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

Gm es

\& Supreme Cout US}

No. 08-368 FILED

~

meee

wiews € a) 2003

L_OPPICE OF THE CLERK

Supreme Court of the United States

IN THE

ALI SALEH KAHLAH AL-MARRI,

Petitioner,

ws

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 RETIRED MILITARY OFFICERS

AND THE NATIONAL INSTITUTE OF

MILITARY JUSTICE AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

THOMAS B. WILNER

Counsel of Record

NEIL H. KOSLOWE

AMANDA R. KOSONEN

SHEARMAN & STERLING LLP

801 Pennsylvania Avenue, N.W

Washington, D.C. 20004

(202) 508-8000

Counsel for Amici Curiae

WILSON-EPES PRINTING CO , INC (202) 789-0086 - WASHINGTON,D C 20002

bork dawros,

TABLE OF CONTENTS

PRELIMINARY STATEMENT AND SUM-

MARY OF ARGUMENT

ARGUMENT

I.

THE POSSE COMITATUS ACT

PROHIBITS THE MILITARY DETEN-

TION OF PETITIONER, NONE OF

THE EXCEPTIONS TO THE PCA

ARE APPLICABLE, AND THE AUTH-

ORIZATION FOR THE USE OF

MILITARY FORCE DID NOT

OVERTURN OR OTHERWISE LIMIT

THE PCA

A. The PCA Limits the Use of the

Military for Domestic Law Enforce-

. None of the Exceptions to the PCA

Permits the Military Detention of the

Petitioner ........... asian sietavaeicu lives aiaaces

>». The AUMF Does Not Create a New

Exception to the PCA

DETENTION OF A LAWFUL RESI-

DENT IN THE UNITED STATES IS

AN UNWELCOME DEPARTURE FOR

THE MILITARY AND DETRIMENTAL

TO THE RELATIONSHIP BETWEEN

MILITARY PERSONNEL AND

CCTV ERAIGS oc.sccsssvcesesens prihansauinskicactannnnaaien

CONCLUSION

1]

TABLE OF AUTHORITIES

CASES

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

PR, MI) siniissne-.cncsaccccsccsnscscccccecncccescnccncarses

Astoria Fed. Sav. & Loan Ass’n uv.

Solimino, 501 U.S. 104 (1991)

Berry v. Bean, 796 F.2d 713 (4th Cir. 1986)...

Brown ov. vee States, 12 U.S. (8 Cranch)

Pavia U. ‘Mich. Dep't of Treasury. 189 U.S.

a

Duncan v. Kahanamoku, 327 U.S. 304

ai aiis sank gnesndevanecsesccsesecsceoncncs

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

Grutter v. Bollinger, 539 U.S. 306 (2003)..

Gutknecht v. United States, 396 U.S. 295

(1970)

Hayes v. Hawes, 921 F.2d 100 (7th Cir.

J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred

Int'l, Inc., 534 U.S. 124 (2001) |

Matsushita Elec. Indus. Co. v. Epstein, 516

U.S. 367 (1996)

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

Morales v. TWA, Inc., 504 U.S. 374 (1992)..

Morton v. Mancari 417 U.S. 535 (1974)

Nat'l Ass’n of Homebuilders v. Defenders of

Wildlife, 127 S. Ct. 2518 (2007)

Parker v. Levy, 417 U.S. 733 (1974)

Posadas ». Natl City Bank of N.Y

U.S. 497 (1936)

Radzanower v. Touche Ross & Co.

U.S. 148 (1976)....... Ras Gian sia vinakecinn

Page

lt

17,

ill

TABLE OF AUTHORITIES —Continued

Reid v. Covert, 354 U.S. 1 (1957)

Serrano Medina v. United States, 709 F.2d

104 (1st Cir. 1983)

United States ex rei. Toth v. Quarles, 350

U.S. 11 (1955)

United States v. Allred, 867 F.2d 856 (5th

Cir. 1989)

United States v. Bacon, 851 F.2d 1312

(11th Cir. 1988)

United States v. Bass, 404 U.S. 336 (1971).

United States v. Lindh, 227 F. Supp. 2d

IIR Cees IN, SI Ohi icsda ok cknictiecenbceneessncsnenees

United States v. McArthur, 419 F. Supp.

186 (D.N.D. 1975), affd sub nom.,

United States v. Casper, 541 F.2d 1275

(8th Cir. 1976)

United States v. Moderacki, 280 F. Supp.

633 (D. Del. 1968)

United States v. Pirraglia, 24 M.J. 671

(A.C.M.R. 1987)

United States v. Rahman, 189 F.3d 88 (2d

Cir. 1994)

United States v. Red Feather, 392 F. Supp.

916 (D.S.D. 1975)

United States v. Walden, 490 F.2d 372 (4th

ee: BG Bi vaicnnssc dec haekrn tenn ae cuales

United States v. Yunis, 681 F. Supp. 891

(D.D.C. 1988), affd, 924 F.2d 1086 (D.C.

Cir. 1991)

United States v. Yunis, 924 F.2d 1086

(D.C. Cir. 1991)

Varity Corp. v. Howe, 516 U.S. 489 (1996)..

Wrynn v. United States, 200 F. Supp. 457

(E.D.N.Y. 1961)

Page

0-6

iv

TABLE OF AUTHORITIES—Continued

Page

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)

STATUTES AND REGULATIONS

Authorization for the Use of Military

Force, Pub. L. No. 107-40, 115

Stat. 224

14, 21, 22

National Defense Authorization Act, Pub.

L. No. 109-364, 120 Stat. 2083 (2007)...... 21-22

National Defense Authorization Act, Pub.

L. No. 110-181, 122 Stat. 3 (2008)

Posse Comitatus Act of 1878, 18 U.S.C.

a din nial etaa eras ateniciasaanieuvakdacesaninoens passim

5 U.S.C. App. 3 § 8(g) 14

10 U.S.C. §§ 371-374 | 14

Oe ies eS sv cane cisavissanavessecnsnsinnsss ‘ 11

10 U.S.C. § 37: 12

10 U.S.C. § 12

16 U.S.C. § 14

18 U.S.C. §¢ 14

22 U.S.C. § 461 14

32 C.F.R. § 215.4c(1)

LEGISLATIVE MATERIALS

. Rec. 2112 (1877)

. Rec. 2114 (1877)

. Rec. 2159 (1877)

. Rec. 3579-3582 (1878)..................... 10, 20

. Rec. 3852 (1878)

x. Rec. 4185 (1878)

. Rec. 4247 (1878)

v

TABLE OF AUTHORITIES—Continued

7 Cong. Rec. 4686 (1878)

127 Cong. Rec. 2005 (1981)

127 Cong. Rec. 15669-15670 (1981).............

127 Cong. Rec. 15671 (1981)

132 Cong. Rec. 26448 (1986)

H.R. Rep. No. 97-71 (1981), as reprinted in

1981 U.S.C.C.A.N. 1785

Hearing on H.R. 3519 Before’ the

Subcomm. on Crime of the House

Comm. on the Judiciary, 97th Cong.

SIG oi sok an beatodsaund awaceiotccaileceaniolae means a

Remarks of Sen. Patrick Leahy, National

Defense Authorization Act For Fiscal

Year 2007, Conference Report, Congres-

sional Record (Sept. 29, 2006) (available

at http://leahy.senate.gov/press/200609/

092906b.html)

S. Rep. No. 97-58 (1981)

IJMINISTRATIVE AND EXECUTIVE

MATERIALS

Dep't of the Air Force, General Counsel

Guidance Document: Posse Comitatus,

Off. Gen. Counsel (Sept. 2003)

DoD Directive 3025.12, Military Assistance

for Civil Disturbances (Feb. 4, 1994)

DoD Directive 5525.5, DoD Cooperation

with Civilian Law Enforcement Officials

(Jan. 15, 1986)

Effect of the Posse Comitatus Act on

Proposed Detail of Civilian Employee to

the National Infrastructure Protection

Center, 22 Op. Off. Legal Counsel 103

(1998)

vl

TABLE OF AUTHORITIES—Continued

REPORTS AND ARTICLES

Center for Law and Military Operations,

Domestic Operational Law Handbook for

Judge Advocates (2006)

Charles Doyle, The Posse Comitatus Act

and Related Matters: The Use of the

Military to Execute Civilian Law

(Congressional Research Service Report

for Congress, 2000)

Clarence I. Meeks III, Jllegal Law

Enforcement: Aiding Civil Authorities in

Violation of the Posse Comitatus Act, 70

Mil. L. Rev 83 (1975)

David E. Engdahl, Soldiers, Riots and

Revolution: The Law and History of

Military Troops in Civil Disorders, 57

eg ee Pe ES gg | Renee nna

James P. O’Shaughnessy, The Posse

Comitatus Act: Reconstruction Politics

Reconsidered, 13 Am. Crim. L. Rev. 703

(1976)

John J. Pavlick, Jr., The Constitutionality

of the U.C.M.J. Death Penalty Provt-

sions, 97 Mil. L. Rev. 81 (1982)

Stephen Young, The Posse Comitatus Act

of 1878: A Documentary History (2003) ...

William H. Taft IV, The Role of the DoD in

Civilian Law Enforcement, Def. 83, Mar.

vll

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Democracy Now! The War and Peace

Report: Is Posse Comitatus Dead? US

Troops on US Streets (radio broadcast

Oct. 7, 2008) (transcript available at

http://www.democracynow.org/2008/10/7

/us_army_denies_unit_will_be) 20-21

Letter from Chuck Canterbury, National

President of the Fraternal Order of

Police, to Senator Patrick Leahy (Apr.

30, 2007) (available at http://leahy.

senate.gov/issues/InsurrectionAct/Frater

nalOrderofPolice.pdf)

Letter from Governors Michael Eas!ey and

Mark Sanford to Senators Patrick Leahy

and Christopher Bond (Feb. 5, 2007)

(available at http:/Aicahy.senate.gov/

issues/InsurrectionAct/GuardGovernors

Association. pdf)

Letter from Sheriff Ted Kamatchus,

President of the National Sheriffs’

Association, to Senators Patrick Leahy

and Christopher Bond (Feb. 20, 2007)

(available at http:/leahy.senate.gov/

press/200702/NationalSheriffsAssociation.

Eric Schmitt & Thom Shanker, Military

May Propose an Active-Duty Force for

Relief Efforts, N.Y. Times, October 11,

Sam Howe Verhovek, Pentagon Halts

Drug Patrols After a Killing at the

Border, N.Y. Times, July 31, 1997

IN THE

Supreme Court of the United States

No. 08-368

ALI SALEH KAHLAH AL-MARRI,

Petitioner,

Ts

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 RETIRED MILITARY OFFICERS

AND THE NATIONAL INSTITUTE OF

MILITARY JUSTICE AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICI CURIAE '

Amici are retired military officers who have spent

their careers commanding troops at home and over-

‘The parties have consented to the filing of this brief. Coun-

sel of record for all parties received notice at least 10 days prior

to the due date of the intention of the aynici curiae to file this

brief. No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

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

person other than the amici curiae or their counsel made a

monetary contribution to its preparation or submission.

2

seas and a nonprofit corporation organized to

advance the fair administration of military justice.

Amici have extensive experience with military

jurisdiction and the laws governing military activity.

Based on this experience, amici are uniquely posi-

tioned to address the harmful impact the Fourth

Circuit’s decision will have on the military. This

Court has recognized the value of the miulitary’s

perspective on questions relating to the military’s

ability to fulfill its mission to provide national secu-

rity. See Grutter v. Bollinger, 539 U.S. 306, 331

(2003). Amict’s interest in this case arises from their

commitment to preserve the character and strength

of the military and protect the relationship between

military personnel and civilians.

Brigadier General David M. Brahms served in the

Marine Corps from 1963 through 1988, with a tour of

duty in Vietnam. During the 1970s, he served as the

principal legal advisor for POW matters at Head-

quarters Marine Corps, and, in that capacity, he was

directly involved in issues relating to the return of

American POWs from Vietnam. General Brahms

was the senior legal advisor for the Marine Corps

from 1985 through 1988 when he retired. He is

currently in private practice in California and was

formerly a member of the Board of Directors of the

Judge Advocates Association.

Rear Admiral Donald J. Guter was a line officer in

the United States Navy from 1970 through 1974.

After law school, he served in the Navy from 1977

until he retired in 2002. From June 2000 through

June 2002, Admiral Guter was the Navy’s Judge

Advocate General. Admiral Guter was inside the

Pentagon when it was attacked on September 11,

2001. Admiral Guter is now Professor of Law at

3

Duquesne University School of Law in Pittsburgh,

Pennsylvania.

‘Rear Admiral John D. Hutson was commissioned

in the United States Navy in 1969. After law school,

he served in the Navy from 1972 until he retired in

2000. From 1994 until 1996, Admiral Hutson served

as the Commanding Officer, Naval Legal Service

Office, Europe and Southwest Asia. Admiral Hutson

served as the Navy’s Judge Advocate General from

1997 until 2000. Admiral Hutson is now Dean and

President of Franklin Pierce Law Center in Concord,

New Hampshire.

Major General Antonio M. Taguba served in the

United States Army from 1972 through 2007. He

commanded infantry divisions in the United States,

Korea and Germany. General Taguba served as

Chief of Staff of the United States Army Reserve

Command; Deputy Commanding General (South),

First U.S. Army; and Deputy Commanding General

for Support, Third United States Army, based in

Kuwait. General Taguba led the initial investigation

of the United States military prison system in Iraq.

The National Institute of Military Justice (“NIMJ”)

is a District of Columbia nonprofit corporation

organized in 1991. Its overall purpose is to advance

the fair administration of military justice in the

Armed Forces of the United States. NIMJ also

participates actively in the military justice process,

through such means as the filing of amicus briefs,

commenting on proposed rule changes, as an

alternate official nongovernmental organization

observer to the military commissions at Guantanamo

Bay, Cuba, its website (www.nimj.org), and its

publications program. NIMJ's advisory board

includes law professors, private practitioners, and

4

other experts in the field, none of whom are on active

duty, but nearly all of whom have served as military

lawyers, several as flag and general officers.

Amici file this brief to point cut the importance of

questions raised by this case for the relationship

between military and civilian authorities in domestic

law enforcement activities, and to direct the Court’s

attention to (1) the statutory framework for the

military’s domestic activity including the Posse

Comitatus Act of 1878, 18 U.S.C. § 1385, and (2) the

negative consequences of a deviation from this frame-

work for the United States military and its relation-

ship with civilians. Based on their experience, amici

are very concerned that the military not be drawn

into civilian policing functions in the United States

for which it is not well trained, which will inevitably

lead to problems and detract from, and undermine its

support in performing, its primary function of fight-

ing and winning the nation’s wars.

PRELIMINARY STATEMENT AND

SUMMARY OF ARGUMENT

Since the founding of our country, civilian and

military leaders have supported limitations on the

use of the United States military for domestic law

enforcement. These limitations are an essential

component of the fundamental American tradition of

resisting military intrusion in civilian affairs. The

indefinite detention of Petitioner, a civilian lawfully

‘It is “one of the paramount principles for which the Revolu-

tionary War was fought: soldiers, needed and honored in war for

the valor and strength that turns back the nation’s enemies, are

never to be used against their civilian countrymen, no matter

how expedient their utilization might seem.” David E. Engdahl,

Soldiers, Riots and Revolution: The Law and History of Military

Troops in Civil Disorders, 57 lowa L. Rev. 1, 28 (1971).

5)

resident in the United States, in the Consolidated

Naval Brig in South Carolina, is contrary to the long-

standing limitations on military involvement in

domestic law enforcement and the fundamental tra-

ditions from which they arise.

Congress codified the prohibition on the use of the

military to execute domestic laws in the Posse

Comitatus Act of 1878 (“PCA”), explicitly making it

unlawful to “use any part of the Army as a posse

comitatus or otherwise to execute the laws.”

18 U.S.C. § 1385. The military detention of a civilian

lawfully residing in the United States is prohibited

by the PCA. Exceptions to the PCA can be and have

been made. Although Congress has _ legislated

exceptions to the PCA from time to time, it has

always done so expressly. When it enacted the

Authorization for the Use of Military Force (“AUMF”),

Pub. L. No. 107-40, 115 Stat. 224, upon which the

government relies to justify the military detention of

Petitioner, Congress created no such’ express

exception and none can be implied. The general

language of the AUMF neither overrules nor limits

the specific limitations imposed by the PCA on

military involvement in domestic law enforcement.

There is no clear statement of congressional intent to

set aside the PCA and permit the military detention

of Petitioner.

This Court has repeatedly recognized this nation’s

fundamental tradition of resistance to military par-

ticipation in civilian affairs.

The Founders envisioned the army as

a necessary institution, but one dangerous to

liberty if not confined within «ts essential

bounds....

6

In light of this history, it seems clear that

the Founders had no intention to permit the

trial of civilians in military courts, where

they would be denied jury trials and other

constitutional protections, merely by giving

Congress the power to make rules which

were ‘necessary and proper for’ the

regulation of the ‘land and naval Forces.’

Such a latitudinarian interpretation of these

clauses would be at war with the well-estab-

lished purpose of the Founders to keep the

military strictly within its proper sphere,

subordinate to civil authority.

Reid v. Covert, 354 U.S. 1, 23-24, 30 (1957) (plurality

opinion). In Ex parte Milligan, this Court held that if

it is possible in times of war to “substitute military

force for and to the exclusion of the laws, and punish

all persons, as [the executive] thinks right and

proper, without fixed or certain rules ... [then]

republican government is a failure, and there is an

end of liberty regulated by law.” 71 U.S. 2, 125

(1866). Even when Congress authorized martial law

in Hawaii during World War II, the Court held that it

did not intend to “exceed the boundaries between

military and civilian power” and, therefore, did not

authorize the trial of civilians by the military.

Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946).

The Court has also held that Congress had no

authority to pass a law authorizing the military trial

of civilian ex-soldiers for crimes committed during

service, noting that “[f]ree countries of the world have

tried to restrict military tribunals to the narrowest

jurisdiction deemed absolutely essential to maintain-

ing discipline among troops in active service.” United

States ex rel. Toth v. Quarles, 350 U.S. 11, 22-23

(1955).

7

The military itself has long held a strong prefer-

ence in favor of maintaining the PCA’s restrictions on

its participation in domestic law enforcement. There

are good reasons for this preference. First, the

military’s principal mission is to provide for the

national defense. The character and capabilities

necessary to succeed at this mission are different

from those required for the domestic detention of

civilians. Second, violations of the PCA could put

individual military personnel at risk of criminal or

civil liability. Finally, the military detention of civil-

ians undermines the necessary combination of trust

and distance between military personnel and civil-

ians. A dramatic departure from the PCA, such as

the military detention of civilians, has profound

implications for the future role of the military and its

relationship with civilians. History is replete with

examples of the danger inherent in permitting the

military to be routinely involved in domestic law

enforcement.

The Fourth Circuit overlooked the PCA and did not

consider the negative impact of its decision on the

military. In light of the PCA’s restrictions on the use

of the military to execute domestic laws and the

absence of an exception in the AUMF or elsewhere,

amici respectfully suggest that the Court reject the

Fourth Circuit’s reading of the AUMF as giving the

President authority to militarily detain Petitioner

and return Petitioner to civilian custody.

8

ARGUMENT

I. THE POSSE COMITATUS ACT PRO-

HIBITS THE MILITARY DETENTION OF

PETITIONER, NONE OF THE EXCEP-

TIONS TO THE PCA ARE APPLICABLE,

AND THE AUTHORIZATION FOR THE

USE OF MILITARY FORCE DID NOT

OVERTURN OR OTHERWISE LIMIT THE

PCA

The PCA explicitly limits the use of the military for

domestic law enforcement. It reflects a fundamental

tradition of our country.” Although there are excep-

tions to the PCA, they do not permit the detention of

Petitioner. The AUMF creates no new exception to

the PCA for domestic military detention of civilians,

and thus the PCA continues to apply and must be

followed.

Petitioner’s detention by the military is inconsis-

tent with the PCA. Petitioner was lawfully resident

in the United States when he was arrested by FBI

agents at his home in Peoria, Illinois. Criminal

charges were filed and Petitioner was in federal

custody in New York, and then Illinois, while prepa-

rations for a criminal trial in the Central District

of Illinois went forward. Eighteen months after

Petitioner’s arrest, the President ordered the Attor-

ney General to surrender Petitioner to the Secretary

of Defense. Petitioner was removed from civilian

‘An analysis of the PCA by the Departments of Defense and

Justice said: “The Act expresses one of the clearest traditions in

Anglo-American history: that using military power to enforce

the civilian law is harmful to both civilian and military inter-

ests.” Hearing on H.R. 3519 Before the Subcomm. on Crime of

the House Comm. on the Judiciary, 97th Cong. 16 (1981).

9

custody and transferred to military custody, despite

the continued availability of civilian courts and

detention. Petitioner remains in military custody

without charge or trial. The PCA’s limitations

prohibit such use of the military to detain Petitioner,

displacing civilian law enforcement authorities.

A. The PCA Limits the Use of the Military

for Domestic Law Enforcement

Congress passed the PCA in 1878 to restore the

traditional separation between the military anu civil-

ian authorities in domestic affairs that had come

undone during Reconstruction.’ After the Civil War,

troops were stationed throughout the South and were

used to enforce domestic laws, tamp down distur-

bances, and support the new governments in the ex-

Confederate states.” Use of the troops, however, also

“became a common method of aiding revenue officers

in suppressing illegal production of whiskey [and]

assisting local officials in quelling labor distur-

bances.” Clarence I. Meeks III, Illegal Law Enforce-

ment: Aiding Civil Authorities in Violation of the

Posse Comitatus Act, 70 Mil. L. Rev 83, 90 (1975).

Troops were also stationed at voting polls, and allega-

tions were made that they were used to frghten

people to prevent them from voting. See 5 Cong. Rec.

2114 (1877); 7 Cong. Rec. 3852, 4185 (1878). There

were allegations that the use of the military at polls

in the South contributed to an unfair victory for

Rutherford B. Hayes in the 1876 presidential elec-

“See United States v. Allred, 867 F.2d 856, 870 (5th Cir.

1989); see also Stephen Young, The Posse Comitatus Act of 1878:

A Documentary History xv (2003)

‘James P. O'Shaughnessy, The Posse Comitatus Act: Recon-

struction Politics Reconsidered, 13 Am. Crim. L. Rev. 703 (1976)

10

tion.” Representatives in Congress criticized the use

of the military as “wholly unnecessary and actually

hurtful” and “dangerous to the liberties of the

country.” 5 Cong. Rec. 2112, 2159 (1877). Senator

Benjamin Hill characterized the proper role of the

military as this: “The military never executes the

law. The military puts down opposition to the execu-

tion of the law when that opposition is too great for

the civil arm to suppress. ... Therefore, I say it

ought to be unlawful in all cases to talk about calling

upon the Army to execute the law.” 7 Cong. Rec.

4247 (1878). Military commanders joined members of

Congress in objecting to the assignment of domestic

law enforcement duties to the military. See 7 Cong.

Rec. 3579-3582 (1878).

The PCA is a landmark statute. Upon its passage,

it was said that Congress “had secured to the people

of this country the same great protection against a

standing army which cost a struggle of two hundred

years for the Commons of England to secure for the

British people.” 7 Cong. Rec. 4686 (1878). Legisla-

tive history from the original and later related

statutes makes clear that, with the PCA, Congress

sought to isolate the military from engaging in

domestic law enforcement activities. The PCA was a

response to specific objections arising during the

Reconstruction era, but it continues to “embod|[y] the

inveterate and traditional separation between the

military’s mission and civil law enforcement.” S. Rep.

No. 97-58, at 148 (1981); see also 127 Cong. Rec. 2005

* See Meeks, at 90-91. The military was dispatched to guard

the local boards of canvassers in South Carolina, Fionda and

Louisiana, and the results in each of these states were con-

tested. The award of their electoral votes to Hayes resulted in

his victory.

11

(1981) (PCA codifies the “important principle prohib-

iting military involvement in civil law enforcement.”).

The PCA is a criminal statute that provides:

Whoever, except in cases and under circum-

stances expressly authorized by the

Constitution or Act of Congress, willfully

uses any part of the Army or Air Force as a

posse comitatus’ or otherwise to execute the

laws’ shall be fined under this title or

imprisoned not more than two years, or both.

18 U.S.C. § 1385.”

The PCA has been supplemented by other statutes,

most significantly 10 U.S.C. §§ 371-382, which au-

thorize military assistance to civilian law enforce-

ment under specific circumstances. Congress was

explicit that this military assistance not include

" The term “posse comitatus” means “power of the county,”

and at common law it refers to the population over vhe age of 15

that a sheriff could call upon to join his posse for the purposes of

responding to violations of laws or civil disorders. See United

States v. Yunis, 681 F. Supp. 891, 891 n.1 (D.D.C. 1988) (cita-

tions omitted), aff'd, 924 F.2d 1086 (D.C. Cir. 1991).

* The term “execute the laws” applies to tasks ordinarily as-

signed to civilian government or solely for the purpose of civilian

government. Charles Doyle, The Posse Comitatus Act and

Related Matters: The Use of the Military to Execute Civilian Law

37 (Congressional Research Service, 2000).

* DoD Directive 5525.5, DoD Cooperation with Civilian Law

Enforcement Officials (Jan. 15, 1986), implements the PCA and

applies its restrictions to the Navy and the Marine Corps in

addition to the Army and the Air Force. As used in this brief,

the “military” includes the Army, Air Force, Navy, Marines,

their Reserve components, and the National Guard when in

federalized status. It does not include the Coast Guard, or the

National Guard when state-controlled.

12

“direct participation” by the military in civilian law

enforcement such as “seizure, arrest, or other similar

activity.” 10 U.S.C. § 375. Unless otherwise author-

ized, arrests, apprehensions, and similar activities

are “per se prohibited as posse comitatus violations.”

Dep’t of the Air Force, General Counsel Guidance

Document: Posse Comitatus, Off. Gen. Counsel (Sept.

2003). Military assistance is also prohibited if it will

impair military preparedness. 10 U.S.C. § 376.

Together, the original statute, the supplementing

statutes, and the Department of Defense Directive

form the core sources for PCA analysis and applica-

tion.

This Court and others have recognized the PCA as

a limitation on the use of military forces for civilian

law enforcement. See Youngstown Sheet & Tube Co.

vu. Sawyer, 343 U.S. 579, 644-45 (1952) (“Congress

has forbidden [the President] to use the army for the

purpose of executing general laws except when

expressly authorized by the Constitution or by Act of

Congress.”) (citing to the PCA). Moreover, “traditional

American insistence on exclusion of the military from

civilian law enforcement” influences the interpreta-

tion of the PCA by the courts. United States uv.

Walden, 490 F.2d 372, 376 (4th Cir. 1974). In those

instances when the courts have heid that civilian-

military interaction does not violate the PCA, one or

more of the following three constraints were present.

See United States v. Yunis, 924 F.2d 1086, 1094 (D.C.

Cir. 1991); see also Effect of the Posse Comitatus Act

on Proposed Detail of Civilian Employee to the

National Infrastructure Protection Center, 22 Op.

Off. Legal Counse) 103 (1998). First, there was no

“direct active use” of troops to execute the laws,

including making arrests, seizing evidence, searching

persons or buildings, interviewing witnesses,

13

pursuing escaped civilian prisoners, and searching

for suspects. United States v. Red Feather, 392 F.

Supp. 916, 923-25 (D.S.D. 1975); see United States v.

Yunis, 681 F. Supp. 891, 892 (D.D.C. 1998), aff'd, 924

F.2d 1086 (D.C. Cir. 1991). Second, civilians were

not subject to the “exercise of military power which

was regulatory, proscriptive, or compulsory in

nature.” United States v. McArthur, 419 F. Supp.

186, 194-95 (D.N.D. 1975), affd sub nom., United

States v. Casper, 541 F.2d 1275 (8th Cir. 1976); see

also United States v. Bacon, 851 F.2d 1312, 1313

(11th Cir. 1988). Third, the use of military personnel

did not pervade the activities of civilian law

enforcement. See Hayes v. Hawes, 921 F.2d 100, 102-

03 (7th Cir. 1990); Yunis, 681 F. Supp. at 892.

None of those three constraints is present with

respect to the military detention of Petitioner. First,

military troops are directly and actively used to

detain Petitioner in the U.S. Consolidated Naval Brig

in South Carolina. Second, Petitioner is subject to

compulsory military power as he remains in the brig

indefinitely and without charge or trial. Third,

military personnel have completely displaced and

replaced civilian law enforcement in the detention of

Petitioner, a lawful resident of the United States

already in civilian custody for eighteen months and

scheduled for trial in federal district court. The PCA

clearly prohibits the use of the military to detain

Petitioner.

B. None of the Exceptions to the PCA

Permits the Military Detention of

Petitioner

The PCA has been characterized as “absolute in its

command and explicit in its exceptions.” Wrynn v.

United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961).

14

By the text of the PCA, express constitutional or

statutory exceptions are the only permissible ways

the military can participate in domestic law enforce-

ment. None of the exceptions permits the military

detention of a civilian, a lawful resident of the

country, in the United States.

The most significant statutory exceptions to the

PCA allow specific types of military assistance to

civilian law enforcement, most notably in support of

efforts to combat drug trafficking."” These exceptions

permit the military to provide civilian law enforce-

ment authorities with (i) information collected during

the normal course of military operations, (ii) equip-

ment and facilities, (iii) training and advice, (iv)

under specific circumstances, operation and mainte-

nance of the equipment and facilities made available,

and (v) use of military equipment and facilities

outside of the United States in certain emergency

situations. 10 U.S.C. §§ 371-374.'"' None of these

exceptions applies in this case.

The Department of Defense in its regulations

asserts two significant constitutional exceptions to

See H.R. Rep. No. 97-71 (1981), as reprinted in 1981

U.S.C.C.A.N. 1785.

' Other statutory exceptions include the Insurrection Act, 10

U.S.C. §§ 331-335 (permits the military to assist civil authori-

ties with civil disturbances under certain circumstances);

5 U.S.C. App. 3 § 8(g) (Inspector General not limited by PCA in

carrying out audits and investigations); 16 U.S.C. § 23 (Secre-

tary of the Army may detail troops to protect Yellowstone

National Park at request of the Secretary of the Interior);

18 U.S.C. § 3056 (Director of the Secret Service may request

assistance from the military to protect the President); and 22

U.S.C. § 461 (President may use military to stop ships that are

in violation of the Neutrality Act)

15

the PCA. See DoD Directive 5525.5, DoD Cooperation

with Civilian Law Enforcement Officials, Encl. 4

(Jan. 15, 1986). First, they assert that “emergency

authority” exists to use military forces when local

authorities are unable to provide protection for life or

property and restore federal government function

and public order, and the military may engage in

“protection of Federal property and functions” when

local authorities are unable to do so. See 32 C.F.R.

§ 215.4c(1); DoD Directive 3025.12, Military Assis-

tance for Civil Disturbances (Feb. 4, 1994). Second,

they assert that military forces may be used for the

“primary purpose of furthering a military or foreign

affairs function,” such as investigations related to

enforcement of the Uniform Code of Military Justice

or protection of Department of Defense personnel.

See DoD Directive 5525.5, Encl. 4. Neither exception

applies to the seizure and detention of a lawful

resident. In summary, the PCA governs, and none of

its exceptions applies.

C. The AUMF Does Not Create a New

Exception to the PCA

The Fourth Circuit majority held that Petitioner

could be detained by the military because of the

authority Congress gave to the President in the

AUMF. However, the PCA and its prohibitions on

the use of the military for domestic law enforcement

were not taken into consideration by the Fourth

Circuit.” The AUMF creates no new exceptions to

“ Only two of the separate en banc opinions of the Fourth

Circuit make even passing reference to the PCA. Judge Motz

notes the now-repealed 2007 amendments to the Insurrection

Act providing the President with the authority to deploy armed

forces at home to protect the country in the event of terrorist

attacks or incidents were “notwithstanding the Posse Comitatus

16

the PCA. It is a “fundamental canon of statutory

construction that the words of a statute must be read

in their context and with a view to their place in the

overall statutory scheme.” Davis v. Mich. Dep’t of

Treasury, 489 U.S. 803, 809 (1989). The AUMF

neither explicitly creates an exception to nor

implicitly repeals the PCA, and therefore the specific

provisions of the PCA continue to govern the

military’s domestic behavior.

First, although the AUMF pertains to military

action, nothing in its text refers to the PCA or makes

the PCA inapplicable. Second, the Court has made

clear that there is a strong presumption against

implied repeals of prior federal laws. See J.E.M. AG

Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S.

124, 137 (2001) (“overwhelming evidence is needed

for repeal by implication”); see also Matsushita Elec.

Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996). This

rule is nearly absolute; Congress acts with knowledge

of its prior enactments, and this Court has repeatedly

made clear that, where Congress wants to repeal its

prior actions, it must “expressly contradict” its earlier

act or it must be “absolutely necessary” for the act to

be interpreted as a repeal “to have any meaning at

Act” but “military control cannot subsume the constitutional

rights of civilians. Rather, the Supreme Court has repeatedly

catalogued our country’s “deeply rooted and ancient opposition .

. . to the extension of military control over civilians.” Al-Marri

v. Pucciarelli, 534 F.3d 213, 251-52 (4th Cir. 2008) (citation

omitted). Judge Wilkinson cites the PCA in support of the

statement that “[t]he American constitutional tradition is not

consonant with the prospect of martial law in other than

necessitous circumstances.” Jd. at 312. However, he disregards

the importance and effect of the PCA when he goes on to state

that the judiciary should not interfere with democratic efforts to

ward off the dangers of war.

17

all.” Natl Ass’n of Homebuilders v. Defenders of

Wildlife, 127 S. Ct. 2518, 2532 (2007); see also Astoria

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104,

109 (1991) (“(Llegislative repeals by implication will

not be recognized .. . ‘absent a clearly expressed

congressional intention to the contrary.”) (quoting

Morton v. Mancari, 417 U.S. 535, 551 (1974));

Posadas v. Nat'l City Bank of N.Y., 296 U.S. 497, 503

(1936) (“(Tlhe intention of the legislature to repeal

must be clear and manifest.”). That rule should have

special force when the prior law purportedly being

repealed is so fundamental to our traditions. The

AUMF is absolutely silent on the issue of military

involvement in domestic law enforcement, as well as

the issue of detention more broadly. It neither

expressly contradicts nor is irreconcilable with the

PCA. Moreover, there is simply nothing in the

legislative history of the AUMF to indicate Congress

had any intent to repeal any portion of the PCA.

This Court has repeatedly made clear that where a

law applies to a specific issue - as the PCA does to

military involvement in domestic law enforcement —

others laws of a more general scope will not interfere

with the operation of the specific law, generalia

specialibus non derogant. See Morales v. TWA, Inc.,

504 U.S. 374, 384 (1992) (“[I]t is a commonplace of

statutory construction that the specific governs the

general.”); see also Radzanower v. Touche Ross & Co.,

426 U.S. 148, 153 (1976) (“[A] statute dealing with a

narrow, precise, and specific subject is not submerged

by a later enacted statute covering a more general-

ized spectrum.”). Applying the general language of

the AUMF authorizing the use of the military would

“undermine limitations” created by the more specific

provision, the PCA. See Varity Corp. v. Howe, 516

U.S. 489, 511 (1996). Given the founding historical

18

tradition behind the PCA and the explicit nature

of existing exceptions, the AUMF’s broad language

about “necessary and appropriate force,” and its

silence on domestic military action do not create an

exception to the specific language of the PCA. To

read it to do so would be contrary to established

principles of statutory construction.

Even apart from the express statutory framework

of the PCA, an exception to the fundamental

principles it embodies would require a clear state-

ment, which the AUMF does not provide. When a

“weighty and constant value” such as the divisions

between the military and civilian spheres is at issue,

“the requirement of clear statement assures that the

legislature has in fact faced, and intended to bring

into issue, the critical matters involved in the judicial

decision.” See Astoria Fed. Sav. & Loan, 501 U.S. at

109 (quoting United States v. Bass, 404 U.S. 336, 349

(1971)). The need for a clear statement is particularly

pressing when the liberties of the individual are at

stake. See Gutknecht v. United States, 396 U.S. 295,

306-07 (1970) (“Where the liberties of the citizen are

involved .. . we will construe narrowly all delegated

powers that curtail or dilute them.”); Ex parte Endo,

323 U.S. 283, 300 (1944) (“[Wle must assume, when

asked to find implied powers in a grant of legislative

or executive authority, that the law makers intended

to place no greater restraint on the citizen than was

clearly and unmistakably indicated by the language

they used”). This Court has consistently required,

at a minimum, a clear statement of congressional

intent when the Executive wants to expand military

authority such that it might depart from the

fundamental division between military and civilian

authorities. See Endo, 323 U.S. at 300 (applying

clear statement requirement to prohibit domestic

19

military detention of Japanese-American citizen);

Duncan, 327 U.S. at 304, 315 (applying clear

statement requirement to reject claim of statutory

authorization for military trials of civilians);

Youngstown Sheet & Tube Co., 343 U.S. at 588-89

(requiring explicit congressional authorization for

military seizure of steel mills); see also Brown uv.

United States, 12 U.S. (8 Cranch) 110 (1814) (finding

the declaration of war against Great Britain and

authorization of military force did not imply

authority to seize property of enemy aliens in the

United States and Congress would have to explicitly

authorize this kind of departure from the “modern

law of nations”). There is no clear statement by

Congress that the Court can look to as authorizing

the military detention of Petitioner.

The presumption against implied repeals, the rule

that specific statutes govern more general ones, and

this Court’s expectation of a clear statement by Con-

gress in cases of this type set the bar extremely high

for finding that the AUMF created an exception to

the PCA that would permit the military detention of

Petitioner. There is nothing in the AUMF that can

overcome this bar. Absent an express exception to

the PCA, Petitioner should not be detained by the

military.

Il. DETENTION OF A LAWFUL RESIDENT

IN THE UNITED STATES IS_ AN

UNWELCOME DEPARTURE FOR THE

MILITARY AND DETRIMENTAL TO THE

RELATIONSHIP BETWEEN MILITARY

PERSONNEL AND CIVILIANS

Amici have had responsibility for the legal affairs

of the military, and based on their experience, believe

it is important to prevent the military from being

20

drawn into civilian policing and justice functions.

The quality and character of the United States

military would be undermined by a more extensive

involvement in domestic law enforcement. The PCA

serves to permit certain types of military assistance

while avoiding the risks of military involvement in

domestic law enforcement, and its limitations should

be observed for the good of the military and the

country.

Military officials have historically expressed con-

cerns about any involvement in domestic law enforce-

ment. See 7 Cong. Rec. 3579-3582 (1878). During

hearings in 1981 on proposed supplements to the

PCA allowing specific types of military assistance to

civilian law enforcement in support of efforts to

combat drug trafficking, the General Counsel of the

Department of Defense strongly resisted the diver-

sion of military personnel to nonmilitary functions

and expressed a firm opposition to the use of troops

in arrests and seizures. See Hearing on H.R. 3519

Before the Subcomm. on Crime of the House Comm.

on the Judiciary, 97th Cong. 6, 19-20 (1981). The

military became more comfortable with the supple-

ments only after Congress made it explicit there

would be no direct military involvement in domestic

law enforcement. See William H. Taft IV, The Role of

the DoD in Civilian Law Enforcement, Def. 83, Mar.

1983, at 6. In response to a question about the

applicability of the PCA to United States Northern

Command, the training of an active Army unit in the

United States for on-call response to domestic

emergencies and disasters, Colonel Michael Boatner

said, “It absolutely governs in every instance. We are

not allowed to help enforce the law. We don’t do that.

... {I]f we review the requirement that comes to us

from civil authority and it has any complexion of law

21

enforcement whatsoever, it gets rejected and pushed

back, because it’s not lawful.” Congress has echoed

the military’s concerns."

Congress and the public at large have expressed

concerns about departures from the PCA. A recent

potential departure arose in Section 1076 of the

Defense Authorization Act for Fiscal Year 2007. Sec-

tion 1076 modified the Insurrection Act’’ from a

narrow authorization for the President to declare a

form of martial law during violent insurrections,

when state and local authorities restst lawful orders,

to a broader grant allowing the President to use the

military domestically to restore public order and

enforce the laws of the United States when, as a

result of a natural disaster, epidemic, or other serious

public health emergency, terrorist attack or incident,

or other condition, the President determines that

domestic violence has occurred to such an extent to

‘Democracy Now! The War and Peace Report: Is Posse

Comitatus Dead? US Troops on US Streets, (radio broadcast

Oct. 7, 2008) (available at http://www.democracynow.org/2008/

10/7/us_army_denies_unit_will_be).

‘' See, e.g., Senator Barry Goldwater’s summary of the con-

cerns about changes to the PCA during a debate over the use of

the military to support anti-drug efforts: “Mr. President, for

more than 100 years, during two World Wars and many other

armed conflicts when the dominance of military power was

essential for the survival of our way of life, there has been no

need to amend that statute, because the concept embodied in

that statute is the essential American ideal that the Armed

Forces are maintained to prevent foreign aggressors from im-

posing their system of government upon us, and not to impose

upon our own people the domestic laws of this Nation. We have

civilian forces, known as police, to enforce our domestic laws.”

132 Cong. Rec. 26448 (1986).

" 10 U.S.C. §§ 331-335

22

prevent public order." Although this represented a

potentially dramatic expansion of the President’s

ability to use the military under the Insurrection Act

for domestic law enforcement, Senator Patrick Leahy

said the change “was just slipped in the defense bill

as a rider with little study. Other congressional

committees with jurisdiction over these matters

had no chance to comment, let alone hold hearings

on, these proposals.”"' Senator Leahy warned that

“{uJsing the military for law enforcement goes against

some of the central tenets of our democracy.”” The

National Sheriffs’ Association said the change

“undermines the American tradition manifested under

the original Insurrection Act of 1807 and the Posse

Comitatus Act of 1878 (18 U.S.C. § 1385) which

helped to enforce strict prohibitions on military

involvement in domestic law enforcement.”” The

National Governors Association said “[t]lhe changes

made in Section 1076 . . . place the safety and welfare

of citizens in jeopardy and should be repealed. rhe

Fraternal Order of Police said the Insurrection Act

'° National Defense Authorization Act, 2007, Pub. L. No. 109-

364, § 1076, 120 Stat. 2083, 2095 (2007).

Remarks of Sen. Patrick Leahy, National Defense Authori-

zation Act for Fiscal Year 2007, Conference Report, Congres-

sional Record (Sept. 29, 2006) (available at http:/Aeahy.senate.

yov/press/2006-9/-92906b. html).

~ oe

’ Letter from Sheriff Ted Kamatchus, President of the

National Sherifts’ Association, to Senators Patrick Leahy and

Christopher Bond (Feb. 20, 2007) (available at http:/Aleahy

senate.gov/press/200702/NationalSheriffsAssociation. pdf).

“ Letter from Governors Michael Easley and Mark Sanford to

Senators Patrick Leahy and Christopher Bond (Feb. 5, 2007)

(avatlable at http:/leahy.senate.gov/issues/InsurrectionAct/Guard

GovernorsAssociation.pdf).

23

was “a narrow and specific exception to the proud

tradition of our nation to prohibit the use of the

military to enforce domestic laws” and “[s]hort of an

armed and active insurrection, our military personnel

should not be used to displace State and local law

enforcement.”" When Congress took notice of the

extent of the change and the potential for the use of

the military in domestic law enforcement, it asserted

its commitment to the PCA and repealed Section

1076 in its entirety, restoring the original Insurrec-

tion Act of 1807.”

Separation from domestic law enforcement activi-

ties is also important to preserve the apolitical

nature of the military. In discussing the circum-

stances that would make it possible for the military

to assist with the response to an event like Hurricane

Katrina, Admiral Timothy Keating said pre-existing

criteria such as severity and level of damage could

help remove politics from the decision, and ensure

“(t]he success or failure of our effort won’t depend on

the political dealings between the governors and the

president. . . . We'll just get a mission and we'll

execute it.”- Admiral Keating expressed wariness

about a role for the military in law enforcement and

also concern for how doing so fit with the civilian

view of the role of the military, saying “I don’t think

* Letter from Chuck Canterbury, National President of the

Fraternal Order of Police, to Senator Patrick Leahy (Apr. 30,

2007) (available at http:/Neahy.senate.gov/issues/Insurrection

Act/FraternalOrderof?folice.pdf).

“ National Defense Authorization Act, 2008, Pub. L. No. 110-

181, § 1068, 122 Stat. 3, 14 (2008).

~ Eric Schmitt & Thom Shanker, Military May Propose an

Active-Duty Force for Relief Efforts, N.Y. Times, October 11,

2005.

24

the American people writ large are anxious to have

. : 992

active-duty forces in a law enforcement role.”“

The military, of course, is not organized for the

purposes of administering justice or engaging in

domestic police work, but for the purpose of fighting

and winning the country’s wars. See Center for Law

and Military Operations, Domestic Operational Law

Handbook for Judge Advocates 428 (2006); see also

United States ex rel. Toth, 350 U.S. at 17 (“Unlike

courts, it is the primary business of armies and

navies to fight or be ready to fight wars should the

occasion arise. . .. ‘To the extent that those

responsible for performance of this primary function

are diverted from it by the necessity of trying cases,

the basic fighting purpose of armies is not served.”)

See Chappell v. Wallace, 462 U.S. 296, 304 (1983)

(describing military life as needing “unhesitating and

decisive action by military officers and equally

disciplined responses by enlisted personnel”). The

military is not trained to balance society’s interests in

punishment against the need for fairness or an

individual’s right to due process. These are not its

core functions; they are the functions of the civilian

justice system, which has successfully handled cases

involving suspected terrorists. See, e.g., United

States v. Rahman, 189 F.3d 88 (2d Cir. 1999); United

States v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2002).

The detention of lawful United States residents is

not contemplated in the military’s regulations or

anticipated in the training of military personnel. The

differences in skills and training were noted during a

Senate debate about the use of the military in anti-

drug domestic law enforcement. “The Armed Forces

ae:

25

have not, and should not be, trained and equipped to

be customs agents. Ground troops have not studied

how to pick out the drug smuggler coming across a

border hidden among a group of law-abiding Ameri-

can citizens. Combat personnel have not been trained

to conduct searches of people and belongings in

accordance with constitutional safeguards because, in

a war zone, those safeguards do not exist on foreign

soil.” 132 Cong. Rec. 26448 (1986). Instead, military

manuals describe the importance of the constitu-

tional and historical traditions of restricting the

military role in civilian law enforcement. See Center

for Law and Military Operations, at 430; see also DoD

Directive 5525.5.

The military’s role of providing for the national

defense is not consistent with the domestic law

enforcement task of detaining lawful residents in the

United States, and the military is therefore not

adequately prepared for such a task. This lack of

preparation and training may also pose a problem for

individual military personnel, who might be subject

to tort liability. During the debates in Congress over

the adoption of statutes supplementing the PCA in

1981, a proposal to allow military personnel to search

and seize was criticized on a number of grounds

including that it may subject soldiers to civil tort

liability. See 127 Cong. Rec. 15671 (1981). Military

personnel, even if acting under orders, might face

criminal and civil liability if their actions were an

unlawful violation of the PCA.

Military detention of civilians lawfully resident in

the United States risks increased conflict between

the military and civilians.”’ Avoidance of military-

~ In 1997, marines on an authorized drug-surveillance mis-

sion in Texas shot and killed a civilian teenager tending to his

26

civilian conflict is a longstanding national goal and

an important consequence of the PCA. The “trust

relationship between civilian society and the mili-

tary” has been characterized as “a cornerstone of our

system of government.” John J. Pavlick, Jr., The

Constitutionality of the U.C.M.J. Death Penalty

Provisions, 97 Mil. L. Rev. 81, 119 (1982). An injury

to the “relationship between the military and civilian

communities” can make “it more difficult for service

members to obtain needed local support.” United

States v. Pirraglia, 24 M.J. 671, 672 (A.C.M.R. 1987).

This Court has recognized that in many ways, the

military is “a specialized society separate from civil-

ian society.” Parker v. Levy, 417 U.S. 733, 743 (1974).

And the differences “create ‘particular tensions when

the military and civilian realms conjoin.” Berry v.

Bean, 796 F.2d 713, 717 (4th Cir. 1986) (quoting

Serrano Medina v. United States, 709 F.2d 104, 107

(1st Cir. 1983)). The effort to avoid confrontation be-

tween military personnel and civilians is illustrated

by the fact the military does not have the required

affirmative statutory grant from Congress to arrest

civilians, although other federal bodies, such as the

U.S. Forest Service, do. See United States v.

Moderacki, 280 F. Supp. 633, 637 (D. Del. 1968).

During congressional debates over proposed

supplements to the PCA, there was concern that even

though direct involvement was prohibited, a soldier

might end up engaged in a “physical confrontation

family’s goat herd. There was considerable public outcry, prose-

cutors attempted to bring criminal charges against the marines

involved, and the military’s anti-drug operations along the

Mexican border were suspended. The incident demonstrates

the msks of military involvement in domestic law enforcement

See Sam Howe Verhovek, Pentagon Halts Drug Patrols After a

Killing at the Border, N.Y. Times, July 31, 1997

27

with civilians.” See 127 Cong. Rec. 15669-15670

(1981). The then General Counsel of the Department

of Defense said “it is the arrests and seizures .

putting, really, into a confrontation, an immediate

confrontation, the military and a violator of a civilian

statute, that causes us the greatest concern.”

Hearing on H.R. 3519 Before the Subcomm. on Crime

of the House Comm. on the Judiciary, 97th Cong. 30

(1981). Detention of a civilian is inconsistent with

the military’s goal of limiting confrontation with

civilians. Use of the military to enforce laws against

civilians could have wide-ranging future implications,

including undermining civilian support for the

military.

The Fourth Circuit’s affirmation of the military

detention of Petitioner, lawfully resident in the

United States and already in the civilian justice

system and in the custody of domestic law enforce-

ment at the time of his military detention, is contrary

to the PCA’s limitations on the use of the military for

domestic law enforcement. It is inconsistent with the

character and role of the military and creates

undesirable tension between military personnel and

civilians. The tradition enshrined in the PCA evolved

out of a desire to stop government abuses of private

individuals, and a failure to protect this tradition

weakens the democratic system, the military, and the

relationship between the two.

28

CONCLUSION

For the foregoing reasons, the Court should reverse

the decision below.

Respectfully submitted,

THOMAS B. WILNER

Counsel of Record

NEIL H. KOSLOWE

AMANDA R. KOSONEN

SHEARMAN & STERLING LLP

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 508-8000

January 28, 2009 Counsel for Amict Curiae