Amicus Curiae Brief — Rumsfeld v. Padilla

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No. 03-1027

IN THE

Supreme Court of the United States

DONALD H. RUMSFELD, Secretary of Defense,

Petitioner,

Vv.

JOSE PADILLA and DONNA R. NEWMAN,

as next of friend of Jose Padilla,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF JANET RENO, ET AL.,

AMICI CURIAE IN SUPPORT OF RESPONDENTS

ROBERT S. LITT

Counsel of Record

THEODORE D. FRANK

CHRISTOPHER S. RHEE

E! IZABETH LEISE

AKNOLD & PORTER LLP

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Counsel for Amici Curiae

April 12, 2004

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE.............cccceccesseesseeseeeeeeeeeees |

SUMMARY OF ARGUMENT ............:ccccscsssscessseesseeeseeeeeeeees |

FITS consentensmmtnemennmnmmn 3

I. THE GOVERNMENT HAS A VAST

ARRAY OF TOOLS TO PROTECT

THE UNITED STATES FROM

TERRORIST ATTACK. ...........ccccccsssssssesssseseeseeeeeeeeees 3

A. Existing Tools To Gather Intelligence

AB Out TesPOTIGM..0.cccccccccccecoccscscscsecossscscoscseooeed 4

1. Physical Surveillance ................s0s0+0+ 5

2. Electronic Surveillance .................0+++. 6

3 Physical Searches................csccsseseeees 10

4 Obtaining Records ............:.ssssseseeees 11

5. InterrogatiOn.. ............ssssccsssscsseseeeseees 12

B. Existing Tools to

Apprehend Terrorists ...............scccsesecceseeeeees 14

a Existing Tools to Protect

Classified Information ...............ssessseseseeees 19

Il. THE SWEEPING POWER THE

PRESIDENT CLAIMS IS

SS OPES REEDS cosnncesssserensnsnensssnseserecsumensaneesenst 21

SP ccereseersssnessemassceessenmuensvenmncsescennnesmnmnsenmenntel 30

TABLE OF AUTHORITIES

CASES

Aguilar-Ayala v. Ruiz,

og ft. lk 8 ers 18

Atwater v. City of Lago Vista,

Se es EIT iisesinisiennnternetenaninritsienntiasictenniiidieaniaimmadiiiaial 14

Bacon v. United States,

449 F.2d 933 (9th Cir. 1971) ....................ececeeeeseees 17, 18

Blair v. United States,

aE Ln STE aIEEI ccncnesseaninneadachicnesonmsanpiineneietantiniidiiialtl 11

Braxton v. United States,

Se aan: Une IEEE Ui iceissentreenctttennseiieniaaiiasiaiaatieniiaiiuaiiabiais 17

Crawford v. Washington,

-- ULS. -- , 124 S. Ct. 1354 (2004) ooo. eeeeeeeeeeeeeee 20

Duncan v. Kahanamoku,

Be Ck Se ee icinnsecscnsnininsemeiceimaisindnniimiamads 27

Ex parte Milligan,

oR IR gf} )) er 27

Ex parte Quirin, 317 U.S. 1 (1942) ..cccccocccssccccssovccccossccceses 28

Florida v. Royer, 460 U.S. 491 (1983) ..........ccecceseeeeeeeeeeee 13

Gerstein v. Pugh, 420 U.S. 103 (1975).........:ccccccceeseeeeeeees 27

Hamdi v. Rumsfeld,

SES FSS S50 EBs Cas, BRGS) ecccecccvccccsecccccccccccececcsccscces 28

eee

- iii -

Humanitarian Law Project v. Dep't of Justice,

352 F.3d 382 (Sth Cir. 2003) ........cccccccceseeeeeererereceeeeers 15

Illinois v. Gates, 462 U.S. 213 (1983) .....cccccccececeeceeeeeeeeeees 10

In re Material Witness Warrant,

77 F.3d 1277 (LOth Cir. 1996) ...........ccccccccceeeeeeeeeeeeeeees 19

In re Material Witness Warrant (Doe),

213 F. Supp. 2d 287 (S.D.N.Y. 2002).....:eceeseereereersees 18

In re Newark Morning Ledger,

260 F.3d 217 (3d Cir. 2001)..........cccccccccscessereeseceeseeeeees 19

In re Sealed Case, 310 F.3d 717

(For. Intel. Surv. Ct. Rev. 2002) ........ccccccssesscseeeeeeeeeees 8

Johnson v. Eisentrager, 339 U.S. 763 (1950).......00eee 29

Kasi v. Virginia, 508 S.E.2d 57 (Va. 1998),

cert. denied, 527 U.S. 1038 (1999) ............ccccceeeeeeeeeees 21

Kyllo v. United States, 533 U.S. 27 (2001).....ccessersereeseerenee 5

Maryland v. Pringle,

-- U.S. -- , 124. S. Ct. 795 (2003) .......cccccccccrccccceseseeeees 10

McNabb vy. United States, 318 U.S. 332 (1943)........... 29-30

Miranda v. Arizona, 384 U.S. 436 (1966) .........cccccseeeeeeeee 13

Ornelas v. United States, 517 U.S. 690 (1996)......c.cc0s00000 i0

Padilla v. Bush,

233 F. Supp. 2d 564 (S.D.N.Y. 2002).......cccssereeeee 25-26

Padilla v. Rumsfeld,

243 F. Supp. 2d 42 (S.D.N.Y. 2003)......sccseesenseesersenees 13

-iv-

Padilla v. Rumsfeld,

352 F.3d 695 (2d Cir. 2003)...........-ssccccsssesesesees passim

Reporters Comm. for Freedom of the Press v.

AT&T Co., 593 F.2d 1030 (D.C. Cir. 1978),

cert. denied, 440 U.S. 949 (1979) .........ccccccccecccceeeerceeeees 5

Roviaro v. United States, 353 U.S. 53 (1957)...........+. 19-20

Terry v. Ohio, 392 U.S. 1 (1968) ......cccccccccsscrccessseseesesseeees 13

The Prize Cases, 67 U.S. (2 Black) 635 (1862)................. 29

United States v Al-Arian,

No. 8:03-CR-77-T-30TBM,

2004 WL 516571 (M.D. Fla. Mar. 12, 2004) .............. 15

United States v. Awadallah,

349 F.3d 42 (2d Cir. 2003)..............cccccceceoreesees 17, 18, 27

United States v. Bayer, 331 U.S. 532 (1947) ......cccccceeeeeeeee 17

United States v. Bin Laden,

126 F. Supp. 2d 264 (S.D.N.Y. 2000).......c.ccccceeceeereeees 4

United States v. Flores-Montano,

-- U.S. -- , 124 S. Ct. 1582 (2004) 20.0.0... ..cccccccecceeeeees 10

United States v. Khan, No. CRIM.03-296-A,

2004 WL 406338 (E.D. Va. Mar. 4, 2004).................. 16

United States v. Klimavicius-Viloria,

144 F.3d 1249 (Sth Cir. 1998) ..........ccccccccccccsscsscccceseees 20

United States v. Lee,

90 F. Supp. 2d 1324 (D.N.M. 2000) ..........ccccccrsseeeeesees 20

-V-

United States v. Lindh,

212 F. Supp. 2d 541 (E.D. Va. 2002) ..0........cccccceeeeeees 16

United States v. McGuire,

og 6

United States v. Megahey, 553 F. Supp. 1180

(E.D.N.Y. 1983), aff d sub nom.

United States v. Duggan,

po 8

United States v. Noriega, 117 F.3d 1206

(11th Cir. 1997), cert. denied,

SE i> De Gee rcnesscnssmnnemenenssemsntnemmeenenne 20-21

United States v. Poindexter,

Gad Oe Se TD GK. FE cccrcccsncnscsnsnscnsssssscsmmenass 20

United States v. R. Enters., Inc..,

Ee een 11

United States v. Rahman, 189 F.3d 88

(2d Cir. 1999), cert. denied,

Eee 16, 22

United States v. Regan,

103 F.3d 1072 (2d Cir. 1997)........cccccccccccceceeeecceeees 18-19

United States v. Ressam,

221 F. Supp. 2d 1252 (W.D. Wash. 2002)..............000 20

United States v. Salameh, 152 F.3d 88

(2d Cir. 1998), cert. denied,

eee 21

United States v. Santana, 342 F.3d 60

(1st Cir. 2003), cert. denied,

-- U.S. -- , 124 S. Ct. 1478 (2004) .....................ccccceeeeees 6

- Vi -

United States v. Torres, 751 F.2d 875

(7th Cir. 1984), cert. denied,

I 5

United States v. United States District Court,

eee N CET 27

United States v. Verdugo-Urquidez,

ere 4

United States v. Watson, 423 U.S. 411 (1976)...............006 14

United States v. Yousef,

327 F.3d 56 (2d Cir.), cert. denied,

oo 9 Fe ie GR, Ba CD ccntsrsseressessnmessscnseenes 21

United States v. Yunis,

OU 20

Youngstown Sheet & Tube v. Sawyer,

ED Gs DOP Gap recess 27-28

STATUTES

ee 19

OE 19

ite © Gat rcerssrnenesscesessenennsnansensvesensemenmessenneenasns 19

ee 12

12 U.S.C. § 3414(a)(1 (A)-(C), (a(S )A)......cceeeeeeeeeeeeees 12

12 U.S.C. § 3414(a)(3), (a)(S)(D).........cccccscccerrcceeeccceeeeeeees 12

le ©) Cie rasasesecssnnmscncennnsenesnsmmemesnsmsmmnmnnmennes 12

GD Gaiice ©) Dei ecnnnessessssssessssesnsssseneresssesmesnmmmennsenneseannen 14

- Vii -

De: SET Te: 17

kL a ee 17

I I a iecissisnitteiccineartssiiiitsieaitaaaatl 17

8 PERE Teena. 16

| LTE ae eee een Rc TIe Tee, 17

Em ee ToT 14

18 U.S.C. § 924(c)(1)(A)(iii) .....sesccsscescssesssssececseesecsecesceee 14

The Neutrality Act of 1794,

I cierncticriesintinsnseieiinissiiiasiiiiaaaiitadl 16

I ee iinaiienibtintentcieniistindanitaindinieeniitingy 14

a ivieicccatinrsitinistiinniiiiaiaiatbaaiiiiiiianl 14

I I iicicnimmninitiiiiieel 14

ke een ee ee es 14

ne ee ea 17

Ene ne Ne eI mee 14

EE eae eae ee 17, 25

18 U.S.C. § 2332a(a)(1)...ce.ccsscesescesseesseeseeseseees 14, 16-17, 25

I sinciniiscisticicnntnisiiaiiiniiniiiaibieanead 14

ey 17

ee iiiinitiecinsntininiinemnntiiniinaiail 14-15, 25

I iitersititiianincieiaieaiaiiiiainecicitiatital 15

| EAR RIUR scrrctesnmeans etme er 15, 25

I in seiniecesiintinliitiasianiiaiiatciaciaeialtl 15

I cinciciitininnidibiimrineieintideaiielias 14

as iiisisiiernciianentneiiisisennaiiiiaaiiel 14, 16, 17

BD CBA. § BoD scencssnssezssenssessersnssnsssnssssssssssnvsvenssnsmsssnstes 16

- Vill -

Omnibus Crime Control and Safe Streets Act of 1968,

tit. TTT, 18 U.S.C. §§ 2510 ef Seq ......cccccsccceeesseseeeeeeeesees 6

OU 7

BaP Wie © SID crsarenvassnnneansersrsessnsssemmenesesemmnsmenneneate 7

Ee sees

FD Galle © POEs Gop cenesennsssnssesemecermenssnseemneeseenseneed 6

aD Ween 0) SPD ccrnsnsnssscessrennsnesnennnesmnennenssrenssmmpenenennetente 7

FD Weise © SIP OMIE O Pecnnecsenssesssnenssssneesessnmnensemeemnnsenmeets 9

BD Slice © OD ccnrecmemesusescennsnsneseestnesenmeemmennernenens 12

FD ite © DOR cennesssescessessescenensesenecsmmenennemenel 9

ap ee 0) Pe ee cernsnsmnsscsneremssnsenseennsneneseenmmnenpsemenseed 9

aD Ce OF NID cenessesssssseseeensemsemnmnsemecnents 14, 26

aD ee © ee Orcrnsemecasnsnnesessrsniomenennmennneneneneinmeniats 17

ed ire © IID cererecsscemsnremennneccenmenemnntememnent 28

The Classified Information Procedures Act,

SD Cee GA, Gib ercenenensesmmnnenneee 20

BP Ca ice CIA. TERY © Srccccsczsssnsnssscnsnsensesvesecsenevesnereseensssnn 20

SD Wise RE. GE © SOND cccsremercsssssnesemmnmennnene 20

BD ice RE. Tilly © GID cccssenccnssccsnsscsnscsscesnssneessesneenenes 20

BS UL. AGB. TEE, G EGS) ncoccsccscccccsssccesesccssnsscssnssesseeses 20-21

1S U.S.C. App. TET, § C662) .ccccccccccccccccscoscescocsecscosecsocsocsees 21

SP ise Git rcnrnesncensnnennesseansscssensersenensemsenienenmmmccsees 14

FF ice BH i eicnearncessssemsccesnsenssensccsectemmnenenenen 14

FP tte © TID cnversssenscseneccsssrsssscesanssememeasenreneesemnees 15

Fe ie © Deere cuscsnssenssnsesessnsssenseceeseenssnerseetemenemmeenes 16

Foreign Intelligence Surveillance Act,

FP lice Gp Be G0 GOD crencrsmscsesesemmenend 6,7

- ix -

FD UBL. © GRRE ccccssssscesssssssszssesssssensemssssrssesseeeens 7

50 U.S.C. § 1801(b)(2)(C) ......cssccseseseeseessesseseessseeseessensnes 7

FO UBL. § SEBRERD eccccssereccccssesssrsccscscssvssessssssssasssnssensssevsseee 7

FO UBL. © SEI GID cccesssczssesescvessvessecsasscssesesssnsssvessessavesssssees 7

50 U.S.C. § 1804(a)(7)(B) ........sccssccssssesseesesseserseessreeserssees 8

50 U.S.C. § 1805(a)(3)(A), (B)......ccrcecssessesereseesserseeseeneness 7

FO UBL. © SERGED ccccsszssssvecssessvseseessvsssscesscessessessenssssssssenes 7

FO WBA. § GP rccrccceccssvecssvesevessvssvecccccssvessesevessesssvesesssves 9

SO U.S.C. § 1BZALS ANA) .nccccccccccccceccrcccccsscsscorccssesscosesonsecs 11

SO U.S.C. § 1BZSaT CB) aocccccccccccscecveccsesscssecvscsscsscesscnsece 10

SO UBL. © SE CEAD ccceccscesccescscsssssccssscescssssscessessssssevessepesese 11

SO UBL. © CCG cccescsvesscssecsnsessestvsscescssesssssssscnessesse 10

50 U.S.C. § 1824(C)(1)(D)........scccsscecssssessesseeersesesesssssesees 10

FO UBL. § SBD OGI Ba ceccsccvscscscscssnsesssscssssssessssscessessscessvese 10

SO UBC. 6 BGG, GORGE cccccsnccsseserscsscssessssssvssssssesssessccsseed 9

50 U.S.C. § 1861(a)(1), (B)(2) ....cccccceseessesseeseesseeseensnes 11-12

SO UBC. § BBBEGS) ncccccsccessesserscccsssrsccescssesssvsssscssossscsssseeess 12

SO UBC. § BBBOGR ccrccccccssevssesesscserecccsscssssssvesssesssvsssssesseeee 12

50 U.S.C. § 1862(a), (b)(2)(B) (2000)........cseesseerseseereees 12

Intelligence Authorization Act for Fiscal Year 2004

§ 374(a), Pub. L. 108-177, 117 Stat. 2599, 2628

(2003), codified at 12 U.S.C. § 3414(d) .......ccceseeserees 12

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and

Obstruct Terrorism (USA PATRIOT) Act of

2001, Pub. L. 107-56, 115 Stat. 272 (2001)...........s00e0e00 6

USA PATRIOT Act § 203(a), Pub. L. 107-56,

115 Stat. 272, 278-80 (2001),

codified at Fed. R. Crim. P. 6(€)(3)(D).......:.ceeeeeeeeeeeees 8

USA PATRIOT Act § 203(b)(1), Pub. L. 107-56,

115 Stat. 272, 280 (2001),

Codified at 18 U.S.C. § 2517(6) ....cccceccseseserseereeereeenees 8-9

USA PATRIOT Act § 213, Pub. L. 107-56, 115

Stat. 272, 286 (2001),

Codified at 18 U.S.C. § 3103 a(D) .........scccesecereeeereeeeenees 11

USA PATRIOT Act § 215, Pub. L. 107-56,

11S Seat. 272, DBT (BOI )..cccccccseccccccccecsoscceccccsosccesosscces 12

OTHER LEGAL AUTHORITIES

U.S. Const. amend. DV .........ccccccrcccccccccccccscosccsscsecssosssescosees 10

31 CPR. § SOS.ZOI q.ccoccoceccsccccresccoseccsccccscocssscessscosssoncsencess 16

31 CPR. § 995.206 .....ccccccrcscececcccccccccccessceccssccssscsssssossosoees 16

Continuation of Emergency With Respect to the

Taliban, 66 Fed. Reg. 35,363 (June 30, 2001)....... 15-16

Executive Order 12,333,

46 Fed. Reg. 59,941 (Dec. 4, 1981) .......cccccseeeeees semmnsend 4

Fed. BR. Cota. BP. S$ ....ccccccrcserse-sccceccocescccccsscossscscssscosscncosoosees 27

Fed. BR. Catan. BP. Sf 0) ....ccccccccscescrecccessccecccssscssosnssscvessesssonsess 14

Fed: BR. Crim. BP. 606) ..cccccccccccccccoccccesesccccscenscccssccoonssscccsscsoes 19

Fed. R. Crim. P. G(e(3)(DD)......cccecccscccrscscccccccveescecersceseeseees 8

Fed. R. Crim. P. 411 .............cccscccccsssccsscsccrecsccesessssenenssseoees 10

-Xi-

hs GA, Gin IV aA crcernnsasscemsnscnsnssvensnenesennnmmnsnneen:tenemeciennmieaneies l

SECONDARY SOURCES

Jess Bravin & Glenn R Simpson, Confronting

Iraq and Terror: Florida Professor, 7 Others

Are Accused of Terror Funding, Wall St. J.,

FD, iby Sees Ob Fe accncsessnennesscscssacnensenteentapunanennmasen a4

Committee on Communications and Media Law,

The Press and The Public’ s First Amendment

Right of Access to Terrorism on Trial:

A Position Paper, 57 The Record 94 (2002) .............. 21

Ann Davis, Surprising Number of Bin Laden

Followers are Helping U.S. Investigators,

Wl St. 5... Das. 21, TUG, G6 BA. .ccccccccssncsecscsseccscssscsees 22

Tamer El-Ghobashy & Greg Smith, E-Mail Led to

Cell Bust, N.Y. Daily News, Sept. 17, 2002, at 8........23

FBI Questioned Faris After Sept. 11 Attacks,

Houston Chron., June 21, 2003, at 10...............0.... 22-23

Michael Fletcher, Terror Traced to Tampa,

Tampa TYED., Feb. 21, 2003, af 1 q...cccccosccsccccccsescssceseence

Blaine Harden & Dan Eggen, Duo Pleads Guilty

to Conspiracy Against U.S., Wash. Post, Oct.

SF Ss C0 Bp ccennnemenemenneniennememammnnnes

John Kifner & Marc Santora, Feds Say One in N.Y.

Cell Arranged Training, Pitts. Post-Gazette,

NE, ity eile OE Fil acentnicnstinnennnnesncsinauienemmians

Richard A. Leo, /nside the Interrogation Room,

86 J. Crim. L. & Criminology 266 (1996)..............0+.

- Xii -

Jim McGee, Ex-F Bl Officials Criticize Tactics on

Terrorism: Detention of Suspects Not Effective,

They Say, Wash. Post, Nov. 28, 2001, at Al ......cssssess-- 4

Jerry Markon, Ohio Man Gets 20 Years for Al

Qaeda Plot, Wash. Post, Oct. 29, 2003, at A2....... 22-23

Lynn Marshall & Tomas Tizon, Three Members

of Terrorist Cell Sentenced; One of the

‘Portland Seven’ Expresses Sorrow for

Trying to Join the Taliban After 9/11,

L.A. Times, Feb. 10, 2004, at A12 ...........cscccssesssesseees 23

Michael Powell & Christine Haughney, Los

Angeles Airport Intended Target, Terrorism

Plot Defendant Tells Jury, Wash. Post,

RS, Bes OB BB cee 22

Jerry Seper, /slamic Jihad Suspect Seeks to

Represent Himself, Wash. Times,

Fee 24

Ted Wendling, Ohio Agents Tailed Terrorist for

More Than a Year, Plain Dealer,

ST | 22-23

Witness Said Ready to Testify on Al Qaeda

Suspect, Wash. Post, June 2, 2003, at A2. ..........cc00000 24

MISCELLANEOUS

Tools Against Terror: Hearing Before the Tech.,

Terrorism & Gov't Info. Subcomm. of the

Senate Comm. on the Judiciary,

2002 WL 31272589, 107th Cong. (2002)..............0000008 9

- Xili -

The War Against Terrorism: Hearing Before

the Senate Comm. on the Judiciary,

108th Cong. (2003) ...........-cccsscsrcerceesenee 2, 7-8, 9, 21-22

FISA Annual Reports,

http://fas.org/irp/agency/doj/fisa/index.html ................. 8

U.S. Dep’t of Justice, Attorney General’s

Guidelines for FBI National Security

Investigations and Foreign Intelligence

Collections (Oct. 31, 2003),

http://www.usdoj.gov/olp/nsiguidelines.pdf.................. 6

U.S. Dep’t of Justice, Attorney General’s

Guidelines on General Crimes, Racketeering

Enterprise and Terrorism Enterprise

Investigations (May 30, 2002),

http://www.usdoj.gov/olp/generalcrimes2.pdf .............. 5

Letter from Jamie E. Brown, Acting Ass’t

Attorney General, Office of Legislative

Affairs, to Rep. F. James Sensenbrenner, Jr.,

Chairman, House Judiciary Committee

(May 13, 2003), http://www.house.gov/

judiciary/patriotletO5 1303 pdf .............ccseeeseereeees 17-18

Attorney General John Ashcroft, Remarks on

Attorney General Guidelines (May 30, 2002),

http://www.usdoj.gov/ag/speeches/2002/5300

Press Release, Dep’t of Justice, lyman Faris

Sentenced for Providing Material Support to

Al Qaeda (Oct. 28, 2003), http://www.usdoj.

gov/opa/pr/2003/October/03_crm_589.htm. ......... 22-23

- Xiv -

Press Release, Dep’t of Justice, Mukhtar Al-Bakri

Pleads Guilty to Providing Material Support

to Al Qaeda (May 19, 2003), http://www.

usdoj.gov/opa/pr/2003/May/03_crm_307.htm ...... 23-24

Press Release, Dep’t of Justice, Two Defendants

in ‘Portland Cell’ Case Plead Guilty to

Conspiracy to Contribute Services to the

Taliban, Federal Weapons Charges

(Sept. 18, 2003), http://www.usdoj.gov/

opa/pr/2003/September/03_crm_513.htm ...........0-000++ 23

Press Release, Dep’t of State, Redesignation of

Foreign Terrorist Organizations

(Mar. 22, 2004), http://www.state.gov/r/

pa/prs/ps/2004/30649 tm .............scccsccerseeserseesseeseeees 15

INTEREST OF AMICI CURIAE

Amici curiae are lawyers with many years of

government service in law enforcement and intelligence.

They submit this brief to help the Court understand the legal

and practical framework within which the government has

historically tracked, identified, and punished terrorists, and

prevented terrorist attacks.

SUMMARY OF ARGUMENT

The government asserts that the President has

inherent power to imprison an American citizen indefinitely

and without access to counsel or courts, based upon his

essentially unreviewable determination that the citizen is an

enemy combatant, even when the citizen is arrested within

the United States and not on an active field of battle. The

government claims that this power is essential to perform the

Commander-in-Chief’s function of protecting the Nation

from attack, and that, as Judge Wesley put it in his dissenting

opinion in the Court of Appeals, “[t]he President would

[otherwise] be without any authority to detain a terrorist

citizen dangerously close to a violent or destructive act on

U.S. soil unless Congress declared the area in question a zone

of combat or authorized the detention.” Padilla v. Rumsfeld,

352 F.3d 695, 728 (2d Cir. 2003) (Wesley, J., dissenting in

part). Amici submit that this fear is unfounded.

The government argues that two interests justify the

assertion of presidential authority: preventing acts of terror

' A list of the amici who are filing this brief is set forth in the

Appendix. Counsel for a party did not author this brief in whole or in

part and no person or entity, other than the amici curiae or counsel, has

made a monetary contribution to the preparation or submission of this

brief. Pursuant to Rule 37.3(a) of this Court's rules, the parties have

consented to the filing of this brief. Copies of the consents have been

filed with the Clerk of the Court.

-2-

by enemy combatants and gathering intelligence about

terrorist threats. Pet. Br. at 28-30. These are critical national

interests. But suggesting that the sweeping power the

President asserts here is necessary to accomplish them

undervalues the arsenal of tools already at the government’s

disposal to fight terrorism. Our laws provide robust

investigative techniques and ample detention and prosecution

authority against citizen and non-citizen terrorists alike. In

the last few years alone, the government has arrested and

convicted numerous potential terrorists and many who have

provided them aid. According to the Director of the Federal

Bureau of Investigation, the government and its allies have

thwarted over a hundred terrorist attacks.’ To the extent that

prosecutions have not been possible, or terrorist attacks such

as the tragedy of September 11 have occurred, there is no

indication that the sweeping power claimed here by the

Executive would have made any difference.

Indeed, this very case demonstrates that the authority

asserted by the government is unnecessary. Respondent Jose

Padilla was immediately detained as a material witness upon

entry into the United States. And in declaring Padilla an

enemy combatant, the President relied upon facts that would

have supported charging Padilla with a variety of offenses.

The government thus had the authority to arrest, detain,

interrogate, and prosecute Padilla apart from the

extraordinary authority it claims here. The difference

between invocation of the criminal process and the power

claimed by the President here, however, is one of

accountability. The criminal justice system requires that

defendants and witnesses be afforded access to counsel,

imposes judicial supervision over government action, and

The War Against Terrorism: Hearing Before the Senate Comm. on

the Judiciary, \O8th Cong. 18 (2003) [hereinafter War Against Terrorism

Hearing} (statement of FBI Director Robert S. Mueller).

ifie

places congressionally imposed limits on incarceration. The

government in this proceeding claims the authority to

imprison citizens without counsel, with at most extremely

limited access to the courts, for an indefinite term.

Amici do not address the President’s power to detain

persons, including citizens, seized on an active field of

combat. The exigencies of military action on the battlefield

present an entirely different set of circumstances than the

arrest of a citizen arriving at O’Hare International Airport. In

this brief, however, we describe the ample authorities that

exist — apart from the untrammeled power to detain citizens

the President claims here — to investigate, apprehend, detain,

and prosecute persons who may be planning terrorist acts

against the United States.

ARGUMENT

I. THE GOVERNMENT HAS A VAST ARRAY OF

TOOLS TO PROTECT THE UNITED STATES

FROM TERRORIST ATTACK.

In the absence of specific congressional authorization,

the danger that citizens of this country will commit acts of

violence or conspire to do so has historically been dealt with

as a law enforcement matter. Collectively, it is the

experience of the amici curiae that the tools available now

provide the Executive Branch with broad authority and

flexibility to respond effectively to terrorist threats within our

borders. Of course, no amount of government authority and

resources can prevent every terrorist attack, any more than

the government can prevent every robbery, murder, or fraud.

But insofar as it can be said that terrorist atrocities, including

the September 11 attacks themselves, resulted from any

government “failures,” they were not attributable to a lack of

authority to detain American citizens indefinitely and

incommunicado.

sfc

A. Existing Tools To Gather Intelligence About

Terrorism

The primary tool for preventing terrorist attacks is the

gathering of intelligence. Existing law provides the

Executive Branch with a wide range of powers to uncover

and monitor potential terrorist activities domestically,

including physical surveillance, electronic surveillance,

physical searches, subpoenas and other means of obtaining

records.’ Individuals may be detained and questioned

pursuant to a variety of authorities — the criminal laws, the

Immigration and Nationality Act, and the material witness

Statute, among others. And Congress, recognizing that

investigations often require quick action, has provided

emergency provisions to ensure that the Executive is not

unduly hindered in its ability to respond quickly to emerging

terrorist threats. Indeed, these tools for gathering intelligence

are so productive that using them to conduct covert

surveillance of potential terrorists may be a more effective

long-run strategy than arrests and detention.“

, The government can also conduct electronic surveillance and

physical searches overseas, and can work cooperatively with foreign law

enforcement and intelligence agencies. There are generally no

constitutional restrictions on the use of investigative techniques against

non-United States persons overseas. United States v. Verdugo-Urquidez,

494 U.S. 259, 274-75 (1990); see United States v. Bin Laden, 126 F.

Supp. 2d 264, 276 (S.D.N.Y. 2000). Electronic surveillance and physical

searches can be conducted against U.S. persons abroad to obtain foreign

intelligence information, under certain restrictions imposed by the

Executive Branch. Executive Order 12,333, 46 Fed. Reg. 59,941 (Dec. 4,

1981).

See Jim McGee, Ex-FBI Officials Criticize Tactics on Terrorism:

Detention of Suspects Not Effective, They Say, Wash. Post, Nov. 28,

2001, at Al.

-5-

1. Physical Surveillance

There are few constitutional restrictions on the

government’s ability to gather intelligence through physical

surveillance (i.e., the observation of people and activities).

See, e.g., Reporters Comm. for Freedom of the Press v.

AT&T Co., 593 F.2d 1030, 1064 (D.C. Cir. 1978) (“When

used in good faith, investigative techniques such as physical

surveillance . . . violate no constitutional rights of the

suspects involved.”), cert. denied, 440 U.S. 949 (1979). A

warrant is generally required only when the surveillance

involves physical or technological intrusion into the target’s

home or other private area. Kyllo v. United States, 533 U.S.

27, 40 (2001) (surveillance of home with technology that is

not in general public use requires warrant); United States v.

Torres, 751 F.2d 875, 883 (7th Cir. 1984) (video surveillance

inside target’s business requires warrant), cert. denied, 470

U.S. 1087 (1985).

Accordingly, federal agents are permitted freely to

conduct “[p}Jhysical or photographic surveillance of any

person.” U.S. Dep’t of Justice, Attorney General’s

Guidelines on General Crimes, Racketeering Enterprise and

Terrorism Enterprise Investigations § I1(B)(6)(g), at 10 (May

30, 2002), http://www.usdoj.gov/olp/generalcrimes2.pdf.

Also, “[flor the purpose of detecting or preventing terrorist

activities, the FBI is authorized to visit any place and attend

any event that is open to the public, on the same terms and

conditions as members of the public generally.” /d.

§ VI(A)(2), at 22. These Guidelines were recently amended

te expand the FBI's authority to conduct investigations,

eliminating “unnecessary procedural red tape” that could

interfere with the prevention of terrorist activities. Attorney

General John Ashcroft, Remarks on Attomey General

-6-

Guidelines (May 30, 2002), http://www.usdoj.gov/ag/

speeches/2002/53002agpreparedremarks.htm.”

2. Electronic Surveillance

Within the United States, the government can

intercept communications of potential terrorists pursuant to

either Title II] of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., or the Foreign

Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801 ef

seq. These authorities were significantly expanded by the

passage of the USA PATRIOT Act.° Under Title Il, a

federal court can issue an order authorizing surveillance upon

a showing of probable cause to believe that an individual —

not necessarily the target of the surveillance — has committed,

or is about to commit, one of a large number of enumerated

offenses, and that communications relating to that offense

will be intercepted. 18 U.S.C. § 2518(3)(a), (b).’ The

potential predicates for electronic surveillance under Title III

5 The Justice Department also recently revised its guidelines

governing the conduct of national security investigations, including

terrorism investigations. These guidelines are classified and are

available publicly only in heavily redacted form. U.S. Dep't of Justice,

Attorney General's Guidelines for FBI National Security Investigations

and Foreign Intelligence Collections (Oct. 31, 2003), http://www.usdo}j.

gov/olp/nsiguidelines.pdf.

® Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of

2001, Pub. L. 107-56, 115 Stat. 272 (2001).

’ Title III also requires a showing that normal investigative procedures

have been or are likely to be unsuccessful. 18 U.S.C. § 2518(1)(c). In

practice, this showing has not proved difficult for the government. See,

e.g., United States v. Santana, 342 F.3d 60, 65 (ist Cir. 2003)

(government must show reasonable good faith effort to use normal

investigatory methods but not that it exhausted all procedures), cert.

denied, -- U.S. -- , 124 S. Ct. 1478 (2004); United States v. McGuire, 307

F.3d 1192, 1197-98 (9th Cir. 2002) (government has more latitude to

wiretap when threat is grave).

include most terrorism-related offenses. See id. § 2516(1).

Title III permits the interception of wire communications

(such as telephone or cell phone calls), oral communications,

and electronic communications (including e-mails, faxes, and

pager transmissions). /d. § 2510(1), (2), (12). Orders can be

issued for renewable 30-day periods. /d. § 2518(5).

Even when there is insufficient evidence to

commence a criminal investigation, FISA provides the

government with tocls to investigate “international

terrorism.” 50 U.S.C. §§ 1801 et seg.* Electronic

surveillance under FISA requires the government to obtain an

order from a judge of the Foreign Intelligence Surveillance

Court,’ based upon a showing of probable cause to believe

that the target of the surveillance is “a foreign power or agent

of a foreign power” and is using the facilities or places where

the surveillance will occur. /d. § 1805(a)(3)(A), (B). The

definition of a foreign power includes “a group engaged in

international terrorism or activities in preparation therefor.”

Id. § 1801(a)(4). An agent of a foreign power can include a

U.S. citizen who “knowingly engages in . . . international

terrorism, Or activities that are in preparation therefor.” /d.

§ 1801(b)(2)(C). FISA surveillance can be authorized for up

to 90 days, 120 days, or one year, depending on the target,

and can be renewed by the court. /d. § 1805(e). In 2002, the

government obtained over 1,000 FISA orders targeting

* “International terrorism” includes “violent criminal] acts or acts

dangerous to human life” intended to influence a nation or “intimidate or

coerce ” its population, either outside the United States or “transcend{ing]

national boundaries in terms of the means by which they are

lished. the they wn er intimidate.

or the locale in which their perpetrators operate or seek asylum.” 50

U.S.C. § 1801(c).

* The Foreign Intelligence Surveillance Court was created under FISA

- id essions Ger of il in foreian ineelli

investigations. 50 U.S.C. § 1803(a).

“terrorists, spies, and foreign powers who threaten our

security.” War Against Terrorism Hearing, supra, at 10

(statement of Attorney General John Ashcroft).'°

To obtain a FISA warrant, the government must

certify that “a significant purpose” of the surveillance is the

collection of foreign intelligence information. 50 U.S.C.

§ 1804(a)(7)(B). This language, enacted as part of the USA

PATRIOT Act, greatly enhanced the government’s ability to

use FISA to counter terrorist threats. Previously, some courts

had permitted FISA surveillance only when intelligence

collection was the government’s “primary purpose.” See,

e.g., United States v. Megahey, 553 F. Supp. 1180, 1189-90

(E.D.N.Y. 1983), aff'd sub nom. United States v. Duggan,

743 F.2d 59 (2d Cir. 1984). To ensure that this requirement

was honored, and that FISA was not used in criminal

investigations to bypass the stricter requirements of Title III,

the Department of Justice established limits on the

dissemination of FISA surveillance information to criminal

investigators. See In re Sealed Case, 310 F.3d 717, 727-28

(For. Intel. Surv. Ct. Rev. 2002). The USA PATRIOT Act

largely eliminated these limits, permitting a relatively free

flow of information between intelligence and criminal

investigators. /d. at 734-35."'

” The government's annual FISA reports show that since its inception

the Foreign Intelligence Surveillance Court has approved over 15,000

applications without modification, approved six applications with

modifications, and declined to approve one application while granting

leave to amend. See http://fas.org/irp/agency/doj/fisa/index.html.

'! Similarly, the USA PATRIOT Act relaxed the requirements of grand

jury -secrecy and the confidentiality of intercepted communications, to

permit criminal investigators to share relevant information with

intelligence agents. USA PATRIOT Act § 203(a), 115 Stat. at 278-80

(permitting disclosure of grand jury materials when matters involve

foreign intelligence or counterintelligence), codified at Fed. R. Crim. P.

6&(eX3D); USA PATRIOT Act § 203(b\(1), 115 Stat. at 280 (allowing

Footnote continued on next page

-9.

Importantly, both Title II] and FISA allow the

government to conduct emergency surveillance without a

court order if the need is so pressing that there is no time to

obtain court approval. 50 U.S.C. § 1805(f) (allowing FISA

surveillance for 72 hours before seeking court order); 18

U.S.C. § 2518(7) (allowing Title II] surveillance for 48 hours

before seeking a court order). According to FBI Director

Robert S. Mueller, the government has made extensive use of

these emergency provisions against terrorists.’

In addition to intercepting the contents of wire, oral,

and electronic communications, the government can obtain a

court order permitting the use of pen registers and trap and

trace devices, merely by stating that the information is

relevant to a criminal investigation or to protect against

international terrorism. 18 U.S.C. § 3123(a); 5O U.S.C.

§ 1842(a), (c)(2). These devices allow investigators to record

the receipt and transmission of electronic data such as dialed

or received telephone numbers or e-mail and Internet usage.

18 U.S.C. § 3127(3)-(4). At a congressional hearing in 2002,

a Department of Justice representative stated that the pen

provided a successful tool in the fight against terrorism.

Tools Against Terror: Hearing Before the Tech., Terrorism

& Gov't Info. Subcomm. of the Senate Comm. on the

Judiciary, 2002 WL 31272589, 107th Cong. (2002)

(unpaginated) (statement of Deputy Assistant Attorney

General Alice Fisher).

Footnote continued from previous page

government officials to disclose contents of intercepted communications

if contents include foreign intelligence or counterintelligence), codified at

18 U.S.C. § 2517(6).

12 War Against Terrorism Hearing, supra, at 16 (statement of FBI

Director Mueller).

_ &

3. Physical Searches

The government’s authority to obtain warrants to

search for and seize evidence of a crime, based on probable

cause, is well established. U.S. Const. amend. IV; //linois v.

Gates, 462 U.S. 213, 243-46 (1983); Fed. R. Crim. P. 41.

Probable cause is a “practical, nontechnical conception that

deals with the factual and practical considerations of every

day life on which reasonable and prudent men, not legal

technicians, act.” Maryland v. Pringle, -- U.S. -- , 124 S. Ct.

795, 799 (2003) (internal quotations omitted). It is not

“comparable to the standards of proof beyond a reasonable

doubt or of proof by a preponderance of the evidence.”

Ornelas v. United States, 517 U.S. 690, 696 (1996).

Moreover, the government need not show probable cause to

conduct searches at the border. See United States v. Flores-

Montano, -- U.S. -- , 124 S. Ct. 1582, 1585-86 (2004).

In the case of international terrorism, the government

can also obtain search warrants under FISA. FISA search

warrants do not require a showing of probable cause to

believe that a crime has been or will be committed. Rather,

the government need only establish probable cause to believe

that the target of the search is a foreign power or an agent of

a foreign power and that the premises or property to be

searched is owned, possessed, or used by a foreign power or

an agent of a foreign rower, and certify that a significant

purpose of the search is to obtain foreign intelligence

information. 50 U.S.C. §§ 1823(a)(7)(B), 1824(a)(3). FISA

physical search warrants can authorize multiple searches over

a period of time. /d. § 1824(c)(1)(D). FISA also contains

emergency provisions, one of which allows the government

to search the residence of a suspected terrorist for up to 72

hours before seeking court authorization if notice is provided

immediately to the court. /d. § 1824(e)(1).

sth.

To protect national security and avoid alerting the

targets, the government can execute a FISA search warrant in

secret. See 50 U.S.C. § 1824(a) (authorizing ex parte order

approving FISA physical search); id. § 1822(4)(A)(i) (court

may order landlord or custodian to furnish assistance

“necessary to accomplish the physical search in such a

manner as will protect its secrecy”). Indeed, even in the case

of traditional criminal searches, the USA PATRIOT Act

permits a court to delay notifying a target of the search to

protect an investigation. USA PATRIOT Act § 213, 115

Stat. at 286, codified at 18 U.S.C. § 3103a(b).

4. Obtaining Records

In addition to these extensive investigative powers,

the government has far-reaching powers to obtain records

and evidence. It may use the grand jury process to issue

subpoenas and ferret out information about possible terrorist

threats. There is no probable cause requirement for a grand

jury subpoena; as this Court has recognized, the facts that

might lead to a finding of probable cause, such as the

““identity of the offender, and the precise nature of the

offense, if there be one, normally are developed at the

conclusion of the grand jury’s labors, not at the beginning.””

United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991).

(quoting Blair v. United States, 250 U.S. 273, 282 (1919)).

Thus, the scope of relevancy to a grand jury’s inquiry is

extraordinarily broad. /d. at 301 (records subpoenaed by a

grand jury must be produced unless there is “no reasonable

possibility that the category of materials the Government

seeks will produce information relevant to the general subject

of the grand jury’s investigation”).

Similar broad power exists in investigations of

international terrorism. FISA permits the FBI to obtain from

the Foreign Intelligence Surveillance Court an order for the

production of “any tangible things (including books, records,

- 12.

papers, documents, and other items)” by certifying that the

records are sought as part of an investigation to protect

against international terrorism. 50 U.S.C. § 1861(a)(1),

(b)(2).'* The order must be entered ex parte and without

disclosing the purpose of the investigation. /d. § 1861(c).

Disclosure of the order, even by the recipient, is prohibited.

Id. § 1861(d).

Indeed, in terrorism investigations the government

can obtain certain types of records even without a court order

by the use of so-called “national security letters.” For

example, 12 U.S.C. § 3414 grants the FBI the right to obtain

financial records by certifying that they are sought for

“foreign counter intelligence purposes to protect against

international terrorism or clandestine intelligence activities.”

Id. § 3414(a)(1)(A)-(C), (a)(5)(A)."* As under FISA, a

government request under this provision may not be

disclosed. Jd. § 3414(a)(3), (a)(5)(D). National security

letters can also be used to obtain credit records and

transactional records of wire and electronic communications.

15 U.S.C. § 1681u; 18 U.S.C. § 2709(a).

5. Interrogation

The government has the ability to obtain information

by questioning persons who may be associated with, or have

information about, terrorists. There is, of course, no

'* Section 215 of the USA PATRIOT Act expanded this power. 115

Stat. at 287. Previously, the FBI could only seek business records from a

limited class of entities and the target had to be a “foreign power or an

agent of a foreign power.” 50 U.S.C. § 1862(a), (b)(2)(B) (2000).

'* Recent legislation greatly broadened the range of “financial

institutions” from which records may be obtained by national security

letter to include currency exchanges, travel agencies, pawnbrokers,

casinos, and the U.S. Postal Service. See Intelligence Authorization Act

for Fiscal Year 2004 § 374(a), Pub. L. 108-177, 117 Stat. 2599, 2628

(2003), codified at 12 U.S.C. § 3414(d).

=. -

restriction on the government’s ability to question persons in

a non-coercive setting; agents are free to ask any question of

any person, who is free to decline to answer or simply to

walk away. See, e.g., Florida v. Royer, 460 U.S. 491, 497-98

(1983). If the agent has a reasonable suspicion of criminal

activity, he or she may briefly detain the person for

questioning. Terry v. Ohio, 392 U.S. 1 (1968). Persons who

have been taken into custody can be questioned after they

have been given the warnings required by Miranda v.

Arizona, 384 U.S. 436 (1966) and, if they request counsel, in

the presence of counsel.

The government has argued that these requirements

will impair its ability to obtain information from enemy

combatants, and that it requires indefinite, uncounselled

detention for effective interrogation of terrorists. See Padilla

v. Rumsfeld, 243 F. Supp. 2d 42, 49-53 (S.D.N.Y. 2003). It

may be true that in some cases the government will not be

able to obtain information from citizens who are informed of

their right to counsel, or that obtaining that information may

be delayed — although as the District Court noted in this case,

that conclusion itself is speculative. Jd. at 51-53.'° In fact,

many terrorists who have been arrested and provided counsel

have decided to cooperate and provide valuable information

to the government. See infra pp. 22-24. Others might not

cooperate even if detained indefinitely and without counsel.

But more importantly, as a Nation we have chosen to place

some limits on Executive authority in order to protect

individual authority.

- In a study of interrogation of criminal suspects, over three-quarters

of the suspects waived their Miranda rights, and almost two-thirds

provided incriminating information after being warned. Richard A. Leo,

Inside the Interrogation Room, 86 J. Crim. L. & Criminology 266, 276

tbl. 3, 280-81 tbl. 7 (1996).

sits

B. Existing Tools to Apprehend Terrorists

When investigative tools produce information that an

individual is involved with terrorism, the government has a

variety of authorities under which it can arrest, detain, and

question that person. Most obviously, a person can be

arrested if there is probable cause to believe that he or she

has committed a crime, Atwater v. City of Lago Vista, 532

U.S. 318, 354 (2001); United States v. Watson, 423 U.S. 411,

415-23 (1976), and can be held in custody after arrest.'®

Many federal statutes can be used to arrest and prosecute

persons who actually commit terrorist acts.'’

Of course, preventing a terrorist act from occurring is

far more desirable than apprehending and punishing someone

who has already completed an attack. In recent years,

Congress has passed a number of statutes expanding and

supplementing the government’s authority to prosecute

terrorists before they strike. These include a prohibition on

An arrested individual must be taken before a court “without undue

delay,” Fed. R. Crim. P. 5(a), and can be detained if no bail conditions

would “reasonably assure . . . the safety of any other person and the

community,” 18 U.S.C. § 3142(e). Suspects believed to be involved with

terrorism are likely to be detained as flight risks or dangers to the

community even if they are not charged with terrorism offenses.

'" See, e.g., 18 U.S.C. § 32 (destruction of aircraft or aircraft facilities);

id. §844 (manufacture and handling of explosive materials); id.

§ 924(c)\ 1 Aili) (possession of firearms in furtherance of crimes of

violence); id. § 1111 (murder committed while conducting espionage or

sabotage); id. § 1113 (attempt to commit murder or manslaughter within

special maritime or territorial jurisdiction); id. § 1114 (murder of federal

officer or employee); id. § 1117 (conspiracy to murder a U.S. person,

U.S. officer, or foreign official); id. § 2332 (attempted homicide of U.S.

national outside the U.S.); id. § 2332a(a\(1) (use of certain weapons of

mass destruction); id. § 2332b (acts of terrorism transcending national

boundaries); id. § 2381 (treason); id. § 2384 (seditious conspiracy); 49

U.S.C. § 46502 (aircraft piracy); id. § 46504 (interference with flight

crew members and attendants).

providing “material support or resources,” or concealing

material support or resources, knowing or intending that they

are for use in preparing for or carrying out a terrorist offense,

18 U.S.C. § 2339A; a prohibition on providing “material

support or resources” to any terrorist or organization designated

by the Secretary of State, id. § 2339B;'* and a prohibition on

providing or collecting funds intending that they will be used

to carry out a terrorist act, id. § 2339C. These statutes give

the government considerable authority to prosecute

individuals who are associated with terrorism, long before

any terrorist act has been committed. For example, “material

support” for terrorism includes not only weapons and

personnel, but also training, safehouses, lodging, false

documentation, communications equipment, financial

services, and currency. Id. § 2339A(b)."”

The government has also relied on the International

Emergency Economic Powers Act (IEEPA)” to promulgate

far-reaching regulations to disrupt the funding of terrorist

activity. See, e.g., Continuation of Emergency With Respect

'S As of March 2004, the Secretary of State had identified 37 groups as

foreign terrorist organizations, including al Qaeda. See Press Release,

Dep’t of State, Redesignation of Foreign Terrorist Organizations (Mar.

22, 2004), http://www.state.gov/r/pa/prs/ps/2004/30649.htm.

” The Coun af Agpatio tee Gin Wath Chesets tus tatd Gas sontion

2339B’s prohibition of material support in the form of “personnel” and

“training” is unconstitutionally yague and it required that the defendant

have knowledge that the organization was a terrorist group.

Humanitarian Law Project v. Dep't of Justice, 352 F.3d 382, 393-94,

403-04 (9th Cir. 2003). But see United States v. Al-Arian, No. 8:03-CR-

77-T-30TBM, 2004 WL 516571, at *9-10 (M.D. Fla. Mar. 12, 2004)

(finding it unnecessary to hold Section 2339B unconstitutionally vague

and instead implying mens rea requirement).

“to deal with any unusual and extraordinary thréat, which has its source in

whole or substantial part outside the United States, to the national

security, foreign policy, or economy of the United States if the President

declares a national emergency with respect to such threat”).

-16-

to the Taliban, 66 Fed. Reg. 35,363 (Jun. 30, 2001). Under

IEEPA regulations, “no U.S. person may deal in property or

interests in property of a specially designated terrorist,

including the making or receiving of any contribution of

funds, goods, or services to or for the benefit of a specially

designated terrorist.” 31 C.F.R. § 595.204 (2003).”

Violations of the IEEPA regulations are felonies. 50 U.S.C.

§ 1705(b). The government can also freeze accounts or seize

property belonging to terrorist organizations when these

items come within the United States or within the possession

of a United States citizen. 31 C.F.R. § 595.201.

U.S. citizens associating themselves with terrorist

groups will often be subject to prosecution under other

Statutes as well. The seditious conspiracy statute prohibits

plotting to overthrow the United States, to levy war against

the Nation, or unlawfully to seize or possess any government

property. 18 U.S.C. § 2384. Another statute forbids enlisting

within the United States “with intent to serve in armed

hostility against the United States.” Jd. §2390. The

Neutrality Act of 1794 prohibits various acts of war against

entities with whom the United States is at peace. /d. §§ 958-

962. The reach of these statutes is not limited to traditional

conflicts between nations, but extends to terrorist activities.”

Finally, statutes of more general applicability can also

be used to reach inchoate terrorist activity. See, e.g., 18

U.S.C. §371 (conspiracy to violate federal law); id.

§ 2332a(aX{l) (attempted use of a weapon of mass

*! See United States v. Lindh, 212 F. Supp. 2d 541, 560-64 (E.D. Va.

2002) (upholding IEEPA regulations in prosecution of American who

fought alongside the Taliban in Afghanistan).

2 See, e.g. United States v. Rahman, 189 F.3d 88, 123 (2d Cir. 1999),

cert. denied, 528 U.S. 1094 (2000) (seditious conspiracy); United States

v. Khan, No. CRIM.03-296-A, 2004 WL 406338, at *23 (E.D. Va. Mar.

4, 2004) (Neutrality Act, 18 U.S.C. § 2390).

o 87.

destruction).”’ A conspiracy charge does not require that a

defendant actually carry out the goals of the conspiracy.

Rather, the government must prove only an agreement to

achieve an unlawful objective, a defendant’s knowing and

voluntary participation in that agreement, and the

commission of an overt act (not necessarily by the defendani )

that furthers the conspiracy. United States v. Bayer, 331 U.S.

532, 542 (1947). Similarly, establishing that a defendant

attempted a crime requires only proof that he or she has

“taken a substantial step towards that crime” and “had the

requisite mens rea.” Braxton v. United States, 500 U.S. 344,

348 (1991). In short, the government need not await the

actual commission of a terrorist act to arrest, prosecute, and

convict a would-be terrorist.

Even when there is insufficient evidence to charge a

citizen with a crime, the material witness statute, 18 U.S.C.

§ 3144, permits the detention of a person whose testimony is

“material in a criminal proceeding” if “it may become

impracticable to secure the presence of the person by

subpoena.” This statute is an effective counter-terrorism tool

for several reasons. Because a grand jury investigation is a

“criminal proceeding” for purposes of this statute, see United

States v. Awadallah, 349 F.3d 42, 49-64 (2d Cir. 2003),

Bacon v. United States, 449 F.2d 933, 939-41 (9th Cir. 1971),

and because of the broad scope of grand jury investigations,

see supra p. 11, the government can detain a suspected

*} Numerous specific conspiracy provisions could also apply to

terrorist activity. See, e.g., 18 U.S.C. § 37 (conspiracy to commit

violence at international airport); id. § 175(a) (to collect or use biological

weapons); id. § 229%a)(2) (to collect or use chemical weapons); id. § 372

(to injure any officer of the United States); id. § 1203(a) (to take

hostages); id. § 2332a (to use a weapon of mass destruction); id.

§ 2332b(aX(2) (to terrorize across international boundaries), id. § 2384

(seditious Conspiracy).

- 18 -

terrorist as a material witness before it has evidence sufficient

to support a criminal arrest or indictment.”

The government can obtain a material witness warrant

with relative ease. For a grand jury witness, the required

showing can be made by a good faith statement by a

prosecutor or investigating agent that the witness has

information material to the grand jury. Bacon, 449 F.2d at

943; Awadallah, 349 F.3d at 65-66. Nor would establishing

that a suspected terrorist poses a flight risk be an onerous

task. See 349 F.3d at 69 (bail denied in part because witness

failed to come forward with material testimony concerning

terrorist attack).

Finally, the material witness statute can help prevent

terrorist acts by incapacitating terrorists. A material witness

may only be detained until his or her testimony has been

secured. Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413, 419-20

(Sth Cir. 1992). However, if further investigation reveals

evidence that the witness was actually part of a terrorist

conspiracy or has committed perjury before the grand jury,

he or she may be re-arrested as a criminal suspect, without

the necessity of release. See Awadallah, 349 F.3d at 47, 63,

70; In re Material Witness Warrant (Doe), 213 F. Supp. 2d

287, 303 (S.D.N.Y. 2002) (citing United States v. Regan, 103

- Following the September |! attacks, the government detained a

number of individuals as material witnesses to its investigation, half of

whom were held for 30 days or more. Letter from Jamie E. Brown,

Acting Ass't Attorney General, Office of Legislative Affairs, to Rep. F.

James Sensenbrenner, Jr., Chairman, House Judiciary Committee, at 50

(May 13, 2003), http://www.house.gov/judiciary/patriotiet05 1 303.pdf.

See also Padilla, 352 F.3d at 699-700, Awadallah, 349 F.3d at 47; In re

Material Witness Warrant (Doe), 213 F. Supp. 2d 287, 288 (S.D.N.Y.

2002).

+ LO

-19- 2

F.3d 1072, 1079 (2d Cir. 1997)).* The suspected terrorist

will thus remain unable to perpetrate any attacks.”

C. Existing Tools to Protect Classified Information

Prosecution of terrorists often requires balancing the

defendant’s constitutional rights and the government’s

legitimate interests in protecting national security. Federal

law amply recognizes these national security interests and

protects them in a variety of contexts. Federal grand jury

proceedings, and proceedings ancillary to the grand jury, are

secret. Fed. R. Crim. P. 6(e); see In re Newark Morning

Ledger, 260 F.3d 217, 226 (3d Cir. 2001) (“The secrecy

afforded to grand jury materials under Fed. R. Crim. P. 6(e)

extends beyond the actual grand jury proceeding to collateral

matters, including contempt proceedings, which relate to

grand jury proceedings and may potentially reveal grand jury

information.”) (citations omitted). For example, in the

present case the material witness warrant for Padilla’s arrest,

and the affidavit submitted by the government in support of

that warrant, remain sealed. More generally, the government

> For example, Terry Nichols, one of the perpetrators of the Oklahoma

City bombing, was initially arrested and detained as a material witness,

and was not actually charged with the crime for 18 days. /n re Material

Witness Warrant, 77 F.3d 1277, 1278-79 (10th Cir. 1996).

provides additional authority to detain potential terrorists. Any alien

seeking to enter the country who has engaged in terrorist activity, or who

the government has reasonable ground to believe is likely to engage in

terrorist activity, is inadmissible for national security reasons. 8 U.S.C.

§ 1182(aX3\B). Similarly, an alien who is lawfully in the country who

engages in terrorist activity is deportable. /d. § 1227(aX4)A)+B).

“Engaging in terrorist activity” is broadly defined to include not only

Carrying out terrorist acts, but also planning or preparing for such acts, or

membership in or material support for a terrorist organization. /d.

§ 1182(aX3B iv). Any alien who the Attorney General certifies is

or inadmissible for national security reasons must be detained

until removed. /d. § 1226a.

- 20 -

is permitted to withhold the identity of informants in many

circumstances. See, e.g., Roviaro v. United States, 353 U.S.

53, 59-61 (1957). And, as happened in this case, courts will

frequently permit the government to file papers under seal ‘f

disclosure of the information in those papers could harm

national security. See, e.g., United States v. Ressam, 221 F.

Supp. 2d 1252, 1264 (W.D. Wash. 2002) (denying press

requests to unseal classified documents filed under seal).

The Classified Information Procedures Act (CIPA),

18 U.S.C. App. Ill, gives courts additional ability to protect

classified materials during criminal prosecutions.” CIPA

permits the court to authorize the government to delete

classified information from any materials disclosed to the

defendant, to substitute a summary of such classified

documents, or to substitute admissions regarding the relevant

facts that the classified information would tend to prove. /d.

§ 4. A defendant must notify the government and the court in

writing before disclosing classified information. /d. § 5(a).

Before any classified information may be used at trial

or pretrial, the government can request a hearing to determine

its relevance and admissibility. /d. § 6(a). This hearing may

be held ex parte and in camera. See, e.g., United States v.

Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998). If

the court determines that the evidence is admissible, the

government must then find an alternative method of getting

the information to the jury that is less harmful to national

*”” CIPA’s constitutionality has been upheld. See, e.g., United States v.

Yunis, 924 F.2d 1086, 1094 (D.C. Cir. 1991) (rejecting Fifth and Sixth

Amendment challenges); United States v. Lee, 90 F. Supp. 2d 1324,

1326-29 (D.N.M. 2000) (same); United States v. Poindexter, 725 F. Supp.

13, 33-35 (D.D.C. 1989) (same). But cf. Crawford v. Washington, -- U.S.

-- , 124 §. Ct. 1354 (2004) (holding that Confrontation Clause generally

prevents use of testimonial statements by prosecution when defendant

lacks opportunity to cross-examine witness).

21 -

security, such as providing an unclassified summary of the

relevant information or admitting certain facts. 18 U.S.C.

App. Ill, § 6(c); United States v. Noriega, 117 F.3d 1206,

1215 (11th Cir. 1997), cert. denied, 523 U.S. 1060 (1998).

Ultimately, however, if no adequate substitute can be found,

the court has the authority to strike certain counts, preclude

certain evidence, make findings against the government, or

even dismiss the case, if it is necessary in the interest of

justice. 18 U.S.C. App. Ill, § 6(e)(2). A recent examination

of the use of CIPA showed that charges are rarely

dismissed.”

Il. THE SWEEPING POWER THE PRESIDENT

CLAIMS IS UNWARRANTED.

These authorities, broad and powerful on paper, have

been effective in practice. Over the last decade, the

investigative, detention, and prosecutive authorities discussed

above have been used in many cases not only to identify,

arrest, and punish persons who have committed terrorist

acts,” but to disrupt and thwart terrorism before it can occur.

A year ago Attorney General Ashcroft identified 211

terrorism-related criminal charges that had been brought to

that date, with 108 convictions or guilty pleas. War Against

Terrorism Hearing, supra, at 10 (statement of Attomey

* Committee on Communications and Media Law, The Press and The

Public's First Amendment Right of Access to Terrorism on Trial: A

Position Paper, 57 The Record 94, 161 1.263 (2002) (authors found only

one case in which a court dismissed charges pursuant to § 6(¢)).

% See, e.g., United States v. Yousef, 327 F.3d 56 (2d Cir.), cert. denied,

-- US. -- , 124 S. Ct. 353 (2003) (affirming convictions of defendants

involved in 1993 World Trade Center bombing and conspiracy to hijack

airliners); United States v. Salameh, 152 F.3d 88 (2d Cir. 1998), cert.

denied, 526 U.S. 1028 (1999) (affirming convictions of defendants

involved in 1993 World Trade Center bombing); Kasi v. Virginia, 508

S.E.2d 57 (Va. 1998), cert. denied, 527 U.S. 1038 (1999) (affirming

conviction of defendant who murdered CLA employees).

, -

General Ashcroft). A listing of some of these cases

illustrates the effectiveness of the investigative tools we have

described to stop terrorists before they carry out their plans:

e Sheikh Omar Abdel Rahman and his followers were

convicted of plotting a “day of terror” against New

York City landmarks, including the United Nations

building, the Lincoln and Holland Tunnels and the

George Washington Bridge. The government used

traditional investigatory powers, including physical

surveillance, search warrants, and informants, to track

the activities of this group, and arrested them when

they had begun building an explosive device. United

States v. Rahman, 189 F.3d 88 (2d Cir. 1999).

e Ahmed Ressam, the so-called “Millennium Bomber,”

was arrested in December 1999 as he attempted to

enter the United States in a rental car containing

homemade explosives and timers. Ressam eventually

pleaded guilty and cooperated extensively with the

government in its prosecution of others involved in

the planned attacks. He also provided more general

information about al Qaeda and its training camps in

Afghanistan and identified potential terrorists.”

e lyman Faris pleaded guilty to providing material

support for terrorism. Faris visited an al Qaeda

training camp in Afghanistan and investigated the

destruction of bridges in the United States by severing

their suspension cables. The government developed

evidence through physical and electronic surveillance

*” See Michael Powell & Christine Haughney, Los Angeles Airport

Intended Target, Terrorism Plot Defendant Tells Jury, Wash. Post, July 4,

2001, at A2; see also Ann Davis, Surprising Number of Bin Laden

Followers are Helping U.S. Investigators, Wall St. j.. Dec. 21, 2001, at

Bi.

and a search of his residence. After his arrest Faris

cooperated with investigators.”!

e Several members of a terrorist cell in Portland,

Oregon, were indicted on conspiracy, material

support, and firearms charges. One of the defendants

pleaded guilty and testified against the others, leading

to guilty pleas from them: Six of the men had

attempted to travel to Afghanistan to assist the

Taliban. The government used electronic surveillance

and the authorities of the USA PATRIOT Act to

develop evidence in the case.”

e Six residents of New York State pleaded guilty to

charges arising from their travel to Afghanistan and

attendance at al Qaeda training camps. The evidence

against them was developed from _ electronic

surveillance. They agreed to cooperate | , With

government investigations of terrorist activities.””

*! See Jerry Markon, Ohio Man Gets 20 Years for Al Qaeda Plot,

Wash. Post, Oct. 29, 2003, at A2; FBI Questioned Faris After Sept. 11

Attacks, Houston Chron., June 21, 2003, at 10; Ted Wendling, Ohio

Agents Tailed Terrorist for More Than a Year, Plain Dealer, June 21,

2003, at Al; see also Press Release, Dep't of Justice, lyman Faris

Sentenced for Providing Material Support to Al Qaeda (Oct. 28, 2003),

http://www.usdoj.gov/opa/pr/ 2003/October/03_crm_589.htm.

%2 See Lynn Marshall & Tomas Tizon, Three Members of Terrorist Cell

Sentenced; One of the ‘Portland Seven’ Expresses Sorrow for Trying to

Join the Taliban After 9/11, L.A. Times, Feb. 10, 2004, at Al2; Blaine

Harden & Dan Eggen, Duo Pleads Guilty to Conspiracy Against U S.,

Wash. Post, Oct. 17, 2003, at A3; see also Press Release, Dep’t of Justice,

Two Defendants in ‘Portland Cell’ Case Plead Guilty to Conspiracy to

Contribute Services to the Taliban, Federal Weapons Charges (Sept. 18,

2003), http://www.usdoj.gov/opa/pr/2003/September/03_crm_513.htm.

*® See John Kifner & Marc Santora, Feds Say One in N.Y. Cell

Arranged Training, Pitts. Post-Gazette, Sept. 18, 2002, at A6; Tamer El-

Ghobashy & Greg Smith, E-Mail Led to Cell Bust, N.Y. Daily News,

Sept. 17, 2002, at 8; see also Press Release, Dep't of Justice, Mukhtar Al-

Footnote continued on next page

-24-

e Earnest James Ujaama pleaded guilty to providing

material support to terrorism related to his

involvement in a 1999 plan to build a terrorist training

camp in Oregon. After pleading guilty, Ujaama

cooperated with the government, serving as a key

witness in a grand jury investigation of an alleged top

al Qaeda recruiter.

e Sami Al-Arian, a university professor, and seven

others were indicted for conspiring to finance terrorist

attacks. The evidence against Al-Arian was derived

from extensive FISA wiretaps, which could be used in

the criminal case because of the new procedures

enacted by the USA PATRIOT Act.””

As this discussion demonstrates, there is both a robust

legal framework to combat terrorism and a demonstrated

history of successful use of those authorities without resort to

the extraordinary power claimed here by the President.

Contrary to the fears expressed by Judge Wesley in his

dissenting opinion, the President has ample “authority to

detain a terrorist citizen dangerously close to a violent or

destructive act on United States soil.” Padilla, 352 F.3d at

728 (Wesley, J., dissenting in part). Indeed, there is no

indication that any of these cases depended in any way upon

such a detention.

Footnote continued from previous page

Bakri Pleads Guilty to Providing Material Support to Al Qaeda (May 19,

2003), http://www.usdoj.gov/opa/pr/2003/May/03_crm_307.htm.

See Witress Said Ready to Testify on Al Qaeda Suspect, Wash. Post,

June 2, 2003, at A2.

* See Jerry Seper, /slamic Jihad Suspect Seeks to Represent Himself,

Wash. Times, May 27, 2003, at Al; Michael Fletcher, Terror Traced to

Tampa, Tampa Trib., Feb. 21,. 2003, at 1; Jess Bravin & Glenn R.

Simpson, Confronting Iraq and Terror: Florida Professor, 7 Others Are

Accused of Terror Funding, Wall St. J., Feb. 21, 2003, at A8.

- 25 «

The record in the instant case demonstrates that these

authorities were available, and to some extent were actually

used, to deal with Padilla himself. Padilla was arrested on

May 8, 2002, pursuant to a material witness warrant. Padilla

v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). The court

issued the warrant based upon an affidavit from an FBI agent

averring that Padilla possessed knowledge of facts relevant to

a grand jury investigation of the September 11 attacks. /d. at

571. The affidavit was sealed by the District Court and

remains under seal. Padilla was transported to New York,

where he was detained and counsel was appointed to

represent him. Padilla, 352 F.3d at 700. The government

subsequently asked the court to vacate the material witness

warrant and transferred Padilla to the custody of the

Department of Defense based upon the President’s

determination that Padilla was an enemy combatant. /d. For

almost two years thereafter, until his case came before this

Court, Padilla was held incommunicado, without access to

his lawyer. See id. '

When Padilla was arrested pursuant to the material

witness warrant, his terrorist plans were thwarted. He was

then available to be questioned to the same extent as any

other citizen suspected of criminal activity. Moreover, the

facts set forth in the President’s findings, and the facts

presented to the District Court, are more than sufficient to

support criminal charges against Padilla, including providing

material support to designated terrorist organizations, 18

U.S.C. § 2339B; providing material support to terrorists, id.

§ 2339A; conspiracy to use a weapon of mass destruction, 18

U.S.C. § 2332a; and attempted use of a weapon of mass

destruction, id. § 2332a(a)(1). Finally, Padilla’s history of

approached a senior officer of al Qaeda, proposed stealing radioactive

material to build a “dirty bomb” and detonate it in the United States,

researched such a project at an al Qaeda safe house in Pakistan, had

Footnote continued on next page

- 26 -_

travel outside the United States, previous criminal record,

and terrorism-related activities clearly justified detaining

him. 18 U.S.C. § 3142(e). In short, the procedures of the

criminal law provided an ample basis to detain Padilla, to

subject him to interrogation, and to keep him from carrying

out any violent acts against the United States or any of its

citizens. It is difficult to imagine any circumstances in which

a terrorist would meet the standards for designation as an

enemy combatant described by the government, see Pet. Br.

at 27, and not be subject to arrest as a material witness or a

criminal.

The difference between what the government did in

this case, and what existing law authorizes it to do, is one of

accountability and transparency. The government could have

continued to detain Padilla, but would have been required to

justify the detention to a court in an adversary proceeding,

based on the traditional probable cause standard. The

government could have questioned Padilla, but would have

had to secure the consent of his lawyer to do so. The

government could have convicted and imprisoned him, but

would have had to do so after a trial in District Court. By

denying him these protections, the Executive Branch is

claiming a virtually unlimited right to arrest citizens within

the United States based solely upon the President’s

determination that they are enemy combatants, and to

imprison them incommunicado for an indefinite period of

time without counsel and without meaningful judicial review.

This untrammeled power stands in stark contrast to

the legal framework described above. Indeed, none of the

Footnote continued from previous page

“extended contacts” with al Qaeda, received training in furtherance of

terrorist activities from al Qaeda, and was sent to the United States to

conduct reconnaissance or terrorist attacks on behalf of al Qaeda.

Padilla, 233 F. Supp. 2d at 572-73.

2 -

governmental powers described in this brief permits any

substantial deprivation of a citizen’s liberty or invasion of his

or her privacy without congressional authorization and

judicial oversight. To pick just one example, electronic

surveillance under either Title [Il or FISA is authorized by

Statute; requires a court order based on a factual showing

under oath; is limited in time and scope; and is subject to

subsequent judicial review in court proceedings. See supra

pp. 6-9. Even in emergency situations, electronic

surveillance is permitted without judicial supervision for only

a brief period of time. Similarly, the arrest and detention of

citizens within the United States pursuant to the criminal law

or the material witness statute normally requires a judicial

warrant and carries the right of subsequent judicial review

with the assistance of counsel; while law enforcement

officials may arrest individuals without a warrant, they must

timely demonstrate to a court that they had probable cause to

do so. Gerstein v. Pugh, 420 U.S. 103 (1975); Fed. R. Crim.

P. 5; Awadallah, 349 F.3d at 59-62 (summarizing numerous

procedural safeguards afforded to material witnesses).

The broad and largely unsupervised authority claimed

by the Executive Branch is also inconsistent with the

fundamental principles of our Constitution. Arbitrary arrest

and imprisonment by the King was one of the principal evils

that the Constitution and the Bill of Rights were meant to

address. See Duncan v. Kahanamoku, 327 U.S. 304, 322

(1946). These principles have been adhered to even when

national security is implicated. For example, this Court

rejected the claim that the Executive had inherent authority to

detain an alleged Confederate sympathizer outside the field

of battle where courts were functioning. Ex parte Milligan,

71 U.S. (4 Wall.) 2 (1866) It questioned the Executive’s

authority to conduct electronic surveillance in the interest of

national security, at least when foreign powers are not

involved. United States v. United States District Court, 407

U.S. 297 (1972). And it rejected a claim that the Executive

- 28 -

had authority to seize steel mills in wartime. Youngstown

Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). The power

which the Executive seeks in this case is far broader and far

more terrifying.”

Congress has recognized the danger inherent in

Executive power to detain citizens and has provided that

“[n]Jo citizen shall be imprisoned or otherwise detained by the

United States except pursuant to an Act of Congress.” 18

U.S.C. §4001(a). This statute could not be a clearer

congressional rejection of the inherent Executive authority

claimed here. The government contends, however, that the

Joint Resolution passed by Congress on September 18, 2001,

sufficiently authorizes the actions it took here to satisfy

section 4001(a). Pet. Br. at 38-44. But that Resolution

merely grants broad and generic authority to use military

force against the nations, organizations and persons that the

President determines were involved in the September 11

attacks. Pet. App. 59a-60a. As the Court of Appeals held,

there is “no reason to suspect” that Congress, in granting

authority to use military force, “believed it would be

authorizing the detention of an American citizen already held

in a federal correctional institution and not ‘arrayed against

our troops’ in the field of battle.” Padilla, 352 F.3d at 723

(quoting Hamdi v. Rumsfeld, 316 F.3d 450, 467 (4th Cir.

2003)). A clearer statement of congressional authorization

*’ For the reasons stated by the Court of Appeals, Ex parte Quirin, 317

U.S. 1 (1942), upon which the government principally relies, does not

support the detention of Padilla in this case. Padilla, 352 F.3d at 715-17.

** The government claims that, despite the plain and unqualified

language of this statute, it does not apply to detention or imprisonment by

the military. Pet. Br. 44-49. But the statute refers broadly to detention or

imprisonment “by the United States,” not by any particular department or

agency of the Nation.

- 29 -

should be required before this Court permits the Executive to

imprison citizens indefinitely only upon its own say-so.”

- Amici do not question the power of the President, as

Commander-in-Chief, to detain persons, even citizens, seized

on an active field of battle. We recognize that the President

has broad authority as Commander-in-Chief during a time of

war or threat to the security of our Nation. See, e.g., The

Prize Cases, 67 U.S. (2 Black) 635 (1862). But the

exigencies of the battlefield present a vastly different

circumstance than even the bustle of O’Hare Airport. There

is little or no risk in this case of “fettering . . . a field

commander” or “divert[ing] his efforts and attention from the

military offensive abroad to the legal defensive at home.”

Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). While the

government suggests that Padilla was arrested on a

“battlefield,” Pet. Br. at 37-38, under its standards the

“battlefield” against terrorism could extend throughout the

world and the “hostilities” could be of indefinite and perhaps

undefinable duration. Legal standards developed to deal with

traditional wars cannot be imported wholesale into this very

different context.

Amici recognize that these limitations might impede

the investigation of a terrorist offense in some circumstances.

It is conceivable that, in some hypothetical situation, despite

the array of powers described above, the government might

be unable to detain a dangerous terrorist or to interrogate him

or her effectively. But this is an inherent consequence of the

limitation of Executive power. No doubt many other steps

could be taken that would increase our security, and could

* Congress does not lack the ability to act quickly in response to

national emergencies. The Resolution authorizing the use of force was

passed one wéek after the attacks of September 11; the far more

complicated USA PATRIOT Act was passed less than seven weeks after

those attacks. 2

- 30 -

enable us to prevent terrorist attacks that might otherwise

occur. But our Nation has always been prepared to accept

some risk as the price of guaranteeing that the Executive does

not have arbitrary power to imprison citizens. McNabb v.

United States, 318 U.S. 332, 343 (1943). It is amici’s belief,

moreover, that given the expansive authorities that otherwise

exist, the risk to the Nation from denying the Executive the

authority it seeks in this case is minimal. If additional

Executive authority to detain citizens found within the United

States is deemed necessary to protect against terrorism, that

authority should come through congressional action, where

the boundaries of that power can be defined, the terms of any

such detention can be set, and the procedure can be subject to

judicial oversight. This Court has never countenanced the

untrammeled authority the Executive Branch seeks in this

case; it should not do so now.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

ROBERT S. LITT

Counsel of Record

THEODORE D. FRANK

CHRISTOPHER S. RHEE

ELIZABETH LEISE

ARNOLD & PORTER LLP

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

- la-

APPENDIX

Amici Curiae in Support of Respondents

JANET RENO served as Attorney General of the United States

from 1993 to 2001. After working for three years in the

Dade County State Attorney’s Office in Florida, she became

State Attorney for Dade County in 1978. She served in that

office until she became Attorney General.

PHILIP B. HEYMANN was Deputy Attorney General of the

United States from 1993 to 1994. He also served as Assistant

Attorney General in charge of the Criminal Division of the

Department of Justice between 1978 and 1981. He has held a

number of positions in the Department of State, and has

written two books about terrorism. Presently he is a professor

of criminal law at Harvard Law School.

Eric H. HOLDER, JR. was Deputy Attorney General of the

United States from 1997 to 2001, and Acting Attorney

General in 2001. For over 20 years, he was a trial attorney in

the Criminal Division of the Department of Justice. In 1988,

he became an Associate Judge on the Superior Court for the

District of Columbia. From 1993 to 1997, he served as the

United States Attorney for the District of Columbia.

JEFFREY H. SMITH was the General Counsel of the Central

Intelligence Agency from 1995 to 1996. In 1993, he was

appointed by the Secretary of Defense to serve on the

Commission to Review the Roles and Missions of the Armed

Services. Previously, he chaired the Joint Security

Commission established by the Department of Defense and

the Central Intelligence Agency to review security policy and

practices in the defense and intelligence communities.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.