[T]he government cannot be expected to make assurances regarding individuals who file a suit in a context such as this, based solely upon their allegations and without knowledge of other facts that might be relevant to determining whether the individuals fall within the scope of the detention authority affirmed by section 1021.
. . . .
In the context of this case, it is particularly inappropriate to shift the burden to the government to disprove a plaintiff ’s speculative fear of future harm. To require the government to evaluate and declare whether or not a statute affirming the authorization of the use of force—here, in the form of detention—during an armed conflict would apply to specific individuals for specific conduct would place the government in an untenable position: the government would be inundated with copycat suits and be forced to give what would be advisory opinions to countless individuals regardless of whether they have shown a reasonable fear of enforcement. Tr. 268-69. The government cannot be required to define the boundaries of its authority by giving ex ante assurances to individuals in this manner, especially to individuals who lack a sufficient “personal stake in the outcome of the controversy . . . to justify exercise of the court’s remedial powers on [their] behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
This evening, the government moved to reconsider Judge Forrest’s order preliminarily enjoining the government from enforcing a federal law authorizing the government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” As summarized in a prior post, Judge Forrest’s ruling was heavily influenced by the fact that the government would not agree at the injunction hearing that the conduct of the plaintiffs, a group of journalists and civic activists, would fall outside the law.
The government’s motion’s first explains that, as a general matter, the conduct the plaintiffs described in their affidavits would not subject them to detention:
To eliminate any doubt, the government wants to be as clear as possible . . . . As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy.
But the government states that it should not be required to give more specific assurances than that: