Amicus Curiae Brief — Rumsfeld v. Padilla

Y No. 03-1027

——— : ae a

In The OFFICT OF THE CLERK

Supreme Court of the Gnited States

2

DONALD RUMSFELD,

—_———— a

Petitioner,

V.

JOSE PADILLA AND DONNA R. NEWMAN

AS NEXT FRIEND OF JOSE PADILLA,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

+

BRIEF OF AMICUS CURIAE

THE COMMONWEALTH OF VIRGINIA

IN SUPPORT OF PETITIONER

¢

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. HurD

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

ALISON P. LANDRY

Senior Assistant Attorney General

COURTNEY M. MALVEAUX

RUSSELL E. MCGUIRE

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436 (voice)

(804) 371-0200 (facsimile)

Counsel for Amicus Curiae

March 17, 2004

ee

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

. OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Se I eictctciccdicsnienccscsinnssesccnsens ii

SUMMARY OF ARGUMENT ..........................ceeeeeeee

IIIT sicitslisitetsibentetiiicncitatinianaedianinionniinideniiniennaiiées

1. The President Had Authority to Seize Padilla

as an Enemy Combatant While Padilla Was

| TE eee ee 5

2. Presidential Authority to Seize Padilla as an

Enemy Combatant Remained Intact When

Padilla Left Pakistan for the United States.. 11

3. The President Has Authority to Seize Enemy

Combatants Seeking to Enter the United

I iccirscnsstnnesnninnninninemesenssen 14

4. The Authority of the President to Order the

Seizure of Padilla, as an Enemy Combatant,

Is Undiminished by the Initial Use of a Ma-

COTES WORRIES WOETOIG .occcccccccccccccsccccccccccsscees 17

ID tnicncrncncnnnicbiidinbineniisneneseinscaseenensoosceses 19

il

TABLE OF AUTHORITIES

Page

CASES

Almeida-Sanchez v. United States,

413 UD. BBB (ID TEP ncccccccscsssssnentesnmmum 16

Cannon v. University of Chicago,

443 UB. G70 (BB TED nccccosccsscescessecsescsninaaanee 10

Carroll v. United States,

BOT UB. 138 CIGD ncoccccscccccnissnenmmamamaane 15

Duncan v. Kahanamoku,

SBT UB. SO4 (ID GBD nncccccccccesestiarvcestsmmmmun 7

Ex Parte Quirin,

B17 US. 1 (RBEBD ncccccccccssescnsintescensmmaaannens 9, 10

Hamidi v. Rumsfeld,

316 F.3d 450 (4th Cir. 2003),

cert. granted, 124 S. Ct. 981 (2004)................. 5, 8, 10, 11

Illinois v. Wolfbrandt,

469 N.E.2d 305 (Tll. App. 1985), rev’d on other

grounds by Daley v. Hett, 495 N.E.2d 513

CTD. 2G BBD. .nccocccccscncescssssssssesessannnmiuaaianaannn 13

In re Territo,

166 F.28 143 (Bide Cle, 1D GBP nccccccccccesecesssnsccnenennsensesenscansss 8

King v. St. Vincent’s Hospital,

EEE 9

Nebraska v. Goff,

118 N.W.2d 625 (Neb. 1962) -..........ccccccccccccceseeseseseeeeeenes 13

Padilla v. Rumsfeld,

352 F.3d 695 (2nd Cir. ZOOS) ..............cecccssesecceseees 4, 12,17

United States v. Ramsey,

458 UE, Gi Care cercnansneeanintntinnidetintitisinien 14, 16

ill

TABLE OF AUTHORITIES - Continued

Page

United States v. Martinez-Fuerte,

I esussoueues 15

United States v. Santana,

I Tr aiidahlatainiraamei 13

United States v. Villamonte-Marquez,

EEE 15

CONSTITUTION AND STATUTES

a 8

LE 11

EE LEE 9

I censsubusounets 9

acess 10

Authorization for Use of Military Force, Pub. L. No.

107-40, 115 Stat. 224 (Sept. 18, 2001)... 10

CAL. PENAL CODE § 852-.4 (2004) .0.........cccccccccceeeeseeeeeeeees 13

IDAHO CODE § 19-701-07 (2004)..0.0........ccccccccccceeeeceeceeeeeees 13

IND. CODE ANN. § 35-33-3-1-7 (2004)... .ccccccccccecceeeees 13

TOWA CODE § 806.1-.6 (2003)...............cccccecesccssecseseeeeseencenes 13

ME. REV. STATE. ANN. tit. 15, § 151-155 (2003)................. 13

Mb. CopE ANN., CRIM. Proc. § 2-304-09 (2003)................ 13

Mass. ANN. LAWS ch. 276, § 10A-D (2004)...................0000. 13

Mic. Comp. LAWS § 780.101-08 (2003) ....................0..00. 13

MINN. STAT. § 626.65 -72 (2003) ...0..........ccccccccccececeeeeeeeees 13

Mo. REV. StaT. § 544.155 (2004) ..000. oo . ee 13

iv

TABLE OF AUTHORITIES -— Continued

Page

NEB. REV. STAT. ANN. § 29-416-420 (2003)... eee 13

N.J. STAT. ANN. § 2A:155-1-7 (2004)... cccecccceeeeeeeeeeees 13

N.M. Stat. ANN. § 31-2-1-8 (2003)..............ccccccceseeeeeeeeeeees 13

N.Y. Crim. Proc. LAW § 140.55 (2003) .................ccccceeeeeeee 13

TENN. CODE ANN. § 40-7-201-05 (2003).................ccccceeeeeeee 13

VT. Stat. ANN. tit. 13, § 5041-45 (2003) ..00...... cc eeeeeeees 13

PUBLICATIONS

Andrea Kannapell, Front Lines, N.Y. TIMES, June

i STI OA I Tce cinerrenenpnnmncenmneeninaiinuneeniieemeimnnitiniendveds 5

Dan Eggen, U.S.: 9-11 Mastermind Killed Reporter,

HOUSTON CHRONICLE, Oct. 22, 2003, at Al............. 6

Germans Swoop on Islamic Group, BIRMINGHAM

POST [United Kingdom], April 24, 2002, at 9................ 6

Indira A. R. Lakshmanan, Fighting Terror/The

Military Campaign; Pakistan Said Still to Aid Al

Qaeda, BOSTON GLOBE, Mar. 25, 2002, at Al............. 6

James Risen and Philip Shenon, Traces of Terror:

The Investigation; U.S. Says It Halted Qaeda

Plot to Use Radioactive Bomb, N.Y. TIMES, June

RETESET nee ener vn een 12

John W. Wright (ed.), The New York Times Alma-

et ene neneerne 1

Philip Shenon and Neil A. Lewis, A Nation Chal-

lenged: Captives; U.S. Says a Key Detainee Had

Planned More Attacks, N.Y. TIMES, April 3,

ey Ge ercnnnesnineteineunemmnmnicimnmminieniene 6,7

7 « +

wei we eg ~ & 4

eS

1

INTEREST OF AMICUS CURIAE

THE COMMONWEALTH OF VIRGINIA’

By ratification of the Constitution and entry into the

Union, the people of the fifty States have expressly as-

signed to the National Government the responsibility and

authority to provide for their common defense. Being thus

dependent on the National Government for its security,

the Commonwealth of Virginia has a vital interest in

preserving within that government —- and, especially, in

the Commander-in-Chief — sufficient authority for waging

war vigorously and successfully upon our foes, including

the new enemy, Al Qaeda. It is an interest underscored by

the September 11 attack on Virginia soil, and by the

presence in Virginia of numerous sites — military, economic

and symbolic - against which future terrorist attacks

might be launched.’

At the same time, Virginia remains deeply devoted to

preserving the blessings of liberty that have been the |

hallmark of our national character since the days of our

* Given the expedited briefing schedule, the Commonwealth of

Virginia has not sought additional signatories on this brief by circulat-

ing it among the States.

* Examples of military sites include the Pentagon, Langley Air

Force Base (headquarters of Air Force Combat Command), Norfolk

Naval Station (headquarters of Atlantic Fleet), Quantico (headquarters

of Marine Combat Development Command and Systems Command).

See John W. Wright (ed.), The New York Times Almanac, 148-49 (2004

ed.). Major sites of economic value include Dulles Internationa! Airport,

Ronald Reagan National Airport, the Metro system, the Chesapeake

Bay Bridge-Tunnel, the ports of Hampton Roads and the Newport News

shipyard. Sites of notable symbolic value include the many settings

associated with our Nation’s founding, including Mount Vernon,

Monticello, Montpelier and Colonial Williamsburg.

2

Founders. Thus, notwithstanding the exigencies of today,

Virginia remains highly skeptical of any activity that

might be used tomorrow to undermine the individual

liberties guaranteed to Americans by the Bill of Rights.

Our heritage requires nothing less.

Throughout the history of our Nation, two fundamen-

tal aspirations have existed in tension with one another.

We demand liberty; we expect government to refrain from

oppressive intervention in the lives of individual citizens.

And we expect security; we demand that our leaders

confront and defeat threats against us from our enemies.

This case, like others born in difficult times from the

tension between these two aspirations, calls for a careful

and delicate balance and for the discovery of avenues by

which our National Government can effectively protect its

citizens from attack, without compromising the individual

rights promised them by the Constitution.

Committed to the preservation of both liberty and

security, Virginia offers the Court this brief amicus curiae,

supporting the United States, albeit with an alternative

analysis that would lead to a limited ruling. The court of

appeals instructed the district court to issue a writ of

habeas corpus directing the Secretary of Defense to release

Jose Padilla, an enemy combatant, from military custody.

This judgment should be reversed. It is our belief, how-

ever, that this case can — and should — be resolved in a

manner that upholds the seizure and detention of Padilla

without creating a precedent that might - in different

times and in different hands — be used in a manner de-

structive of our liberties.

3

SUMMARY OF ARGUMENT

The Court should uphold the seizure and detention of

Jose Padilla as an enemy combatant. Given the facts of

this case, the Court may do so without reaching the

difficult constitutional issue of whether the President has

authority to seize and detain alleged enemy combatants

who are citizens of the United States and at-large within

the country at the time of their seizure.

First, Padilla is an enemy combatant who was under

surveillance by United States officials while in Pakistan, a

country which, for purposes of presidential authority, must

be considered part of the theater of operations in the war

against Al Qaeda. Thus, the President would have been

within his authority to order him seized there. Arguably

this factor alone would be sufficient to justify his subse-

quent seizure and detention on American soil; however,

given the other facts of this case, it is not necessary to go

so far in order to rule in favor of the United States.

Second, while Padilla was not seized within Pakistan,

he was followed by officers of the United States govern-

ment as he sought to return to the United States, a cir-

cumstance analogous to “fresh pursuit.” Such pursuit

forecloses any argument that presidential authority to

seize Padilla vanished upon his departure from Pakistan.

Moreover, it would make no sense to allow seizure of an

enemy combatant while he is still on foreign soil, but to

prohibit such seizure when that same combatant leaves

that country to bring the war to our homeland. —

Third, Padilla was seized while attempting to re-enter

the United States at an international airport, a venue that

is the functional equivalent of the border, where constitu-

tional rules of search and seizure have long been held to

4

vest government officials with enhanced authority. Given

Padilla’s status as an enemy combatant, the fact that he

was seized at the border while seeking to re-enter the

country should be sufficient to justify presidential author-

ity, even if he had not been in Pakistan or pursued by

federal agents during his return from that country.

Finally, while the initial seizure of Padilla was under

a material witness warrant, rather than presidential

directive, Padilla was never at-large within the country

following his return from Pakistan. The authority of the

President to seize him as an enemy combatant is undimin-

ished by the initial use of an alternative method of seizure.

S

ARGUMENT

When this case came before the court of appeals, the

question decided was a broad one — whether the President

possesses authority “to detain as an enemy combatant an

American citizen seized on American soil outside a zone of

combat.” Padilla v. Rumsfeld, 352 F.3d 695, 698 (2nd Cir.

2003) (Pet. App. 2a). A similarly broad question is now

before this Court. See Pet. for Cert. at I. While the Court

may choose to give an equally broad answer, Virginia

writes to point out that the Court need not do so. The

Court may — and should — uphold the seizure and deten-

tion of Padilla on the narrower grounds suggested by the

particular facts of this case.

5

1. The President Had Authority to Seize Padilla

as an Enemy Combatant While Padilla Was in

Pakistan.

The war on terror is unlike any other conflict that our

Nation has confronted. It is a conflict “waged less against

nation-states than against scattered and unpatriated

forces.” Hamdi v. Rumsfeld, 316 F.3d 450, 464 (4th Cir.

2003), cert. granted, 124 S. Ct. 981 (2004). Yet, “neither the

absence of set-piece battles nor the intervals of calm

between terrorist assaults suffice to nullify the war-

making authority entrusted to the executive and legisla-

tive branches.” Jd. In such a conflict, it is difficult to define

exactly where the theater of operations begins and where

it ends. However, to the extent that any such distinction

may remain legally relevant, the country of Pakistan must

be considered part of the theater of operations in the war

with Al Qaeda.

Pakistan is, of course, geographically adjacent to

Afghanistan, where the United States fought and removed

the Taliban regime that gave Al Qaeda a haven for its

operations. In the spring of 2002, the United States

government advised that “the top leadership of Al Qaeda

and as many as 1,000 non-Afghan fighters [were] regroup-

ing in northwestern Pakistan, in the lawless tribal area

just over the border with Afghanistan.” At the same time,

Pakistan advised that “Qaeda leaders have filtered into its

cities, and that the terror network’s next phase of the

* Andrea Kannapell, Front Lines, N.Y. TIMES, June 2, 2002, § 4,

p. 2.

6

conflict may center on Pakistan.” Among the Al Qaeda

leaders who moved their operations into Pakistan were

Osama Ben Laden, head of the terrorist organization;

Khalid Sheik Mohammed, an ethnic Pakistani believed to

have masterminded the attacks of September 11;° as well

as Abu Zubaydah, the Al Qaeda chief of military opera-

tions.’

Captured inside Pakistan in March 2003, Khalid

Sheik Mohammed was later identified by United States

officials as the person seen on videotape executing Wall

Street Journal reporter Daniel Pearl, in Pakistan, in

January 2002.° Zubaydah was captured inside Pakistan on

March 28, 2002, in a raid conducted by Pakistani police in

* Id. See also Statement of Gen. John Abizaid, U. S. Army Central

Command, to the House Armed Services Committee, Mar. 3, 2004

(noting that Pakistan is “where many Al Qaida and Taliban leaders and

forces settled following major combat operations in Afghanistan” and

that Pakistan is among the states in the region “most vulnerable to

extremism” by organizations seeking to “indoctrinate the youth to

violent Jihad as the principle means of advancing their cause.”)

* See, e.g., Indira A. R. Lakshmanan, Fighting Terror/The Military

Campaign; Pakistan Said Still to Aid Al Qaeda, BOSTON GLOBE,

Mar. 25, 2002, at Al (quoting the post-Taliban Afghan government as

“100 percent sure” that Osama Ben Laden fled into Pakistan); Germans

Swoop on Islamic Group, BIRMINGHAM POST [United Kingdom],

April 24, 2002, at 9 (reporting that Osama Ben Laden is “thought to be

safe in Peshawar, [Pakistan], where he remains a hero to most peo-

ple.”).

* Dan Eggen, U.S.: 9-11 Mastermind Killed Reporter, HOUSTON

CHRONICLE, Oct. 22, 2003, at Al.

” Philip Shenon and Neil A. Lewis, A Nation Challenged: Captives;

U.S. Says a Key Detainee Had Planned More Attacks, N.Y. TIMES,

April 3, 2002, at A12.

* Dan Eggen, U.S.: 9-11 Mastermind Killed Reporter, HOUSTON

CHRONICLE, Oct. 22, 2003, at Al.

conjunction with agents of the Central Intelligence Agency

and the Federal Bureau of Investigation.’ At the time of

his capture, Zubaydah was “organizing new attacks on

U.S. targets,” according to U.S. officials.” Thus, at least in

late 2001 and well into 2002, if not currently, Pakistan

must be regarded as part of the theater of operations for

this unusual war against a terrorist network.

It was later determined that one Al Qaeda plan being

orchestrated by Zubaydah involved Padilla. Early in 2002,

it was Zubaydah who directed Padilla to “travel[] to

Karachi, Pakistan to meet with senior Al Qaeda operatives

to discuss Padilla’s involvement and participation in

terrorist operations targeting the United States ... [in-

cluding] the noted ‘dirty bomb’ plan .. .” Mobbs Declara-

tion, 19 (Pet. App. 170a). At the time Zubaydah was

captured, several other Al Qaeda operatives were captured

as well.” Padilla was not among them. Yet, whether among

the operatives seized at Zubaydah’s capture, or tracked

down later, there is no doubt that he could have been

seized as an enemy combatant in Pakistan, notwithstand-

ing his United States citizenship.

Because Pakistan was part of the theater of opera-

tions, the President had full authority under United

States law to seize any enemy combatant who was present

in that country. See Duncan v. Kahanamoku, 327 U.S. 304,

313-14 (1946) (there is a “well-established power of the

* Philip Shenon and Neil A. Lewis, A Nation Challenged: Captives;

U.S. Says a Key Detainee Had Planned More Attacks, N.Y. TIMES,

April 3, 2002, at A12

Id.

il Id.

8

military to exercise jurisdiction over ... enemy belliger-

ents, prisoners of war, or others charged with violating the

laws of war.”). “The object of capture is to prevent the

captured individual from serving the enemy. He is dis-

armed and from then on he must be removed as com-

pletely as practicable from the front. . . .” In re Territo, 156

F.2d 142, 145 (9th Cir. 1946).

More importantly, the fact that Padilla was blessed

with United States citizenship does not change the result.

“One who takes up arms against the United States in a

foreign theater of war, regardless of his citizenship, may

properly be designated an enemy combatant and treated

as such.” Hamdi, 316 F.3d at 475.” This is so for three

reasons: First, the President, in the exercise of his author-

ity as Commander-In-Chief, U.S. Const. Art. II, § 2, cl. 1,

can seize any enemy combatant, including those who are

United States citizens, when they are outside the United

States.” See Hamdi, 316 F.3d at 475 (“At least where it

is undisputed that he was present in a zone of active

combat operations, we are satisfied that the Constitution

does not entitle him to a searching review of the factual

determinations underlying his seizure there.”). As this

” Of course, the fact that Padilla is an American citizen means

that he is entitled “to a limited judicial inquiry into his detention, but

only to determine its legality under the war powers of the political

branches.” Hamdi.

“ Because one who is seized at the border may be deemed outside

the United States, this Court need not address the more troublesome

issue of whether the President can seize an enemy combatant, who is

also a United States citizen, within the United States. See infra at 14.

Thus, both Padilla and Hamdi were outside of the United States when

they were seized.

——— eee

——

9

Court explained more than sixty years ago, “[clitizenship

in the United States of an enemy belligerent does not

relieve him from the consequences of a belligerency.” Ex

Parte Quirin, 317 U.S. 1, 37 (1942).

Second, contrary to the reasoning of the court below,

the Non-Detention Act, 18 U.S.C. § 4001, does not limit

the President’s authority to seize enemy combatants who

also happen to be U.S. citizens. Hamdi, 316 F.3d at 467-

68. A statute must be read in its entirety. See, e.g., King v.

Si. Vincent’s Hospital, 502 U.S. 215, 221 (1991) (noting

“the cardinal rule that a statute is to be read as a whole

... Since the meaning of statutory language, plain or not,

depends on context”). Although the first subsection of the

Non-Detention Act purports to require congressional

authorization to seize U.S. citizens, 18 U.S.C. § 4001(a),

the remaining subsection makes it clear that the act is

limited to the seizure and incarceration of civilians and

“ The Non-Detention Act provides:

(a) No citizen shall be imprisoned or otherwise detained by

the United States except pursuant to an Act of Congress.

(bX1) The control and management of Federal penal and

correctional institutions, except military or naval institu-

tions, shall be vested in the Attorney General, who shall

promulgate rules for the government thereof, and appoint

all necessary officers and employees in accordance with the

civil-service laws, the Classification Act, as amended|[,] and

the applicable regulations.

(2) The Attorney General may establish and conduct in-

dustries, farms, and other activities and classify the in-

mates; and provide for their proper government, discipline,

treatment, care, rehabilitation, and reformation.

18 U.S.C. § 4001.

10

does not extend to enemy combatants. See 18 U.S.C.

§ 4001(b) (discussing the control and management of

federal penal institutions). Indeed, the remaining subsec-

tion, by its very terms, explicitly excludes “military and

naval institutions” such as the facility where Padilla is

being held from the scope of the Non-Detention Act. See 18

U.S.C. § 4001(b)(1). Moreover, when Congress enacted the

Non-Detention Act in 1971, it surely knew of this Court’s

1942 decision in Quirin. See, e.g., Cannon v. University of

Chicago, 441 U.S. 677, 699 (1979) (“[I]t is not only appro-

priate but also realistic to presume that Congress was

thoroughly familiar with ... important precedents from

this and other federal courts and that it expected its

enactment to be interpreted in conformity with them.”). “If

Congress had intended to override this well-established

precedent and provide American belligerents some immu-

nity from capture and detention, it surely would have

made its intentions explicit.” Hamdi, 316 F.3d at 468.

Third, even if the Non-Detention Act were otherwise

applicable, Congress has subsequently authorized the

President to seize enemy combatants who are also United

States citizens. Congress authorized the President to “use

all necessary and appropriate force against those nations,

organizations, or persons he determines planned, author-

ized, committed, or aided the terrorist attacks” or “har-

bored such organizations or persons.” Authorization for

Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224

(Sept. 18, 2001). As the Fourth Circuit noted, “capturing

and detaining enemy combatants is an inherent part of

warfare; the ‘necessary and appropriate force’ referenced

in the congressional resolution necessarily includes the

capture and detention of any and all hostile forces arrayed

11

against our troops.” Hamdi, 316 F.3d at 467. Additionally,

Congress has provided funds for the housing and care of

persons “similar to prisoners of war.” 10 U.S.C. § 956(5).

“It is difficult if not impossible to understand how Con-

gress could make appropriations for the detention of

persons ‘similar to prisoners of war’ without also authoriz-

ing their detention in the first instance.” Hamdi, 316 F.3d

at 467-468.

In sum, this Court need not resolve all the fine points

of the interplay between the inherent powers of the Com-

mander-in-Chief, the Due Process Clause, the Non-

Detention Act and the 2001 Authorization for Use of

Military Force. What is plain is that the President had

authority to seize Padilla as an enemy combatant while

Padilla was in the country of Pakistan.

2. Presidential Authority to Seize Padilla as an

Enemy Combatant Remained Intact When

Padilla Left Pakistan for the United States.

As Virginia has shown, the President had authority to

seize Padilla as an enemy combatant while he was in

Pakistan. Under the facts of this case, this authority did

not vanish when Padilla left Pakistan en route for the

United States. Surely, it would defy common sense to

conclude that there was authority to seize him as long as

he remained in Pakistan, merely planning an attack

against the United States, but that the authority evapo-

rated as soon as he left that country and headed toward

his target on a mission of “reconnaissance and/or other

attacks on behalf of Al Qaeda.” Mobbs Declaration, 7 10

(Pet. App. 170a).

12

Additional support for continuation of presidential

authority can be found, by analogy, in the common law

doctrine of “fresh pursuit.” Broadly speaking, this doctrine

enlarges the authority of an officer so as to permit him to

seize a suspected felon who has traveled outside the

geographic borders by which the officer’s authority is

ordinarily bounded. Thus, even if the President’s authority

to seize Padilla as an enemy combatant were ordinarily

limited to the theater of operations (an issue the Court

need not decide), Padilla’s departure from Pakistan does

not necessarily defeat the authority of the President to

seize him. This is especially so given that the time be-

tween Padilla’s departure from Pakistan and his seizure at

O’Hare International Airport was only a matter of hours,

not weeks. See Padilla, 352 F.3d at 699 (Pet. App. at 4a)

(noting that “[o]Jn May 8, 2002, Jose Padilla... flew...

from Pakistan, via Switzerland, to Chicago”). Such a

period is not so long as to dissipate the freshness of the

pursuit. It is also worth noting — though not critical to the

fresh pursuit analogy — that federal agents physically

followed Padilla during his journey back to the United

States.”

This conclusion is not altered by the fact that the

pursuit of Padilla was undertaken in a manner calculated

not to alert him prematurely to the presence of federal

agents. The doctrine of fresh pursuit does not require the

“’ See James Risen and Philip Shenon, Traces of Terror: The

Investigation; U.S. Says It Halted Qaeda Plot to Use Radioactive Bomb,

N.Y. TIMES, June 11, 2002, at Al (noting that F.B.I. agents secretly

boarded Padilla’s flight from Zurich to the United States to keep him

under surveillance).

-— —- eee

13

officer who leaves his jurisdiction to set up a hue and cry

or otherwise warn his quarry that he is being pursued. See

Illinois v. Wolfbrandt, 469 N.E.2d 305, 310 (Ill. App.

1985) (rejecting argument “that there was no fresh

pursuit because [defendant] was not fleeing from his

pursuers, and in fact, he was never aware of the officers

behind him.”) (applying Missouri Fresh Pursuit Law),

rev'd on other grounds by Daley v. Hett, 495 N.E.2d 513,

516 (Ill. 1986). Indeed, in pursuing terrorists across

* Additionally, sixteen States have adopted the Uniform Act on

Fresh Pursuit, codifying the common law authority of an officer to

pursue a suspect outside of the officer’s jurisdiction. None of those

statutes have defined “fresh pursuit” to require knowledge by the

suspect that he is being pursued. See CAL. PENAL CODE § 852-.4 (2004);

IDAHO CODE § 19-701-07 (2004); IND. Cope ANN. § 35-33-3-1-7 (2004);

Iowa CODE § 806.1-.6 (2003); Me. Rev. Stare. ANN. tit. 15, § 151-155

(2003); Mp. Cope ANN., CRIM. Proc. § 2-304-09 (2003); MAss. ANN.

LAWS ch. 276, § 10A-D (2004); MicH. Comp. Laws § 780.101-08 (2003);

MINN. Stat. § 626.65 -72 (2003); Mo. Rev. Star. § 544.155 (2004); NEB.

Rev. Stat. ANN. § 29-416-420 (2003); N.J. Stat. ANN. § 2A:155-1-7

(2004); N.M. Stat. ANN. § 31-2-1-8 (2003); N.Y. Crm. Proc. Law

§ 140.55 (2003); TENN. CoDE ANN. § 40-7-201-05 (2003); Vr. Stat. ANN.

tit. 13, § 5041-45 (2003). But see, Nebraska v. Goff, 118 N.W.2d 625

(Neb. 1962) (rejecting application of fresh pursuit statute when, inter

alia, the suspect was unaware he was being pursued and was not

seeking to avoid arrest).

A rule that the suspect must be aware of the pursuit could con-

ceivably apply where the pursuit is not across a border, but into a

private residence, a venue afforded special protection based on privacy

concerns. See United States v. Santana, 427 U.S. 38, 43 (1976) (noting

that “a suspect may not defeat an arrest which has been set in motion

in a public place . . . by the expedient of escaping to a private place” and

explaining that, in such a context, “‘hot pursuit’ means some sort of a

chase, but it need not be an extended hue and cry in and about [the]

public streets.”). Of course, Padilla was seized at an airport, not inside a

home, and no purpose would have been served by alerting him to the

fact he was on the verge of being apprehended.

14

international borders, where diplomatic considerations

introduce complexities not present in a more domestic

context, the need for discretion can be especially compelling.

In sum, once Padilla was subject to seizure as an

enemy combatant in Pakistan, he continued to be subject

to seizure at every point along his route back to O’Hare

International Airport. The authority of the President to

seize him was not in any way reduced or eliminated by his

movement out of one jurisdiction and into another.

3. The President Has Authority to Seize Enemy

Combatants Seeking to Enter the United

States at the Border.

The Court may decide the case before it - and uphold

the power of the President to seize and detain Padilla — by

focusing simply on the fact that Padilla is an enemy

combatant captured while attempting to enter the United

States at the end of an international flight. Whatever

rules may apply to the detention of United States citizens

who are seized while at-large within the country, those

same rules need not apply to those who are seized while

attempting to enter the country at the border.

This Court has long recognized that constitutional

rules governing searches and seizures apply differently at

the border than they do elsewhere within the country. As

this Court explained in United States v. Ramsey, 431 U.S.

606, 616 (1977):

That searches made at the border, pursuant to

the longstanding right of the sovereign to protect

itself by stopping and examining persons and

property crossing into this country, are reason-

able simply by virtue of the fact that they occur

15

at the border, should, by now, require no ex-

tended demonstration.

This principle has been applied to justify a wide range

of government actions, including actions that would draw

condemnation if undertaken within the interior of the

country. For example, in Carroll v. United States, 267 U:S.

132, 153-54 (1925), this Court said:

It would be intolerable and unreasonable if a

prohibition agent were authorized to stop every

automobile on the chance of finding liquor and

thus subject all persons lawfully using the high-

ways to the inconvenience and indignity of such a

search. Travelers may be so stopped in crossing

an international boundary because of national

self protection reasonably requiring one entering

the country to identify himself as entitled to

come in, and his belongings as effects which may

be lawfully brought in. But those lawfully within

the country, entitled to use the public highways,

have a right to free passage without interruption

or search unless there is known to a competent

official authorized to search, probable cause for

believing that their vehicles are carrying contra-

band or illegal merchandise.

Similarly, this Court has ruled that automotive

travelers may be stopped at fixed checkpoints near the

_ border without individualized suspicion even if the stop is

based largely on ethnicity. United States v. Martinez-

Fuerte, 428 U.S. 543, 562-563 (1976). Likewise, boats on

inland waters with ready access to the sea may be hailed

and boarded with no suspicion whatever. United States v.

Villamonte-Marquez, 462 U.S. 579 (1983). It is not just

those traveling by land or sea who are subject to “the

longstanding right of the sovereign to protect itself.”

16

Ramsey, 431 U.S. at 616. Those traveling by air are

subject to the same right. For a person arriving in the

United States on a flight from abroad, the airport is the

functional equivalent of the border. Almeida-Sanchez v.

United States, 413 U.S. 266, 272-73 (1973). See Ramsey,

431 U.S. at 616 (defendant arriving at Los Angeles Inter-

national Airport on direct flight from Bogota, Colombia,

treated as if she were crossing an international boundary).

Thus, when Padilla flew into O’Hare International Airport,

the tarmac on which the plane landed may have been

American soil, but Padilla’s status was no different than if

he were presenting himself for entry at a checkpoint on

the Mexican or Canadian border.

The point here is not to suggest that Padilla was

arrested for violating an immigration or customs statute,

nor does the Commonwealth suggest that immigration or

customs searches are the same as the seizure of an enemy

combatant. The point is simply that, in keeping with well-

established precedent, government actions taken at the

border for the purpose of protecting the country are

subject to more lenient rules than actions taken in the

interior. Thus, the Court need not decide whether the

President has a general power to detain, as an enemy

combatant, a United States citizen seized on American

soil. It need only decide that he has the power to seize

such an enemy combatant when he is seeking to re-enter

the country.

In other words, assuming arguendo that the Com-

mander-in-Chief may have greater authority outside the

country than he has inside it, the border need not be

treated as if it were on the inside. For the purpose of

regulating the seizure and detention of enemy combatants,

the border may just as easily be treated as part of the

17

outside or, at the very least, as a venue falling into a

special category of its own. Indeed, given his proximity to

the homeland, an enemy combatant seeking to cross the

border from abroad is likely to be even more dangerous

than he was when he was yet an ocean away. Thus, in the

interplay of various constitutional and statutory provi-

sions, the President’s authority should be deemed broad

enough to justify the seizure and detention of Padilla.

4. The Authority of the President to Order the

Seizure of Padilla, as an Enemy Combatant, Is

Undiminished by the Initial Use of a Material

Witness Warrant.

When Padilla arrived at O’Hare International Airport

on May 8, 2002, he was not initially seized by order of the

President. He was seized and held by federal marshals,

acting pursuant to court order, as a material witness in

connection with grand jury proceedings investigating the

September 11 attacks. Padilla, 352 F.3d at 699 (Pet. App.

at 4a). Padilla was thereafter held in custody continuously

by the Department of Justice through June 9, 2002, when

he was turned over to the Department of Defense as an

enemy combatant pursuant to presidential order. Jd. at

699-700 (Pet. App. at 4a-6a).

In other words, following his return from Pakistan,

Padilla never achieved full and free entry into the United

States and thus, was never at-large within the country.

His situation is, therefore, distinguishable from the case of

someone who never left the country to consort with Al

Qaeda, or who, having left the country, successfully re-

entered and returned to the freedom of our streets. These

other, hypothetical situations may present questions more

difficult than the one presented by the case at hand.

18

However, such hypothetical questions need not be an-

swered in order to affirm the authority of the President -

under the facts of this case — to seize and detain Padilla as

an enemy combatant. Because Padilla was in federal

custody without interruption, beginning with his seizure

at the airport, and because his initial seizure was also

related to Al Qaeda activities, the President’s June 9 order

directing the seizure of Padilla as an enemy combatant

“relates back” to the time and place of the airport seizure.

To hold otherwise would split hairs too finely. It would

unreasonably restrict the war powers needed by the

President to provide for the common defense while doing

nothing to protect citizens at-large against any potential

abuse of those powers. Indeed, to rule that the power to

seize Padilla as an enemy combatant does not relate back

to his initial detention may even invite increased use of

presidential power. The initial seizure of Padilla as a

material witness gave the President time to make a

careful, informed and personal judgment about whether

Padilla should be held as an enemy combatant. To deprive

the President of this time could easily lead to hastier

judgments and/or to a delegation of the President’s author-

ity to officials closer to the scene, but farther removed

from public accountability.

In short, the authority of the President to order the

seizure of Padilla, as an enemy combatant, is undimin-

ished by the initial use of a material witness warrant. He

was properly seized and is properly detained.

¢

19

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted,

THE COMMONWEALTH OF VIRGINIA

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. HurpD

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

ALISON P. LANDRY

Senior Assistant Attorney General

COURTNEY M. MALVEAUX

RUSSELL E. MCGUIRE

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436 (voice)

(804) 371-0200 (facsimile)

Counsel for Amicus Curiae

March 17, 2004