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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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

both tATQRZT

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1658%3A06. Public record. Not legal advice.