# Amicus Curiae Brief — Rasul v. Bush

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A41

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 466

## Text

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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) ......

Donald Rumsfeld, Secretary Rumsfeld Remarks to
Greater Miami Chamber of Commerce (Feb. 13,
2004) ...........cccccecceeeeeeeeeeeees

iv

TABLE OF AUTHORITIES - Continued
Page

George W. Bush, President’s State of the Union
Address (Jan. 28, 2003) (visited Feb. 26, 2004)
> 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) ...............::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) ......... 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) .

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

— (“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) .

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) . 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) (“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) ; and civilian aircraft in
Africa, see, e.g., BBC News, Kenyan Police Find Mombasa
Missiles (Dec. 6, 2002) ; 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) , 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0703%3A41. Public record. Not legal advice.