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The Court then asked: What does "directly supported' mean?
Government: We have not said anything about that in our brief.
Court: What do you think it means?
Government: . . . Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, "substantial support' that I have not thought through exactly and we have not come to a position on what "direct support' and what that means.
The Court then asked: "Assume you were just an American citizen and you're reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of -1021, and you read the phrase "directly supported'. What does that mean to you?"
Government: Again it has to be taken in the context of armed conflict informed by the laws of war.
Court: That's fine. Tell me what that means?
The Government then returned to the Laws of War and finally stated, "I cannot offer a specific example. I don't have a specific example."
Later Judge Forrester addressed the specific activities in which the plaintiffs had engaged and wished to continue to engage as part of their livelihoods, including gathering information from sources. The question of the meaning of "associated forces" was central.
"Court: These people have real things they are saying. These are not speculative or hypotheticals. These are people who have actually written articles that we have here. [The Court then held up the articles written by O'Brien and marked as Court Ex. 3.] We are trying to figure out, are these articles going to subject Ms. O'Brien to risk under - 1021? . . . .
Government: Again, I'm not authorized to make specific representations regarding specific people. I'm saying that "associated forces' cannot extend to groups that are not armed groups at all.
Court: So we don't know about the articles, it depends?
Government: Maybe they are an armed group.
With respect to Jonsdottir the Court asked:
I'm asking you as a representative of the United States Government here today, can Ms. Jonsdottir travel to the United States without any concern that she will be captured by her current activities under - 1021?
Government: Again, I can't make representations on specifics. I don't know what she has been up to. I don't know what is going on there.
