In response to this post, JUDGE’S RULING BLOCKS INDEFINITE MILITARY DETENTION, I got this comment from Greg L. What Greg L believes is that the case will be thrown out on appeal. He thinks that the plaintiffs lacks the legal standing required to justify remedial action by a Federal Court. Is Greg L right? That is the subject of this post.

What is “standing”? Here is how FindLaw defines the term.

standing adj
: continuing in existence, use, or effect indefinitely [a order]
n 1 : the status of being qualified to assert or enforce legal rights or duties in a judicial forum because one has a sufficient and protectable interest in the outcome of a justiciable controversy and usually has suffered or is threatened with actual injury [only one who already has can argue the public interest in support of his claim “Hawaii’s Thousand Friends v. Anderson, 768 P.2d 1293 (1989)”]
2 : a principle requiring that a party have standing in order to justify the exercise of the court’s remedial powers

Consider this excerpt from the definition at Cornell University Law School website.

At the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.

At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have “standing” to challenge it. (from here)

Why are the terms “case” and “controversy” relevant?

The provisions of the U.S. Constitution setting out the powers of the Federal judiciary, define those powers in using two different but related words “cases” and “controversies”. See U.S Constitution, Article III, section 2. In framing judicial authority these words also represent limits. The Federal Courts do not, under Article III, have the power to resolve legal questions that do not arise out of an actual dispute between real parties. (from here)

Therefore, before a Federal Court will hear any suit (particularly against the government), the plaintiff must define a controversy and show they have a stake in the outcome.

Thus, the question arises. In the case that is the subject of JUDGE’S RULING BLOCKS INDEFINITE MILITARY DETENTION, what was the controversy, and what was the plaintiffs stake in the outcome? The case relates to the National Defense Authorization Act for Fiscal Year 2012. Here is Wikipedia’s description of the controversy.

The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled “Counter-Terrorism.” In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress “affirms” this authority and makes specific provisions as to the exercise of that authority. The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President’s authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces. (from here)

As a result of the provision for indefinite military detention, some folks filed a lawsuit.

Weeks after Obama signed the law, Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against its so-called “Homeland Battlefield” provisions. Several prominent activists, scholars and politicians subsequently joined the suit, including Pentagon Papers whistle-blower Daniel Ellsberg; Massachusetts Institute of Technology professor Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Kai Wargalla, an organizer from Occupy London; and Alexa O’Brien, an organizer for the New York-based activist group U.S. Day of Rage. (from here)

Do these folks have legal standing? The government said no. Here is an excerpt from the judge’s decision (Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12).

The Government opposes plaintiffs’ request for preliminary injunctive relief on three bases: first, that plaintiffs lack standing; second, that even if they have standing, they have failed to demonstrate an imminent threat requiring preliminary relief; and finally, through a series of arguments that counter plaintiffs’ substantive constitutional challenges, that Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authority conferred by the 2001 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the “AUMF”), passed in the wake of September 11, 2001.

In essence, the Government argues that as an “affirmation” of the AUMF, § 1021 of the NDAA does nothing new; and therefore, since the type of activities in which plaintiffs are engaged were not subject to legal action under the AUMF, there is no reasonable basis for plaintiffs to assert that § 1021 could suddenly subject them to governmental action now. (from here)

The judge rejected the government’s argument. That rejection began with the assertion that NDAA is nothing new. The judge expressed a particular concern.

Even if, however, § 1021 does convey some authority not provided under the AUMF, the equities nonetheless tip strongly in favor of enjoining its enforcement. The Government was given a number of opportunities at the hearing and in its briefs to state unambiguously that the type of expressive and associational activities engaged in by plaintiffs–or others–are not within § 1021. It did not. This Court therefore must credit the chilling impact on First Amendment rights as reasonable–and real. (from here)

Here is an example from the judge’s decision.

For instance, Hedges has testified that he is currently concerned about associating with certain individuals and in fact has now removed himself from certain situations in the course of his professional activities because of that concern. In addition, given his prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban, as well as others that are denominated terrorist organizations by the U.S. State Department (e.g., associating with these individuals in these groups as part of his investigative work, reporting on the groups in the press), he has a realistic fear that those activities will subject him to detention under § 1021. That fear cannot be said to be ill-founded when, at the injunction hearing itself, the Government was unwilling to commit that such conduct does not fall within § 1021’s ambit. (from here)

Anyway, since the government’s main argument is that the plaintiffs lack standing, much of the judge’s decision revolves around that subject. Hence, if the case is thrown out on appeal, in all likelihood the appeals court will have decided the plaintiffs lack standing, but I hope that is not the case. In a case like this, I do not think the court should make it inordinately difficult to establish standing.

Consider the opportunities for abuse provided by indefinite military detention. Because the Founders abhorred the idea, Article 1, Section 9, Clause 2 of the Constitution states the following.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (from here)

Are we experiencing a Rebellion or an Invasion? No, but our government still proposes to detain Americans without trial, effectively suspending the 5th Amendment. Undoubtedly, the government would have preferred that the first test of this law had been in its use against legitimate enemies. That would have given government attorneys the opportunity to use the fear and disgust we feel toward those enemies as justification, enabling the establishment of a precedent. Once established, that precedent would have become ever more difficult to overturn. Thus, we should be thankful we can test the constitutionality of this law in court before our government attempts to apply it.


  1. An interesting discussion, but you are relying almost entirely on the judge’s opinion as to whether the plaintiff successfully meets the tests of injury, causation and redressability. I contend plaintiff hasn’t met the injury test, and my basis for that belief extends quite a bit father than this one judge’s opinion.

    Specifically, in order to demonstrate injury a plaintiff has to meet a pretty high burden, one which “fear” won’t satisfy. From Frothingham v. Mellon (262 U.S. 447)

    “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. The question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act…. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”

    In addition, that injury must be supported by evidence, and cannot be simply alleged. From Lujan vs. Defenders of Wildlife:

    “the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, see id. at 756; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); [n1] and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,'” Whitmore, supra, 495 U.S. at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).”

    Plaintiff in this case claims a hypothetical fear that IF they have the opportunity to interview terrorists, THEN the government WILL incarcerate them. This is complete conjecture. First, we have no evidence that the plaintiff has any immediate plans to interview terrorists, which would fail the test in Lujan. Second, plaintiff’s only “evidence” that the government will incarcerate him is the government’s failure to say that it will not incarcerate him, which is not evidence of what the plaintiff alleges. There is no imminent injury here, and there isn’t even any degree of certainty that an injury to this plaintiff will ever occur. All the plaintiff has alleged is that he is fearful. Well, I’m fearful that the government won’t provide me with Social Security Benefits because the program will likely be bankrupt by the time I’m of age to collect them, but I don’t have standing to file a lawsuit about it.

    It should be interesting to see how this case progresses and what the ultimate result will be. If I fail to feather my cap with being on the right side of the law when I don’t agree with Bob Marshall I won’t be too upset, as diving into the specifics of this fundamental tenet of law for the purpose of arguing this point has been worthwhile by itself. Still, if I do, I’ll be part of an exceedingly small club.

    1. GregL – I cited only the case at hand because the amount of case law is so extensive I would not know where to start. I will also admit I cannot say how this case will be resolved. Nonetheless, I think that when people are intimidated into altering their behavior they have suffered real harm.

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