As we reported last month, the government moved Judge Forrest to reconsider her order preliminarily enjoining enforcement of a federal law authorizing the government to detain U.S. citizens who provide “substantial support” for Al-Qaeda, the Taliban or their “associated forces.” In a footnote to its motion for reconsideration, the government stated its view as to the scope of the injunction — it applied only to the specific plaintiffs in the case, and did not enjoin enforcement of the law generally. At a telephonic hearing on June 1, Judge Forrest indicated that she did not agree with the government’s reading of the order, and today she issued a written order so as to “leave no doubt as to that issue.” Contrary to the government’s contention, Judge Forrest held that, because the plaintiffs’ challenge was to a law that was facially vague and violated their constitutional rights, the government is enjoined from enforcing the law against anyone.

Judge Forrest explained:

The May 16 Order found Section 1021(b) (2) constitutionally infirm on two bases: the First Amendment and the Due Process Clause of the Fifth Amendment. As set forth below, the law has long provided that this type of finding has provided relief to both the parties pursuing the challenge, as well as third parties not before the Court. This Court’s preliminary injunction was consistent with that precedent. Put more bluntly, the May 16 Order enjoined enforcement of Section 1021(b) (2) against anyone until further action by this, or a higher, court–or by Congress.


Here, plaintiffs argue that they and others could be subject to indefinite military detention under Section 1021(b) (2); accordingly, the public interest in ensuring that ordinary citizens understand the scope of such a statute justifies its breadth.

In sum, although it is certainly true as a general proposition that “injunctive relief should be narrowly tailored to fit specific legal violations,” Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994) (Lanham Act claim), and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (recoupment of Social Security benefits), the injunction in this action is intentionally expansive because “persons whose expression is constitutionally protected [and not party to the instant litigation] may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.” See New York v. Ferber, 458 U.S. 747, 768 (1982). This order should eliminate any doubt as to the May 16 Order’s scope.