The Second Circuit yesterday reversed Judge Forrest’s 2012 decision to permanently enjoin enforcement of the portion of the National Defense Authorization Act that permitted the federal government to detain persons, including U.S. citizens, who “substantial[ly] support” Al-Qaeda, the Taliban or their “associated forces.” As we have reported in the past, Judge Forrest found that the law violated both the First Amendment and the Due Process Clause of the Fifth Amendment. In addition, Judge Forrest specifically rejected the government’s argument that the plaintiffs here lacked standing. The Second Circuit disagreed. In its opinion, by Judge Kaplan sitting by designation, the court ruled that the plaintiffs lacked standing, and thus the court would not consider their constitutional arguments.
We conclude that plaintiffs lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction. The American citizen plaintiffs lack standing because Section 1021 says nothing at all about the President’s authority to detain American citizens. And while Section 1021 does have a real bearing on those who are neither citizens nor lawful resident aliens and who are apprehended abroad, the non-citizen plaintiffs also have failed to establish standing because they have not shown a sufficient threat that the government will detain them under Section 1021. Accordingly, we do not address the merits of plaintiffs’ constitutional claims.