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

Supreme Court. US

FILED

“heat ; JAN 2 8 2009

OFFICE OF THE CLERK |

Supreme Court of the United States

ALI SALEH KAHLAH AL-MARRI,

Petitioner,

Y x

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 AMICUS CURIAE

THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

JULIA E. MCEVOY

CHRISTIAN G. VERGONIS

KATHERINE E. STERN

(Counsel of Record)

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Counsel for Amicus Curiae

eg

WILS0N-EPES PRINTING Co., INC. — (202) 788-0086 — WASHINGTON, D.C. 20002

SOI* Ue iady

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE.................. 1

SUMMARY OF ARGUMENT

ARGUMENT

I. THE GOVERNMENT CANNOT AVOID

THE SIXTH AMENDMENT IN THIS

The Sixth Amendment Safeguards

Were Originally Devised for High

OAM, TEI concen s cnccesensernevecssecees. 4

The Reasoning in Crawford Applies A

Fortior1 Here

Domestic Enemy Combatant

Detentions Resemble 17th-Century

State Trials and Rely on Their

eg ii clo niiesenies 9

THE GOVERNMENT ’S PURPORTED

AUTHORITY TO AVOID THE SIXTH

AMENDMENT DISRUPTS THE

CRIMINAL JUSTICE SYSTEM AND

saa lpeentts cated ea snt kerien vacbankeseriievesnne 12

A. Discretionary Military Detention Will

Force Unconstitutional Plea Bargains..... 13

B. Domestic Military Arrest and

Detention Will Displace Civilian

iat sata i cvaroandsovariolbihexhskaunend 17

il

TABLE OF CONTENTS

(continued)

Page

Temporary Military Detentions Will

ED 22

1. Hamdi Settlement

2. Padilla Transfer

D. Constructive “combatants” and

“battlefields” are without clear limits...... 26

CONCLUSION

ill

TABLE OF AUTHORITIES

Cases

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

2008)

Bancoult v. McNamara, 445 F.3d 427 (D.C.

Cir. 2006)

Bell v. Wolfish, 441 U.S. 520 (1979)

Chambers v. Florida, 309 U.S. 227 (1940)

Christopher v. Harbury, 536 U.S. 403 (2002)

Crawford v. Washington, 541 U.S. 36 (2004)

Ex Parte Quirin, 317 U.S. 1 (1940)

Faretta v. California, 422 U.S. 806

MIE eicihin sachs uisanieaccutaieatc asaiialicennbicbesies 4, 5,

Gonzales v. United States, 128 S. Ct. 1765

(2008)

Hamdi v. Rumsfeld, 542 U.S. 507

(2004)

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

Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir.

Constitution & Statutes

U.S. ConsT. art. III, § 3, cl. 1

OR My a AE ft Sen nena oe

28 U.S.C. § 2680())

Act of April 30, 1790, 1 Stat. 112 (1790)

1V

TABLE OF AUTHORITIES

(continued)

English Legal Materials

7 & 8 William ITI (Eng. 1696)

The Arraignment, Tryal and Condemnation of

Ambrose Rookwood .. . upon the New Act

of Parliament for Regulating Tryals in

Cases of Treason (1696)

Miscellaneous

JOHN ASHCROFT, NEVER AGAIN: SECURING

AM#RICA AND RESTORING JUSTICE (2006)

ARNOLD ENKER, PERSPECTIVES ON PLEA

BARGAINING, IN PRESIDENT’S COMMISSION

ON LAW ENFORCEMENT AND THE

ADMINISTRATION OF JUSTICE, TASK FORCE

REPORT: THE COURTS (1967)

Phil Hirschkorn, “Fourth Guilty Plea in

Buffalo Terror Case,’ CNN.com, Apr. 9,

2003, available at http://www.cnn.com/

2003/ LAW/04/08/terror.cell/

HURST, THE LAW OF TREASON IN THE UNITED

STATES (1971)

Michael Isikoff & Daniel Klaidman, “The Road

to the Brig: After 9/11, Justice and Defense

Fought over How to Deal with Suspected

Terrorists,” NEWSWEEK, Apr. 26, 2004,

available at http://www.newsweek.com

/1d/53781/output/print

J.R. JONES, COUNTRY & COURT: ENGLAND,

1685-1714 (1978)

V

TABLE OF AUTHORITIES

(continued)

Page

JOHN H. LANGBEIN, THE ORIGINS OF

ADVERSARY CRIMINAL TRIAL (2005) 5, 10, 12

Eric Lichtblau, “Wide Impact From Combatant

Decision is Seen,” N.Y. TIMES, June 25,

DONALD NEWMAN, CONVICTION (1966)

PIERCE O’DONNELL, IN TIME OF WAR (2005)

Scot J. Paltrow, “U.S. Exerts Unusual

Pressure on Group of Terror Suspects,”

WALL ST. J., Apr. 1, 2003

Michael Powell, “No Choice But Guilty:

Lackawanna Case Highlights Legal Tilt,”

WASH. Post, Jul. 29, 2003, at Al

Press Release, U.S. Dep’t of Justice, United

States Attorney's Office Successfully

Concludes Terrorism Case with Sixth

Conviction of Al Qaeda Supporter (May 19,

2003)

Remarks by Alberto R. Gonzales, American

Bar Assoc. Standing Committee on Law

and National Security, available at

http://www.fas.org/irp/news/2004/02/gonzal

1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW

OF ENGLAND (1883)

1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW

OF ENGLAND (Burt Franklin ed. 1883) 10, 11

vl

TABLE OF AUTHORITIES

(continued)

Carl Takei, “Terrorizing Justice: An Argument

that Plea Bargains Struck Under the

Threat of ‘Enemy Combatant’ Detention

Violate the Right to Due Process,” 47 B.C.

L. REV. 581 (2006)

Dina Temple-Raston, “Enemy Within? Not

Quite,” WASH. POsT, Sep. 9, 2007, at B1

Virginia Declaration of Rights, VIII (June 12,

Tung Yin, “Coercion and Terrorism

Prosecutions in the Shadow of Military

Detention,” 2006 B.Y.U. L. REV. 1255

(2006)

Unofficial Transcript of Oral Argument in A/-

Marri v. Wright, No. 06-7427 (4th Cir. Oct.

31, 2007), available at

http://brennan.3cdn.net/e75ca720b7416fd4

Be I vc ccasiniesscacinananicnesene 18, 20, 21, 22

INTEREST OF THE AMICUS CURIAE

The National Association of Criminal Defense

Lawyers (“NACDL’) is a non-profit corporation

founded in 1958 with over 13,000 subscribed

members, including military defense counsel, public

defenders, private practitioners and law professors,

and ane additional 35,000 state, local and

international affiliate members. The NACDL seeks

to encourage the integrity, independence and

expertise of defense lawyers in criminal cases, both

civilian and military, to ensure justice and due

process for persons accused of crime, to promote the

proper and fair administration of criminal justice

(including military justice), and to preserve, protect

and defend the adversary system, the right to counsel

and the U.S. Constitution.!

The NACDL first filed a brief in support of

Petitioner’s constitutional right to civilian criminal

due process in June 2003 when opposing his transfer

from civilian criminal detention to military custody

by order of the President. Since then, the NACDL

has opposed the Government’s contention that the

AUMF authorizes and the Constitution permits the

deprivation of the Sixth Amendment rights of U.S.

residents on the basis of the Executive’s factual

determination that they are “enemy combatants.”

The NACDL will demonstrate here that the Fourth

Circuit's failure to hold the Government to its Sixth

Amendment obligations was both forgetful of the

1 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 amicus curiae or its counsel made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of this brief.

historical precedent giving rise to those obligations

and neglectful of the disastrous consequences of

setting them aside.

SUMMARY OF ARGUMENT

It has been our legal tradition for the past three

centuries—since the Treason Act of 1696 up until the

military detentions of Jose Padilla in 2002 and of Ali

al-Marri in 2003—to subject the Government to the

risks of a full adversarial criminal proceeding before

assessing the guilt of a civilian who stands accused as

an internal enemy of the state.

To withdraw the Sixth Amendment's guarantees

based on the facts alleged here, in the context of a

high security detention at the behest of the chief

executive, runs counter to the original purpose of the

Sixth Amendment’s safeguards and to the Founders’

paramount concern in securing them. The Sixth

Amendment safeguards were not designed solely, or

even primarily, for garden-variety crimes. Rather,

the Founders well knew that these safeguards

originated in the political trials of the late 17th-

century when the Executive’s interest in expedient,

summary process was most forceful. The direct

textual sources of the Sixth Amendment’s safeguards

in the First Congress’s Treason Act, the Continental

Congress's treason statutes, as well as the prototype

of the Sixth Amendment’s principles in the jury trial

and treason clauses of Article III, reflect the

Founders’ understanding that providing criminal

procedures precisely when the Executive and general

public are most motivated to dispense with them

serves as the paramount guarantee against tyranny.

The Executive’s unwillingness to allow a suspected

internal enemy such as Mr. al-Marri to confront the

accusations against him cannot override the rule of

Sixth Amendment criminal process now. It was just

such unwillingness that gave rise to the safeguards

in the first place.

The Fourth Circuit’s failure to hold the

Government to its Sixth Amendment obligations was

both forgetful of this history and short-sighted. We

will be doomed to revisit the abuses of our 17th-

century legal forebears if we revert to their practices

and rationales, forgetting the admonitions of our

Founders. Justifications that have not been heard

for over three hundred years resound in the judges’

opinions below.

But not even expediency can justify the

substitution of well-evolved arrest and detention

procedures for the Government’s’ purported

unreviewable military discretion. The notion that

Congress meant to deploy a rarely exercised military

detention power devoid of legal protocols against its

own constituents in order to better secure their safety

is the less credible the more its practical effects are

considered. First, the threat of military detention

will compel unconstitutional guilty pleas. Second,

constitutional standards for civilian arrest and initial

detention will devolve into law of war standards

immune from review or subject to abstention

doctrines. Third, the Government will be able to

avoid even curtailed habeas review of its conduct

through the Hamdi settlement and Padilla transfer

strategies it has already devised. The benefits of a

largely unreviewable domestic military detention

power are too speculative at best, and its disruptions

too certain, to justify so radical a departure from

criminal due process—a bedrock principle of our

system of limited government.

Both as a matter of faithfulness to our founding

principles and as a matter of pragmatism, the Fourth

Circuit’s judgment that the AUMF may override the

Sixth Amendment must be reversed.

ARGUMENT

I. THE GOVERNMENT CANNOT AVOID THE

SIXTH AMENDMENT IN THIS CASE

The Government persuaded a majority of the court

below that Congress has authorized the use of

military force to capture and detain Mr. al-Marri and

others like him without criminal trial and that this

purported authorization is constitutional. But it is

clear that the Constitution forbids such a reading of

the AUMF. The Constitution requires full Sixth

Amendment due process in this case, not merely

because the Sixth amendment reserves those rights

to all U.S. residents, but because Mr. al-Marri is

precisely the type of prisoner whom the Sixth

Amendment safeguards were originally devised to

protect.

A. Sixth Amendment Safeguards Were

Originally Devised for High Security

Detentions

The Sixth Amendment “includes a compact

statement of the rights necessary to a full defense,”

Faretta v. California, 422 U.S. 806, 818 (1975): “In

all criminal prosecutions, the accused shall enjoy the

right .. . to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.” U.S. CONST. amend. VI.

These four essential procedural safeguards

“emerged” from “English and colonial jurisprudence,”

Faretta, 422 U.S. at 818, first appearing in the

Treason Act of 1696, 7 & 8 William III (Eng.).2 But

this “charter of defensive liberties was not a general

criminal procedural code.” Its “reforms were

carefully restricted” to high security detainees

accused of massive threats to the nation’s security.‘

Significantly, although the British Act’s procedural

safeguards were extended to ordinary felons in the

1730s,5. and although colonial treason statutes

extended, by the 1770s, to other capital as well as

2 The Treason Act of 1696 provides seven safeguards: (i) that

“persons accused as Offenders. . . shall have a true Copy of the

whole Indictment . . . delivered to them . . . whereby to enable

them ... to plead and make their Defence”; (ii) that “every such

Person so accused and indicted, arraigned or tried for any such

Treason ... shall be received and admitted to make his and

their full Defence, by Counsel learned in the law, [(iii)] and to

make any Proof that he or they can produce by lawful Witness

or Witnesses, who shall then be upon Oath’; (iv) that “the Court

before whom such Person or Persons shall be tried . . . assign to

such Person and Persons such and so many Counsel .. . as the

Person or Persons shall desire, [(v)] to whom such Counsel shall

have free Access at all seasonable Hours; any Law or Usage to

the contrary notwithstanding’; that (vi) “all Persons so accused

and indicted for any such Treason as aforesaid . . . shall have

copies of the panel of the Jurors who are to try them”; and (vii)

that the accused “shall have the like Process of the Court where

they shall be tried, to compel their Witnesses to appear for them

at any such Trial or Trials, as is usually granted to compel

Witnesses to appear against them.” 7 & 8 Will. 3, c. 3 (1696).

3 JOHN LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL

97 (2005).

' Jd. at 102.

> Id.

6

lesser crimes,® or even to all crimes in some colonies,’

the Founders nonetheless reverted to the terms of the

1696 Act and gave priority in the text of Article III to

procedural safeguards solely for prisoners held on

national security grounds. See U.S. CONST. art. III, §

3, cl. 1.8 The 1696 Act’s seven safeguards were

incorporated almost verbatim by the First Congress,

which provided to treason and other capital offenders

the same protections (but required an additional day

for treason defendants to review the indictment and

jury and witness lists).2 In addition, the right to

6 The Continental Congress recommended to the colonies that

they pass treason legislation, drawing on the requirements of

the 1696 Act. See HURST, THE LAW OF TREASON IN THE UNITED

STATES 84 (1971); id. at 108-09 nn. 8-11, 114 n. 28 (citing the

statutes of New Haven Colony, Connecticut, Massachusetts

Bay, New Hampshire, Delaware, North Carolina, Pennsylvania,

Rhode Island, South Carolina, and Virginia).

7 See, e.g., Virginia Declaration of Rights, VIII (June 12, 1776).

8 The Committee of Detail drafted Art. III, § 3, cl. 1, the Treason

Clause, in August 1787. The Treason Clause was viewed as

“summing up the law pertaining to subversive activities against

the Federal Government.” HURST, supra, at 158. The broad

admonitions implicit in the clause and inferable from its history

are now enforced by the Fifth and Sixth Amendments and

therefore still observed when charges are brought under the

array of statutes now devised for prosecuting crimes of

terrorism. Where the Founders saw the necessity of wefining

the elements of the crime and its procedural safeguards

together, the Sixth Amendment now ensures that all charges

will be tried with appropriate safeguards.

% The seven safeguards of the 1696 Act incorporated by the First

Congress include: (i) a copy of the indictment; (ii) a list of the

jurors (and witnesses, Congress adds); (iii) presentation of a full

defense by counsel learned in the law; (iv) assignment of counsel

by the judge—not to exceed two; (v) counsel's free access to the

defendant at all seasonable hours; (vi) presentation of any

defense or any proof defendant can produce; and (vii) compelling

remain silent was guaranteed first to national

security defendants by the First Congress, 1 Stat.

112, § 30 (1790), and in the right against coerced self-

incrimination in the Treason Clause’s requirement of

“confession in open court,” before it was incorporated

in the Fifth Amendment in 1791. When James

Madison set out to draft the Sixth Amendment, see

Faretta, 422 U.S. at 818, he was extending to every

common criminal the _ protections’ previously

associated most closely with prisoners who presented

extraordinary threats to the security of the nation.

Thus, the idea that the rights set forth in the Sixth

Amendment need only be provided to familiar

criminals such as “car thieves and drug dealers,”!®

yet may be withheld from a high-security terrorism

suspect detained on the President’s orders, gets our

history backwards. Mr. al-Marri is entitled to

criminal due process not because the Sixth

Amendment does not permit detention without trial

in any instance,!! but, rather because the Sixth

(continued...)

of witnesses in like process to that granted to the prosecution.

See Act of April 30, 1790, 1 Stat. 112, § 29.

10 “(Ojur critics insist that these combatants should receive the

benefit of the rules and procedures of our criminal justice

system, those tried and true methods that we use to deal with

criminals such as car thieves and drug dealers.” Remarks by

Alberto R. Gonzales, American Bar Assoc. Standing Committee

on Law and National Security, available at

http://www .fas.org/irp/news/2004/02/gonzales.pdf.

'! Cf Al-Marri v. Pucciarelli, 534 F.3d 213, 305 (4th Cir. 2008)

(Wilkinson, J., concurring and dissenting in part) (citing diverse

contexts in which preventative detention as an aiternative to

criminal prosecution is authorized).

Amendment cannot be read to permit exception in

this instance.

B. The Reasoning In Crawford Applies A

Fortior1 Here

The form that the Government’s evidence against

Mr. al-Marri takes—a triple hearsay compilation by

one government official of ex parte examinations of

unnamed sources by other unnamed government

officials!2—is exactly the type of evidence that the

Sixth Amendment’s confrontation clause was

originally designed to test, as Crawford makes

clear.13 But there is a more trenchant reason why

the Sixth Amendment safeguards must apply here.

The Sixth Amendment’s direct textual sources,

namely the First Congress’s Treason Act of 1789, the

colonial treason statutes, and the Treason Act of

1696, 7 & 8 Will. 3, together demonstrate that the

Sixth Amendment’s safeguards were originally

enacted to test the substance of the kind of

accusations that the Government makes here, as

well.

Judge Wilkinson asserts below that “[nJothing in

our constitution requires the elected branches to

treat terrorism invariably as a criminal offense,” and

that “the judiciary has no right in the name of

constitutional law to compel criminal prosecution of

12 The Government filed a Declaration of Jeffrey N. Rapp, Sept.

9, 2004, and a classified, secret declaration of Mr. Rapp as

evidence. Pet. App. 449a.

13° Crawford v. Washington, 541 U.S. 36, 50 (2004). “[T]he

principal evil at which the Confrontation Clause was directed

was the civil-law mode of criminal procedure, and particularly

its use of ex parte examinations as evidence against the

accused.”

9

terrorist suspects in all instances.”!4 But the

reasoning in Crawford is to the contrary. In

Crawford, this Court applied the forgotten historical

rationale for the right of confrontation to the question

of whether it could be withheld, clarifying that while

the right might lawfully be unavailable for some

hearsay exceptions, it could not be withdrawn in the

context of an ex parte examination by government

officials. That is because the problem of ex parte

examinations had given rise to the confrontation

safeguard; such testimony could not now work an

exception to the safeguard. The rule in Crawford

applies a fortiori here where the entire Sixth

Amendment has been set aside and in the very

context that its provisions were specifically devised to

address: detention at the behest of the chief executive

on accusations of dire threat to the nation.

C. Domestic Enemy Combatant Detentions

Resemble 17th-Century State Trials and

Rely on Their Rationales

“In the 16th and 17th centuries, the accused felon

or traitor stood alone, with neither counsel nor the

benefit of other rights—to notice, confrontation, and

compulsory process—that we now associate with a

genuinely fair adversary proceeding.” See Faretta,

422 U.S. at 823. Procedural safeguards were not

unknown prior to 1696, but were deliberately

withheld from felony and treason defendants in order

to secure the prosecution’s success.!5 The prisoner

14 4]-Marri, 534 F.3d at 304.

15 “While a right to counsel developed early in civil cases and in

cases of misdemeanor, a prohibition against the assistance of

counsel continued for centuries in prosecutions for felony or

treason. Faretta, id. (citing 1 J. STEPHEN, A HISTORY OF THE

10

was “kept in close confinement till the day of his trial.

He had no means of knowing what evidence had been

given against him. He was not allowed as a matter of

right, but only as an occasional, exceptional favour, to

have either counsel or solicitors to advise him... .”!6

As is true today in Mr. al-Marri’s case, the pre-1696

prisoner was not permitted “to see his witnesses and

put their evidence in order.” Jd. The prisoner's

witnesses were not permitted to be sworn, id. at 398,

and prisoners had no copy of the indictment against

them or of the panel of jurors, id. at 398-99. All this

amounted to one overriding concern: keeping the

evidence against the detainee secret. “The real

grievance was keeping the prisoner in the dark as to

the evidence against him.” /d. at 399. But more

tellingly, the reasons for keeping the prisoner in

these conditions and limiting his ability to mount a

defense were the same ones now offered by the

Government and the court below for providing U.S.

residents with a curtailed “post-detention status

hearing” rather than a jury trial: to prevent

communication with co-conspirators; to prevent

willing or inadvertent relaying of messages through

counsel; the urgency of obtaining a conviction, and of

keeping the prisoner from escaping. In sum,

overriding concern with risk and _ inconvenience

outweighed regard for individual liberty. The same

weighty concerns come to bear on Mr. al-Marri in the

Fourth Circuit's judgment. As Judge Wilkinson

(continued...)

CRIMINAL LAW OF ENGLAND 341 n.18 (1883)); see a/so LANGBEIN,

supra, at 36.

16 ] J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND

398 (Burt Franklin ed. 1883).

11

explains, “serious threat to community safety” and

“significant barriers to criminal prosecution” are

reason enough to deny Mr. al-Marri procedural

safeguards. Pet. App. 209a. In the Fourth Circuit’s

views, as in the 17th century, “[t]he sentiment

continually displays itself that the prisoner is half, or

more than half, proved to be an enemy of the King

and that, in the struggle between the King and the

suspected man, all advantages are to be secured to

the King whose safety is far more important to the

public than the life of such a questionable person as

the prisoner.” !?

The crown’s state trials were not just about plans

to murder the monarch but about general security

threats to the nation, “a miserable slaughter among

the faithful Subjects . . . throughout this whole

Kingdom.”!8 “Catholics were accused of preparing to

massacre protestants and introduce an army from

abroad. . . . Hysterical fears of an impending

massacre of all protestants gripped London, and anti-

papist excitement quickly enveloped all sections of

the population.”'9 A short list of the plots and

rebellions prosecuted in the period demonstrate that

the times were no less fraught with terror than our

own. Within ten years, the Popish Plot (1678-80) the

Meal Tub Plot (1680), the Rye House Plot (1685), the

Bloody Assizes (1685) and the Trial of the Seven

Bishops (1688), all driven by anti-papist or anti-Whig

17 STEPHEN, supra, at 397.

18 The Arraignment, Tryal and Condemnation of Ambrose

Rookwood ... upon the New Act of Parliament for Regulating

Trvals in Cases of Treason (1696).

‘9 J. R. JONES, COUNTRY & COURT: ENGLAND, 1658-1714, at 201-

O2 (1978).

12

political factionalism, led to crops of martyrs.

Executions on trumped up charges finally drew

attention to the unfairness of the terror defendant’s

position, raising sufficient alarms to cause

Parliament to enact the reforms, LANGBEIN, supra at

78—after debating the 1696 Act for eight years.2°

In sum, the concerns for safety and expediency

articulated by the Government here are the very

same that gave rise to centuries of abuses, which in

turn led to the early formulations of the rights now

enshrined in the Sixth Amendment. The Court

should therefore firmly reject the Government's

misplaced efforts to revive these concerns now as a

justification for depriving U.S. residents of their

rights.

Il. THE GOVERNMENT'S PURPORTED

AUTHORITY TO AVOID THE SIXTH

AMENDMENT DISRUPTS THE CRIMINAL

JUSTICE SYSTEM AND THE COURTS

Apart from its constitutional infirmities, the notion

that Congress meant to authorize the displacement of

criminal due process with an alternative military

detention scheme for persons seized within the

United States is barely credible as a practical matter.

Yet its implications must be examined. Al-Marri is

the sole remaining domestically detained “enemy

combatant,” and (with Hamdi and Padilla, both of

whom have been released from military custody) one

of only three U.S. citizens or residents to have been

detained pursuant to the AUMF. But the uniqueness

of Mr. al-Marri’s predicament provides no assurance

that the Government intends to use its domestic

20 See LANGBEIN, supra, at 86.

13

detention authority sparingly in future. “Enemy

combatant” detentions may at some future point

become more prevalent, disrupting and distorting the

administration of criminal justice.

A. Discretionary Military Detention Will Force

Unconstitutional Plea Bargains

The threat of military detention will corrode the

adversarial system by coercing plea bargains. Under

the Fourth Circuit’s rule, the Executive will have two

detention tracks to choose from—criminal and

military—and will be free to choose the lesser

burdens of the military route at its discretion. As

former Attorney General Gonzales explained, “[t]here

is no rigid process for making such determinations—

and certainly no particular mechanism required by

law.”2! The result is that the threat of prolonged

imprisonment in a 9 x 6 foot cell, incommunicado—a

condition of confinement that this Court has

compared to “the rack, the thumbscrew, [andj the

wheel,” Chambers v. Florida, 309 U.S. 227, 237

(1940)—will hang over every terrorism prosecution,

even when the designation is not made.

The purpose of the adversarial criminal process is

to uncover the truth of the defendant’s guilt or

innocence prior to prolonged detention, so as to

ensure that only the guilty are punished.?? Plea

“1 Gonzales, supra, at 12.

22 Bell v. Wolfish, 441 U.S. 520, 531 (1979) (conditions of

pretrial detention violate due process when they amount to

punishment); see also Wilkins v. May, 872 F.2d 190, 194 (7th

Cir. 1989) (“if ever there were a strong case for ‘substantive due

process, it would be a case in which a person who had been

arrested but not charged or convicted was brutalized while in

custody”); cf U.S. CONST. amend. VI (“the accused shall enjoy

the right to a speedy ... trial”).

14

bargains likewise aim for accuracy and fairness in

that an “intermediate judgment” can ensure the

“relative equality of results as between defendants

similarly situated” and “relative congruence between

the formal verdict and .. . conduct.”23 For this

reason, “the full-blown negotiated plea is not merely

an appeal for mercy; it is an adversary process.”24 As

recently noted, a guiity plea is “highly tactical, since

it usually requires balancing the prosecutor’s plea

bargain against the prospect of better and worse

outcomes at trial.”25 This balancing and negotiation

cannot occur when the Government has the leverage

to effectively force a plea agreement by threatening

to transfer a defendant to an isolated brig for

prolonged interrogation. Likewise, for the defendant,

the very possibility of transfer to indefinite military

detention in severely punishing conditions, subject

only to a Hamdi status hearing, creates a threat so

disproportionate to the risks of criminal sentencing

that it all but forces the defendant to plead guilty

even where there is a low risk of criminal conviction,

in violation of due process.26 Most crucially, because

the plea bargain is at the Executive’s discretion, and

there are no rules governing the unilateral decision

23ARNOLD ENKER, PERSPECTIVES ON PLEA BARGAINING, IN

PRESIDENTS COMMISSION ON LAW ENFORCEMENT AND THE

ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS,

113-14 (1967).

24 DONALD NEWMAN, CONVICTION 216 (1966).

“3 Gonzalez v. United States, 128 S. Ct. 1765, 1774 (2008)

(Scalia, J. concurring).

26 Carl Takei, “Terrorizing Justice: An Argument that Plea

Bargains Struck Under the Threat of ‘Enemy Combatant’

Detention Violate the Right to Due Process,” 47 B.C. L. REV. 581

(2006).

15

whether to pursue trial, plea bargain, or transfer,?’

the Government is most likely to use its military

option when it has the least viable evidence, a tactic

that may impose torturous conditions on suspects

with the strongest defense against their charges,

while preserving the right of trial by jury for the most

clearly guilty. In this way, even the threat of an

enemy combatant designation perverts the truth-

seeking objectives of the adversarial criminal trial.

There is more than theoretical support for the

prediction that the Fourth Circuit’s rule, providing

the Government with the option of “enemy

combatant” designation, will force guilty pleas in

violation of due process. The Lackawanna Six?8

anticipated that they could be transferred to military

custody before they were all sentenced under plea

agreements in 2003.29 Indeed, both the Vice

President and Secretary Rumsfeld reportedly had

pushed for military detention of the six,*° and U.S.

27 “(N]umerous options are considered by the various relevant

agencies (the Department of Defense, CIA and DOJ), including

the potential for a criminal prosecution, detention as a material

witness, and detention as an enemy combatant.” Gonzales, :d.,

supra n.10. “Options often are narrowed by the type of

information available, the individual’s threat potential and

value as a possible intelligence source.” /d. at 13.

28 See Dina Temple-Raston, “Enemy Within? Not Quite,” WASH.

POST, Sep. 9, 2007, at Bl (on the six Yemeni-American men

from Lackawanna, New York convicted of training at an al-

Qaeda camp).

23 Scot J. Paltrow, “U.S. Exerts Unusual Pressure on Group of

Terror Suspects,” WALL ST. J., Apr. 1, 2003; Eric Lichtblau,

“Wide Impact From Combatant Decision is Seen,” N.Y. TIMES,

June 25, 2003.

30 Michael Isikoff & Daniel Klaidman, “The Road to the Brig:

After 9/11, Justice and Defense Fought over How to Deal with

16

Attorney Michael Battle “conceded that his office had

discussed that possibility with the Defense

Department.”3! As a result, ““[w]e had to worry about

the defendants being whisked out of the courtroom

and declared enemy combatants if the case started

going well for us,’ says Patrick J. Brown, attorney for

one of the six. ‘So we just ran up the white flag and

folded.”32 “Defense attorneys describe[d] working

blind, never knowing how far~ Washington would

push. ... In the end the government took the enemy

combatant designation off the table and _ the

defendants pleaded guilty.” /d. And, as a condition

of the plea, the Government agreed to “forego any

right it ha[d] to detain the defendant as an enemy

combatant.”33

Al-Marri’s case demonstrates the catastrophic

results of pleading innocence under threat of military

detention. The Government first detained al-Marri

as a material witness on December 12, 2001, then

filed successive charges of credit card fraud, lying to

(continued...)

Suspected Terrorists,” NEWSWEEK, Apr. 26, 2004, at 26,

available at http://www.newsweek.com/id/5378 1/output/print.

31 Phil Hirschkorn, “Fourth Guilty Plea in Buffalo Terror Case,”

CNN.com, Apr. 9, 2003, available at http://www.cnn.com/2003/

LAW/04/08/terror.cell/.

32 Michael Powell, “No Choice But Guilty: Lackawanna Case

Highlights Legal Tilt,” WASH. PosT, Jul. 29, 2003, at Al.

33 Press Release, U.S. Dep’t of Justice, United States Attorney's

Office Successfully Concludes Terrorism Case with Sixth

Conviction of Al Qaeda Supporter (May 19, 2003), at Plea

Agreement, 28: on file with Yin, “Coercion and Terrorism

Prosecutions,” infra, n.35 (quoting plea agreement and noting

the terms were similar in all six)

17

a federal agent, bank fraud and identity theft. Br. for

Pet’r at 2-4. When al-Marri pled not guilty and

mounted an aggressive defense, as was his

constitutional right, zd. at 3, the Government made

the decision to seek his transfer to military custody.

Id. at 4-6. As former Attorney General Ashcroft

describes the decision, Al-Marri “rejected numerous

offers to improve his lot by cooperating” and “made

himself a tough case.”34 The Attorney General

implies that al-Marri could have spared himself

designation as an enemy combatant and transfer to a

U.S. naval brig where he remains to this day without

contact with the outside world. But if Mr. al-Marri

had anticipated the Government’s tactics, as the

Lackawanna Six were able to, he surely would not

have chosen to defend his case. Cooperating with the

prosecutor cannot be termed a choice or bargain

when refusal leads to total loss—in this case, the

purported loss of all the rights and protections of

civilian status.*5

B. Domestic Military Arrest and Detention Will

Displace Civilian Procedures

The Government’s purported authorization to use

military force against U.S. civilians dispenses with

the evolved rules and norms of civilian arrest and

detention and substitutes a procedural blank slate.

Just as there are no laws controlling the President’s

decision to detain, see Gonzales, supra n.10, there are

34 JOHN ASHCROFT. NEVER AGAIN: SECURING AMERICA AND

RESTORING JUSTICE 169 (2006).

35 See Tung Yin, “Coercion and Terrorism Prosecutions in the

Shadow of Military Detention,” 2006 B.Y.U. L. REV. 1255 (2006)

(comparing implied threat of military transfer to blackmail and

applying vindictive prosecution doctrine).

18

no guidelines governing the conduct of the capture

and initial detention. And even if there were military

guidelines controlling these questions, it is not likely

that they would be reviewable by civilian courts. The

Government assured the en banc judges at oral

argument below that all claims regarding capture

and detention could be raised in the Hamdi

proceeding.°6 But the Hamdi plurality holds that

“the capture, detention, and trial of unlawful

combatants, by ‘universal agreement and practice,’

are ‘important incident[s] of war, Hamdi v.

Rumsfeld, 542 U.S. 507, 518 (2004), and therefore not

subject to civilian claims. The plurality envisions

that “the errant tourist, embedded journalist, [and]

local aid worker” found on the battlefield would have

“a chance to prove military error” at a Hamdi

hearing, id. at 534, but certainly could not challenge

how violently they were detained, or for how little

probable cause, or with how much collateral damage.

These are military decisions. Yet once the “enemy

combatant” becomes a U.S. resident, and his home or

workplace becomes the constructive “battlefield,” the

lack of check on the mode of capture or conditions of

initial confinement presents a host of practical and

36 See al-Marri v. Wright, No. 06-7427, (4th Cir. Oct. 31, 2007)

unofficial ranscript of orai argument at 100-102, available at

http:/ Srennan.3cdn.net/e75ca720b74 16fd646_bym6vjhii.pdf

(“Unofficial Transcript of Oral Argument”). Asked how U‘S.

residents would be protected against baseless or discriminatory

detentions, or how they might bring claims for abusive

conditions of arrest and confinement, the Government's puzzling

response was that the same curtailed Hamdi hearing that

denies all Sixth Amendment rights and institutes a

presumption in the Government's favor would provide a full

opportunity to raise any other applicable constitutional or

statutory claims. See id.

19

legal problems that may degrade the civilian

constitutional standards:

1. Notice: Under the AUMF’s purported military

authorization, no rules require the military to take

responsibility for the disappearance of a U.S. resident

or provide notice as to why the prisoner has been

detained, where he or she is being held, or who is the

custodian. No rules specify how long the Department

of Defense (“DOD”) can conceal that information or

whether the public or the prisoner’s family has the

right to be informed. The Government provided

notice to al-Marri’s attorneys ad hoc, as a matter of

discretion, at the Judge’s request. See al-Marri v.

Bush, No. 03-1220, Opp. to Mot. to Dismiss, Ex. B

(C.D. Ill. July 23, 2003), 14-15. But it is unclear how

the military intends to initiate the detention of U.S.

residents when they are not already under civilian

criminal jurisdiction. Presumably, the laws of war

and judicial abstention doctrines that apply to foreign

policy decisions would apply to the conduct of

military captures in the United States. See, e.g,

Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006)

(dismissing as nonjusticiable claims arising from the

Government’s forcible removal of plaintiffs from their

homes); Schneider v. Kissinger, 412 F.3d 190 (D.C.

Cir. 2005) (dismissing claims of sons of Chilean

general kidnapped at Secretary of State’s urging);

Christopher v. Harbury, 536 U.S. 403 (2002)

(reversing judgment that widow of kidnapped

dissident had claim for relief from CIA officials who

falsely denied knowledge of his location).

2. Denial of Counsel: The Hamdi plurality held

that persons detained as “enemy combatants”

“unquestionably ha[ve] the right to access to counsel

20

in connection with their [status] proceedings.” See

542 U.S. at 539 (plurality op.). In addition, the

plurality agreed that “indefinite detention for the

purpose of interrogation is not authorized [by the

AUMF].” Jd. at 521. On the same day, three other

Justices (along with one member of the Hamdi

plurality) agreed that prolonged interrogation in

isolation—the very purpose that the Government had

repeatedly offered as _ justification for the

detentions—was unlawfui. See Rumsfeld v. Padilla,

542 U.S. 426, 465 (2004) (Stevens, J. dissenting).

The Government appeared to comply, ceasing the

interrogation of al-Marri, which, at that point, had

continued for two years.

Yet before the court below, the Government

reasserted its putative authority to seize any U.S.

resident and hold him for the purpose of

interrogation, without access to counsel or notice to

family or the public, for “some period” of time.*” In

oral argument en banc, Mr. Garre could not clarify at

what point he believed a U.S. resident’s right to

counsel attaches or after what period of time

interrogation in isolation becomes unlawful. /d. at

104.

Thus, despite admonitions from members of this

Court that the Governments “purpose of

interrogation is not authorized” by the AUMF, ana

that “incommunicado detention for months on end” is

an “unlawful procedure[],” the Government continues

to justify its alleged detention authority on the basis

that it allows for incommunicado detention and a

period during which the right to counsel is

suspended. And rather than set any standards for

7 See Unofficial Transcript of Oral Argument at 103

21

the interrogation period, the Government proposes

that “enemy combatant cases ought to be taken and

viewed very carefully on a case-by-case basis, with

the particular facts of each case.” Jd. at 97.

3. Uncertain remedy for constitutional or other

violations in course of capture or initial detention: If

a U.S. resident “enemy combatant” has no Sixth

Amendment rights, it is not clear what other

constitutional rights could be vindicated by a Hamdr

status hearing. Although the conditions of criminal

detention are frequently subject to habeas review, it

is not clear whether a U.S. resident detained

militarily by the President and deprived of Sixth

Amendment rights would nevertheless be protected

by the Eighth Amendment, or whether’ the

Government intends to hold itself to army

regulations or other law of war standards. Would the

DOD or its individual officers be liable for Fourth or

Fifth Amendment privacy or property violations that

occur during the capture or period of detention? Or

would the Government be entitled to military

exceptions to its waiver of sovereign immunity and

other doctrines exempting military conduct from

review? See, e.g., 28 U.S.C. § 2680G) (excepting from

the Federal Tort Claims Act “[a]ny claim arising out

of the combatant activities of the military or naval

forces, or the Coast Guard, during time of war’).

Alternatively, would law of war standards apply to

the conditions of military detention? Would military

standards apply to the conditions of detention, even if

the habeas petitioner eventually prevails? The

Government responded with assurances when asked

at en banc oral argument whether “there would be no

impediment to a [§] 1983 suit,”55 but there are

significant jurisdictional impediments whenever a

civilian seeks to remedy injuries arising from

military conduct. The Government’s contention that

a presumptive “enemy combatant” forced to rebut

hearsay testimony without the safeguards of the

Sixth Amendment could expect to prevail at the same

hearing or later on a Bivens, FTCA or common law

claim is simply not credible.

4. The Rights of Bystanders: Finally, it is

unclear whether injuries to bystanders or their

property caused by a military capture would be

subject to civil claims or whether they would be

unreviewable under various statutes and doctrines

immunizing military conduct.

In sum, under the Fourth Circuit’s rule, the

military has free reign to conduct the capture and

temporary detention of U.S. residents as it sees fit.

And if a capture or detention violates’ the

Constitution or the laws of war, the federal courts’

opportunity to review the military’s conduct will be

severely limited. While courts may struggle to create

new rules to address these problems, this would be to

reinvent the Bill of Rights, provision by provision.

The number of legal issues that are left

indeterminate in this’ scheme highlights’ the

superiority of our well-developed civilian arrest and

detention procedures.

C. Temporary Military Detentions Will Evade

Review

Hamdis provision for habeas jurisdiction and a

post-detention status determination provides the only

8 [Inofficial Transcript of Oral Argument at 112-13

23

third branch check on the Government’s purported

military authority under the AUMF to detain U.S.

residents. But, at best, the Hamdi hearing prevents

only indefinite military detention without some

check. The Government may use its Hamdi

settlement and Padi//a transfer strategies to avoid a

Hamdt hearing.

The DOD has little incentive to reach a fact-finding

proceeding, even a constitutionally curtailed one, if it

can instead settle with the U.S. resident and obtain

waiver of all claims. In the same way, the DOD has

little incentive to hold a U.S. resident indefinitely if it

can hold him only temporarily and then transfer him

to civilian criminal custody when the burdens of

review are imminent. We have seen both these

tactics used in the only two other enemy combatant

cases besides al-Marri’s, and the Government may

continue this pattern in future, despite the rule in

Hamadt.

1. Hamdi Settlement

After holding Yaser Hamdi for over three years in

solitary confinement on the basis of nine paragraphs

of unsupported hearsay, the Declaration of Michael

H. Mobbs, Hamd v. Rumsfeld, No. 2:02CV439 (E.D.

Va., July 24, 2002), the Government negotiated an

agreement rather than submit to even curtailed

review of the factual basis for Hamdi’s purported

combatant status.°° The Agreement releases Hamdi

from custody, recording his assertion that he “never

affiliated with or joined a Taliban military unit,

never was an enemy combatant, that is never was

part of or supported forces hostile to the United

33° Motion to Stay Proceedings, Hamdr v. Rumsfeld.

No.2:02CV439 (E.D. Va. Sep. 24, 2004), Agreement.

24

States and, never engaged in armed conflict against

the United States.” Jd. In addition, Hamdi “also

maintains he was never a member of nor affiliated

with al Qaeda.” /d. But in return for his release and

transport to Saudi Arabia, Hamdi agrees, inter a/ia,

to forfeit his U.S. nationality, zd. 4 8, and all claims

against the United States or its officers for any

violation of law prior to the agreement date, zd. J 13.

The Hamdi settlement is the presumptive enemy

combatant’s equivalent of a plea bargain. As in the

civilian criminal context, there is no real bargaining

power or ability to refuse when the alternative is the

immeasurable risk of unending confinement in

unremediable conditions. A U.S. resident with

potential claims arising from her military detention

would have to abandon them given the opportunity

for release. The Government’s incentive, particularly

with U.S. residents mistakenly detained, will be to

settle and obtain release of any claims so as to avoid

creating limiting precedents. But the detained U.S.

resident will not have the competing incentive to risk

unlimited detention in order to litigate rights already

violated.

With the threat of indefinite military detention

as a bargaining tool, the Government will invariably

obtain favorable settlement terms such as _ the

forfeiture of citizenship and the release of claims

relating to the detention. The Government may thus

wield an extensive detention authority on the sole

basis of the President’s designation with no practical

judicial check.

2. Padilla Transfer

Alternatively, under the Fourth Circuit's rule, the

Government may detain a U.S. resident militarily,

25

then charge and transfer him to civilian criminal

custody prior to his Hamad hearing, thereby avoiding

all factual challenge to his temporary “enemy

combatant” status. In Padilla’s case, the Government

was able to avoid both a remand to District Court for

a Hamdi hearing and imminent review by this Court

by filing an indictment for conspiracy after holding

Padilla for over three years.4° During those three

years, the Government had filed affidavits and held

press conferences‘! “steadfastly maintaining,” as

Judge Luttig noted, “that it was imperative in the

interests of national security” that Padilla be

detained without charges.42 Yet these ex parte

declarations and public announcements were set

aside without ever reaching the limited review of a

Hamad hearing, much less cross-examination. Their

dire warnings presented no obstacle to Padilla’s

release from military custody when unfavorable

review loomed. The Fourth Circuit panel was left

with “impressions” that national security interests

had “yield[ed] to expediency.” /d.

40 Superseding Indictment of Nov. 17, 2005, Padilla v. Hanft,

423 F.3d 386 (4th Cir. 2005).

41Declaration of Michael H. Mobbs, Special Advisor to the

Under Secretary of Defense for Policy, at 3-4 (Aug. 27, 2002);

Declaration of Jeffrey N. Rapp, Director, Joint Intelligence Task

Force for Combatting Terrorism (Aug. 27, 2004); Declaration of

Vice Admirai T.owell E. Jacoby (USN), Director of the Defense

Intelligence Agency (Jan. 9, 2003); see, e.g., U.S. Dep. Att’y Gen.

James Comey, Justice Department News Conference

Concerning Jose Padilla (June 1, 2004) (transcript available at

2004 WL 1195419).

42 Order, Padilla v. Hanft. No. 05-6396 (4th Cir. Dec. 21, 2005),

12

26

Thus, as long as the detentions remain temporary,

terminated by either settlement or transfer, they can

go completely unreviewed and can serve unlawful

ends. And because the Government can avoid review

through two “catch and release” strategies, the

unlawful purpose and _ conditions that the

Government has already pursued—prolonged

interrogation in isolation and cruel and degrading

treatment—are likely to be repeated.

Moreover, because manipulation of the detention

period at the Executive’s sole discretion may prevent

the federal courts from ever setting constitutional

standards for the initial capture or detention of U.S.

residents, many other issues that are well-regulated

in the criminal law, for reasons of safety as well as

fairness, will be left undetermined.

D. Constructive “combatants” and “battlefields”

are without clear limits

The Fourth Circuit accepted the Government's

expansive construction of the term “enemy

combatant” to reach Mr. al-Marri, who was arrested

unarmed in his home and detained pursuant to

civilian criminal proceedings. But what is the limit

on who or what may be construed as a “combatant”

acting on a “battlefield”? Al-Marri is a civilian

according to all standard dictionary definitions, as

well as established law of war understandings that

mark the status distinctions articulated in Q@uzrin as

well as Milligan. But according to terms that the

Government introduced in 2002, Mr. al-Marri is a

constructive combatant, just as Mr. Hamdi and Mr.

Padilla were both, for the duration of the litigation of

their military detentions, constructive combatants,

although the Government never produced evidence

that either Hamdi or Padilla was ever present in any

zone of combat. Indeed, the Government has

consistently manipulated traditional civilian and

military distinctions, refusing to acknowledge that it

cannot shift legal paradigms by shifting terminology.

If the Fourth Circuit’s reasoning is correct, then

there is no limit to the political branches’ power to

redefine other types’ of civilians as “enemy

combatants,” expanding constructive military status

to reach new exigencies and conveniences. The

justifications offered for reading the AUMEF to

authorize the military detention of terrorism suspects

set no limit on Congress’s authority to further

militarize jurisdiction over other crimes. The

proposed exclusion of a class of suspects from the

criminal justice system, if constitutional at all, is

without clear limit.

For example, Judge Wilkinson’s justifications for

carving out an exception to the general rule of Sixth

Amendment process—“threat[s] to community safety”

and “barriers to criminal prosecution’—could be

raised about any number of other types of criminal

prosecutions.43 There is no reason why, under the

Fourth Circuit’s rule, Congress could not also

authorize military detention of domestic terrorists,

including individuals acting without an organization,

so that anyone, acting alone or as part of a cell,

targeting either the government or civilians, could

become the subject of an Authorization for the Use of

Military Force. Where will the requirement for

civilian Sixth Amendment due process be redrawn?

43° 4]-Marrr, 534 F.3d at 309 (Wilkinson, J., concurring and

dissenting in part).

28

Constructive combatant status and the

constructive battlefield may be expanded ad

absurdum. As counsel for the accused argued in

Q@uirin, “if you take the theory that everything that

was done that might aid the enemy makes it a

theater of operations, you reduce the thing to an

absurdity.” PIERCE O’DONNELL, IN TIME OF WAR 226

(2005).44 Once “the battlefield” becomes a metaphor

for a multi-agency review process and the evidence is

not “buried in the rubble of war,” Hamad, 542 U.S. at

532 (plurality op.), but rather in the discoverable

documents of civilian agency officials, then there is

no longer a practical reason to maintain the conceit of

“enemy combatant” status or the accompanying

presumption in favor of the Government’s ex parte

testimony—nor any reason to curtail Sixth

Amendment criminal process with a Hamdr style

review. Rather than allow an exceptional time of war

decision, Quzrin, to authorize a system of routinized,

administrative domestic military detentions, the

Court should take the opportunity that a sustained

crisis provides to retrench our Sixth Amendment

principles.

CONCLUSION

The judgment below should be reversed.

44 In Quirin, the United States focused on the fact that the

saboteurs stashed their uniforms, a war crime, in order justify

the Government's assertion of military criminal jurisdiction.

“Milligan never wore the uniform of the armed forces at war

with the United States. Petitioners did. Milligan was a

resident of Indiana. He did not .. . enter into a theater of

operations. The Petitioners did.” When asked if “[t]he mere

absence of uniforms makes a difference,” the Government's

attorney replied, “[ajll the difference in the world.” 317 U.S. 1,

222 (1940).

January 28, 2009

29

Respectfully submitted,

JULIA E. MCEVoy

CHRISTIAN G. VERGONIS

KATHERINE E. STERN

(Counsel of Record)

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

Counsel for Amicus Curiae