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

NY Qt) 08-368

IN THE

Supreme Court of the United State

———--.— 75 Court, U.S.

FILED

JAN 2 8 7099

GEFICE OF THE CLERK

ALI SALEH KAHLAH AL-MARRI

Petitioner,

V.

COMMANDER DANIEL SPAGONE,

U.S.N., CONSOLIDATED NAVAL BRIG

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF WILLIAM N. ESKRIDGE, JR.,

DANIEL A. FARBER, AND ERIC LANE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

PAUL M. SMITH*

JOSHUA A. BLOCK

LUKE P. MCLOUGHLIN

DANIELLE TARANTOLO

Jenner & Block LLP

919 Third Avenue, FI]. 37

New York, NY

(212) 891-1600

10022

"Counsel of Record

Attorneys for Amici Curiae

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1

TABLE OF CONTENTS

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INTEREST OF AMICT CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. The AUMF Did Not Authorize—and the

Patriot Act Prohibits—the Indefinite Domestic

Detention of al-Marri and Other Resident

Aliens Seized Within the United States. .............. 4

A. The Plain Text of the Patriot Act Clearly

and Explicitly Limits the Executive's

Power To Detain Indefinitely a Resident

Alien on Suspicion of Terrorism

. The Patriot Act Precludes the

Government's Expansive and Strained

Reading of the AUMF

. Judicial Interpretation of the AUMF

Should Not Be Used To Override the

Clearly Expressed Will of Congress............... 11

. Other Canons of Construction Counsel

Against an Interpretation of the AUMF that

Would Authorize al-Marni’s Detention

A. The Government’s Broad Interpretation of

the AUMF Raises Constitutional Concerns

Both as Applied to al-Marri and as Applied

ok” eR pe ieee set eran Ayah Ran ins 17

lend

B. The AUMF Does Not Contain a Clear

Statement Authorizing Domestic

Detention, as Required By £x parte E’ndo. ...19

CONCLUSIIN is.00secersatsesaswes ‘anixiatdldeeubcaas eae

TABLE OF AUTHORITIES

CASES

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

Clark v. Martinez, 543 U.S. 371 (2005)

Dames & Moore v. Regan, 453 U.S. 654

Duncan v. Kahanamoku, 327 U.S. 304

(1946) 0, 22

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ......... 10

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).......... 13

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

Hinck v. United States, 127 S. Ct. 2011

(2007)

INS v. St. Cyr, 533 U.S. 289 (2001) ..cccccccceesceoseee 1

Lee v. Madigan, 358 U.S. 228 (1959) .............20, 22

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

Ex parte Mitsuye Endo, 323 U.S. 283 (1944)...3, 19

New York State Conference of Blue Cross &

Blue Shield Plans v. Travelers Insurance

Co., 514 U.S. 645 (1995)

Padilla v. Hantt, 423 F.3d 386 (4th Cir.

eo iiacenussicknseshervibvearseasevaseesi 22

Ex parte Quirin, 317 U.S. 1 (1942).................00000- 18

Rita v. United States, 127 S. Ct. 2456 (2007)

United States v. Estate of Romani, 523 U.S.

BET CPGOR)........0.0..0.0000. wien OED URE RIES A RE 4

ill

United States v. Santos, 128 8S. Ct. 2020

Youngstown Sheet & Tube Co. v. Sawyer,

BAT UB. BTR oevscnccnccsnvnconsascccacsacess 3, 16, 21

Zadvydas v. Davis, 533 U.S. 678 (2001) 17, 18

STATUTES

a Be on oivsvcn des scenspenincscsenedbvavexsondaans

8 U.S.C. § 1226a(a)(5)

8 U.S.C. § 1226a(a)(6)

eer I acticccsvnsousvd na cderneenees 5

8 U.S.C. § 1226a note.......... Nidichibinttoreanis ean 6

Ea ee iia icine casein pi ctacncicapetinanenencin 20

Authorization for Use of Military Force,

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

USA Patriot Act of 2001, Pub. L. No. 107-

56, 115 Stat. 272 (codified at 8 U.S.C. §

OTHER AUTHORITIES

Administration’s Draft Anti-Terrorism Act

of 2001: Hearings Before the H. Comm.

on the Judiciary, 107th Cong. (2001)

Homeland Defense: Hearings Before the S.

Comm. on the Judiciary, 107th Cong.

(2001)

1V

Protecting Constitutional Freedoms in the

Face of Terrorism: Hearings Before the

Subcomm. on the Constitution,

Federalism, and Property Rights of the S.

Comm. on the Judiciary, 107th Cong.

147 Cong. Rec. 19,507 (2001)

147 Cong. Rec. 19,538 (2001)

147 Cong. Rec. 20,439 (2001)

147 Cong. Rec. 20,441 (2001)

OTHER AUTHORITIES

Daniel J. Freeman, Note, Zhe Canons of

War, 117 Yale L.J. 280 (2007)

Neil A. Lewis & Robert Pear, A Nation

Challenged: Congress; Negotiators Back

Scaled-Down Bill to Battle Terror, N.Y.

Times, Oct. 2, 2001

William N. Eskridge, Jr. & Philip P.

Frickey, Quasi-Constitutional Law: Clear

Statement Rules as _ Constitutional!

Lawmaking, 45 Vand. L. Rev. 593 (1992)

INTEREST OF AMICI CURIAF

Amici are law professors and scholars at Yale

Law School, Boalt Hall Law School, and Hofstra Law

School, respectively. They teach and write in the

areas of legislation and statutory interpretation.

Based on their application of accepted canons of

statutory interpretation, amuci respectfully submit

that neither the Authorization for Use of Military

Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), nor

the USA Patriot Act of 2001, Pub. L. No. 107-56, 115

Stat. 272 (codified at 8 U.S.C. § 1226a), authorizes

the indefinite detention of Petitioner and similarly

situated persons seized in the United States as

enemy combatants.

SUMMARY OF ARGUMENT

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

plurality of this Court held that the Authorization

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

Stat. 224 (2001) (the “AUMF”), authorized the

President to detain as enemy combatants persons

who were “part of or supporting forces hostile to the

United States or coalition partners in Afghanistan

and who engaged in an armed conflict against the

United States there.” Hamdi, 542 US. at 51§

(quotation marks omitted). In seeking to hold al-

Marri in a naval brig indefinitely without charge, the

1 The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amici curiae or their counsel made a monetary

contribution to its preparation or submission.

2

government now asks this Court to extend the

plurality’s decision in Hamad and read into the

AUMF the implicit authorization for the President to

seize and detain U.S. citizens and resident aliens on

American soil, even if they never affiliated with a

foreign military or set foot on a foreign battlefield.

Under settled principles of statutory interpretation,

the government’s breathtakingly expansive reading

of the AUMF should be rejected.

Congress has specifically denied the President the

indefinite detention powers that the government now

seeks to gain through judicial interpretation. Just

thirty-eight days after passing the AUMF, Congress

passed the USA Patriot Act of 2001, Pub. L. No. 107-

56, 115 Stat. 272 (codified at 8 U.S.C. § 1226a),

which gave the President carefully defined powers to

detain resident aliens on suspicion of terrorism. The

administration initially sought much broader and

unlimited detention power but was forced to

withdraw that proposal in the face of bipartisan

congressional disapproval. Congress’s unambiguous

rejection of the administration’s request for authority

to indefinitely detain persons seized within the

United States fatally undermines the government’s

assertion that such detention was somehow

authorized sub silentio by the AUMF only thirty-

eight days earlier.

Having failed to convince Congress to grant the

power to hold resident aliens in indefinite detention,

the government now seeks to lobby the judiciary to

read that authority into the more general provisions

of the AUMF. The government's efforts to override

the clear will of Congress in the guise of judicial

3

interpretation cannot be reconciled with Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), or

our Constitution’s separation of powers. “If civil

rights are to be curtailed during wartime, it must be

done openly and democratically, as the Constitution

requires, rather than by silent erosion through an

opinion of this Court.” Hamdi, 542 U.S. at 578

(Scalia, J., dissenting).

Even if Congress had not specifically limited the

President's powers to detain resident aliens,

traditional canons of construction would counsel

against the government’s broad reading of the

general terms of the AUMF. Under the canon of

constitutional avoidance, this Court should avoid

interpreting the AUMF in a manner that would raise

difficult constitutional questions, both as applied to

resident aliens such as al-Marri and as applied in

future cases to U.S. citizens. And, under the clear-

statement rule announced in £x parte Mitsuye Endo,

323 U.S. 283 (1944), this Court should not interpret

the general provisions of a wartime measure to

restrict the domestic liberty of citizens unless such

an intent is clearly and unmistakably expressed in

the text of the statute. While the detention of

persons fighting in a foreign theater of war may be

implied from the general terms of the AUMF, 2ndo

requires a clear and explicit statement to authorize

the domestic seizure and detention of persons who

never set foot on a foreign battlefield. Because the

AUMF does not clearly and unmistakably authorize

such detentions of citizens and resident aliens, the

decision of the Fourth Circuit should be reversed.

4

ARGUMENT

The government asks this Court to extend the

plurality’s decision in Hamdi and read into the

AUMF the implicit authorization for the President to

seize U.S. citizens and resident aliens on American

soil, and to hold those detainees indefinitely in

military custody without charge. Under settled

principles of — statutory interpretation, the

administration’s expansive interpretation of the

AUMF should be rejected.

I. The AUMF Did Not Authorize—and the

Patriot Act Prohibits—the Indefinite Domestic

Detention of al-Marri and Other Resident

Aliens Seized Within the United States.

In arguing that the power to seize and detain

persons in the United States should be viewed as

“necessary and appropriate force” authorized by the

AUMF, the government ignores the explicit and

unambiguous restraints on executive detention that

Congress enacted as part of the Patriot Act. The

AUMF should not be interpreted to implicitly confer

the same broad detention powers that Congress

specifically refused to authorize.

A. The Plain Text of the Patriot Act Clearly and

Explicitly Limits the Executive’s Power To

Detain Indefinitely a Resident Alien on

Suspicion of Terrorism.

When it passed the Patriot Act (thirty-eight days

after passing the AUMF) Congress gave the

President explicit, narrowly defined authority to

detain aliens within the United States on suspicion

of terrorism. A subheading of the statute is

3)

expressly identified as a “[llimitation on indefinite

detention.” 8 U.S.C. § 1226a(a)(6).

The Patriot Act provides that within seven days

of seizing an alien within the United States, the

Attorney General “shall place the alien... in

removal proceedings,” or “shall charge the alien with

a criminal offense.” Jd. § 1226a(a)(5). If no charges

or removal proceedings are brought within that

seven-day period, the Attorney General “shall release

the alien.” Jd. The Patriot Act allows the Attorney

General to detain suspected terrorists during the

pendency of their removal proceedings and when it is

impossible in the “reasonably foreseeable future” to

transfer them to another country—but that

additional detention power is subject to strict

procedural safeguards. Jd. § 1226a(a)(6). In such

cases, the Attorney General or Deputy Attorney

General must personally certify that release of the

alien would pose national security concerns, and the

responsibility for making that certification may not

be delegated to any other official. Jd. § 1226a(a)(4).

Following the initial certification, “[t]he alien may

request each 6 months in writing that the Attorney

General reconsider the certification and may submit

documents or other evidence in support of that

request.” Jd. § 1226a(a)(7). Every six months, the

Attorney General must submit detailed reports to

the House and Senate Judiciary committees

disclosing the number of aliens certified, the grounds

for those certifications, the nationalities of the aliens,

the length of the detention for each certified alien,

the number of certified aliens who were removed, the

number of certified aliens granted relief from

6

removal, the number of certified aliens the Attorney

General has determined may no longer be certified,

and the number of certified aliens released from

detention. /d. § 1226a note.

Even if the text of the Patriot Act were not plain

and unambiguous, the legislative history confirms

Congress’s clear intent to place strict limits on the

President’s power to detain aliens in the United

States. In drafting the Patriot Act, Congress

considered and rejected the President’s request for

authorization to detain’ suspected _ terrorists

indefinitely without charge. The initial legislation

proposed by the administration, named the Anti-

Terrorism Act of 2001, would have allowed indefinite

detention with no limitations or restrictions. During

committee hearings in Congress, this proposal drew

bipartisan criticism,” which caused the

administration to agree to a more restricted

provision. See Neil A. Lewis & Robert Pear, A

2 See Admiunistration’s Draft Anti-Terrorism Act of 2001:

Hearings Before the H. Comm. on the Judiciary, 107th Cong. 14

(2001) (statement of Rep. Conyers) (identifying proposal for

indefinite detention as one of a “number of provisions in your

measure that give us constitutional trouble”); zd. at 20

(statement of Rep. Berman) (criticizing provision for giving

Attorney General “an ability to detain in perpetuity people in

detention without limit, without requirement of deportation,

without requirement of prosecution”); sd. at 30 (statement of

Rep. Lofgren) (“[T]he indefinite detention is a real issue,

because there is no time line during which the deportation

proceedings must be undertaken.”); Homeland Defense:

Hearings before the S. Comm. on the Judiciary, 107th Cong. 26

(2001) (statement of Sen. Specter) (criticizing proposal for

gving “the authority to detain on that very generalized

standard without any evidentiary base or probable cause”).

ry

]

Nation Challenged: Congress; Negotiators Back

Scaled-Down Bill to Battle Terror, N.Y. Times, Oct.

2, 2001, at Al (“The proposal for indefinite detention

of immigrant suspects engendered the greatest

opposition from civil libertarians both inside and

outside Congress.”)

Congress’s repudiation of the administration’s

earlier proposal was recounted throughout the

debate by supporters of the final bill. In the House,

Representative Conyers submitted a “point-by-point”

analysis of the legislation, stating that the final bill

“completely revises the Administration’s proposal to

better balance the law enforcement needs of the

Attorney General with the protection of aliens’ civil

liberties.” 147 Cong. Rec. 20,441 (2001) (statement

of Rep. Conyers); see also id. at 20,439 (statement of

Rep. Sensenbrenner) (noting that the “compromise

legislation” requires the Attorney General “to revisit

every 6 months the detention of an alien who has

been certified as an alien terrorist”).

In the Senate, the bill’s supporters emphasized

that negotiators had “made painstaking efforts to

achieve this workable compromise” in order to

address “questions about’ earlier provisions,

particularly the detention provision for suspected

alien terrorists.” 147 Cong. Rec. 19,507 (2001)

(statement of Sen. Hatch).

In response to the concern that the INS might

detain a suspected terrorist indefinitely, the

lsic] Senator Kennedy, Senator Kyl, and I

worked out a compromise that lmits the

provision. It provides that the alien must be

8

charged with an immigration or criminal

violation within seven days after the

commencement of detention or be released. In

addition, contrary to what has been alleged,

the certification itself is subject to judicial

review. The Attorney General’s power to

detain a suspected terrorist under this bill is,

then, not unfettered.

Id. Senator Kyl similarly stated that the provision

for “temporary detention” was a “compromise” that

“represents a bipartisan understanding.” Jd. at

19,538 (statement of Sen. Kyl).

Under the compromise that Members have

reached, the Attorney General must charge an

alien with a deportable violation or he must

release the alien. The underlying certification,

and all collateral matters, can be reviewed by

the U.S. District Court of the District of

Columbia, and the Attorney General is

required to report to Congress every six

months on the use of this detention provision.

Id.

The legislative history of the Patriot Act

underscores what is clear from the statute’s plain

text: The Executive may not detain a resident alien

for more than seven days without bringing criminal

charges or initiating deportation proceedings. Even

after doing so, the Executive may further detain the

alien only by following the Patriot Act’s carefully

outlined procedures. ‘he government has not—and

does not claim to have—followed any of these

9

procedures in detaining al-Marri in a naval brig for

over five years.

B. The Patriot Act Precludes the Government’s

Expansive and Strained Reading of the

AUMF.

Under settled principles of statutory

interpretation, the Patriot Act’s specific limitations

on the detention of resident aliens preclude the

government's interpretation of the AUMF as

granting the President unlimited detention powers.

A specific statute usually takes precedence over a

general one. See, e.g., Hinck v. United States, 127 S.

Ct. 2011, 2015 (2007) (explaining that “a precisely

drawn, detailed statute” usually “pre-empts more

general remedies” and should be “regarded as

exclusive”) (quotation marks omitted). And later

statutes usually trump earlier enactments. See, e.g.,

United States v. Estate of Romani, 523 U.S. 517, 530

(1998) (applying principle that “a specific policy

embodied in a later federal statute should control our

construction” of an earlier statute). Accordingly, in

the event of a conflict between the two statutes, the

Patriot Act’s specific and more recent limitations on

executive detention would take precedence over any

detention power that could be inferred from the

broad provisions of the AUMF.

But in this case, the Court does not need to resort

to such rules of construction to harmonize disparate

pieces of legislation passed by different Congresses.

The Patriot Act’s specific limitations on the detention

of resident aliens provide compelling evidence of

what that same Congress did—and did not—intend

10

to authorize when it passed the AUMF thirty-eight

days earlier. This Court has repeatedly refused to

interpret broad legislative provisions in a manner

that would conflict with other acts passed by the

same Congress. See, e.g., Dames & Moore v. Regan,

453 U.S. 654, 686 (1981) (“It is quite unlikely that

the same Congress that rejected proposals to limit

the President’s authority to conclude executive

agreements [when enacting IEEPA] sought to

accomplish that very purpose sub silentio through

the FSIA.”).3

It is similarly “quite unlikely’ that the

administration would request—and that Congress

would explicitly withhold—the power to detain

indefinitely resident aliens seized within the United

States if the same Congress already had given those

same detention powers to the President as part of

the AUMF thirty-eight days earlier. Under settled

3 See also Gonzaga Univ. v. Doe, 526 U.S. 273, 290 (2002)

(concluding that, in light of subsequent legislation requiring the

Department of Education to centralize enforcement of FERPA,

“lilt is implausible to presume that the same Congress

nonetheless intended private suits to be brought before

thousands of federal- and state-court judges, which could only

result in the sort of ‘multiple interpretations’ the Act explicitly

sought to avoid”); MY. State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 667 (1995) (“To

interpret ERISA’s pre-emption provision as broadly as

respondents suggest, would have rendered the entire NHPRDA

utterly nugatory, since it would have left States without the

authority to do just-what Congress was expressly trying to

induce them to do by enacting the NHPRDA. Given that the

NHPRDA was enacted after ERISA and by the same Congress,

it just makes good sense to reject such an interpretation.”).

11

principles of interpretation, the government’s

expansive reading of the AUMF should be rejected.

C. Judicial Interpretation of the AUMF Should

Not Be Used To Override the Clearly

Expressed Will of Congress.

Like a majority of the judges on the Fourth

Circuit, the government asserts that the Patriot Act

can simply be ignored because it does not directly

speak to the conflict with al Qaeda. In its Brief in

Opposition to Certiorari, the government echoes

Judge Wilkinson’s assertion that the two acts have

“separate spheres” because “the AUMF represents a

specific response to the 9/11 attacks, authorizing

military force against those responsible for the

attacks,” while the Patriot Act’s standards for

executive detention are “designed to prevent

terrorism generally, regardless of whether the

suspect was associated with 9/11.” Pet. App. 201la

(Wilkinson, J.).4

The government’s assertion that the detention

provisions of the Patriot Act were not directed at the

persons who planned the 9/11 attacks is

demonstrably false. The administration presented

the Patriot Act to Congress as “America’s response to

the criminal act of war perpetrated on the United

States of America on September .:

4 The government's Brief in Opposition does not discuss or

defend Chief Judge Williams’ assertion that the Patriot Act

regulates the President’s authority to detain under the Take

Care Clause of the Constitution and the AUMF provides

separate authority to detain pursuant to the Commander-in-

Chief Clause. Pet. App. 169a.

12

Administration’s Draft Anti-Terrorism Act of 2001:

Hearings Before the H. Comm. on the Judiciary,

107th Cong. 3 (2001) (statement of John Ashcroft,

Att’y Gen. of the United States). Indeed, then-

Attorney General Ashcroft argued that the detention

proposal was an _ important part of the

administration’s efforts to detect and apprehend

persons responsible for the attacks: “(T]he

investigation into the act of September 11 is ongoing,

moving aggressively forward. To date, the FBI and

INS have arrested or detained 352 individuals who

remain—there are other individuals, 392 who remain

at large, because we think they have—and we think

they have information that could be helpful to the

investigation.” Jd. at 7.5

In attempting to relegate the Patriot Act to a

“separate spherel],” the government asks the Court

to infer grants of authority from the AUMF that

could potentially supplant any and all domestic laws

5 Supporters of the administration’s proposal similarly

anticipated that the Patriot Act would be applied to apprehend

and punish the perpetrators of the 9/11 attacks. See id, at 3

(statement of Rep. Sensenbrenner) (“Let me tell you on

September 11, our common defense was penetrated, and

America’s tranquility, welfare and liberty were ruthlessly

attacked. | urge the Members of this Committee to stand

united together in recognition of the important purpose we

must serve in preventing future terrorist attacks and

prosecuting those who have already attacked us.”); id. at 28-29

(statement of Rep. Chabot) (“[T]he vicious terrorist attacks of

September 11 represented nothing less than a declaration of

war against our country. To win this war, we must use every

investigative law enforcement and military resource at our

disposal to find and punish the individuals or governments

responsible for these terrible crimes.’).

13

unless, perhaps, the text of those laws specifically

referenced the 9/11 attacks. That approach has no

foundation in our Constitution’s separation of powers

or in this Court’s precedents. Indeed, just a few

terms ago, this Court affirmed that the general

language of the AUMF does not supplant long-

standing provisions of the Uniform Code of Military

Justice governing military commissions. See

Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006)

(Breyer, J., concurring) (finding no authority in the

AUMF to employ military commissions when

“Congress has denied the President the legislative

authority to create military commissions of the kind

at issue here”); see also Daniel J. Freeman, Note,

The Canons of War, 117 Yale L.J. 280, 304 (2007)

(surveying cases and concluding that “in nine of

twelve cases the courts found that a_ specific

framework statute trumps a more recent AUMF’”).

The general rule that the AUMF does not

automatically repeal pre-existing domestic laws

applies with even greater force in this case because

the Patriot Act was enacted one month after

Congress passed the AUMF. This is not a case

where an outdated statute failed to anticipate a new

military emergency. Indeed, the same arguments

that the government has used in litigation to justify

the detention of al-Marri were considered and

rejected by Congress during hearings on the Patriot

Act. Witnesses testifying in favor of the

administration’s proposal argued that the detention

of aliens was crucial to the country’s ongoing war

efforts against al Qaeda:

14

Today we are right to presume the loyalty of

our citizens but we still face the problem of

enemy aliens in our midst. But because no

foreign nation state is prosecuting the war

against us, we cannot determine the identity

of potentially alien enemies through the old

category of the alien’s. nation _ state.

Nevertheless these enemy aliens are even

more dangerous because they, and not others

from their home countries, are the main

vectors of attacks on the United States. And

unlike previous wars, they may have ready

access to weapons of mass_ destruction

targeted at civilians. In these circumstances,

it is reasonable to provide the Attorney

General with authority to find and detain the

relatively few alhens who are our potential

enemies. This new kind of alien detention

authority is proportionate to the new kind of

war we face.

Protecting Constitutional Freedoms in the Face of

Terrorism: Hearings Before the Subcomm. on the

Constitution, Federalism, and Property Rights of the

S. Comm. on the Judiciary, 107th Cong. 25 (2001)

(testimony of John O. McGinnis, Professor of Law,

Benjamin N. Cardozo Sch. of Law). Having failed to

convince Congress that indefinite detention powers

were necessary for “the new kind of war we face,” the

administration now seeks to persuade the judiciary

to authorize the same detention policies that

Congress prohibited.

The government similarly argued in £x parte

Milligan that the danger of sleeper cells in Indiana

15

justified the domestic seizure and detention of

Milligan, notwithstanding Congress’s direction that

all civilian detainees be promptly indicted or

released. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 133-

34 (1866) (Chase, C.J., concurring in part and

dissenting in part). Indeed, the four Justices who

concurred in judgment but dissented from Milligan’s

constitutional holding were persuaded that the

danger of enemy sleeper cells in Indiana might be

serious enough to justify Milligan’s detention as a

constitutional matter. /d. at 140 (arguing that

Milligan was a member of “a powerful secret

association, composed of citizens and others

under military organization, conspiring against the

draft, and plotting insurrection, the liberation of the

prisoners of war at various depots, the seizure of the

state and national arsenals, armed cooperation with

the enemy, and war against the national

government’). But, while dissenting from the

majority's constitutional holding, those same

Justices nevertheless recognized that their own

assessment of whether such detention should be

authorized could not supplant Congress’s refusal to

do so: “We have confined ourselves to the question of

power. It was for Congress to determine the

question of expediency. And Congress did determine

it. That body did not see fit to authorize trials by

military commission in Indiana, but by the strongest

implication prohibited them.” J/d at 141. The

Justices accordingly concurred in the Court’s

unanimous holding that Milligan must be tried or

released.

16

Nearly a century after Milligan this Court again

reaffirmed in Youngstown that the courts should not

second-guess the will of Congress based on the

judges’ own determination that “it may have been

desirable to have given the President further

authority, a freer hand” to respond to national

security concerns: “The need for new legislation does

not enact it.” Youngstown, 343 U.S. at 603, 604

(Frankfurter, J., concurring); cf Hamdi, 542 U.S. at

577-78 (Scalia, J., dissenting). Indeed, as in

Youngstown, it would be particularly ironic for this

Court to override the will of Congress as expressed in

the Patriot Act in the guise of interpreting the

general provisions of the AUMF:

It is one thing to draw an intention of

Congress from general language and to say

that Congress would have explicitly written

what is inferred, where Congress has not

addressed itself to a specific situation. It is

quite impossible, however, when Congress did

specifically address itself to a problem... to

find secreted in the interstices of legislation

the very grant of power which Congress

consciously withheld. To find authority so

explicitly withheld is not merely to disregard

in a particular instance the clear will of

Congress. It is to disrespect the whole

legislative process and the constitutional

division of authority between President and

Congress.

Youngstown, 343 U.S. at 609 (Frankfurter, J.,

concurring).

17

The administration’s request for expanded

detention authority should be rejected in accordance

with Milligan and Youngstown. Because Congress

has explicitly refused to grant the administration the

power to hold al-Marri and other resident aliens in

indefinite detention, the AUMF may not be

interpreted by judicial fiat to grant the authority

that Congress refused to provide.

II. Other Canons of Construction Counsel Against an

Interpretation of the AUMF that Would

Authorize al-Marri’s Detention.

Even if Congress had not specifically prohibited

the President from holding resident aliens such as

al-Marri in indefinite detention, traditional canons of

construction would counsel against the government’s

expansive reading of the AUMF.

A. The Government’s Broad Interpretation of the

AUMF Raises Constitutional Concerns Both

as Applied to al-Marri and as Applied to

Citizens.

The indefinite detention without trial of a

resident alien such as al-Marri raises serious

concern. See Zadvydas v. Davis, 533 U.S. 678, 690

(2001): INS v. St. Cyr, 533 U.S. 289, 304-05 (2001).

This Court has long held that resident aliens are

fully protected by the Fifth and Sixth Amendments.

See Wong Wing v. United States, 163 U.S. 228, 238

(1896) (“[E]ven aliens shall not be held to answer for

a capital or other infamous crime, unless on a

presentment or indictment of a grand jury, nor be

deprived of life, liberty, or property without due

process of law.”). Moreover, resident aliens have a

18

substantive due process right to be free from bodily

restraint that is “strong enough to raise a serious

question as to whether, irrespective of the

procedures used, the Constitution permits detention

that is indefinite and _ potentially permanent.”

Zadvydas, 533 U.S. at 696 (citation omitted).

Those constitutional concerns are heightened in

this case because the AUMF’s implicit power to

detain enemy combatants applies with equal force to

citizens and non-citizens alike. The text of the

AUMF makes no distinction between the detention of

citizens and resident aliens. And this Court has

twice held—first in Quzrin and again in Hamdi

that, under the customary laws of war, the power to

detain enemy combatants applies equally to both

citizens and aliens. See Ex parte Quirin, 317 U.S. 1,

37-38 (1942); Hamdi, 542 U.S. at 519 (plurality

opinion). The judges on the Fourth Circuit thus

acknowledged—and the government agreed—that

the court’s holding would also authorize the

President to seize and detain U.S. citizens on

American soil. See Pet. App. 10a (opinion of Motz,

J.); id. at 141a (opinion of Traxler, J.); id. at 146a n.2

(opinion of Gregory, J.); id. at 180a (opinion of

Williams, C.J.); id. at 235a-236a (opinion of

Wilkinson, J.). But see id. at 268a n.10 (opinion of

Wilkinson, J.) (declining to “resolve the issue for the

purposes of this case”).

This Court should accordingly take care when

interpreting the AUMF to. avoid difficult

constitutional questions that would arise, not only

from the detention of al-Marri and other resident

19

aliens, but also from the detention of United States

citizens in future cases.

[W]hen deciding which of two plausible

statutory constructions to adopt, a court must

consider the necessary consequences of its

choice. If one of them would raise a multitude

of constitutional problems, the other should

prevail—whether or not those constitutional

problems pertain to the particular litigant

before the Court.

Clark v. Martinez, 543 U.S. 371, 380-81 (2005)

(emphasis added); accord United States v. Santos,

128 S. Ct. 2020, 2030 (2008) (plurality opinion); Ayta

v. United States, 127 S. Ct. 2456, 2478-79 (2007)

(Scalia, J., concurring in the judgment).

The government’s expansive interpretation of the

AUMF would raise serious constitutional questions,

in al-Marri’s case and in future cases. This Court

should not reach out to embrace those questions by

reading into the AUMF a new detention authority

that is not supported by, much less compelled by, the

statute’s plain text.

B. The AUMF Does Not Contain a Clear

Statement Authorizing Domestic Detention, as

Required By £x parte Endo.

In £x parte Mitsuve Endo, 323 U.S. 283 (1944),

this Court held that “when asked to find implied

powers’ in “a war-time measure,” a reviewing court

must assume that “the law makers intended to place

no greater restraint on the citizen than was clearly

and unmistakably indicated by the language they

used.” /d at 300; accord Hamdr, 542 U.S. at 544

20

(Souter, J., concurring in judgment) (explaining that

Endo created “an interpretive regime that subjected

enactments limiting liberty in wartime to the

requirement of a clear statement”).§

Endos requirement of a “clear” and

“unmistakable” statement is not simply a method of

divining legislative intent. Rather, it “imputels] to

Congress an attitude that [i]s more consonant with

our traditions of civil liberties.” Lee v. Madigan, 358

U.S. 228, 235 (1959); accord Duncan v. Kahanamoku,

327 U.S. 304, 323-24 (1946) (marrowly construing

congressional authorization of “martial law” in

Hawaii and refusing to attribute to Congress an

intent to “authorize the supplanting of courts by

military tribunals”). Requiring a clear statement by

Congress before finding executive power to detain

citizens, or otherwise substantially infringe on their

liberties, promotes respect for the constitutional

system of checks and balances by demanding that

the two political branches speak in unison. And, like

the doctrine of constitutional avoidance, the Hndo

canon preserves a proper, and limited, role for the

courts by avoiding difficult constitutional questions

unless it is truly necessary to resolve them. “If the

Court invokes a clear statement rule to advise that

6 Endo’s requirement of a clear statement authorizing deten. on

was reaffirmed by Congress in the Non-Detention Act, 18

U.S.C. § 4001f(a). Although al-Marri is not a citizen and

therefore not covered by Endo or the Non-Detention Act, the

judges on the court below recognized that their holding would

apply with full force to citizens and non-citizens alike. The

Court should therefore interpret the AUMF in a manner that

avoids unnecessary conflict with Endo and the Non-Detention

Act in similar cases involving citizens. See supra at 18-19.

21

certain statutory interpretations are favored in order

to avoid constitutional difficulties, Congress can

make an informed legislative choice either to amend

the statute or to retain its existing text.”

Boumediene v. Bush, 128 S. Ct. 2229, 2243 (2008);

see also William N. Eskridge, Jr. & Philip P. Frickey,

Quasi-Constitutional Law: Clear Statement Rules as

Constitutional Lawmaking, 45 Vand. L. Rev. 593

(1992).

The plurality opinion in Hamdz does not

undermine /ndo's requirement of a clear statement

to authorize the domestic seizure of civilians who

have never fought on a foreign battlefield. The

Hamdi plurality found the broad language in the

AUMF to be sufficiently “clear{] and unmistakabl[e]”

to authorize Hamdi’s detention because the detention

of battlefield captives is a “fundamental incident of

waging war.” Hamd), 542 U.S. at 519. But Hamdr

took care to distinguish its holding from the unlawful

seizure and detention of Milligan at his home in

Indiana. See id. at 521-22. The plurality opinion

reflects this Court’s historical willingness to

accommodate a “latitude of interpretation” to uphold

executive action “when turned against the outside

world for the security of our society” but refuse “such

indulgence” when executive action “is turned

inward.” Youngstown, 343 U.S. at 645 Wackson, J.,

concurring).

Because the Fourth Circuit believed that “locus of

capture” is “irrelevant,” the lower court mistakenly

concluded that the AUMP’s implicit authorization for

the President to detain battlefield captives

necessarily authorizes the military detention of

22

citizens such as Jose Padilla who are seized in the

United States, Padilla v. Hantt, 423 F.3d 386, 393

(4th Cir. 2005), and resident aliens such as al-Marri

who never set foot on a foreign battlefield, Pet. App.

165a (opinion of Williams, C.J.) (applying Padi/la’s

holding to al-Marri).

The Fourth Circuit’s assumption that the “locus

of capture” is “irrelevant” is incorrect. It is one thing

to read the AUMF as implicitly authorizing the kinds

of detentions of enemy soldiers abroad that are

normally a part of warfare. It is quite another to

read the AUMF as implicitly authorizing the

domestic seizure and detention of a person who is not

a part of any military service and never fought on

any battlefield. Indeed, this Court has historically

been willing to infer military jurisdiction over foreign

territories while refusing to infer any corresponding

military jurisdiction over domestic territory without

a clear statement. See Lee, 358 U.S. at 233-34

(narrowly construing military jurisdiction over

crimes committed by soldier in the United States);

Duncan, 327 U.S. at 313-14 (narrowly construing

Congress’s authorization of “martial law” in Hawaii).

Interpreting the AUMF to authorize indefinite

detention of persons seized on American soil would

pose a significantly greater threat to domestic liberty

then the detention of persons fighting overseas on a

foreign battlefield. Ando counsels against inferring

such restrictions on domestic liberty from the

general provisions of a statute without a clear

statement from Congress

Congress must speak with greater clarity when it

intends to authorize domestic detentions than when

23

it authorizes the detention of enemy soldiers

captured abroad. Because the AUMF does not

contain a clear and unmistakable statement

authorizing the seizure and indefinite detention of

citizens and resident aliens, al-Marri’s petition

should be granted and the Fourth Circuit’s decision

should be reversed.

CONCLUSION

For the foregoing reasons, the decision of the

Fourth Circuit should be reversed.

Respectfully submitted,

PAUL M. SMITH*

JOSHUA A. BLOCK

LUKE P. MCLOUGHLIN

DANIELLE TARANTOLO

Jenner & Block LLP

919 Third Avenue, F]. 37

New York, NY 10022

(212) 891-1600

January 28, 2009 * Counsel of Record