they have put forward specific evidence of actual and threatened irreparable harm;
the balance of the equities and the public interest favors issuance of preliminary relief (particularly, but not only, in light of the fact that the Government’s entire position is premised on the assertion that §1021 does nothing new — that it simply reaffirms the AUMF; in which case, preliminarily enjoining enforcement should not remove any enforcement tools from those the Government currently assumes are within its arsenal).
They asserted that Section 1021 violates free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the Constitution of the United States.
|Congress shall make no law...|
Rather, the Signing Statement simply assures the public that the Obama ‘Administration will not authorize the indefinite military detention without trial of American citizens’ and ‘will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.’”
Thus, the question only goes to the constitutionality of the detention authorized by § 1021— not the type of conduct that may fall within § 1021.
Court concerned with balancing hardships
“There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.…
This Court credited “the chilling impact on First Amendment rights as reasonable —and real” and preliminarily enjoined enforcement of §1021.”
|United States District Court |
Southern District of New York
Judge Katherine Forrest
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