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

Beam

Supreme Court, U.S.

FILED

JAN 28 2009

OFFICE OF THE CLERK

No. 08-368

IN THE

Supreme Court of the Gnited States

ALI SALEH KAHLAH AL-MARRI,

Petitioner,

v.

DANIEL SPAGONE, U.S.N. COMMANDER,

CONSOLIDATED NAVAL BRIG,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF AMICI CURIAE OF FORMER NATIONAL SECURITY

OFFICIALS AND COUNTERTERRORISM EXPERTS

IN SUPPORT OF PETITIONER

Suzanne E. Spaulding

Counsel of Record

Sabin Willett

Rheba Rutkowski

Catherine R. Murphy

BINGHAM MCCUTCHEN LLP

2020 K Street, N.W.

Washington, D.C. 20036

(202) 778-6150

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

A. Indefinite Military Detention Of Persons

Lawfully Residing In The United States,

Without Criminal Charge Or Trial,

Threatens To Undermine Our National Se-

QUITS. oiciossvessvaténscaiassiniaieiesoenmenamamiaanias 5

1. We will not prevail against violent ex-

tremists by military force alone; drying

up terrorist recruitment and support is

essential to our national security

. Terrorists employ a false narrative

about the objectives and values of the

United States to glorify their heinous

acts and promote recruitment

. Imprisoning Mr. al-Marri without trial

instead of bringing criminal charges

against him serves the terrorist narra-

tive and threatens our national! security....

a. Imprisonment without trial of indi-

viduals seized inside the United

States promotes the false narrative

of a United States engaged in a war

on Islam and Muslims, which terror-

ists exploit for recruitment

. Military detention of Mr. al-Marri

feeds the false narrative that the ter-

rorists are holy warriors

B. Unwavering Commitment To America’s

Fundamental Values Makes Our Nation

Strong and Is Essential To Protecting The

Nation Against The Terrorist Threat. ........... 22

CONCLUSION

ADDENDUM LISTING AMICI

ili

TABLE OF AUTHORITIES

CASES

Al-Marri v. Pucciarelli,

534 F.3d 213 (4th Cir. 2008)

Hamdi v. Rumsfeld,

542 U.S. 507 (2004)

MISCELLANEOUS

Campaign for Qatari’s Release From U.S.

Prison, The Peninsula, Jan. 17, 2009

Counterterrorism Communications Center, Na-

tional Counterterrorism Center, Office of the

Director of National Intelligence, Words that

Work and Words that Don’t: A Guide for Coun-

terterrorism Communication, March 14, 2008... 20,21

Daniel S. Roper, Global Counterinsurgency:

Strategic Clarity for the Long War, Parameters:

U.S. Army War College Quarterly, Autumn

David W. Barno, Challenges in Fighting a Global

Insurgency, Parameters: U.S. Army War Col-

lege Quarterly, Summer 2006

Detention of Qatarz ‘enemy combatant’ flayed, Al

Jazeera, June 24, 2003

iV

Dr. Kenneth Payne, Waging Communication War,

Parameters: U.S. Army War College Quar-

I, ial a a iicrdcbiians 23

Erie Schmitt & Thom Shanker, Washington recasts

terror war as ‘struggle,’ International Herald

es I EE ID cans ccababdioninnintecicenecctetsececeevsd 7

Gina Bennett, The Wandering Mujahidin: Armed

and Dangerous, Weekend Edition (U.S. Dep’t

of State, Bureau of Intelligence and Research),

ee Be iialiencncistiakaniicdaniaiicinckammaiakereness 17

Hearing on the Treatment of Detainees in U.S.

Custody Before the S. Comm. on Armed Ser-

vices, 110th Cong. (June 17, 2008) (statement

of Alberta Mora, Genera! Counsel, Dep’t of

Se RIT Suciinicesisnpheccbesnaguaditidgiaadatacdaminndmininseie 17,18

Islamic Extremism in Europe: Hearing Before the

Subcomm. on European Affairs of the S. For-

eign Relations Comm., 109th Cong. (Apr. 5,

2006) (statement of Daniel Fried, Assistant

Secretary of State for European Affairs) .............. 16

James Fallows, Declaring Victory, The Atlantic,

NS Raa ee TI Ro en Oe oe 13

Meeting to Receive Testimony on Legal Issues

Regarding Individuals Detained by the

Department of Defense as Unlawful Enemy

Combatants: Hearing Before the S. Comm. on

Armed Services, 110th Cong. (Apr. 26, 2007)

(statement of Jeffrey H. Smith, Senior

Partner, APMOis & POPC Lill ) sccesecsccsccescesccsesvens 12

Vv

Memorandum from the U.S. Dep’t of Homeland

Security, Terminology to Define the

Terrorists: Recommendations from American

Muslims (Jan. 2008) 9,10,14,15,16,18

Michael Chertoff, Preventing Terrorism: A Case

for Soft Power, Harvard International Review,

Summer 2008

Michael German, Squaring the Error, in Law vs.

War: Competing Approaches to Fighting Ter-

rerism 11 (Strategic Studies Institute, U.S.

Army War College, 2005)

Muslim Public Affairs Council, The Impact of 9/11

on Muslim American Young People (June

New Realities in the Media Age: A Conversation

with Donald Rumsfeld (Feb. 17, 2006)

Office of the Executive, National Strategy for

Combatting Terrcrism (Feb. 2003) .................. 5,22

Order to Review Case of Enemy Combatant, Gulf

Times, January 24, 2009

Osama bin Laden, Letter to the American People,

The Guardian, Nov. 24, 2002

Philip Heymann, Muslims in America After 9/11:

The Legal Situation (Dec. 2006)

President-Elect Barack Obama, Announcement of

Intelligence Team (Jan. 9, 2009)

vi

President Barack Obama, Inaugural Address

(Jan. 20, 2008)

President Barack Obama, Remarks at the White

House Following Signing of Executive Orders

(Jan. 22, 2009)

Profile: Sam: al-Hajj, Al Jazeera, May 2, 2008

Richard B. Zabel & James J. Benjamin, Jr., In

Pursuit of Justice: Prosecuting Terrorism Cases

in the Federal Courts (Human Rights First

Robert M. Gates, A Balanced Strategy Repro-

gramming the Pentagon for a New Age, Foreign

Affairs, Jan./Feb. 2009

Roots of Violent Islamic Extremism and Efforts

to Counter It: Hearing Before the S. Comm.

on Homeland Security and Governmental

Affairs, 110th Cong. (July 10, 2008)

(statement of Michael Leiter, Director,

Na Ue nu canunkinpedaes 14

Sami al-Hajj Hits Out at U.S. Captors, Al Jazeera,

May 31, 2008

Stephen Magagnini, “Local FBI chief rebuilds

trust with Muslim leaders,” Sacramento Bee,

Dec. 1, 2008

Vii

The Changing Face of Terror: A Post 9-11

Assessment: Hearing Before the S. Comm. on

Foreign Relations, 109th Cong. (June 13,

2006) (statement of Ambassador Henry A.

Crumpton, Coordinator for Counterterrorism,

U.S. Dep’t of State)

Town Hall Meeting with Secretary Robert Gates

at Balad Air Base, Iraq (Dec. 14, 2008)

US Court to Rule on ‘al-Qaeda’ case, Al Jazeera,

U.S. Dep’t of Justice, Office of Inspector General,

The September 11 Detainees: A Review of the

Treatment of Aliens Held on Immigration

Charges in Connection With the Investigation

of the September 11 Attacks (Apr. 2003)

U.S. Told to Free ‘Enemy Combatant,’ Al Jazeera,

June 12, 2007

Wesley K. Clark & Kal Raustiala, Why Terrorists

Aren’t Soldiers, N.Y. Times, Aug. 8, 2007

1

INTEREST OF AMICI CURIAE!

Amici are former national security officials and

counterterrorism experts who have been working in

this field for many decades.

On December 12, 2001, Petitioner Ali Saleh Kahlah

al-Marri was arrested in Illinois, where he lived with

his wife and children, and eventually charged with

crimes. On June 23, 2003 the charges were dismissed at

the government's request. President Bush subse-

quently executed a declaration asserting that al-Marri

was closely associated with al Qaeda. ‘The govern-

ment’s allegations, if proven, would support conviction

for violation of criminal statutes proscribing engage-

ment in terrorism.’ But no charges were brought and

no crimes were prosecuted. Instead, Mr. al-Marri was

transferred to Department of Defense custody, desig-

nated an “enemy combatant,” and consigned to im-

! No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution in-

tended to fund the preparation or submission of this brief. No

person other than amici curiae, or their counsel, made a monetary

contribution intended to fund its preparation or submission. The

parties have consented to the filing of this brief and such consents

are being lodged herewith.

2 The Addendum attached hereto contains a list of the amici,

along with biographical information for each.

3 See Al-Marri v. Pucciarelli, 534 F.3d 213, 217 (4th Cir. 2008)

(Motz, J., concurring) (“Like others accused of terrorist activity

in this country, from the Oklahoma City bombers to the convicted

September llth conspirator, (al-Marri, or similarly situated

America citizens| could be tried on crimina! charges and, if con-

victed, punished severely.”’).

2

prisonment for an indefinite duration under severe

conditions.

The government contends‘ that national security

concerns support its claim of inherent and statutory

authority to seize and detain indefinitely as “enemy

combatants” individuals like Mr. al-Marri, who are le-

gally present in the United States and are suspected of

involvement in terrorism. We submit this brief be-

cause our experience with the nature of contemporary

terrorism threats leads us to conclude that this ap-

proach to “terrorism suspects”® seized in the United

States in fact undermines our national security, and

greatly burdens the work and mission of those who now

labor to keep the Nation safe.

Based on our expertise and experience, it is our firm

conviction—and, we believe, the consensus among

nearly all terrorism experts — that terrorism cannot be

defeated by military action alone. Effective counter-

terrorism efforts focus on eliminating popular support,

particularly vis-a-vis recruitinent. That, in turn, re-

quires confronting the terrorist narrative and revealing

its hes. Demonstrating our commitment to equality,

justice, and the rule of law supports a counter-

narrative that is essential to that effort and, we sub-

mit, to our national security.

‘ Amui refer to the arguments previously made by the govern

ment. The new administration may present different arguments.

5 Although we refer to Mr. al-Marri as a “terrorism suspect,” in

fact, he has been held for years, as if he had been convicted, solely

on the say-so of the Executive.

3

SUMMARY OF ARGUMENT

The government defends its indefinite military im-

prisonment of Mr. al-Marri as an enemy combatant on

the allegation that he was “closely associated” with al

Qaeda and had “engaged in conduct that constituted

hostile and war-like acts, including conduct in prepara-

tion for acts of international terrorism.” Pet. App.

466a.

Committing or conspiring to commit acts of terror-

ism is a crime that may be prosecuted and punished

under a variety of criminal statutes enacted by Con-

gress.6 Subjecting individuals apprehended inside the

United States to indefinite military imprisonment as

enemy combatants, instead of putting them on trial,

invigorates the false — but widely accepted — narrative

that the United States is engaged in a war on Islam,

using its vast power to victimize Muslims, and that the

terrorist is a noble warrior engaged in a holy war. Such

treatment of a terrorism suspect is so far outside the

traditions of this Nation that it undermines the credi-

bility of our commitment to equality, justice, and the

rule of law. The result is a powerful recruitment tool

for violent extremists who claim allegiance to Islam,

and greater risk to the security of the Nation.

6 See Br. Amicus Curiae of Former Federal Judges and Former

Senior Justice Department Officials in Support of Petitioner (filed

October 23, 2008) at 4-5 (citing statutes); Richard B. Zabel &

James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terror-

ism Cases in the Federal Courts (Human Rights First 2008).

4

America, too, has a powerful tool in this “battle for

hearts and minds.” It is our commitment to our ideals.

Like many other experts in national security and coun-

terterrorism, we have come to understand that our na-

tional security depends upon undermining the terrorist

narrative. Treating suspects seized in the United

States according to our long-held principles, presenting

charges and the opportunity for a trial, affirms our

commitment to those ideals and discredits the terror-

ists’ lies. In contrast, indefinite military detention of

these suspects fuels the narrative that terrorists pro-

mote and undercuts our own. In so doing, it runs

counter to effective counterterrorism strategy. As

President Obama said:

(Ijt is precisely our ideals that give us the

strength and the moral high ground to be able to

effectively deal with the unthinking violence

that we see emanating from terrorist organiza-

tions around the world.

President Barack Obama, Remarks at the White

House Following Signing of Executive Orders (Jan. 22,

2009).

ARGUMENT

A. Indefinite Military Detention Of Persons Lawfully

Residing In The United States, Without Criminal

Charge Or Trial, Threatens To Undermine Our Na-

tional Security.

1. We will not prevail against violent extremists by

military force alone; drying up terrorist recruit-

ment and suvport is essential to our national se-

curity.

We and other experts on national security and vio-

lent extremism have reached the same conclusion: the

current terrorist threat cannot be defeated by the mili-

tary alone.’ Rather, the national security of the

United States depends upon successfully waging what

has variously been called an ideological struggle, “the

7 In a February 17, 2006 speech to the Council on Foreign Rela-

tions, Secretary of Defense Donald Rumsfeld said that some of the

United States’ most critica] battles were now in the “newsrooms”:

“Our enemies have skillfully adapted to fighting wars in today’s

media age, but... our country has not,” he said. New Realities in

the Media Age: A Conversation with Donald Rumsfeld (Feb. 17,

2006) (transcript atatlable ai

http://www.cfr.org/publication/9900/); Office of the Executive,

National Strategy for Combating Terrorism 30 (Feb. 2003),

available at

http://www.state.gov/documents/organization/60172.pdf (“{T}he

best antidote to the spread of terrorism” is building “a world con-

sistent with the interests and values we share with our partners -

values such as human dignity, rule of law, respect for individual

liberties ...").

6

battle for hearts and minds,” and a battle between

competing narratives. As Secretary of Defense Robert

M. Gates observed:

What is dubbed the “war on terror” is, in grim

reality, a prolonged, worldwide irregular cam-

paign —a struggle between the forces of violent

extremism and those of moderation. Direct

military force will continue to play a role in the

long-term effort against terrorists and other ex-

tremists. But over the long term, the United

States cannot kill or capture its way to victory.

Robert M. Gates, A Balanced Strategy: Reprogramming

the Pentagon for a New Age, Foreign Affairs, Jan./Feb.

2009, at 28, 29.8

In a recent town hall meeting, Secretary Gates ex-

plained the crucial importance of defeating terrorist

recruitment efforts. “[|T]here are a lot of people out

there who are susceptible to {the extremists’] message,

who are susceptible to being recruited. And we have

the opportunity to ... keep them from turning to the

extremists so that in fact we’re dealing with a handful

of fanatics instead of a larger group of people who are

disaffected and who have come to hate us... .” Town

Hall Meeting with Secretary Robert Gates at Balad

Air Base, Iraq (Dec. 14, 2008) (transcript avazlable at

® General John P. Abizaid (Ret.), the former Commander of the

United States Centra] Command, has described the struggle as “a

war of intelligence and a war of perceptions.” David W. Barno,

Challenges in Fighting a Global Insurgency, Parameters: U.S. Army

War College Quarterly, Summer 2006, at 15, 21.

7

http://www.defenselink.mil/transcripts/transcript.aspx

?transcriptid=4333). °

Stephen Hadley, National Security Adviser to

President George W. Bush, also stressed the impor-

tance of competing with the terrorist vision: “It is more

than just a military war on terror. It’s broader than

that. It’s a global struggle against extremism. We

need to dispute both the gloomy vision and offer a

positive alternative.” Eric Schmitt & Thom Shanker,

Washington recasis terror war as ‘struggle,’ International

Herald Tribune, July 27, 2005, at A&.

Hank Crumpton, former U.S. Ambassador for

Counterterrorism and long-time counterterrorism offi-

cial at the Central Intelligence Agency, has testified

about the imperative to “replace an ideology of hatred

with an ideology of hope. Over the long term, our most

9 See also Daniel S. Roper, Global Counterinsurgency: Strategic

Clarity for the Long War, Parameters: U.S. Army War College

Quarterly, Autumn 2008, at 92, 100-01 (“The most important

components of the strategy is countering ideological support for

terrorism - the ‘decisive effort’.”) (citing Joint Staff, J-5 briefing,

Combating Terrorism: The Long War, December 2007)); Michael

Chertoff, Preventing Terrorism: A Case for Soft Power, Harvard

International Review, Summer 2008, at 14 (“The United States

must fight not only the extremists, but the ideology of their ex-

tremism. It must stand firmly against malignant ideas which can

only cause further poverty, degradation, and hopelessness by

turning the clock back centuries. It must offer the alternative

ideals of liberty and democracy, ideals which have brought more

progress to more people over the past few centuries than in all the

prior centumes combined. In other words, as during the Cold

War, the situation must be seen as a war against an ideology, a

contest of ideas, and a battle for the allegiance of men and women

around the world.”).

8

important task ... is not the ‘destructive’ task of

eradicating enemy networks, but the ‘constructive’

task of building legitimacy, good governance, trust,

prosperity, tolerance, and the rule of law.” The

Changing Face of Terror: A Post 9/11 Assessment:

Hearing Before the S. Comm. on Foreign Relations,

109th Cong. 9 (June 13, 2006) (statement of Ambassa-

dor Henry A. Crumpton, Coordinator for Counterter-

rorism, U.S. Dep’t of State), avatlable at

http://www.investigativeproject.org/documents/testim

ony/256. pdf.

President Obama’s actions and words on his third

day in office demonstrate his administration’s determi-

nation that the struggle against violent extremists

must be waged not only with military force but also

with actions that reaffirm our commitment to equality,

justice, and respect for the rule of law. Signing a series

of Executive Orders to accomplish precisely that objec-

tive, he explained:

The message we are sending around the world is

that the United States intends to prosecute the

ongoing struggle against violence and terrorism,

and we are going to do so vigilantly; we are go-

ing to do so effectively; and we are going to do

sO in a manner that is consistent with our values

and our ideals.

We intend to win this fight. We are going to win

it on our terms.

President Barack Obama, Remarks at the White

House Following Signing of Executive Orders (Jan. 22,

2009); cf. President Barack Obama, Inaugural Address

(Jan. 20, 2009) (“|Ojur power grows through its pru-

9

dent use; our security emanates from the justness of

our cause, the force of our example; the tempering

qualities of humility and restraint.”).

2. Terrorists employ a false narrative about the

objectives and values of the United States to

glorify their heinous acts and promote re-

cruitment.

Terrorism has been a part of human conflict for-

ever. Our time has seen the flowering of a brand of ter-

rorism practiced by those who claim to be engaged in a

holy war.!0 Practitioners of this brand of terrorism in-

voke an inspirational mythology: they cal] themselves

jihadists, soldiers in a holy war sanctioned by God, in

order to ennoble what is otherwise ignoble conduct.

Such terrorists confront in us a wealthier and pro-

foundly more powerful adversary, and have made a

virtue of necessity by developing a narrative of mar-

tyrdom. But martyrdom by definition destroys itself

unless the martyr inspires successors to imitation. The

practitioner of this brand of terrorism thus depends

heavily on the inspirational power of his narrative. See

Memorandum from the U.S. Dep’t of Homeland Secu-

rity, Terminology to Define the Terrorists: Recom-

mendations from American Muslims 3 (Jan. 2008),

10 The religious affiliation claimed is Islam, although the practice

of violent acts against civilians is antithetical to it. In discussing

the current terrorist threat to our national security, and the “ter-

rorist narrative,” we focus, as the government does in seeking to

justify the indefinite military detention of Mr. al-Marri, on those

violent extremist groups, like al Qaeda, that falsely claim a basis

in Islam for their acts.

10

avatlable at

http://www.dhs.gov/xlibrary/assets/dhs_crel_terminolo

gy_08-1-08_accessible.pdf (“What terrorists fear most

is irrelevance; what they need most is for large num-

bers of people to rally to their cause.”).

Terrorist groups such as al Qaeda work hard, espe-

cially on the Internet, to promote their vision of a glo-

rious global jihad against a hypocritical West —in par-

ticular, the United States -that is said to be waging

war on Islam.!! As the Department of Homeland Se-

curity describes it: “Bin Laden’s narrative presumes a

war against Islam and rampant mistreatment of Mus-

lims by the American and other Western govern-

ments.” Memorandum from the U.S. Dep't of Home-

land Security, Terminology to Define the Terrorists:

Recommendations from American Muslims 8-9 (Jan.

2008).

Our national security depends, in part, upon drying

up support for groups like al Qaeda, and this is done

most effectively by exposing their narrative as false.

Military “detention” of individuals seized in the

1! See, e.g., Osama bin Laden, Letter to the American People, The

Guardian, Nov. 24, 2002, available alt

http://www.guardian.co.uk/world/2002/nov/24/theobserver (“Let

us not forget one of your major characteristics: your duality in

both manners and values; your hypocrisy in manners and princi-

ples.... You have claimed to be the vanguards of Human Rights

. However, all these things vanished when the Mujahideen hit

you .... In America, you captured thousands the Muslims and

Arabs, took them into custody with neither reason, court trial, nor

even disclosing their names.” ).

1]

United States has precisely the opposite effect, and in-

deed fuels that narrative.

3. Imprisoning Mr. al-Marri without trial instead

of bringing criminal charges against him serves

the terrorist narrative and threatens our na-

tional security.

a. Imprisonment without trial of individuals

seized inside the United States promotes the

false narrative of a United States engaged in

a war on Islam and Muslims, which the ter-

rorists exploit for recruitment.

Seizing individuals off the streets of America, de-

claring them enemy combatants, and asserting the

right to keep them locked up indefinitely, with no for-

mal charges or trial, is so far outside the traditions of

fundamental fairness on which this Nation was

founded that it perpetuates the perception generated

by al Qaeda that we have abandoned our commitment

to the rule of law.

We recognize that the security threat springs from

the terrorists: U.S. policies and actions in no way jus-

tify the conduct of the terrorists. But the perception

that the United States is failing to act in accordance

with its fundamental values feeds the terrorist narra-

tive, and thus undermines our efforts to confront the

terrorist threat.!?

12 Amici believe /that combatant detentions authorized by this

Court in Hamd? o. Rumsfeld, 542 U.S. 507 (2004) —i.e., of indi-

viduals seized on the battlefield in Afghanistan, and participating

12

The significance of this dynamic is now broadly un-

derstood. As Retired General Wesley Clark said in an

article about this very case:

[Treating al-Marri as an enemy combatant) en-

dangers our political traditions and our com-

mitment to liberty, and further damages Amer-

ica’s legitimacy in the eyes of others. ... We

train our soldiers to respect the line between

combatant and civilian. Our political leaders

must also respect this distinction, lest we unwit-

tingly endanger the values for which we are

fighting, and further compromise our efforts toe

strengthen our security.

Wesley K. Clark & Kal Raustiala, Why Terrorists

Aren’t Soldiers, N.Y. Times, Aug. 8, 2007, at Al9.

Jeffrey H. Smith, former CIA General Counsel, tes-

tified before the Senate Armed Services Committee in

2007: “In our efforts to get tough with the terrorists we

have strayed from some of our fundamental! principles

and undermined 60 years of American leadership in the

law of war. In six short years, our disregard for the

rule of law has undermined our standing in the world

——

in active hostilities against U.S. military forces and their allies

there — are fundamentally different from indefinite military deten-

tion without charge of an individual lawfully present in the United

States on the claim that he is engaged in criminal terrorist activi-

ties. As noted elsewhere in this brief, the latter is clearly not con-

sistent with well-established principles and practice regarding in-

dividuals taken into custody inside the United States. Moreover,

the United States is not a zone of active combat and the chal-

lenges of gathering and preserving evidence present in a zone of

active combat do not apply.

13

and, with it, our ability to achieve our objectives in the

broader war.” Meeting to Receive Testimony on Legal

Issues Regarding Individuals Detained by the De-

partment of Defense as Unlawful Enemy Combatants:

Hearing Before the S. Comm. on Armed Services,

110th Cong. 3 (Apr. 26, 2007) (statement of Jeffrey H.

Smith, Senior Partner, Arnold & Porter LLP), avazlable

at http://armed-

services.senate.gov/statemnt/2007/April/Smith %2004-

26-07 .pdf.

One reason the United States does not face the level

of homegrown terrorism threat that Europe has experi-

enced is that immigrants are better integrated into

American society. See James Fallows, Declaring Vic-

tory, The Atlantic, Sept. 2006, at 60 (“Something

about the Arab and Muslim immigrants who have

come to America, or about their absorption here, has

made them basically similar to other well-assimilated

American ethnic groups —and basically different from

the estranged Muslim underclass of much of Europe.”).

Working with these Muslim communities in the United

States, and building trust, is one of the most promising

avenues for deterring young people from extremism.

See Muslim Public Affairs Council, The Impact of 9/11

on Muslim American Young People 1 (June 2007)

(“The more narrow the orbit of acceptance is toward

young Muslims who are traversing the various stages

of adolescence toward becoming young professionals,

the more likely we will begin to see serious cases of

radicalization that can evolve into trends.”’), avazlable

at http://www.mpac.org/publications/youth-

14

paper/MPAC-Special-Report—Muslim- Y outh.pdf.!8

See also Stephen Magagnini, Local FBI chief rebuilds

trust with Muslim leaders, Sacramento Bee, Dec. 1,

2008, available at

http://www.sacbee.com/101/story/1438316.html.

Policies that drive a wedge between these communi-

ties and the government or the rest of society frustrate

efforts aimed at increasing trust and understanding

and, instead, increase a sense of alienation. In 2008,

the Department of Homeland Security issued a memo-

randum that reflects how seriously those with respon-

sibility for protecting the territory and people of the

United States take the battle for hearts and minds. It

concludes that “Bin Laden and his followers will suc-

ceed if they convince large numbers of people that

America and the West are at war with Islam and that a

‘clash of civilizations’ is inherent.” Memorandum from

the U.S. Dep’t of Homeland Security, Terminology to

Define the Terrorists: Recommendations from Ameri-

can Muslims 7 (Jan. 2008). The DHS memorandum

13 See also Roots of Violent Islamic Extremism and Efforts to

Counter It: Hearing Before the S. Comm. on Homeland Security

and Governmenta! Affairs, 110th Cong. 2 (July 10, 2008) (state-

ment of Michael Leiter, Director, NCTC), available at

http://www.ncte.gov/press_room/speeches/7-10-shsgac-

radicalization-sfr.pdf (“There is no single underlying catalyst for

the initial stages of radicalization. Although most individuals re-

ject extremism outright, personal frustration at perceived social

injustice and other grievances can prompt individuals to reassess

their accepted worldview and be more open to alternative perspec-

tives-—some of which espouse violence. ... Violent extremist

groups try to foster and take advantage of this period of reassess-

ment through propaganda and public outreach.”’).

15

emphasized the importance of conveying the message

that “Muslims have been, and will continue to be part

of the fabric of our country. ... We must emphasize

that Muslims are not ‘outsiders’ looking in, but are an

integral part of America and the West.” Jd. at 8.

This essential message is dramatically undermined

by seizing and indefinitely detaining Muslims inside

the United States on the basis of an executive branch

allegation that they are enemy combatants. While this

policy may not expressly target Muslims, it has been

applied only against Muslims, as have nearly all of the

harsh policies adopted after 9/11.!4 This fuels the ter-

rorist narrative of a war on Islam.

1¢ All of the individuals known to have been subjected to enhanced

interrogation techniques have been Muslims, as are all the indi-

viduals who have been detained at Guantanamo Bay prison.

When the government artested more than 1100 people in secret in

the weeks after 9/11 and held many of them illegally without

charge in prisons, it targeted only Arabs and Muslims (apparently

not understanding that not all Arabs are Muslims). See U.S.

Dep’t of Justice, Office of Inspector General, The September 11

Detainees: A Review of the Treatment of Aliens Held on Immi-

gration Charges in Connection With the Investigation of the Sep-

tember 11 Attacks (Apr. 2003), avatlable at

http://www.usdoj.gov/oig/reports/FBI/index.htm. And the Na-

tional Security Exit and Entrance Registration System program

(which required fingerprinting, photographing, an immigration

interview, and repeated “check-ins” for all males over age 16 who

came here from countries with suspected links to terrorism) cre-

ated enormous fear and mistrust in Muslim communities. See

Philip Heymann, James Barr Ames Professor of Law, Harvard

Law School, Muslims in America After 9/11: The Legal Situation

10-11 (Dec. 2006), available at

16

The DHS memorandum clearly explains the danger

inherent in inadvertently reinforcing al Qaeda’s propa-

ganda. “Bin Laden’s narrative presumes a war against

Islam and rampant mistreatment of Muslims by the

American and other Western governments. Extremist

recruiters argue that Muslims should segregate from

the larger society; moreover, their recruitment pitch

depends on isolation.” Memorandum from the U.S.

Dep’t of Homeland Security, Terminology to Define

the Terrorists: Recommendations from American Mus-

lims 8 (Jan. 2008).

The terrorist seeks to undercut an individual’s sense

of identity as a Muslim citizen of a state that values

fair treatment and protects fundamental human rights.

Policies that appear to accord Muslim suspects less

than full equality under the law reinforce this danger-

ous and misleading message. See Islamic Extremism in

Europe: Hearing Before the Subcomm. on European

Affairs of the S. Foreign Relations Comm., 109th

Cong. 7 (Apr. 5, 2006) (statement of Daniel Fried, As-

istant Secretary of State for European Affairs),

avatlable at

http://foreign.senate.gov/testimony/2006/FriedTestim-

ony060405.pdf (“[WJe must also intensify our efforts to

counter the extremist ideas that drive Islamic terror-

ism.... It... requires us to demonstrate through our

own nation’s experience that Muslims can be patriotic,

>

democratic, and religious at the same time.”’).

http://www.ces.fas.harvard.edu/conferences/muslims/Heymann.p

df.

17

Senior Counterterrorism Analyst Gina Bennett, un-

til recently the Deputy National Intelligence Officer

for Transnational Threats, first highlighted the na-

tional security risk of a double standard in an intelli-

gence assessment written back in 1993, which also pro-

vided the first serious warning about Usama Bin

Laden. That assessment, titled “The Wandering Mu-

jahidin: Armed and Dangerous,” concludes: “The

growing perception by Muslims that the U.S. follows a

double standard with regard to islamic issues — par-

ticularly in Iraq, Bosnia, Algeria, and the Israeli-

occupied territories — heightens the possibility that

Americans will become the targets of radical] Muslims’

wrath. Afghan war veterans, scattered through the

world, could surprise the U.S. with violence in unex-

pected locales.” Gina Bennett, The Wandering Muja-

hidin: Armed and Dangerous, Weekend Edition (U.S.

Dep’t of State, Bureau of Intelligence and Research),

Aug. 21-22, 1993, at 5, available at

http://www.nationalsecuritymom.com/3/WanderingM

ujahidin.pdf. The foresight of this analysis was tragi-

cally proven on September 11, 2001. The danger to

Americans of sending a message that the United States

has a double standard for Muslims can no longer be

viewed as hypothetical.

Nor is the impact of such messages considered hy-

pothetical by those serving in Iraq and Afghanistan.

As former Navy General Counsel Alberto Mora has

testified, “there are serving U.S. flag-rank officers who

maintain that the first and second identifiable causes of

U.S. combat deaths in Iraq — as judged by their effec-

tiveness in recruiting insurgent fighters into combat —

are, respectively the symbols of Abu Ghraib and

18

Guantanamo.” Hearing on the Treatment of Detain-

ees in U.S. Custody Before the 5S: Comm. on Armed

Services, 110th Cong, 5 (June 17, 2008) (statement of

Alberta Mora, Genera! Counsel, Dep’t of the Navy),

available at http://armed-

services.senate.gov/statemnt/2008/June/Mora %2006-

17-08.pdf. Again, harsh policies and actions that were

directed only against Muslims fueled recruitment ef-

forts, with direct and deadly consequences.

b. Military detention of Mr. al-Marri feeds the

false narrative that the terrorists are holy

walriors.

By treating a terrorism suspect apprehended within

the United States as an “enemy combatant,” rather

than as a crimina! suspect, we grant the suspect the

very status a terrorist seeks, a status widely honored

by those to whom terrorists propound their narrative.

See Memorandum from the U.S. Dep’t of Homeland

Security, Terminology to Cefine the Terrorists: Rec-

ommendations from American Muslims 9 (Jan. 2008)

(“Words matter. The terminology the [United States]

uses should convey the magnitude of the threat we

face, but also avoid inflating the religious bases and

glamorous appeal of the extremists’ ideology. Instead,

(United States’] terminology should depict the terror-

ists as the dangerous cult leaders they are. They have

no honor, they have no dignity, and they offer no an-

swers. While acknowledging that they have the capac-

ity to destroy, we should constantly emphasize that

they cannot build societies, and do not provide solu-

tions to the problems people across the globe face.”).

19

The dilemma we create for ourselves takes on par-

ticular force where, as here, military imprisonment is

indefinite.15 As a military captive, the terrorism sus-

pect is the continuing object of our own military force,

and by imposing that force for an indefinite period of

time, we continue to validate the terrorist narrative of

the warrior and martyr. The prisoner may be regu-

larly, if not constantly, in the public’s mind, always

available as a source of inspiration.

For example, a relatively insignificant Sudanese

cameraman named Sami a! Hajj became famous

around the world by the mere fact of his long impris-

16 Mr. al-Marri’s indefinite imprisonment has received significant

attention in the Arab press. See Detention of Qatari ‘enemy com-

batant’ flayed, Al Jazeera, June 24, 2003, available at

http://english.aljazeera.net/archive/2003/06/2008410103572888 16.

htm! (“There are no plans to move al-Marri to a military prison at

the U.S. Navy Base in Guantanamo Bay, Cuba where 680 sus-

pects are being held in inhumane conditions without charge as

part of Washington’s ‘war on terror.’”); U.S. Told to Free ‘Enemy

Combatant,’ Al Jazeera, June 12, 2007, available at

http://english.aljazeera.net/news/americas/2007 /06/200852514462

3696313.html; U.S. Court to Rule on ‘al-Qaeda’ case, Al Jazeera,

Dec. 6, 2008, available at

http://english.aljazeera.net/news/americas/2008/12/200812519318

473235.html (stating al-Marri “has been held in virtual isolation

on a U.S. navy prison ship near Charleston, South Carolina for

almost five and a half years”); Order to Review Case of Enemy Com-

batant, C-»!f Times, January 24, 2009, availadle at http://www.gulf-

times.com/site/topics/article.asp?cu_no=2&item_no=268479&versi

on=l&template_id=43&parent_id=19; Campaign for Qatari’s Re-

lease From U.S. Prison, The Peninsula, Jan. 17, 2009, available at

http://www.thepeninsulaqatar.com/Display_news.asp?section=Lo

cal_ News&subsection=Qatar+News&month=January2009Gfile=

Local_ News2009011754945.xml.

20

onment at Guantanamo Bay as an enemy combatant.

His cqntivitv .was.remilarlv.renorted hv .al lazeera and

other Arabic news outlets, and closely followed by the

more than a billion people reached by those outlets.

See, e.g., Profile: Sami al-Hajj, Al Jazeera, May 2,

2008, available at

http://english.aljazeera.net/news/americas/2008/05/200

861505753353325.html; Sami al-Hajj Hits Out at U.S.

Captors, Al Jazeera, May 31, 2008, available at

http://english.aljazeera.net/news/africa/2008/05/20086

150155542220.html.

In coutrast, treating the terrorism suspect seized in

the United States as a criminal suspect pursuant to

statutes that proscribe engagement in terrorist activity

focuses the narrative on the alleged terrorist activity,

rather than his status as “warrior,” thereby decon-

structing the terrorist narrative. The heroism of armed

conflict against the enemy becomes the cowardice of

anonymous violence against innocent victims. The as-

piring member of a great army, when isolated to his

crime, becomes a small-minded individual.

About a warrior held in a military prison an ex-

travagant mythology may be erected; but the fellow in

the dock of a public trial, forced to witness the deliber-

ate presentation of evidence of his cowardice becomes

pathetic. His narrative loses the power to inspire.

Like Ramzi Yousef, Fawaz Yunis, and many others

convicted of terrorist acts in U.S. courts, he may soon

be forgotten. Thus, the Director of National Intelli-

gence’s National Counterterrorism Center has urged

intelligence professionals to

Never use the terms “jihadist” or ““mujahideen”

in conversation to describe the terrorists. A mu-

21

jahed, a holy warrior, is a positive characteriza-

tion in the context of a just war. ... Calling our

enemies jihadists and their movement a global

jihad unintentionally legitimizes their actions.

Counterterrorism Communications Center, National

Counterterrorism Center, Office of the Director of Na-

tional Intelligence, Words that Work and Words that

Don’t: A Guide for Counterterrorism Communication,

March 14, 2008, at 2; see also Memorandum from the

U.S. Dep’t of Homeland Security, Terminology to De-

fine the Terrorists: Recommendations from American

Muslims 3 (Jan. 2008) (“The consensus is that we must

carefully avoid giving bin Laden and other al-Qaeda

leaders the legitimacy they crave, but do not possess,

by characterizing them as religious figures, or in terms

that may make them seem to be noble in the eyes of

some.” ).

Genera! Clark has also made this point:

By treating such terrorists as combatants... we

accord them a mark of respect and dignify their

acts. And we undercut our own efforts against

them in the process. ... If we are to defeat ter-

rorists across the globe, we must do everything

possible to deny legitimacy to their aims and

means, and gain legitimacy for ourselves. ....

[T]he more appropriate designation for terrorists

is not “unlawful combatant” but the one long

used by the United States: “criminal.”

Wesley K. Clark & Kal Raustiala, Why Terrorists

Aren’t Soldiers, N.Y. Times, Aug. 8, 2007, at A19.

In sum, the government’s argument that national

security concerns justify and require the indefinite

22

military imprisonment of Mr. al-Marri as an enemy

combatant is precisely backwards. Using the paradigm

of the “war on terror” and the label “enemy combat-

ant” to justify the indefinite military detention of indi-

viduals seized inside the United States does not pre-

serve our national security; it threatens it.

B. Unwavering Commitment To America’s Funda-

mental Values Makes Our Nation Strong And Is

Essential To Protect The Nation Against The Ter-

rorist Threat.

Discrediting the terrorist narrative and offering a

positive alternative — 1t.e., a narrative of equality, jus-

tice, and commitment to the rule of law —is critical to

effective counterterrorism strategy. The national secu-

rity benefits of adhering to our fundamental principles

are broadly understood. See Office of the Executive,

Nationa] Strategy for Combating Terrorism, 2 (Feb.

2003) (The Bush Administration declared, in the 2003

National Strategy for Combating Terrorism, “We will

use the power of our values to shape a free and more

prosperous world. We will employ the legitimacy of

our government and our cause to craft strong and agile

partnerships.”’”); Michael German, Squaring the Error,

in Law vs. War: Competing Approaches to Fighting

Terrorism 11, 15-16 (Strategic Studies Institute, U.S.

Army War College, 2005) (“This is a battle for legiti-

macy, and as such, it is one that we should easily win.

As an open and free democracy regulated by the rule of

law, we offer a future of peace and prosperity that the

jihadist movement does not. ... Respect for the rule of

law, international conventions, and treaty obligations

will not make us weaker, it will engender international!

cooperation and good wil! that make it impossible for

23

extremist movements to prosper.”), avatlable at

http://www.strategicstudiesinstitute.army.mil/pubs/di

splay.cfm?pubID=613; Dr. Kenneth Payne, Waging

Communication War, Parameters: U.S. Army War Col-

lege Quarterly, Summer 2008, at 37, 45 (“[Elffective

communication rests on credibility; communications

that are not believed are simply hot air.”).

Ultimately, the most credible voices revealing the

emptiness of the terrorist narrative will be Muslim

voices. However, these voices are more likely to be

heard if American policies do not hand a megaphone to

al Qaeda and their ilk.

The reality of a United States that is willing to

fairly prosecute the terrorism suspect in a public trial

will diminish and discredit the terrorists’ lies and

strengthen the credibility of the counter-narrative.

This is how violent extremism will ultimately be de-

feated.

In the words of President Obama, “We know that

to be truly secure, we must adhere to our values as

vigilantly as we protect our safety—with no excep-

tions.” President-Elect Barack Obama, Remarks at

Announcement of Intelligence Team (Jan. 9, 2009).

24

CONCLUSION

The decision in this case will reinforce one of two

narratives —our own or the terrorist’s—and thereby

either aid or encumber the Nation’s ongoing counter-

terrorism efforts. The Court should reverse.

Respectfully submitted,

Suzanne E. Spaulding

Counsel of Record

Sabin Willett

Rheba Rutkowski

Catherine R. Murphy

BINGHAM MCCUTCHEN

LLP

2020 K Street, N.W.

Washington, D.C. 20036

(202) 778-6150

Counsel for Amici Curiae

Dated: January 28, 2009

ADDENDUM

THE AMICI

William Banks is the Director of the Institute for Na-

tional Security and Counterterrorism and the Laura J.

& L. Douglas Meredith Professor of Law at Syracuse

University College of Law.

Ken Bass formerly served as Counsel for Intelligence

Policy at the Department of Justice.

M.E. (Spike) Bowman spent 40 years in national secu-

rity and intelligence, including serving as Senior Coun-

sel for the Federal Bureau of Investigation and as

Deputy Director of the National Counterintelligence

Center.

Frank J. Cilluffo is the Director of the Homeland Secu-

rity Policy Institute at George Washington University.

He formerly served as Special Assistant to the Presi-

dent for Homeland Security. Prior to Mr. Cilluffo’s

White House appointment, he spent eight years in sen-

ior policy positions with the Center for Strategic & In-

ternational Studies.

Albert C. Harvey chairs the American Bar Associa-

tion’s Standing Committee on Law and National Secu-

rity and is a Major General in the U.S. Marine Corps

Reserve (Ret.). He is a Partner at Thomason,

Hendrix, Harvey, Johnson & Mitchell in Memphis,

TN.

Brian Jenkins served as a Member of the White House

Commission on Aviation Safety and Security Advisor

to the National Commission on Terrorism. He has

been analyzing terrorism for four decades and is the

author of Unconquerable Nation: Knowing Our En-

emy, Strengthening Ourselves (Rand Corp. 2006), and

Will Terrorists Go Nuclear? (Prometheus Books 2008).

2a

Dr. David A. Kay served as the head of the Irag Sur-

vey Group. Prior to that, Dr. Kay acted as a weapons

inspector in Iraq and as the United Nations Chief

Weapons Inspector from 1991 to 1992.

David Low formerly served as National Intelligence

Officer for Transnational Threats with the United

States National Intelligence Council. Mr. Low is cur-

rently a consultant with the National Intelligence

Council and Oxford Analytica, Inc.

John MacGaffin is a senior advisor to the Center for

Strategic & International Studies’ Transnational

Threats Project. Mr. MacGaffin formerly held senior

positions with the CIA and FBI and has been involved

in matters of intelligence collection, law enforcement,

counterterrorism, counterintelligence, and security for

over 40 years.

Ronald Anthony Marks formerly served as a senior

CIA official and as Intelligence Counsel for U.S. Sena-

tors Bob Dole and Trent Lott. Mr. Marks is currently

the Senior Vice President and Director of Washington,

D.C. operations for Oxford Analytica.

Thurgood Marshall, Jr. served as Assistant to the

President and Secretary to the Cabinet in the Clinton

Administration. Mr. Marshall is currently a partner at

the law firm Bingham McCutchen LLP.

Rear Admiral James E. McPherson served as the 39th

Judge Advocate General of the Navy from 2004 to

2006. Following retirement from the Navy, Rear Ad-

miral McPherson served as General Counsel for the

Department of Defense’s Counterintelligence Field Ac-

tivity.

Paul Pillar formerly served as Deputy Chief of the Di-

rector of Central Intelligence’s Counterterrorist Center

and as National Intelligence Officer for the Near Kast

3a

and South Asia. Currently, he is Director of Studies at

the Security Studies Program of Georgetown Univer-

sity.

Nicholas Rostow served as Legal Adviser to the Na-

tional Security Council under Colin Powell and then to

Brent Scowcroft. Dr. Rostow also served as General

Counsel and Senior Policy Advisor to the U.S. Perma-

nent Representative to the United Nations and as Staff

Director for the U.S. Senate Select Committee on In-

telligence.

Britt Snider served as General Counsel of the US Sen-

ate Select Committee on Intelligence, CIA Inspector

General, Staff Director of the Commission on the Roles

and Capabilities of the U.S. Intelligence Community,

and as Assistant Deputy Under Secretary of Defense

for Policy (Counterintelligence and Security).

Suzanne E. Spaulding served as Assistant General

Counsel at the CIA, Executive Director of commis-

sions on terrorism and weapons of mass destruction,

General Counsel for the U.S. Senate Select Committee

on Intelligence, and Minority Staff Director for the

U.S. House Permanent Select Committee on Intelli-

gence. Ms. Spaulding is currently a Principal of Bing-

ham Consulting Group LLC and Of Counsel at Bing-

ham McCutchen LLP.

Michael Vatis was formerly Associate Deputy Attor-

ney General and Deputy Director of the Executive Of-

fice for National Security in the Department of Justice,

Director of the National Infrastructure Protection

Center at the FBI, and Special Counsel at the De

partment of Defense. He is now a partner with Steptoe

& Johnson, LLP.

Dale Watson served in the Federal Bureau of Investi-

gation for nearly 25 years, retiring as Executive Assis-

tant Director for Counterintelligence and Counterter-

4a

rorism. He also served as Deputy Chief of the Central

Intelligence Agency’s Counterterrorism Center.

Jonathan Winer formerly served as U.S. Deputy Assis-

tant Secretary of State for International Law En-

forcement and as counsel to Senator John Kerry.