Amicus Curiae Brief — Rasul v. Bush

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Supreme Court of the Gnited States |

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SHAFIQ RASUL, et al.,

Petitioners,

v.

GEORGE W. BUSH

_ PRESIDENT OF THE UNITED STATES, et al.,

Respondents.

>

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al.,

Petitioners,

V.

UNITED STATES OF AMERICA, et al.,

Respondents.

+

On Writ Of Certiorari To The United States Court

Of Appeals For The District Of Columbia Circuit

+

BRIEF AMICI CURIAE OF THE HONORABLE

BILL OWENS, GOVERNOR OF THE STATE OF

COLORADO, AND THE HONORABLE RICK PERRY,

GOVERNOR OF THE STATE OF TEXAS,

IN SUPPORT OF RESPONDENT UNITED STATES

¢

CYNTHIA HONSSINGER RICHARD A. WESTFALL

Chief Counsel Counsel of Record

ROBERT A. MCGUIRE ALLAN L. HALE

OFFICE OF GOVERNOR HALE HACKSTAFF FRIESEN, LLP

BILL OWENS 1430 Wynkoop Street

136 State Capitol Suite 300

Denver, Colorado 80218 Denver, Colorado 80202

Telephone: (303) 866-6380 Telephone: (720) 904-6000

DAVID M. MEDINA

General Counsel

OFFICE OF GOVERNOR RICK PERRY

P.O. Box 12428

Austin, Texas 78711

Telephone: (512) 463-1788

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TABLE OF CONTENTS

Page

GED connccicneemesessessemsensacieensntenmnien i

pe PF De Flies 6 yy | I ee iii

INTEREST OF THE AMICI CURIAE...............ccccceee00 1

SUMMARY OF ARGUMENT ...................cccsseesssssssesseees 2

EEE eerie 2

I. THE WAR ON TERROR HAS TAXED GOV-

II.

ERNORS’ ABILITY TO RESPOND TO DO-

MESTIC EMERGENCIES BY PROLONGING

THE DEPLOYMENT OF .STATE NATIONAL

ERED SAIC DED ccccncesesseseserevoresnesensncssesseere

PERMITTING DETAINEES TO LITIGATE

THEIR DETENTION STATUS IN UNITED

STATES COURTS IMPOSES RISKS TO DO-

MESTIC SECURITY, WHICH GOVERNORS

ARE RESPONSIBLE FOR MAINTAINING .....

A. If the detainees are granted access to

United States courts, many of them will

invariably end up in physical custody on

ee i ctinscnisienncccecnietenninienmencenaenis

B. Once on United States soil, the prisoners

will themselves pose a risk to domestic se-

1. Risk to communities of escape...............

2. Risk to domestic security from associ-

3. Risk to national security from undesir-

able communication ..................cccceeeeeees

5

‘3

TABLE OF CONTENTS - Continued

Page

C. The physical presence of detainees on

United States soil would create both incen-

tives and opportunities for violent action by

those supportive of the prisoners or op-

posed to the United States government....... 9

1. Foreign terrorists may retain the abil-

ity to strike inside the United States... 9

2. Court proceedings involving Guan-

tanamo Bay detainees will present tar-

gets of opportunity with high symbolic

and utility value for enemy terrorist

cells in the United States................:0000: 10

D. Even if potential threats do not ultimately

materialize, extreme security measures

entailing large-scale disruption of daily

life in urban centers will likely be required

in order to adequately safeguard any do-

mestic court proceedings involving Peti-

tioners or other Guantanamo Bay

STII oh ccectsisnsuentepdenenemnsesenenevsneusscessessvesase 11

1. Disruption from transportation and

confinement MEASUTES.............0cceeeereees 12

2. Disruption from measures necessary to

secure the proceedingS ...............s++0es000 15

3. Potential for multiple proceedings in

different locations...............:::seeeeeeeeeees 17

TTT Te 18

TABLE OF AUTHORITIES

CASES

Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.

2003), cert. granted, 124 S. Ct. 534 (2003)...............

Coalition of Clergy, Lawyers & Law Professors v.

Bush, 310 F.3d 1153 (9th Cir. 2002) ............cccccccceeees

Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003)...........

Rasul v. Bush, 321 F.3d 1134 (D.C. Cir 2003), cert.

granted, 124 S. Ct. 534 (2008)..........cceccessseesseeeseeenees

Sterling v. Constantin, 287 U.S. 378 (1932).........00.0.--

United States v. McVeigh & Nichols, Criminal

Action No. 96-CR-68-M (D. Colo. 1996) ...................

United States v. Moussaoui, 282 F. Supp. 2d 480

EE Se a

OTHER AUTHORITIES

BBC News, Kenyan Police Find Mombasa Missiles

(Dec. 6, 2002) <http://news.bbc.co.uk/2/hi/africa/

BP ccsrecsssessncsssnscenssssesosssnecsesessscncovsnssnseseses

Cam Simpson, Terrorists Push Plots From Jail,

CHICAGO TRIBUNE (Nov. 19, 2001) (visited Feb.

26, 2004) <http://www.chicagotribune.com/news/

chi-0111190247nov19.story?coll=chi-news-hed>......

Donald Rumsfeld, Secretary Rumsfeld Remarks to

Greater Miami Chamber of Commerce (Feb. 13,

2004) <http://www.defenselink.mil/transcripts/

2004/tr20040213-0445. html > ...........cccccecceeeeeeeeeeeees

iv

TABLE OF AUTHORITIES - Continued

Page

George W. Bush, President’s State of the Union

Address (Jan. 28, 2003) (visited Feb. 26, 2004)

<http://www.whitehouse.gov/news/releases/2003/

OR/BSSBSIBB- BO data>> 22cccccccccccscccccessscsessccssscccssscscssscesces 10

Neil MacFarquhar, A Top bin Laden Aide Threatens

New Attacks Against the U.S., N.Y. TIMES, Feb.

25, 2004 (visited Feb. 26, 2004) <http://www.

nytimes.com/2004/02/25/international/middleeast

EE) — ST 4

Robert Tanner, Governors Ask About Guard Use,

DENVER Post 4A (Feb. 23, 2004) .............ccccccecccceeeereeeeeees 4

Satinder Bindra, 5 Killed, 1 Wounded in Protests in

Southern Iraq: U.S. Military Fear Black Hawk

Downed By Enemy Fire, CNN (Jan. 10, 2004)

<http://www.cnn.com/2004/WORLD/meast/01/10/

sprj.nirq.main/index. html) ...............c:ssssseeeeeeeeeeeneees 13

Testimony of FBI Director Robert Mueller before

Senate Select Committee on Intelligence, Pro-

tecting National Security From a World of Threats:

Director Mueller Testifies on Emerging Threats and

the FBI's Response (Feb. 24, 2004) <http//www.

fbi.gov/page2/feb04/threats022404. htm> ...............::ceeeee 9

United States Department of State, Bureau of

International Information Programs, Press

Release, U.S. Believes Terrorists Still Pose Threat

to Civil Aviation (Nov. 5, 2003) <http-//usinfo.

state.gov/topical/pol/terror/texts/03110502.htm> ......... 13

1

INTEREST OF THE AMICI CURIAE'

Amici curiae are current governors of States of the

United States, who share or have shared responsibility for

assuring the safety and protection of the people of their

respective States. This Court has recognized that, “As the

State has no more important interest than the mainte-

nance of law and order, the power it confers upon its

Governor as Chief Executive and Commander in Chief of

its military forces to suppress insurrection and to preserve

the peace is of the highest consequence.” Sterling v.

Constantin, 287 U.S. 378, 399 (1932).

The names and offices of the amici curiae include:

The Honorable Bill Owens is Governor of the State of

Colorado. He has served as Governor of Colorado since 1998.

The Honorable Rick Perry is Governor of the State of

Texas. He has served as Governor of Texas since 2000.

Each of the amici curiae is persuaded that these cases

present issues of domestic security that are of grave

importance to the chief executives of the States of the

United States. Accordingly, pursuant to Supreme Court

Rule 37.4, amici curiae respectfully submit this brief in

support of the Respondents, including George W. Bush and

the United States of America.

+

* Pursuant to Rule 37.6, counsel for amici curiae states that no

counsel for any party authored this brief either in whole or in part and

no person, other than the amici curiae or their counsel, made any

monetary contribution to the preparation or submission of this brief.

Letters of consent to the filing of this brief have been lodged with the

Clerk of Court pursuant to Rule 37.3.

2

SUMMARY OF ARGUMENT

As public officials with responsibility for the domestic

security of their States, amici curiae believe that permit-

ting Petitioners access to United States courts would

detract from the ability of state chief executives to main-

tain law and order by imposing on the States and their

individual citizens a serious and unnecessary threat to

public safety. It is important to the chief executives of

States that captured foreign combatants not be permitted

to utilize the domestic courts of the United States either to

hamper the nation’s war effort through litigation or to

exacerbate the threat to domestic security of the States

that the detainees and their yet-to-be-subdued enemy

allies continue to pose.

e

ARGUMENT

The pertinent question before this Court in both Rasul

v. Bush, 321 F.3d 1134 (D.C. Cir 2003), cert. granted, 124

S. Ct. 534 (2003), and Al Odah v. United States, 321 F.3d

1134 (D.C. Cir. 2003), cert. granted, 124 S. Ct. 534 (2003),

is whether United States courts lack jurisdiction to con-

sider challenges to the legality of the detention of foreign

nationals captured abroad in connection with hostilities

and incarcerated at the Guantanamo Bay Naval Base,

Cuba.

As Respondents’ briefs comprehensively address the

constitutionality of the detention regime at the Guan-

tanamo Bay Naval Base, Cuba, this brief will focus on the

ramifications to the States of a decision permitting foreign

nationals captured abroad in connection with hostilities to

litigate their detention status in the United States courts

prior to the end of the conflict in which they were captured

3

and the subjugation of the terrorist organizations with

which they are allied.

I. THE WAR ON TERROR HAS TAXED GOVER-

NORS’ ABILITY TO RESPOND TO DOMESTIC

EMERGENCIES BY PROLONGING THE DE-

PLOYMENT OF STATE NATIONAL GUARD

ELEMENTS

States often rely on their Air and Army National

Guard units to help preserve domestic order in emergen-

cies such as floods, fires, earthquakes, hurricanes, and

riots. Since the war on terrorism began on September 11,

2001, state National Guard forces drawn from virtually

every State have been deployed outside the country to

serve in active military operations. National Guardsmen

have also undertaken new homeland security duties,

including guarding airports, stadiums, and other symbolic

structures against potential terrorist attack.

These new uses of National Guard resources have

reduced the number of Guardsmen available for governors

to use in responding to traditional state emergencies. More

than 300 Colorado Air and Army National Guardsmen are

currently deployed under federal control in Iraq, Afghani-

stan, Kuwait, and Qatar. An even greater number of

Colorado Guardsmen are mobilized for duty and serving in

the war on terrorism within the United States. In Colo-

rado, current deployments total nearly 25% of the Colo-

rado Guard’s assigned manpower,’ a level of mobilization

ha “Assigned” manpower indicates the actual number of individuals

available, as opposed to “authorized” manpower, which is the number of

individuals required in units for 100% effectiveness.

4

that necessarily degrades incident reaction times due to a

reduced pool of available volunteers. Other States face

even greater levels of deployment (some as high as 40% or

more) and accordingly suffer the greater attendant reduc-

tions in response capability that those higher deployment

levels entail. See Robert Tanner, Governors Ask About

Guard Use, Denver Post 4A (Feb. 23, 2004). Since the

National Guard Bureau, which oversees all reserve forces,

has reported to the governors of the States that deploy-

ments will ultimately be managed so that one-quarter of

each State’s units will be deployed for federal needs, id.,

the existing demands on the Army and Air National Guard

in Colorado and other States are unlikely to abate until

enough further progress has been made in the war against

America’s enemies to warrant a reduction in the federali-

zation of state National Guard elements.

To the extent that the military goals of inhibiting

threats to U.S. forces; disrupting enemy command rela-

tionships; and gathering intelligence are beneficial to the

war effort, allowing the enemy detainees held at the

Guantanamo Bay Naval Base to frustrate these objectives

through litigation in the courts of the United States will

contribute to an ongoing reduction in the availability of

National Guard resources for governors to use in respond-

ing to domestic emergencies.

5

II. PERMITTING DETAINEES TO LITIGATE

THEIR DETENTION STATUS IN UNITED

STATES COURTS IMPOSES RISKS TO DO-

MESTIC SECURITY, WHICH GOVERNORS

ARE RESPONSIBLE FOR MAINTAINING

A. If the detainees are granted access to

United States courts, many of them will

invariably end up in physical custody on

United States soil

Because courts issuing writs of habeas corpus may

compel the Department of Defense to bring prisoners

before them for hearings, access to United States courts

essentially means the Petitioners will in all likelihood

need to be brought to the United States. Once Petitioners

are granted access to United States courts, next friends of

similarly situated detainees will inevitably seek review of

other cases in the federal courts. In addition to these

cases, brought originally in the District of Columbia

Circuit, parties claiming to be next friends of the Guan-

tanamo Bay prisoners have also sought the adjudication of

some detainees’ status in at least one other circuit court.

See, e.g., Coalition of Clergy, Lawyers & Law Professors v.

Bush, 310 F.3d 1153 (9th Cir. 2002); Gherebi v. Bush, 352

F.3d 1278 (9th Cir. 2003). The prospect arises that Guan-

tanamo Bay detainees could end up before federal courts

in many jurisdictions around the country. Given the large

number of detainees currently being held at Guantanamo

Bay; the unique individual circumstances surrounding the

capture of many of them; and the likelihood in the face of

ongoing hostilities that further detentions could result in

increases in the detainee population, it is reasonable to

suppose that, once federal courts are held to have jurisdic-

tion over these cases, numerous States could be faced with

the necessity of hosting one or more proceedings, any or all

6

of which might be expected to require the physical pres-

ence of Guantanamo Bay detainees for an indeterminate

period of time within state borders.

B. Once on United States soil, the prisoners

will themselves pose a risk to domestic

security

1. Risk to communities of escape

The nature of the prisoners being held at Guan-

tanamo Bay Naval Base creates an inherent risk to do-

mestic security in the event of their escape. As Secretary of

Defense Donald Rumsfeld recently stated in a Department

of Defense News Briefing, “[The Guantanamo prisoners]

include not only rank and file soldiers who took up arms

against the coalition in Afghanistan, but they include

senior Al Qaeda and Taliban operatives, including some

who may have been linked to past and potential attacks

against the United States, and others who continue to

express commitment to kill Americans if released. Very

simply, the reason for their detention is that they’re

dangerous.” Donald Rumsfeld, Secretary Rumsfeld Re-

marks to Greater Miami Chamber of Commerce {{ 25-26

(Feb. 13, 2004) <http://www.defenselink.mil/transcripts/

2004/tr20040213-0445.html>.

The risk of a detainee’s escape, though small, is real.

Escapes from state maximum-security correctional facili-

ties occur commonly enough to justify the concern that one

or more detainees might similarly elude federal civilian or

military captors on United States soil. The risk of escape is

aggravated by the fact that detainees brought to the

United States for court proceedings will in all likelihood be

subject to frequent transportation between locations, and

— <<

7

transportation periods characteristically present the

greatest risk of escape. At the Guantanamo Bay facility,

the potential for an escapee to harm civilians is substan-

tially mitigated by the relative geographic isolation of the

base. Such would not be the case, however, if a detainee

were to escape on United States soil.

2. Risk to domestic security from associ-

ated persons

Proceedings examining the legality of a detainee’s

detention will inevitably require the presence of witnesses,

including other detainees or third parties, who may

themselves pose risks to domestic security for many of the

reasons outlined above. Since the government could be

subject to sanctions in any particular proceeding for failing

to produce such witnesses as are within its control, see

United States v. Moussaoui, 282 F. Supp. 2d 480 (E.D. Va.

2003), permitting Petitioners access to the United States

courts establishes a dynamic whereby the government’s

incentives in a potentially large number of cases will be

misaligned with the interests of both public safety and

national security.

3. Risk to national security from unde-

sirable communication

Once detainees have been granted access to United

States courts and proceedings have been initiated that

require their presence on United States soil, there is little

practical or desirable alternative to using the most highly

secure federal facilities available within a particular

jurisdiction to house them during the proceedings. Yet

federal maximum-security custodial facilities today house

8

criminal inmates such as Ramzi Yousef (in Florence,

Colorado), and Sheikh Omar Abdel Rahman (in Spring-

field, Missouri), among others, who have been convicted of

committing terrorist acts against the United States in

connection with Al Qaeda. One major national security

interest governing the circumstances of incarceration of

such individuals has been the goal of restricting poten-

tially dangerous communication by these individuals both

within and without prison,’ including communication with

their followers who may be represented among the Guan-

tanamo Bay detainee population. Housing Guantanamo

Bay detainees in the same federal facilities with these

iconic terrorist leaders and others of their ilk for the

duration of any legal proceedings risks the possibility of

interaction and communication between the two that could

ultimately damage United States national security.

* See Cam Simpson, Terrorists Push Plots From Jail, CHICAGO

TRIBUNE (Nov. 19, 2001) (visited Feb. 26, 2004) <http://www.chicago

tribune.com/news/chi-0111190247nov19.story?coll=chi-news-hed> (“El

Sayyid Nosair, an Egyptian immigrant and follower of Rahman, played

a key role in the 1990s bombing plots of New York landmarks, bridges

and tunnels. The schemes were hatched despite Nosair being locked up

at a New York City jail and a state prison, records show. At the time,

Nosair was imprisoned for the murder on Nov. 5, 1990, of Rabbi Meir

Kahane, a radical Zionist who promoted violence and the expulsion of

Arabs from Israel.”)

9

C. The physical presence of detainees on

United States soil would create both in-

centives and opportunities for violent ac-

tion by those supportive of the prisoners

or opposed to the United States govern-

ment

1. Foreign terrorists may retain the abil-

ity to strike inside the United States

The terrorist threat to the continental United States

has not been eliminated, despite the nation’s significant

military and intelligence successes since September 11,

2001. Only 8 days before this Court’s filing deadline for

amicus briefs in these cases, Al Qaeda threatened the

United States with further domestic attacks in a state-

ment issued by Ayman al-Zawahiri, its top lieutenant to

leader Osama bin Laden: “Bush, fortify your defenses and

intensify your security measures, ... because the Muslim

nation, which sent brigades to New York and Washington,

has decided to send you one brigade after another, carry-

ing death and seeking Paradise.” Neil MacFarquhar, A Top

bin Laden Aide Threatens New Attacks Against the U.S.,

N.Y. Times, Feb. 25, 2004 (visited Feb. 26, 2004) <http://

www.nytimes.com/2004/02/25/international/middleeast/25

ZAWA.htmI>.

The United States government takes such threats

seriously and has told the American people as recently as

February 24, 2004, that it believes Al Qaeda “sleeper cells”

continue to exist and operate within the United States.‘

* See Testimony of FBI Director Robert Mueller before Senate

Select Committee on Intelligence, Protecting National Security From a

World of Threats: Director Mueller Testifies on Emerging Threats and

(Continued on following page)

10

Substantiating this fear, the government in 2003 obtained

convictions on charges of supporting terrorism in a case

involving what President Bush called a “sleeper cell”

comprised of six Al Qaeda-trained Yemeni Americans in

Lackawanna, New York. See George W. Bush, President’s

State of the Union Address, para. 45 (Jan. 28, 2003)

(visited Feb. 26, 2004) <http://www.whitehouse.gov/news/

releases/2003/01/20030128-19.html>. In light of these

indicators, prudence requires governors to assume, and to

urge this Court to share in the assumption, that there

remain within the United States foreign terrorist opera-

tives who are capable of carrying out large-scale terrorist

acts on United States soil.

2. Court proceedings involving Guan-

tanamo Bay detainees will present

targets of opportunity with high sym-

bolic and utility value for enemy ter-

rorist cells in the United States

Assuming terrorist cells with the capability to conduct

operations are present within the United States, there is

every reason to anticipate that providing Petitioners (and,

by extension, other Guantanamo Bay detainees) with

access to United States courts would have an adverse

impact on the domestic security of the States, as each

resultant proceeding could come to serve as a target of

the FBI's Response (Feb. 24, 2004) <http//www.fbi.gov/page2/feb04/

threats022404.htm> (“This enemy still has the capacity to strike the

U.S. both here and abroad with little or no warning ... [A}]-Qa’ida

retains a cadre of supporters within the U.S. which extends across the

country.”)

11

opportunity for terrorist violence. It is unnecessary to

engage in speculation to understand the symbolic target

value to Al Qaeda of wartime legal proceedings involving

Guantanamo Bay detainees. Not only would such proceed-

ings be highly visible media events, but the potential for

civilian casualties in the kinds of urban areas most suit-

able for hosting proceedings of this nature would be large.

Other, more utilitarian motivations for terrorist targeting

of court proceedings involving Guantanamo Bay detainees

are easy to postulate: Assassination of prisoners who could

have information of value to the United States; forcible

liberation of prisoners from United States custody; or

violence against civilian jurors, judges, and bystanders for

purposes of intimidation or retaliation. While the risk of

violence in high profile proceedings can certainly be

reduced through the employment of robust security meas-

ures, it can never be entirely eliminated.

D. Even if potential threats do not ultimately

materialize, extreme security measures

entailing large-scale disruption of daily

life in urban centers will likely be re-

quired in order to adequately safeguard

any domestic court proceedings involving

Petitioners or other Guantanamo Bay de-

tainees

Colorado’s experience in hosting the Oklahoma City

bombing trial of Timothy McVeigh and Terry Nichols,

United States v. McVeigh & Nichols, Criminal Action No.

96-CR-68-M (D. Colo. 1996), in the capital city of Denver is

instructive about the kinds of security measures that

would be necessary to institute in a typical urban center in

12

order to host secure court proceedings involving Petition-

ers and other Guantanamo Bay detainees. The level of

public disruption to be anticipated is of significant concern

to amici in their role as governors, as is the residual

elevated risk to public safety and domestic security that no

amount of preparation can entirely mitigate. Security

measures will need to be put into place to ensure both

secure transportation and confinement logistics for Peti-

tioners and the security of any court proceedings them-

selves. These measures will cause significant disruption of

civic life wherever they may need to be instituted.

1. Disruption from transportation and

confinement measures

Prisoners participating in proceedings, hearings, or

advisements require transportation from detention facili-

ties to courtroom facilities. Unlike routine prisoner trans-

port and court proceedings, transport and proceedings

involving high-threat prisoners require extensive planning

and additional staffing as well as additional materiel in

the form of vehicles, weapons, and a wide array of equip-

ment, both technological and tactical. Cooperation is also

required from a combination of federal, county and metro-

politan agencies that represent all of the jurisdictions

through which the transport will pass, in addition to state

patrol officers on any highway route over which the State

has jurisdiction.

In the Oklahoma City bombing trial, when the two

defendants were transferred to Colorado from Oklahoma,

county sheriff helicopters were required to transport the

prisoners from the airport to a federal facility, and three

Colorado National Guard helicopters were subsequently

“ee — A — eg: — gg ay —

13

needed to transport the prisoners across a large section of

the State in order to house them in federal correctional

facilities. Helicopter transportation of this sort cannot be

accomplished without accompanying ground support along

the flight path. Given that terrorists have routinely used

shoulder-fired antiaircraft weapons to attack American

military aircraft in Iraq, see, e.g., Satinder Bindra, 5

Killed, 1 Wounded in Protests in Southern Iraq: U.S.

Military Fear Black Hawk Downed By Enemy Fire, CNN

(Jan. 10, 2004) <http://www.cnn.com/2004/WORLD/meast/

01/10/sprj.nirq.main/index.html>; and civilian aircraft in

Africa, see, e.g., BBC News, Kenyan Police Find Mombasa

Missiles (Dec. 6, 2002) <http://news.bbc.co.uk/2/hi/africa/

2552097.stm>; and are suspected by the federal govern-

ment of having the weapons necessary to conduct similar

attacks here in the United States, see, e.g., United States

Department of State, Bureau of International Information

Programs, Press Release, U.S. Believes Terrorists Still

Pose Threat to Civil Aviation (Nov. 5, 2003) <http://

usinfo.state.gov/topical/pol/terror/texts/03110502.htm>, it

is reasonable to anticipate that those who would act either

in support of Petitioners and other Guantanamo Bay

detainees, or to silence them, pose a significantly more

tangible security risk than authorities confronted during

the Oklahoma City bombing trial.

The commitment of ground support resources during

air transport is significant even under ordinary circum-

stances, since it is not sufficient to simply have law en-

forcement agencies on unstructured standby. Ground

support needs to be prepared to respond in the event of a

problem with a helicopter or problems with any of the

prisoners, and officers must be ready to take tactical

action immediately at any point along the route of transit.

14

During the Oklahoma City bombing trial, this necessity

meant that the Colorado State Patrol, sheriffs in several

jurisdictions, and many local police deyartments were

compelled to commit resources to security duty that would

otherwise have been dedicated to normal responsibilities.

Furthermore, this commitment is not likely to be a singu-

lar occurrence in the event of involved proceedings. During

the Oklahoma City bombing trial, for example, it was

necessary to move the prisoners back and forth from the

United States Courthouse in Denver to secure detention

sites twice a day for several weeks. Proceedings involving

Petitioners or other Guantanamo Bay detainees are likely

to consume an even greater share of state and local law

enforcement resources, all to the detriment of public

safety.

To the extent air transportation is non-optimal, a

transport using vehicles alone can be similarly problem-

atic. Regardless of intelligence indications about the

likelihood of an attack on a transport caravan, secure

transit requires that vigilance and proper practices be

maintained at all times. The goal of moving prisoners from

one location to another with few or no stops, thereby

allowing little or no opportunity for targeting any of the

vehicles, means that moderate to high speeds of travel

must be maintained. This requirement in turn necessi-

tates traffic blocking at intersections along the transit

route. The very nature of secure caravan transport —

several vehicles clustered together and traveling at a

higher than normal rate of speed — is disruptive to traffic

on highways and city streets.

As a practical matter, early morning and late evening

transport can be used to avoid some of the traffic issues

associated with transporting high-risk prisoners, but these

15

options are poor for several reasons: First, a courthouse is

not generally a safe setting for holding a high-risk pris-

oner, as it is a non-maximum security environment.

Second, transporting prisoners in less congested circum-

stances raises the risk of successful attack. Third, the

pattern of traffic volumes in metropolitan areas will

require leaving the federal courthouse late at night and

necessitate returning again in the very early morning

hours. These scheduling requirements do not allow pris-

oner needs to be met and will have a detrimental impact

on all state and local law enforcement agencies that may

be forced to change regular staffing arrangements during

those time periods when law enforcement resources are

most in demand for the performance of ordinary essential

duties.

2. Disruption from measures necessary

to secure the proceedings

Any proceedings involving Petitioners or other Guan-

tanamo Bay detainees that needed to be conducted in the

federal courthouse in Denver would require security

measures that could literally shut down portions of Colo-

rado’s capital city. The United States Courthouse in

Denver is in close proximity to a post office, bus station,

several private office buildings, the former United States

Courthouse, the federal office building and the historic

Federal Appeals Court. In front of the Appeals Courthouse

is a Regional Transportation District light-rail stop that is

used by downtown commuters. The complex includes the

Federal Customs House building, which houses the United

States Bankruptcy Court, the intake location for military

recruiting in the region, federal offices, and a day-care

center.

16

The overall scene, if court proceedings for Petitioners

or other Guantanamo Bay detainees were to be held in the

District Courthouse, would be that of a federal courthouse

surrounded by government and private office buildings

that, in the daytime, would contain thousands of occu-

pants. Every sidewalk in the immediate area would be

congested with downtown workers, international media,

and federal and local law enforcement. Vehicle traffic in

and out of downtown in that area would be slow and often

stopped. This environment would present a significant

opportunity for terrorist activity. The alternative, blocking

off a six square-block area at the edge of Downtown

Denver, would bring much of the downtown area compris-

ing Denver’s economic center to a halt for weeks. Fur-

thermore, since the federal government is only responsible

for the interior and immediate exterior of courthouses,

securing the area would be the responsibility of the Den-

ver Police Department. During the Oklahoma City bomb-

ing trials, this responsibility had a tremendous impact on

the staffing and budget of the Denver Police Department.

An even higher-threat proceeding would of course have a

much greater impact.

This concern arises for all States where proceedings

may be held. For example, federal courts are located in all

major urban areas of Texas including Austin, the state

capital, and Houston, a major port for the nation. Each

court is located centrally in each city and the disruption

and dangers due to security issues would be overwhelming

and would unnecessarily endanger the populace and the

economy of Texas and the United States. In Austin, the

federal courthouse already has required the closure of a

downtown street causing disruption in the traffic flow and

the federal courthouse is located within walking distance

tag

17

of state governmental buildings including the capitol, the

major county hospital, and the University of Texas.

3. Potential for multiple proceedings in

different locations

The security concerns associated with proceedings

involving Petitioners or other Guantanamo Bay detainees

do not, of course, differ qualitatively from the concerns

that exist whenever States must deal with high-risk

prisoners in high-profile proceedings. However, it is

important for this Court to be aware that governors

consider Petitioners, due to their potential affiliation with

a global terrorist network, to pose risks that are of a

different order of magnitude than would ordinarily be the

case for a more typical high-security trial or criminal

proceeding.

Even with all of the disruption that it entailed, the

Oklahoma City bombing trial posed a manageable security

risk at least in part because it was a “one-off” event, that

is, a relatively unique occurrence. The United States naval

base at Guantanamo Bay, however, currently holds in

excess of 600 enemy combatants from more than 40

countries, at least some of whom (if not the large major-

ity), are likely to be affiliated with Al Qaeda. A ruling

favorable to the Petitioners raises the prospect of literally

hundreds of separate proceedings involving extremely

high-risk individuals transpiring nearly simultaneously in

multiple jurisdictions. To make matters worse, given that

the war on terror is not yet won, the number of detainees

currently on hand at the Guantanamo Bay Naval Base

could only be a starting point, rather than an ending point;

and the variation in individual detainee circumstances

18

could become much more diverse, rather than less. Thus

the threat to the States’ domestic security that could result

from a ruling favorable to Petitioners is essentially open-

ended. This presents a grave challenge to governors in the

fulfillment of their responsibilities as chief executives.

Amici curiae accordingly urge this Court to consider the

ramifications of its decision in these cases, since the effect

on governors’ ability to perform their essential duty of

maintaining domestic security is likely to be profoundly

affected by any outcome in Petitioners’ favor.

S

CONCLUSION

For the foregoing reasons, this Court should affirm

the decision of the United States Court of Appeals for the

District of Columbia.

Respectfully submitted,

CYNTHIA HONSSINGER RICHARD A. WESTFALL

Chief Counsel Counsel of Record

ROBERT A. MCGUIRE ALLAN L. HALE

OFFICE OF GOVERNOR HALE HACKSTAFF FRIESEN, LLP

BILL OWENS 1430 Wynkoop Street

136 State Capitol Suite 300

Denver, Colorado 30218 Denver, Colorado 80202

Telephone: (303) 866-6380 Telephone: (720) 904-6000

DavID M. MEDINA

General Counsel

OFFICE OF GOVERNOR RICK PERRY

P.O. Box 12428

Austin, Texas 78711

Telephone: (512) 463-1788