Hedges v Obama Part I: Comparing the American and Canadian Approaches to Standing

In the years following the September 11, 2001 terrorist attacks, both Canada and the United States have passed sweeping legislative changes in the name of national security. In Canada, such changes appeared in the form of the Anti Terrorism Act, which amended the Criminal Code to include a definition of “terrorist activity” and broadened the investigative powers of the police. While the changes to Canadian legislation have been significant, the broadening of police powers in the United States is far more concerning. It is difficult to deny that the expanding power of the police to conduct surveillance of its own citizens has significantly altered the landscape of American civil liberties.

The National Defense Authorization Act For Fiscal Year 2012 (NDAA) is one of the many examples of this expanding discretionary power. The NDAA is an annual piece of legislation that authorizes the government’s military expenditures for the year. Beyond government spending, it also includes a number of controversial provisions relating to the powers of the military, specifically the power to detain U.S. citizens indefinitely. The problem with legislation such as this is that while it poses a significant threat to civil liberties, its provisions often go unchallenged until citizens are actually detained.

However, the plaintiffs in Hedges v Obama, 12 Civ. 331 (2012), decided that the consequences of one provision in the NDAA is so severe and closely connected to their own work that it mandated an immediate challenge. The impugned provision in this case is s 1021:

(a) IN GENERAL.– Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS. — A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

In a recent ruling, Justice Forrest of the Southern District Court of New York issued a forceful decision that found the provision to be “facially unconstitutional” because “it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.” I discovered this ambitious judgement after reading an article by Christoper Hedges, an American journalist and the plaintiff at the forefront of this legal battle. While I was drawn to this case for its discussion of freedom of speech, after my most recent post about the test for public interest standing in Canada, I also took interest in this case’s discussion of a similar issue. As a result, I decided to split my commentary on this case into two parts. This week’s post will examine the background of the case and the issue of standing, and my subsequent post will address the constitutional issues that were raised by the plaintiffs.

The Plaintiffs’ Position

In addition to Hedges, the plaintiffs in this case are a number of well-known writers, activists and journalists including Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alexa O’Brien, Kai Wargalla, and the Honourable Brigitta Jonsdottir, a Member of Parliament for the Icelandic Government. The plaintiffs are united by the fact that their “work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment.” They initiated this legal challenge because they feared that their work could potentially “subject them to indefinite military detention pursuant to s 1021(b)(2).”

In a preliminary hearing, plaintiffs Hedges, O’Brien, Wargalla and Jonsdottir testified about how their own work has been affected by their “fear of detention pursuant to s 1021(b)(2).” Each of these accounts are worth reading, but I will deal with one as an example.

Chris Hedges is foreign correspondent who spent many years as a staff writer for the New York Times, where he was awarded the Pulitzer Prize for his work on global terrorism. His continuing work on this subject has led him to investigate several organizations, including the al-Qaeda, that are classified by the State Department as “terrorists.” In her decision, Justice Forrest recounted that Hedges “testified that his oral and written speech as well as his associational activities have been chilled by s 1021: he does not understand what conduct is covered by s 1021(b)(2), but does understand that the penalty of running afoul of it could be indefinite military detention.”

The Government’s Position

At the preliminary Hearing, the Government was repeatedly asked whether the plaintiffs’ activity would subject them to detention under the impugned provision. Each time, the Government responded that “it was not prepared to address that question.” However, several weeks later it changed its position to state that the plaintiffs’ conduct “is not, as a matter of law, within the scope of the detention authority affirmed by s 1021.” It further qualified this statement by stating that the “plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.”

The Government did not provide any evidence in support of this qualification. Justice Forrest emphasized that the Government could have provided evidence to show that “no one has in fact been detained for any activities protected by the first amendment”; there exist safeguards “to ensure consistent and non-arbitrary enforcement”; factual scenarios to demonstrate “law enforcement’s need for the breadth of s 1021”; or testimonial evidence regarding “how law enforcement has actually interpreted the words ‘substantially support’ ‘directly support’ or ‘associated forces.’” However, without evidence to any of these effects, she concluded that the Government’s new position “cannot rebut the standing that the plaintiffs established at the March hearing.”

The American Test for Standing

Before proceeding to the constitutional arguments, Justice Forrest set out the test for standing that had previously been articulated by the United States Supreme Court: (1) each plaintiff must demonstrate “actual” injury; (2) the plaintiff must demonstrate causation between the alleged conduct and the injury; (3) there must be a “likely” rather than “speculative” opportunity for the injury to “be redressed by a favourable decision.”

In light of the Supreme Court of Canada’s recent decision in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, this case presents an opportunity to engage in a comparison of the tests for standing set out by each court. While the American test does not deal specifically with public interest standing, the nature of the rights at stake in Hedges are similar to those in DTES, where the plaintiffs sought to challenge the Criminal Code provisions related to prostitution on the basis that they infringed their rights to freedom of expression, among others.

To refresh briefly, the SCC in DTES adopted a “purposive and flexible approach” to the three part test that had previously been set out for public interest standing. The factors in that test include (1) whether the case raises a serious justiciable issue; (2) whether the party bringing the action has a real stake or a genuine interest in its outcome and; (3) whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to Court.

Comparing the American & Canadian Approaches to Standing

a) Actual Injury

In regards to injury, Justice Forrest found that the evidence demonstrates that “an actual chilling had occurred,” which is “precisely the type of chilling that the Supreme Court has found as a basis for standing—including to bring a facial challenge.” She also concluded that the plaintiffs had demonstrated a sufficient injury for the Fifth Amendment challenge because none of them could adequately understand whether their activities would fall within the scope of the provision.

The American requirement of “actual injury” corresponds somewhat to the SCC’s requirement of a serious justiciable issue. In DTES, the SCC found that the constitutionality of the prostitution provisions in the Criminal Code constituted a serious justiciable issue. The Attorney General had opposed standing on the basis that the lead plaintiff, Ms. Kiselbach, had not been criminally charged under one of the impugned provisions. However, after considering the vulnerability of sex workers who have been criminally charged, the Court concluded that the plaintiffs should not be barred from standing for this reason.

Similarly, in Hedges, the Government argued that the plaintiffs should not be entitled to standing for a “pre-enforcement challenge” because none of them had ever been detained as the result of the impugned provision. However, by giving the definition of injury a broad interpretation, Justice Forrest found that it fell short of requiring actual detainment. Instead, the evidence of a “chilling effect” on the plaintiffs’ first amendment rights was sufficient to satisfy the threshold for injury.

In approaching the issue of injury, Justice Forrest also engaged in her own version of a “purposeful and flexible approach” by contextualizing the seriousness of the rights at stake. She found it especially concerning that the impugned provision could be read as including the activities engaged in by the plaintiffs, such as “writing about, or speaking about or to al-Qaeda, the Taliban or other organizations which have committed terrorist acts against the United States.” In light of this reading, she concluded that the “plaintiffs need not wait until they have been detained and imprisoned to bring a challenge—the penalty is simply too severe to have to wait.”

b) Causation

The second requirement of causation was easily satisfied in this case by the evidence of the chilling effect and the fact that the plaintiffs’ demonstrated “an actual fear of detention due to the vagueness of s 1021(b)(2)’s scope.” The causation requirement is unique to the American test. In DTES, Ms. Kiselbach was not required to show that the Criminal Code provisions had caused her to experience a specific injury.  The plaintiffs in that case were granted standing to represent a specific class of individuals who had been or who were potentially subjected to harm as a result of the Criminal Code provisions.  The divergence between the two tests is what allows for this category of public interest standing, which is unique to Canada.

c) Redressibility

In regards to redressibility, the third factor of the American test, the Government argued that a constitutional challenge would not provide adequate redress for the plaintiffs since the 2001 Authorization for Use of Military Force provides “precisely the same detention authority.” Justice Forrest rejected this assertion after finding that s 1021(b)(2) “provides for a much broader scope of military detention.” She concluded that the third factor was satisfied because “enjoining s 1021(b)(2), a new statute with uniquely broad scope, necessarily would redress plaintiffs’ injuries.”

The redressability factor is somewhat similar to the “reasonable and effective means” factor in the Canadian test. Both factors aim to ensure that there is a purpose to the litigation beyond merely allowing the plaintiffs to air their grievances in court. At the heart of redressibility is the idea that a right cannot exist without a remedy, which is an old principle first articulated in the 1803 case of Marbury v Madison.  Similarly, the Canadian requirement of a “reasonable and effective means” is premised on the idea that there is no point in having a party pursue litigation if another party is better equipped to receive a remedy. In DTES, it was easy for the plaintiffs to argue that the remedy sought—a declaration that the impugned provisions of the Criminal Code are unconstitutional—would provide a satisfactory remedy for not only the immediate plaintiffs, but also the entire class of sex workers whom the plaintiffs represented.

While in the American test the redressability factor is restricted to the immediate plaintiffs, the impact of Hedges will permeate far beyond the immediate rights of the plaintiffs themselves. Rather, by successfully challenging the constitutionality of this provision, the plaintiffs have won a huge victory for civil liberty advocates across the country.

In my next blog post I will further discuss the effects of this victory.