At the August hearing, the Government stated that Jonsdottir’s past activities as specifically set forth in her declaration would not subject her to detention under § 1021; however, the Government would not make representations regarding anything else that she had done or with respect to her future First Amendment activities. See, e.g., Tr. II at 142. This Court finds that Jonsdottir has a reasonable fear of detention pursuant to § 1021(b)(2). E. The GovernmentThe Government did not present any witnesses or seek to admit any documents in connection with the March hearing. The Government did depose--and then cross-examine at the March hearing--those plaintiffs who testified live. The Court does not find that this cross-examination undermined any of the witness’ essential points. Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 28 of 112Case: 12-3644 Document: 12-2 Page: 28 09/17/2012 721184 112
29At the March hearing, the Government was unable to represent that the specific activities in which plaintiffs had engaged would not subject them to indefinite military detention under § 1021. See, e.g.,Tr. I 223, 226, 229-30. The Government changed its position several weeks later in a motion for reconsideration of the May 16 Opinion. In its memorandum submitted in support of that motion (which was subsequently denied as moot in light of the parties’ agreement to proceed directly to a hearing on a permanent injunction), the Government changed its position entirely--from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Recons. Mem. at 2.) It then set further qualified parameters of its position: 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. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021. Case 1:12-cv-00331-KBF Document 61 Filed 09/12/12 Page 29 of 112Case: 12-3644 Document: 12-2 Page: 29 09/17/2012 721184 112
30(Id.at 4 (footnote omitted).) In its pre-trial memorandum, the Government reiterated that position. (SeeGov’t Trial Mem. at 20.) The Government did not put forth a witness to explain the difference between its first, March position and its second (set forth in its May reconsideration brief and reiterated in its June pre-trial memorandum). Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” SeeU.S. v. Stevens, 130 S. Ct. 1577, 1591 (2010).