Reply Brief Filed in Hedges

In response, plaintiffs argue that the NDAA represented a dramatic change in the scope of the government’s detention authority that instilled in them a newfound fear of military detention. That argument reflects a profound misunderstanding of the 2001 Authorization for Use of Military Force (AUMF), which has provided for over a decade the detention authority they claim to now fear. Their argument also ignores the NDAA provisions specifying that it does not affect existing law relating to U.S. citizens or individuals in the United States. If anything, the detention authority provided in the NDAA is narrower and more refined than the authority the executive branch asserted earlier in the conflict – a period when plaintiffs do not allege that they feared being detained. Second, plaintiffs misread “substantial support,” and ignore its law of war framework, in claiming it could reasonably be interpreted, as used in the NDAA, to apply to their independent journalism and advocacy activities. It cannot. Instead, key limitations on the term that derive from the law of war show that it does not apply to their independent journalism and advocacy activities, and the government’s representation confirms that it is not applicable to them. On the merits, while plaintiffs rely on First Amendment cases in support of their standing argument, plaintiffs do not defend the district court’s First Amendment holding. Instead, they now argue only that Section 1021(b)(2) is unconstitutionally vague under the Due Process Clause. But military force authorizations are necessarily written in broad terms, and this one is narrower and more specific than every prior force authorization, fully comporting with due process.