoting, "I signed the bill despite having serious reservations of certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists." Your Honor, it may well be the case that the administration would want an Article III judge to strike down or enjoin this provision. The administration is almost saying that, not just in the signing statement but in their statement of administration policy which we attached to our first papers. THE COURT: Let me pause for one second. Of course, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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19 C3trhedh Opening - Mr. Mayer the legislation was passed by the Congress, who are representatives of the American people and elected. We have three different branches of government. Whether the Obama administration has a view or not, it is legislation passed by the Congress. MR. MAYER: I understand, your Honor. The argument that I made about the silence of Congress in defining the statute is in full force. But I think the executive branch's opinions on this, in my view, should carry some influence, if not weight, if for no other reason than the President is a constitutional scholar and raised in his statement on the bill what we consider to be the fundamental problem with this provision. The President said in that statement that what this bill does or what this law does -- it was a bill at the time -is it contradicts the fundamental American principle that the military does not patrol our streets. That fundamental principle had been in place and repeatedly accepted by the courts ever since Ex Parte Milligan. Having made those general comments, your Honor, I will now turn it over to Mr. Afran to address some of the specific concerns that you had about standards for a preliminary injunction. THE COURT: Let me say that all I need at this point is a preview. We'll get to the lengthier, more in-depth SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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20 C3trhedh Opening - Mr. Afran argument after we have heard from the witnesses. MR. AFRAN: My intention was to be very brief. THE COURT: Thank you. It is not to cut you off in any way. It is to give you an opportunity to speak, but it is also to signal that you will have a much fuller opportunity this afternoon. MR. AFRAN: Thank you, your Honor. I appreciate that. With respect to certain preliminary points -- the Court actually gave us a very thorough outline of its initial thinking -- I was surprised at one point the Court raised, which was the issue of that speech which is outside the First Amendment. THE COURT: I saw your eyebrows raised, yes. MR. AFRAN: I've taught First Amendment law for a long time, and that's why I raised my eyebrows. I'm not sure they raised too high. THE COURT: Sufficient to carry the point. MR. AFRAN: Yes. The point is that the area of speech that is outside First Amendment protection is infinitesimally small. It has big names, such as incitement to imminent lawlessness under Brandenburg v. Ohio, which is core criminal conduct, which I would suggest isn't really speech but conduct directly. Calling up and saying, I've got a recipe for a bomb, is really a conspiracy to build a weapon that is illegal. But to the extent it comes through words, one could say it has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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21 C3trhedh Opening - Mr. Afran speech element. THE COURT: That, Mr. Afran, just so we don't have to get on a detour and frolic about it, is really my point. What do I as an Article III judge do if there is speech, infinitesimally small or not, which is covered if it's core criminal conduct, expressive conduct, that falls outside the First Amendment? One could read your papers as suggesting that all speech of whatsoever nature should never be captured by this statute. The bomb example is a good example of that because it is I think a rather extreme example. Picking up the telephone and telling somebody how to make a bomb may well be the kind of conduct which should be captured by this statute. That was just the question I posed. It was not to suggest that I think we have blown open the First Amendment; it is to suggest that there is a piece of it, a piece of expressive conduct, which is not captured by the First Amendment. MR. AFRAN: I think it is a slight misnomer to say there is a piece of expressive conduct that is not captured by the First Amendment. If one looks at your Honor's list, which was fairly accurate in terms of those areas that could be outside it, while in a sense it comes through speech, it is really conduct that is regulated. When one incites violence, the thing that the law is protecting is really the act of incitement. In Brandenburg v. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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22 C3trhedh Opening - Mr. Afran Ohio the court dealt with the incitement to a group of racists. The harm that is regulated in such an instance is the conduct of riling up those who are imminently likely to commit lawlessness. Unfortunately Justice Holmes, who was very gifted, made one terrible mistake, and that was using the aphorism "one can't shout fire in a crowded theater." It's a brilliant image, but that wrong is not speech. That's really conduct. When you shout "fire," you're viscerally hitting an emotional reaction of the people who panic. What is regulated is conduct, effectively. It's not speech. It may be conduct that comes through words. In the same way, if I walk up to Mr. Jaffe and scream an obscenity in his face one or two inches away, I'm using speech, but the offense is the conduct, it's the assaultive nature of what I've done. So, all speech that is outside of the First Amendment, so to speak, is not outside because of its speech content but because of the conduct, the behavioral aspect, of how it's delivered. And that area is infinitesimally small. When I teach the subject, I say to students, imagine the old idea that if you walk halfway to a wall and stop, if you walk halfway to the wall and stop, walk halfway to the wall again and stop and keep doing it, there will always be half the distance between you and the wall left over, no matter how SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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23 C3trhedh Opening - Mr. Afran infinitesimally small that space is. One can never fill up that space. I say the area in which speech is prohibited is in that tiny theoretical space that is always left over when you go halfway to the wall. So, obscenity, incitement in the Brandenburg context, the core criminal conduct, come through speech but they are really conduct. THE COURT: I don't mean interrupt your flow too much, but it is an important point, and I want to make sure we are on all fours with it as the day progresses. It would be helpful as we go along, but probably not now, but later, if we differentiate this core criminal conduct that can come through speech from the kind of speech which the plaintiffs might want to engage in. MR. AFRAN: I was about to say calling someone and saying, I've the recipe for a bomb, here it is, is vastly different from saying I support their right to make a bomb. I don't think any of our clients speak like that. But using your Honor's example, one can't lawfully within the protection of the First Amendment teach someone else how to build a bomb, assuming it was prohibiting that, but one can endorse the right of someone to build a bomb. In other words, if -- and I do not share this view; we were very careful to note in the complaint we don't share all the vice that our clients might always express -- if one were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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24 C3trhedh Opening - Mr. Afran to endorse the right of Iran to build an atom bomb, that is protected speech. If one were to call Iran with information as to how to build one, that is regulable or prohibitable or punishable. So there is a distinction between the endorsement of conduct by others and the participation in that conduct. One can endorse the right of al-Qaeda to build a bomb. In an extreme case one could endorse the right of al-Qaeda to kill civilians. One can't do anything to assist in that conduct. In the Holder case, the question of material support was really at issue. There was an enormous definitional structure of the type of conduct that falls within that definition of material support. Here we are dealing with something different, and it really is a speech question. Here we are dealing with the notion of substantial support. "Support" standing on its own embraces as much speech conduct as nonspeech conduct. We talk of emotional support, child support. Child support is material financial support. Emotional support is pure speech. The word "support" standing on its own embraces as much speech content as does nonspeech content. Without the definition, it is a speech statute. "Substantially supports" doesn't change anything. Rather, if you add "substantially supports," it doesn't change that. You can substantially give emotional support. You can give SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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25 C3trhedh Opening - Mr. Afran substantial child support. The word "support" equally embraces both dimensions, the speech and the nonspeech aspect of support. So, without definition this is a speech statute because by its terms it brings within it everything that falls under the rubric of "support." In the Holder case they dealt with a very clear definition of the type of conduct that would be deemed material support, all of which could reasonably be regulated by the government. But here we have no definitional structure of any kind. That's the defect. It's as if the government has raised the ante, so to speak, from Holder and now has created a statute that has even more dire implications. It's not even a criminal statute. There is no due process at all available, as there is in the Holder statute. THE COURT: The Holder statute also had a knowing component. MR. AFRAN: Thank you, your Honor. It noted that in your list of points. It had a knowing component. Here we have "substantial support" with no definition which clearly embraces speech, no scienter requirement of any kind. We have no definitions. We do have definitions, so to speak, by the government, but that comes through their briefs in other cases. I'll note very briefly that in their memorandum from March 2009 they cite their description of how the AUMF as a policy matter embraces the same things that are now in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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26 C3trhedh Opening - Mr. Afran statute. As your Honor pointed out, that was their brief, that is not authority. The cases derived under the AUMF never reached this point. They never reached the point of civilians and noncombatants giving substantial support to a group with no definition. They all dealt with combatants who were arrested, who were taken and captured. So, the government's policy has never been adjudicated. The government's view that the AUMF embraces the same thing as the statute is not a part of the any of the case law with respect to noncombatants. That is the material distinction here. We are in a setting in which there are no authorities to back up the government's position that this is merely the AUMF recodified into a new section. Mr. Jaffe has copies of both statutes. That is very helpful. He would like to distribute them at some point. When you look at them both side by side, the AUMF contains none of the policy language that the government says it believes flows from the AUMF. THE COURT: Let's pause there. I want to move on to Mr. Remes if he has something he would like to add, and also to the witnesses, but let's just be clear. The very first sentence of the statute does say, "Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the authorities for use of military force," which is the AUMF. So there is language at the start of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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27 C3trhedh Opening - Mr. Afran statute which does suggest that all it's doing is reiterating the AUMF. MR. AFRAN: Yes and no. It does say we have a starting point and we reaffirm that. I think Congress does it in part because it doesn't want to be seen as negating the AUMF by a new statute. If your Honor exams section 1021(b)(1), that deals with persons who are combatants by any reasonable definition. We are not challenging (b)(1). We are challenging (b)(2), which is a separate section. As you said, Congress must be taken at its word when it creates a section that is different. It does not have, for example, a carve-out of citizens, as another section does. When you have a separate section, Congress is going beyond the prior section. There is no other way to interpret that. They are not even linked together in any way. Here we have a separate section that does contain the policy language that the government cites to from its prior briefs but which was never part of the adjudication in any prior case. So we are moving well beyond the AUMF. That is a fundamental point that needs to be recognized. Further, your Honor referred to possible prosecution of persons under the statute. I take issue with that word only because this is a noncriminal statute. There is no criminal prosecution. That also distinguishes it from Holder, as we just discussed because there is no process mandated here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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28 Opening - Mr. Afran THE COURT: Let's pause again. I do want to get on to Mr. Remes. It is certainly the case that there are now a number of Supreme Court decisions which read into military detention certain due process rights, including habeas corpus and certain due process rights relating to trials, even if they are trials by military tribunal. So, the fact that it is not stated on the face of the statute does not eliminate the fact that the Supreme Court has stated unambiguously that there are due process rights that come along with certain types of detention. MR. AFRAN: I was only drawing the fact that the statute is actually much more potentially harmful because it does not embrace criminal conduct, which automatically brings a whole panoply of due process protections into place. I would point out, your Honor, that the due process that comes through the military commission process deals with combatants, and those statutes are directed only to combatants. The final point is the government puts a lot of stock on Hamdi. It says Hamdi has validated much of the government's inferences under the AUMF. That is correct only as to combatants. Hamdi very clearly goes out of its way to say civilians may be detained in military detention only where named in armed conflict with the United States. So, with respect to the facial question, the statute is facially unconstitutional, section 1021(b)(2). That is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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29 C3trhedh Opening - Mr. Afran precisely what Hamdi says cannot be done. By not limiting itself to combatants, as section (b)(1) does, (b)(2) tramps right into the territory that Hamdi said can't be entered with respect to civilians in the United States. So we have a dimension that the government doesn't really acknowledge under Hamdi. It uses Hamdi to support its position but ignores that language. Now, if the Court would issue a declaratory judgment that section 1021(b)(1) and (2) apply only to combatants, that would redress. We have declaratory and injunctive relief in our complaint. As it stands now, it's drawn in a manner that brings all that speech conduct in and palpably is directed to noncombatants. That is the only reason for adding subsection (2). If combatants were the only people at issue, you don't need subsection (2), not cast in that broad language. I think I have said enough except to say that our witnesses will describe in some greater detail their activities that do create an objectively reasonable fear. I would also note Mr. Hedges -- I don't know if he is in the room yet; yes, he is here in the back -- is subject to Clapper as an individual party. We think some of what is in Clapper as to him probably might have some res judicata effect. But I think that is for later briefing. I don't think that is before you today. Thank you, your Honor. THE COURT: I want to make one other point. You don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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30 C3trhedh Opening - Mr. Afran necessarily need to address this now, but it comes out of what you just said, the concept of armed conflict and being in armed conflict deriving, if you will, from Ex Parte Milligan and the threat of that going throughout a number of cases. It's not been briefed, but I'd like consideration as to whether or not the phrase "armed conflict" changes in a 21st century world. Does armed conflict have to be weaponry which will eject an explosive projectile, or can armed conflict encompass also other activities? Therefore, you can be an enemy combatant engaged in armed conflict potentially -- this is an argument; I'm the devil's advocate, plaintiff's advocate here -- where, for instance, you use a cell phone to do something that says why don't you -- again, this is conduct that might not be covered or would not be covered, we might agree, by the First Amendment -- there are people over in X, Y, and Z place, now is the time to detonate the bomb. That person may not themselves be engaged in armed conflict. They may not have arms. They may never have borne an arm. They may be 3,000 miles away from wherever there is a weapon which could eject an explosive projectile. They may nonetheless be considered to be an armed combatant. MR. AFRAN: I would very briefly address it to sort of dispel an inference from your Honor's comments. Armed conflict means conflict using deadly force against an enemy. In the Middle Ages they might pour hot oil down the ramparts, there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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31 C3trhedh Opening - Mr. Afran might be arrows used, projectiles with an explosive power. Some projectiles didn't explode, just blew holes in bodies. I once a projectile from a musket shot into a phonebook. It went clean through the phonebook. It didn't blow up, but it went through. There are all sorts of ways to be involved in armed conflict. Those engaged in designing the bomb in the Manhattan probably were engaged in armed conflict. For our side, of course, what we say was a good cause. There may be a dispute about that. But they were engaged in armed conflict. The definition of "armed conflict" has always been broad. Those who plan a war are engaged in armed conflict. THE COURT: I think we are in agreement. MR. AFRAN: Thank you. But it doesn't extend to those who give political support necessarily to those who are engaged in a conflict, and it doesn't extend to those who think another side might be right. That is a different question. That might be sedition if sedition is punishable, but that is not participation in armed conflict. Thank you. THE COURT: Thank you. Mr. Remes, do you have anything to say? MR. REMES: I do, your Honor. A few quick points, if I may. On the last point, "armed conflict" is a term with a settled meaning under international law. Second of all, Hamdi held that a U.S. citizen has a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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32 C3trhedh Opening - Mr. Remes due process right to challenge his detention. I call your Honor's attention to the fact that the definition of "combatant" in that statute was extremely narrow, battlefield activity, and doesn't really apply in this setting. I have represented Guantanamo detainees since 2004. I have been involved in the drafting and legislative process for the NDAA going back to the AUMF. So I'm pleased to speak to those issues. I won't speak to them now, but I'd like to submit for the Court's convenience Plaintiff's Exhibits 1, 2, and 3, which are texts. THE COURT: Have the defendants seen these? Why don't you, Mr. Harwood and Mr. Torrance, take a quick look at them before they are handed up to the Court. MR. REMES: They have no objection, your Honor. The first exhibit is the AUMF. The second exhibit, because I thought it might be helpful to have the language in front of your Honor, are the detainee provisions. The AUMF is the first one, the detainee provisions of the NDAA is the second one. And the relevant page from the government's March 13, 2009 memo is there. MR. HARWOOD: Your Honor, I'm looking at the document that purports to be section 1021, what we are here to discuss today. I would suggest that we have a copy that has been marked as an exhibit in prior depositions, the public law version of it that the parties have agreed is the official SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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33 C3trhedh Opening - Mr. Remes language, and that we use that rather than this document, which is lengthy and we haven't actually seen before. MR. AFRAN: Your Honor, I saw that exhibit in the depositions. It doesn't contain the full statute, however. Sections 1023 and 1024 are referenced in the government's brief. These are part of what Mr. Remes has. MR. REMES: That's right. MR. AFRAN: The deposition exhibit does not go beyond the first part of 1023. MR. REMES: Your Honor, I'm happy to submit a public law version so there can be no doubt about the authenticity and accuracy of the language that I quoted. But I represent that it is the statute as it is. This is simply for the convenience of the Court as we go through the argument. MR. HARWOOD: We would object to the annotations on it. THE COURT: The underlining. MR. HARWOOD: The underlining and the caption. MR. REMES: That is not part of the official law. THE COURT: Here is what I'm going to do. I have my own handy copy of the statute. It has all of my underlinings because I have been studying this actually before today. That's the one I'm really going to use. Nonetheless, I will accept what the plaintiffs have offered with all of the caveats that have been provided. I know that the underlinings of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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34 C3trhedh Opening - Mr. Remes words "substantially supported" and "directly supported" did not come from the Congress, nor the caption. MR. HARWOOD: Or the type in the heading. THE COURT: "Detainee Provisions," is that something that you folks added? MR. REMES: Yes, we added the caption. THE COURT: I'll ignore the caption. MR. REMES: As well as the annotations. If you look at (2)(a)(ii) in the AUMF, that really corresponds to 1021(b)(1). The language in 1021(b)(2) is where the vagueness issues arise with respect to "substantially supported," "associated forces," and "directly supported." Then I would go to the March 13, 2009, filing that the government made in the Guantanamo cases, which is the third item I have given you, your Honor. I have photocopied page 2. I'm not suggesting that we all go through this right now. I just want to make the point that the statutory language that we have here with (b)(1) and (b)(2) is essentially the indented language in the government's memorandum. In other words, Congress codified the language that's in the March 13, 2009 memo. The reason this is important is that if your Honor in due course will consider the next paragraph, where the government purports to explain the detainability standard, the government essentially says it means anything we want it to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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C3trhedh mean.
Opening - Mr. Remes
35
THE COURT: As long as you brought this up -- and I do want us to move on to the witnesses, because otherwise there are many fascinating issues here that could detain us, so to speak -- I do want to know that the phrase "substantially supported" has been a phrase which has been cited in the Court of Appeals, District of Columbia Circuit, in the Barhoumi case, which affirmed a lower court case where the phrase "substantially supported" under AUMF was raised, and also in the Salahi case. So it's not as if it springs from the head of Medusa. MR. REMES: Or the head of the D.C. Circuit. The court is using the detainable standard that is offered by the government. The issue in the Guantanamo cases has never been, as far as I can recall, the application of these terms in a speech-related context. The issue here is not whether these terms have a settled meaning as terms of art. If you look at the Annals of the International Committee of the Red Cross, you could find definitions for these terms questioned from a vagueness standpoint. It's a notice point: Would a person of ordinary intelligence and knowledge looking at this language know what it means? It's really independent of whether there is some library book that has a definition in it. If you are just reading this for the first time and asking yourself, well, does SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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36 C3trhedh Opening - Mr. Remes this statute potentially encompass my speech, that's the context in which we submit, your Honor, you have to look at terms like "substantially supported" and "associated forces." With respect to the facial challenge point, I think it goes most of all to the point of vagueness, because you can't challenge individual applications when you are saying something is too vague to know what it applies to and where the effect is already being felt in terms of the chill. That has to be a facial challenge if it doesn't give notice to those who are potentially affected by it. Lastly, your Honor, sorry to take so long, I don't think there is any law that says, in the context of the chill of First Amendment rights, that you have to wait for the law to be enforced against you or you have to wait for the law to be enforced against someone else. The whole idea of the chill is that people remain silent and therefore the law isn't enforced against them. I make that point in terms of the facial challenge. Thank you, your Honor. THE COURT: Thank you. Mr. Harwood or Mr. Torrance, do either of you have any preliminary statement you would like to make? MR. TORRANCE: Your Honor, unless the Court has any questions, we will forgo an opening statement. THE COURT: I think I will have a number of questions for you, including addressing the points that I had raised at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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37 C3trhedh O'Brien - direct the beginning of our session this morning, but we can hold those until we have heard what the witnesses have to say, which then may assist you in informing how you would like to address those questions. MR. TORRANCE: Understood, your Honor. THE COURT: Mr. Mayer and Mr. Afran and Mr. Remes, who would like to call the first witness? MR. AFRAN: I shall, your Honor. That is Alexa O'Brien. ALEXA O'BRIEN, called as a witness by the plaintiffs, having been duly sworn, testified as follows: THE CLERK: Please state your full name and spell your last name slowly for the record. THE WITNESS: Alexa D. O'Brien, O-'-B-R-I-E-N. THE COURT: Ms. O'Brien, you may be seated. You may want to adjust the microphone. There should be water and cups there if you would like it. Mr. Afran, are you going to do the examination? MR. AFRAN: Yes, I will. Would your Honor like me to go to the podium? THE COURT: Yes. I think the podium is better because of the microphone. Let me note while you are getting yourself ready, Mr. Afran, that I do have a laptop here beside my on the bench. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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38 C3trhedh O'Brien - direct does not have my email on it or Amazon.com. I'm not surfing the web. I has LiveNote on it, which is a real-time transcript from what the court reporter is recording. It allows me both to watch in real time what is being transcribed so that I can see the words. It also allows me to mark certain portions of the transcript. So, when people see me glancing at it, that's what I'm doing. Mr. Afran, you may proceed. MR. AFRAN: Thank you, your Honor. We appreciate that explanation. Sometimes you see judges doing correspondence, and you say, are they listening to us? Thank you. THE COURT: I am listening intently. MR. AFRAN: I know that. Your Honor, we will have some exhibits. Unfortunately, the speed of this case resulted in Ms. O'Brien bringing us the copies this morning, the full group. At some point I may need five minutes to pull out certain things. I don't want to give the government a whole stack and have them fish through, so I may need a break of five to ten minutes to do this at some point. THE COURT: OK. DIRECT EXAMINATION BY MR. AFRAN: Q. Ms. O'Brien, before we go specifically into testimony, describe your occupation and profession. A. I'm a content strategist by trade. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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39 C3trhedh O'Brien - direct Q. Could you explain what a content strategist is. A. On the front end it deals with the architecture of websites, so user flows, how people find information. Those could be users, it could be customers. On the back end it deals with how that information is structured within a database, creating taxonomies, things of that nature. Q. When you refer to "taxonomies," what does that refer to? A. It's like a filing system for a database. Since a database is essentially zeros and ones, it's not like a filing cabinet in alphabetical order. You have to be able to find content by creating what is called metadata. People will search, for example, by terms. It's how you categorize information so that people can find it. Q. I would like you to describe your educational background after high school. A. I have a BA. Q. From? A. From Kenyon College. Q. What was the subject of your BA? A. Political science. Q. Do you have any graduate work beyond that? A. No. Q. In your work as a content designer and strategist, do you design websites? A. The strategy around websites. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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40 C3trhedh O'Brien - direct Q. Do you operate a website yourself or do you have input into a website? A. Yes. Q. What is the name of that website? A. U.S. Day of Rage and my personal website. Q. Is WL Central your personal website? A. No. Q. Is who owns or controls WL Central? A. That's actually changing this week. There is a discussion of who the new editor in chief will be. Q. Why don't we discuss it as of today. A. Heather Marsh. Q. What organization or entity controls ultimately WL Central? A. Controls in what way? Q. Who owns it? A. Heather Marsh. Q. Are you involved with WL Central in any way? A. Yes. Q. Would you describe generally your involvement. A. I'm a contributor and an editor. Q. Describe what WL Central. A. It's a collection of journalists across the world who cover news. Our definition of "news" is information that enables citizens to govern themselves. Q. In terms of your contributions, describe in general the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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41 C3trhedh O'Brien - direct type of material you contribute. A. I have covered the WikiLeaks release of U.S. state department cables, the JTF memoranda for Guantanamo Bay. I have covered revolutions in Egypt, Bahrain, Yemen, and Iran with live blogs and such. I have also covered the legal proceedings for Bradley Manning and have investigated the U.S. government's cases against Bradley Manning, WikiLeaks, and Julian Assange by building a time line of those documents. Q. When did you first begin contributing to WL Central? A. Early January of 2011. Q. Do you know approximately how many pieces you have written that have been published on WL Central? A. I say approximately. I'm going to say 50. Q. You supplied to counsel today several articles from WL Central. Is there a particular reason why you chose this particular group of articles? A. Those articles were brought up in my deposition. They relate to this particular case. Q. To what extent are these articles typical of your journalistic contributions to WL Central? A. They are a type of coverage that I have done for WL Central related to that subject matter. MR. AFRAN: Your Honor, I have given the government a group of those articles referenced, but I will hold off introducing them until the government has had a chance to look SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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42 C3trhedh O'Brien - direct at it and see if there are any objections. THE COURT: Thank you. Q. With respect to U.S. Day of Rage, describe your involvement in that organization. A. I'm a founder and I participate in the activities. I organize for it. Q. When you say you're a founder, what was your role in the creation of this group? A. I parked the Twitter profiles and domains and began the initial activity in starting it up. Q. Do you still maintain a connection with U.S. Day of Rage? A. Yes. Q. Has your connection with U.S. Day of Rage changed since it was founded? A. I don't understand the question. Q. When was U.S. Day of Rage founded? A. March of 2011. Q. Have you continued with U.S. Day of Rage since then? A. Yes. Q. Describe the organizational purpose of U.S. Day of Rage. A. There is one purpose. We want to reform our corrupt elections, and we have two ideas around that: That only citizens should be allowed to give campaign contributions and that that should be capped at a level that prevents the wealthy from capturing government. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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43 C3trhedh O'Brien - direct Q. With respect to U.S. Day of Rage, did there come a time when other purposes began to be attributed to it, to your knowledge? A. Yes. Q. When did this first begin? A. It appears in August. Q. August of what year? A. August of 2011. Q. Describe the connection which this first began to appear. A. In February of this year a document was released on the WikiLeaks website that showed a conversation, an email correspondence, between a gentleman named Thomas Kopecky of a private security contracting firm and Fred Burton of Stratfor telling him that he had been asked to specifically tie U.S. Day of Rage to Islamic fundamentalist movements. Q. Who was Kopecky? Did he indicate his associations, where he worked? A. Yes, two companies: Investigative Research Services and Fortis. MR. HARWOOD: Your Honor, I'm going to object to the testimony regarding this document as hearsay. THE COURT: I anticipated as much. I am going to overrule the objection and allow the testimony. It's not clear to me that it is actually coming in for the truth but coming in for the fact that it was presented, also for state of mind. In SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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44 C3trhedh O'Brien - direct any event, it probably falls under the generalized hearsay exception if it were. MR. HARWOOD: We would just object to it coming in for the truth. THE COURT: Understood. MR. AFRAN: It is also for purposes, your Honor, to reflect that we were not offering it for the truth of the matter. I would also note, your Honor, as a legal point with respect to that, obviously the objectively reasonable fear standard in Clapper, for example, and other cases primarily must relate, at least in one of its incarnations, to the state of mind of the individuals. THE COURT: That's why I mentioned it. MR. AFRAN: Thank you. Q. How did this communication come to your attention? A. I found it on the WikiLeaks website. Q. In your certification which you signed, did you reference that particular communication? A. Yes, I did. Q. Was that reproduced in whole or in part in the affidavit? A. I believe it was produced in whole. Q. Can you recall the statements made offhand sitting there today? A. I can recall one specific statement very clearly. Q. Would you identify that statement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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45 C3trhedh O'Brien - direct A. It was a statement that this gentleman, Mr. Kopecky, had been asked specifically to tie U.S. Day of Rage to fundamentalist Islamic movements. Q. Did he say who asked him to do that? A. No. Q. Had you ever heard of Kopecky before? A. Never. Q. Had anyone ever previously indicated they were looking at your organization with respect to Islamic fundamentalist movements, to your knowledge? A. In terms of the chronology of the facts that it presented, no. MR. HARWOOD: Your Honor, I'm sorry to interrupt. I'm going to object. A lot of these questions are leading. I would just like to object. THE COURT: Noted, Mr. Harwood. Why don't you try to be less leading. But I'll allow the questions. MR. AFRAN: I don't think it was leading, but I'll try to avoid the impression and I'll try to avoid the issue. Q. Who did Kopecky respond to? A. It is my understanding that it is a legal exchange between Thomas Kopecky and Fred Burton, who through my own work as a journalist and research I know is a former diplomatic security service official. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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46 C3trhedh O'Brien - direct Q. Who did Burton work for, to your knowledge? A. He worked for DSS, but in the context of his email he is at Stratfor. Q. I'm sorry. DSS standards for? A. Diplomatic security service. Q. Is that a private company, to your knowledge, or a government agency? A. That's with the U.S. state department. He worked for the U.S. state department, for diplomatic security services, in his previous employment. Q. When this email exchange arose -MR. HARWOOD: Objection, your Honor. Foundation. THE COURT: Overruled. You may proceed. Q. With respect to this email exchange that you testified to, are you aware of who he was working for at that time? THE COURT: If you know. A. He is the head of counterterrorism at Stratfor. He's like the chief counterterrorism officer at Stratfor. Q. Who is Stratfor or what is Stratfor? A. That's a good question. It's a subscription-based global insight intelligence -- it is a private intelligence company. THE COURT: What is the basis of your knowledge for that? THE WITNESS: That's just through press reports. Actually, I subscribe to Stratfor myself. They have produced SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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47 C3trhedh O'Brien - direct global intelligence reports, things of that nature. MR. AFRAN: Your Honor, there are documentations of the communications, but to save time going through the group, which is not in the particular order this way, I would like to do that afterwards. I will introduce them at that point. THE COURT: Fine, yes. Q. Were there any other communications concerning Kopecky in that inquiry that you testified to? A. No. Q. Did you receive other communications with respect to your organization? A. Yes. Q. Describe the next one that you recall. A. I received private messages on the social networking site Twitter -- they are called direct messages, or DM's -- from a private security contractor called Provide Security. Q. Had you any prior contact with Provide Security before that time? A. The company profile had publicly tweeted us I believe a week earlier. Q. I'm not actually that up on Twitter and others may not be. Could you explain what you mean by a tweet. A. A tweet is a 140-character or less message, text-based message, it could also attach a photograph or a video, that is sent over the web on Twitter, the social networking site. You SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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48 C3trhedh O'Brien - direct sign up and you get a profile and you could publicly tweet people with these messages. If they follow you and you follow them, they can send you direct messages or private messages. Q. The Provide Security message was a direct message or private message, is that correct? A. Yes, that's correct. Q. What did that message say, if you recall offhand, the text? Or do you need to look at the document? A. I can recall in a general way what it said. Q. Why don't you describe that at this stage. A. There were three messages. One of them said that U.S. Day of Rage had been found on an Islamic jihad site. The second message implied and said that we were being infiltrated by Anonymous, which is a group, an organization that the U.S. government considers cyberterrorists. I don't recall the exact specifics of the third message, but it was basically in that vein. Q. Can you state the exact contents without reference to the document itself? A. Verbatim? Q. Yes. A. No. Q. Would it refresh your recollection to examine the actual tweets? A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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49 O'Brien - direct MR. AFRAN: Your Honor, for the record, I have presented the witness with a printout of the tweets. They are also reproduced at paragraph 19 of the certification. THE COURT: OK. Q. Could you state the date of the tweets. A. September 1, 2011. Q. I'd like you to read for the record each of the tweets. These come from Provide Security, parentheses "At Provide Security" closed paren. You don't need to repeat that name each time, but could you read the text of each of the three tweets. A. Yes. "Now you are really in over your head with this. Muslims from an Afghanistan jihad site have jumped in." Then there is a link. The next: "You seem peaceful but are not," hashtag. Anonymous will tarnish your reputation and fast. They plan to hack NYPD and banks for" hashtag "Occupy Wall Street with" hashtag "refref." Q. The third one? A. "Just a heads-up. I watched your training videos. But do you realize the Anonymous relationship" slash "infiltration will cause you many problems?" Q. There is a reference to an individual's name at the bottom of the tweet. Whose name is that? A. That's one of the managing directors of Provide Security. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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50 C3trhedh O'Brien - direct His name is Thomas Ryan. Q. What does the name Thomas Ryan mean in the context of the tweet, to your knowledge? Did he send that? A. To my knowledge, the company Provide Security sent them. Q. In terms of a tweet, why would an individual name appear? A. That is actually something I wrote in to identify. Sorry about that. MR. AFRAN: I'm sorry. Your Honor, we did not know that that was not part of the document. Let the record reflect that the last line in paragraph 19 in what will ultimately be an exhibit is not part of the integral document. That was added. THE COURT: OK. Q. Did your organization ever participate in an Islamic jihadist site? A. No. Q. What contacts, if any, did your organization have with Islamic jihadists? A. None. Q. Describe for the Court who Anonymous is, to your knowledge. When I say "who," I mean what is this entity or organization? A. My understanding is that Anonymous is a group that is probably best described as an Internet swarm. Q. Could you say what a swarm is in the context of the Internet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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51 C3trhedh O'Brien - direct A. Sure. Nowadays many people organize by ideas as opposed to by having weak social ties, like not the Elks Club but many weak social ties built around the Internet. One could say, I would say, that Anonymous is a group that organizes around ideas. Q. Do you know what those ideas are that they focus upon? If you don't know, say so. A. I don't know. There are many ideas, I would say. Q. Do you have any understanding as to why the author of the Provide Security tweet or tweets referenced Anonymous in the context that they did in the tweets that you read? A. I have an idea based on other information that I received. Q. What is your understanding, then, as to why one would refer to Anonymous in this type of tweet? MR. HARWOOD: Objection, your Honor. Speculation. THE COURT: If you know. If you don't know and you're speculating, then don't speculate. MR. AFRAN: She said based on things she has read. Let me go further before I ask that question. Q. You say you have read or seen other matters relating to Anonymous? A. This is related to being contacted by a federal agent specifically. My understanding of what this means -Q. Stop right there. MR. AFRAN: I'll go further, your Honor. I'll lay a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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52 C3trhedh O'Brien - direct foundation first. THE COURT: OK. Q. You just mentioned you were contacted by a federal agent. During deposition you were asked about these questions. At the point when you were asked to identify the individual, you had represented confidentiality. Is that still an issue today in terms of his identity? A. Yes. MR. AFRAN: Your Honor, I'm asking Ms. O'Brien the questions because, again, it goes to the issues we raised, state of mind and the question of the objective reasonableness. She represented confidentiality to the source. I don't think the name is material to the issue of the objective reasonableness and state of mind, depending on whether she testifies that she knows who this person is and his function. THE COURT: All right. Proceed. Q. You say you were contacted by a federal agent, is that correct? A. That's correct. Q. Is this someone you have known personally? A. Yes. Q. How long before this contact had you known this person? A. Maybe six to eight months. Q. What is their occupation, without identifying any agency? What is their general occupation, to your knowledge? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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53 C3trhedh O'Brien - direct A. They identified themselves as a federal agent. Q. When they said a federal agent, did they state to you, without stating the name of any agency, did they state to you the agency itself? A. They might have, but I forgot it. Q. When were you contacted by this person, approximately? A. Early September. Q. Of 2011? A. Yes. Q. What was the communication given to you? Strike that. What was said? A. That they had seen a classified memo sent by DHS to law enforcement across the nation that considered U.S. Day of Rage to be, quote, likely high-level Anonymous; that the U.S. government considered U.S. Day of Rage to be organized mainly out of the Northeast; and that they planned on infiltrating the crowd and collecting information on the organizers of U.S. Day of Rage and also on September 17th of Occupy Wall Street in order to classify them. Q. In these conversations did they specifically refer to U.S. Day of Rage as you just said? A. To my understanding, from my recollection of the conversation, yes. Q. You say you had an understanding from this discussion as to why Anonymous is being raised in this context. Could you state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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54 C3trhedh O'Brien - direct what that understanding is. A. It's in the third tweet, the statement, "But do you realize the Anonymous relationship/infiltration will cause you many problems?" Q. What was the fear as to Anonymous's activities that gave rise to this concern, to your knowledge? A. Cyberterrorism. Q. When you say "cyberterrorism," what do you refer to by "cyber"? What is cyberterrorism? A. I believe they are referring to taking down the stock exchange. That's what the refref is. MR. HARWOOD: Objection, your Honor. THE COURT: Sustained. Q. What is refref? A. I don't know a lot about refref. It relates to some sort of -MR. HARWOOD: Objection, your Honor. THE COURT: Yes, sustained. I think the question is just a general description of what is cyberterrorism. Cyberterrorism is terrorism that relates to the Internet and various websites on the Internet and things of that nature? THE WITNESS: Yes. "Cyberterrorism" refers to what the U.S. government considers to be destructive to the interests of the United States, that's my understanding of it, on the Internet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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55 C3trhedh O'Brien - direct Q. In your affidavit, or your certification rather, you refer to an individual named Thomas Ryan, is that correct? A. Yes. Q. To your knowledge, who is Thomas Ryan and why have you referenced him in this case? A. To my knowledge, Thomas Ryan is one of the managing directors of Provide Security who wrote an article about U.S. Day of Rage linking us to al-Qaeda. Q. Is that article reproduced in your certification? A. Yes. Q. Did you also provide a copy of the article? A. I did. THE COURT: Mr. Afran, when you reach a logical stopping point, I'll do two things. One, we will take a mid-morning break. I'm also going to ask you how much more time you've got with this witness. MR. AFRAN: It's taken a little longer than I thought. Probably, I hate to say this because I'm always wrong -THE COURT: That's a bad way to preface something. MR. AFRAN: We have a duty of candor. I would say 25 minutes. THE COURT: Are you at a logical stopping point right now? MR. AFRAN: Yes, because I want to pull the exhibits out. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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56 O'Brien - direct THE COURT: Why don't we take a break. Before we do, I want to ask the witness just a couple of questions. Ms. O'Brien, has U.S. Day of Rage ever engaged in armed conflict with the United States? THE WITNESS: No. THE COURT: Has U.S. Day of Rage ever been a co-belligerent with al-Qaeda or the Taliban? THE WITNESS: No. THE COURT: To the best of your knowledge, has WL Central ever been involved in armed conflict with the United States? THE WITNESS: No. THE COURT: To the best of your knowledge, has WL Central ever been a co-belligerent with al-Qaeda or the Taliban? THE WITNESS: No. THE COURT: Thank you. Why don't we take a mid-morning break. Five minutes. (Recess) THE COURT: Mr. Afran, you may proceed. BY MR. AFRAN: Q. Ms. O'Brien, in your affidavit at paragraph 20 you reference Mr. Ryan and an article he wrote. I had just been directing questions to you about Mr. Ryan. Could you tell me why you have referenced Mr. Ryan as a part of this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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57 C3trhedh O'Brien - direct A. He published an article which directly associated U.S. Day of Rage with al-Qaeda and terrorists. MR. HARWOOD: Your Honor, I would object to the characterization. The article speaks for itself. THE COURT: The article will speak for itself. You can proceed, Mr. Afran. MR. AFRAN: Thank you. Q. The article is reproduced in the affidavit. It is also reproduced in a separate document. Can you state verbatim the contents of the article without looking at a replication of it? A. No. Q. Would it refresh your recollection to examine your affidavit, to refer to the relevant portions? A. Yes. Q. How did you first learn of Mr. Ryan and his comments? A. I have an alert set up in my Google Gmail for U.S. Day of Rage and our hashtag USDOR, so I'm aware in a timely fashion what kind of stuff is being written about us. Q. With reference to the portions you have selected in your affidavit, I'd like you to read them into the record. THE COURT: Let the record reflect that Mr. Afran handed to the witness a copy of I assume the entirety of her affidavit. MR. AFRAN: Yes. THE COURT: You want her to read all five paragraphs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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58 O'Brien - direct MR. AFRAN: I believe so, your Honor, because they all reflect the basis of her reference to Mr. Ryan. THE COURT: I don't think it is necessary that she actually read them into the record. The affidavit is part of the record on a preliminary injunction. If you want to point her to specific parts, in the interests of time I think that would be more helpful. MR. HARWOOD: Your Honor, while he is doing that, I want to object to the article coming in, statements in the affidavit. There is a very significant typo in what is written in the affidavit from what is actually in the article. MR. AFRAN: Yes. I'll discuss that. I'll note that. THE COURT: Thank you. In any event, it's not going to come in for the truth. MR. AFRAN: No, your Honor. In the deposition Ms. O'Brien noted on her own initiative that this typo existed. We are going to file a notice of errata with the Court to correct it. THE COURT: You can do it orally now. You don't need a formal notice. MR. AFRAN: In the third paragraph that is reproduced, in paragraph 20, I'll read the sentence. "As we engaged in monitoring its growth, we recruited other people to help U.S. begin the collection of data available via social media." As it's printed, it reads "to help U.S. begin the collection of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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59 C3trhedh O'Brien - direct data social available via social media." In her deposition Ms. O'Brien explained that when she was proofing that text and this document, she was looking for errors about U.S. Day of Rage being reproduced. Very often it is typed "us" rather than "U.S." for U.S. Day of Rage. She did a find and replace and inadvertently replaced the ordinary "us," u-s, with "U.S." in the upper case. It should read, "As we engaged in monitoring its growth, we recruited other people to help us begin the collection of data available via social media." It should not read "to help U.S. begin." When I say "U-S," I refer to the abbreviation United States, for the record. THE COURT: Thank you. MR. AFRAN: Following your Honor's request, I'll ask her to select. Q. As the Court noted, the entire document is in the record. I'd like you to read the fourth paragraph that has been selected in the indented quote in paragraph 20. It begins with the word "Then, at the end of August." A. "Then, at the end of August we were alerted by a follow researcher that information about USDOR (U.S. Day of Rage to which Occupy Wall Street is connected) had been posted on Shamuk and Al-Jihad, two al-Qaeda recruitment cites. We began to take the 'Occupy' protest more seriously and dedicated more time to research and monitoring." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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60 C3trhedh O'Brien - direct Q. I'd also like you to read the next paragraph as well. A. "Days later Anonymous announced that it would be releasing its new DDOS (distributed denial of service) tool. Because of the al-Qaeda posting, we contacted the New York field office of the FBI so they could investigate the potential threat. From that point on, we decided we needed to include the human element of intelligence (HUMINT) and to infiltrate the protesters to map their ties to Anonymous and to the postings on Shamuk and Al-Jihad." MR. AFRAN: Your Honor, I presented a copy of the actual article to the government. We would like to move the article in as an exhibit. THE COURT: It's going to come in for identification, not in as evidence. It's not coming in for the truth. How have you marked it? MR. AFRAN: It's not marked at all, actually. I'm sorry. THE COURT: We will mark it as Court Exhibit number 1 for identification. MR. AFRAN: We offer it, your Honor, for the same purposes that we have discussed, not for the truth of the matter. Obviously, to the extent it is Mr. Ryan's admission, it has some evidentiary value as to what he says he does. I do think at some point we will move it into evidence rather than just have it marked for identification. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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61 O'Brien - direct THE COURT: Mr. Ryan isn't here to authenticate it at this point in time. For the moment it is marked for identification as Court Exhibit number 1. Q. Prior to reading this or receiving this what you referred to as the alert, prior to receiving this alert, had you any contact with Mr. Ryan? A. No. Q. What association, if any, had your organization U.S. Day of Rage had with al-Qaeda? A. None. Q. Has it ever had an association with al-Qaeda? A. No. THE COURT: The same is true with the Taliban? THE WITNESS: That's correct. Q. I would also ask the same question with respect to the Shamuk website. A. None. Q. Does your organization have any relationship to Anonymous? A. No. THE COURT: Mr. Afran, are you going to cover Ms. O'Brien's termination with the energy firm? MR. AFRAN: Yes, I will, unless the government wishes to stipulate. I think she goes beyond the affidavit, so I will do that, yes. THE COURT: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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62 C3trhedh O'Brien - direct Q. You reference in your affidavit an Australian security magazine article. I'm shortcutting to the reference in the affidavit to lay the foundation. Why have you referred to that article in this case? A. Because this particular article describes U.S. Day of Rage's association with the jihadists. Q. At any time has your organization had an association with jihadists? A. No. Q. Do you know who the author of this article was? A. I don't. Q. How did it first come to your attention? A. Similarly with the Google alert. MR. AFRAN: Your Honor, I'll have this marked for identification? THE COURT: Has the defense seen it? MR. AFRAN: They have a copy. THE COURT: What is it? MR. AFRAN: That is the Australian Security Magazine article. THE COURT: We will mark it for identification as Court Exhibit 2, the Australian Security article. Do you need the copy back? MR. AFRAN: I think we have one more. Q. This is a copy of Exhibit 2 for identification. Have you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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63 C3trhedh O'Brien - direct seen that before? A. Yes. Q. Is this the article you referred to earlier? A. Yes. THE COURT: If you're looking for nice quotes, Mr. Afran, I don't think you need to do it. MR. AFRAN: I don't think I need to, either. THE COURT: Thank you. MR. AFRAN: I wasn't being quite so mercenary. THE COURT: Maybe you were just fascinated by the article itself. MR. AFRAN: I wasn't being quite so mercenary just to look for picturesque quotes. I was considering whether I needed it. THE COURT: It has been marked for identification. MR. AFRAN: I have to apologize, your Honor. This case has gone very, very quickly. The stack of documents, although the contents were known to me last week, we only received morning. I'm sorry for the rather stilted method. Q. You speak of in your affidavit and the Court referenced earlier your employment. With respect to the Court's reference, who was your employer? A. The name of the company? Q. The name of the company? A. Lime Energy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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64 C3trhedh O'Brien - direct Q. Where is Lime Energy based? A. They are headquartered in North Carolina. Q. Where did you work for them physically? A. Out of New York. Q. Do they have an office in New York? A. They do. Q. What did you do as your general job description for Lime Energy? A. I was a digital media architect. My capacity was as a content strategist. Q. Is Lime L-I-M-E or L-Y-M-E? A. L-I-M-E. Q. How long did you work for Lime? A. From October 2010 until December 31, 2011, so about a year. Q. Have you terminated that employment? A. Yes. Q. When did that occur? A. December 30, 2011. Q. What were the circumstances under which you terminated your employment? Strike that. Did you leave voluntarily or were you fired? Were you asked to leave? Describe the circumstances under which your employment ended. A. I came to an agreement that I would leave at the end of the year provided that I got a good recommendation and was able to claim unemployment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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65 C3trhedh O'Brien - direct Q. Those things came to fruition, the recommendation, commitment, etc.? A. Yes. Q. What was the reason why you left? Describe the events that led to that decision on your part. A. It became impossible to manage the perceptions around the press for Occupy Wall Street at my job. My former employer has clients that are a major U.S. bank and the federal government. While I was given a great opportunity to work, possibly be promoted into management, I became essentially a liability for the company. Q. What made you come to the conclusion that you were a liability or became a liable to the company? A. I started getting pulled off of projects that were, first, within my field of expertise, and quite competent and wonderful people but admins were being put on database jobs. So I kind of knew something was up. The CEO is actually a family friend. I called him up and said, what's up? He pretty much told me that people were freaking out about the press around Occupy Wall Street. Q. I think you mentioned, but if it's in your affidavit and you didn't mention it, I will ask the Court to forgive me, I'll lay what I think is a proper foundation. What was your involvement in federal programs for Lime Energy? A. I was tasked with doing the user experience around the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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66 C3trhedh O'Brien - direct federal section of the site, and I had had telephonic meetings with the director of federal contracts. In late October, in a telephonic meeting with myself and the director of federal contracts, I was informed that his contacts in the government were asking about me. I replied to him, oh, I know about the DHS memo. He was like no, Alexa, you, multiple times, multiple individuals. THE COURT: Let me ask a question, Mr. Afran. Ms. O'Brien, did you ever have an understanding that a potential relationship or assumed relationship between U.S. Day of Rage and the Taliban was the cause for your being pulled off projects? MR. AFRAN: I assume your Honor also means al-Qaeda, as the reference was both. THE COURT: What did I say? MR. AFRAN: Taliban. THE COURT: I'm sorry. I actually want to do both. Or did you not know? THE WITNESS: I don't know. If I might say, it was very awkward because I was trying to maintain a professional environment. THE COURT: Understood. Is the same true for al-Qaeda? I want to cover both. Did you ever have an understanding that any potential or assumed association with your organization U.S. Day of Rage and al-Qaeda led to your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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67 C3trhedh O'Brien - direct being pulled off projects? THE WITNESS: I don't know. THE COURT: I want to separate out the kind of public attention you may have been receiving as on organizer of U.S. Day of Rage from the Taliban, al-Qaeda, and any connection with your organization. Did you ever come to any understanding as to whether or not U.S. Day of Rage's association with any other organization was what led to your being pulled off projects? THE WITNESS: I didn't delve deeper, like I said, because I was trying to maintain a professional demeanor. Also, within the context of this particular telephonic meeting, it was very awkward for me. I just wanted to get away from it as soon as possible. THE COURT: You don't know one way or the other whether or not it was just your high profile position with respect to U.S. Day of Rage which caused concern? THE WITNESS: That's correct. THE COURT: Or something else? THE WITNESS: That's correct. THE COURT: Mr. Afran, you may continue. MR. AFRAN: Thank you, your Honor. BY MR. AFRAN: Q. Did anyone tell you specifically why -- strike that. With respect to the Court's questions, is it fair to say that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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68 C3trhedh O'Brien - direct were never told specifically what in particular their concerns were, whether it was the high-profile nature or possible ties to al-Qaeda, Taliban, etc.? A. I was not. Q. How long after the conversation with the director of the federal programs did you offer your resignation or did you resign, approximately? A. About a month. Q. You mentioned reference to a DHS memo earlier in your testimony. Explain to the Court that reference. A. That refers initially to the conversation that I had already spoken to you about in early September with an individual, a federal agent, who had seen a classified DHS memo that I had described. Secondly, in discussions with -- yes, that's pretty much what I'm talking about. Q. Did you ever hear about this DHS memo from any other source beyond what you have testified to so far? A. Yes. Q. What is that source? A. A journalist. Q. Who is that journalist? A. Jason Leopold. MR. AFRAN: Obviously, this is not offered for the truth of the matter but again for the witness's understanding and state of mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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69 C3trhedh O'Brien - direct Q. What were you told in connection with the DHS memo from Mr. Leopold? A. That he had seen a similarly described classified government document, government documents, detailing DHS, FBI, and what he said was another government agency's surveillance of U.S. Day of Rage. Q. Did he say anything else in connection with U.S. Day of Rage in that memo? A. No. THE COURT: Are you aware of any connection between that memo and connecting the U.S. Day of Rage and the Taliban? THE WITNESS: No. THE COURT: Are you aware of any connection between that memo and connecting U.S. Day of Rage to al-Qaeda? THE WITNESS: No. THE COURT: Are you aware of any connection between that memo and connecting U.S. Day of Rage to any other associated forces with the Taliban or al-Qaeda? THE WITNESS: No. THE COURT: Thank you. Q. Have you ever seen that memo? A. No. Q. So you don't know the specific contents? A. That's correct. THE COURT: Not to rush you along too much, Mr. Afran, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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70 C3trhedh O'Brien - direct but we have a lot of other people lined up. MR. AFRAN: I'm sorry, your Honor. I'm actually going now to the content questions of her work. That should bring us to the close. THE COURT: OK. Q. You mentioned earlier that you write for WL Central and you have submitted over the last roughly year or so pieces to WL Central, is that right? A. That's correct. Q. In your certification, again I'll lay this foundation, you describe two articles that you have refrained from publishing on WL Central. I'd like you to describe those articles, their contents, obviously not revealing any sources that you had promised confidentiality to. If the Court should demand the production of that, that would be a legal issue we would discuss. At this point I'm not asking you to identify any confidential names. Describe the articles that you have said in your certification you have not published and held back on. A. The first one is basically a very long, hour, I think I have several hours of conversations with a former military personnel at Guantanamo describing information about the physical restraints used at Guantanamo and other information. Q. And the second? A. The second relates to in the process of working as a journalist one does research and talks to different SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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71 C3trhedh O'Brien - direct individuals. I'm aware of and participated in a discussion with a defense attorney for a detainee who made accusations of a military defense lawyer for a detainee throwing a case. Q. You said you have held back on publication of these articles. Why have you held back? A. Because it's a dangerous pursuit to speak with individuals in terms of covering the war on terror at Guantanamo Bay or talking to people that the U.S. government considers as enemies. They might consider a former detainee who has been released to be a terrorist. In the process of collecting information, one might not know whether the information that they get is classified. One might not know on what list or how that information, that exchange, is classified by the government. And since most of correspondence for journalists today takes place through email, through Internet-mediated communication channels, through telephone, the secret abhorrence for that kind of information, it becomes very dangerous to engage. I also know of journalists who have been detained by the U.S. government for their work covering the war on terror. Know of. So it has essentially become something, especially in light of the associations to al-Qaeda, it's become something that I am -- I am a normal, ordinary citizen. I can't risk the dangers to myself. THE COURT: The journalists that you are referring to, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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72 C3trhedh O'Brien - direct when were they detained? Was it prior to 2012? THE WITNESS: Yes. THE COURT: When did you make the decision to not publish the article relating to the military personnel describing physical restraints? What did you make the decision to hold back on publishing that article? THE WITNESS: Certainly around the time that the discussion of the NDAA came up and then with this passage. THE COURT: Did you make the decision prior to the passage of the NDAA or subsequent to the passage of the NDAA? THE WITNESS: After the passage of the NDAA. THE COURT: The same question with respect to the article relating to the detainee accusing a lawyer of throwing a case. Was that decision made prior to or subsequent to the passage of the NDAA? THE WITNESS: The discussion with the defense lawyer, I want to make sure that it is clear -- I clarified that in the deposition as well -- that that is also after the passage of the NDAA. THE COURT: Are you saying that there is a causal relationship between the passage of the NDAA and your withholding both of these articles? THE WITNESS: Absolutely. THE COURT: You may proceed, Mr. Afran. MR. AFRAN: Thank you. Before we go further, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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73 C3trhedh O'Brien - direct Honor, I will note an additional correction the witness made during the deposition. Paragraph 28 of the affidavit refers to, 28 sub 2, "My interview with a detainee at Guantanamo who reported that his government-appointed defense lawyer deliberately undermined his defense in a commission hearing, resulting in a guilty plea." In deposition she clarified that that was an error. It should say "an attorney for a detainee," not "a detainee." So the words "attorney for" were omitted. THE COURT: OK. Q. What references in the NDAA have caused you to have this concern? THE COURT: Why don't you lay a foundation that she has ever read the NDAA, when she first read the NDAA, and then maybe you will get to the references. MR. AFRAN: Certainly. Q. Have you read the NDAA? Strike that. MR. AFRAN: Your Honor, I think for the record we should know that when we refer to the NDAA, we refer to the relevant passages that came originally as the Homeland Battlefield Act and have now been incorporated into section 1021, et seq. We are not referring to the rest of the authorization bill or the parts of it. THE COURT: Have you read that part, 1021? THE WITNESS: Yes, I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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74 O'Brien - direct THE COURT: When did you first read it? THE WITNESS: Sometime in November, December. Q. Of what year? A. Of 2011. Q. You don't have the statute in front of you. If you need to reference it to refresh your recollection, you should say so. What language or provisions of this section have caused you to withhold publication of these pieces? A. Associative forces and substantial support. Q. What is it about the phrase "substantial support" and "associated forces" or "associated forces" that causes you to take this position? A. I think it's best to use an example someone like Sami Al-Hajj, who is a Sudanese Al Jazeera cameraman, who was later released from Guantanamo Bay and now works for Al Jazeera. Again, "substantially support," what does that mean? In a war on terror where intelligence collection and the informationsharing environment are competing with the press for collection of information, it's very similar activities of collect, talking with people, getting information. It's very hard when Secretary Clinton talks about the information war that we are in to understand what "substantially support" means in relationship to journalists. MR. AFRAN: For the record, Sami Al-Hajj is S-A-M-I H-A-J-J. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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75 C3trhedh O'Brien - direct Q. Are you aware of how long Mr. Al-Hajj was detained? A. I believe six or seven years. Q. He is a free man today? A. Yes. MR. AFRAN: That was a leading question. I'm sorry. Q. Are you aware of any criminal convictions that arose out of his detention? A. Not with certainty. My understanding is that it was considered a "sorry we kept you here for six or seven years." MR. HARWOOD: Objection, your Honor. Speculation. THE COURT: Sustained. MR. AFRAN: I believe Mr. Hedges will testify as to Mr. Al-Hajj later in the hearing. THE COURT: It still may be hearsay. Why don't you proceed. Q. You mentioned other journalists who were detained. Who else did you have in mind? A. I'm thinking of a Yemeni journalist who is being held in Yemen at the request of President Obama. Q. What is his name, do you know? A. Sorry. Shaeh. Q. Shaeh? A. Yes. Q. You testified in your deposition as to two individuals detained by the United States in the United States. Do you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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76 C3trhedh O'Brien - direct recall that testimony? A. Yes. Q. Who are the individuals you were referring to? A. You're referring to the people detained for political reasons? Q. I'm referring to your own testimony. Who is David House? A. David House is the founder of the Bradley Manning Support Network. Q. You referred to him in your deposition. Describe the testimony. What is your testimony with respect to him? A. I have been researching the U.S. investigations into Manning on WikiLeaks. This is all cited research. I'm aware that on November 3, 2010, Mr. House was returning home from Mexico and in Chicago O'Hare Airport he was detained for many hours and had his electronic equipment seized, although he has no relationship other than having supported Bradley Manning and founded the Bradley Manning Support Network. Q. You testified as to Jacob Appelbaum. What did you testify to as to Jacob Appelbaum. A. Similarly, in my research as a journalist I'm aware that on July 29, 2010, Jacob Appelbaum was also similarly detained at a U.S. airport, I believe it was Seattle, and also had his electronic equipment seized from him. He claims that that is for a political reason. Q. Who is Omar Deghayes? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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77 C3trhedh O'Brien - direct A. Omar Deghayes is a former Guantanamo detainee that I interviewed for WL Central. He is considered by the U.S. government to be a terrorist. THE COURT: Sustained. MR. HARWOOD: Thank you. She can't talk about how the U.S. government considers her. MR. AFRAN: I wasn't asking that. THE COURT: I saw a puzzled look on your face. That was the reason for it. Q. Where was Omar Deghayes detained? A. Guantanamo Bay, Bagram, and Lahore. MR. AFRAN: I am coming to the end, your Honor. THE COURT: Thank you. Q. You interviewed Omar Deghayes, is that correct? A. That's correct. Q. Did you publish that interview? A. Yes. Q. Do you have concerns today under the NDAA with respect to publications of that nature? A. Absolutely. THE COURT: When did you publish that article? THE WITNESS: July of 2011. Q. If I would ask you to describe those concerns, would they be similar as to the two articles about which you answered in colloquy with the judge? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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C3trhedh A. Yes.
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MR. AFRAN: To save time, your Honor, I'll leave it there on that point. THE COURT: Let me ask another question. I don't know if you have any follow-up. Do you have any reason to believe that you are being investigated specifically with respect to the Omar Deghayes article that you published? Not speculation, but do you have any reason to believe that you are being investigated for that article? MR. AFRAN: Your Honor, before the question is answered -THE COURT: No. I get the right to do this one. THE WITNESS: I honestly don't know. THE COURT: Thank you. MR. AFRAN: I was going to technically raise an objection to the Court's question, though it is not polite to do so. The reason is that the question implied certainty of knowledge. Specifically: Do you know that it has happened such that you have been investigate because of this reason? The case law doesn't go to the question of certainty with respect to standing. In fact, Clapper is quite to the opposite. THE COURT: That's what you will get to argue this afternoon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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79 O'Brien - direct MR. AFRAN: I just wanted to preserve the objection on the evidentiary issue. THE COURT: Understood. MR. AFRAN: Thank you. I'm going to offer in evidence, your Honor, at least mark for identification at this point, the articles by Ms. O'Brien that I had previously shown to the government. I guess it will be the next ID. I was going to suggest collectively. THE COURT: We will mark as Court Exhibit 3 for identification a series of articles written by Ms. O'Brien? MR. AFRAN: Yes, your Honor. THE COURT: Thank you. MR. AFRAN: Part of it is an interview with Mr. Deghayes, and in that sense it's his own comments incorporated therein. That was Exhibit 4, I believe. Is that correct? THE COURT: 3. I have Court Exhibit 1 as the email archive of Occupy Wall Street movement. I have as Court Exhibit 2 Radical Islam Global Influence in Domestic Affairs, and Court Exhibit 3 a compilation. If I've missed one, let me know. Q. Are you aware of the articles that have been marked as Exhibit 3? A. Yes. Q. You provided those to us, that is correct? A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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80 C3trhedh O'Brien - direct Q. With respect to other subjects in those articles, and I want to save time, are those other articles within the category of articles that you have described as causing concern to you under the NDAA? A. Yes. Q. If I were to ask you specifically what that concern is, would it be similar to your answers earlier? A. Yes. MR. AFRAN: Your Honor, I'd rather avoid going into each one individually unless the Court should require that. THE COURT: No, I don't require it. They are marked for identification. Let me ask my question so that we end up with everything sort of on the same page. With respect to the articles that have been marked as Court Exhibit 3 for identification, are you aware as you sit here today as to whether any one of them has led to an investigation of you by the government under the NDAA provision that we have been discussing? THE WITNESS: No. THE COURT: Thank you. MR. AFRAN: I should note, your Honor, because I don't want to repeatedly say it, to the extent there is a need for an evidentiary objection on the specific knowledge questions that the Court may pose, I'm going to maintain that continuing objection, because certainty is not a part, in our view, of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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81 C3trhedh O'Brien - direct standing requirement. THE COURT: I understand. There is a difference between what will be a legal argument and an evidentiary objection to whether or not there is a proper question posed. We'll make those arguments. But I'll note your objection that you would have inserted if I had allowed you to in between the question and the answer. But each time you want to raise an objection, you should do so. Let's not have a continuing objection lest we elide. MR. AFRAN: I suspect that when the government crossexamines various witnesses, this issue may rise again. In my view there may be an evidentiary need to object because I don't want another body to take the position that we failed to raise that as an issue in the evidentiary stage. THE COURT: Understood. It is really more of a legal question than an evidentiary objection, in my view. But sufficient unto the day. MR. AFRAN: Thank you. THE COURT: Are you ready to turn the witness over? MR. AFRAN: I have just one more exhibit. THE COURT: You have marked as Court Exhibit number 4 three Twitter direct messages? MR. AFRAN: Yes, your Honor. THE COURT: For identification. MR. AFRAN: Your Honor, I'd like to speak with my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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82 C3trhedh O'Brien - direct co-counsel for one moment before I turn it over. THE COURT: Yes. BY MR. AFRAN: Q. With respect to your speech activities, have you made any changes in how you engage in expressive conduct, maintain the information from your journalistic work, maintain your contacts, anything of that nature? A. Yes. Q. To what extent? Strike that. Why? Strike that. The Court asked you a series of questions about the NDAA earlier and your holding back two articles. To what extent have you made other changes in consequence of the NDAA? A. I have begun to inculcate like operational security around making sure files that I'm in possession of for research I've done previously on Guantanamo Bay are encrypted, things of that nature. Q. Did you ever change any information storage practices with respect to encryption? A. Yes. What I say in my affidavit is I recently came back from London and I was very concerned about my computer possibly being seized or not having control of my computer at the border crossing and having my research in this capacity revealed, so I double encrypted those files. Q. Have you ever done that before? A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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83 C3trhedh O'Brien - direct Q. You also say in your certification that you have engaged in expenses in consequence of the NDAA. Would you describe for the Court what expenses you have incurred with respect to this. A. They relate specifically to communications, phonecalls, text messages, as well as data. Especially when I was in London speaking with counsel, I had to pay international rate codes. And public transportation to meet with other activists. Q. When you encrypted the double encryption, what did you have to use to do that? A. It's open source, so I didn't have to spend any money on that. Q. Did you have to purchase any hardware in any way to undertake that encryption? A. Related to the example, I had said in my deposition that I did purchase around the time -- this is an evolutionary process of understanding. Things are starting to be said about U.S. Day of Rage. I did purchase a hard drive and start to think that I have to be very careful about my research as a journalist and my activities. Q. Prior to the association with U.S. Day of Rage and the jihadists and al-Qaeda and the related references, had you taken steps of that nature? A. No. Q. Could you quantify for the Court what the expenditures were on phonecalls and things of that nature that you testified to. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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84 C3trhedh O'Brien - direct A. For phonecalls and text and stuff, I haven't been billed. I do have and I did provide a copy of those phonecalls. I haven't been billed, because -- actually I'm still in this window, so I can't say that with certainty. Of course, it is also international rates. I could guess, if you would like. Q. Based on your experience as a phone user, what is your estimate of the costs you have incurred? MR. HARWOOD: Objection, your Honor. THE COURT: Why don't you say it's probably above X. Give us a range. A. It's probably between 50 and $75. THE COURT: Thank you. MR. AFRAN: That's all, your Honor. Thank you. THE COURT: Mr. Harwood. CROSS-EXAMINATION BY MR. HARWOOD: Q. Good morning, Ms. O'Brien. A. Good morning. Q. You believe that section 1021 could be applied against you as a result of your journalistic activities, correct? A. That's correct. Q. And you believe that the journalistic activities that could bring you within the scope of section 1021 include, first, your research and correspondence with others about abuses of power by the U.S. government, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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85 O'Brien - cross MR. AFRAN: I'll just note there is no foundation for the specific reference. MR. HARWOOD: Testimony at the deposition. I'm just laying a foundation for further questions regarding concerns about section 1021. THE COURT: Why don't you rephrase the question between the objection and that statement and the witness can answer. Q. One of the concerns I believe that you testified to in your direct was your concerns about communications that you may have with others as a result of section 1021, is that correct? A. That's correct. Q. You also have testified on your direct, I believe, that you have concerns about the research and the correspondence that you may engage in in connection with your journalistic activities as a result of section 1021, is that correct? A. That is correct. Q. Finally, you have concerns that the publication of articles that you may write about people and groups that the U.S. government may consider enemies may bring you within the scope of section 1021, is that correct? A. Could you repeat the first part? Q. Yes. I can repeat the question. And you have concerns that your publication of articles regarding individuals and groups that the U.S. government considers enemies may bring you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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86 C3trhedh O'Brien - cross within the scope of section 1021? MR. AFRAN: I would still note I don't think there is a foundation for that question. THE COURT: I think the witness can answer. I think it is pretty clear. A. Yes. Q. You have previously engaged in the types of journalistic activities that we just discussed, right? A. Namely, collecting information, communicating with individuals? Q. Correct, and publication of articles on the subject matters that we just discussed. A. Yes. THE COURT: What do you mean by "previously," Mr. Harwood? Do you mean previous to the passage of the NDAA or something else? MR. HARWOOD: I meant previously as to today. Then I'm going to provide examples of when she engaged in those activities and show that it is prior to the NDAA. THE COURT: OK. Q. You believe that the research and the correspondence and the communications in which you engaged in connection with the two articles that you wrote concerning Omar Deghayes could bring you within the scope of section 1021, correct? A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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87 C3trhedh O'Brien - cross Q. You published those articles on Omar Deghayes in June of 2011, correct? A. Yes. Or is it July? Q. I have a copy that I can provide. THE COURT: Summer of 2011. MR. HARWOOD: Thank you, your Honor. I believe it is in the record as well in I believe one of plaintiff's exhibits. Q. You also believe, you testified during your deposition, that the research, the correspondence, and the communications that you performed in connection with articles that you published on Brandon Neeley and Terry Holdbrooks could bring you within the scope of section 1021, correct? A. Yes. Q. You published the article on Brandon Neeley in April of 2011? A. Yes. Q. You published the article on Terry Holdbrooks also in April of 2011? A. Yes. Q. It is your understanding, correct, that before the enactment of section 1021, the executive claimed the authority to detain individuals providing substantial support to al-Qaeda, the Taliban, or associated forces, correct? MR. AFRAN: I would raise an objection for two reasons. First of all, she has never said previously what her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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88 C3trhedh O'Brien - cross understanding was under the AUMF. Secondly, she is not a lawyer and she is not here to state what the government's claimed authority is under that enactment. THE COURT: You don't even have to say anything. I'm just going to say that the state of mind of this witness as to the provisions of the NDAA is very much at issue. Therefore, the state of mind of this witness as to whether or not she previously had concerns under prior legislation would be not out of bounds as a subject of cross-examination. MR. AFRAN: I would agree with that, your Honor. But the question was different. THE COURT: I understand. I'm just setting the boundaries. With that said, I do think the question was compound. Why don't you break it down and restate it. Also, you might want to -- otherwise, he will jump up again -- lay a foundation. MR. AFRAN: Thank you. Q. During your deposition you stated that before the enactment of section 1021 it was your understanding that the executive claimed the authority to detain individuals for providing substantial support to al-Qaeda, correct? THE COURT: Do you want to show her her transcript to speed things along? MR. HARWOOD: Yes, your Honor. Your Honor, would you like a copy? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. AFRAN: Which volume? Q. The first volume. If you could turn to page 70, then line 18, and if you can read along with me. "Q. OK. So your understanding is that prior to section 1021, the executive has previously claimed the authority to detain a person for substantially supporting al-Qaeda, the Taliban, or associated forces?" MR. AFRAN: I'm sorry. I'd like to get a better page reference. I don't see it. MR. HARWOOD: Page 70, seven-zero. MR. AFRAN: Thank you. Q. The question is, "OK. So your understanding is that prior to section 1021, the executive has previously claimed the authority to detain a person for substantially supporting al-Qaeda, the Taliban, or associated forces? "A. Yes." A. I said yes. MR. AFRAN: Your Honor, I'm going to raise a point that -MR. HARWOOD: There is no objection. MR. AFRAN: There is an objection. THE COURT: You can object, but don't make it a speaking objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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90 O'Brien - cross MR. AFRAN: I'm sorry. It wasn't. THE COURT: What is your objection? MR. AFRAN: The objection is that the answer is referable to prior matter. He is saying it is your understanding that. But this is clearly following a fairly long or extensive colloquy. So it is really rather unfair to look at this in isolation. THE COURT: You're saying it's incomplete? MR. AFRAN: Yes. THE COURT: Why don't you hand me a copy of the deposition. I'll take it after all. Proceed to your next question and let me figure this out while you are going ahead. MR. HARWOOD: Thank you, your Honor. Q. You're not aware of any U.S. government action taken against you personally under the AUMF, correct? A. No. Those things are done in secret. MR. HARWOOD: Move to strike, your Honor, the answer after "no." THE COURT: Denied. You're the one who asked her if she was aware. Q. Nor are you aware of any U.S. government action taken against you personally under section 1021, correct? A. I am not aware of any action being taken against me under 1021. Q. You are also not aware of any U.S. government action taken SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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91 C3trhedh O'Brien - cross against U.S. Day of Rage under the AUMF, correct? MR. AFRAN: Your Honor, I'm going to raise an objection only because I need to preserve this as a standing question. It is not required that action necessarily be taken in the past to have standing. I do want to preserve the objection. THE COURT: I know. It's not an evidentiary objection, though. It's an objection as a matter of law to something else. You can proceed. By the way, your objection on the incompleteness of the witness's prior answer as to page 70 is overruled. The prior colloquy does lead up to it in a way that I believe is fair. Your objection is noted for the record. You can proceed, Mr. Harwood. MR. HARWOOD: Thank you, your Honor. Q. I believe the question I had posed was that you are also not aware of any government action taken against the U.S. Day of Rage under the AUMF, correct? A. No. Q. Nor are you aware of any U.S. government action taken against U.S. Day of Rage under section 1021, correct? A. No. Q. You're also not aware of any U.S. government action taken against you or U.S. Day of Rage under any other statute, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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92 C3trhedh O'Brien - cross A. That's correct. Q. And you have never been threatened by anybody who you know was a U.S. government official as a result of your journalistic activities or expressive activities, correct? A. Can you repeat the question? Q. Yes. You never have been threatened by anyone whom you know was a U.S. government official as a result of your journalistic activities or other expressive activities? A. I don't know that. Q. Nor are you aware of any U.S. government official who has threatened to take action against U.S. Day of Rage as a result of its journalistic activities or other expressive activities, correct? A. Could you repeat the question again? Q. Yes. Nor are you aware of any U.S. government official who has threatened to take action against U.S. Day of Rage as a result of its journalistic activities or other expressive activities, correct? A. I'm asking you a question. You're asking me if I'm aware of any government official who's threatened to take action against U.S. Day of Rage? Q. Correct. A. Then you said something about journalistic. I'm just trying to make sure that I understand what you are asking me. Q. As a result. Has threatened to take action against U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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93 C3trhedh O'Brien - cross Day of Rage as a result of the group's expressive activities. A. No. THE COURT: Why don't you state the whole question and then she can give it an answer. Otherwise, we are going to have to go back and forth for like five things. Q. Nor are you aware of -THE COURT: Start over again. Clean question. Q. You are not aware of any U.S. government official who has threatened to take action against U.S. Day of Rage as a result of the group's journalistic activities or other expressive activities, correct? A. U.S. Day of Rage is an advocacy group. It's not a journalistic enterprise. WL Central is a journalistic enterprise. Q. You are not aware of any U.S. government official who has threatened to take action against U.S. Day of Rage as a result of its expressive activities, correct? A. No. Q. You are not aware of anyone against whom section 1021 has been applied, correct? A. No. Q. You discussed on your direct an email chain involving Thomas Kopecky, correct? A. That's correct. Q. He is the director of operations at Investigative Research SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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94 C3trhedh O'Brien - cross Consultants, Inc., and Fortis Protective Services LLC? A. Yes. Q. Fred Burton was also part of that email chain, correct? A. Yes. Q. He is the vice president for counterterrorism and corporate security at Stratfor? A. Yes. MR. HARWOOD: I'd like to mark for identification what's been premarked as Government Exhibit A. THE COURT: That's fine. We don't have an A yet. Why don't you describe it for the record. That is an A or a Q? MR. HARWOOD: It's Q. I'm sorry. It's Government Exhibit Q. THE COURT: All right. MR. AFRAN: What is the number of this exhibit? MR. HARWOOD: Government Exhibit Q. MR. AFRAN: Why are we starting with Q? MR. HARWOOD: Because we have other witnesses. THE COURT: Doesn't matter. We'll take it. MR. HARWOOD: We organized it that way. MR. AFRAN: OK. MR. HARWOOD: I'd like to show this to the witness and have the witness confirm that this is the email chain involving Thomas Kopecky that she referred to earlier on direct. THE COURT: Let me note for the record that Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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95 C3trhedh O'Brien - cross Exhibit Q looks like it was marked at Ms. O'Brien's deposition as Exhibit number 6. It says, "The Global Intelligence Files," and it has a whole bunch of stuff following it. Do you have another copy you want to show the witness or do you want me to give her my copy? MR. HARWOOD: I have another copy. Q. This is the email chain that you were referencing on your direct examination involving Thomas Kopecky that is also referenced in your certification in this case, correct? A. Yes. Q. Investigative Research Consultants is a private firm, right? A. To my knowledge, yes. Q. Fortis Protective Services is a private firm? A. To my knowledge. Q. Stratfor is also a private firm, correct? A. To my knowledge. Q. You don't know whether the U.S. government had any involvement in the sending of the emails reflected on what's been marked as Government Exhibit Q, correct? A. With regards to this? I don't know that. Q. You also mentioned on direct several actions that you have attributed to Provide Security, Thomas Ryan, or Kevin Schatzel, correct? A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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96 C3trhedh O'Brien - cross Q. Provide Security is also a private firm, right? A. To my knowledge, yes. Q. Thomas Ryan and Kevin Schatzel were managers of Provide Security when they engaged in the actions that you have discussed, correct? A. Thomas Ryan and Kevin Schatzel are identified as managing directors of Provide Security. Q. You don't know whether the government was responsible for the actions that you have attributed to Provide Security, Thomas Ryan, or Kevin Schatzel, correct? A. I do know that. Q. I'm sorry? A. I do know that. Q. You know the government was responsible for those actions? A. I know that Thomas Ryan said that he contacted the FBI field office of the NYPD. Q. You don't know that the government directed any of the actions that you have described for Provide Security, Thomas Ryan, or Kevin Schatzel, correct? THE COURT: That's compound. Why don't you break it down. Q. You don't know whether the government directed that Provide Security engage in any of the actions that you have described, correct? A. I do know that because Thomas Ryan contacted the FBI field SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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97 C3trhedh O'Brien - cross office of the NYPD saying that a group that I founded and am part of was connected to al-Qaeda. MR. HARWOOD: I'm going to strike the answer, your Honor, as nonresponsive. THE COURT: You can't strike it. Only I can. MR. HARWOOD: Move to strike the answer. THE COURT: Denied. Q. My question was: You don't know whether the U.S. government directed Ryan to take that action, correct? A. I don't know that. Q. You don't know the U.S. government directed Kevin Schatzel to take any of the actions that you have attributed to him, correct? MR. AFRAN: I want to -THE COURT: If it's a legal argument, again -MR. AFRAN: Your Honor cautioned me not to abandon all objections. THE COURT: Say "objection." MR. AFRAN: Objection. THE COURT: There you go. Q. Want me to restate the question? A. Yes. I didn't hear it. Q. You don't know whether the U.S. government directed Kevin Schatzel to be engaged in any of the actions that you have attributed to him, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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98 C3trhedh O'Brien - cross A. Kevin Schatzel is the managing director of Provide Security. Perhaps you could explain to me what you mean by what I directed that he did. I want to be clear about what you are asking me. Q. I'm asking you whether you're aware of whether the government directed any of the conduct that you have attributed to Kevin Schatzel. A. Can you refresh my memory of what you're referring to, about what I have attributed to Kevin Schatzel? Q. You discussed a number of tweets, messages, that you received from Provide Security. I believe that you described those tweets as coming from Provide Security and referenced Kevin Schatzel and Thomas Ryan as managers of Provide Security. A. Right. Q. My question, I want to confirm that you don't know whether the government directed Thomas Ryan, Kevin Schatzel, or Provide Security to engage in any of those tweets or other messages that you have described. A. No, I don't know that. Q. In terms of your certification, you also attribute conduct to Thomas Ryan, Kevin Schatzel, or Provide Security, correct? A. Attribute behavior? Yes. Q. You don't know that the government directed Thomas Ryan, Kevin Schatzel, or Provide Security to engage in any of those activities, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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99 C3trhedh O'Brien - cross A. I don't know that. Q. You also discussed during your direct an article published in the Australian Security Magazine entitled "Radical Islam: Global Influence"? A. Yes. Q. You don't know whether the U.S. government had anything to do with that article, correct? A. That's correct. Q. You stated that your former employer's director of federal programs told you that individuals in the U.S. government had asked about you by name, correct? A. Yes. Q. The director of federal programs didn't tell you anything about the substance of those conversations, correct? A. That's correct. Q. You don't know the identity of any of the individuals who contacted the director of federal programs, correct? A. That's correct. Q. You don't know where in the federal government those individuals were, correct? A. He said the intelligence sector. Q. Do you know where in the intelligence sector? A. No. Q. Do you know what agency? A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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100 C3trhedh O'Brien - cross Q. Do you know what they did for the government? A. No. Q. You said that your former employer did work for the federal government, correct? A. That's correct. Q. You worked on projects for the federal government, correct? A. No. Q. Did you have any involvement in the federal -- strike that. I believe you testified on direct that you were pulled off of federal work? A. No. Designing the strategy around federal contracts. I didn't work for -- designing strategy around marketing to federal programs. It's a corporate job. It's corporate management style strategic thinking around it. Q. Did work product that you performed get transmitted to the federal government clients, do you know? A. Designed user flows and things like that related to marketing to the federal government are on the website. Q. So the federal government had access to work that you performed? THE COURT: If you know. A. I don't know. Q. You mentioned a DHS memo that was described to you. A. Yes. Q. By, you said, a federal agent? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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101 C3trhedh O'Brien - cross A. Yes. Q. How do you know that that individual was a federal agent? A. They identified themselves as such. Q. You don't know where the person worked, right? A. They told me, but I forget. Q. You wrote a press release of September 2011 recounting what the federal official told you about the DHS memo, correct? A. That's right. Q. That press release is comprehensive in terms of the information that was conveyed to you by the federal official about the DHS memo, correct? A. That's correct. MR. HARWOOD: Your Honor, may I approach? THE COURT: Yes. Q. I'm going to hand you what has been previously marked as Government Exhibit U. MR. AFRAN: What is it? THE COURT: Government Exhibit U. Why don't you identify what Government Exhibit U is that has been marked for identification. MR. HARWOOD: This document was emailed to me by the witness yesterday in response to a request that I gave to her counsel for the press release we were just discussing. On the second page it's got a date of September 9, 2011, and the title "Federal Government Announces Intel on U.S. Day of Rage." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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102 C3trhedh O'Brien - cross Q. Government Exhibit U, this is the press release that you wrote following your discussion with the federal agent? A. That's correct. Q. This is the press release that encompasses what that federal agent told you, correct? A. Yes. MR. HARWOOD: Your Honor, I'd like to offer Exhibit U into evidence. MR. AFRAN: There has been no proffer as to why. THE COURT: There doesn't need to be a proffer as to why, really. It's not going to come in for the truth, but it is going to come in like everything else. Everything is coming in for identification. Those are all classic hearsay statements. MR. AFRAN: That's different from offering it into evidence. THE COURT: Are you doing my job or am I doing my job? MR. AFRAN: No, your Honor. THE COURT: You're objecting to the offer of the document. Got it. MR. AFRAN: Into evidence, yes. THE COURT: The documents, as the other documents which are news articles, are going to come in for identification. They are not going to come in for the truth. She is talking about what other people told her, and who knows SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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103 C3trhedh O'Brien - cross who they are. MR. AFRAN: I agree with that, your Honor. BY MR. AFRAN: Q. You mentioned during your direct two articles that you have held back on publishing because of section 1021, correct? A. That's correct. Q. During your deposition you described these articles as investigative pieces addressing U.S. government abuses of power, is that correct? A. You have to show me where in the deposition. Q. I'll ask you. Would you characterize these articles as investigative pieces? A. Yes. Q. Would you characterize these articles as addressing abuses of government power? A. Yes. Q. You have published investigative pieces in the past addressing abuses of U.S. government power, alleged abuses, correct? A. Yes. Q. One example is the article you published last June titled "FBI and Yemen: U.S. Counterterrorism," is that correct? A. Yes. Q. You discussed during your direct having spent money on phonecalls, text, and travel to discuss issues regarding SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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104 C3trhedh O'Brien - cross section 1021 with fellow activists and lawyers, correct? A. Yes. Q. The phonecalls on which you spent money were to counsel, correct? A. That's correct. Q. The texts were to Jennifer Bolen? A. The texts were to Tangerine Bolen. Q. Who is the plaintiff in this case? A. I'm not sure, to tell you the truth. MR. AFRAN: Your Honor, I think I can clarify. The names are the same person, Jennifer Bolen and Tangerine Bolen. Q. Both the phonecalls and the text were to address matters relating to this litigation, correct? A. Yes. Q. The text to Bolen cost you about $5? A. Yes. Q. The travel on which you spent money refers to local transportation cost? A. That's correct. Q. That travel cost you about $20? A. Yes. Q. You mentioned a gentleman on direct, Al-Hajj. A. Sami al-Hajj. Q. Yes. A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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105 C3trhedh O'Brien - cross Q. He is not a U.S. citizen, correct? A. No. Q. Do you know why he was detained? Strike that. You don't know why he was detained, correct? A. I do. He was detained because he was an Al Jazeera journalist. Q. How do you know that? A. News reports. Q. Which news reports? A. Actually, there is an article. I actually have it here. I believe it is a media-related blog. I can pull it up for you if you want it. I don't know what it is off the top of my head. MR. HARWOOD: Your Honor, can I confer with my co-counsel for a minute? THE COURT: Yes. MR. HARWOOD: Your Honor, I don't have any further questions. THE COURT: Thank you. Mr. Afran, do you have any redirect? MR. AFRAN: Very little, but some. REDIRECT EXAMINATION BY MR. AFRAN: Q. In your reading of the NDAA, did you see any definition for "associated forces"? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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106 C3trhedh O'Brien - redirect A. No. Q. When you answered earlier that certain forces were not associated, did you have any definition of the term as used in the statute available to you? A. No. Q. Are you a lawyer? A. No. Q. Have you been to law school? A. No. Q. Do you have any legal training? A. No. MR. AFRAN: Is the transcript of the deposition still with the witness? Q. Reference was made earlier to your deposition testimony with respect to volume 1, page 70, at line 18. For the record, I'll recite what was offered by Mr. Harwood. "OK. So your understanding is that prior to section 1021, the executive has previously claimed the authority to detain a person for substantially supporting al-Qaeda, the Taliban, or associated forces?" and the answer was. "Yes." That question was directed to the period prior to the passage of the law NDAA. I'd like you to look, Ms. O'Brien, at line 9, and I'd like you to read the answer you gave at that time from line 9 to line 11. A. Section 70? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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107 C3trhedh O'Brien - redirect Q. Page 70/lines 9 to 11. It begins with the words, "It's my understanding." Do you see that? A. I said, "It is my understanding that one need simply look at the detainees within Guantanamo to find that precedent." Q. Is it fair to say that your answer at line 18 was making reference to what you said at line 10 to 11 in reference to detainees within Guantanamo Bay? A. Yes. MR. AFRAN: Thank you. THE COURT: What we are going to do, because I think there is a disagreement as to how to interpret these pages, we are going to admit pages -- I'm going to grab a few pages beforehand and a few pages afterwards -- 65 through 75 and put that in the record. The deposition of Ms. O'Brien has not been submitted to the Court in it's entirety. I have it here at the bench as part of this proceeding. But that will allow us to make part of the record the content of the questions and answers that directly precede page 70, and we can all make arguments about them as we see fit. MR. AFRAN: Thank you, your Honor. Q. Do you recall being asked questions by Mr. Harwood earlier as to what role the government may have had in any of the communications involving U.S. Day of Rage that you have seen in tweets, etc.? A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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108 C3trhedh O'Brien - redirect Q. Do you recall questions being asked about Mr. Harwood as to whether the government has investigated or taken action, etc., with respect to U.S. Day of Rage? A. Yes. Q. Do you recall receiving certain documents via a FOIA request that you testified to during your deposition? A. Yes. MR. AFRAN: "FOIA" refers to Freedom of Information Act, for the record. I'm going to ask that this be marked as an exhibit for identification, a two-page document. One is a cover letter on the letterhead of Homeland Security and the other is a document headed "Unclassified: For official use only" again under the logo of Homeland Security Office of Intelligence and Analysis. THE COURT: Have you shown that to defendants? MR. AFRAN: Yes, I have, and that was produced earlier this week. THE COURT: That is going to be marked as Court Exhibit number 5 for identification. MR. AFRAN: Your Honor, may I stand by the witness so I can ask her a question about this document? I don't think we have another copy. THE COURT: Yes. Make sure you speak up so that folks can hear. MR. AFRAN: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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109 C3trhedh O'Brien - redirect Q. I'm showing you the document that is attached to the exhibit. Is that Court Exhibit 5? THE COURT: Court Exhibit 5 for identification. Q. Have you seen this document before? A. Yes. Q. Tell us how you acquired this document. A. This document was acquired through a FOIA request by Jason Leopold that was recently published. He had done a FOIA request on U.S. Day of Rage. I found out that it was published, and I obtained it on the link provided at TruthOut.org. Q. Would that also apply to the cover letter from the Department of Homeland Security referencing the FOIA request that is part of this exhibit? A. Yes. Q. I'd like you to recite into the record the letterhead logo at the top of this page, beginning with the word "Unclassified." A. "Department of Homeland Security Office of Intelligence and Analysis." Q. I'd like you to read the first two lines, the sort of headline type under the letterhead. A. "National Cybersecurity and Communications Integration Center Bulletin. Details on 'Anonymous,' upcoming U.S. operations 17 September 2011 Occupy Wall Street, 'U.S. Day of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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110 C3trhedh O'Brien - redirect Rage.'" Q. Does "U.S. Day of Rage" refer to your organization? A. Yes. Q. Thank you. MR. HARWOOD: Your Honor, I would object to her testimony as to what the Department of Homeland Security was referring to in the document. THE COURT: Overruled. MR. AFRAN: The document speaks for itself. It is Homeland Security's document. Your Honor, I am going to move that document into evidence in actuality rather than leaving it for ID at this point, because it is an admission by the government. THE COURT: You haven't called a Homeland Security witness to authenticate the document. It does have certain indicia of reliability, but you have to both get over authenticity and then also over the hearsay nature of it. What is the government's position? MR. HARWOOD: Our position is that it should come in the same as the other documents, for identification and as to the impact on the witness as opposed to the truth of what anything in there says. THE COURT: I am going to overrule that. This particular document I do find relevant. I think it has sufficient indicia of reliability to fit under the general SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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111 C3trhedh O'Brien - redirect hearsay exception. On its face it appears to be written by a government employee. Unless the government is prepared to say that they have reason to believe that it is not written by a government employee, then I'll take it. MR. HARWOOD: Your Honor, I don't, although I will note that it was produced to me yesterday for the first time, so I haven't had a chance to follow up on it. THE COURT: If at some point in time, soon, you determine that it is a fraudulent document, let me know. Otherwise, it's been admitted into evidence. Court Exhibit 5 admitted. (Court Exhibit 5 received in evidence) MR. AFRAN: Thank you, your Honor. I just need to pull one thing for a copy to the government. Q. Have you seen biographies published by Mr. Ryan? A. Yes. MR. AFRAN: Your Honor, I'm going to ask that the following be marked as the next exhibit, two documents, both headed "Thomas Ryan" at the top. One is a multipage document, one is a single page. THE COURT: Are you marking them separately or marking them together? MR. AFRAN: They can be marked separately. THE COURT: We are going to mark them as Court Exhibit -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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112 O'Brien - redirect THE CLERK: 6 and 7. THE COURT: Why don't you announce what 6 and 7 is. THE CLERK: Court Exhibit 6 is a website with the name Thomas Ryan at the top. Court Exhibit number 7 is what appears to be a summary of a biography of Thomas Ryan. THE COURT: Mr. Afran, to head it off at the pass, if you are going to try to get these in for the truth, you are going to have a hard time. MR. AFRAN: It is really going to the state of mind. The government asked her questions as to Mr. Ryan's relations. THE COURT: I understand. In terms of who he is connected with, right? Is that what you are after? MR. AFRAN: Correct. THE COURT: There is a very thin line between going to her state of mind and the truth here in terms of whether or not Mr. Ryan is in fact associated with the government. They will not be admitted for the truth. Go ahead and do your thing. MR. AFRAN: Unfortunately, I think your Honor has the only copy left. THE COURT: Here, you can have them back. MR. AFRAN: Thank you. Q. The Court has marked Exhibits 6 and 7. Have you seen these documents before? A. Yes. Q. I covered one up. Have you seen them before? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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113 C3trhedh O'Brien - redirect A. Yes. Q. Is there anything in these documents that leads you to an understanding of Mr. Ryan's -- strike that. What in these documents leads you to have any belief as to any relationship between Mr. Ryan and the government? MR. HARWOOD: Objection? THE COURT: Sustained. You were better off with your first question. Q. Do these documents lead you to have any understanding as to Mr. Ryan's relationships with the government? A. Yes. Q. Would you read the text in the relevant part of the documents that help lead to that understanding, to help form that understanding. THE COURT: The documents are marked for identification. Reading them into evidence is her putting in somebody else's statement. It is an out-of-court statement. That's where she got it from. Let's move on. MR. AFRAN: That's fine. That's all I have. Thank you, your Honor. THE COURT: Thank you. Are you done with this witness? MR. AFRAN: Yes, your Honor. THE COURT: Ms. O'Brien, you may step down. Mr. Harwood, I take it you don't have anything else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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114 O'Brien - redirect MR. HARWOOD: I don't, your Honor. THE COURT: Thank you very much, Ms. O'Brien. (Witness excused) THE COURT: For those of you who haven't been in the courtroom before for a trial, this is a marathon. We are going to call Ms. Kai Wargalla. I think that is who you have next. MR. AFRAN: Yes, your Honor. THE COURT: Is that still your intention? MR. AFRAN: Yes, your Honor. THE COURT: Why don't we take a brief five-minute recess. We will go to 1 o'clock, break for lunch at 1 o'clock. We will take a five-minute recess and then put Ms. Wargalla on the stand. (Recess) MR. MAYER: Your Honor, we can proceed. I want to note for the record that Mr. Saga Liszeka has joined us. He is a student at Cardozo Law School. He is part of the team. I don't want it to be inappropriate that he is at counsel table. THE COURT: It is not inappropriate. Welcome. How do you spell your name? MR. LISZEKA: L-I-S-Z-E-K-A. THE COURT: Is that the first time you have spoken in federal court? MR. LISZEKA: Yes. THE COURT: There is always a first time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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115 You are ready with your next witness, counsel? MR. AFRAN: Yes, your Honor. Thank you. We call Kai
Wargalla. KAI WARGALLA, called as a witness by the plaintiffs, having been duly sworn, testified as follows: THE CLERK: Please state your full name and spell your last name slowly for the. THE COURT: W-A-R-G-A-L-L-A, K-A-I. DIRECT EXAMINATION BY MR. AFRAN: Q. Ms. Wargalla, would you please state your current occupation. A. I'm a student. Q. Where have you been most recently living or residing? A. In the UK, in London. Q. Prior to going the UK, where were you from? A. I was from Germany originally. MR. AFRAN: I would note I believe the witness is very fluent in English, but she has advised me that on occasion certain legalistic phrases elude her. Q. If there is a need, Ms. Wargalla, to ask for clarification of either me or the government's lawyer, please do so. A. OK. Q. Where are you enrolled at university? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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116 C3trhedh Wargalla - direct A. At the University of Oldenburg in Germany. Q. What program are you taking at this point? A. Sustainability economics and management, a Master's degree. Q. A Master's program? A. Yes. Q. How long have you been residing in London during this phase of your life? A. For about one and a half years now. Q. At what stage are you in your educational program in terms of where you are in the Master's degree? A. I'm almost finished. I have to write a few papers and then my Master's thesis. Q. You are not in class work, and that's why you are not in classes at this stage but you are residing away while you do your thesis? A. That's correct. Q. While you were in London, did you become involved in any advocacy activities? A. What do you mean exactly? Q. Have you become involved in any organizational work? A. Yes. Q. What organization would that be? A. That would be Revolution Truth and groups that I founded, like Occupy London and Justice for Assange UK. Q. What is your role in founding Occupy London? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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117 C3trhedh Wargalla - direct A. I co-founded the Facebook page and the Twitter account that sparked Occupy London, and I started to organize Occupy London in late September. MR. AFRAN: I want to go back one moment, your Honor. I should have asked this. Q. When did you arrive in New York? A. On Monday. Q. Did you give a deposition in this case? A. Yes, on Tuesday. Q. Had you ever previously been in the United States? A. No. Q. This is your first time here? A. Yes. Q. What was your purpose in coming to the United States? A. For the lawsuit. Q. Thank you. When did you found Occupy London? A. That was at the end of September 2011. Q. You also mentioned you were involved in Revolution Truth, is that correct? A. Yes. Q. What is Revolution Truth? A. Revolution Truth is an international group of volunteers conducting campaigns on Bradley Manning and WikiLeaks, and we are also conducting online live panel discussions. Q. What is your role in Revolution Truth? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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118 C3trhedh Wargalla - direct A. I am the deputy director of Revolution Truth. Q. Who founded Revolution Truth? A. That would be Jennifer Bolen. Q. Did you play a role in its founding? A. I was there from the very early start, but Bolen founded it. Q. Describe, briefly, in view of time -- I'd like to conclude your testimony, both sides, prior to the break -- what is your general role in Occupy London? A. As I said, I founded the Facebook page and the Twitter account that basically started Occupy London. I was then starting to organize Occupy London, worked together with other groups in the UK, UK Uncut and people from the Spanish 15-M movement, and we made Occupy London happen on October 15th. From then on I was part of different working groups, such as the press team, legal assistance, activist support, direct action. Q. Prior to your Master's degree program, did you have an undergraduate degree? A. Yes. Q. Where was that? A. I've got two degrees, one in cultural engineering and one in media and communication studies. Q. Where did you get those degrees from? A. In Sweden and in Germany. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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119 C3trhedh Wargalla - direct Q. Germany? A. Sweden and Germany. Q. What universities, please? A. That was the University of Magdeburg and the Upsala University in Sweden. Q. Thank you very much. With respect to Occupy, how often have you been involved in Occupy on a daily basis or weekly basis? A. I gave up my flat and everything I was doing and moved into a tent in the middle of the city of London, and I live there still. Q. Where in London is that tent? A. That was between the London Stock Exchange and St. Paul's Cathedral until that camp was evicted, and now I'm now residing at Finsbury Square camp. Q. Are you normally living there at this stage? A. I do. Q. Since the founding of Occupy London, have you been involved in it on a daily basis? A. Yes. Q. Did there come a time when you became aware of any publications by any governmental agency concerning Occupy London in Britain? A. Yes. Q. Describe what these consisted of and how you became aware SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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120 C3trhedh Wargalla - direct of them. A. That was in December 2011, when there was distributed a terrorism and extremism update which listed Occupy London directly under the FARC and al-Qaeda. Q. You signed a certification in this case. Do you recall doing that? A. Say that again. Q. You signed a declaration in this case. Do you recall doing that? A. What do you mean exactly? Q. You signed an affidavit? A. Yes. Sorry. Q. Attached to that affidavit was an exhibit. MR. AFRAN: Your Honor, I will leave the exhibit attached to the affidavit, if I could, rather than separating it, unless the Court or the government believe it should be done otherwise. THE COURT: This is the document that says on the right-hand side "City of London Police"? MR. AFRAN: Yes, your Honor, a two-page document. THE COURT: That document is part of the filings in this matter. I don't think you need to read it into the record. Do you have a burning desire to read it into the record? MR. AFRAN: I just want to identify it at this point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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121 C3trhedh Wargalla - direct through her. THE COURT: OK. Q. I am presenting to you your affidavit. I turn to the exhibit that was attached. Have you seen that before today? A. Yes. Q. What is that document? A. That is a terrorism-extremism update for the City of London business community from the City of London Police Department. Q. There is a reference to Occupy London in the fourth paragraph under the word "domestic." Do you see that? A. Yes. Q. Thank you. MR. AFRAN: Your Honor, I want to note for the record that the document heads "UK International Under the Terrorism Alert." It has a reference to the FARC in Colombia. The next paragraph is al-Qaeda in Pakistan. Then there is a reference immediately that in the third paragraph to a terrorist activity in Belarus. The next reference under the word "Domestic" contains five paragraphs immediately following on the page concerning Occupy London, and that's the balance of that page. THE COURT: So noted. Q. Are you aware in general or specifically of the provisions of the NDAA? A. Yes. Q. Have you seen the NDAA? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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122 C3trhedh Wargalla - direct A. Yes. Q. Again I'm referring to section 1021 of the NDAA. A. Yes. Q. Is there anything in that statute that causes you to believe you could be brought within its scope? A. Yes. Q. Would you describe what in that statute causes you to have this belief. MR. AFRAN: May I note, your Honor, the witness does not have a copy of the statute with her. THE COURT: Yes. Agreed. A. That would be the paragraph that deals with the covered persons. Q. What in that paragraph in particular causes you to have this concern? A. The phrase "associated forces." Q. What in particular about that phrase gives rise to this concern that you have in particular as to yourself or your organization? A. I think it is pretty simple. We are on the terrorism list to fund al-Qaeda, and this is what the section of the NDAA is talking about, about associated forces. Apparently the City of London police associate us to al-Qaeda to some degree, to some extent, in some way. So of course I'm concerned. THE COURT: How do you connect Occupy London to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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123 C3trhedh Wargalla - direct al-Qaeda based upon anything, including the document that you were shown which is attached to your declaration? Do you have a copy of that? THE WITNESS: No. MR. AFRAN: Your Honor, again without being rude to the Court, I will note my objection only to the extent that her testimony is others have done so. THE COURT: I understand. I just want to understand if she. You said that your concern arose from a connection that somebody had made between Occupy London and al-Qaeda. Where do you get any connection between the two from? THE WITNESS: I personally don't see any connection, because there is none. But I can't read the City of London police's mind, and apparently they see one. THE COURT: Where do you obtain your understanding to whether or not the City of London connects al-Qaeda to Occupy London? THE WITNESS: Because apparently they put us in the same category. THE COURT: Is your understanding based entirely on the document which is attached to your declaration? THE WITNESS: Yes. THE COURT: Thanks. You can hand that back to me. MR. AFRAN: Your Honor, I do apologize. I don't mean to be rude in interrupting the Court, but I want to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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124 C3trhedh Wargalla - direct absolutely certain I do whatever I need to do by way of preservation. THE COURT: Yes. By the way, your last two objections were overruled, but I think you got that. MR. AFRAN: Yes. I don't mind being overruled. I just mind forgetting to make them. THE COURT: Understood. BY MR. AFRAN: Q. With respect to your work at Revolution Truth, you mentioned something about live panels, I believe you testified to. A. Yes. Q. Describe what those live panels are. A. We conduct live panel discussions that we live stream on the Internet, we record it and put it online later, about current political topics, such as Occupy, the Black Blog. Yes. Q. Could you state your title again at Revolution Truth. I want to be sure I have it correct. A. That would be the deputy director. Q. In your capacity as deputy director, are you aware of any changes in the live panels that Revolution Truth intends to make in consequence of the NDAA? A. Yes. Q. Describe what those changes are and the basis of your knowledge. Describe what those changes will be. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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125 C3trhedh Wargalla - direct A. We have been thinking about inviting representatives of groups like the Hamas to present our values on a panel. On the basis of this new NDAA, we probably wouldn't do that. MR. HARWOOD: Your Honor, I'd like to object to this testimony. This was outside scope of this witness's affidavit. Actually, it was encompassed in the affidavit of another witness, who is not here to testify and who we haven't had a chance to examine before today's hearing. THE COURT: What I will do is allow you to finish a brief answer just on this piece, but don't go into it in any depth if that's the case. MR. AFRAN: I would note the affidavit does disclose that she works on Revolution Truth. THE COURT: Understood, and that she may have made some changes. But if the changes were in the affidavit of Ms. Bolen more specifically and so she wasn't cross-examined on those at her deposition, Mr. Harwood is making a fair point. Nonetheless, I am allowing you to have this witness finish the answer. If she wants to have it read back to where she was at this point, that's fine. Then let's tie up this little piece and move on to what she said in her affidavit. MR. AFRAN: Actually, this is a very brief reference. THE COURT: Do you want to know where you were? MR. AFRAN: I can rephrase the question. A. Yes, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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126 C3trhedh Wargalla - direct Q. With respect to the live panels, what changes are being made by Revolution Truth or what will you no longer do in consequence or as a result of the NDAA at this time? A. I can only speak for myself. I think that we won't invite people from groups like the Hamas, because this is not only about me and accepting the consequences of that for me, it's also about the whole group. I wouldn't want to put anyone in the group I'm working with in danger. MR. AFRAN: For the record, because of the witness's accent, Hamas is H-A-M-A-S. Q. That's what you were referring to, correct? A. Yes. THE COURT: Actually, the court reporter had gotten that the first time. MR. AFRAN: I was mostly saying it in case. THE COURT: While you're looking for some things, Mr. Afran, let me ask a question. Ms. Wargalla, the document that you were referencing before which is attached to your certification, which we have been calling declaration -- we have also been referring to it as your affidavit; it is your sworn statement in this proceeding -- lists not only al-Qaeda but also lists Colombia. Do you think that the City of London police are connecting Occupy London with Colombian revolutionaries? THE WITNESS: Maybe. I don't know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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127 Wargalla - direct THE COURT: Do you have a view as to whether or not the City of London police are connecting Occupy London with the individuals who were involved in the bombing in Belarus? THE WITNESS: Maybe they do. I can't read their minds. THE COURT: Do you have a view yourself as to whether or not the City of London has placed Occupy London in the same category as al-Qaeda? THE WITNESS: Apparently, they have. I don't know why they would put us on a list with them. THE COURT: You have that view based upon this document which is attached to your declaration, is that right? THE WITNESS: Yes. THE COURT: This document also lists Colombia and Belarus, right? THE WITNESS: Yes. THE COURT: But you haven't formed the same view of a connection as you have with al-Qaeda? THE WITNESS: Sorry. Can you repeat the question? THE COURT: What I'm suggesting is that you have said that by virtue of Occupy London being on this list that includes a number of entities, one of which is al-Qaeda, you have drawn a connection or you have made a connection that the City of London has somehow connected al-Qaeda and Occupy London. Is that a fair characterization? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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128 Wargalla - direct THE WITNESS: Yes. THE COURT: What I'm trying to figure out is, since Colombia and the FARC revolutionary group is also on this list, do you similarly hold the view that the City of London has drawn a connection between Occupy London and FARC? THE WITNESS: Maybe they did. THE COURT: But are you drawing a distinction between Colombia and al-Qaeda? THE WITNESS: No, I don't necessarily. THE COURT: You just are assuming that because there are various entities on this piece of paper, they are all linked together? THE WITNESS: Well, I really can't say what the City of London police wants, like how they draw the connections. I really can't say that. THE COURT: Have you spoken to anyone in law enforcement in London about how they put this document together? THE WITNESS: I was trying to get hold of the document, but couldn't. I was told that it was distributed by the law society. They didn't know about this document. So I contacted the police, and they referred me to the counterterrorism unit. But I couldn't reach anyone there. THE COURT: I take it from your answer that you have not had any discussions with anybody who was involved in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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129 C3trhedh Wargalla - direct preparation of this document which is attached to your declaration, is that right? THE WITNESS: That's correct. THE COURT: Thank you. Mr. Afran, you may continue. MR. AFRAN: Thank you, your Honor. BY MR. AFRAN: Q. Is it fair to say that you are a decision-maker at Revolution Truth, a person who makes decisions at Revolution Truth on its activities? A. In cooperation with others, yes. Q. The live panels, where would they be presented? In what form or medium would they be presented? THE COURT: Now we are down the row a little bit, I think, of Ms. Bolen's deposition. MR. AFRAN: I am really asking the witness to say where they would be physically seen and how to explain what they were. THE COURT: We will allow a little bit of this only because Ms. Bolen isn't here. MR. AFRAN: She is here. THE COURT: Is she going to testify? MR. AFRAN: We are happy to have her testify. She was ill and couldn't make it earlier this week for her deposition. Her affidavit is quite detailed. I thought we had a discussion SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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130 C3trhedh Wargalla - direct that those who testified in deposition would be here, could testify here, so I haven't proffered her. But we do believe her declaration is part of the record, and she is here. I think she is healthier today. MR. HARWOOD: We would object to that, your Honor. THE COURT: I understand. Finish your question. Q. My question simply is, the live panel that you have testified to, where would that be presented, in what form or medium? A. In the Internet live-streamed. Q. So it would be present through the website of Revolution Truth? A. Yes. Q. Do you have any concerns with the phrase "substantially supported" in section 1021? A. Yes. Q. What are those concerns? A. It's not defined or explained anywhere. Q. The term is not defined? A. The term, yes. Q. What about your work leads you to have a concern that the words "substantially supported" could impact you or your organizations? A. What do you mean exactly? Sorry. I don't understand. Q. What concerns you about "substantially supported" having no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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131 C3trhedh Wargalla - direct definition? A. That I could fall under this category. Q. To your understanding of the term, what does "substantially supported" mean? A. It could mean anything really, from having someone on a panel discussion, from conducting campaigns for someone in support of someone or some organization, to organizing rallies or demonstrations. MR. AFRAN: Your Honor, the witness has described other specific work she has done with respect to the organizations. Since it is part of the record and I don't think there is any real dispute as to those items, I'm going to ask that that be accepted from the declaration as it is, to save time, unless the government has an objection. THE COURT: Does the government have any objection? You have cross-examined this witness on her declaration, haven't you? MR. HARWOOD: Yes, your Honor. THE COURT: Her declaration is admitted into evidence. If the government would like to admit her deposition testimony into evidence where you examined her on aspects of it that are not included, you may do so. MR. HARWOOD: Thank you, your Honor. Q. How much did you spend to come to the United States, to the best of your knowledge? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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132 C3trhedh Wargalla - direct A. Altogether about $1,300 U.S. Q. That consists of what expenses? Not specifically, but your general expenses to do this. A. Yes. Of the flight, the transport, and the hotel here. MR. AFRAN: Your Honor, I want to consult with my co-counsel for one moment. I think we can wrap up this testimony. THE COURT: Yes. Q. One or two more questions very quickly. Have you any other expenses in connection with your concerns about the NDAA and actions you have taken because of it? A. That will be the time I spent on the lawsuit and some money for phonecalls. Q. How much have you spent, to your knowledge, on phonecalls in connection with your concerns about the NDAA? A. I don't have records of that, but it would be about $30 U.S. maybe. Q. Who were these discussions primarily with? A. Primarily with Jennifer Bolen and conference calls with the other parties involved in organizing the lawsuit. Q. In addition to organizing the lawsuit, have you had discussions with Ms. Bolen concerning the NDAA itself and how it affects you? A. Yes. MR. AFRAN: That's all, your Honor. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: Mr. Harwood. CROSS-EXAMINATION BY MR. HARWOOD: Q. Good afternoon, Ms. Wargalla. A. Good afternoon. Q. You started organizing rallies, demonstrations, and protests in support of WikiLeaks and Julian Assange in January 2011, right? A. That's correct. Q. You began working with Jennifer Bolen and Revolution Truth on a campaign in support of WikiLeaks and Julian Assange in February of 2011, correct? A. That's correct. Q. This campaign, it involved getting people to sign a letter in support of Julian Assange and WikiLeaks, right? A. Yes. Q. It also involved creating short films in support of WikiLeaks? A. Yes. Q. Then in July 2011 you began working with Ms. Bolen and Revolution Truth on a campaign in support of Bradley Manning, right? A. Yes. Q. Then you started organizing demonstrations and rallies in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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134 C3trhedh Wargalla - cross connection with Occupy London in September of 2011, right? A. That's correct. Q. These activities that we just discussed, these are the same activities that you now fear could bring you within the scope of section 1021, right? A. Yes. Q. It is your understanding that section 1021 has gone into effect, right? A. Sorry? Q. It's your understanding that section 1021 is in effect now? A. Yes. Q. But you don't know when it went into effect, right? A. I'm not certain about the date. Q. You also don't know whether, prior to the enactment of section 1021, the U.S. government claimed the authority to detain a person for substantially supporting the Taliban, right? A. I'm not sure about the exact wording, no. Q. Rather than the wording, you're not sure whether before the enactment of 1021 the U.S. government claimed the power to detain a person for substantially supporting al-Qaeda, correct? MR. AFRAN: I would object on the grounds that is really asking for a legal understanding by the witness. THE COURT: Understood. You can ask for her understanding. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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135 C3trhedh Wargalla - cross Q. You don't have an understanding whether prior to the enactment of section 1021 the U.S. government claimed the authority to detain a person for substantially supporting al-Qaeda, correct? A. I am not sure about the phrase "substantially supported," if it was used before. I know that that the U.S. government was allowed to indefinitely detain combatants but not civilians, and this has changed. I'm not a lawyer. I'm not an expert on the law. I can't tell you exactly the phrases. This is what I know and this is how I understand it. MR. HARWOOD: Your Honor, if I could approach and give the witness a copy of her deposition transcript? THE COURT: Yes. Do you have one for me? MR. HARWOOD: I do. THE COURT: Since we have taken part of her testimony in the form of her affidavit, we will actually make the transcript of Ms. Kai Wargalla part of the record in this matter. You may proceed. MR. AFRAN: Your Honor, I assume that means for purposes of the questions posed rather than accepting every question and answer that was in the transcript? THE COURT: Now you're putting me in a tough position. We did sort of a generalized "and everything else" sort of admission of whatever else was in her declaration. I haven't done a comparison between that and what she did testify to. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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136 Wargalla - cross MR. AFRAN: In fairness, I withdraw it. THE COURT: All right. If you're going to withdraw that and Ms. Wargalla's testimony on direct is as she testified on direct and is not then meant to include other topics, then I will not look at this. Or do you mean you withdraw your objection to this? MR. AFRAN: I withdraw my objection. THE COURT: OK. We are going to make the transcript of Ms. Kai Wargalla's deposition part of the record in this matter. You may proceed. MR. HARWOOD: Thank you, your Honor. BY MR. HARWOOD: Q. Ms. Wargalla, if you could turn to page 40/line 23. A. Say that again, please. Q. Page 40/line 23. The question is posed, "Do you know whether prior to the enactment of section 1021 the U.S. government ever claimed the authority reflected in section 1021 to detain a person for substantially supporting al-Qaeda, the Taliban, or an associated force? "A. I don't think I know. I'm not certain." A. Yes. Q. Is that testimony accurate? A. Yes. Q. As you sit here today, you don't know what the Authorization for Use of Military Force Act is, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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137 C3trhedh Wargalla - cross A. I don't know any legal details, I'm not a lawyer, no. Q. You don't know what that statute provides, correct? A. What do you mean exactly? I don't know what that means, what that statute provides. Q. What it authorizes. A. To my knowledge, it authorizes the indefinite detention of combatants. I think, from what I know about the new NDAA, that it covers the first -- sorry, I don't know the exact names, but the first part of the definitions of the covered persons, which is basically -- well, it's similar in the NDAA and the AUMF, which is about people directly involved in 9/11. Q. Since you have been engaging in activities involving WikiLeaks, Julian Assange, Bradley Manning, and Occupy London, the U.S. government has not taken any action against you, correct? A. Not that I know of. Q. Nor, to your knowledge, has the U.S. government ever threatened to take any action against you, right? A. Not that I know of. Q. As you testified, you currently reside in the UK, correct? A. That's correct. Q. The UK government has not taken any actions against you as a result of your journalistic or political activities, correct? A. Other than describing my group as a terrorist group, no. Q. I'm talking about the UK government now, not the City of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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138 C3trhedh Wargalla - cross London police. A. Well, isn't the police the government? It is the force that carries out the law, really. Q. If you could turn to your deposition page 63, please. A. Yes. Q. Page 63/line 18. The question is, "The UK hasn't taken any action against you, has it, as a result of your political activities, your journalism? "A. Are you referring to the government? "Q. Yes. "A. Well, not that I know of." A. Yes. Q. Is that accurate? A. That is accurate. Q. Nor, to your knowledge, has the UK government ever threatened to take any action against you, correct? A. That is correct. Q. Do you recall on your direct discussing a document that is attached to your certification, the terrorism-extremism update? A. Sorry. Say that again. Q. Do you recall on your direct discussing the document attached to your certification, the terrorism-extremism update? A. Sorry. Say that again. I don't seem to understand that. Q. I'm sorry. Do you recall discussing with your counsel when he was asking you questions the document that is attached to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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139 C3trhedh Wargalla - cross the end of your affidavit? A. Yes. Q. The terrorism-extremism update? A. Yes. Q. The update was issued by the City of London police, right? A. Yes. Q. You don't know whether the UK government had anything to do with the issuance of that update, correct? A. I don't. Q. Nor do you know whether the UK government has classified Occupy London as a terrorist group, right? A. That's correct. Q. You don't know whether the U.S. has classified Occupy London as a terrorist group, right? A. I don't know that either. Q. You also don't know whether any government has classified WikiLeaks as a terrorist organization, correct? A. I just know that several U.S. politicians described WikiLeaks as a terrorist organization and that there is a grand jury investigation into WikiLeaks. Q. You don't know whether any government has classified WikiLeaks as a terrorist organization, correct? A. I don't know that. Q. That includes the U.S. government, correct? A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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140 C3trhedh Wargalla - cross Q. There are no activities that you have forgone engaging in as a result of section 1021, right? A. I'm sorry. I don't understand. Q. There are no activities that you have not engaged in because of section 1021, correct, you personally? A. No, that's correct. Q. And there are no activities that you have curtailed because of section 1021, correct? MR. AFRAN: I'm sorry. I can't hear the question. A. I don't know what that means. Q. There are no activities that you have curtailed as a result of section 1021? A. I don't think I know what "curtailed" means. Q. There is nothing that you have done differently in terms of your expressive activities as a result of section 1021, correct? A. Other than the live panels I mentioned that we were thinking about changing. Q. You personally? A. No. Q. The monetary costs that you have incurred as a result of section 1021, those all relate to your participation in this lawsuit, correct? A. Yes. Q. The costs consisted of your travel to come to New York and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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141 C3trhedh Wargalla - cross the costs of your phonecalls on Skype with Ms. Bolen? A. Yes. Q. The only other costs you have incurred as a result of section 1021 is the time that you spent organizing this lawsuit and advocating against section 1021, correct? A. That's correct. MR. HARWOOD: No further questions, your Honor. THE COURT: I have a question, so don't go, because you may want to follow up. I want to be sure when you were asked questions about your personal activities whether or not you were taking a narrow view of that or a broad view of that. Earlier you testified that you are involved in RevolutionTruth.org. THE WITNESS: Mm-hm. THE COURT: Yes? THE WITNESS: Yes. THE COURT: And that that organization puts on live panels from time to time, is that right? THE WITNESS: Yes. THE COURT: And that there is a panel which previously might have had Hamas as an attendee, is that right? THE WITNESS: We were thinking about that, yes. THE COURT: You were part of the organizing of that panel? THE WITNESS: I'm part of organizing all the panels, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: In terms of your participation in RevolutionTruth.org, you did make a change as a result of the NDAA by not inviting Hamas, is that right? Or did I get that not quite right? THE WITNESS: Sorry. Can you repeat that? THE COURT: Yes. I'm trying to figure out whether or not RevolutionTruth.org made a change in terms of the attendees at any of its live panels as a result of the NDAA. THE WITNESS: Yes. THE COURT: Was that Hamas? THE WITNESS: Well, we're talking about panels that -you know, this is an ongoing thing that we do. We organize panel discussions every few weeks. This is a panel that wasn't scheduled specifically but that we were planning to do. THE COURT: RevolutionTruth.org had not yet scheduled a panel? THE WITNESS: Exactly. THE COURT: But now RevolutionTruth.org would not schedule a panel that would invite Hamas, is that right? THE WITNESS: Probably. THE COURT: It's not like RevolutionTruth.org canceled a panel because of the NDAA, is that what you are saying? THE WITNESS: Not yet, yes. THE COURT: Thank you. I think I now have it clear. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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143 Wargalla - cross MR. HARWOOD: Your Honor, I'd like to confer with my co-counsel, but I don't think I have any further questions. I also wouldn't want to open the door to any testimony about that issue, because I don't think it is properly before the Court. My co-counsel agrees. Thank you. THE COURT: Is there anything else? MR. AFRAN: Very, very briefly. I can stand here just to be quick. THE COURT: I think it won't take very long to go over to the mic. REDIRECT EXAMINATION BY MR. AFRAN: Q. You mentioned time involved in preparing the lawsuit and related matters. How many hours would you say you have spent on the campaign for the lawsuit and in the lawsuit itself and in preparation for the lawsuit? A. Considering me and Jennifer Bolen worked on that full time for the last several weeks, I stated that I spent about 300 hours on that. Q. That would effectively be all of your working time during that period, is that correct? A. Mostly, yes. Q. Other expressive or advocacy activities could not be done in consequence of that time, is that true? A. That is true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
C3trhedh 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. AFRAN: THE COURT: You have one minute before 1 o'clock. I'm done. Thank you, your Honor. Thank you. You may step down, Ms.
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(Witness excused) THE COURT: What I would like to do, if it is acceptable to everyone, is to take 45 minutes and no longer for lunch. Will that work? We can take a very quick lunch break, get back, and then I think you have two witnesses. We have Mr. Hedges, and then you have Ms. Jonsdottir's declaration, is that right? Then we are going to go into oral argument. I'd like to try to get to that all right away. Is it OK if we take 45 minutes? MR. TORRANCE: Fine with the government, your Honor. THE COURT: There is a cafeteria on the eighth floor which is public, and you are all welcome to get a bite there. We will be back at 1:45 and start promptly. Thank you. (Luncheon recess)
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AFTERNOON SESSION 1:45 p.m. (Hearing resumed) THE COURT: Mr. Mayer, Mr. Afran, would you like to call your next witness. MR. MAYER: Yes. Your Honor, we were going to at this juncture have read into the record the certification of Ms. Jonsdottir, the Icelandic parliamentarian. We are going to call Ms. Naomi Wolf to read it. If we could, we would preserve our objections, and I think we have noted this to the government, to the state department's refusal to have the deposition, a video deposition, of Ms. Jonsdottir proceed. We had a lengthy colloquy with the government. Again, the government attorneys have done outstanding work and have been completely open with us. The issue was the state department interposed these objections to Ms. Jonsdottir's video testimony which we thought were not appropriate and want to preserve the issue on the record. The justice department had issued a subpoena to Ms. Jonsdottir in connection with her involvement with WikiLeaks, actually issued a subpoena to Twitter for her Twitter and financial information. Later, the government turned round and the state department was saying that in order to protect Ms. Jonsdottir's personal data and information and to protect her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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146 C3trhedh diplomatic immunity, she can't appear at the deposition. That was entirely contradictory and had the effect of, not surprisingly, chilling her speech. THE COURT: I don't know if everybody would agree with the last part. The agreement that you have reached with the government is that you will be able to present the declaration or affidavit by Ms. Jonsdottir and they are content not to cross-examine? Is that what we spoke about on the phone on Friday? MR. TORRANCE: That's correct, your Honor. THE COURT: That will come in. I have two points. One is that we can take it in and it need not be read, but you are welcome to read it if you would prefer to read it into the record. That's fine. The second point is, is there a proffer of any additional testimony that Ms. Jonsdottir would have given within the contours of her declaration that she has not been able to give as a result of not being able to be deposed or to be called live? In other words, speak now or forever hold your piece on what else she would have said. MR. MAYER: No, your Honor, except to say that if the Court finds that it needs additional information from Ms. Jonsdottir, she would be available to testify by video. She is unable to come to the country because she has been advised by the Icelandic foreign minister that she cannot. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: I understand. I just wanted to make sure that there was not additional information which you believe could have been and should have been elicited that could not be because of this. I think the answer is no. If the Court had questions, I am unable to ask them of a piece of paper. Barring that, it sounds like we will proceed as we are. MR. TORRANCE: Since we are preserving objections, we do disagree with some of the characterizations that have been made. But I think that we can go forward on that basis. THE COURT: Why don't we go ahead and why don't you have whoever it is read it. MR. MAYER: I call Ms. Wolf to come up and read her certification. THE COURT: Go ahead and do it from the witness box. It will make it easier for the court reporter. But you need not be sworn, because it is a sworn declaration. Make sure we have the name and read it from the certification. MS. WOLF: "My name"? THE COURT: From the very first page. MS. WOLF: "Certification of Birgitta Jonsdottir, member of parliament." THE COURT: Spell that for the court reporter, please. MS. WOLF: B-I-R-G-I-T-T-A J-O-N-S-D-O-T-T-I-R. "My name is Birgitta Jonsdottir and I'm a citizen of Iceland. I'm a member of parliament of Althing, the Icelandic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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148 C3trhedh National Parliament, formerly representing Citizens Movement but now representing the movement. My district is the Reykjavik South Constituency. I was elected to the Icelandic parliament in April of 2009 on behalf of the movement advocating democratic reform beyond party politics of left and right. "I have been an activist and spokesperson for various groups, such as WikiLeaks, Saving Iceland, and Friends of Tibetan Iceland. I am also a poet, writer, artist, editor and publisher. My first poetry collection was published when I was 22 years old by Iceland's biggest publisher Almenna Bokafelagio, AB Books, in 1989. "I organized Art Against War, where a number of Icelandic artists and poets came out to protest the war in Iraq. I also participated in several international projects related to writing and activism, including Poets Against the War, Dialogue Among Nations Through Poetry, and Poets for Human Rights. I edited and published two international books, The World Healing Book and The Book of Hope, which contains writings by Lawrence Ferlinghetti, Rita Dove, the Dalai Lama, Rabbi Michael Lerner, John Kinsella, and Sigur Ros. "As a volunteer for WikiLeaks, I helped them produce a video called Collateral Murder in early 2010. At the time WikiLeaks was largely unknown to the rest of the world. The release of Collateral Murder changed that. This leaked video SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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149 C3trhedh showed uncut war crimes, although no one has been held accountable for the war crimes exposed. "The footage shown in Collateral Murder came from Iraq and showed an American Apache helicopter in Baghdad, after the Iraqi war but during the insurrection, open fire on a group of nine to eleven men, most of them unarmed, and two of whom were journalists working for Reuters. Eight men were killed, including the two journalists. A second and a third strike killed more people and wounded two children. "WikiLeaks received international attention and later that year became a worldwide sensation because of material it helped expose from the United States. The sensation around WikiLeaks and the attention to the material it leaked has changed the way we see our world and has been a source of inspiration for many of the democratic reforms occurring around the world. It has brought the poor status of freedom of information expression into the limelight. 2010 and 2011 were dominated by debates on these issues at panels all over the world, from policymakers to grassroots groups. "I'm acutely aware that WikiLeaks has been classified by elected political leaders and members of the Obama administration as a terrorist organization. Congressman Peter King called the organization a terrorist group. Sarah Palin said, 'Hunt WikiLeaks founder like al-Qaeda and the Taliban.' "I'm also aware that Harvard law professor Yochai SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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150 C3trhedh Benkler suggests the U.S. government has attempted to falsely frame the WikiLeaks revelations in a way to discredit WikiLeaks and Julian Assange. The false framing begins with what Benkler calls the 'hurt America' argument. A report by Benkler points to a string of statements made by Vice President Joe Biden, Secretary of State Hillary Clinton, Senator Joe Lieberman, and Secretary of Defense Robert Gates. "For example, the report quotes Biden's claim that WikiLeaks is 'more like high-tech terrorist than the Pentagon papers.' In addition, Clinton's comment 'Let's be clear. This disclosure is not just an attack on America's foreign policy interests, it is an attack on the international community, the alliances and partnerships, the conversations and negotiations that safeguard global security and advance economic prosperity." "I'm also aware that Bradley Manning, who leaked government documents, was charged by the United States government in 2011 with aiding terrorists. Manning allegedly leaked the video footage that is the basis for Collateral Murder. In closing statements at the pretrial hearing, Captain Ashden Fein for the United States government stated that Manning had actual knowledge that what he gave to WikiLeaks would end up in the hands of the enemy, and that enemy was al-Qaeda, al-Qaeda on the Arabian Peninsula, AQAP, and similar enemies. The chairman of the House Homeland Security Committee SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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151 C3trhedh has said that WikiLeaks, an organization which published Manning's comments, should be clarified as a 'terrorist organization.' "I am also aware that the Obama administration has pressed Britain, Germany, Australia, and other allied western governments to consider opening criminal investigations of WikiLeaks founder Julian Assange. The administration has also admitted considering a wide range of criminal charges against Assange and WikiLeaks, and it is widely reported in the press that Assange and WikiLeaks will be criminally indicted, reflecting the administration's belief that WikiLeaks and organizations like it threaten American national security. "I have also been aware that the United States government takes the position that Assange and WikiLeaks were using Iceland as a haven for free speech, creating a potential home for WikiLeaks and other organizations that may violate the laws of the U.S. and other nations through the release of classified documents, and that Washington seeks to" -- it actually says, "and that the Washington seeks to review its relations with Iceland in the wake of the release of the Afghan war logs. "In fact, I worked with people from all over the world, including people from WikiLeaks, on drafting the Icelandic Modern Media Initiative, IMMI. It's aim is to create a safe heaven for freedom of information expression of speech SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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152 C3trhedh in Iceland in relation to the changed landscape we are living in because of development with content in a digital format. This work took place around the same time frame as the video was being prepared for worldwide release. The IMMI proposal was successfully passed through the Icelandic parliament with unanimous vote, including all members of the government present. "I also sponsored legislation that would ensure Iceland has the world's strongest modern freedom of information expression and speech laws. The European Union is considering adopting the model based on this legislation. I regularly work with leaders around the globe on human rights and freedom of information issues. "Despite my obvious intentions to report the truth, work for peace, and support openness in government, the United States government brought me into its criminal investigation of WikiLeaks. On December 14, 2010, upon the application of the Obama administration's Department of Justice, a federal magistrate judge issued a subpoena for my Twitter account and three other social media accounts, including those of Julian Assange and Bradley Manning. See Appendix A. For Iceland I am fighting this highly invasive subpoena that even goes after bank records, but I now fear going to the United States. "I had a meeting at the foreign affairs ministry in January 2011 with Einar Gunnarsson, permanent secretary of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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153 C3trhedh state, and Kristjan Guy Burgess, political adviser to the minister. Mr. Burgess had just arrived in the ministry after attending a meeting accompanying the foreign affairs minister Ossur Skarpheoinssonoh at the U.S. embassy with the Ambassador Luis E. Arreaga. "Mr. Burgess was asked to pass to me the following information from the Department of Justice: (1) I was free to travel to the USA, (2) I was not going to be a subject involuntary interrogation, and (3) I was not under criminal investigation. Despite this message, the permanent secretary of state and the minister advised me against traveling to the USA due to the fact that this message was not in writing and these conditions could easily change during my flight to the USA. "I want to testify in open court for this case and my lawyers have asked that I do so. However, I had a meeting recently with the Icelandic permanent secretary of state, and he again advised me not to travel unless I would get these assurances in writing or a special visa. As a consequence of the justice department's subpoena and the involvement in the criminal case, I will not fly to the United States, and am even more fearful of doing so now that the U.S. government has additional powers under the Homeland Battlefield Act. "I have been invited to keynote many key events in the USA, to speak about the issue of freedom of information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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154 C3trhedh expression and speech, but I have had to decline all these offers and have therefore sacrificed important contacts and money. I have a very real, legitimate fear that the federal government will enforce the Homeland Battlefield Act against me in that my work could be construed as giving 'substantial support' to terrorists and/or 'associated forces' because of the way that the United States government views WikiLeaks. "I have seen first-hand how the Twitter subpoena means that I can't travel to the United States and how my financial and other information will be exposed in a criminal investigation. My understanding of the Homeland Battlefield Act is that it grants even more sweeping powers to the United States government and that I could face the prospect of permanent military detention without even a trial. My free speech activities are already chilled by the looming implementation of the Homeland Battlefield Act because of my inability to travel to the United States and give the lectures and interviews that have been requested of me. "The Homeland Battlefield provisions create a greater sense of fear since now the federal government will have a tool with which to incarcerate me outside the normal requirements of the criminal law. Because of this change in the legal situation, I am now no longer able to travel to the U.S. for fear of being taken into custody as having 'substantially supported' groups that are considered as either terrorist SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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155 C3trhedh groups or their associates. I'm already incurring additional expenses and obligations related to this litigation against the Homeland Battlefield Act. "I declare under penalty of perjury that the foregoing is true and correct. Executed on March 12, 2012. Birgitta Jonsdottir, member of parliament." THE COURT: Thank you. You may step down. The government has waived cross-examination of Ms. Jonsdottir due to circumstances already noted. Let's proceed, Mr. Mayer and Mr. Afran, with your next witness. MR. AFRAN: Your Honor, with respect to Ms. Jonsdottir's certification, it occurred to me that she hasn't informed us of the names of the groups that she has now been unable to accept invitations for and speak at. I don't have them with me. To answer the Court's question from earlier, that would have been supplemented into the record, the names of those organizations. I just wanted to make sure I stated that. THE COURT: All right. Thank you. MR. MAYER: I had an additional housekeeping issue, which is attached to Ms. Jonsdottir's certification is an exhibit which constitutes the court order and subpoena to Twitter. I wanted to make sure that we have offered that as an exhibit. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: The attachment to Ms. Jonsdottir's certification is admitted. MR. MAYER: Thank you, your Honor. THE COURT: It's part of her ECF filing, so it will come in that way as well. Why don't you proceed to your next witness. MR. MAYER: Yes, your Honor. I would like to call our next witness, who is Mr. Chris Hedges. CHRISTOPHER HEDGES, called as a witness by the plaintiffs, having been duly sworn, testified as follows: THE CLERK: Please state your full name and spell your last name slowly for the record. THE WITNESS: Christopher Lynn, L-Y-N-N, Hedges, H-E-D-G-E-S. THE COURT: Mr. Mayer, you may proceed. MR. MAYER: Thank you, your Honor. DIRECT EXAMINATION BY MR. MAYER: Q. Good afternoon, Mr. Hedges. For the record, Mr. Hedges, are you a citizen of the United States? A. Yes, I am. Q. Could you describe for the court your professional experience. A. I've been a foreign correspondent for 20 years working in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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157 C3trhedh Hedges - direct Latin America, Africa, the Middle East, and the Balkans primarily, although many other countries. I currently am an author, make my living as an author writing books, teaching, and lecturing as well as doing long form journalism for publications such as Harper's Magazine, New York Review of Books, Granta. Q. What publications did you work for as a war correspondent? A. The Christian Science Monitor, The Dallas Morning News, and I spent 15 years at The New York Times. Q. Did you ever, Mr. Hedges, receive any awards for your journalistic reporting? A. Yes. Q. What would those be? A. Many, including the Pulitzer Prize. Q. In your reporting, Mr. Hedges, did you report on al-Qaeda? A. Yes. Q. Could you tell me the approximate dates that you reported on al-Qaeda and what that reporting involved and for what publication. A. After 9/11 I was based in Paris and I covered al-Qaeda in all countries in Europe with the exception of Germany -- I don't speak German, but I do speak French, Spanish, and Arabic -- and in the Middle East. Mostly I did what we call reconstructs, which means that after a terrorist attack I would spend weeks on the ground piecing together everything that had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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158 C3trhedh Hedges - direct gone into that attack and all of the movements of those who were involved in those attacks. Q. Did you ever, for example, follow the movements of Mohammed Atta? A. Yes. Mohammed Atta in August of 2001 spent ten days in Spain. As far as we can tell, that was a trip by which he met a courier who came up through Morocco with cash which was needed to carry out the 9/11 attacks. I retraced every step Mohammed Atta took. Q. Did you cover other persons that were al-Qaeda members? A. Yes. I covered the abortive Paris embassy bombing plot. I covered the suicide bombing attack on the synagogue in Djerba in Tunisia, among other stories. Q. While you were in Paris, Mr. Hedges, did you have an opportunity to cover al-Qaeda while you were based in Paris? A. Yes. Q. How did you know that these people you were covering were al-Qaeda? A. Some of the people that I interviewed were later charged and are currently in prison as al-Qaeda members. I also met almost weekly with France's Chief Investigating Judge Bruguiere as well as the chief of counterterrorism in the ministry of interior. Because I was working in London I covered, for instance, Richard Reed, the shoe bomber. I had French intelligence officials, when I would ask particular questions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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159 C3trhedh Hedges - direct about suspects that I was writing about, pull out files and actually show me surveillance photographs that French intelligence had taken of these individuals who they identified as members of al-Qaeda. Q. Mr. Hedges, do you believe or do you have knowledge that your reporting on al-Qaeda or on other terrorist organizations is reported widely in the Middle East? Strike that. Not reported. Is read widely in the Middle East? A. Yes, it is. Q. Would that include Islamic websites or jihadist websites that convey the stories or the facts that you report, did report? A. Yes, particularly because I have reported and knew quite a bit about the Palestinians. THE COURT: What is the basis for your knowledge as to the extent of the readership in the Middle East? THE WITNESS: The readership of those websites? THE COURT: Yes. I think the question was do you know if you are widely read, or something like that. I am trying to figure out how you know you are widely read as opposed to disseminated. THE WITNESS: Right. It's anecdotal, but I'm certainly a figure that is known in the Middle East, and I'm known through my writing. THE COURT: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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160 C3trhedh Hedges - direct Q. Mr. Hedges, are you familiar with the Homeland Battlefield Act, sometimes called the NDAA? I'm talking particularly about the provisions at issue today, which would be section 1021 of the NDAA. A. Yes. Q. How did you become familiar with the act or those particular provisions? A. I followed the news coverage that preceded its implementation. MR. MAYER: May I approach, your Honor? THE COURT: You may. MR. MAYER: I want to offer this to the government. This is the public law that sets out section 1021 of the NDAA. Any objection? MR. TORRANCE: No objection. I'll just note for the record that there is a marking in the margin that was not present when it was introduced at the deposition. But I have no objection. MR. MAYER: We may have introduced it earlier this morning as well. This is the copy. THE COURT: Is this the statute? MR. MAYER: The statute, yes. THE COURT: We'll mark it as Court Exhibit number 8, the statute. Q. Mr. Hedges, this is section 1021 of the NDAA, or the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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161 C3trhedh Hedges - direct Homeland Battlefield provisions. It's really one sentence, the text that is marked in there, section 1021(b)(2) under "covered persons," if you could just read that. I understand you're not a lawyer, but if you wouldn't mind reading just that sentence. A. "Covered persons. A covered person under this section is any person as follows: A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks; (2) a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Q. Mr. Hedges, I understand that you are not an attorney, but you are a man of letters. I wanted to ask you about a couple of phrases that are contained in 1021(b)(2.)? MR. TORRANCE: Objection, your Honor. If he is asking for an understanding, I have no objection. THE COURT: All you can be asked for is the understanding, so I assume that is what you are doing. Q. Yes, I'm asking for your understanding. THE COURT: You may proceed. Q. I'm asking for your understanding of the term "associated forces." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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162 C3trhedh Hedges - direct A. It's nebulous. This is the problem with the entire section of the bill. Q. Is it your understanding about the law that this phrase "associated forces" would be interpreted by the government or by you? A. No. Unfortunately, it is interpreted by the government. Q. What about the term "engaged in hostilities," Mr. Hedges? What does that term mean, to you your understanding. A. It's vague and undefined. Q. Are you married, Mr. Hedges? A. Yes. Q. Have you ever engaged in hostilities with your spouse from time to time? MR. TORRANCE: Objection. THE COURT: If that's all this means, then what are we doing here? Withdrawn. You may proceed. A. Let me just say that having covered war for 20 years, people who are considered to be enemy combatants may never actually pick up a weapon. Osama bin Laden's driver, for instance, ended up in Guantanamo. What I find particularly frightening about this particular piece of legislation is when you have a government administration ruled by people who have a Manichean vision of the world. This was something that I confronted covering the war in El Salvador with figures like Ollie North, Elliot SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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163 C3trhedh Hedges - direct Abrams, Raymond, or later on with Cheney, Bush, and Perle. They don't make distinctions. It is a binary kind of good and bad or good and evil. Having lived through the assaults of the Reagan administration, having been myself a particular target of Dick Cheney when he was the defense secretary, language like this in their vision, in my judgment, would make me a terrorist. Q. Mr. Hedges, I want to direct your attention to tell the phrase "associated forces." What would your understanding of that be? THE COURT: I think you asked about that one before. It may be that you meant to start with the phrase "substantially supported" and you skipped over that one. MR. MAYER: Yes. Strike that question. Q. Let me ask you about the phrase "substantially supported." What is your understanding of that? A. Again, it's so nebulous and undefined that it could be interpreted any way anyone wants. Q. The interpretation is the government's interpretation? A. Of course. This is what I find frightening. MR. MAYER: If I may approach, your Honor, I am going to offer this next document to the government. MR. TORRANCE: Again, no objection. The annotation is new, but I have no objection. THE COURT: What is this? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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164 Hedges - direct MR. MAYER: This is the language of the authorization for the use of military force. I have to lay a foundation for it. I think it has already been admitted. THE COURT: We don't need to mark that again. MR. MAYER: Right, I don't believe so. Q. Mr. Hedges, again with the understanding that you are not a lawyer, are you familiar with the Authorization for the Use of Military force Act of I believe it was 2001? A. Yes. Q. You have before you a section of the AUMF related to the groups that the President is authorized to use his powers to pursue. It's the underlined section. Would you mind reading that section to me. A. "Those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Q. Again, Mr. Hedges, I know you're not an attorney, but as a person of letters, would you say that that description is narrower or more expansive than the paragraph that you read earlier from the NDAA? THE COURT: Let's be clear. When you say person of letters, I think what it evokes is the concept that you are having him act almost as quasi-expert witness. What you really are entitled to and I think perhaps what you mean to do, I don't want to put words in your mouth, is to ask him what he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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165 C3trhedh Hedges - direct understands that to mean with all of the background that he brings to that understanding. A. The short way of answering that is that it is a declaration of war and that it applies to enemy combatants on foreign soil that are engaged in direct hostilities with the United States and are linked directly with those who carried out the attacks of 9/11. Q. Do you see that as distinct from the language of section 1021? A. It's radically different. Q. In what regard? A. First of all, 1021 applies to American citizens on American soil. 1021 is expanding this far beyond people defined as enemy combatants. 1021 is bringing into the rubric groups and organizations that may not even have existed at the time of the terrorist attacks of September 11th. Q. Along those lines, Mr. Hedges, I'm going to offer you a document that I will show first to the government. MR. MAYER: This is a state department document which defines terrorist groups for the United States government. I believe this was part of Mr. Hedges' original certification which has been offered into evidence at his deposition by the government. MR. TORRANCE: This does appear to be the exhibit or a longer version of it perhaps. I have no objection to it coming SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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166 C3trhedh Hedges - direct in, but not for its truth. To show the witness's state of mind, I have no objection. THE COURT: I need a copy of it, if you've got one. MR. MAYER: Would you like an extra copy, your Honor? THE COURT: Yes. MR. MAYER: I'll give that one to you, get another one for Mr. Hedges. MR. TORRANCE: Might I note for the record, your Honor, too, we are not verifying the authenticity or current status of that document. As I said, we do not object to it, because he's stated that it shows his state of mind. THE COURT: This document is going to be marked as Government Exhibit 9. It is something which the Court can take judicial notice of it. Being a public document, it need not be admitted actually into evidence, but it is something to which all of us can refer for its contents. Q. Mr. Hedges, are you familiar with that document and could you describe the document that I placed in front of you. A. Yes. It is a list of groups that are considered to be terrorist groups by the U.S. state department. Q. Mr. Hedges, in your opinion as a war correspondent of long standing, are there groups on that list that could be considered by the government to be associated forces of al-Qaeda? MR. TORRANCE: Objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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167 Hedges - direct THE COURT: Hold up for one second. I want to make sure. This is probably why you were standing, Mr. Torrance. For this and for other questions we are going to assume that you are asking Mr. Hedges in his personal capacity and that he is not testifying as an expert witness in war correspondence or anything else. Because that is a different exercise. MR. MAYER: I understand, your Honor. THE COURT: I only say that because your question was worded as sort of an expert-type question. With that understanding in general, go ahead and proceed. MR. MAYER: Thank you, your Honor. And this is not intended to be testimony related to a legal opinion. Hopefully, your Honor will give us a chance at that this afternoon. THE COURT: Or an expert opinion. MR. MAYER: Either an expert or a legal opinion. Q. Mr. Hedges, in your own opinion, your nonexpert opinion, could any of these groups be considered associated enforcers of al-Qaeda in the eyes of the United States government? MR. TORRANCE: Objection. THE COURT: Sustained. A. The problem with -MR. TORRANCE: I'm sorry. The objection was sustained. I have no objection if the last phrase is excised. THE COURT: Let's be sure that the witness now SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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168 C3trhedh Hedges - direct understands the legal activity that just occurred. You can't speak as to what might be in the mind of the U.S. government. You can speak as to your view based upon your experience and background and knowledge. A. The problem with answering that question is that the U.S. government is a vast, multifaceted entity that has groups within it that are often antagonistic. THE COURT: Just speak to whether or not -- I'm sorry, Mr. Hedges. A. But to say that the government as a unit -THE COURT: That's why we are saying you can't say that one way or the other. What you can say is do you, Christopher Hedges, believe that some of these organizations which are listed on Court Exhibit number 9 could be considered in your view as associated forces with al-Qaeda. I think that is the question. The reason for that has to do with the rules of evidence, not because we are trying to pick on you. A. I suppose they could be, yes. Q. Mr. Hedges, looking at that list, in your history as a foreign correspondent, did you have an opportunity to report on any of those organizations? A. Yes. I think I counted 17 of them. MR. MAYER: Your Honor, I could either at your direction have him read the organizations that he reported on into the record based on his refreshed recollection or, if you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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169 C3trhedh Hedges - direct want, do it by memory. THE COURT: Why don't you put the list in front of him. It will help him to spell it for the court reporter should there be a need to do so. Q. If you could list the groups that you reported upon. A. The Abu Nidal Organization, the al-Aqsa Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama'a al-Islamiya, Hamas, Hizballah, Kahane Chai otherwise known as KaCh, the Kongra-Gel, KGK -- it's not on the list but it's also known as the PKK, the Mujahedin-e Khalq Organization or MEK, the Palestine Liberation Front, the Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, Popular Front for the Liberation of Palestine - Central Command, al-Qaeda, Revolutionary People's Liberation Party/Front, and the Salafist Group for Call and Combat. Q. Mr. Hedges, you indicated earlier that some of those organizations could be considered associated forces of al-Qaeda. Just as a correspondent, not as an expert or an attorney, is it also your opinion that some of these groups are engaged in hostilities with the coalition partners of the United States of America? A. Without question. Q. Can you give some examples to the Court. A. Yes. The PKK is engaged in hostilities with Turkey, which is a coalition partner. Some of these groups, such as the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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170 C3trhedh Hedges - direct PFLP, have carried out acts of terrorism against U.S. targets. Hizballah -- well, Israel is not listed as a coalition partner. The Salafist Group for Call and Combat is, was, is -- it's now in the Egyptian parliament but it was a group, an armed Islamic group, that was engaged in hostilities with the government of Hosni Mubarek. I don't remember whether Algeria is listed. I believe not. The armed Islamic group is Algerian. They may not be listed as a coalition partner. Q. Thank you, Mr. Hedges. In your career as a writer and a journalist, have you had the opportunity to spend time with and interview either the leadership or the rank-and-file of these groups? A. Yes. Q. Could you describe some of your reporting, for example, on the group PKK, which you just indicated is an opponent of a coalition partner. A. I traveled with armed units of the PKK in southeastern Turkey and in northern Iraq. Q. You traveled with those units? A. Yes. Q. For how long? A. Days. Q. Were you armed at the time? A. No. Q. Did you have bodyguards? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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171 C3trhedh Hedges - direct A. I'm usually assigned bodyguards, yes. THE COURT: Could you hold up just a minute? Thank you, you may proceed. Q. Did you witness any combat with the PKK? A. I was with a PKK unit in northern Iraq when we were attacked by Turkish warplanes. Q. Were there casualties? A. We were hiding under trees along a river. The village where the PKK unit had been based was bombed. I did not go back to the village to investigate whether there were casualties. Q. Mr. Hedges, did you have the opportunity to report and/or meet with the leadership of Hamas, which is another group on the state department terrorist list? A. Yes. Q. Could you describe your interactions with the Hamas leadership. THE COURT: Could we put dates and time frames time frames around some of this? What I am interested in is not only when your prior activities may have been but whether or not there are anticipated current or future activities of a similar nature. A. I was the Middle East bureau chief for The New York Times from 1991 to 1995. I was in the Middle East. I had previously been working for The Dallas Morning News starting in 1988. So SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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172 C3trhedh Hedges - direct from 1988 to 1995 I had frequent contact with all Palestinian groups, including Hamas. I saw the leadership of Hamas in Gaza frequently. I went back in 2001 and wrote a long form piece of journalism for Harper's magazine out of a refugee camp in Gaza and again had contact at that time with Dr. Rantissi who was the head of Hamas, later killed as a target of assassination. I was in the homes of these people. I had dinner with them. After Rantissi was killed, Hamas was taken over by another figure named Nizar Rayyan. He was later killed during the Israeli 22-day bombing of Gaza in his house with a couple of his wives and all of his kids. I was in the house. I knew their families. As a reporter, because I lived in Gaza, I had frequent contact with both the upper echelon of Hamas as well as Hamas members within refugee camps. THE WITNESS: Excuse me, Judge, you asked about future? THE COURT: Yes. I think it is relevant, perhaps, that you had prior contact, but the issue is going to be whether or not that prior contact in a variety of ways is going to have any relevance to the future, if you will. A. This is the problem. Because of my experience in the Middle East and because of my language facility, I'm frequently approached by publications to go back and do reporting. I've SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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173 C3trhedh Hedges - direct been approached by Harper's, The Nation magazine, and others. I have spent the last two years working extensively on a book that will be published in June, so I have held off reporting trips of this nature to focus on the book. But after its publication, I certainly expect that sometime I will be back in the Middle East. THE COURT: Thank you. MR. MAYER: Your Honor, I think I will get to your point, since I understand you are interested in that. Although, if I could, one clarification with Mr. Hedges. Q. Mr. Hedges, based on the language you have in front of you, section 1021 of the homeland battlefield provision of the NDAA, is that written in the past tense or the present tense? You might read it aloud. It's section (2) as to covered persons, (b)(2). A. No, it's the past, "person who was a part or substantially supported." So it's in the past tense. Q. Its in the past, OK. As to the future, Mr. Hedges, do you currently have any speaking engagements planned not necessarily in the Middle East but in areas where you would find yourself meeting with sources that could be associated with the Taliban or, excuse me, al-Qaeda? A. Yes. Q. Would you describe those for the Court and when those are. A. In April I will be in Belgium and France. I am giving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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174 C3trhedh Hedges - direct public lectures both in Paris and in Brussels. Because these are public events, I'm always approached by groups and I often cannot anticipate who these groups are. But given my long involvement in the Middle East, these are groups that are usually critical or hostile to the U.S. government. Q. Mr. Hedges, is it an accurate statement of fact to say that your discussions with these groups or individuals will be different in your mind after the passage of the homeland battlefield provisions? A. Yes. Q. In what regard? A. Any kind of language in my presence that countenances violence against the United States. Frankly, I have already experienced this within the Occupy movement, one that given the passage of the NDAA really terrifies me. Given the level of what we presume anecdotally to be infiltration of the movement, I feel that I'm either being set up by a provocateur or I'm in the presence of somebody who actually may embrace and commit acts of violence. Q. You indicated you had some experience in that regard with the Occupy Wall Street movement. If you could relate that experience and maybe explain to the Court your involvement with Occupy Wall Street. A. I was very involved in the Occupy movement from the beginning. I not only spoke in Zuccotti Park and was present SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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175 C3trhedh Hedges - direct frequently, but carried out activities. For example, we carried out a people's hearing of Goldman Sachs, Cornell West and I, and then about 3 or 400 people marched on Goldman Sachs and I was arrested in front of Goldman Sachs. I have written extensively about the movement. I have been interviewed on a variety of television, radio, as well as in print about the movement. It is probably fair to say that among writers and cultural critics, I'm one of those who's been most closely identified with the movement. I have found in several instances disconcerting moments when people who I did not know approached me and began to speak in the euphemism of what they call escalation of tactics, which is really about employing violence against the States, something which I have categorically denounced. But I have found in those conversations or I have certainly felt that within those conversations I was being baited. THE COURT: Let me ask a couple of questions. Do you know what the charge was when you were arrested in the Occupy Wall Street? THE WITNESS: Failure to obey a lawful order, and I think obstruction of -- I didn't resist arrest. THE COURT: The second question is, do you have the name of a topic for the speech or talk that you are going to give in April of 2012? THE WITNESS: I'm giving two talks, two public SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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176 C3trhedh Hedges - direct lectures, one in Paris and one in Brussels. The title of the talk in Paris is Empire of Illusion. I was invited by the prime minister of Belgium to give the talk. They may have a title. They asked me or he asked me to speak about the sort of current state of affairs within the United States. The title of the talk, I didn't give them a title, although they may have one. THE COURT: Empire of Illusion, is that the current state of affairs, or are you mentioning both? Is Empire of Illusions one talk and current state of affairs a separate talk? THE WITNESS: That's correct. Empire of Illusion is the title of one of my books that has been translated into French. THE COURT: What is the general topic, if you could give us a one- or two-sentence overview, of Empire of Illusion? THE WITNESS: That we have undergone a corporate coup d'etat in slow motion. THE COURT: Those two things that you have now mentioned are the topics you will be speaking on in April of 2012? THE WITNESS: Yes, in the public lectures. I also have numerous media events. THE COURT: Understood. You can proceed. MR. MAYER: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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177 C3trhedh Hedges - direct Q. Mr. Hedges, the passage of the NDAA, particularly the Homeland Battlefield Act provision 1021, has that affected your writing or reporting in any other way in terms of being reluctant to meet with groups or persons? And could you give any specific examples. A. I would say since passage of the NDAA, it's affected me most directly in the conversations that I referred to earlier at Occupy, where people raised issues that crossed the line into illegality. That frightened me very much. Before the NDAA, such conversations would not have carried the same kind of weight to me personally that they do now. Q. Are you familiar with a group called the Bob Avakian Revolutionary Party? A-V-A-K-I-A-N, I believe. A. Yes. This for me is a problematic group. It's a Maoist group. It ultimately embraces the use of force. It is one of the fringe radical groups that is involved in antiwar protests. I have been very involved in protests against the war in Iraq and Afghanistan. They have hosted events which I have attended. I do not embrace their ideology. However, the NDAA certainly, I guess the word is, has a chilling effect in that if you participate in an activity, while I may support the particular denouncing of the war, denouncing the FISA Amendments Act or something, an outsider could conceivably construe that this extended to support for the organization itself. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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178 C3trhedh Hedges - direct Q. Mr. Hedges, you mentioned a chilling effect. What do you understand could happen to you if you were considered a covered person under the Homeland Battlefield Act, or NDAA? A. I could be detained by the U.S. military, held in a military facility, including offshore, denied due process, and incarcerated until, quote-unquote, I think it is the end of hostilities, whenever that is. Q. Mr. Hedges, I don't want to speak for the government, but I think it is probably fair to say that it is the government's position that all this act and government policy is not to target journalists or activists or others. Have you ever been detained by the United States military? A. Yes, I have. Q. Would you describe the circumstances and when. A. During the first Gulf War I was arrested by military police. Q. What were the circumstances of the arrest? Did the government indicate why they were arresting you or detaining you? MR. TORRANCE: Objection. Compound. THE COURT: If you understand the question, you can answer it. A. During the first Gulf War defense secretary Cheney imposed a system whereby no reporter was allowed to report outside of what they called the pool, which meant that you had to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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179 C3trhedh Hedges - direct escorted, not only escorted by military officials but embedded. You couldn't have your own transportation. You were not allowed to do your own feeds; they had to be done through the military. All reporting was done essentially under military supervision. I refused to accept those conditions. And because of my Arabic, I was able to sleep in homes of bedouins -- these are tribal figures out near the Kuwaiti border -- and do my reporting. Then I would go down, come back from where the front lines were, and get within a tower to call in my stories and dictate it. I was picked up alone as a reporter on something called a tap line road by military police when I was writing a story about how merchants had quadrupled their prices and were gouging U.S. soldiers and Marines because they had nowhere else to shop. Q. Did the military indicate by what authority they were detaining you at the time? A. No. Neither The New York Times nor myself recognized that authority, but they did detain me. Q. Can you cite another instance where you were detained or questioned by either the military or the United States government? A. Yes. I gave a lecture in Italy not long after 9/11, and when I arrived at the Newark Airport I was escorted out when I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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180 C3trhedh Hedges - direct appeared at the desk. I was not permitted to enter the country. I was escorted to a room and held for roughly an hour with foreign nationals who I assume had visa problems. After an hour, a supervisor came into the room and I heard the supervisor say to the official in front of the computer screen seat in front of me, he's on a watch, tell him he can leave. When I requested information about what that meant, I was told that they couldn't talk about it and that I should leave the airport. Q. In your own words, Mr. Hedges, do you have any reason to believe that the government monitors your activities? A. Yes. Every time I receive a phonecall from Iran, it rings once and goes dead, and the party calling me from Iran has to redial. Because my phone was tapped extensively overseas and because of conversations with U.S. intelligence officials and embassies, my understanding is that that one ring triggers the recording mechanism. THE COURT: At what point in time do you first recall becoming aware that when phonecalls came in from Iran they would be dropped and then have to redial? THE WITNESS: It would have been a few years ago. THE COURT: Thank you. Q. Mr. Hedges, has it ever been the case that the government, either defense department or some other branch of the government, has taken an interest in your reporting to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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181 C3trhedh Hedges - direct point where it has criticized your reporting? A. Frequently. Q. Could you cite some examples. A. I covered the war in El Salvador for five years during the Reagan administration. If you remember, because of the heavy death squad activity, when I arrived there in 1983 the death squads were killing between 700 and 1,000 people a month. The death squads were an integral part of the military and paramilitary structure of the Salvadoran armed forces and police. This made certification, i.e. for military aid, problematic. There was a vote every six months. Sometimes those votes were passed by only two or three votes. Those journalists who were based in El Salvador and reporting on those kinds of atrocities as well as traveling frequently with the FMLN were not only denounced as Communist sympathizers -I want to get back to that Manichean vision of the world, because the inability to see nuance or historical context is something that I find paralleled in the Middle East. The lumping, for instance, of Hamas with al-Qaeda is that same kind of broad brush, because al-Qaeda considers Hamas to be apostates. The Salafists, the GIA, these are antagonistic entities to al-Qaeda. MR. TORRANCE: Objection to the question. THE COURT: It's OK. It's going to his state of mind, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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182 C3trhedh Hedges - direct and he is about to finish. A. Yes. The point is that when you are dealing with individuals who can't make those distinctions, then there is no differentiation. If you are writing things that counter the official narrative, there is no differentiation between you and the groups that you are covering. Q. Are you familiar with a gentleman named Sami al-Hajj? A. I know who he is, yes. Q. Could you describe for the Court who he is and his circumstances. A. He was a cameraman for Al Jazeera. He was arrested in Pakistan and taken to Guantanamo. MR. TORRANCE: Objection. THE COURT: Why don't you tell us how you know that information. A. From press reports and the public record. He was held in Guantanamo for I believe six years. MR. TORRANCE: Objection as to hearsay. THE COURT: It would be hearsay if the only way you learned about it was from news reports, because those are out-of-court statements which the government doesn't have an opportunity to cross-examine. If you have learned of it by speaking with the individual himself or, as you said public record, by looking at public record documents, that would be different. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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183 Hedges - direct If your knowledge comes solely from news articles, then it is nothing more that we would be able to learn and we would go on to something else. Do you have any basis for your knowledge that is other than news articles? THE WITNESS: Yes, the government statement that ordered him released -THE COURT: OK. THE WITNESS: -- after six years is a public document. When he was released, he was not charged with a crime. Q. Have you reported on or done opinion pieces on people like Mr. Al-Hajj, either Mr. Al-Hajj or people like Mr. Al-Hajj who are either Guantanamo detainees or in the custody of the United States government? THE COURT: Sustained. A. Yes. THE COURT: What he needs to do is rephrase that. Mr. Torrance was standing up, and he and I were probably -MR. MAYER: I felt him over my shoulder. THE COURT: "People like" is too vague in the context in which we are speaking. We will need you to be more specific. Mr. Torrance, if that was your objection. MR. TORRANCE: It was. MR. MAYER: Let me rephrase. Q. Are there other Guantanamo detainees or other people in the custody of the United States government that you have either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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184 C3trhedh Hedges - direct reported upon or written opinion pieces on? A. Yes. Fahad Hashmi, a U.S. citizen. Q. Could you explain who he is. A. He was an activist at Brooklyn College. He was arrested in London. His roommate had, I believe, a suitcase with waterproof socks and some other item that supposedly was being sent to Pakistan and on to al-Qaeda. MR. TORRANCE: Your Honor, I object to the foundation. THE COURT: He interviewed this fellow, right? I assume it is firsthand knowledge. THE WITNESS: I didn't interview him. I interviewed his family. MR. TORRANCE: I object. THE WITNESS: He was in jail. THE COURT: Sustained. But now we have gotten a foundation. MR. TORRANCE: I would now object as hearsay if it is coming through the family. THE COURT: It's an understanding. I'll let it go. A. It's more than an understanding. It's on a court record. He was brought up and pled out. It's all written. It's all part of the court documents. None of this is disputed by the government. He was held in the MCC under Guantanamo-like conditions, 23 hours in isolation. THE COURT: Why don't we go on to the next. I think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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185 C3trhedh Hedges - direct the question also was who else have you interviewed who was held in government custody or in Guantanamo. I believe the question was sort of a compound question. What we should probably do first is get a list. I think it is going to the point, if I understand its relevance, to whether or not, having done so in the past, you may also be likely to do so in the future. THE WITNESS: Dr. Sami Al-Arian, who is currently living under house arrest outside of Washington, D.C. I have written extensively on his case. THE COURT: Anybody else other than those you have already mentioned? THE WITNESS: Are we talking about U.S. citizens? THE COURT: I think it is U.S. citizens. I don't know if your question, Mr. Mayer, was limited to U.S. citizens or not. MR. MAYER: No, it's related to not just U.S. citizens. Any civilian. THE COURT: Who has been held in American custody? MR. MAYER: Who has been held in American custody. THE COURT: Have you interviewed them? The question is while they have been in custody or when they are out? MR. MAYER: Either during or after. THE WITNESS: Those would be the two most prominent cases that I have written about. I have written about the Holy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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186 C3trhedh Hedges - direct Land case, but those people were arrested early on and I have not interviewed any of them. Q. Mr. Hedges, having done those interviews, can you say there would be a difference in your reporting were you to do reporting in the future after the passage of the NDAA? Would there be a difference in how you would report and could you describe those differences, if any? A. I think the reaction would be the same as it was during Occupy Wall Street. When people begin to speak about carrying out acts that are clearly illegal or embracing acts that are violent or talking about terrorism, my reaction so far is to get out of there as fast as I can, because I think under the NDAA, at least as I see it, there is a possibility that those people looking at my activity from the outside would not make a distinction between myself and the person who embraced that kind of activity. Q. Mr. Hedges, do you recall being a plaintiff in a case titled Amnesty International v. Clapper? A. Yes. Q. Do you recall what law was the subject matter of that case? A. That was the FISA Amendments Act. Q. FISA amendments having to do with the wiretapping of American citizens? A. That's correct. MR. TORRANCE: Objection. Foundation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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187 Hedges - direct THE COURT: I actually have an objection to relevance. Why don't you connect it up here to this proceeding. MR. MAYER: Yes, I will. THE COURT: We are all familiar with the case and its legal relevance to the question of standing. But in terms of the story line, why don't we connect it up. MR. MAYER: Correct. Thank you, your Honor. I wanted to explore how Mr. Hedges' feelings about the impact of the NDAA on his reporting compared to the impact of the FISA laws on his reporting, which I think is relevant to the reasonableness of the concerns that people might have who engage in this expressive activity. THE COURT: Let me put it a little bit differently. You are seeking to say that there is a distinction between prior legislation and the current legislation? MR. MAYER: Between FISA amendments and the NDAA, yes. THE COURT: OK. Put that way, I will allow it. Mr. Torrance, did you have an objection? MR. TORRANCE: I object to the relevance. THE COURT: I think it goes to the point that the government raised, which is that the prior legislation, AUMF and perhaps other legislation, is really no different from the NDAA. As I have now recast the question, I think what you are saying is that there may in fact be a different state of mind in this witness between prior legislation, not the AUMF but the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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188 C3trhedh Hedges - direct FAA, and the NDAA in terms of his state of mind. Is that right? MR. MAYER: It's right, except we of course dispute that the AUMF -- there is no connection between the two. That aside, because the government raised this in their papers, this goes to the issue of the reasonableness of the plaintiffs' perception about how the act affects their speech. THE COURT: Got it. Mr. Torrance, it really goes towards this point that I just said. We are not going to go on and on about it, but I'll let you ask a few questions. MR. MAYER: If I could rephrase for Mr. Hedges. BY MR. MAYER: Q. Compared to the warrantless surveillance of FISA, do you have any feelings about how the NDAA affects your speech as a writer, journalist? THE COURT: Is what you mean is there a difference between how he felt then and how he feels now? That's ho it becomes relevant. MR. MAYER: Yes. A. Yes. The NDAA is a quantum deterioration, a significant deterioration in terms of the ability to exercise free speech. Q. In what regard? I don't want to get into theoretical physics. How would you give an example of the greater impact on speech that the NDAA has as opposed to the FISA amendments? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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189 Hedges - direct MR. TORRANCE: Objection, your Honor. THE COURT: Overruled to the extent that it's going to his state of mind. MR. MAYER: I'm just asking about his state of mind. A. I don't engage in or promote illegal activity. So, if my phone and email and systems of communications are monitored, what it does is essentially often have a far more serious affect on my sources than it does on me. The NDAA is about me. Q. Do you believe the NDAA might also have effect on your sources as well? Do you think the NDAA makes your sources or will make your sources more reluctant to speak with you, just in your opinion, because of the consequences? A. Yes, because you're stripped of due process. MR. MAYER: Your Honor, we promised, I promised, we promised, that we wouldn't do this, namely, Mr. Afran may have some additional questions for Mr. Hedges just because of the volume of material and Mr. Hedges' long experience with these groups and this type of reporting. I think we are buzzing along fairly well on time. With your indulgence, if Mr. Afran has some additional questions, I might turn it over to him for a brief period, if that would be acceptable to you. THE COURT: Yes. What I want to avoid is duplication, which I assume you folks will be good about. Number two, I assume you're done with your questioning. MR. MAYER: I'm done with my questioning. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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190 Hedges - direct THE COURT: Let's all have this moment to reflect upon where we are at this point in the day. We are now at 3 o'clock. We do have to get to some argument that I think will not be insubstantial. We also have to have this witness turned over for cross-examination. We will end today's proceedings at 5:00. What we are going to do is after this witness comes off the stand, the government is going to get the chance to stand up first and to do its argument. That way you folks will have the ability to go first because you may get shortchanged on time otherwise. MR. TORRANCE: Appreciate that, your Honor. THE COURT: Then we will turn it back over to the plaintiffs because you folks have had sort of a chance to weave in some arguments as we have gone along. Mr. Remes has a point, but give me one second. Mr. Afran, how quickly can you finish your piece with this witness? MR. AFRAN: I don't know that I have a piece. I'll just need a moment. THE COURT: That's a lot easier then. While you are conferring, Mr. Remes had a point. MR. REMES: Yes, your Honor. With respect, I wonder whether it might benefit the Court and the parties to allow a couple of days for post-hearing briefing so that we can focus on the issues that have been raised here with precision. Case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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191 C3trhedh Hedges - direct law on the interesting and important questions that your Honor has raised might be more beneficial than having people speak here extemporaneously on the basis of what has been said today. THE COURT: I understand your point in terms of posthearing briefing. I'm not sure whether or not we should do that. I have been thinking about that as we have been proceeding. I has always been my intention during this preliminary injunction motion to have oral argument on the motion itself. I don't think of it as extemporaneous; I think of it as a logical continuation of the proceeding. Think of it like a closing statement, you've just got to go with it. Whether or not we are going to have additional briefing and argument will be something that we will talk about when we are done. But what I would like to do is after this witness comes off the stand, I do want to hear the argument that the government has and that you folks may have regarding where you think these witnesses have brought us today and also what the law is with or without what these witnesses have said. We will talk about whether or not we need any additional briefing. Does the government have a view on this? I assume that you are ready to do a little talking today. MR. TORRANCE: We are ready to deal with the Court. We don't at this point see any need for it. However, if the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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192 C3trhedh Hedges - direct Court would find it helpful, of course we will do it. THE COURT: Hold on. Let's figure out what the "do it" means. MR. TORRANCE: The briefing. THE COURT: Put aside the briefing. You are ready to argue the motion today? MR. TORRANCE: Yes. THE COURT: Thank you. That's really what I was getting at. MR. TORRANCE: My mistake. THE COURT: No, I think there was logical, reasonable confusion here, a little vagueness. Perhaps my question was overbroad. That's a little constitutional joke. MR. AFRAN: I'm sorry, your Honor. I was paying attention to the notes. I did miss the joke. THE COURT: I'm not very funny. Do you have anything, Mr. Afran? Don't go digging too deep. MR. MAYER: We are stipulating we are not very funny either. MR. AFRAN: Your Honor, not from me. I would note, though, in regard to the colloquy on post-hearing briefing, it's a little more significant issue for us because there are some significant issues raised in the government's brief. I think we would want a chance to reply to. I'm prepared, speaking for myself, to address a great deal of that today, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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193 C3trhedh Hedges - direct there were one or two nuances in it that are very significant, and I do think we should have a chance to submit a reply brief to that. THE COURT: Why don't we do this. If you're ready to turn this witness over to the government for cross-examination, let's get Mr. Hedges off the stand. It will end, Mr. Hedges, I promise you. These things have a way of ending. Then we will go into oral argument and see where we are. Things have a way of evolving in one direction or another. I may feel that I absolutely have to have briefing or we may all feel like we have done enough. Sufficient unto the day, the evil hereafter, or whatever it is. Mr. Torrance. MR. TORRANCE: Thank you, your Honor. CROSS-EXAMINATION BY MR. TORRANCE: Q. Good afternoon, Mr. Hedges. Mr. Hedges, you have been testifying about your fear of the NDAA, is that right? A. That's correct. MR. TORRANCE: May I approach, your Honor? THE COURT: Yes. Is this another court exhibit? MR. TORRANCE: I am offering it now. Q. I'm handing to the witness what has been previously marked as Government Exhibit B, as in bravo. Mr. Hedges, do you recognize that document? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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194 C3trhedh Hedges - cross A. I do. Q. What is it? A. It's a column that I wrote. Q. When did you write it? A. It was published on Monday. I wrote it on Saturday. Q. Published this past Monday? A. That's correct. MR. TORRANCE: Your Honor, we offer into evidence Government Exhibit B. THE COURT: Government B is admitted. (Government's Exhibit B received in evidence) MR. TORRANCE: Thank you, your Honor. Q. As you said in this article, Mr. Hedges, in your view the NDAA would "permit the military to function on U.S. soil as a civilian law enforcement agency," is that right? A. That is my understanding. Q. In your view, the NDAA would "authorize the executive branch to order the military to selectively suspend due process and habeas corpus for citizens," is that correct? A. Yes. Q. It can "be used to detain people deemed threats to national security, including dissidents whose rights were once protected under the First Amendment," is that right? A. Yes. Q. In your understanding as you said elsewhere besides this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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195 C3trhedh Hedges - cross article, the NDAA would give the government the right to carry out assassinations of U.S. citizens, is that correct? A. I don't believe there is anything in the language of the NDAA that explicitly deals with the government's right to carry out assassinations of American citizens. Q. Is it your understanding that that would be the effect? A. It's my understanding that that's what the government does. Q. In your view, Mr. Hedges, quoting from this article again, government B, "there is no longer any legal protection for those who dissent or oppose the crimes of state because of the NDAA," is that right? THE COURT: Could you show me where you are, Mr. Torrance? MR. TORRANCE: That last quotation is from the fifth paragraph on the first page beginning with, "It is in conference rooms," and it is the second-to-last sentence, "They are acutely aware." A. Yes. Q. In your view, the NDAA in particular "permits the government not only to silence journalists but to imprison them and to deny them due process"? A. That is correct. Q. It's your view that those like yourself "who reach out to groups opposed to the U.S. in order to explain them to the American public will not be differentiated from terrorists SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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196 C3trhedh Hedges - cross under this law," referring to the NDAA, is that right? A. Yes. Q. You reached that conclusion at least in part based on the Reagan administration officials who denounced you and labeled you as a Communist sympathizer for reporting in the 1980's in El Salvador, is that right? A. Well, no, because the NDAA didn't exist in the 1980's. Q. Right. But you draw the distinction between that denunciation and, as you said in your direct testimony, if they had that authority, they could use that to detain you now, is that right? A. It is my belief that there were officials in the Reagan administration who, if they had the authority of the NDAA to detain journalists who were covering the conflicts in Nicaragua and El Salvador, it is my belief that they would have used it. Q. Again from this article, it is your view that the NDAA "can be used by the military to seize and detain citizens and deny legal recourse to anyone who defies the corporate state," is that right? A. That is correct. Q. In your declaration you said that the NDAA would empower the government to send "the proverbial black van to any street in America and pick up civilians and detain them, never to be heard from again or only after months or years of legal efforts and maneuvering." Is that your view? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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197 C3trhedh Hedges - cross A. The exact language is "till the end of hostilities." That is, I assume, quite a long time. Q. But that reflects your view, is that right? The quotation I just read reflects your view? A. There is no time limit. Months, years, we don't know. Q. Your view is that the NDAA would allow what you call the proverbial black van to be sent to any street in America and to pick up civilians and detain them," is that right? A. That is correct. Q. It is your understanding that the NDAA includes as associated forces all of the groups on the state department's groups of designated terrorist organizations, is that right? A. I don't think we know what associated forces are. That is sort of the reason I'm here. Q. Let me hand up a copy of your deposition, if I may. You recall this past Friday you came to my office and were deposed, is that right? A. That is correct. Q. You were under oath at that deposition? A. Yes. Q. I asked you questions, you answered them, is that right? A. Yes. Q. Can I refer you to page 58 of that deposition transcript. The question and the reference to "it" can be seen on page 57, referring to the phrase "associated forces as the statute is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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198 C3trhedh Hedges - cross written." "Q. OK. So is it your understanding that it includes, without limitation, all of the groups within the state department's list of designated terrorist organizations and possibly more?" There is a brief colloquy. Page 59/line 12. "Is that your understanding? "A. Yes, but it is also expanded upon that in the sense that it is clear from the language of the section that groups that have, at least through my interpretation, very tangential relationships on that list can be treated as if they are terrorists groups." Did I read that correctly? A. Yes. Q. The state department's list of designated terrorist organizations includes Hamas, is that right? A. Yes. Q. You have had extensive contact with Hamas during your career as a journalist? A. Yes. Q. You have written and published articles that sought to convey Hamas's world view, is that right? A. Yes. Q. You are not aware of any person held in military custody for being a member of or affiliated with Hamas, is that right? A. Military custody? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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199 C3trhedh Hedges - cross Q. Military custody. A. Not in military custody, no. Q. In terms of the injury that you claim to yourself personally, the injury that you claim is based on your view that the statute is open to a broad interpretation and that when you let officials have that kind of latitude, they will use it, is that right? A. That would be correct. Q. In your declaration you referred to being on battlefields with designated terrorist organizations, is that right? A. Yes. Q. You were never armed on those battlefields, right? A. No. Q. You were never in a combat situation against U.S. forces, is that right? A. I was never in a combat situation against U.S. forces. But, for instance, during the war in El Salvador U.S. advisers were traveling with Salvadoran armed forces when I was with FMLN rebels that attacked them. Q. Did you know that at the time? A. No. You never know what's going to happen until the firefight begins. Q. This was back in the 1980's, is that right? A. That is correct. Q. You testified earlier to being detained by the U.S. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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200 C3trhedh Hedges - cross military. Do you recall that? A. Yes. Q. That was during the first Gulf war in 1991? A. Yes. Q. You were reporting outside the press pool system, right? A. Yes. Q. You were discovered by military police without an escort? A. Yes. Q. They took you into custody, right? A. Yes. Q. What they told you was that the reason they were taking you into custody was that you were reporting without an escort, is that right? A. Yes. Q. You were in custody for at most a couple of hours, is that right? A. It's a little longer than that. Yes, I was in custody, but then they seized my press credentials and they shipped them down to Dhahran, and I was given a time by which I had to appear at the press center in Dhahran. Given the size of Saudi Arabia, we are talking probably 24 hours of my time. Q. You were in actual custody for at most a couple of hours, is that right? A. That is correct. Q. You knew of other journalists who were also reporting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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201 C3trhedh Hedges - cross outside the pool system who were also detained, is that right? A. Yes. Q. As far as you know, they were treated similarly to you, is that right? A. Yes. Q. Indeed, any journalist, to your knowledge, found outside the press pool was detained by military authorities, right? A. Yes. Q. Those authorities detained the journalists outside the press pool regardless of what they were writing about, is that right? A. Yes. Q. That one detention during the first Gulf war, that was the only time that you have been detained by the U.S. military, is that right? A. Yes, but that's the only conflict I ever covered in which the U.S. military was engaged. Q. You referred earlier in your testimony to writings of yours being posted on terrorist websites, is that right, or Islamic websites? A. I'd call them radical Islamic websites. Q. You yourself played no role in translating or posting those articles, right? A. Yes, that's correct. Q. In fact, you played no role in facilitating their posting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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202 C3trhedh Hedges - cross at all, is that right? A. Yes. Q. You testified earlier about Mr. Hashmi and a Mr. Al-Arian, is that right? A. Yes. Q. Both of those individuals were held by the United States in civilian custody, not military custody, to the extent you know, is that right? A. That is correct. Q. You talked about believing your phone was being tapped. You said you believed that because you say when someone calls you from Iran, the phone hangs up after one ring, is that right? A. That's correct. Q. The same thing happened to you in El Salvador in the 1980's, is that right? A. And Egypt and other countries, yes. Q. In El Salvador you believe it was the Salvadoran government that tapped your phone, right? A. Without question, because sometimes I would pick up the phone and it would be an open line and I would hear someone say, "ministerio defensa." Q. You were told by an intelligence official that those hang-ups were a trigger for the call to be recorded, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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203 C3trhedh Hedges - cross A. That is correct. Q. On that basis you believe the United States government is tapping your phones now based on similar hang-ups? A. Yes. Q. You referred to your sources being reluctant to talk to you or running for cover in a sense, is that right? A. Yes. Q. Your view is that the reason they have become reluctant to talk to you is because of recent legal action the government has taken against leakers and reporters in conjunction with the AUMF and the NDAA, is that right? A. I don't know how much the AUMF had to do with it. I think the chill -- I mean, it's more than a chill. I think every investigative reporter in this country will tell you that sources have virtually dried up. I think it comes more from the decision by the Obama administration to charge six whistleblowers or leakers under the Espionage Act as well as the NDAA. I don't think the AUMF had a huge part to do with it. Q. You talked about reluctance to speak to groups such as the Avakian Revolutionary Party that advocate violence, is that right? A. They are a Maoist organization that believes ultimately in the use of revolutionary force. Q. You now find yourself reluctant to speak to them, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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204 C3trhedh Hedges - cross A. I find a greater reluctance since the NDAA to associate with any groups that embrace acts that could be construed as terrorist. Q. That reluctance of yours results from a series of measures that include the NDAA, is that correct? A. No, it results from the NDAA. Q. Let me ask you to look at page 134 of that deposition transcript. On page 133 you see there is a question asking if you have forgone engaging in any expressive activities, at line 10. Following up on that, page 134/line 7: "Q. And this party you referred to, what country is that in? "A. It's here, a Maoist party within the United States." Line 11. "Q. And your skittishness about that is specifically a result of this particular statute, the NDAA? "A. My skittishness comes through a series of measures, including the NDAA." Did I read that correctly. A. Yes. Q. As far as you know, you have never been investigated by the United States government for criminal activity? A. As far as I know. Can I just make a comment? The word "skittish" is very different from the words I'm using to describe the NDAA. "Skittish" is one word, "fear" is another. Q. As far as you know, the United States government has never identified you as a terrorist or a supporter of terrorists, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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205 C3trhedh Hedges - cross that correct? A. The U.S. government regularly identified reporters or made known to -- let's say members of the U.S. government regularly made no distinction between reporters in Central America and the Sandinista government in South America and the Africa rebels. Q. Let me ask the question again. As far as you know, the United States government has never identified you as a terrorist or a supporter of terrorists, is that correct? A. I would say that's not correct, because the FMLN was considered a terrorist organization. Q. Let me ask you to look at page 105 of your deposition. Look at line 20. "Q. To your knowledge, has the United States government ever identified you as a terrorist or supporter of terrorists? "A. Not to my knowledge." Did I read that right? A. Yes. Q. To your knowledge, no U.S. government has ever told you that you violated any U.S. law, is that correct? Is that correct. A. I have to think a little bit. Not to my knowledge. MR. TORRANCE: May I have a moment, your Honor? THE COURT: You may. MR. TORRANCE: Nothing further, your Honor. Thank SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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206 C3trhedh Hedges - cross you, Mr. Hedges. THE WITNESS: Thank you. THE COURT: Thank you, Mr. Mayer. MR. MAYER: Mr. Afran will conduct the redirect, if that is acceptable, your Honor. THE COURT: Certainly. REDIRECT EXAMINATION BY MR. AFRAN: Q. Mr. Hedges, during your direct testimony you made reference to several things the NDAA section 1021 does, including -- I'm stating what you had said earlier -- it allows for detention without trial, military trial, transfer to unnamed courts, rendition. How do these things affect your concept of chilling expression or limitations on your expressive activities? A. The forms of retribution are so draconian and the inability to defend yourself in a court of law is so frightening, coupled with the fact that the words of the bill are so nebulous, that you are constantly, in essence, second-guessing what would or would not be considered terrorist activity under this particular piece of legislation because it is so amorphous. Q. Before the NDAA was passed, to what extent did you have a fear of detention without trial, military trial, transfer to unnamed courts, or rendition? A. None. Q. Mr. Torrance asked you a few moments ago as to whether you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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207 C3trhedh Hedges - redirect had been investigated by the government for terrorism or activities of that nature. I want to remind you of your statement earlier on direct that you were told you were on a watch list at one point in your travels. Do you recall that testimony? A. Yes. Q. What is your understanding of the meaning and purpose of the U.S. government's watch lists? MR. TORRANCE: Objection, your Honor. Foundation. THE COURT: He said he was on a watch list. MR. TORRANCE: Yes. I object to his understanding. I would also object to the scope of cross. THE COURT: Overruled. Go ahead. Q. Do you want the question read back? Shall I repeat the question? A. Yes. Q. What is your understanding of the purpose of the government placing someone on a watch list and what are they watching for? A. Terrorists. Q. Based on your last answer, do you regard yourself as having been at any point investigated or considered by the government in connection with terrorism? A. I must have been to get on the list. Q. With respect to the detention in Saudi Arabia that you testified to both on direct and on cross-examination, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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208 C3trhedh Hedges - redirect entered Saudi Arabia with a visa, is that correct? A. Yes, a journalistic visa. Q. Who issued that visa? A. The Saudi government. Q. Were you under any legal obligations under Saudi law to remain with the U.S. military? A. No. MR. TORRANCE: Objection. Relevance. MR. AFRAN: It is relevant directly to the cross. THE COURT: Overruled. Go ahead. Q. You testified that other journalists who also left the U.S. military press system were also detained. Do you recall that testimony? A. Yes. Q. Do you also recall Mr. Torrance asking you, in fact, they were not detained because specifically of the content of what they were writing? Do you recall that question? A. Yes. Q. Do you have an understanding as to why the U.S. government was detaining journalists who left the U.S. military press system? A. Because they wanted iron control of all information that was disseminated to the American public. THE COURT: What is the basis of that understanding? THE WITNESS: Because you couldn't even file by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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209 C3trhedh Hedges - redirect yourself. You had to file through military sensors, including film footage. THE COURT: You've got a lot more information in that answer. Where did you get your understanding of what the U.S. government's motivation for this was? THE WITNESS: It was abundantly clear. Not only did everything have to be filtered through the government, but all sorts of information was excised. THE COURT: It's your assumption based upon the requirements placed upon you? THE WITNESS: And the censorship. THE COURT: But it's an assumption? THE WITNESS: Well, I know what information was excised. Q. How long were you accredited in Saudi Arabia? A. Three months. Q. During that time on what frequency did you deal with U.S. military censors? A. I never did. Q. Is that because you did not report through them? A. Yes. May I add that that's also why Secretary of Defense Cheney drew up a list of 14 journalists, including myself, who he wanted expelled for that reason. MR. TORRANCE: Objection. THE COURT: Sustained. The problem, Mr. Hedges, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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210 C3trhedh Hedges - redirect when you try to talk about why somebody did something, it goes into their state of mind. The laws of evidence, rules of evidence, suggest you are not supposed to be able to do that unless you have some firsthand knowledge of that. That is the basis of my sustaining the objection. THE WITNESS: OK. Q. With respect to those reporters who left the press system, did they have a common goal in terms of the content of their reporting? MR. TORRANCE: Objection. MR. AFRAN: He was a member. THE COURT: Let me look at that again, unless you want to repeat the question. MR. AFRAN: I'd rather your Honor look at it. THE COURT: Sustained. You can't ask a question about why various reporters did what they did. You can ask him if he has an understanding based upon firsthand knowledge. Who knows why people do what they do. MR. AFRAN: My purpose was as you said, so I'll do that. THE COURT: Why don't you rephrase the question. Q. Do you have an understanding as to the purposes and intent of those reporters who left the press system? THE COURT: If you do, you will need to state your basis for that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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211 C3trhedh Hedges - redirect A. Reporters who left the press system reported what happened rather than what was stage-managed by the military. The perfect example would be the Iraqi invasion of the border town of Khafji. I was in the town of Khafji during the fighting, and the Saudi forces fled en masse as soon as the Iraqis began their offensive. The official statements by the U.S. government out of Dhahran and Riyadh said that the Saudis were valiantly defending their homeland. There was not a Saudi in the town. It was being defended by the U.S. Marine Corps. Press who were under military control were driven up a couple miles from the town where a military spokesman stood against the backdrop of the artillery shells and the smoke and were lied to. THE COURT: Were you there? THE WITNESS: I was in Khafji, yes. A. Those handful of us who got into Khafji reported the truth. The press who were under the control of the military reported a lie. Q. Therefore, in the context of Mr. Torrance's question or statement to you that those who were detained for leaving the press system were not detained because of the content of the reporting, would you care to change your prior answer? THE COURT: I'm not sure I understand the question. MR. AFRAN: I think I should rephrase it. THE COURT: Ask a new question, and then it will stand SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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212 C3trhedh Hedges - redirect on its own. MR. AFRAN: Yes. I withdraw that question. Q. Do you recall on cross-examination that Mr. Torrance asked you or said to you in fact that those who were detained for leaving the press system were not detained by the military for the content of their reporting? Do you recall that question? A. Yes. Q. You have just testified that those who left the press system did so because they wanted to report truthfully outside of government manipulation of the news. Having said that, what is your understanding as to whether or not the detentions were directed against individual reporters based on or in relation to the content of the reporting? THE COURT: I sustain that. I just can't allow that. There are so many different things embedded in that question, so to speak, not to use a word that has a lot of connotations here. MR. AFRAN: I will de-embed. THE COURT: I think I understand where you're going. MR. AFRAN: It's more in the nature of argument, I suppose. THE COURT: It really is. MR. AFRAN: I think I'll leave it for argument. THE COURT: Terrific. Are you all done? MR. AFRAN: Yes. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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213 Hedges - redirect THE COURT: Mr. Torrance, is there anything else? MR. TORRANCE: No. Thank you, your Honor. THE COURT: Mr. Hedges, thank you very much. You may step down. (Witness excused) THE COURT: What I would like to do now is why don't we take a 5-minute break, which I mean to be only 5 minutes because we have only got until 5 o'clock, and then have folks get their thoughts together. Then I would like to have the government start and address any aspects of the motion it would like to address, including referring to what it believes has or has not occurred in light of the evidence presented today. I had raised some issues this morning which I'm hoping you will see fit to address and anything else. We will then turn it over to the plaintiffs. In terms of the time, I why don't you both start and take about half an hour to 40 minutes. Then we will see where we are. I think that will put us close to 5:00. I'm going to be interrupting you, I suspect, from time to time with questions. MR. TORRANCE: Your Honor, may we divide that time between the two of us? THE COURT: You certainly may. You may split that time however you like. Just try to make it so it is not jack-in-the-box, where it is 5 minutes, 5 minutes, 5 minutes, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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214 C3trhedh and then you are back again to 5 minutes, 5 minutes, 5 minutes. Let's take a 5-minute break. 5 minutes. (Recess) THE COURT: Mr. Torrance, you look like you have put yourself in the position of the person who is going to begin. MR. TORRANCE: If I may, your Honor. THE COURT: Please do so. MR. TORRANCE: Thank you, your Honor. Your Honor, there are two basic errors in the plaintiffs' presentation in this case. They misread the statute and they misread the case law. They have taken statutory phrases in isolation, interpreted them out of context, and they have taken judicial precedent and read to it include prohibitions that simply aren't there in the law. Both their assertion of standing and their challenge on the merits rest on these misconceptions. And as they rest on these false premises, both standing and the merits, their challenge, must fail. Beginning with section 1021, as the Court noted earlier, on its face it is an affirmation of a preexisting authority. It is an affirmation of the detention authority that was included in the 2001 AUMF. That detention authority of course was recognized in the Hamdi case in the Supreme Court. 1021 expressly does not expand that authority. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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215 C3trhedh only codifies that existing authority. It's expressly tied to the AUMF itself. It is expressly tied to military action against al-Qaeda and the Taliban not only on its own face by mentioning those two entities but by tying it to the AUMF itself, which of course authorized the hostilities in which the United States is now engaged against al-Qaeda and the Taliban. 1021 is also expressly tied to the law of war. THE COURT: Let me have you pause for a moment. I agree with that it's on its face that there is an affirmation in section 1021(a) of the AUMF's detention. However, (b), which is covered persons, is not part of the AUMF and is not, I think, fairly construed, something which could be affirmed, that definition being a new definition. Would you agree with that proposition or disagree with that proposition? MR. TORRANCE: I would disagree with it, your Honor, for this reason: Because Congress is always presumed to act against the background of existing law and existing executive action. THE COURT: I want to parse it, slice it very thinly. Where else -- it can be a case, it can be an executive order, and it can be a statute -- do I find language like 1021(b)(2)? MR. TORRANCE: (b)(2), which is the part of or substantially support al-Qaeda and the Taliban. THE COURT: That's right, or associated forces. I'm also focused on, it was underlined in what Mr. Remes had given SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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216 C3trhedh but wasn't really discussed too much yet today, the phrase "directly supported," which is not part of the case law to which the government had previously cited. MR. TORRANCE: It is true that that phrase "directly supported," as far as I know, is not in the case law. THE COURT: Is it in anything else? MR. TORRANCE: It's in the March 2009 submission that the government made to the Court. THE COURT: With all due respect, I'm going to put that to the side because that is your own brief. MR. TORRANCE: That's why I say Congress is presumed to act against the background of executive action. I don't have cases at the moment, unfortunately, to cite, but there are cases that say that presumption is particularly strong in matters of national security and foreign affairs because of the authority of the executive branch in those areas. When the executive takes action, it is entitled to particular deference in that area. So, when the government has asserted that this is the standard, the definitional framework as it was put, and the courts have then accepted that, and then Congress has taken that exact language and put it in the statute, what we have is the concurrence of all three branches of government agreeing on that definitional framework, which includes the "directly supported" language, includes "substantially support," includes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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217 C3trhedh "associated forces." It is the concurrence of all three branches on that language and Congress acting against that background, knowing that this is how the government has interpreted it, knowing that this is how the government has applied it and argued it to the courts and argued it successfully in the courts and the courts have endorsed that standard. For those reasons we think that the March 2009 memo should not be just taken as a litigation position. It is more than that for all those reasons. THE COURT: We are going to have to do post-hearing briefing now. MR. TORRANCE: I think it's in the letter with those cases. THE COURT: Let me make sure I understand your argument, because this is a novel proposition at least to the agree to which I think you're extending it right now to me. You can cite cases to me that show me that in fact it's as broad as you're suggesting. What you are suggesting is that if the government puts a position in a brief filed in a court of law and that there is subsequent congressional action which utilizes similar phrasing as existed in that brief, that congressional action ought to be presumed to have occurred against the backdrop of the executive branch's statement in the brief? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. TORRANCE: Yes, I believe that's correct, yes. THE COURT: OK. There are briefs filed all over the country all the time. That's a very surprising proposition. You're suggesting that all of those briefs form a backdrop to congressional action. MR. TORRANCE: I think we have to cabin that by saying, as your Honor mentioned, that this is first of all the enunciation of a standard in a context where there has been a lot of litigation. But in particular it's that Congress took that exact language. Obviously, the government writes a lot of briefs. But it is, to my knowledge, not common for Congress to take particular language in which the government enunciates a legal definitional framework and to take that and incorporate it into a statute. That indicates a congressional concurrence with that position. THE COURT: You will cite cases that will connect a brief filed in a court proceeding to a congressional act for me. MR. TORRANCE: I'm not sure I can cite one for a brief. I'm talking about the general proposition of acting against the background of law and executive action. THE COURT: I'll let you continue. I think that it is very important to hear that what you cited to is a brief, which is an advocacy piece, and then you have tied that to a specific affirmation via congressional action, an adoption of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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219 C3trhedh position. It's a melding of the executive branch and the legislative branch in that context. You may well be right and I'll look at your cases, but that's why I say I think the argument is quite expansive in the way you have posed it. Sufficient unto the day. Continue. I'm sorry. MR. TORRANCE: I was saying that there is also express reference in the statute to the law of war, and that, too, is consistent with the position that the government has always been expressing, that this detention authority is to be informed by the laws of war, the international laws of war. That proposition that references the law of war comes from Hamdi, the Supreme Court's discussion in which they were interpreting the government's detention authority in light of principles of the law of war. It's also present, I would say, in the Supreme Court's decision in Quirin going back to 1942. In terms of that detention authority, that detention authority under the AUMF as now codified and affirmed in 1021 is lawful. It was affirmed by Hamdi, as I said, as informed by principles of laws of war, and it's been explained and applied since then and affirmed repeatedly by the D.C. Circuit. As the government has said, the standard that was enunciated and the standard that Congress has put forward explains that that authority reaches people who would be detainable in analogous circumstances in international conflicts because of their relationship to al-Qaeda and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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220 C3trhedh Taliban. That is what leads to the definition that was offered by the government in March 2009 and that was affirmed by the courts and adopted by Congress. It is from that principle, the analogy to traditional armed conflicts between nations, international conflicts -THE COURT: Let's take the phrase "or associated forces." I saw in your brief that you reference your March 2009 memo for that as well as other places where the phrase "associated forces" is used in some cases, including some of the cases that you have cited. Couldn't that definition of "associated forces" be interpreted in different ways at different points in time? And what is to stop variability in that regard? MR. TORRANCE: We think we are in this case offering a limited construction on that because of the background, because statute is informed by the laws of war. And as informed by the laws of war, the relevant principle of the laws of war is co-belligerency. Co-belligerency is a concept that has developed, as most of these concepts have, in traditional international conflicts. But the analogy to that is how the government has interpreted and applied its authority and, as I say, a limiting construction here. As we say in our brief, the concept of co-belligerency includes a conflict with a common enemy that two groups are associated for purposes of the war. The way that, for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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221 C3trhedh instance, as we quote in our brief, the general counsel of the Department of Defense has articulated the way the government applies that standard, it has to be an organized armed group that has entered the fight alongside al-Qaeda, is co-belligerent in hostilities against the United States. So, when I mentioned before that the plaintiffs have taken these phrases out of context, when they say that associated forces can mean just anything, they are ignoring the context in which it occurs. They are ignoring the context of the AUMF authorizing a war against al-Qaeda and the Taliban, so it's tied to those groups. They are ignoring that this has to do with the law of war, the law of armed conflict, hostilities between the United States and these groups. For the executive branch to say and then for Congress to say that it's reasonable that the laws of war would extend detention authority to groups that are not in a sense part of al-Qaeda or the Taliban but are associated with them in this co-belligerent relationship, that is something that the laws of war would approve and is reasonable for Congress to have done because of that context. The other phrase that the plaintiffs have attacked is "substantial support." First of all, the D.C. Circuit has stated that the substantial support criterion is a valid criterion. So in their attack on it they have to disregard that case law. This occurs in a context of armed conflict. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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222 C3trhedh is not going to be, as we said in March 2009, possible to identify in the abstract all the degree and characteristics that substantial support will have. But it will not reach unwitting or significant support, and a concept will develop in this context of the conflict with al-Qaeda and the Taliban and, as informed by analogy, to international conflicts in the laws of war. It will be developed case by case. But in that context it attains a definitional structure, it attains a limit that would defeat the plaintiffs' vagueness challenge. THE COURT: Let's do two things. I want to go back to the word "unwitting," because that is only, I think, from your 2009 memo. MR. TORRANCE: And Judge Bates in the Hamlily decision endorsed that as well. THE COURT: For a different piece of legislation? MR. TORRANCE: For the AUMF. THE COURT: For the AUMF, right. MR. TORRANCE: Yes. THE COURT: I also want to go to this substantially supporting in the D.C. Circuit that you have mentioned and the case law which you have suggested utilizes "substantially supported." I have forgotten the phrase that you used. You say that it has stayed that the substantial support criterion is a valid criterion. That's what you said. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. TORRANCE: Right. THE COURT: The issue in this particular case which brings us here today is whether or not that phrase is vague. The challenge -- I think you're talking about the Barhoumi case. MR. TORRANCE: Barhoumi and also al-Bihani. THE COURT: We can do both. Neither of those were First Amendment challenges that were looking at whether or not that particular word was vague, am I right? MR. TORRANCE: I do believe that's correct, yes. THE COURT: There hasn't been a ruling or a questioning as to the particular contours and parameters of the phrase "substantially supported" yet. MR. TORRANCE: That's correct. THE COURT: That is correct? MR. TORRANCE: That is correct. THE COURT: So, when we are talking about cases which have used the phrase "substantially supported" and said that that is a valid criterion under the AUMF or of the legislation, that's not the same thing as saying that the court has found or any court has found one way or the other that "substantially supported" has an understandable meaning to the ordinary citizen. MR. TORRANCE: It is true that the courts have not expressly ruled that, that's right. But I think that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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224 C3trhedh endorsement of that standard by the courts in the District of Columbia again puts it in that context. In that context they are not challenging that the phrase in the way plaintiffs would paint it lacks all meaning. They are endorsing it as having some meaning and it is occurring in this context, as I said before. THE COURT: Part of the issue -- and I don't know as between you and Mr. Harwood to whom these questions are best directed. Is Mr. Harwood going say something in a little bit? MR. HARWOOD: Yes. THE COURT: I'm not urging you on. I don't want to refer to you as needing to say something. I want to get to the word "unwitting" in a moment. I think part of the problem here, or the problem, one of the problems, is that the phrase "substantially supported" can mean a lot of things. What does the word "substantial" mean? How much is enough to cross the threshold into substantial? When are someone's activities insubstantial, when are they substantial? What's that point in time? And what does the word "support" mean? Does the word "support" never mean speech? Does it mean it will never mean speech other than core criminal conduct incitement or obscenity, that it will never mean that, that "support" can never mean that? We are dealing with how do we define, and can you help SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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225 C3trhedh us understand what "substantial" and "supported" mean. MR. TORRANCE: First of all, "substantial" was meant as a limiting word. It narrows the definition. THE COURT: From what? MR. TORRANCE: There had previously been administrative applications of the AUMF detention authority that put it in terms of support rather than substantial support. I do note that in Hamdi, and I can find an exact place for this, in Hamdi that was the standard under which Mr. Hamdi had been detained. That was what, of course, the detention that was affirmed by the Supreme Court. If the Court will bear with me one second. What Mr. Hamdi was accused of was being a part of or supporting forces hostile to the United States or coalition partners in Afghanistan who engaged in armed conflict against the United States. The first part of that, part of "or support," is broader than what the government and Congress are now stating is the standard. The second part I was going to address separately, "engage in armed conflict." The plaintiffs have painted that as a limitation on what Hamdi allows. It is simply not a fair reading of Hamdi. In fact, Hamdi make it quite clear that it was considering that accusation and upholding the detention based on that accusation but expressly leaving open at page 522, footnote 1, the scope of how far the detention authority SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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226 C3trhedh could further extend beyond that specific accusation that the Court was considering in that case. The plaintiffs have again misread the case law and imposed that limitation. It is simply not in Hamdi to say that it has to be engaged in armed conflict. I have gotten a little bit away from the Court's question. "Substantially" was meant to narrow the definition from the prior 2004 articulation of support, part of "or supporting." THE COURT: Give me an example. Tell me what it means to substantially support an associated force. MR. TORRANCE: I'm not in a position to give specific examples. THE COURT: Give me one. MR. TORRANCE: I'm not in a position to give one specific example. I'm only offering the context in which this occurs and that the phrase has to be considered in that context. The entire statute has to be considered in the context of that conflict, in the context of the AUMF military force against armed groups. THE COURT: Footnote 1, this is one of my dilemmas, says the permissible bounds will be defined by the lower courts as subsequent cases are presented to them. That's me. MR. TORRANCE: Right. I actually would disagree with that, your Honor. First of all, I don't think that there is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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227 C3trhedh case or controversy presented in this case, because the plaintiffs don't have standing. That is what Mr. Harwood will address. Second of all, I think what the court was referring to here was the more proper means of adjudicating this, which is to have a concrete set of facts in front of them, which is what the courts in D.C. are doing. The courts in D.C. are considering the habeas applications that are being made by detainees held under this authority. As the court says, it will be determined in light of those subsequent cases on a case-by-case determination of what precisely may be permissible. I don't think it is proper for plaintiffs who are coming in here with this abstract claim that they are chilled or whatnot to just invoke the judicial power to try to carve out a specific limitation and a specific definition. In any vagueness challenge, the courts recognize that there will be marginal cases and there will be cases at the edge where there will be hard calls. The courts don't require the government to precisely delineate where the boundaries are. THE COURT: I don't want precision. I'm just looking for a boundary. What is substantial support? MR. TORRANCE: The boundary is the context of the conflict against al-Qaeda and the Taliban. THE COURT: And associated forces? MR. TORRANCE: And associated forces. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: Who are they? MR. TORRANCE: We did have one example of that. There is case law cited in our brief where a group called Hezb-e-Islami Gulbuddin, I'm sure I'm mispronouncing that, was found to be an associated force. That was because of its express links to the Taliban, sharing infrastructure, coordinating attacks. Even though they were a separate group, they were determined to be an associated force because, as the general counsel of the Department of Defense said, they had entered that armed conflict alongside al-Qaeda and the Taliban. THE COURT: That was through a court decision? MR. TORRANCE: Yes. THE COURT: This brings us back now to Holder v. Humanitarian Law Project. A couple of moments ago you said there is no case or controversy, the proper place is to go to the D.C. district courts, where they have habeas proceeding. That suggests somebody is already in detention. To have a habeas proceeding, you've already got to be in detention someplace. Holder v. Humanitarian Law Project suggests that you can have a pre-enforcement challenge of a criminal statute -and I understand your point from this morning of whether or not this is a criminal statute or not, or somebody raised this -but a pre-enforcement challenge so that you don't have to end up in a situation of detention. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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One issue is, is it really an adequate answer to suggest that the right place to go is to the D.C. court once you're in detention to figure all this out, or is it appropriate to say that a pre-enforcement challenge if you're facing military detention is appropriate? That's what I think Holder does. Secondly, going to another, related point, are we to have to wait until courts other than myself decide on a fact scenario who the associated forces are? Is that the only way we can figure this out? MR. TORRANCE: If I may, I'd like to refer the question of the credible threat to Mr. Harwood's part of the argument. He will be addressing the standing law more particularly. I do think that the brief point is that Holder says yes, there are situations in which there is a real imminent credible threat in which case a pre-enforcement challenge may be permitted. Our position of course is that that is not here. That's what I think Mr. Harwood would like to address. THE COURT: I have one more question for you. What does "directly supported" mean? MR. TORRANCE: We have not said anything about that in our brief. THE COURT: What do you think it means? MR. TORRANCE: I'm just looking at the statute to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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230 C3trhedh bring myself back. THE COURT: Give me an example of the distinction between direct and indirect support. MR. TORRANCE: Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, "substantial support," that I have not thought through exactly and we have not come to a position on "direct support" and what that means. THE COURT: Assume you were just an American citizen and you're reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of 1021, and you read the phrase "directly supported." What does it mean to you? MR. TORRANCE: Again, it has to be taken in the context of armed conflict informed by the laws of war. THE COURT: That's fine. Tell me what it means. MR. TORRANCE: There is no principle of the law of war that would extend, as far as I know, to any kind of concept of support outside the bounds of that armed conflict in the sense that people who are part of groups engaged in armed conflict can be detained, people who are engaged in those armed conflicts can be detained. Anyone, as you say, sitting down and reading this would have to realize that this comes in that context. I cannot offer a specific example. I don't have a specific example. THE COURT: Now I want to get to "unwitting." One of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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231 C3trhedh the issues between this and the AUMF, and also the legislation actually at issue in I believe both Clapper, though I could be wrong, but certainly in the Holder v. Humanitarian Law Project, is the mens rea. Effectively, it's a knowing, knowledge requirement. This statute isn't have doesn't have that. You have a couple of times referred to the phrase "unwitting." That gives some comfort that you would not run afoul of 1021 unwittingly. But "unwitting" is not in here. I understand that it is in your March 2009 brief, and then we get back to whether or not the administration changes, there could be a different administration, or somebody else could write a different brief. How do I get the word "unwitting" in here? MR. TORRANCE: First of all, that does come from the government's interpretation that was offered in March 2009. As I said, the Hamlily decision does approve of that, so there is case law support for it. THE COURT: But it approves that in the context of other legislation. MR. TORRANCE: It approved that in the context of the AUMF. "Substantial support" as offered under the AUMF by the government to the court and "substantial support" as interpreted in the congressional enactment in 1021 are the same thing. Congress, in affirming the AUMF authority, has incorporated that standard. By saying not that they are writing a new standard but by saying that they are affirming SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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232 C3trhedh what already existed, to say it's a separate statute is correct, but given how Congress worded it, those two merge together. THE COURT: Let me repeat this to be sure that I have your argument right. Because 1021 starts off by saying we are affirming the AUMF, we can then look to the case law that has interpreted the AUMF and that has read into the AUMF certain limitations, additions, or whatever it is, and that is acceptable because this statute 1021 is really a version, if you will, of the AUMF? MR. TORRANCE: It's a codification of the AUMF authority that was already in existence. We may not agree with every specific holding, of course, that the courts have made concerning the scope. There have been some where the government has expressly disagreed. But the authorities are the same. The AUMF detention authority and 1021 detention authority are the same. THE COURT: I have to give your colleague a chance to say something. Tell me which one of you is going to answer the following questions: Whether or not organizing demonstrations, as Ms. Wargalla had said, could ever be considered to be substantial support. I have a whole series of things like that. I'm going to go down the list of things that they do and ask you whether or not they could be substantial support. Which one of you wants to answer this or tell me that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. TORRANCE: I'll take a shot, your Honor. THE COURT: Here we go. MR. TORRANCE: But I'm going to take a shot by offering a framework. I think my answer to all these questions -- your Honor put it in a broader term this morning of whether these plaintiffs' activities makes them covered persons. THE COURT: That's exactly right. That's exactly what I'm getting to. I've made a list as I have been talking of what they do, what they say they have been unable to do or that they have changed. I have a whole list. MR. TORRANCE: I will note that in ten years of this AUMF authority and 1021 authority, the government has never taken the position that independent expression or advocacy within itself would place a person within that detention authority, and that is not the position we are taking here today. THE COURT: That is the position you are taking here today. MR. TORRANCE: I'm sorry. We have never taken the position that the detention authority under the AUMF or 1021, that independent expression or advocacy within itself could place a person within that authority. That's been consistent for ten years, that we have never taken that position. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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THE COURT: And you represent today that the U.S. government does not intend to take that position? MR. TORRANCE: Well -THE COURT: You have to give me that. Otherwise, you have a problem here. MR. TORRANCE: I'm certainly not aware of anyone intending to take that position. Yes, as far as I know, the government does not. THE COURT: You are unaware of a current intention of the U.S. government to change its position from prior practice? MR. TORRANCE: Yes. THE COURT: Now, nonetheless, within that framework, let me ask you a few things. If the answer is that you can't give a specific answer, then I understand. MR. TORRANCE: It is, because in all these vagueness challenges, as I said before, the courts have never required a specific delineation of the outer bounds. We don't think that when plaintiffs who don't have standing come in here, that they should be entitled to that. When it comes to particular individuals and particular allegations of what those particular individuals engaged in, we can't know the universe of its activities, so we can't make representations as to particular plaintiffs. THE COURT: What I'm trying to do is figure out if we are putting the cart before the horse or if the cart is already SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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235 C3trhedh hooked up to the horse. For instance, Ms. O'Brien has a whole series of articles that she has written that say all kinds of things, she has no current knowledge of being under investigation by the United States government with respect to the NDAA. Can you represent that the NDAA/1021 would not be used and will not be used with respect to those articles by Ms. O'Brien? MR. TORRANCE: First of all, I think your Honor asked Ms. O'Brien whether her groups had ever been armed groups. As we say in our brief, the term "associated forces," which is I think the only thing that can reach that, the term "associated forces" can never reach groups that are not armed groups. THE COURT: Hold that thought. Ms. Wargalla talked about organizing demonstrations, organizing rallies, panel discussions, and conducting other campaigns. If those were being done by an organization which was not an armed group engaged in hostilities or associated with groups engaged in hostilities against the United States, are you saying that she can engage in all of those activities without fear of being captured by the NDAA? MR. TORRANCE: I'm saying that (1) the term "associated force," as we say in the brief, cannot reach unarmed groups at all. Two, I can't make specific representations as to particular plaintiffs. I can't give particular people a promise of anything. We don't think it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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236 C3trhedh fair to require that of us, because anyone can bring a vagueness challenge without standing and sort of get that representation. It's not something that the cases require. THE COURT: This is where we get to Clapper and we get to Holder, where we have a supreme court justice and we have the Second Circuit who say if you're about to be caught within the scope of a potential criminal detention, then you can bring a pre-enforcement challenge. It is not just an advisory opinion. These people have real things that they are saying. These are not speculative hypotheticals. These are people who have actually written articles that we have here. We are trying to figure out, are those articles going to subject Ms. O'Brien to risk under 1021? I think what you said was no. MR. TORRANCE: Again, I'm not authorized to make specific representations as to particular people. I'm saying that "associated forces" cannot extend to groups that are not armed groups at all. THE COURT: So we don't know about the articles, it depends? MR. TORRANCE: Maybe they are an armed group. THE COURT: I'll finish my list so that I have a complete list. Mr. Hedges does all kinds of things. The things he talked about that were coming up were his speaking in Belgium and France in 2012 about the corporate coup d'etat, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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237 C3trhedh corporate state of affairs. Could that possibly subject him to any prosecution or other investigation under the NDAA section 1021? MR. TORRANCE: He and the rest of the plaintiffs cannot establish a credible threat of enforcement, a real and imminent threat of enforcement, as demonstrated by the fact that for ten years this authority has been in existence and the government has never taken the position that any kind of independent advocacy or expression like that could put someone within that authority. THE COURT: How can you give them some comfort, how can you give the Court some comfort, that there won't be somebody new appointed to run the Department of Justice tomorrow who changes that view? MR. TORRANCE: First of all -- I'm stepping on Mr. Harwood's toes a little bit here -- the President has said that he is not going to subject U.S. citizens to long-term detention without trial. THE COURT: That's different from saying they wouldn't be a covered person. As I read it, that is suggesting that they get a trial at a military tribunal. It's not saying that they get a civil trial. MR. TORRANCE: I'm not sure that that's right, but I would have to look at the signing statement again. THE COURT: It's extremely carefully worded. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. TORRANCE: The point being that, as I said before to the Court's question about comfort, that this is not going to change, we have a standard that's been approved by all three branches of government. I think that, first of all, that in and of itself should give some comfort as to what your Honor referred to as the stability this morning. THE COURT: President Obama said he was concerned about the statute and its constitutional implications. On the one hand, while it says in the first paragraph "affirms the AUMF"; on the other hand, when he signs it, he sort of says, I'm worried a little bit. MR. TORRANCE: I respectfully disagree that he was referring to 1021. I think on the face of it he said 1021 is unnecessary. He said it breaks no new ground. But there is nothing in that signing statement that says 1021 is unconstitutional. THE COURT: You think the constitutional concerns are 1022? MR. TORRANCE: 1022. I think he also expressed some about 1023 and 1024. THE COURT: I have to do one more person and then we are going to turn it over to your colleague. Ms. Jonsdottir, can she travel to the United States without worrying about being captured within 1021 given her current activities of which you are aware? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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MR. TORRANCE: Again, I'm not making representations as to particular people. We do think that, as she says in her own declaration, the United States embassy in Reykjavik represented to her that she will not be subject to detention or interrogation. I believe I'm remembering that correctly as to the scope of what she said. Essentially, she believes that they are not going to abide by that, and that's her right to do that. THE COURT: I'm asking you as a representative of the United States government here today, can Ms. Jonsdottir travel to the United States without any concern that she will be captured by her current activities under 1021? MR. TORRANCE: Again, I can't make representations on specifics. I don't know what she has been up to. I don't know what is going on there. THE COURT: Given what you know in terms of how she has described herself in the declaration, could any of those activities subject her to any investigation or detention under 1021? MR. TORRANCE: The specific group that she has associated herself with is WikiLeaks. In our brief we specifically say that a group like WikiLeaks, which is not an armed group, could not be considered an associated force such that their members would be subjected to 1021. THE COURT: That's one example. What you are saying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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240 C3trhedh is that the U.S. government would not take the position that being associated with WikiLeaks in and of itself or the activities of WikiLeaks in and of itself would subject anyone to potential investigation or detention under 1021? Or you're not going quite that far? MR. TORRANCE: Those groups, as far as I know from the allegations here, are not armed groups and therefore would not fall within the definition. THE COURT: They would not fall within the definition of an associated force? MR. TORRANCE: Correct. THE COURT: So substantially supporting WikiLeaks would not subject anyone to 1021 detention? I know I'm putting you on the spot, but that's my job. MR. TORRANCE: Understood. I'm looking at the brief to see how exactly we rephrased it. If they can't be considered an associated force and unless there is some reason to believe that they are al-Qaeda or the Taliban under a different name, I think that that has to be correct. THE COURT: Thank you. Two things. One, we are going to let Mr. Harwood come up. Unfortunately, your colleague has used up most of your time. That's also my fault. MR. HARWOOD: Thank you, your Honor. I think that the concept that we have to keep in mind here is in the context of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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241 C3trhedh this preliminary injunction matter the plaintiffs need to show that they have a reasonable fear and that injury is imminent. I think a lot of the issues that you were discussing with Mr. Torrance, including the March 2009 memo and the reference in 1021 as to affirms, can be looked at in a little bit different perspective in the sense that the government, as reflected in 1021, has articulated that it has the authority to detain people who are part of or substantially support al-Qaeda, the Taliban, and associated forces. It articulated that interpretation in the past and it articulated a similar interpretation in 2004, in fact an even broader interpretation that left out the "substantially" and just included the language "supported al-Qaeda, the Taliban, and associated forces." The plaintiffs here we have established have been engaging for years in the same conduct that they now claim fear and they now claim that they believe will bring them within the scope of 1021. When you look against the backdrop of how the government has articulated its authority and the authority that the government has claimed to have and you look at the activities that the plaintiffs have been engaging in for all of this time, it supports the conclusion that the fear is not reasonable. And they haven't identified an instance in the ten years that the AUMF has been in existence where the government has used the authority affirmed by 1021 to take action against SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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242 C3trhedh independent journalism or public advocacy. THE COURT: Let's stop here. Now you have brought yourself back into the same series of questions I just asked your colleague. If people weren't worried about it before that series of questions, I think they would be worried about it now. If you folks can't stand up here and say, Ms. O'Brien does not have to worry, Judge, 1021 is not going to touch her articles, that's not what 1021 is about, that's all you have to say, and then Ms. Brian is out, she has no standing. But if you can't do that, you are leaving us in a tough spot here. MR. HARWOOD: In the context of this case, where I think the problems in terms of standing are so significant, we don't need to reach those outer areas of the periphery of what kind of activity 1021 would encompass because of the different considerations, which we have articulated in our brief -- I was going to touch on them up here today -- as to why these plaintiffs don't have a reasonable fear. One of them is the length of time that the government has articulated the same authority and that they have been engaging in the same activities that they claim fear and nothing has happened to them. Another consideration is, as Mr. Torrance was mentioning, viewing the language "associated forces" as being informed by principles of co-belligerency. As Mr. Torrance mentioned and as we articulate in our brief, that would knock SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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243 C3trhedh out the plaintiffs who are concerned about WikiLeaks and Occupy, the plaintiffs who are describing activities regarding unarmed groups. In terms of how the government has applied the associated forces language as articulated in the Jeh Johnson statement, those groups haven't entered the fight with al-Qaeda or the Taliban. THE COURT: Let's pause there for a moment. I do understand that the argument is that so long as Ms. O'Brien takes her articles and looks at each and every one of them and says, is this entity that I've already written an article about one of the associated forces under the laws of war which has to be a co-belligerent which is then approved by the state department on a periodic basis and therefore it may or may not be on some list, and she says no, she can check it off and then do that work herself, and as she proceeds in the future, she can ensure that she doesn't write an article or interview anybody who happens to be a co-belligerent. That's fine for her. It sounded like Mr. Hedges is all over co-belligerents. I don't mean to use a colloquial phrase that will be misunderstood. It sounded like Mr. Hedges, from his list of 17 folks on the list of terrorists, does engage in activity where it could be under the law construed as a co-belligerent. For all I know, so could Ms. O'Brien, so I'm not trying to let her off the hook. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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The question I think in terms of standing is therefore, is that enough? Now he's got activities that he would like to do consistent with his prior activities, that is somewhat similar to Clapper, and he is engaged on a regular basis with these 17 groups, some of whom at least are co-belligerents. MR. HARWOOD: His concern as he articulated it here today was with detention. He is an American citizen. I think that the President's signing statement would make his fear of indefinite detention under this provision unreasonable. THE COURT: Let's go to the signing statement. I don't know that the President says you're not detained. I think what he says is I'm not going to allow for unlimited detention without trial. I thought it was unclear what kind of trial he was talking about. "I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens." That suggests to me that there can be military detention consistent with the due process and habeas corpus rights that have been established under the case law by the Supreme Court. So they would get that right. They would get the Hamdi and they would get the Boumediene. They get those rights, but they are in military detention. It is unclear what kind of trial they get. This is not what 1022 does, which is exclude American citizens. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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As I said this morning, one is supposed to read statutes without particular language as having meant to leave out that language. So how do I read this signing statement? Are you telling me I can read it that no American citizen will be subject to military detention under 1021? MR. HARWOOD: My understanding of what Mr. Hedges was saying was he was talking about the proverbial black vans who would take American citizens away, never to be heard from again until some indefinite time as there was an end of hostilities. What I was saying was that that is not a reasonable fear even under your question to the signing statement. THE COURT: Let's just say that that's a really big fear. Let's say that the fear can be less than that. Say that it's reasonable to fear that you will be in military detention with trial. Is it possible, in your view, that Mr. Hedges, any of his activities as he has described them, should they occur in the future, and they may be subject to, as people described -- it's also written in the past tense -- can you say that he would not be subject to military detention with trial under 1021? MR. HARWOOD: I'm not prepared to address that question here today, but I would answer that by saying that his concerns that he has raised are addressed by what I have said and he has the burden of showing that his fear as articulated is a reasonable fear. Having not met that showing, I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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246 C3trhedh think that the government should be put to the burden of defining the outer reaches and the questions that may remain in the context of a preliminary injunction. THE COURT: Why is it unreasonable? Why is his fear unreasonable? If you have got an individual who is engaged on a regular basis with interviewing and meeting with and traveling around with forces which are potentially considered to be associated forces either with the United States or with one of its friends -- what do we call them -- coalition partners, and you can't tell us that his activities won't subject him to 1021, why is his fear unreasonable? MR. HARWOOD: I think it is looking at all of the considerations that we have been talking about, one being the length of time he's been doing this, nothing has happened; two being, and I didn't mention this before, that he was talking about Hamas, Hezbollah, and the government has never asserted them to be associated forces; and three, the concerns that he was raising as to his fear falling within the scope of what the President has said he doesn't need to be afraid of. I think there are a lot of factors in this case and a lot of considerations that we have talked about in our brief that, looking at them as a whole, sufficiently rebut the suggestion that he has established a reasonable fear sufficient at this point, at this stage. THE COURT: It sound like the nub of it is that to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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247 C3trhedh agree with your position, I must agree that 1021 really does nothing new, that it's an entirely redundant piece of legislation. If it is, then I can go back to the case law and the other decisions that have interpreted the AUMF, that have interpreted the various limitations, the due process, and other rights in that context. But I must accept that 1021 is nothing new. MR. TORRANCE: We think you should and that you can. THE COURT: I should do that despite the case law which says that one should assume that Congress writes legislation for a reason, right? MR. TORRANCE: I think what we have shown you in terms of our brief and what we articulate in there is sufficient to show that this really was a codification of preexisting law -strike that -- this is a codification of a preexisting position and that nothing has changed, a codification of a position that the government has articulated. The government articulated it in the March 2009 memo. Courts picked up on that. So you have different branches of government recognizing the authority that the government has asserted and then Congress acting and putting the language almost verbatim from the March 2009 memorandum in section 1021, and then including language stating that it is affirming in section 1021. Based on all of that, and I may be forgetting some of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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248 C3trhedh the points that we raised in our brief, we strongly believe that that is sufficient to support our proposition that this is doing nothing new. THE COURT: Let me ask you one other question. Would you agree with me that if I find that there are First Amendment issues here, irreparable harm is assumed? MR. TORRANCE: I'm sorry. I missed something there. THE COURT: If I find that First Amendment issues are at issue here under, irreparable harm is presumed under the ecase, the Supreme Court case -- help me out. You know the one I'm talking about, right? There is a Supreme Court says that says that irreparable harm is presumed when you -THE LAW CLERK: Elrod. THE COURT: Elrod. Thank you. You get the prize. The Elrod case. You can look at it, you can brief it, but it does say that irreparable harm is presumed if there is a First Amendment an injury under the First Amendment. MR. HARWOOD: I would say that the plaintiffs have the burden of proving all elements of the preliminary injunction standard. If they can't, and they haven't, shown a reasonable basis for fear, they wouldn't have succeed in establishing irreparable harm. THE COURT: Your position is that they don't have standing, and for the same reason, and you are right, that analytically if they don't have standing, then they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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249 C3trhedh definitionally don't have a likelihood of success on the merits as well. That is, I think, true because it's the same analysis, a very similar analysis, in both respects. Actually, there are separate elements, but it is a similar analysis. Irreparable harm is a separate element. I'm just suggesting that it can be presumed in the First Amendment context. MR. HARWOOD: If we are going to have future briefing and I haven't looked at the issue, I would appreciate taking a look at that. MR. TORRANCE: To address the Elrod point, I think in Salinger the Second Circuit said that Elrod held that the loss of First Amendment freedoms for any period of time is irreparable harm. But that is different from saying that irreparable harm is presumed. In the very next sentence they say, "Courts must not simply presume irreparable harm." The idea is that if there is a chill, if there is an invasion of First Amendment right, then no matter what the degree of that or what the time span of that, that will be irreparable harm. But that is different from presuming that it exists just because there is a First Amendment issue in this case. We don't agree there is a First Amendment issue. We don't think this statute reaches expressive activity, and it is not a First Amendment analysis. I want to point the Court to the Salinger decision to quote that exact language and then say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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250 C3trhedh it cannot be presumed. THE COURT: We will take a look at that. MR. HARWOOD: Thank you, your Honor. THE COURT: Who is going to speak on your side? MR. REMES: I'll start. THE COURT: Thank you. MR. REMES: Your Honor, I think you asked an excellent question of the government when you basically said -- and I'd like to put it in my own words, which may not exactly reflect what you meant -- can the government represent that the activities described in the certifications of the plaintiffs would not in and of themselves make these persons covered persons? The government won't make that representation. As I think your Honor said, that means they've got trouble. THE COURT: Let me ask you a question. MR. REMES: Yes. THE COURT: I let your adversary get on a little longer before I jumped in. If I accept the government's assertion that 1021 does nothing new, would you agree that the plaintiffs lack standing? MR. REMES: Not at all, your Honor. I think what we have here are ships passing in the night. THE COURT: Let me make sure that my question is clear. I think it is, but I want to add a little nuance. Would they lack standing for a preliminary injunction? That SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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251 C3trhedh Summation - Mr. Remes requirement is that they must have an immediacy to their harm. If 1021 does nothing new and they have not suffered for the last 10 years, since the AUMF came into existence, how can they possibly have standing for a PI? MR. REMES: Your Honor, there is a non sequitur quality to the government's argument. The question is not, although I'll get to it, whether the law has changed or not. The question is whether the language in the statute is sufficient to give individuals like the plaintiffs notice of what will get them into trouble or what won't. It doesn't matter what the AUMF said. It doesn't matter what the March 13 or February 13, 2009 memo says. It doesn't matter what Jeh Johnson, the general counsel of the Department of Defense said at a meeting of the American Society of International Law or whatever group it was. The government's position, the logic of it would be that every citizen has to be given a concordance where you trace all the way back this is what an associated force is, this is what the D.C. Circuit has said "substantial support" means. You can't expect the ordinary individual of ordinary intelligence to have all that background when he sees this or she sees this language in the statute. The question is, does the language in the statute provide sufficient notice? We can stand here and argue all day as lawyers in a courtroom whether or not the current laws simply restates SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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252 C3trhedh Summation - Mr. Remes existing law. There is a great deal of controversy about that issue, your Honor, on the outside. THE COURT: I anticipated this. The Supreme Court in Moskal v. United States, not a case with which I had familiarity prior to looking for it, says, "Where Congress borrows terms of art in which there are accumulated legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word." MR. REMES: Your Honor, I think that I'd have to look at the case law and see whether or not that principle would be applicable in this case. It has to be a generally true proposition because the Supreme Court said it, but that doesn't mean that it is applicable in these circumstances, and that is something that we would have to brief. THE COURT: I want to give you one more quote on that because it is quite evocative. It says, "Or, as Justice Frankfurter more poetically put it, if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings its soil with it." MR. REMES: I don't know in what part that soil is placed or what plants grow out of that soil. I don't know whether or not Justice Frankfurter's poetic phraseology really applies in this circumstance. I think you can't take it as an abstraction in that way. The principle may be right, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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253 C3trhedh Summation - Mr. Remes principle has to be right, but that doesn't mean it's applicable in these settings. I also quickly wanted to go back to the very beginning, and then I'll get more into the substance of the question your Honor raised about novel speech as protected by the First Amendment. It's not our position that speech that is otherwise proscribable under the First Amendment or otherwise proscribed is somehow protected here. I wasn't quite sure what your Honor was getting at, but it's not all speech that one can claim an ill effect from as being chilled. The problem is that all speech is chilled here because an ordinary person of average intelligence can't tell what "substantially supported" means. THE COURT: You have gone too far. MR. REMES: Have I? THE COURT: Yes, because you said the problem is that all speech is chilled here. That can't possibly be right. I know that I am not hanging out with associated forces. MR. REMES: Do you? THE COURT: I do. MR. REMES: What does "associated forces" mean? THE COURT: I can assure you that they are not co-belligerents. In any event, if you know who your associates are or are not, then you don't even have to get to the word "substantial" and worry about the contours of whether you're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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254 C3trhedh Summation - Mr. Remes substantially supporting something, because you're feeling pretty good that you are not with associated forces. So I don't think it is all speech. It is speech which is with associated forces. MR. REMES: Or substantially supported. THE COURT: Associated forces. MR. REMES: Or directly supported. THE COURT: Associated forces. MR. REMES: My point is when I say all speech, I mean proscribable and nonproscribable. It doesn't tell you what the terms mean. In that sense it covers all speech. That doesn't mean that you can't validly proscribe some of the speech. But it is clear that there is an undefined quality to it. I'd like to turn to that point. First of all, your Honor characterized the government's submission of February 13th or March 13th, I apologize, as being an advocacy piece. THE COURT: March 9, 2009. Is that right? MR. REMES: I thought it was February. THE COURT: March 2009. MR. REMES: In any event, this was not an advocacy brief. THE COURT: When was it? MR. REMES: March 13, 2009. Judge Bates asked the administration after President Obama came in, has your position SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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255 C3trhedh Summation - Mr. Remes on detainability changed? The Obama administration wrestled with this and submitted this document to the court as a statement of the Obama administration's position on detainability. It wasn't part of an advocacy piece. This is the standard that the courts have applied in judging detainability. THE COURT: That is actually quite helpful to them. MR. REMES: No, I don't think so, your Honor. This is my point. If your Honor would look at the paragraph after the indented quote on page 2 of this submission. I provided that in my handouts. I just did it as a double-sided page, and I can provide another copy if your Honor wishes. THE COURT: I'll find it. MR. REMES: "There are cases where the application of the AUMF and the analogous principles of the law of war will be straightforward. It is neither possible nor advisable, however, to identify in the abstract the precise nature and degree in substantial support or the precise characteristics of associated forces that are or would be sufficient to bring persons and organizations within the foregoing framework. "Although the concept of substantial support, for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the government is not asserting that it detained anyone at Guantanamo on such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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256 C3trhedh Summation - Mr. Remes grounds, the particular facts and circumstances justifying detention will vary from case to case and may require the identification and analysis of various analogs from traditional international armed conflict. "Accordingly, the contours of substantial support and associated forces' bases of detention will need to be further developed in their application to concrete facts of additional cases." Now, if the issue here -- I think your Honor pointed this out -- is an issue of chill, you aren't going to get to cases explicating these terms. You won't have a body of case law. Or if you do, it will be by accident. None of the Guantanamo cases that the D.C. Circuit has considered, to my recollection, has involved a challenge to the detainability standard based on expressive activities. I think that is important, because how far the D.C. Circuit has interpreted "substantial support," etc., they weren't saying this is it, it can only be applied in these circumstances; they said it is met in these circumstances. THE COURT: That was my point. I had it in front of me, that case from the D.C. Circuit. The question is whether or not there have been any contours placed around these words in cases. MR. REMES: Yes, your Honor. I also think that it is the position of the government that -- this is aside from my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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257 C3trhedh Summation - Mr. Remes point about looking at the language itself. The NDAA detainee provisions represent a compromise where some senators wanted this language, but on the other hand, they didn't want to imply that the administration didn't have the power beforehand. The administration didn't like the bill as a whole, because it wanted to avoid the implication that it didn't have the power before. The senators had their way and the bill was written, and the administration abandoned their veto threat because every other line said this doesn't change anything. Obviously, as your Honor has pointed out, it has to change something. There is different language. There is language that is more expansive. The reason I make this point, again bearing in mind that it is the language of the statute that counts, the fact that it hasn't been enforced against expressive activities before now is irrelevant. If you just look at the differences between the language in the statutes, the AUMF did not have this language in it. There can be debate about whether it changed the law or reaffirmed the law or restated the law. Different people have different views on that subject. The mere fact that the statute says that it's a reaffirmation, with all due respect, doesn't necessarily mean that the statute even is correct, because you do have to look at preexisting law. THE COURT: Let me say two things. One, I've been trying to pose my questions in terms of devil's advocacy SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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258 C3trhedh Summation - Mr. Remes without stating an actual position as to whether or not I agree or disagree that the law is in fact different or the same. I don't want my prior points to suggest that I have determined that 1021 is not the same. I have questioned whether or not that would be consistent with legislative interpretation principles. That we will leave for briefing. The other point, though, that I would raise is that the word "reaffirm" consistent with the interpretation of statutes and the principles around the interpretation of statutory language suggest that one should assume that a word means what it says. I am not supposed to read into the word "affirm" a political history of which I am not aware. I am supposed to read into the word "affirm" its normal meaning consistent with its soil. MR. REMES: That's correct, your Honor. But there is another canon of statutory construction, which is that Congress doesn't engage in superfluous or redundant contacts. You have to assume when it uses different language, it intends a different thing. So there is sort of a war between canons of construction here. I also think your Honor is entitled to take into account legislative history in ascertaining the meaning of the statute. I'm trying to whip along here even though I'm not succeeding. In Holder, of course, the terms at issue were very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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259 C3trhedh Summation - Mr. Remes clearly and specifically and minutely defined. That's not the case here. THE COURT: There the phrase was "material support." MR. REMES: Exactly. There was a definition. I also want to take issue with the government's characterization of the speech at issue here or the expressive activity here as somehow being at the outer bounds of these terms. It really goes to the heart of what's going on now with the plaintiffs in this case. This isn't marginal. This isn't the outer bound. This is a Pulitzer Prize-winning reporter. THE COURT: To be fair, it is not marginal to those folks who are plaintiffs in this action, but it is clear from the face of the statute that this statute 1021 is not aimed at expressive conduct of the type that we have been talking about today. It may capture some or it may not, that is to be determined -- I'll try to get an answer from the government; I have your principles -- but that is not the heart of the statute. I think we have to agree that 1021(a)(b)(i) and (ii) are really going after people who hung out with the 9/11 folks. Right? It's a person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those. MR. REMES: That is the first. THE COURT: That's number one. That is not an issue SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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260 C3trhedh Summation - Mr. Remes here. You folks are not challenging that. Or, two, a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, etc. Then it goes on to what happens if you're one of those people. But this is really not aimed at speech. It may capture speech, but that's not the heart of where this is at. That's why I have a problem with the idea of a facial challenge here. MR. REMES: Your Honor, the problem here is that the terms themselves looked at by the plaintiffs or anyone else engaged in expressive activity can't know whether or not that activity will render the person a covered person. I don't see how the Court can solve that problem without invalidating the statute. THE COURT: As applied? MR. REMES: As applied to what, if there is a chill? THE COURT: As applied to them. They only have Article III standing to bring a claim as to them and as to their conduct. They don't have standing under any scenario to bring a challenge for conduct that relates to somebody who is not engaged in one of their particular activities. That's what it is all about. MR. REMES: If the Court holds and if the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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261 C3trhedh Summation - Mr. Remes concedes that the expressive activities described in each of the certifications in and of itself does not threaten to bring one within the definition of covered persons, I suppose that you may be right, your Honor. But the whole problem is they don't know. I don't think your Honor can so rule. And we definitely know that the government won't make that concession. So, I don't think that as applied is the issue here. The government hasn't applied it, because the NDAA is new. The question is whether there will ever be a chance to have it as applied in the normal sense of the word, when somebody speaks and then he is thrown in jail. THE COURT: Right. That's where the government says what you're asking for is an advisory opinion. MR. REMES: No, your Honor, it is not an advisory opinion to say that particular phraseology is too vague to be understood. The government may want to run away from the scenarios that are pointed out in the certifications, but the whole point of the vagueness challenge is you don't wait until the government comes after you. Your speech is chilled because you don't know what the terms mean. That's why it's not an as-applied situation. You can't have it both ways. You can't say there is no Article III standing until it's been applied in concrete terms when the very nature of the complaint is we're chilled from doing this because it's vague. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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262 Summation - Mr. Remes THE COURT: Let's pause for a moment. Are you folks going to also be getting up? MR. AFRAN: Yes, your Honor. THE COURT: Both of you? MR. AFRAN: Mr. Mayer is going to be very short to wrap up. THE COURT: I want to do this. This facial and as applied thing is very important. We may save it for the posthearing papers. If a statute is not aimed at the First Amendment, it is extraordinarily difficult to do a facial challenge; indeed, given the conduct here, I'm not sure I could without being immediately reversed. The "as applied" comes into as applied to these particular plaintiffs. Isn't there a scenario where I could say that as applied to these plaintiffs or those like them who are engaged in speech conduct which is not obscenity, incitement, or involved as a core, integral part of a criminal activity, the statute has certain phrases that are vague and therefore is unconstitutional as applied to them, and leave everybody else alone? MR. REMES: Then we are quibbling over terminology, because that is not my understanding of "as applied." As far as I'm concerned, that is a construction of the statute. As applied is when the statute is actually applied or actually enforced. The complaint here is that expressive activity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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263 C3trhedh Summation - Mr. Remes doesn't take place, because the statute is vague. THE COURT: I'm saying it is an as applied to these people under these circumstances for what has already occurred. MR. REMES: That's why I say, your Honor, I think we are on the same wavelength, I just think we are using different terminology. That will probably come out in the briefing. THE COURT: You're all done? MR. REMES: I'm done. THE COURT: Thank you very much. I appreciate the fact that you folks have been sparring with my comments. It does help me to clarify. I know it interrupts the flow of what you would otherwise say, but I am appreciative. Mr. Mayer. MR. MAYER: I wanted to add a couple of points. The government's argument about the importation of the language from government policy into the statute I think is a creative one. The problem with it is what government policy language was actually imported into the congressional statute. Was it the President's signing statement? Is it the White House's position on the bill, which is another statement? In fact, in their papers the government refers to all different manner of definitions. For example, belligerent acts is defined in their papers by the Department of Defense prior to the 2009 memo. On page 5 of the government's brief they cite to a definition that preceded the March 13, 2009 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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264 C3trhedh Summation - Mr. Remes definition. THE COURT: They are saying it's all of a piece. My understanding of their argument is there is a lineage here and you must take into consideration all of the facts and circumstances that inform the lineage of this terminology. You can't just take this as if it dropped or sprung from the head of Medusa, as we said earlier today. MR. MAYER: Right. The problem with that argument is that the policies cited are different policies and they are ever evolving and ever changing. The March 13th memo states, this on page 10, "The government is continuing to develop a comprehensive detention policy." So it's a constantly moving target. That's my point. That is the definition of "vagueness." It is something that is constantly moving. As to the government's point about the law of war, my understanding of the law of war is really it's a body of law that deals with all sorts of other elements, like when states are justified in declaring war against one another, Geneva convention, treatment of prisoners, etc. There is very little in that body that deals with terrorists. That is exactly the problem. Terrorism is a new problem. But the problem we have here is that the definition of "terrorists" or those who would do the United States harm in AUMF is limited to the United States and limited to groups that participated in the act of September 11th. Now, ten years SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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265 C3trhedh Summation - Mr. Remes later, all of a sudden we are not just protecting the United States, we are protecting coalition partners. Not only are we protecting coalition partners, but we have associated forces. And I can't for the life of me figure out what's the distinction between associated forces and co-belligerents or belligerents, which are all terms used. Basically, this is a constantly evolving policy which necessarily creates vagueness and necessarily chills speech. That's the problem I have with it, and that is I think a distinction with the case you mentioned. We will brief it in our papers. In the Moskal case I think Frankfurter was talking about a rich common law soil and a statutory soil, not changing government policy, which not only changes within administrations but changes between administrations. THE COURT: Two things. To be fair, I don't think you're going to be able to find different definitions of "substantially supported" and show a flip-flop. I don't know that you will find any definition of "substantially supported." But that to the extent there are definitions of anything, I don't think that what we are dealing with here is a flip-flop and constantly changing. I think that takes it too far. The issue is whether or not appropriately we should read the lineage in and whether or not, since lineages do evolve even if in, assume, a rational way, whether or not that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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266 C3trhedh Summation - Mr. Remes is appropriate. Number two, I am bound by Holder v. Humanitarian Law Project. That is a Supreme Court decision authored by Justice Roberts. That decision, which does find standing for a preenforcement challenge, pretty quickly says to the district courts and every other court, stay out of these kinds of things because you don't get daily military briefings as the Congress does, you don't know who is dangerous and who is not dangerous, and you're going to be treading in an area that could lead to big problems. How would I reconcile finding unconstitutional this statute when Justice Roberts says for another terrorism statute, a different statute, but his principle is similar, be very, very careful about touching this? MR. MAYER: I think the distinction, your Honor, as we pointed out earlier, is that Holder dealt with a statute where there are defined terms. In that case it was "material support," just like some statutes have "picking up arms" or "engaging in armed conflict" or "engaging in armed conflict against the United States." This is a wholly different scenario. I think you began the session today with your concern about redressability. In other words, you could strike down the provisions that could capture expressive speech but leave in the provisions that capture armed conduct or material SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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267 C3trhedh Summation - Mr. Remes support, the more concrete things, or you could simply direct Congress to go back and make these terms clear. I think all of those are possible redresses. THE COURT: Is it possible for me to have an interpretation which says that it would be unconstitutional to apply this statute to the specific conduct set forth in the declarations of these plaintiffs? Can I do that? MR. MAYER: I don't see a reason you couldn't do that, your Honor. But what we are asking for is more in terms of an injunction. THE COURT: I understand that. Let me put it differently. You would agree with me that district courts are admonished repeatedly to do as little as possible with legislation because we are not to take the place of Congress. We do have the ability and are supposed to look at constitutionality, but we are not supposed to legislate. Therefore, number one, you look to see if there is anything we can possibly do that is short of saying that something is unconstitutional; you look at standing, you look at other things. Then, when you get to a point where you have to exactly examine a statute and now need to readdress something, my job is to do it as narrowly as possible if I found a need to redress. So, while you want more, is one possible redress just saying here is a list of conduct, it's set out in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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268 C3trhedh Summation - Mr. Remes affidavits of these people, and it would be unconstitutional to apply 1021(b)(2) to them? MR. MAYER: Yes. I have basically answered yes to that. That is one possible approach. THE COURT: I want to ask Mr. Torrance and Mr. Harwood, do you agree with that or do you think that is an advisory opinion? MR. TORRANCE: It is an advisory opinion, your Honor. The first step, the threshold step, is to establish the case in controversy. THE COURT: Assume for the moment arguendo that I found standing. Would one possible avenue of redress be to list out all of the conduct set forth in these affidavits and say none of this conduct constitutionally could be considered under 1021? MR. TORRANCE: I still think that is advisory because it is essentially taking speculative allegations about what the plaintiffs would do and giving them a judicial imprimatur on that. THE COURT: What if I did what they have already done? What if I took Ms. O'Brien's chunk of articles? She is very prolific. MR. TORRANCE: It invites plaintiffs to come in and bring every suit, no matter how far afield or no matter how close, start bringing the ones that are really far afield, get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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269 C3trhedh Summation - Mr. Remes that injunction, and then just start sneaking closer and closer, getting the courts to step into the business of defining for every person who has the wherewithal to bring a suit like this and do it seriatim, and getting closer and closer to the boundaries, and then the courts are in the business of issuing those advisory opinions. That's why the Court should not do that. It's not proper under the law. THE COURT: Thank you. I'm sorry to interrupt you, but I needed to get the redressability there. MR. MAYER: The only thing I would add is I think the admonitions from the Supreme Court and the circuit court to tread lightly have to do with cases where there is concern about armed conflict, like Holder or a definition of taking some sort of action. Here, this is something distinct. This is speech, which even the President concedes poses very, very important constitutional questions and would lead to an enormous departure from our most important democratic traditions, namely, that the military stay out of civilian policing. I think that is one distinction, your Honor. I'm sorry. I may have taken too much time. I think Mr. Afran wants to conclude with a couple of points. THE COURT: Thank you. I again appreciate the fact that I'm sure I got you on to tangents that you weren't expecting. Maybe you expected them, but they weren't your core argument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
C3trhedh 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actually. MR. AFRAN:
270 Summation - Mr. Remes Your Honor, I'd like to go to the tangent,
THE COURT: Oh, good. MR. AFRAN: Go further. I don't think you can do what you asked about and have done the job, not for the reasons the government gives. It's not an advisory opinion. There are clear concrete concerns with factual bases that are presented by these plaintiffs. The reason you can't do that is because of the following. If you were to conclude that these expressive acts that they testified to that are in the declarations can be swept within the statute such that the statute would imperil their expressive conduct, then the statute itself is unconstitutional because it sweeps around protected conduct. What your Honor would have to do is state that the generality of the statute, because it sweeps into itself this conduct, makes it unconstitutional. Your Honor would have to identify in her opinion the type of conduct that can reasonably be seen to be swept into the statute and state that, because it does that, it is unconstitutional. THE COURT: What if I said, as applied to protected First Amendment speech it would be unconstitutional? MR. AFRAN: You can't, because there are endless incarnations of unprotected speech. THE COURT: I understand. What if I move away from my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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271 C3trhedh Summation - Mr. Remes first version and I don't just do a listing of what is in the affidavits? What if I go to version B and I do the opposite of what I suggested this morning was unprotected speech? We have agreed that there is some speech, shocking as it may be, that is unprotected: Obscenity, incitement to violence, which you call conduct, as well as core criminal, speech that is integral to a criminal activity. You I think called it conduct more than speech. I think that was you. MR. AFRAN: I think it is conduct that comes through speech. There is no question it's speech, but the reason we regulate it is because it's really a type of conduct. THE COURT: What if I said that all speech except for those three categories, which are not protectable First Amendment speech, not protectable under the First Amendment, all other speech cannot be captured by 1021? I don't do the narrow, I do the really broad. MR. AFRAN: I certainly think that would provide a great degree of comfort for those who believe their actions could cause them to be swept within the statute, but I think there is a principal problem with that approach. In order for your Honor to conclude the necessity to make that opinion, to reach that conclusion, you would have to first conclude that the language of the statute encompasses speech that is protected. In traditional First Amendment jurisprudence, if the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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272 C3trhedh Summation - Mr. Remes statute is sufficiently broad or vague to as to bring within it First Amendment speech and punish that, in effect, then the remedy is to declare that statute unconstitutional because it does the following. Congress sees that decision, and if it wishes to pursue this, it fashions a statute that is proper directly focused. That is really the remedy that has to be applied. That's why I say I think the Court would be doing half the job because it would still leave open the question of, well, what is expressive within the meaning of this? If the statute is so broad or vague that it legitimately causes the Court to say we need to carve out expressive conduct from its contours, that means the statute is unconstitutional and Congress has to go rewrite it. That has happened quite often in Internet pornography cases. THE COURT: Do you mind if I interrupt? Let me ask Mr. Harwood and Mr. Torrance a question here, because it is raised by what you are saying, Mr. Afran. It goes to the question of political speech and whether or not political speech can be captured. We are not talking about obscenity, incitement, or core criminal speech, speech that is integral to criminal conduct. I keep getting caught up in that because there are five ways of describing it. You know what I'm what I'm talking about. I'm talking about Brandenburg v. Ohio political speech. Here is my hypothetical. What can give us comfort SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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273 C3trhedh Summation - Mr. Remes that if an article was written or a book was written and then it was toured around the entire Middle East on a book tour that said we support the jihad call -- maybe that is incitement to violence -- we support the underlying principles of the Taliban's religious state. They get a lot of publicity about that. We support the underlying principles of the Taliban state. People listen to that and there's lots of activity around that. Let's call it substantial. It's a substantial amount of activity around that. Can that be captured under 1021? MR. TORRANCE: As I understand it, if we are talking about a book that expresses its agreement with these principles -- maybe I missed what went after that. THE COURT: They are going to do a book tour. MR. TORRANCE: Yes. As I said before, there is ten years of history of this and the government has never taken the position that independent expression puts someone within the detention authority. I think that that answers the question based on the history and context. THE COURT: If past history suggests no, for reasons that I certainly do understand in terms of the difficulties that you two are facing as representatives of the United States government here -- it is hard to take big positions -- you're unable to say what I'm characterizing as political speech could not subject someone to 1021? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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274 Summation - Mr. Remes MR. TORRANCE: We are not able to, because it would contradict the very clear law that the burden on both the standing and the preliminary injunction rests on the plaintiffs in every aspect, and it would contradict the general principle of vagueness law that the government does not have to delineate. THE COURT: I understand you don't have to. I'm asking you what your position is. MR. TORRANCE: Right. We don't have to and we don't consider it advisable to do so. That is precisely why we have standing law, to prevent simply hypothetical situations from coming in and getting advisory opinions, which is essentially what the plaintiffs are seeking here. They are alleging conduct and saying, we fear it. Our position, of course, is that what they fear is a chimerical statute, it simply doesn't exist, as some of the witnesses explained their understanding what they are in fear of is not what the statute says. Putting that aside, the whole point is that they have to establish a real, concrete, imminent, actual injury traceable to this statute. THE COURT: I understand. What I'm trying to do is figure out if this statute in fact captures First Amendment protected speech because a book which says, I agree with the principles of the Taliban -- I know that is very vague and there could be a lot encompassed within that. But if that was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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275 C3trhedh Summation - Mr. Remes what was said and it was the entire book, it was one line, that would be political speech, right? MR. TORRANCE: I'll assume that. I do want to note, though, your Honor has been delineating categories that might be outside the First Amendment. We did not develop this in our brief, but it is not clear from the law the extent of the First Amendment protection outside the borders of the United States. And it is not clear in the law the extent of the First Amendment protection as applied to aliens, especially when those two come together, and aliens outside the United States. We did not brief that. We haven't developed that argument. I want to at least flag the issue of other areas which the First Amendment may not reach. THE COURT: Let's not go there. That's like a whole Fourteenth Amendment issue that we get into along with everything else. I also wanted to say that I think that in addition to the very well articulated legal principles which you have said about standing and burdens of proof and burdens of persuasion, you are unable to say whether or not that political speech could be captured within 1021. That is right? MR. TORRANCE: We cannot say that at this point. THE COURT: Thank you. Go ahead, Mr. Afran. MR. AFRAN: Your Honor, ultimately that is what this comes down to. If the government is unable to take a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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276 C3trhedh Summation - Mr. Remes position -- well, it is slightly different from what Mr. Torrance just addressed. Earlier, when your Honor put a series of questions about would this be something the government would say does not fall within the statute, you didn't get a direct answer. I'm not criticizing. You didn't get a direct answer. That's the fundamental problem with section (b)(2). It's cast in sufficiently broad terms or vague terms, and both work in the context of the First Amendment, that it can and does encompass various expressive actions. Twice Mr. Torrance, in the answer to these questions, added a word. Your Honor asked, will you say this expressive conduct, these expressive acts, are not within the statute? And twice Mr. Torrance added a word to that answer. He said "independent expressive conduct" both times. He did it just now and he did it earlier. THE COURT: It didn't bother me too much, actually. MR. AFRAN: It bothers me, for a very good reason. It's creating another layer under the statute. THE COURT: Tell me how it creates another layer. I think of it as a redundancy. MR. AFRAN: First of all, lawyers don't add words in. THE COURT: No, lawyers add in words all the time. We are not the Congress, God knows. MR. AFRAN: The answer is very simple. Mr. Torrance said we have never taken the position that independent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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277 C3trhedh Summation - Mr. Remes expressive conduct could bring someone into the scope of what he was referring to as the AUMF anyway. And I assume he means the NDAA also. Why say "independent expressive conduct"? If expressive conduct is protected and the government doesn't intend to intrude upon it through the NDAA section (b)(2), then why add a phrase "we've never intended to attack independent expressive conduct"? THE COURT: Rather than me interpreting it, I assume what you mean is an individual's expressive conduct versus an associated force's expressive conduct. What do you mean? MR. TORRANCE: There is this other part of the statute, part of al-Qaeda, just to limit it for purposes of argument. I think the laws of war are quite clear that somebody can be detained or attacked simply for belonging to an international conflict, simply for belonging to an enemy armed force, regardless of what their role is. If their role is solely as a propagandist and that can be called speech, they are still detainable as a member of that armed force. Independence sets that aside. THE COURT: I see what you are saying. You mean independence in a different way than I was thinking. That is helpful. Mr. Afran, I have one other point for you. I know I have been hard on the government. Their home base is associated forces, one of their home bases. I go back to a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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278 C3trhedh Summation - Mr. Remes point that I made earlier with one of your colleagues. If they are not engaging in expressive conduct with al-Qaeda or the Taliban or associated forces, which I actually buy potentially -- you will argue to me why I shouldn't -- that it falls under the laws of war and co-belligerency and everything else. I don't think "associated forces" is as vague as you do. I'm not suggesting that I find it not somewhat vague. I'm not going to take a firm position at the moment on it. But their home base is associated forces. You've got to be engaging in expressive conduct that substantially supports one of those three categories; otherwise, this statute doesn't even get near you. MR. AFRAN: I don't think that is true for the simple reason that the statute doesn't say that. THE COURT: It says that. MR. AFRAN: Do I have the statute? THE COURT: It says, "a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces." Then it goes on. You've got to, number one, hook yourself up with one of those three. MR. AFRAN: Your Honor, the issue in our home base is a different base. The issue is not a part of. We would not dispute that if there is combat and one is a part of, using its common definition, meaning you are a member of, that's not at issue. We have never even argued the words "part of." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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279 Summation - Mr. Remes What we are saying is a person who substantially supported al-Qaeda. Take the phrase in itself. If I substantially support al-Qaeda, I may have an opinion that al-Qaeda is right. I don't, but I might have an opinion that al-Qaeda it right, that American culture, American military force, American diplomatic power violates the basic rights of people in Muslim countries, and hence al-Qaeda has a reason to maintain its actions and its conduct. I might take that position. That is not a crime. It is not even Brandenburg incitement. Brandenburg incitement criminalizes that speech which imminently and immediately causes lawlessness. It doesn't criminalize support for lawlessness. One can support lawlessness provided one's speech is not imminently inciting an immediate reaction to lawlessness or immediate resort to lawlessness. THE COURT: We might be able to have a debate about that. MR. AFRAN: That's what Brandenburg says. THE COURT: It doesn't use the word "support," doesn't get there. MR. AFRAN: That's the point. "Support" is too vague in terms of regulating speech. There has been this notion your Honor brought up initially that not all speech is part of the First Amendment. That is a very narrow area of speech, and it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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280 C3trhedh Summation - Mr. Remes is highly presumed against. So, when one says, well, if one is giving support to al-Qaeda, can that support be deemed such that it can land one in a military prison, clearly we are taking an immense departure from any traditional notion of First Amendment or due process protections. In Holder we dealt with a statute, as both my co-counsel said, that had a clear definitional structure; "material support" and various other elements are clearly defined. Now, one has to say if that's what the government means, why not say so? Why not at the very least incorporate or import into this, as is often done with statutes, a definitional structure from another statute that has a factual nexus or relationship? Yet they don't do that. Congress has clearly left this without a single definitional provision. Their base may be associated forces, but I can tell you "associated" has multiple meanings. It means that which has a relationship to, it means that which is working directly with. THE COURT: They are saying it's a term of art. MR. AFRAN: What is the authority for that term of art? Their March 2009 brief? This is the first I have ever heard that one can invent their own authority. This is precisely what the government's argument resorts to. Throughout their memorandum of law they resort to the March 2009 brief. When they are not doing that, they are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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281 C3trhedh Summation - Mr. Remes resorting to the general counsel statement at the Yale Law School. For some people the legal world may revolve around Yale, but that is not a form of law or authority, the mere statement of their own general counsel at a law school lecture. We have two sources of law that are their own creation. This is a completely cyclical argument. They say we have no standing because for the last ten years the positions in their briefs have been the law. Why do they say that's the law? They say, it's because it's in our briefs. So we have an argument by the government that says these clients have no standing because we have always had this rule under the AUMF, and for the last ten years we have never used it against people like them. When we say, where is the support for that rule, they say, well, see the briefs that we used to write. Then they recite two cases from the D.C. Circuit which deal only with combatants and with persons who were taken on a foreign field of combat. Even the very, very bare judicial thread that they are hanging on -- I wouldn't want to hang on that thread if I were them -- does not relate to this case. It relates to combatants taken on the field of battle. Hamdi is trucked out repeatedly by the government to say Hamdi avowed, accepted our position of substantial support with associated forces. Hamdi did that only in the context of an individual arrested and taken in a battlefield. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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282 Summation - Mr. Remes There is no dispute on our side that a citizen who enters a foreign field of combat against the United States is subject to detention as a combatant. That's all Hamdi says. Hamdi goes out of its way to then say, however, a citizen can be placed in military detention only where engaged in armed conflict with the United States. That is not wiggle words from the Supreme Court. It's saying the facts of Hamdi are limited to an individual taken on a foreign field of battle. As to American citizens, or I presume they mean aliens living within the United States, one must be engaged in armed conflict to be put in military detention. Hamdi is extraordinarily clear. Section (2)(b)(i) is fine. We don't dispute that one who is a part of and engages in hostilities can be taken into that type of custody. But section (b)(2) is another universe entirely. Hamdi declares that's invalid. There's got to be a limiting factor before an individual is taken and placed into any custody, much less custody which is outside Fifth Amendment criminal due process, as this is. Hamdi declares the statute unconstitutional in essence precisely because it says you cannot do what this would allow. THE COURT: That I think is going too far. It does not declare the statute unconstitutional. MR. AFRAN: I'm sorry. I don't say it declares. I said in essence. Hamdi goes out of its way to say a civilian SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 C3trhedh
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283 C3trhedh Summation - Mr. Remes or citizen can be put in military detention, it uses the word "only," only where engaged in armed conflict with the United States. This statute, section (b)(2), would allow the opposite. It would allow someone who substantially supports an entity or its associated forces to be placed in military detention. There is absolutely no limiting contour of any kind. In Holder we dealt with a criminal statute which had clear Fifth Amendment due process protections. Here we are in an even more perilous constitutional position because we don't have the limiting protection, which is very substantial, of the whole panoply of Fifth Amendment due process. This is why Mr. Hedges referred to the black van, so to speak, where one can be taken under (b)(2) -- there is no limiting, narrowing definition except the government's own prior; well, there is no limiting narrowing definition -placed in this military detention without any prompt access to the courts. When do they surface? Years later, as most of these cases. THE COURT: We should wrap up. I'm sad that you were last. Not sad. It's just the way the order went. I'm not suggesting that I haven't valued every word that everybody has said. It's just that we are running out of time. It is certainly the case that there is now significant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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284 C3trhedh Summation - Mr. Remes Supreme Court precedent -- Boumediene, Hamdi, Hamdan, a variety of cases -- which do say there will be habeas rights and other kinds of due process rights even for folks in military detention. We are not in a world now which people might argue may have existed prior to that case law being developed in the Supreme Court. I just want to make sure that we are all clear that the Supreme Court has spoken about even folks in Guantanamo and even folks who are in military detention and certain rights that they do have. Those case's are out there. They are good law. MR. AFRAN: I think the tone of my voice may have led the Court to think I was saying something other than I was. All I actually said, which is what my words say, is that this allows an individual who is a civilian, a citizen, to be placed in military detention without the much greater panoply of Fifth Amendment criminal due process rights that normally exist. Hamdi, despite recognizing that there is now a type of due process for the foreign combatant or the domestic combatant, goes out of its way to nevertheless say a citizen in the United States cannot be placed in even that type of due process setting unless they are engaged in armed conflict with the United States. We need to still see that limiting principle. All of that case law that your Honor referred to is dealing with combatants taken on foreign field of battle. It does not deal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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285 C3trhedh Summation - Mr. Remes with the case of an American citizen here who could be brought into military detention who is not in a state of armed conflict. The final thing I will say is if the government's position is that this applies only to people in a state of armed conflict with the United States, then that's what the statute should say. THE COURT: They would say, and I don't mean to speak for them but I will because it's faster -- tell me if I'm wrong -- associated forces have to be involved in armed conflict; therefore, the concept of armed conflict is inextricably entwined with the concepts in 1021. Am I right, more or less? MR. TORRANCE: That is how it is applied, yes. I should say, though, that the Court is right to draw the distinction between the groups and the individuals. Somebody who is a member of al-Qaeda, sworn allegiance to al-Qaeda, can be detained simply for that fact alone, for that status alone, without having actually engaged in armed combat. Hamdi says nothing to the contrary despite the representations Mr. Afran has made. So yes, the concept of this military conflict detaining people for the purpose of preventing them and the groups to which they belong from presenting a military danger to the United States, yes, that concept is in there. But it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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286 C3trhedh Summation - Mr. Remes does not, as Mr. Afran said, it does not apply to every individual has to be engaged in armed conflict, and Hamdi allows that. MR. AFRAN: Your Honor, Hamdi plainly says only where engaged in armed conflict with the United States. There is none of the room that Mr. Torrance just suggested in Hamdi. It's extraordinarily clear. The word "only" has meaning to the Supreme Court. When it says "only," it means only in this circumstance can an individual be subject to military detention. It does not leave any room for the conclusion Mr. Torrance just drew, which is precisely what the NDAA is trying to do in contravention of what Hamdi says. It says only where engaged in armed conflict with the United States. THE COURT: I take it you disagree. MR. TORRANCE: Can I make one quick point? THE COURT: One quick point, and one last point from Mr. Afran. Then we are going to talk about logistics. MR. TORRANCE: What it says is they are only considering the case of somebody who is engaged in armed conflicted against the United States. It does say that the detention authority can only apply to someone engaged in armed conflict against the United States: It's a matter simply of limiting themselves to the case before them. That's what the "only" says. THE COURT: Understood. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
C3trhedh 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 done. MR. AFRAN:
287 Summation - Mr. Remes Your Honor, one last thing, then I'll be
THE COURT: One last point. Then we will talk about some dates for the briefing. Be thinking of dates. Mr. Torrance, I seem like I have exhausted you. MR. TORRANCE: It's not this, but I won't bore the Court with the details. MR. AFRAN: Your Honor, Hamdi is actually very, very explicit on this point. THE COURT: Do you want to point me to a page? MR. AFRAN: I'm pointing to page 19 of our brief. Hamdi, 542 U.S. at 522. It cites to Milligan. Very interestingly, despite the age of Milligan, it really incorporates Milligan. It says, "Milligan turned in large part on the fact that Milligan was not a prisoner of war but a resident of Indiana, arrested while at home there. Our clients are always at home in the scenarios they raise. That fact was central to Milligan's conclusion, to its conclusion," Hamdi writes. "Had Milligan been captured while he was assisting confederate soldiers by carrying a rifle against union troops on a confederate battlefield, the holding of the court might well have been different. The court's repeated explanations that Milligan was not a prisoner of war suggests that had these different circumstances been present, he could have been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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288 C3trhedh Summation - Mr. Remes detained under military authority for the duration of the conflict, whether or not he was a citizen." Then of course it goes on to state, "Hamdi would need to be a part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict with the United States to justify his detention in that manner." It wasn't "only," it was "and." Clearly it was linking the two provisions and it is referring back to the fact that Milligan was arrested as a civilian without being engaged in armed conflict. THE COURT: This is where earlier today, ever so long ago, I raised the question of whether or not armed conflict must involve, and I used "projectile" and you rightly used "hot oil being poured on people." In fact, I appreciated that because you were expanding the definition of "armed conflict." I think that in today's society there is an interesting question, which I don't know that we have to reach for purposes of this proceeding, as to whether or not armed conflict in the 21st century has been expanded beyond where it at least most recently has been. For instance, I get on the telephone and I am 3,000 miles away, which I think is similar to an example I used this morning. I engage in expressive conduct that may be in fact integral to a criminal activity where I tell somebody something which they then use to engage in a terrorist activity. I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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289 C3trhedh Summation - Mr. Remes sitting in Indiana. There is no doubt -- well, I think there shouldn't be a doubt -- that that is engaging in armed conflict. MR. AFRAN: If they pick up the phone and say, we have delivered a bomb in Jerusalem, you can pick it up at the following address on Ben Gurion Street, Benya Huda Street, clearly they are participating in a criminal act. There is no question about that. THE COURT: They are in the United States, so they have not left Indiana. MR. AFRAN: That is not an act of war necessarily, but it is certainly an act of crime and not protected under the First Amendment. Not all violence is an act -THE COURT: I'm saying Ex Parte Milligan is also a product of its times. MR. AFRAN: Your Honor, Hamdi is a 2004 decision. THE COURT: I understand. I also think the definition of "armed conflict" may need to expand. MR. AFRAN: That may be. So far the government hasn't offered a definition outside of its own briefs. THE COURT: I don't think we need to get there in this proceeding. MR. AFRAN: I understand. The point we raise is very simply if we have to in this tortured way try to understand what this provision means and when it will apply to any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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290 C3trhedh Summation - Mr. Remes individual, much less to those who are here and have raised these issues, then we have a very serious constitutional problem. I would end by saying I think your Honor's suggestion about declaring certain types of speech outside of this is certainly something that would provide strong protection. I would say I think your Honor is entitled to and perhaps should consider holding that if the statute requires that type of decision, subsection (b)(2) is unconstitutional, and your Honor's decision gives the reasons why, and then Congress can reframe it. I would like to point out we are only dealing with a very small part of the statute. We are not dealing with anything dealing with membership in these organizations. We are not dealing with anything dealing with people taken in combat. We are dealing with this very small part which has this immensely broad potential coverage, which I think the Court is acknowledging at this stage. If it gives rise to the need to carve out those protections, then clearly it is intruding upon them. I'll leave it there for now. Thank you. THE COURT: Thank you very much. Thank you all for a very well presented and articulate series of arguments that were sparring with some questions for me. I appreciate that. Let's talk about the papers. I do think that it would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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291 C3trhedh Summation - Mr. Remes be useful if you all agree to have some post-hearing papers that can address a couple of issues and other issues which you might yourself want to address. Let me tell you the ones that spring to mind. This is not an exhaustive list. The one, Mr. Afran, which you just raised, this is not to suggest by any means that I am at the point where I actually agree that this statute is unconstitutional. I am taking this whole thing under advisement. I do want to know, and I'm going to start with that last point -- that is the only reason I'm saying it first -- if a judge were to declare that as applied to certain conduct a statute would be unconstitutional -- and the government will tell me why that is an advisory opinion -- does that mean that I necessarily have to find that the whole thing is unconstitutional? Or can I narrowly say what I was saying before, which is either this cannot constitutionally be applied to First Amendment protected speech or this cannot apply to conduct A through K listed herein, which is the conduct set forth in the certifications of the named plaintiffs? That's one issue. The other issue is folks are going to have to grapple again with the similarity and differences between the statutes. You have done a very good job in the government's papers, which, by the way, I thought were written superbly. Not that I didn't think yours were written superbly, they are, but the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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292 C3trhedh Summation - Mr. Remes government's papers came in second. MR. AFRAN: We take no offense. THE COURT: The ability to bring in executive statements to the lineage of a statute that is passed three years later really needs some strong support, I think. You folks, the plaintiffs, will tell us why that is for a variety of reasons not appropriate. I also need to understand why the statute is not vague if I can't get the government to give me a definition on the record of the phrases at issue. Let's assume arguendo that I find that there is standing because there is a credible threat and I get into vagueness. I don't think I necessarily have to find vagueness to get to credible threat. I can find that there is a credible threat and it's not vague. They've got standing, but I can do what Holder did. He found standing but found constitutionality. You can find standing and find constitutionality. If you folks can't say what "substantially support" means, how does an ordinary citizen know? You folks will tell me why that is the reason you win. Can you do this in 25 pages apiece? No more than. You can do it in 10. You have already put in papers which you need not repeat, and you can refer to your other papers and sections of your other papers. I have read them very closely and I will read them again very closely. You need not repeat SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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293 C3trhedh Summation - Mr. Remes things. If you find that that is just insufficient, let me know. MR. AFRAN: The 25 is the limit? THE COURT: I would like it in 25. The reason for that is because it becomes very difficult to digest things at a certain point. I will read the cases that you cite. I will read all the cases that you cite. I would like to get this done within our lifetime. This is a preliminary injunction, which would suggest that there is some urgency to it, so I would like to get this done very quickly. In that vein, you guys have to go first, plaintiffs, what do you think of April 6th? MR. REMES: Whatever your Honor thinks is reasonable we would think is reasonable. THE COURT: What do you think is reasonable? You guys have other things. Let me put it this way. I'm trying to figure out how quickly you can get this done because I cannot rule until I've got a fully briefed motion in front of me. If we were not going to have any post-hearing papers, I would take it home this weekend and probably start to draft something up. I can't do that. I have to wait for you to give me stuff. MR. REMES: April 6th is a week from now? THE COURT: It is. MR. REMES: Eight days. THE COURT: That's why Mr. Afran looked like he was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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294 C3trhedh Summation - Mr. Remes stricken when you said it was fine. MR. AFRAN: The reason I looked stricken is that is the night Passover begins. THE COURT: You're right about that. It's the first day of Passover. MR. AFRAN: That is going to be pretty tricky. THE COURT: Tell me how quickly you want it. It's your motion. How quickly can you guys do it? Whatever length of time you take is what they are going to get to reply. That's going to be it. I'm going to get a brief from you and a brief from them. MR. AFRAN: Your Honor, we would say April 10th. That allows preparation but avoids the two days of Passover. That would be a Tuesday, I think. THE COURT: That is how many days from now, Joe, not counting today? THE CLERK: 11. THE COURT: 11 days. Now, you folks have the added burden. You guys have a bunch of clients, and I'm sure your clients will want to read this very closely. You have one very large client who will want to read this very closely as well. Can you get it done in 11 days? MR. TORRANCE: First of all, your Honor, I count it as 12. THE COURT: Counting today. But we don't really want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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295 C3trhedh Summation - Mr. Remes to count today. MR. TORRANCE: No, starting counting tomorrow. Either way, day 11 falls on a weekend, day 12 falls on Sunday. It would really put us to Monday anyway, the 23rd. THE COURT: You each get 13 days, how is that? MR. TORRANCE: Given, your Honor, as you said, the size of our client, can we have until the end of that week, the 27th? THE COURT: How many days is that from now until the 27th, Joe? THE CLERK: 29. THE COURT: 29 days from now until then. How many days is that split in half? 14 days. You get 14 days as opposed to the 10 or 11. What is 14 days? THE CLERK: The 13th. THE COURT: The plaintiffs' papers are due on the 13th. The government's papers would be due, shall we say the 29th? 27th. Is that a Friday? THE CLERK: Yes. MR. TORRANCE: Yes, your Honor. THE COURT: If you run into problems, why don't you confer about it and try to work it out in terms of timing. I would really like to get them then so we can get this done fairly quickly. Is there any other housekeeping? I need to state for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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296 C3trhedh Summation - Mr. Remes the record what I understand has been offered up today. Our record in this matter includes a variety of things which are on ECF, but that is not necessarily coextensive. There is a lot of argumentation in this. In terms of factual things, let's talk about what we actually have. We have Court Exhibit number 1, the email archive of Occupy Wall Street movement, etc. Court Exhibit 2, Radical Islam: Global Influence in Domestic Affairs. Court Exhibit 3, a compilation of Articles authored by Ms. O'Brien. Court Exhibit 4 are the tweets which are also included in the papers by the plaintiffs. They are the Provide Security tweets. Court Exhibit number 5 is the Homeland Security memo with attachment which was admitted into evidence. Court Exhibit number 6 is Mr. Ryan's bio. Court Exhibit number 7 is something else about Mr. Ryan. It says "Brigadier General Packett of the Cyber," and then the court exhibit is on top of that. MR. AFRAN: They are both bios. THE COURT: Those are the court exhibits. In addition, we have pages 65 through 75 of the O'Brien deposition. THE CLERK: There are two more court exhibits, 8 and 9. THE COURT: Court Exhibit number 8 is the NDAA. Hold on. I have those separately. I don't think I had those as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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297 C3trhedh Summation - Mr. Remes court exhibits. I think I only had 1 through 7. Then I had Plaintiff's Exhibit 1, public law of the AUMF. I had Plaintiff's Exhibit 2, 1021, the statute. Plaintiff's Exhibit 3, the March 13th one-pager. Then I had Government Exhibit Q, which is the WikiLeaks, the global intelligence files actually. It is an advertisement. And Government Exhibit U, which is the series of emails. Then Government Exhibit B, which is Truth Dig, which was admitted into evidence. Then we had the full transcript of Ms. Wargalla's deposition and 10 pages from Ms. O'Brien's, 65 to 75. Am I missing something? THE CLERK: I think it may have been during Mr. Hedges' examination. Anything labeled Court Exhibit 8 and 9? MR. AFRAN: We will not leave before looking at every piece of paper. THE COURT: Do the defendants know whether or not there is a court exhibit marked for identification as 8 and 9? MR. TORRANCE: I recall there being an 8 and 9, but I don't recall what it was. THE COURT: Hold on. Number 9 we have the terrorist groups chapter 6. We need number 8. MR. MAYER: 8, I believe, was the provisions of the NDAA, but I think those were previously admitted or offered by Mr. Remes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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298 Summation - Mr. Remes THE COURT: So we are going to strike Court Exhibit number 8. We can take judicial notice of the NDAA provisions, and we have them at least several times. Is there anything other than that which we should do today? We have the dates for the briefing. We will put out an order so that that is clear on the docket. Thank you very much. We are adjourned. (Adjourned) C3trhedh
SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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INDEX OF EXAMINATION Examination of: ALEXA O'BRIEN Direct By Mr. Afran . Cross By Mr. Harwood Redirect By Mr. Afran KAI WARGALLA Direct By Mr. Afran . Cross By Mr. Harwood Redirect By Mr. Afran CHRISTOPHER HEDGES Direct By Mr. Mayer . Cross By Mr. Torrance Redirect By Mr. Afran Page . . . . . . . . . . .38 . . . . . . . . . . .84 . . . . . . . . . . 105 . . . . . . . . . . 115 . . . . . . . . . . 133 . . . . . . . . . . 143 . . . . . . . . . . 156 . . . . . . . . . . 193 . . . . . . . . . . 206
299
GOVERNMENT EXHIBITS Exhibit No. Received B . . . . . . . . . . . . . . . . . . . . . 194 COURT EXHIBITS Exhibit No. Received 5 . . . . . . . . . . . . . . . . . . . . . 111
SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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