Amicus Curiae Brief — Al-Marri v. Spagone (No. 08-368)

\\\ No. 08-368 wee FILED

a JAN-2-8 2009

| In The OFFICE OF THE CLERK

Supreme Court of the United States

4

ALI SALEH KAHLAH AL-MARRI,

Petitioner,

V.

COMMANDER DANIEL SPAGONE,

U.S.N., Consolidated Naval Brig.

.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

m

BRIEF OF THE CATO INSTITUTE, THE

CONSTITUTION PROJECT, AND THE

RUTHERFORD INSTITUTE, AS

AMICI CURIAE IN SUPPORT OF REVERSAL,

¢

DREw S. Days, II

TIMOTHY LYNCH BETH S. BRINKMANN

THE CaTO INSTITUTE BRIAN R. MATSUI

1000 Massachusetts Ave... NW KETANJI BROWN JACKSON*

Washington, D.C. 20001 BORIS YANKILOVICH

Counsel for The Cato Institute | MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

SHARON BRADFORD FRANKLIN Washington D.C. 20006

THE CONSTITUTION PROJECT halal

? 202) 887-1é

1025 Vermont Ave., NV (202) 887-1568

Washington, D.C. 20005 Counsel for The _

| Constitution Project and

Counsel for The

Constitution Project The Rutherford Institute

JOHN W. WHITEHEAD *Counsel of Record

THE RUTHERFORD INSTITUTE

P.O. Box 7482

Charlottesville, VA 22906

Counsel for The

Rutherford Institute

January 28, 2009

COCKLE LAW BRIEF PRINTING CO (&00) 225-6964

OR CALL COLLECT . 402) 342-2831

BOTH YaAWwoKW

QUESTION PRESENTED

Whether the Executive’s use of military power

inside the United States to detain, without charge or

trial, a person who is lawfully in the United States

violates the Constitution where Congress has not

expressly authorized such detention.

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

THE EXECUTIVE’S USE OF MILITARY POWER To

DETAIN WITHOUT CHARGE OR TRIAL PERSONS

WHo ARE LAWFULLY IN THE UNITED STATES IS

NoT AUTHORIZED By CONGRESS OR By THE Con.-

STITUTION

A.

Congress Has Not Authorized The Execu-

tive To Use The Military To Detain With-

out Charge Or Trial Persons Who Are

Lawfully In The United States

ie

The AUMF does not authorize such de-

tention

The court of appeals’ ruling violates

longstanding principles that require a

clear statement from Congress when it

authorizes the Executive to curtail in-

ee sack ccckesneksenseenceneseséansesess

This Court has not previously construed

a general congressional authorization

for the use of military force, like the

AUMF, to confer upon the Executive the

power to use the military to detain

without charge or trial persons who are

lawfully in the United States .................

TABLE OF CONTENTS — Continued

Page

Congress’s contemporaneous creation

of a detailed scheme in the Patriot Act

for detention of domestic terrorism

suspects that does not authorize mili-

tary detention without charge or trial

contradicts the Executive’s interpreta-

tion of the AUMF

Article Il Of The Constitution Does Not

Grant The Executive Inherent Authority

To Use The Military To Detain Without

Charge Or Trial Persons Who Are Lawfully

In The United States

1. The Commander-in-Chief Clause of Ar-

ticle II does not provide the President

with inherent authority to use the

military to detain persons who are law-

fully in the United States

In the absence of congressional au-

thorization, the Executive cannot sub-

ject a person who is lawfully in the

United States to military detention in

lieu of civilian criminal prosecution

without encroaching on the powers of

other branches of government

A Ruling That The Executive Has The

Power To Use The Military To Detain With-

out Charge Or Trial Persons Who Are Law-

fully In The United States Would Undermine

Our Civilian Criminal Justice System And

Important Rights Of Citizens........... ascites 36

1V

TABLE OF CONTENTS — Continued

Page

The military detention authority that

the Executive claims in this case would

permit manipulation of the civilian

criminal justice system

The power claimed here by the Execu-

tive would imperil citizens and non-

citizens alike

CONCLUSION

Vv

TABLE OF AUTHORITIES

Page

CASES:

Arar v. Ashcroft, 5382 F.3d 157 (2d Cir. 2008),

reh’g en banc granted (2d Cir. Aug. 12, 2008)

(oral argument held Dec. 9, 2008).............0..00..00... 37

Boumediene v. Bush, 128 S. Ct. 2229 (2008) ............. 10

Brown v. United States, 12 U.S. (8 Cranch) 110

SE Ti recinina sh anaaieonntaalaiaisceinnseninatehip bancaninimaunlaeiincinataA 16, 17, 30

Duncan v. Kahanamoku, 327 U.S. 304

RUIN aia. shasta tis sialdncpaleposad Gana woemkeaaeeesaamasn tints 11, 18, 35

Ex parte Endo, 323 U.S. 283 (1944)................. 9,10, 18

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ....passim

Ex parte Quirin, 317 U.S. 1 (1942) .......... 18, 19, 20, 28

Greene v. McElroy, 360 U.S. 474 (1959)............. 10

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .............0... 3

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .......... passim

Hohn v. United States, 524 U.S. 236 (1998).............. 25

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

erat D.. ZOO; SET UT. L1G CULO Sonic oniscieci cL Bivvesicnus 10

Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ..........32

Munaf v. Geren, 128 S. Ct. 2207 (2008).................02.22. 3

NLRB v. Drivers, Chauffeurs, Helpers, Local

Union No. 639, 362 U.S. 274 (1960)................06.... 24

Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005) .......... 36

Padilla v. Hanft, 547 U.S. 1062 (2006)...............00.. 36

TABLE OF AUTHORITIES — Continued

Preiser v. Rodriguez, 411 U.S. 475 (1973)

Rasul v. Bush, 542 U.S. 466 (2004)

Rumsfeld v. Padilla, 542 U.S. 426 (2004)

St. Louis, I. M. & S. Ry. Co. v. United States,

251 U.S. 198 (1920)

The Brig Amy Warwick, 67 U.S. (2 Black) 635

United States v. Abu Ali, 528 F.3d 210 (4th Cir.

Eee TSA Ge BO PONE EEN REE O EISEN ENDO |

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936)

Wong Wing v. United States, 163 U.S. 228

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952)

U.S. CONSTITUTION, STATUTES & LEGISLATIVE MATERIALS:

U.S. Const. art. I

8 U.S.C.

§ 1226a(a)(1)

§ 1226a(a naan

§ 1226a(a

§ il caue

TABLE OF AUTHORITIES — Continued

§ 1226a(a)(7)

§ 1226a(b)

18 U.S.C. § 3142(f)

18 U.S.C. § 3144

Non-Detention Act, 18 U.S.C. § 4001(a)

Alien Enemy Act, ch. 66, 1 Stat. 577 (1798)

Declaration of War against the United King-

dom, ch. 102, 2 Stat. 755 (1812)

Act of 1861, ch. 63, 12 Stat. 326 (1861)

An Act relating to Habeas Corpus, etc., ch. 81,

12 Stat. 755 (1863)

Emergency Detention Act of 1950, ch. 1024, tit.

II, § 100, 64 Stat. 1019 (1950) (codified at 50

U.S.C. §§ 811-826 (1970)) (repealed 1971)

Joint Resolution Declaring a State of War

Against the Imperial Government of Japan,

Pub. L. No. 77-328, 55 Stat. 795 (1941)

Declaration of State of War with Germany,

Pub. L. No. 77-331, 55 Stat. 796 (1941) ................. 19

Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. 224 (2001)

Uniting and Strengthening America by Provid-

ing Appropriate Tools Required to Intercept

and Obstruct Terrorism: (“USA Patriot Act”)

Act of 2001, Pub. L. No. 107-56, 115 Stat. 272

(2001) passim

Vill

TABLE OF AUTHORITIES — Continued

Hearing on Legislative Proposals Designed to

Combat Terrorism Before the H. Comm. on the

Judiciary, 107th Cong., 2001 WL 1143717

(Sept. 24, 2001)

Hearing on Terrorism Investigation and Prose-

cution Before the S. Comm. on the Judiciary,

107th Cong. 1 (Sept. 25, 2001)

147 Cong. Rec. S10990 (daily ed. Oct. 25, 2005)

MISCELLANEOUS:

David J. Barron & Martin S. Lederman, The

Commander in Chief at the Lowest Ebb —

Framing the Problem, Doctrine, and Original

Understanding, 121 Harv. L. Rev. 689 (2008)

Curtis A. Bradley & Jack L. Goldsmith,

Congressional Authorization and the War on

Terrorism, 118 Harv. L. Rev. 2047 (2005)

Ryan Goodman & Derek Jinks, International

Law, U.S. War Powers, and the Global War

on Terrorism, 118 Harv. L. Rev. 2653 (2005)

Mark Larabee & Ashbel S. Green, One Mistaken

Clue Sets a Spy Saga in Motion, THE OREGONIAN,

Mar. 26, 2006

John Lancaster, Hill Puts Brakes On Expanding

Police Powers, WASHINGTON Post, Sept. 30,

Liberty & Security Initiative, The Constitution

Project, Report on Post-9/11 Detentions (2004)

ix

TABLE OF AUTHORITIES — Continued

Pet. Br., Ashcroft v. Iqbal, No. 07-1015 (U.S.

Nee iicciviicwencudecchvoesecusvnvaccsscacecse 37

Joseph Story, Commentaries on the Constitu-

tion of the United States (Boston, Hilliar,

ale asst cvesnsssuursspeusinvcussevencsscssecess 29

War Powers Committee, The Constitution Pro-

ject, Deciding to Use Force Abroad: War Pow-

ers in a System of Checks and Balances

is idcohecsscccssensecantesdscensessaccccvesess 2

BRIEF OF THE CATO INSTITUTE,

THE CONSTITUTION PROJECT, AND

THE RUTHERFORD INSTITUTE, AS

AMICI CURIAE IN SUPPORT OF REVERSAL

The Cato Institute, The Constitution Project, and

The Rutherford Institute respectfully submit this

brief as amici curiae in support of reversal.

INTERESTS OF AMICI CURIAE'

The Cato Institute was established in 1977 as

a nonpartisan public policy research foundation

dedicated to advancing the principles of individual

liberty, free markets, and limited government.

Toward those ends, the Cato Institute publishes

books and studies, conducts conferences, publishes

the annual Cato Supreme Court Review, and files

amicus briefs with the courts. Because the instant

case raises vital questions about separation of powers

principles, this case is of central concern to the Cato

Institute.

The Constitution Project is an independent,

bi-partisan think tank which creates coalitions of

' Pursuant to Rule 37.3(a), letters from the parties

consenting to the filing of this brief are being filed with the

Clerk of the Court. No counsel for a party authored this brief in

whole or in part and no party or counsel for a party made a

monetary contribution intended to fund the preparation or

submission of the brief. No person other than amici curiae, their

members, or their counsel made a monetary contribution to the

preparation or submission of this brief.

2

respected leaders from across the political spectrum

to issue consensus recommendations for policy

reforms. The Project's Liberty and _ Security

Committee—a bipartisan, blue-ribbon group of

prominent Americans—addresses the importance of

preserving both national security and civil liberties. In

July 2004, this committee issued a Report on Post-9/11

Detentions in which its signatories urged that “[a]lny

detention of a citizen or non-citizen in the United

States must be expressly authorized by congressional

statute or by the law of war,” and that “[t]he courts of

the United States must be available to hear claims of

detainees that they are being held or treated in

violation of the law.” In addition, in 2005, the

Project’s bipartisan War Powers Committee released

Deciding to Use Force Abroad: War Powers in a

System of Checks and Balances, a report analyzing

the respective powers of all three branches of

government during wartime.’

The Rutherford Institute is an international civil

liberties organization that was founded in 1982 by

its President, John W. Whitehead. The Rutherford

Institute specializes in providing legal representation

* Liberty & Security Initiative, The Constitution Project, Report

on Post-9/11 Detentions 20 (2004). The report and the attached List of

signatories are available at http://www.constitutionproject.org/

pdf/report_on_post_9_11_detentions.pdf.

" The report and list of signatories are available at http://

www.constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_

Abroad. pdf.

3

without charge to individuals whose civil] liberties are

threatened or violated and in educating the public

about constitutional and human rights issues. During

its 26-year history, attorneys affiliated with The

Rutherford Institute have represented numerous

parties before this Court. The Institute has also filed

amicus curiae briefs in cases dealing with important

constitutional issues arising from the current efforts

to combat terrorism. See, e.g., Munaf v. Geren, 128

S. Ct. 2207 (2008); Hamdan v. Rumsfeld, 548 US.

557 (2006); Rasul v. Bush, 542 U.S. 466 (2004).

SUMMARY OF ARGUMENT

The government has claimed, and the fractured

en banc Fourth Circuit erroneously concluded, that

the President has authority to use the military to

detain, without charge or trial, persons who are

lawfully in the United States and who have allegedly

engaged in terrorism-related conduct.

There is no such authority—not in any Act of

Congress nor in the Constitution. Thus, neither the

government’s claim nor the ruling below can be

sustained.

A.

The government has pointed to the Authorization

for Use of Military Force (AUMF), Pub. L. No. 107-40,

115 Stat. 224 (2001), as the source of congressional

authorization for its use of the military for domestic

detention, but that statute is silent on the issue and

4

speaks only in general terms about use of military

force. It does not satisfy the Court’s clear statement

rule that requires Congress to expressly authorize the

Executive’s use of military detention power in lieu of

civilian criminal prosecution within the domestic

sphere. This Court has never inferred such an

authorization from general declarations of military

force by Congress.

This Court’s conclusion in Hamdi v. Rumsfeld,

542 U.S. 507, 518 (2004), that the AUMF implicitly

authorizes certain military detentions does not

govern the instant case because the ruling in Hamdi

applies only to the military detention of persons

taken prisoner on a foreign battlefield, inside a zone

of active combat. Hamdi does not extend to the

military detention of individuals who are lawfully in

the United States, far from the foreign battlefield.

It is the USA Patriot Act of 2001, Pub. L. No.

107-56, 115 Stat. 272, that granted the Executive

authority to detain terrorism suspects present in the

United States. Congress considered the Patriot Act

contemporaneously with the AUMF and enacted it a

few weeks later. The Patriot Act does not authorize

Executive detention in the United States by use of the

military without charge or trial, and the government

makes no such contention.

The government’s reading of the AUMF to

authorize the domestic military detention it seeks

in this case would render superfluous Congress’s

enactment of the more specific domestic detention

5

provisions of the Patriot Act. The legislative history of

the Patriot Act demonstrates that Congress intended

the Patriot Act, not the AUMF, to provide the

President with detention power over terror suspects

who are in the United States lawfully. It also

demonstrates that Congress considered—and

declined to grant—the military detention power that

the government now claims.

B.

Lacking express congressional authorization, the

government has asserted that the Executive has the

inherent authority under the Commander-in-Chief

Clause in Article II of the Constitution to use the

military to detain persons who are lawfully in the

United States. But the Commander-in-Chief Clause

grants no such authority. Under the Constitution,

the use of military power is a shared responsibility

between the Legislature and the Executive, and even

the President’s broad power to wage war overseas

as Commander-in-Chief requires congressional

authorization.

This constitutional diffusion of government

power regarding the use of the military reflects the

Framers’ desire to guard against any threats to

democratic government posed by standing armies

controlled by a potentially tyrannical Executive. And

this constitutional structure confirms the need for

explicit authorization from Congress for the President

6

to use the military to detain without charge or trial

persons who are lawfully in the United States.

C.

Allowing the Executive to use the military to

detain, without charge or trial, persons who are

lawfully in the United States could give rise to

manipulation of the civilian criminal justice system.

Such manipulation threatens the constitutionally

protected liberty of every person who is lawfully in

the United States, including American citizens.

ARGUMENT

THE EXECUTIVE’s USE OF MILITARY POWER TO

DETAIN WITHOUT CHARGE OR TRIAL PERSONS WHO

ARE LAWFULLY IN THE UNITED Srares Is Nort

AUTHORIZED By CONGRESS OR By THE

CONSTITUTION

It is well settled that, under our constitutional

system of disaggregated government power, the

authority of the Executive, even in wartime, must

derive either from an act of Congress or from the

Constitution. See Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 585 (1952). This is so because

“the Constitution diffuses power *** to secure

liberty.” Jd. at 635 (Jackson, J., concurring).

Consistent with that basic tenet, this Court has

repeatedly viewed with great suspicion any attempt

7

by the Executive to exercise its power to use

the military in the domestic sphere’ without

congressional authorization. Moreover, this Court has

recognized that the preservation of individual rights

requires strict enforcement of the checks-and-balances in

our constitutional system, by requiring a clear statement

from Congress or explicit constitutional authority

derived from Article II, before the President may use

military power against persons who are lawfully in

the United States.

These fundamental separation-of-powers principles

require that the judgment of the court of appeals be

reversed. The deeply fractured Fourth Circuit en banc

court was wrong when it concluded that “Congress

has empowered the President to detain [petitioner] as

an enemy combatant.” Pet. App. 7a. It was wrong

because the Authorization for Use of Military Force,

Pub. L. No. 107-40, 115 Stat. 224 (2001) (AUMF), on

which it relied, does not expressly grant the President

the authority to use the military to detain without

charge or trial persons who are lawfully in the United

States, far from the foreign battlefield. Lack of

express congressional authorization is fatal to the

government's case because the President’s authority

as Commander-in-Chief under Article II provides no

such power.

8

A. Congress Has Not Authorized The

Executive To Use The Military To Detain

Without Charge Or Trial Persons Who Are

Lawfully In The United States

1. The AUMF does not authorize such

detention

The Executive has erred in its claim that the

AUMF grants it the power to use the military to

detain as “enemy combatants,” without charge or

trial, persons who are lawfully in the United States.

The AUMF was passed by Congress on

September 14, 2001, as an immediate response to the

September 11th terrorist attacks against the United

States. The AUMF provides the President with the

authority

to use all necessary and appropriate force

against those nations, organizations, or

persons he determines planned, authorized,

committed, or aided the terrorist attacks

that occurred on September 11, 2001, or

harbored such organizations or persons, in

order to prevent any future acts of

international terrorism against the United

States by such nations, organizations or

persons.

§ 2(a), 115 Stat. at 224.

This plain language does not support the ruling

below. The AUMF is a general authorization for the

use of military force. It does not explicitly authorize

the President to use the military to detain without

9

charge or trial persons who are lawfully in the United

States.

2. The court of appeals’ ruling violates

longstanding principles that require a

clear statement from Congress when it

authorizes the Executive to curtail

individual rights

a. The government has argued that this Court

should infer from the circumstances surrounding

enactment of the AUMF congressional authorization

for the domestic military detention power claimed

here. See Br. in Op. 23. But this Court’s clear

statement requirement plainly precludes any such

inference.

For more than 60 years, this Court has held

that grants of power to the Executive that have

the potential to weaken or remove enshrined

constitutional protections—such as the right not to be

detained by the military without due process (the

right at issue here)—must be clearly stated by

Congress. See Ex parte Endo, 323 U.S. 283, 300

(1944) (“We must assume, when asked to find implied

powers in a grant of legislative or executive authority,

that the law makers intended to place no greater

restraint on the citizen than was clearly and

unmistakably indicated by the language they used.”

(emphasis added)).

This requirement of a clear statement from

Congress “facilitates a dialogue between Congress

10

and the Court,” Boumediene v. Bush, 128 S. Ct. 2229,

2243 (2008), and it serves as a critical check on the

overreaching that is threatened by the President’s

use of military power to detain persons who are

lawfully in the United States. See Kent v. Dulles, 357

U.S. 116, 129 (1958) (“We hesitate to find in [a] broad

generalized power an authority to trench so heavily

on the rights of the citizen.”); Greene v. McElroy, 360

U.S. 474, 506 (1959) (holding that clear statements

are required “not only to assure that individuals are

not deprived of cherished rights under procedures not

actually authorized but also because explicit action,

especially in areas of doubtful constitutionality,

requires careful and purposeful consideration by

those responsible for enacting and implementing our

laws.” (citation omitted)).

This Court has not hesitated to adhere to the

clear statement requirement to preclude domestic

military detention of persons during times of national

crisis. In Ex parte Endo, this Court held that a

statute that ratified an executive order directing the

“exclu[sion]” of persons of Japanese ancestry from the

West Coast during World War II was not sufficiently

explicit with regard to “detention” as to authorize the

military internment of loyal, law-abiding United

States citizens, or to support inferring’ such

internment authority. See 323 U.S. at 300 (“In

interpreting a war-time measure we must assume

that [Congress’s] purpose was to allow for the

greatest possible accommodation between * * *

liberties and the exigencies of war.”).

11

Similarly, in Duncan v. Kahanamoku, 327 U.S.

304 (1946), this Court refused to construe Congress’s

statutory authorization for the governor of Hawaii to

declare “martial law” when there was an imminent

threat of a military invasion as a grant of power for

the governor to use military tribunals to resolve

domestic criminal cases after the attack on Pearl

Harbor. See id. at 316-317, 324 (refusing te assume

that, by explicitly authorizing the imposition of

“martial law,” Congress intended to permit the

governor to transgress the “boundaries between

military and civilian power, in which our people

always believed” and “which ha[ve] become part of

our political philosophy and institutions”).

Congress has acted in accordance with the clear

statement requirement on other occasions when it

has used clear and unmistakable language to vest the

Executive with the power to detain persons who are

lawfully residing in the United States, and even when

such detention involves the use of civilian authority.

In the Emergency Detention Act of 1950, ch. 1024, tit.

Il, § 100, 64 Stat. 1019 (EDA) (codified at 50 U.S.C.

§§ 811-826 (1970)) (repealed 1971), for example,

Congress explicitly authorized the Attorney General

to “apprehend and by order detain * * * each person

as to whom there is reasonable grounds to believe

*** probably will engage in, or probably will

conspire with others to engage in, acts of espionage or

sabotage.” /d. § 103, 64 Stat. at 1021; see also the

Alien Enemy Act, ch. 66, 1 Stat. 577 (1798) (codified

at 50 U.S.C. §21) (authorizing the President to

12

apprehend, restrain, secure, and remove resident

aliens who are inside the United States if their home

country is in a declared war with the United States).

Moreover, when Congress expressly authorizes

detention by the Executive it typically provides

explicit procedural safeguards, such as preliminary

hearings and ongoing judicial review. See, e.g., 18

U.S.C. § 3142(f) (mandating a judicial hearing—with

the right to be represented by counsel, to testify, to

present witnesses, and to cross-examine witnesses—

within five days.of a detention on a material witness

warrant under 18 U.S.C. § 3144); EDA, §§ 102(b),

104(d), 109(b), 111, 64 Stat. at 1021-1029 (requiring a

public presidential proclamation of an “Internal

Security Emergency” to trigger the Act’s detention

provisions, which mandate a preliminary hearing

within a reasonable time, provide an opportunity to

consult counsel and to cross-examine witnesses, and

permit appellate review by an executive board within

45 days, subject to further review by a court on

appeal or via habeas corpus).

The AUMF fails to satisfy the clear statement

mandate because nothing in the text comes close to

authorizing the President to do what the ruling below

allows; namely, to use the military to detain persons

who are lawfully in the United States apart from

the criminal justice system and to subject them to

such ongoing detention without charge or trial. In

addition, the text of the AUMF does not provide any

procedural safeguards whatsoever for persons whom

13

the Executive chooses to detain through domestic use

of the military—a silence that speaks volumes about

the fact that Congress did not intend the AUMF to

authorize the Executive to have the power to impose

military detention without charge or trial on persons

who are lawfully in the United States.

b. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), is

not to the contrary. In Hamdi, a plurality of the Court

concluded that the AUMF authorizes the military

detention without charge or trial of persons who are

captured on a foreign battlefield while actively taking

up arms against the United States. The plurality

opinion made clear that its conclusion followed only

from “the narrow circumstances alleged” in that case.

Id. at 509. That ruling cannot be viewed as

controlling with regard to persons who, unlike

Hamdi, are lawfully in the United States at the time

they are arrested and have never taken up arms

against the United States on a battlefield.

As the plurality opinion emphasized, Hamdii,

a United States citizen, was apprehended in

Afghanistan—‘“a foreign combat zone,” id. at 523—

while he was allegedly “carrying a weapon against

American troops on a foreign battlefield,” zd. at 522

n.l. Because such conduct indisputably qualified

Hamdi for “enemy combatant” status under established

principles of international law, id. at 518, the

plurality concluded that the AUMF implicitly

conferred on the Executive the authority to detain

such individuals, even United States citizens,

14

apprehended under like circumstances, see id. at

517-518. The Hamdi plurality’s carefully limited

ruling that the AUMF authorizes the Executive to use

the military to detain “individuals in the narrow

category” of persons who are captured while actively

fighting on a foreign battlefield against United States

military forces, id. at 517, says nothing about

whether a person who is lawfully in the United

States, far from a battlefield, can be detained by the

military without charge or trial, rather than being

arrested and prosecuted in the civilian criminal

justice system.

The Hamdi plurality also expressly distinguished

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), in a

manner that confirms that the AUMEF’s detention

authorization should not be construed to authorize

the detention at issue in this case. Milligan involved

the apprehension, detention, and military trial of an

individual who was apprehended on _ peaceful

territory within the United States but accused of

subversive conduct in support of the Confederacy

during the Civil War. This Court rejected the

government's contention that, as a_ traditional

incident of war, the Executive could convene a

military tribunal to try Milligan, 71 U.S. at 131,

which is essentially the same claim that the

government makes here with regard to military

detention. The Court in Milligan reasoned that the

use of military authority was not proper because

Milligan was not apprehended while in a State that

was in rebellion, and because even dangerous and

15

subversive behavior on the part of a person who is

lawfully in the United States does not suffice to

transform peaceful territory within the United States

into a battlefield. See Ex parte Milligan, 71 U.S. at

127 (rejecting the existence of “actual war” in Indiana

because it was not subjected to foreign invasion, civil

war, or an overthrow of the national authority).

Moreover, the Hamdi plurality specifically found

that the fact that Milligan “was not a prisoner of war,

but a resident of Indiana arrested while at home

there” to be “central” to the Court’s conclusion in

Milligan that trial by military tribunal was improper.

Hamdi, 542 U.S. at 522 (emphasis added). The

plurality emphasized that “[hlad Milligan been

captured while he was assisting Confederate soldiers

by carrying a rifle against Union troops on a

Confederate battlefield, the holding of the Court

might well have been different.” [bid.

3. This Court has not previously

construed a general congressional

authorization for the use of military

force, like the AUMPF, to confer upon the

Executive the power to use the military

to detain without charge or trial

persons who are lawfully in the United

States

a. The ruling below represents a sea change

with regard to the scope and effect of congressional

authorizations for the use of military force. This

Court has never held that a general authorization to

16

use military force by Congress permits the Executive

to use the military to detain persons who are lawfully

in the United States.

As far back as the War of 1812, the Court

rejected attempts by the government to use such a

general authorization for use of military force as a

justification to seize enemy property or persons inside

the United States. In Brown v. United States, 12 U.S.

(8 Cranch) 110 (1814), the Court addressed a

declaration of war by Congress that authorized the

President “to use the whole land and naval force of

the United States to carry [war against the United

Kingdom of Great Britain and Ireland] into effect.”

Declaration of War against the United Kingdom, ch.

102, 2 Stat. 755 (1812). The Court held that this

general declaration was not sufficient to authorize the

government to seize as “enemy property” in the

United States certain British-owned cargo scheduled

to be transported to England. The Court reasoned

that the Executive’s power to confiscate property, like

its power to seize persons, can be asserted only “in

execution of some existing law.” Brown, 12 U.S. at

122, 123. To underscore its conclusion that the

Executive “did not possess the[] powers [to seize

property or persons] by virtue of the declaration of

war, the Court relied in part on the fact that

Congress had separately enacted specific legislation

that authorized the military detention of enemy

aliens. Jd. at 126. Enactment by Congress of such a

law to authorize detention of enemy aliens would not

17

have been necessary if a general declaration of war

was sufficient authurity for detention. See ibid. (“War

gives an equal right over persons and property: and if

its declaration is not considered as prescribing a law

respecting the person of an enemy found in our

country, neither does it prescribe a law for his

property.”).

This Court’s refusal to view a_= general

authorization by Congress for the use of force as

specific congressional authority for the Executive’s

exertion of military authority over individuals in the

United States has persisted through subsequent

armed conflicts. ‘The Court consistently has

maintained that Congress must expressly authorize

the substitution of military process for civilian

judicial process with regard to persons apprehended

inside the United States. In Ex parte Milligan, 71

U.S. at 121-122, the Court ruled that there was no

congressional authorization for military trials, and

this was so despite the fact that President Lincoln’s

use of military power had been ratified by Congress,

* Notably, the Brown Court ruled that a general declaration

authorizing military force was not sufficient to permit seizure of

enemy property even though international law clearly made such

property subject to confiscation. This renders even less

persuasive the government’s contention here that ‘the broad

language of the AUMF authorizes the military seizure of persons

who are in the United States, far from a battlefield, and

therefore do not clearly qualify as “combatants” subject to

detention under international law.

18

see Act of 1861, ch. 63, § 3, 12 Stat. 326 (1861), and

Congress had suspended the writ of habeas corpus,

see An Act Relating To Habeas Corpus, ch. 81, 12

Stat. 755 (1863).

In Duncan, 327 U.S. at 324, this Court did not

mention, much less examine, Congress’s_ broad

authorization for the President to use force against

Japan during World War II when it held that there

was no congressional authorization for the imposition

of a military judicial system in Hawaii after the Pearl

Harbor attack. See Duncan, 327 U.S. at 313, 324.

Moreover, in Ex parte Endo, 323 U.S. at 303-304, this

Court rejected the contention that Congress had

authorized the Executive’s detention of loyal citizens

of Japanese ancestry, despite the existence of a

use-of-force declaration so expansive in scope that it

authorized the President “to employ the entire naval

and military forces of the United States and the

resources of the Government” in the war against

Japan and also pledged “all the resources of the

country” to “bring the conflict to a_ successful

termination.” See Joint Resolution Declaring a State

of War Against the Imperial Government of Japan,

Pub. L. No. 77-328, 55 Stat. 795 (1941).

b. The reasoning of Mx parte Quirin, 317 U.S. 1

(1942)—on which the government has _ relied

heavily—has been subject to pointed criticism. See,

e.g., Hamdi, 542 U.S. at 569 (Scalia, J., dissenting)

(Quirin “was not this Court’s finest hour”). It is also

inapposite.

19

Quirin did not rely on a general authorization

for the use of military force. Rather, it construed

a set of statutory provisions enacted by Congress

that expressly authorized the Executive to conduct

military trials under certain circumstances. See

Quirin, 317 U.S. at 26-27. Congress had also declared

that the United States was at war with Germany, see

Declaration of State of War with Germany, Pub. L.

No. 77-331, 55 Stat. 796 (1941), and had expressly

“pledged all of the resources of the country” to the

President for use in conducting that war. Id. at 795.

But this Court did not rely upon that general

declaration to rule that the government was

authorized to conduct military trials of the

defendants, who had been apprehended in the United

States. Rather, the Court held that more specific

provisions of Articles 2 and 12 of the Articles of War,

which were distinct from the general declaration of

war, authorized the government to conduct military

trials in the United States with respect to “any * * *

person who by the law of war is subject to trial by

military tribunal[].” Quirin, 317 U.S. at 27 (citation

and internal quotation marks omitted).

Furthermore, in contrast to the use of military

detention power in the domestic sphere that the

Executive claims the AUMEF provides, Quirin

explicitly established that widely-accepted “law of

war” principles determined who was subject to “trial

by military tribunal” under the applicable statutory

framework. See id. at 30 (noting that “Congress has

incorporated by reference, as within the jurisdiction

20

of military commissions, all offenses which are

defined as such by the law of war”); see also Hamdi,

542 U.S. at 518 (citing Quirin to conclude that, “by

universal agreement and practice,” the “capture,

detention, and trial of unlawful combatants” is an

“important incident of war” (internal quotation

marks, brackets and citation omitted)). Persons who,

like the Quirin defendants, had conceded their formal

affiliation with enemy armed forces and “with the

purpose of destroying war materials and utilities,

[had] entered or after entry [had] remained in

our territory without uniform,” unquestionably

committed “an offense against the law of war.”

Quirin, 317 U.S. at 46; see also Hamdi, 542 U.S. at

571 (Scalia, J., dissenting). Thus, the Quirin Court

concluded that their trial by military tribunal was

authorized by statute. Quirin, 317 U.S. at 46.

Notably, although this Court unconditionally

determined that the defendants in Quirin qualified

as “enemy belligerents” subject to trial by military

tribunal under longstanding law-of-war principles,

id. at 37, it did not address the unclear international

law status of individuals who have no formal

affiliation with the military arm of an enemy

government. Compare Curtis A. Bradley & Jack L.

Goldsmith, Congressional Authorization and the War

on Terrorism, 118 Harv. L. Rev. 2047, 2113-2116

(2005) (suggesting that “enemy combatant” status

under the AUMF depends largely on the scope

of one’s association with an enemy terrorist

organization) with Ryan Goodman & Derek Jinks,

21

International Law, U.S. War Powers, and the Global

War on Terrorism, 118 Harv. L. Rev. 2653, 2654-2658

(2005) (arguing that direct participation in hostilities

is a necessary and important ingredient to the

“enemy combatant” classification).

4. Congress’s contemporaneous creation

of a detailed scheme in the Patriot Act

for detention of domestic terrorism

suspects that does not authorize

military detention without charge or

trial contradicts the Executive’s

interpretation of the AUMF

Congress’s enactment of the Patriot Act, see

Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct

Terrorism (“USA Patriot Act”) Act of 2001, Pub. L. No.

107-56, 115 Stat. 272, demonstrates that any

Executive military detention authority that can be

inferred from the language of the AUMF (as in

Hamdi) was not intended to apply in the domestic

sphere. Congress intended the AUMF to provide

the President with authority to conduct military

operations abroad in response to the September 11th

attacks. In contrast, the Patriot Act was intended to

address the scope of the Executive’s powers with

regard to combating terrorism at home.

a. The Patriot Act was enacted five weeks after

the AUMF was signed into law. See Patriot Act, 115

Stat. at 272. Various elements of the legislation that

became the Patriot Act were being considered by

22

members of Congress, in conjunction with the

Executive branch, at the same time that the AUMF

was enacted. See Hearing on Terrorism Investigation

and Prosecution Before the S. Comm. on _ the

Judiciary, 107th Cong. 1 (Sept. 25, 2001) [hereinafter

“Hearing on Terrorism Investigation and Prosecution” ]

(statement of Sen. Leahy) (remarking that the

Attorney General had started briefing and working

with a bi-partisan group of congressional leaders

regarding domestic anti-terrorism legislation

“literally within hours of the terrible matters on

September 11”). As enacted, the Patriot Act was

designated as an Act to provide the Executive with

“tools” to “[iJntercept and [oJbstruct [tlerrorism,”

§ l(a), 115 Stat. at 272.

Military detention of persons in the United

States without charge or trial for the duration of

international hostilities is not one of the “tools” that

the Patriot Act provides. First, the Patriot Act does

not authorize the Executive to use military authority

in the domestic sphere at all.

Second, Congress placed a specific, temporal

limit on the authority that the Patriot Act confers on

the Attorney General to use civilian authority to

“take into custody any alien” in the United States

who is certified as a national security threat by the

Attorney General based on “reasonable grounds to

believe” that such person has engaged in or is

associated with terrorist activities or “any other

activity that endangers the national security of the

United States.” 8 U.S.C. § 1226a(a\(1), (3A), (3B).

23

Congress specified that the Attorney General must,

within seven days of arrest, either place the alien

in removal proceedings or charge the alien with a

criminal offense. Jd. § 1226a(a)(5). By contrast, the

domestic military detention without charge at issue

here has already lasted for more than five years.’

Third, even when an alien has been certified by

the Attorney General to be a national security danger

and has been placed in removal proceedings or

ordered removed, if that alien is unlikely to be

removed in the reasonably foreseeable future, the

Patriot Act limits the Attorney General’s detention

authority to “additional periods of up to six months”

and “only if the release of the alien will threaten the

national security of the United States or the safety of

the community or any person.” 8 U.S.C. § 1226a(a)(6).

The Act requires that the Attorney General review

the national security threat certification every six

months, and if the Attorney General determines the

certification should be revoked, the alien may be

released on appropriate conditions, “unless such

release is otherwise prohibited by law.” 8 U.S.C.

§ 1226a(a)\(7). The Act also allows the detained alien

* Even for detention of persons who are under a final order

of removal, immigration law designates a specified period of

time within which such alien must be removed, and where

removal cannot be accomplished within the specified timeframe,

this Court has both refused to read immigration statutes to

authorize the indefinite detention of such persons and required

periodic reassessment of the reasonableness of such detention.

See Zaduydas v. Davis, 533 U.S. 678, 682 (2001).

24

to request in writing every six months that the

Attorney General reconsider the certification of him

as a national security threat and to submit

documents or other evidence in support of that

request, ibid. In addition, the Patriot Act provides

such detained aliens with access to habeas corpus

relief and appellate review. Jd. § 1226a(b). In enacting

the Patriot Act, Congress thus granted the Executive

domestic detention powers over persons suspected of

terrorism who are determined to be national security

threats and those powers are much more circumscribed

than the power the government now claims.°

Well-settled canons of statutory construction

preclude a general grant of authority from rendering

a specific one superfluous. See Preiser v. Rodriguez,

411 U.S. 475, 489 (1973) (where “Congress has

passed a more specific act to cover [a particular]

situation,” it should govern such situations in lieu of

an available general statute, which could otherwise

apply); see also St. Louis, I. M. & S. Ry. Co. v. United

States, 251 U.S. 198, 207 (1920) (“Congress must be

presumed to have known of its former legislation * * *

and to have passed the new laws in view of the

provisions of the legislation already enacted.”); NLRB

v. Drivers, Chauffeurs, Helpers, Local Union No. 639,

362 U.S. 274, 291-292 (1960) (“Courts may properly

take into account the later Act when asked to extend

* Amici take no position here on the constitutional validity

of the Patriot Act or the procedures that it authorizes.

25

the reach of the earlier Act’s vague language to the

limits which, read literally, the words might permit.”).

Thus, the broad provisions of the AUMF cannot

be read to render superfluous the Patriot Act’s

specific provisions demarcating the scope of the

Executive’s power to detain persons who pose

national security threats in the United States. If

Congress had intended the AUMF to be read so

broadly, the detention provisions of the Patriot Act

would have been unnecessary. This Court should not

adopt such a construction. See Hohn v. United States,

524 U.S. 236, 249 (1998) (“We are reluctant to adopt a

construction making another statutory provision

superfluous..”).

b. The legislative history of the Patriot Act

confirms this conclusion. Congress considered, and

rejected, a provision that would have granted the

broad authority that the Executive claims here—i.e.,

potentially unlimited detention without charge or

trial of any person that the Attorney General “has

reason to believe may further or facilitate” terrorist

acts. See Hearing on Terrorism Investigation and

Prosecution, supra, at 26 (statement of Sen. Arlen

Specter) (expressing concerns that the legislation

proposed by the Executive branch “gives broader

powers than just having mandatory detention of

someone thought to be a terrorist who is being held

for deportation on some other lines”); see also John

Lancaster, Hill Puts Brakes On Expanding Police

Powers, WASHINGTON Post, Sept. 30, 2001, at A6

26

(noting that “the administration’s anti-terrorism

package has run into strong bipartisan resistance,”

including an unwillingness to pass _ legislation

pursuant to which a person “suspected of involvement

in terrorism—but not convicted of a crime—could be

held indefinitely at the discretion of the attorney

general or other Justice Department officials”).

Moreover, the fact that Congress found it

necessary to establish domestic detention powers in

the Patriot Act strongly suggests that such power

was not part of the AUMF. Senator Orrin Hatch

explained that the Patriot Act bill “represent[s] the

domestic complement to the weapons our military

currently is bringing to bear on the terrorists’

associates overseas” pursuant to the authority that

Congress previously had granted in the AUMF. 147

Cong. Rec. $10990, S11015 (daily ed. Oct. 25, 2005)

(statement of Sen. Hatch) (emphasis added).

Likewise, in contrast to the government’s argument

here that the AUMF provides the Executive with

domestic detention authority, even after the AUMF

was enacted, top Justice Department officials

actively sought the legal authority to detain without

charge or trial alien terrorism suspects who were

arrested while lawfully in the United States and who

the Attorney General believed posed a national

security threat. See Hearing on Legislative Proposals

Designed to Combat Terrorism Before the H. Comm.

on the Judiciary, 107th Cong., 2001 WL 1143717

27

(Sept. 24, 2001) (testimony of Assistant Att’y Gen.

Viet Dinh).

B. Article II Of The Constitution Does Not

Grant The Executive Inherent Authority

To Use The Military To Detain Without

Charge Or Trial Persons Who Are Lawfully

In The United States

The government wrongly argued below that it

can find authority in Article II of the Constitution to

use the military to detain without charge or trial

terrorism suspects who are lawfully in the United

States.

This Court should subject that claim to careful

scrutiny because, as explained above, such authority

is contrary to the will of Congress with regard to the

Executive’s treatment of domestic terrorism suspects

as established in the Patriot Act. Congress’s

enactment of the Patriot Act, and its failure to

authorize domestic military detention by the

Executive of persons who are lawfully in the United

States, strongly counsels against any conclusion that

the Constitution inherently permits the Executive to

impose such domestic military detention. As Justice

Jackson explained in his concurrence in Youngstown,

“[w]hen the President takes measures incompatible

with the expressed or implied will of Congress, his

power is at its lowest ebb” and any claim to such

power “must be scrutinized with caution, for what is

28

at stake is the equilibrium established by our

constitutional system.” 343 U.S. at 634.

1. The Commander-in-Chief Clause of

Article II does not’ provide’ the

President with inherent authority to

use the military to detain persons who

are lawfully in the United States

a. The President’s primary role as

Commander-in-Chief is to direct the conduct of

American troops engaged in armed conflicts on the

battlefield. See Ex parte Milligan, 71 U.S. at 139

(the Commander-in-Chief power consists of “the

command of the [armed] forces and the conduct of

[military] campaigns”).

The Constitution looks both to Congress and the

President when it addresses war powers and the

Nation’s security forces. Many of the critical wartime

decision-making functions are reserved in the

Constitution for Congress. See Quirin, 317 U.S. at 26

(the Constitution “invests the President as

Commander in Chief with the power to wage war

which Congress has declared, and to carry into effect

all laws passed by Congress for the conduct of war

and for the government and regulation of the Armed

Forces” (emphasis added)). Indeed, “out of seventeen

specific paragraphs of congressional power” that are

set forth in Article I of the Constitution with regard

to the powers of Congress, “eight of them are devoted

in whole or in part to specification of powers

29

connected with warfare.” Johnson v. Eisentrager, 339

U.S. 763, 788 (1950) (emphasis added) (naming

Congress’s enumerated power to provide for the

common defense, to declare war, to raise and support

armies, to provide and maintain a navy, to make rules

for the government and regulation of the land and

naval, and to make rules concerning captures on land

and water).

The government’s contention that the Constitution

authorizes the Executive to use the military

domestically, without congressional authorization, in

order to detain persons who are lawfully in the

United States cannot be reconciled with the Framers’

concerns. “The Commander-in-Chief Clause was

understood [by the Framers} to establish the

hierarchical superiority of the President in the

military chain of command, thereby both ensuring

civilian control over the armed forces’ and

establishing a ‘superintendence prerogative’ with

respect to at least some military operations,” but not

to give the Executive the power to proceed without

congressional authorization in regard to matters of

war. David J. Barron & Martin S. Lederman, The

Commander in Chief at the Lowest Ebb—Framing the

Problem, Doctrine, and Original Understanding, 121

Harv. L. Rev. 689 (2008). The Framers were wary of

standing armies “constantly on foot” and of “the

danger of an undue exercise of military power” by the

Executive, especially within the domestic sphere. 3

Joseph Story, Commentaries on the Constitution of the

United States 94, 97 (Boston, Hilliar, Gray & Co.

30

1833); accord Hamdi, 542 U.S. at 568 (Scalia, J.,

dissenting) (“No fewer than 10 issues of the

Federalist were devoted in whole or in part to

allaying fears of oppression from the proposed

Constitution’s authorization of standing armies in

peacetime.”).

b. This Court has never held that, in the

absence of express congressional authorization, the

President has inherent authority under the

Constitution to use military power inside the United

States. See Youngstown, 343 U.S. at 632 (Douglas, J.,

concurring) (“[OJur history and tradition rebel at the

thought that the grant of military power [to the

Commander-in-Chief] carries with it authority over

civilian affairs.”). Except when force is used

for a limited range of defensive purposes, see infra

Part B(1)\(c), the President must seek advance

authorization from Congress to initiate the use of

military power inside the United States.

Indeed, as this Court reasoned in Brown, 12 U.S.

at 126-127, the fact that Congress saw fit to enact the

Alien Enemy Act, ch. 66, 1 Stat. 577 (1798), which, in

the midst of an undeclared naval war with France,

expressly granted the President authority to impose

domestic military detention on certain lawful

residents in the unusual circumstances of a declared

war or invasion by a foreign nation or government,

strongly suggests that the Executive has no inherent

constitutional power to impose the detention that the

Act was enacted to authorize. Similarly, this Court

squarely rejected the Executive’s imposition of

31

military justice over a citizen who was apprehended

in a peaceful State, even though it was alleged that

he had conspired with and joined a secret enemy

organization “for the purpose of overthrowing the

Government.” Ex parte Milligan, 71 U.S. at 6. Despite

this serious allegation of a national security threat,

this Court maintained that the Executive had no

inherent authority under the Constitution to try such

a person in a military, rather than civilian, court. See

id. at 121, 124.

It is of particular importance that the Executive

here claims the constitutional prerogative to use

military detention power inside the United States.

This Court need not determine whether, or to what

extent, the Commander-in-Chief Clause of Article II

authorizes the Executive to engage in military

detention without charge or trial of persons captured

on foreign soil in the absence of congressional

authorizatior See Hamdi, 542 U.S. at 577 (Scalia, J.,

dissenting) (“Where the citizen is captured outside

and held outside the United States, the constitutional

requirements may be different.”). Regardiess of any

constitutional authority that the Executive may have

to act without congressional authorization with

regard to military affairs in foreign territory, see

United States v. Curtiss-Wright Export Corp., 299

U.S. 304, 315-316 (1936), “the Constitution’s policy

that Congress, not the Executive, should control

utilization of the war power as an instrument of

domestic policy,” Youngstown, 343 U.S. at 644

(Jackson, J., concurring) (emphasis added), is well

established and should not be in dispute.

32

c. Even the widely accepted historical power of

the President to use the military to repel a sudden

attack on, or invasion of, our country, see The Prize

Cases, 67 U.S. (2 Black) 635, 668 (1863), does not

encompass the power to use the military to detain

persons who are lawfully in the United States and

well outside the territorial and temporal scope of the

attack. Such power to use the military to detain

individuals who are lawfully in the United States asa

means of thwarting an invasion is not at issue in the

instant case, of course, because any such authority

would exist only in a moment of genuine emergency,

when there was no time for deliberation. See Hamdi,

542 U.S. at 552 (Souter, J., concurring). Such an

emergency has not been alleged by the government

here. Moreover, the expedience and attention with

which Congress acted in regard to the September

llth attacks demonstrates that, even in a moment of

true exigency, there likely would be no “want of

statutory authority” that would impede Executive

action in preventing further attack. bid. '

* Whether the established power of the Executive to repel

a sudden attack or an invasion is an inherent power under

Article II or stems from congressional authorization is an open

question. See, e.g., The Prize Cases, 67 U.S. at 670 (noting that if

President Lincoln’s power to quell the insurrection required

congressional authorization, such was to be found “in almost

every act passed at the extraordinary session of the Legislature

of 1861, which was wholly employed in enacting laws to enable

the Government to prosecute the war with vigor and efficiency”);

Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (opining that

the President’s authority to decide whether an exigency calling

(Continued on following page)

33

Setting aside the circumstance in which there is

evidence of an imminent attack against the United

States—and here none has been alleged—the power

to use the military to detain without charge or trial

persons who are lawfully in the United States cannot

be grounded on the contention that such domestic

detention authority is required to combat terrorism

during a time of war. Armed international conflict

always and inevitably presents unforeseen dangers to

the security of the Nation. During such urgent times,

when fear and uncertainty give rise to fervent calls

for protection at the expense of individual liberty, it is

all the more important that the breadth of Executive

power be kept in check, consistent with the Nation’s

constitutional framework.

2. In the absence of congressional

authorization, the Executive cannot

subject a person who is lawfully in the

United States to military detention in

lieu of civilian criminal prosecution

without encroaching on the powers of

other branches of government

Any claim of inherent constitutional executive

power to use the military to detain without charge or

for force has arisen “necessarily results from the nature of the

power” that Congress had granted the Executive in passing the

Militia Act). The Court need not determine the source of any

such power here.

34

trial persons who are lawfully in the United States

would contravene separation of powers principles by

encroaching on authority that the Framers reserved

for other branches of government.

First, as discussed above, the use of military

power is a _ shared responsibility between the

Legislature and the Executive under our Constitution.

Cf. Youngstown, 3438 U.S. at 635 (Jackson, J.,

concurring) (“Presidential powers are not fixed but

fluctuate, depending upon their disjunction or

conjunction with those of Congress.”). Like seizure of

the steel mills in Youngstown, the circumstances

under which individuals who are inside the United

States may be deprived of liberty by military

detention is a matter that is. constitutionally

relegated to the determination of Congress, not the

will of the Executive through the unauthorized

imposition of military force. See Youngstown, 343 U.S.

at 587 (acknowledging that “[e]ven though ‘theater of

war be an expanding concept, we cannot with

faithfulness to our constitutional system hold that the

Commander in Chief of the Armed Forces has the

ultimate power as such to take possession of private

property [in this United States] in order to keep

labor disputes from stopping production” because

“{tlhis is a job for the Nation’s lawmakers, not for

its military authorities”); 1d. at 644 (Jackson, J.,

concurring) (“That the military powers of the

Commander-in-Chief were not to supersede

representative government of internal affairs seems

35

obvious from the Constitution and from elementary

American history”). Neither the Executive nor this

Court is free to redistribute that power to make laws.

Second, although it is a fundamental

constitutional tenet that civilian courts adjudicate

government allegations against individuals in the

United States that may result in a deprivation of

liberty, the Executive contends here that it has the

power to bypass the constitutional role of the courts

as guarantors of a fair pre-deprivation process and

use the military to detain without charge or trial

persons whom it has apprehended in the United

States. Within our constitutional framework,

however, courts serve as a bulwark against the

suppression of the procedural constitutional rights

of individuals within the domestic sphere.

Consequently, this Court has consistently maintained

that the civilian judicial system—and the rights that

it protects—-cannot be supplanted by Executive

military action without congressional authorization,

so long as the courts are open and functioning. See

Duncan, 327 U.S. at 315-316, 324; Ex parte Milligan,

71 U.S. at 122. This Court should reach that same

conclusion here.

36

C. ARuling That The Executive Has The Power

To Use The Military To Detain Without

Charge Or Trial Persons Who Are Lawfully

In The United States Would Undermine Our

Civilian Criminal Justice System And

Important Rights Of Citizens

1. The military detention authority that

the Executive claims in this case would

permit manipulation of the civilian

criminal justice system

If military detention withcut charge or trial of

persons who are lawfully in the United States were a

legal option for the Executive, the foundations of our

civilian criminal justice system would be subject to

erosion. The government would have little incentive

to pursue more costly and time-consuming civilian

criminal prosecutions, with the numerous attendant

protections for individual constitutional rights that

such proceedings provide. Military detention could

become the norm, not the rare exception, in cases

involving domestic terrorism allegations.

Recognition of military detention authority in the

domestic realm also would permit government

manipulation of civilian criminal proceedings. The

government's handling of the allegations against Jose

Padilla reflects such a likelihood because the

government shuttled the terror suspect between

military detention and civilian criminal prosecution

at will. See Padilla v. Hanft, 482 F.3d 582, 583-584

(4th Cir. 2005); see also Padilla v. Hanft, 547 US.

1062, 1063 (2006) (Kennedy, J., concurring in the

37

denial of certiorari) (noting that, while Padilla had

been transferred from military detention into the

civilian justice system, there was “a continuing

concern that his status might be altered again”). Such

power would allow the Executive to wield the threat

of military detention over individuals subject to

domestic criminal prosecution, and also permit the

collection of information for use in civilian criminal

prosecutions while operating outside the confines of

civilian criminal procedure rules. See, e.g., United

States v. Abu Ali, 528 F.3d 210, 229-34 (4th Cir. 2008)

(upholding the inclusion at trial of incriminating

statements made by the defendant, a United States

citizen, during his 20 months of detention in Saudi

Arabia, despite allegations of torture).

The incentives for such manipulation are

compounded if former detainees ultimately have little

legal recourse against the government officials

responsible for any mistaken and unlawful detention.

See, e.g., Arar v. Ashcroft, 532 F.3d 157, 189-190 (2d

Cir. 2008) (denying a domestic detainee’s Bivens

remedy because he could not show that the

government, in detaining him in order to interrogate

him about his connections with terrorist groups,

acted with “punitive intent” or an _ illegitimate

purpose), reh’g en banc granted (2d Cir. Aug. 12,

2008) (oral argument held Dec. 9, 2008); Pet. Br. at

18-19, Ashcroft v. Iqbal, No. 07-1015 (U.S. Aug. 29,

2008) (arguing that a heightened qualified immunity

standard should apply to foreclose all claims brought

38

by terrorism suspect detainees against top-tier

Executive Branch officials).

2. The power claimed here by the

Executive would imperil citizens and

non-citizens alike

The threat to individual liberty that arises from

the claimed breadth of the Executive’s detention

authority in this case affects more than just a small

and isolated segment of the population of the United

States; it extends to all persons who are lawfully in

this country, including citizens.

Currently, the Non-Detention Act, 18 U.S.C.

§ 4001(a), prohibits the detention of citizens without

congressional authorization, but this law would not

shield citizens if the AUMF is construed as implicit

congressional authorization for the President to use

the military to detain without charge or trial persons

who are lawfully in the United States. See Hamdi,

542 U.S. at 517. The AUMF makes no distinction

between citizens and noncitizens. Nor would the

American citizenship of a suspected terrorist render

him any less of an “enemy combatant,” or restrict his

detention as such. /d. at 519 (“There is no bar to this

Nation's holding one of its own citizens as an enemy

combatant.”).

Thus, not only lawfully present noncitizens

but aiso United States citizens—both of whom

the Constitution protects against the deprivation of

liberty without due process, see Zadvydas v. Davis,

39

533 U.S. 678, 693 (2001); Wong Wing v. United States,

163 U.S. 228, 238 (1896)—could be swept up in

domestic military detention dragnets. And the severe

price to be paid for mistaken allegations of terrorist

ties would be borne by innocent citizens and non-

citizens alike. Cf. Mark Larabee & Ashbel S. Green,

One Mistaken Clue Sets a Spy Sega in Motion,

THE OREGONIAN, Mar. 26, 2006, at Al (describing the

two-week long detention of a Portland-area lawyer on

a material witness warrant that was issued based on

the government’s erroneous allegation of a connection

between his fingerprint and the 2003 Madrid

bombings).

The Executive here has not disclaimed the

power to use the military to apprehend and detain,

without charge or trial, United States citizens who

are in the United States. To the contrary, the

government is on record arguing that the President

can do precisely that. See Pet. Br. at 40, 41, Rumsfeld

v. Padilla, 542 U.S. 426 (2004) (No. 03-1027) (arguing

that “nothing in the Authorization of Force suggests

that Congress sought to withhold support for the

President’s use of force against enemy combatants

who are American citizens,” and that “({t]here is also

no basis for reading the broad language of [the

AUMF] to contain an unstated exception for enemy

combatants captured within the United States”);

id. at 44 (“(T]here is no question that the President’s

decision to detain Padilla[l, a U.S. citizen

apprehended in the United States,] as an enemy

40

combatant falls comfortably within the broad sweep

of Congress’s Authorization of Force.”).

CONCLUSION

For the reasons set forth above, the judgment of

the court of appeals should be reversed.

Respectfully submitted,

TIMOTHY LYNCH

THE CaTo INSTITUTE

1000 Massachusetts Ave., NW

Washington, D.C. 20001

Counsel for The Cato Institute

SHARON BRADFORD FRANKLIN

THE CONSTITUTION PROJECT

1025 Vermont Ave., NW

Washington, D.C. 20005

Counsel for The

Constitution Project

JOHN W. WHITEHEAD

THE RUTHERFORD INSTITUTE

P.O. Box 7482

Charlottesville, VA 22906

Counsel for The

Rutherford Institute

January 28, 2009

DrREw S. Days, III

BETH S. BRINKMANN

BRIAN R. MATSUI

KETAN.JI BROWN JACKSON*

Boris YANKILOVICH

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

Washington D.C. 20006

(202) 887-1568

Counsel for The

Constitution Project and

The Rutherford Institute

*Counsel of Record