Chapter 15

Criminal Procedure in war Time

Chapter Outline

I. History of Criminal Procedure in Wartime

II. Surveillance and Terrorism

A. Tier 1: “Real time” electronic surveillance

B. Tier 2: Surveilling stored electronic communications

C. Tier 3: Secret “Caller ID”

III. “Sneak and Peek” Searches in Terrorism cases

IV. Detention of Terrorism Suspects

A. Balancing security and rights after 9/11

B. Detaining citizens after 9/11

V. Right to Counsel of Terrorist Suspects

VI. Terrorism trials by Military Courts after 9/11

A. Sources of military commission authority

B. Jurisdiction of military commissions

C. Trial proceedings of military commissions

Chapter Main Points

ü The balance between government power and individual liberty and privacy always tips toward more power and less liberty and privacy during national emergencies.

ü Since 9/11, the government has shifted its primary goal from gathering evidence to prosecute terrorists for their crimes to gathering intelligence to prevent their future attacks.

ü The USA Patriot Act modifies in the government’s favor (but doesn’t eliminate) the constitutional balance between government power and individual privacy and liberty.

ü The Patriot Act adds terrorism crimes to the list of “serious crimes” Congress has made eligible for electronic surveillance and “sneak and peek” searches..

ü The President’s power to detain suspected terrorists is clear. Decisions about how long and under what conditions they can be detained, and whether there are different rules for citizens and non citizens are working their way through the courts right now.

ü Decisions about the extent of suspects’ right to a lawyer, under what conditions and for what purposes the right exists, and whether the rules are different for citizens and non citizens are working their way through the courts right now too.

ü Suspected terrorists can be tried either for crimes in ordinary courts or for war crimes in special military courts.

ü Presidents are authorized to establish military courts to try anyone suspected of war crimes; President Bush’s order creating military courts after 9/11 limits their jurisdiction to trials of non citizens.

ü Trials in military courts aren’t bound by the constitutional requirements that apply to criminal trials in ordinary courts; but the Department of Defense has guaranteed to defendants in 9/11 military court proceedings most of the rights defendants enjoy in ordinary criminal trials.

***

“As terrible as 9/11 was, it didn’t repeal the Constitution.

Judge Rosemary Pooler, November 17, 2003 (Hamblett 2003, 12)

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.

Thomas Jefferson, September 20, 1810 (1904, I:146)

The law is not dead, but sleepeth; the Constitution is eclipsed, but the dark…which intercepted its light…will soon pass away, and we shall again behold the glorious luminary shining forth in all its original splendor.

Edward Livingston, 1815 (Gayarré 1903, 601)

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances….

Ex Parte Milligan, 1866

***

We end our journey through the criminal process the way we began—by looking at the balance between government power and individual liberty and privacy. But this time, we’re going to look at the balance when it’s most stressed—during emergencies. We’re all familiar with governors who declare state emergencies during floods and fires, and call out the state National Guard to enforce government orders to stay out of the danger areas or to leave them (even their homes). Even local governments can declare emergencies and take extraordinary measures. For example, if you live in Minnesota, the city or town government orders us not to park on odd or even numbered sides of the street between certain hours so the plows can remove the snow. The simple lesson of these examples is that emergency times call for recalibrating the balance between government power and individual liberty and privacy. The balance tips to expanding government power and limiting individual liberty and privacy.

But emergency powers are limited by two conditions:

1. Necessity. Government can exercise extraordinary power only when and to the extent it’s absolutely needed to protect the people from the dangers created by the emergency.
2. Temporary nature. Government has to give up its extraordinary power as soon as the emergency’s over.

History of Criminal Procedure in warTime

In floods, fires, snow emergencies and the like, it’s easy to apply the principles because the emergencies are easy to define (our senses clearly tell us the fires, floods, and snow is here); the responses to them are widely known and followed (build fire walls and levies; plow the snow); and it’s easy to tell when they’re over (we can see the fires and floods have stopped, and the snow’s gone or at least they’re under control).

            What’s just been said about flood, fire, and snow emergencies used to be true of the subject of this chapter—wartime emergencies. Wars began when governments of one country declared war on another country. They were fought according to longstanding laws of war (rules written, understood, and agreed to by almost all the countries fighting the wars) (Avalon Project 2003). And, they ended when the countries signed peace treaties. Of course, not all nations always followed the laws of war, and even if they did, there was plenty of play in the joints for interpreting many of the rules. Also, at least since World War I, arguments were made that “new” wars were different from when the rules were made. In that and in World War II, the difference was that these were “total wars,” meaning the whole people, its government, and resources were mobilized for fighting and winning the war. The rules had to change to meet the changes brought about by total war.

            But even in total wars, most of the basics were the same as they’d always been. The enemies were identifiable foreign nations. Wars began with declarations of war (even if the declaration was by a “sneak attack” like the Japanese attack on Pearl Harbor). Wars ended when treaties were signed between the warring nations.

Then came the Cold War. International Communism crossed national boundaries. Communist spies came to the United States. They looked and acted like non Communists. They got jobs in strategic industries and government for the purpose of “boring from within” to learn secrets and pass them on to Communist governments. They became the feared “invisible enemy within.” Waging the Cold War required great emphasis on an old feature of war—intelligence (gathering information about the enemy).

Strong measures were taken to respond to the Communist “hidden enemy within.” These measures were of two types. First was the drive to get evidence either to prosecute and convict them of crimes or to find and deport them. Second, but far more important to the government was gathering intelligence to prevent further Communist infiltration and activity in the U.S. The emphasis on intelligence gathering for the purpose of prevention is very different from what we’ve studied in all the chapters in this book—balancing the need for getting evidence for criminal prosecution against the rights of individuals to fair proceedings.

This shift in emphasis from prosecuting terrorists for crimes to preventing them from committing more terrorist attacks is reflected in most of the measures being used (with some modifications) to respond to domestic and international terrorism. We’ll examine both the terrorism prevention and criminal prosecution elements of anti-terrorism laws, court decisions, and procedures before September 11, 2001 and then look at modifications made after September 11 by the USA Patriot Act (2001) (short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) and by a few court cases.

U.S. Attorney John Ashcroft (Attorney General’s Guidelines 2002, 2) clearly states the shift in the FBI’s role brought about by the September 11 attacks:

…The FBI…plays a central role in the enforcement of federal laws and in the proper administration of justice in the United States. In discharging this function, the highest priority is to protect the security of the nation and the safety of the American people against…terrorists and foreign aggressors. Investigations by the FBI are premised on the fundamental duty of government to protect the public against…those who would threaten the fabric of society through terrorism or mass destruction.

As I’m writing this, we’re limited to studying what these laws say, not to how they’re operating. Why are we limited? First, there’s the need for secrecy to prevent more terrorist attacks. Second, September 11, 2001 is too recent to have produced more than a few officially reported court cases to analyze. In other words, we have to face a problem (aggravated by current necessity) social scientists have recognized for nearly two centuries: the gap between the “law in books” (the way laws are supposed to work) and the “law in action” (the way the law really works).

Let’s look at what the anti-terrorism laws say and (as much as possible) how they’re operating regarding four issues you’ve already studied:

1. Surveillance (Chapter 3)

2. Search and seizure (Chapters 4-7)

3. Right to counsel (Chapter 12)

4. Trial (Chapter 13)

As you read about the five issues on the list, don’t forget that just as in ordinary criminal procedure, federal anti-terrorism procedure laws are based on the requirement in a constitutional democracy to balance the need for enough government power to prevent and prosecute terrorist acts and the rights of individuals guaranteed by the U.S. Constitution. For example, According to Charles Doyle (2002), Senior Specialist at the Congressional Research Center, the intelligence gathering provisions of the Patriot Act are

erected for the dual purpose of protecting the confidentiality of private telephone, face-to-face, and computer communications while enabling authorities to identify and intercept criminal communications. (2)

            One last point before we begin our journey through the national security law and its application to anti-terrorism. There’s a lot of chatter about the dramatic changes in the balance between power and liberty brought about by the USA Patriot Act. On one side, we’re warned that with the expanded government powers authorized by the Act, we’ll lose our liberty and privacy to our own government. On the other side we’re warned that without the expanded powers established in the Act we’ll lose our liberty and privacy to foreign terrorist organizations. You can decide for yourselves whether these extreme positions on the anti-terrorism laws is correct; or whether the changes in the law are modest adjustments to existing laws.

Surveillance and terrorism

You’re already familiar with law enforcement’s use of surveillance to gather evidence in criminal cases, especially illegal drug cases. You learned in Chapter 3 that according to the U.S. Supreme Court the Fourth Amendment ban on unreasonable searches and seizures doesn’t protect any of the following highly personal information from law enforcement officers who intercept communications and capture it without warrants or probable cause:

1. wiring informants for sound and secretly listening to conversations of private individuals (U.S. v. White, case excerpt Chapter 3)
2. telephone company lists of the numbers of outgoing calls (pen registers) (Smith v. Maryland, “Exploring Expectation of Privacy Further,” Chapter 3) and incoming calls (trap and trace) of a specific telephone.
3. bank records of inividuals’ financial dealings (U.S. v. Miller, “Exploring Expectation of Privacy Further,” Chapter 3).

The rationale for the Court’s decisions in these cases goes like this: The Fourth Amendment bans “unreasonable searches and seizures” by the government. But not all government actions are searches and seizures. If a government action isn’t a search or seizure the ban doesn’t apply at all. In other words, it’s left to government discretionary judgment whether to act. Here’s another “but:” Legislatures can control this discretion. And, Congress has decided to control government’s discretion not just in ordinary criminal cases but in anti-terrorism cases too. Let’s look at the legislation balancing government power to use electronic surveillance and individual privacy and how the USA Patriot Act has modified the general legislation.

Federal law has established a three-tiered system to balance government power and individual privacy in government surveillance. Tier 1 restricts government power and protects privacy most. Tier 2 authorizes more government power and provides less protection for individual privacy. Tier 3 authorizes the most government power and provides the least protection for individual privacy. The tiers are nothing new. They’ve been around since the 1960s.

Table 15.1

Three tiers of federal law balancing government power and individual privacy

Tier 1 Least government power Most privacy protection	Tier 2 More government power Less privacy protection	Tier 3 Most government power Least privacy protection
General ban on electronic surveillance, interception, and capture Exception: serious crime Detailed safeguards approved by courts	stored communications and transactions all crimes safeguards: court order, warrant or subpoena	Pen registers and trap and trace devices safeguard: certification by government without any court approval

 “Real time” electronic surveillance (Tier 1)

The first tier was established in 1968 by the Crime Control and Safe Streets Act (U.S. Code 2003, Title 18, Chapter 119, §§ 2510/2522). This Act provides the most protection for individual privacy by placing a general ban (§ 2511) on the interception of “wire, oral, or electronic communications” when they’re taking place. There’s a serious crime exception to the ban. (Serious crimes are defined as crimes punishable by death or more than one year in prison) (§2516). But, the exception comes attached with specific conditions aimed at protecting individual privacy. Here are a few of the more important conditions:

1. The U.S. Attorney General or other senior Department of Justice officials approve a law enforcement officers’ application for a court order from a federal judge to allow the officers to secretly intercept and capture conversations.

2. The judge may issue the order if the interception “may provide or has provided evidence of any offense punishable by death or imprisonment for more than one year.”

3. The application includes

a. a “full and complete statement of the facts and circumstances relied upon by the applicant, to justify the belief that an order should be issued.”

b. “A full and complete statement as to whether other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

c. a statement of how long the interception is going to last

The Patriot Act adds several terrorism crimes to the list of “serious crimes” exceptions to the ban on electronic surveillance (Table 15.2).

Table 15.2

Terrorist crimes not subject to ban on electronic surveillance

Chemical weapons offenses (18 U.S. Code 229)

Terrorist acts of violence against Americans overseas (§ 2332)

Use of weapons of mass destruction (§ 2332(a))

Financial transactions with countries that support terrorists (§ 2332(d))

Providing material support for terrorists (§ 2339A)

Providing material support for terrorist organizations (§ 2339B)

CD ROM Exercise 15-1 Learn more about balance between government power and individual privacy in Title III or the Crime Control and Safe Streets Act.

Surveilling stored electronic communications (Tier 2)

Tier 2 legislation tips the balance somewhat in favor of government power and guarantees somewhat less protection for individual privacy. Here, the Patriot Act has significantly expanded government surveillance power. First, it allows government to access to stored “wire and electronic communications” like voice mail and e-mail. Second, the power applies to “any criminal investigation” not just to the serious crimes in Tier 1.

There are definite limits to the government’s Tier 2 power under the Patriot Act. The decision to intercept and capture stored information isn’t left to law enforcement discretionary judgment. If the e-mail and voice mail messages are stored under six months, officers have to get a warrant based on probable cause (U.S. Code 2003, Title 18 §2703; Chapter 6 on search warrants). For communications stored over six months, the government still needs a warrant to access the information. But, they don’t have to tell subscribers about the warrant for 90 days, “if the court determines” there’s “reason to believe” that notifying subscribers of the warrant “may have an adverse result” on the investigation (§2705(a)(1)(A)). “Adverse results” include endangering life; flight from prosecution; destruction of evidence; intimidating potential witnesses; or “otherwise seriously jeopardizing an investigation or unduly delaying a trial” (§2705(a)(2).

Secret “caller ID” (Tier 3)

Government power in Tier 3 legislation is broader than Tiers 1 and 2 but doesn’t invade individual privacy as deeply as Tiers 1 and 2. This is the power (not protected by the Fourth Amendment described above on p. XXX) to capture a record of all telephone numbers (not conversations) from (pen registers) and to (trap and trace devices) a subscriber’s phone (U.S. Code Title 18, §§ 3121-2127). This secret “caller ID” is available to investigate “any crime;” without court approval; and without ever notifying subscribers they have it or what they learned from it. Officers are limited in getting and using the secret caller IDs only by having to get the approval of department senior official.

The Patriot Act (§§ 3121, 3123) expands pen register and trap and trace in two ways. First, it allows court orders authorizing the use of pen registers and trap and trace devices to capture e-mail headers (not messages). Before the Act, pen register and trap and trace were available only to capture telephone numbers. The second expansion was in the geographical area the pen register and trap and trace order covered. Before the Act the court’s power was limited to issuing orders only within its own district. The Act empowered the court to issue orders to “anywhere in the United States” (§ 3123(b)(1)(C)).

To answer objections that e-mail headers reveal more information than telephone numbers, the Act (§ 3123(a)(3)) requires the agency getting the court order to submit a detailed report to the court showing

1. name of the officer who installed and/or accessed the device

2. date and time the device was installed, accessed, and uninstalled.

3. configuration of the device when it was installed and any modifications made after installation

4. information captured by the device

“Sneak and Peek” Searches

You’ve already learned (Chapter 6) that searches of private places are “unreasonable searches” banned by the Fourth Amendment unless officers are backed up by warrants based on probable cause and they “knock and announce” their presence before they enter and search. But you also learned that there’s a “no knock” emergency exception to “knock and announce” rule. “Sneak and peek” searches are a variation of “no knock” entry. Sneak and peek search warrants allow officers to enter private places without the owner or (occupant) consenting or knowing about it. They’re not new. During the 1980s, the FBI and DEA (Drug Enforcement Agency) asked for and judges issued at least 35 “sneak and peek” warrants (Georgia Defender 2002, 1). Here’s a description of these warrants from the 1980s:

Under those warrants the search occurred only when the occupants were absent from the premises. The entry and the search were conducted in such a way as to keep them secret. The warrants prohibited seizures of anything except intangible evidence, i.e., information concerning what had been going on, or now was located, inside the premises. No tangible evidence was seized. The searching officers usually took photographs inside the premises searched. No copy of the warrant or receipt was left on the premises. The time for giving notice of the covert entry might be postponed by the court one or more times. The same premises might be subjected to repeated covert entries under successive warrants. At the end of the criminal investigation the premises previously searched under a sneak and peek warrant were usually searched under a conventional search warrant and tangible evidence was then seized. Generally, it was not until after the police made an arrest or returned with a conventional search warrant that the existence of any covert entries was disclosed. Sometimes this was weeks or even months after the surreptitious search or searches. Georgia Defender 2002,1)

            Both the Second and Ninth Circuit U.S. Courts of Appeals upheld the admission of evidence obtained during “sneak and peek” searches. The Second Circuit said the searches were reasonable searches (U.S. v. Villegas 1990; Chapter 6); the Ninth Circuit said the evidence was admissible under the “good faith” exception to the exclusionary rule (U.S. v. Freitas 1988; Chapter 11).

The U.S.A. Patriot Act (§ 213) was the first time “sneak and peek” warrants became part of a statute. Section 213 authorizes judges to issue “sneak and peek” warrants if

1. the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse effect; [“adverse effect” includes: “endangering life; flight from prosecution; destruction of evidence; intimidating potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.”]

2. the warrant prohibits the seizure of any tangible [personal] property…except where the court finds reasonable necessity for the seizure;

3. the warrant provides for the giving of such notice within a reasonable time of its execution, which period may be extended by the court for good cause shown.

Section 213 set off a storm of protest from politicians from both the Democrat and Republicans parties, defense lawyers, and civil libertarians. Here’s what the Georgia Defender (2002) (the publication of the Georgia defense bar) wrote:

It is obvious that these restrictions [reasonable cause, property seizure, and notice] on issuing sneak and peek search warrants border on the meaningless, especially in light of the somber reality that search warrants are issued secretly and ex parte [in the defendant’s absence from the proceeding], that they are typically issued on the basis of recurring, generalized, boilerplate allegations, and that the judicial officials who issue them tend to be rubber stamps for law enforcement.

Take, for example, the “adverse result” requirement. The statutory definition of adverse result is so all-encompassing that it is difficult to imagine many criminal investigations where at least one form of such a result is not going to be arguably applicable; furthermore, to satisfy the requirement the court need not have reasonable cause to believe that there will be an adverse result, only that there “may” be an adverse result.

The second requirement, that the warrant prohibit the seizure of tangible property, is drained of significance by the gigantic exception allowing seizure of such property “where the court finds reasonable necessity for the seizure.” It will be a rare case indeed where such necessity, if alleged, will not be determined to exist by the issuing court; and it may be confidently predicted that, with the passage of time, requests for seizure of tangible evidence will become the rule rather than the exception in connection with sneak and peek warrants.

The final requirement, that the warrant provide for the giving of notice within a reasonable period, involves merely a question of the wording of a sneak and peek warrant, and the provision permitting the court (acting ex parte) to extend the period (one or more times) “for good cause shown,” a standard easily met, makes it likely that such extensions will become routine and pro forma.

On the other side, Massachusetts U.S. Attorney Michael Sullivan told the Boston Anti-Terrorism Task Force, that sneak and peek is part of the Patriot Act’s “series of necessary, measured, and limited tools without which we would be greatly hampered in the struggle against terrorism” (Murphy 2003). We can’t settle this debate here, but keep in mind, all Section 213 did was write into a statute combating terrorism what law enforcement had been doing in enforcing drug laws for twenty years (and off the record probably a lot longer), and which courts admitted evidence obtained from them, either because they were “reasonable” Fourth Amendment “searches” or qualified as a “good faith” exception to the exclusionary rule.

detention of Terrorism Suspects

You already know (Chapter 4) that in ordinary times under ordinary circumstances, detaining someone on the street for just a few minutes is an “unreasonable” Fourth Amendment seizure (a stop) unless it’s backed up by enough facts to amount to reasonable suspicion. You know (Chapter 5) that arresting someone and detaining them for hours (and maybe a few days) at police stations is “unreasonable seizure” if it’s not backed up by more facts (probable cause). You also know (Chapter 12) that both the Fourth Amendment and the Sixth Amendment “speedy trial” clause require officers to take detained suspects before a judge promptly (usually within 48 hours) so the judge can decide whether there’s probable cause to detain them; to inform them of their rights; to set or deny bail; and to provide them with a lawyer if they can’t afford one.

Balancing security and rights after 9/11

But, we aren’t living in ordinary times under ordinary circumstances any more. September 11 changed all that. Three official acts document the changes in the balance between preserving national security and the right of individuals to come and go as they please.

1. Presidential Proclamation 7463

2. Congressional “Authorization for Use of Military Force”

3. President Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”

On September 14, President George W. Bush declared a “national emergency by reason of certain terrorist attacks.” (Presidential Proclamation 7463 (Federal Register 2001, 48199)  Second, on that same day, Congress threw its weight behind the President’s war power in a Joint Resolution, “Authorization for Use of Military Force.” Section 2 power provides:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Third, President George W. Bush issued Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (Federal Register 2001, 57831-57836). According to the Order,  “certain non-citizens” included “any individual who is not a U.S. citizen…that there is reason to believe…

1. is or was a member of…al Qaida

2. has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse affects on the U.S., its citizens, national security, foreign policy, or economy, or

3. has knowingly harbored one or more individuals described in 1 or 2… shall be detained the Secretary of Defense.

After defining who it includes, the Order spells out the conditions of detention and the treatment of detainees. Persons detained shall be:

a. treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

b. afforded adequate food, drinking water, shelter, clothing, and medical treatment;

c. allowed the free exercise of religion consistent with the requirements of such detention; and

d. detained in accordance with such other conditions as the Secretary of Defense shall prescribe.

Detaining Citizens after 9/11

Military Order November 13, 2001 applies only to non citizens. What are the rules for detaining citizens under the same circumstances as those outline in the order? In Padilla v. Rumsfeld, the U.S. Second Circuit Court of Appeals District Court for the Southern District of New York dealt with the rules that apply to the detention of U.S. citizens.

CASE

Can U.S. citizens suspected of aiding terrorists be detained indefinitely?

Padilla v. Rumsfeld

2003 WL 22965085 (2nd Cir.(N.Y.))

Donald Rumsfeld, the Secretary of Defense, and Jose Padilla, by his next friend Donna R. Newman, Esq., cross-appeal on questions certified by the District Court for the Southern District of New York (Mukasey, C.J.) arising from a petition for a writ of habeas corpus filed on behalf of Padilla challenging his detention as an enemy combatant. Affirmed in part, reversed in part, and remanded. Judge Wesley dissents in part in a separate opinion.

POOLER and B.D. PARKER, Circuit Judges.

Facts

I. The Initial Detention

 On May 8, 2002, Jose Padilla, an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago’s O’Hare International Airport. There he was arrested by FBI agents pursuant to a material witness warrant issued by the Chief Judge of the Southern District of New York in connection with a grand jury investigation of the terrorist attacks of September 11. Padilla carried no weapons or explosives.[1]

The agents brought Padilla to New York where he was held as a civilian material witness in the maximum security wing of the Metropolitan Correctional Center (MCC). At that point, Padilla was under the control of the Bureau of Prisons and the United States Marshal Service. Any immediate threat he posed to national security had effectively been neutralized. On May 15, 2002, he appeared before Chief Judge Mukasey, who appointed Donna R. Newman, Esq., to represent Padilla. Newman “conferred with [Padilla] over a period of weeks in ... an effort to end [his] confinement.”. She also conferred with Padilla’s relatives and with government representatives on Padilla’s behalf.

On May 22, Newman moved to vacate the material witness warrant. By June 7, the motion had been submitted for decision. A conference on the motion was scheduled for June 11. However, on June 9, the government notified the court ex parte that (1) it wished to withdraw its subpoena and (2) the President had issued an Order (the “June 9 Order”) designating Padilla as an enemy combatant and directing Secretary Rumsfeld to detain him. Chief Judge Mukasey vacated the warrant, and Padilla was taken into custody by Department of Defense (DOD) personnel and transported from New York to the high-security Consolidated Naval Brig in Charleston, South Carolina. At the scheduled June 11 conference, Newman, unable to secure Padilla’s signature on a habeas corpus petition, nonetheless filed one on his behalf as “next friend.”

For the past eighteen months, Padilla has been held in the Brig in Charleston. He has not been permitted any contact with his counsel, his family or any other non-military personnel. During this period he has been the subject of ongoing questioning regarding the al Qaeda network and its terrorist activities in an effort to obtain intelligence.

II. The Order Authorizing the Detention

In his June 9 Order, the President directed Secretary Rumsfeld to detain Padilla based on findings that Padilla was an enemy combatant who

(1) was “closely associated with al Qaeda, an international terrorist organization with which the United States is at war”;

(2) had engaged in “war-like acts, including conduct in preparation for acts of international terrorism” against the United States;

(3) had intelligence that could assist the United States to ward off future terrorist attacks; and

(4) was a continuing threat to United States security. As authority for the detention, the President relied on “the Constitution and ... the laws of the United States, including the [Joint Resolution].”

In an unsealed declaration submitted to the District Court, Michael H. Mobbs, a special advisor to the Under Secretary of Defense for Policy (who claims no direct knowledge of Padilla’s actions or of the interrogations that produced the information discussed in his declaration), set forth the information the President received before he designated Padilla as an enemy combatant. According to the declaration, Padilla was born in New York, was convicted of murder in 1983, and remained incarcerated until his eighteenth birthday. In 1991, he was convicted on a handgun charge and again sent to prison. He moved to Egypt in 1998 and traveled to several countries in the Middle East and Southwest Asia between 1999 and 2000. During this period, he was closely associated with known members and leaders of al Qaeda. While in Afghanistan in 2001, Padilla became involved with a plan to build and detonate a “dirty bomb” within the United States, and went to Pakistan to receive training on explosives from al Qaeda operatives. There he was instructed by senior al Qaeda officials to return to the United States to conduct reconnaissance and/or other attacks on behalf of al Qaeda. He then traveled to Chicago, where he was arrested upon arrival into the United States on May 8, 2002. Notwithstanding Padilla’s extensive contacts with al Qaeda members and his actions under their direction, the government does not allege that Padilla was a member of al Qaeda.

The government also offered for the District Court’s review Mobbs’ sealed declaration, which the District Court characterized as “identifying one or more of the sources referred to only in cryptic terms in the [unsealed] Mobbs Declaration” and “setting forth objective circumstantial evidence that corroborates the factual allegations in the unsealed Mobbs Declaration.”[2] …

OPINION

[This excerpt includes only the parts of the opinion having to do with the Padilla’s detention and access to his lawyer.

II. Power to Detain

A. Introduction

The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President’s power as Commander-in-Chief. The power to detain Padilla is said to derive from the President’s authority, settled by Ex parte Quirin, 317 U.S. 1 (1942), to detain enemy combatants in wartime--authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, ... engages the President’s full powers as Commander in Chief. Padilla I, 233 F.Supp.2d at 590. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.

These alternative arguments require us to examine the scope of the President’s inherent power and, if this is found insufficient to support Padilla’s detention, whether Congress has authorized such detentions of American citizens. We reemphasize, however, that our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States. As the Fourth Circuit recently--and accurately--noted in Hamdi v. Rumsfeld, “to compare this battlefield capture of Hamdi to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges.”…

i. Inherent Power

…Great deference is afforded the President’s exercise of his authority as Commander-in-Chief. …Whether a state of armed conflict exists against an enemy to which the laws of war apply is a political question for the President, not the courts…. We have no quarrel with the former chief of the Justice Department’s Criminal Division, who said:

For [al Qaeda] chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision. Michael Chertoff, “Law, Loyalty, and Terror: Our Legal Response to the Post-9-11 World,” Wkly. Standard, Dec. 1, 2003, at 15.

However, it is a different proposition entirely to argue that the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to any of the powers, express or implied, allocated to Congress. The deference due to the Executive in its exercise of its war powers therefore only starts the inquiry; it does not end it. Where the exercise of Commander-in-Chief powers, no matter how well intentioned, is challenged on the ground that it collides with the powers assigned by the Constitution to Congress, a fundamental role exists for the courts. To be sure, when Congress and the President act together in the conduct of war, “it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.” But when the Executive acts, even in the conduct of war, in the face of apparent congressional disapproval, challenges to his authority must be examined and resolved by the Article III courts.

These separation of powers concerns are heightened when the Commander-in- Chief’s powers are exercised in the domestic sphere. The Supreme Court has long counseled that while the Executive should be “indulge[d] the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society,” he enjoys “no such indulgence” when “it is turned inward.” This is because “the federal power over external affairs [is] in origin and essential character different from that over internal affairs,” and “congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” Thus, we do not concern ourselves with the Executive’s inherent wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda ends.

The government contends that the Constitution authorizes the President to detain Padilla as an enemy combatant as an exercise of inherent executive authority. Padilla contends that, in the absence of express congressional authorization, the President, by his June 9 Order denominating Padilla an enemy combatant, has engaged in the “lawmaking” function entrusted by the Constitution to Congress in violation of the separation of powers….

The Constitution entrusts the ability to define and punish offenses against the law of nations to the Congress, not the Executive. U.S. Const. art. II, § 8, cl. 10…. The Constitution envisions grave national emergencies and contemplates significant domestic abridgements of individual liberties during such times.. Here, the Executive lays claim to the inherent emergency powers necessary to effect such abridgements, but…the Constitution lodges these powers with Congress, not the President.

First, the Constitution explicitly provides for the suspension of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. This power, however, lies only with Congress. Further, determinations about the scope of the writ are for Congress. Moreover, the Third Amendment’s prohibition on the quartering of troops during times of peace[3] reflected the Framers’ deep-seated beliefs about the sanctity of the home and the need to prevent military intrusion into civilian life. At the same time they understood that in times of war--of serious national crisis--military concerns prevailed and such intrusions could occur. But significantly, decisions as to the nature and scope of these intrusions were to be made “in a manner to be prescribed by law.” U.S. Const. amend. III. The only valid process for making “law” under the Constitution is, of course, via bicameral passage and presentment to the President, whose possible veto is subject to congressional override, provided in Article I, Section 7.

 The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement. The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress--otherwise acting consistently with the Constitution--may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not.

The government argues that Quirin established the President’s inherent authority to detain Padilla. In Quirin, the Supreme Court reviewed the habeas petitions of German soldiers captured on United States soil during World War II. All of the petitioners had lived in the United States at some point in their lives and had been trained in the German Army in the use of explosives. These soldiers, one of whom would later claim American citizenship, landed in the United States and shed their uniforms intending to engage in acts of military sabotage. They were arrested in New York and Chicago, tried by a military commission as “unlawful combatants,” and sentenced to death. The Court denied the soldiers’ petitions for habeas corpus, holding that the alleged American citizenship of one of the saboteurs was immaterial to its judgment: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.” The government contends that Quirin conclusively establishes the President’s authority to exercise military jurisdiction over American citizens.

We do not agree that Quirin controls. First, and most importantly, the Quirin Court’s decision to uphold military jurisdiction rested on express congressional authorization of the use of military tribunals to try combatants who violated the laws of war. Specifically, the Court found it “unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation.” Accordingly, Quirin does not speak to whether, or to what degree, the President may impose military authority upon United States citizens domestically without clear congressional authorization. We are reluctant to read into Quirin a principle that the Quirin Court itself specifically declined to promulgate.

Moreover, there are other important distinctions between Quirin and this case…. The petitioners in Quirin admitted that they were soldiers in the armed forces of a nation against whom the United States had formally declared war. The Quirin Court deemed it unnecessary to consider the dispositive issue here--the boundaries of the Executive’s military jurisdiction--because the Quirin petitioners “upon the conceded facts, were plainly within those boundaries.” Padilla makes no such concession. To the contrary, he, from all indications, intends to dispute his designation as an enemy combatant, and points to the fact that the civilian accomplices of the Quirin saboteurs--citizens who advanced the sabotage plots but who were not members of the German armed forces--were charged and tried as civilians in civilian courts, not as enemy combatants subject to military authority….

The government’s argument for the legality of Padilla’s detention…relies heavily on the Fourth Circuit’s decisions in Hamdi II and Hamdi III. These decisions are inapposite. The Fourth Circuit directly predicated its holdings on the undisputed fact that Hamdi was captured in a zone of active combat in Afghanistan: The court said:

We have no occasion ... to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us--that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country.”

…Based on the text of the Constitution and the cases interpreting it, we reject the government’s contention that the President has inherent constitutional power to detain Padilla under the circumstances presented here. Therefore,…we must now consider whether Congress has authorized such detentions.

ii. Congressional Acts

a. The Non-Detention Act

…The Non-Detention Act provides: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a). … We read the plain language of section 4001(a) to prohibit all detentions of citizens… [Congress passed the Act only] after ample warning that both the sponsor of the amendment and its primary opponent believed it would limit detentions in times of war and peace alike. [This] is strong evidence that the amendment means what it says, that is that no American citizen can be detained without a congressional act authorizing the detention….

b. Specific Statutory Authorization

 Since we conclude that the Non-Detention Act applies to military detentions such as Padilla’s, we would need to find specific statutory authorization in order to uphold the detention. The government claims that…the Joint Resolution, which authorized the use of force against the perpetrators of the September 11 terrorist attacks…authorize[s] the detention of enemy combatants. …[W]ith respect to the Joint Resolution…we disagree with the District Court, which held that it must be read to confer authority for Padilla’s detention. It found that the “language [of the Joint Resolution] authorizes action against not only those connected to the subject organizations who are directly responsible for the September 11 attacks, but also against those who would engage in ‘future acts of international Terrorism’ as part of ‘such ... organizations.”

We disagree with the assumption that the authority to use military force against these organizations includes the authority to detain American citizens seized on American soil and not actively engaged in combat. First, we note that the Joint Resolution contains no language authorizing detention. It provides:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Joint Resolution § 2(a).

…The plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization required by section 4001(a) and the “clear,” “unmistakable” language required by Endo. While it may be possible to infer a power of detention from the Joint Resolution in the battlefield context where detentions are necessary to carry out the war, there is no reason to suspect from the language of the Joint Resolution that Congress believed it would be authorizing the detention of an American citizen already held in a federal correctional institution and not “arrayed against our troops” in the field of battle.[4] …

CONCLUSION

 In sum, we hold that…

(3) in the domestic context, the President’s inherent constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat;

(4) the Non-Detention Act prohibits the detention of American citizens without express congressional authorization; and

(5) neither the Joint Resolution nor 10 U.S.C. § 956(5) constitutes such authorization under section 4001(a).

These conclusions are compelled by the constitutional and statutory provisions we have discussed above. The offenses Padilla is alleged to have committed are heinous crimes severely punishable under the criminal laws [which the government is free to prosecute him under]. Further, under those laws the Executive has the power to protect national security and the classified information upon which it depends. And if the President believes this authority to be insufficient, he can ask Congress--which has shown its responsiveness--to authorize additional powers. To reiterate, we remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him. Also, if appropriate, Padilla can be held as a material witness in connection with grand jury proceedings. In any case, Padilla will be entitled to the constitutional protections extended to other citizens.

DISSENT

WESLEY, J.

 I respectfully dissent from that aspect of the majority’s opinion that concludes the President is without authority from Congress or the Constitution to order the detention and interrogation of Mr. Padilla. In my view, the President as Commander in Chief has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens. But even if Mr. Padilla’s status as a United States citizen on United States soil somehow changes the constitutional calculus, I cannot see how the Non- Detention Act precludes an affirmance.

…My disagreement with the majority is two-fold. In my view, the President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested….

But the scope of the President’s inherent war powers under Article II does not end the matter, for in my view Congress clearly and specifically authorized the President’s actions here.  As Chief Judge Mukasey noted, the Joint Resolution, passed by both houses of Congress, “authorizes the President to use necessary and appropriate force in order, among other things, ‘to prevent any future acts of international terrorism against the United States,’ and thereby engages the President’s full powers as Commander in Chief.” The Joint Resolution authorized the President to take the action herein challenged; his powers were at their apogee.

…It is quite clear from the President’s Order of June 9, 2002 that Mr. Padilla falls within the Joint Resolution’s intended sweep. As relevant here, the Joint Resolution authorizes the President

(1) to use appropriate and necessary force--detention would seem to be an appropriate level of force in Mr. Padilla’s situation,

(2) against those organizations that planned, authorized, or committed the terrorist attacks of 9-11--none of us disputes al Qaeda is responsible for the carnage of that day,

(3) in order to prevent future attacks of terrorism against the United States--Padilla is alleged to be closely associated with an al Qaeda plan to carry out an attack in the United States and to possess information that if obtained by the U.S. would prevent future terrorist attacks.

The majority contends that 18 U.S.C. § 4001(a) prohibits detention of U.S. citizens on U.S. soil as enemy combatants absent a precise and specific statutory authorization from Congress…. I share their view that the plain language of the statute appears to apply to military and civil detentions and that its placement in the U.S. Code does not rebut that conclusion. However, I find it somewhat puzzling that despite the statute’s obvious and conceded clarity, the majority, based solely on the statement of one Member of Congress sees fit to add a condition not found in the words of the section.

The statute is quite clear: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a). The section neither defines an “Act of Congress” nor contains a requirement that the authorizing enactment use the word “detention.” The majority does not contest that the Joint Resolution is an Act of Congress. However, they chafe at its lack of specificity. As noted above, I think it would be quite difficult to conclude that Congress did not envision that detaining a terrorist was a possibility. It is apparent from the legislative record of § 4001(a) and the Joint Resolution that the efforts of Congress in each instance meant and implied many different things to individual Members. That is not unusual. It would be quite a surprise to see that Congress was of one mind on any issue; that is the nature of a representative democracy. But one thing is clear, both enactments have the force of law. It is the words used, not the individual motives of legislators, that should serve as the guide. Thus, I think it best to trace a course of legislative intent using the plain and powerful language employed.

The problem with the majority’s view of the Joint Resolution of September 18, 2001 is that it reduces the legislative efforts contained therein to a general policy statement…. Congress passed the Joint Resolution and agreed that the President should utilize his war powers with regard to an identified threat. Of course, identifying the threat made sense. Only days earlier the nation had been attacked--American lives had been lost on American soil. Congress responded and invested the President with authority to pursue those responsible for the attacks in order to prevent future attacks. Contrary to the implication of the majority, the Joint Resolution was not limited in geographic scope. It did not limit the President’s authority to foreign theaters. Congress clearly recognized that the events of 9-11 signaled a war with al Qaeda that could be waged on U .S. soil.

The President’s authority to detain an enemy combatant in wartime is undiminished by the individual’s U.S. citizenship. Consequently, Padilla’s citizenship here is irrelevant. Moreover, the fact that he was captured on U.S. soil is a distinction without a difference. While Mr. Padilla’s conduct may have been criminal, it was well within the threat identified in the Joint Resolution. The resolution recognizes the painful reality of 9-11; it seeks to protect U.S. citizens from terrorist attacks at home and abroad. “[E]ntry upon our territory in time of war by enemy belligerents, including those acting under the direction of armed forces of the enemy ... is a warlike act.”[5]

Congress presumably was aware of § 4001(a) when it passed the Joint Resolution. The resolution was congressional confirmation that the nation was in crisis. Congress called upon the President to utilize his Article II war powers to deal with the emergency. By authorizing the President to use necessary and appropriate force against al Qaeda and its operatives, Congress had to know the President might detain someone who fell within the categories of identified belligerents in carrying out his charge. A different view requires a strained reading of the plain language of the resolution and cabins the theater of the President’s powers as Commander in Chief to foreign soil. If that was the intent of Congress it was masked by the strong and direct language of the Joint Resolution. And if, as the majority asserts, § 4001(a) is an impenetrable barrier to the President detaining a U.S. citizen who is alleged to have ties to the belligerent and who is part of a plan for belligerency on U.S. soil, then § 4001(a), in my view, is unconstitutional….

Questions

1. Summarize the facts of Jose Padilla’s detention.

2. List his suspected ties to terrorists, and the basis for believing he has the ties.

3. Summarize the government’s arguments in favor of Padilla’s detention.

4. Summarize the defendant’s arguments against his detention?

5. Summarize the court’s reasons for its decision that Padilla’s detention was unlawful.

Right to Counsel

The Sixth Amendment to the U.S. Constitution guarantees the accused the right to “the assistance of counsel for his defense.” According to the U.S. Supreme Court, this right is “necessary to insure fundamental human rights of life and liberty” (Powell v. Alabama 1932, 432)

The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not be done. It embodies a realistic recognition of the obvious truth that the average defendant doesn’t have the necessary professional legal skills to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is represented by experienced and learned counsel. That which is simple, orderly, and necessary to the lawyer—to the untrained layman—may appear intricate, complex, and mysterious (462).

            The right to counsel applies to “all criminal prosecutions.” According to the U.S. District Court in Padilla v. Bush, this excludes the right to counsel in terrorism cases (like Padilla v. Bush) because they’re not criminal cases. The government plan in terrorism cases isn’t to prosecute individual terrorists for terrorism crimes; it’s to prevent future terrorist attacks by detaining suspected terrorists and getting intelligence from them about other terrorists, terrorist organizations, their operations, and plans. This very important question of what, if any, right to counsel terrorists have remains to be decided finally by the U.S. Supreme Court.

            But whatever the Court may decide, the Sixth Amendment isn’t the only source of the right to counsel. There’s also a statutory right. The federal habeas corpus statutes (U.S. Code 2003, Title 28 §§ 2241, 2243) allow petitioners seeking writs of habeas corpus to present facts to courts conducting the proceedings. Although the habeas corpus statutes don’t provide for appointing counsel, another federal statute, the All Writs Act (U.S. Code 2003, Title 18 §3006A(2)(B)) permits courts conducting habeas corpus proceedings to appoint counsel if “the interests of justice so require.” The U.S. District Court for the Southern District Court of New York considered this statutory right in Padilla v. Rumsfeld, the case excerpted in the last section.

CASE

Padilla v. Rumsfeld

233 F.Supp.2d 564 (USDC SDNY, 2002)

Does he have a right to a lawyer?

FACTS

[See Padilla v. Rumsfeld excerpt, pp. XXX for facts of this case.]

OPINION

The government has not disputed Padilla’s right to challenge his detention by means of a habeas corpus petition. Although Padilla has the ability, through his lawyer, to challenge the government’s naked legal right to hold him as an unlawful combatant on any set of facts whatsoever, he has no ability to make fact-based arguments because, as is not disputed, he has been held incommunicado during his confinement at the Consolidated Naval Brig in Charleston, and has not been permitted to consult with counsel. Therefore, unless I find that the only fact issue Padilla has a right to be heard on is whether the government’s proffered facts, taken alone and without right of response, are sufficient to warrant his detention…—an argument that can be presented by counsel without access to Padilla—I must address the question of whether he may present facts, and how he may do so. As explained below:

(i) Padilla does have the right to present facts;

(ii) the most convenient way for him to go about that, and the way most useful to the court, is to present them through counsel; and

(iii) the government’s arguments are insufficient to warrant denying him access to counsel.

Therefore, to the extent set forth below, Padilla will be permitted to consult with counsel in aid of prosecuting this petition.

Padilla’s right to present facts is rooted firmly in the statutes that provide the basis for his petition. Padilla has petitioned pursuant to [the federal habeas corpus statute] 28 U.S.C. § 2241, which…grants to district courts the power to issue writs of habeas corpus; a related section, 28 U.S.C. § 2243, provides the skeletal outline of procedures to be followed in a § 2241 case:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted…. The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.

The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.

When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.

Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.

The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.

The return and all suggestions made against it may be amended, by leave of court, before or after being filed.

The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.

A related section, 28 U.S.C. § 2246, allows the taking of evidence in habeas corpus cases by deposition, affidavit, or interrogatories…. Quite plainly, Congress intended that a § 2241 [habeas corpus] petitioner would be able to place facts, and issues of fact, before the reviewing court, and it would frustrate the purpose of the remedy to prevent him from doing so.

            The habeas corpus statutes do not explicitly provide a right to counsel for a petitioner in Padilla’s circumstances, but 18 U.S.C. § 3006A(2)(B) (2000) permits a court to which a § 2241 [habeas corpus] petition is addressed to appoint counsel for the petitioner if the court determines that “the interests of justice so require.” I have already so determined, and have continued the appointment of Newman and appointed also Andrew Patel, Esq., as co-counsel.

Of course, Padilla has no Sixth Amendment[6] right to counsel in this proceeding. The Sixth Amendment grants that right to the “accused” in a “criminal proceeding”; Padilla is in the custody of the Department of Defense; there is no “criminal proceeding” in which Padilla is detained; therefore, the Sixth Amendment does not speak to Padilla’s situation. Beyond the plain language of the Amendment, “even in the civilian community a proceeding which may result in deprivation of liberty is nonetheless not a ‘criminal proceeding’ within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial.” Such “elements” are present here—notably, that Padilla’s detention “does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence.” There being no criminal proceeding here, Padilla could not enforce this right now even if he had it.

Nor does the self-incrimination clause of the Fifth Amendment[7] provide any more help to Padilla than the Sixth Amendment in his effort to confer with counsel. Although the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) [Chapter 8], found in that clause a right to counsel, calling the presence of counsel “the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege,” and “although conduct by law enforcement officials prior to trial may significantly impair that right [to avoid self-incrimination], a constitutional violation occurs only at trial.” That is of no help to Padilla, who does not face the prospect of a trial….

However…, the provisions and characteristics of the habeas corpus statute…, and the court’s power under the All Writs Act, 28 U.S.C. § 1651(a) (2000), to issue writs in aid of its jurisdiction, provide a statutory basis for decision. Considerations of prudence require that a court avoid a constitutional basis for decision when there exists a non-constitutional alternative.

Part of that non-constitutional alternative lies in the provisions of the habeas corpus statute…, which make it clear that Congress intended habeas corpus petitioners to have an opportunity to present and contest facts, and courts to have the flexibility to permit them to do so under proper safeguards. Padilla’s need to consult with a lawyer to help him do what the statute permits him to do is obvious. He is held incommunicado at a military facility. His lawyer has been told that there is no guarantee even that her correspondence to him would get through.

Although it is not uncommon for habeas corpus cases to be pursued by petitioners pro se [without a lawyer], such cases, usually involving challenges to either state convictions under 28 U.S.C. § 2254 or federal convictions under 28 U.S.C. § 2255, almost always are filed after the petitioners already have had the benefit of completed criminal proceedings, and appeals, in which they were represented by counsel. Padilla has had no such benefit here. It would frustrate the purpose of the procedure Congress established in habeas corpus cases, and of the remedy itself, to leave Padilla with no practical means whatever for following that procedure.

            The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (2000)…. In Harris v. Nelson, 394 U.S. 286 (1969), the Supreme Court…appears to have read broadly the power of a court hearing a habeas corpus petition to fashion remedies under the All Writs Act:

[T]he habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. Where their duties require it, this is the inescapable obligation of the courts. Their authority is expressly confirmed in the All Writs Act, 28 U.S.C. § 1651.

…The decision whether to grant or withhold an order under the All Writs Act lies “in the sound discretion of the court.” …Although the Sixth Amendment does not control Padilla’s case…, [the Supreme Court’s cases suggest] that discretion under the All Writs Act should be exercised in favor of permitting him to consult with counsel in aid of his petition and, in particular, in aid of responding to the Mobbs Declaration should he choose to do so.

The government has argued that affording access to counsel would “jeopardize the two core purposes of detaining enemy combatants—gathering intelligence about the enemy, and preventing the detainee from aiding in any further attacks against America.” This would happen, the government argues, because access to counsel would interfere with questioning, and because al Qaeda operatives are trained to use third parties as intermediaries to pass messages to fellow terrorists, even if “the intermediaries may be unaware that they are being so used.”

            However, access to counsel need be granted only for purposes of presenting facts to the court in connection with this petition if Padilla wishes to do so; no general right to counsel in connection with questioning has been hypothesized here, and thus the interference with interrogation would be minimal or nonexistent.

As to the possibility that Padilla might use his lawyers to pass messages to others, there are several responses to that conjecture.

First, accepting that conjecture at face value and across the board proves far too much: by the government’s logic, no indicted member of al Qaeda facing trial in an Article III court should be allowed to consult with counsel--a result barred by the Sixth Amendment.

Second, I have read both the Mobbs Declaration and the Sealed Mobbs Declaration, the latter only for the purpose of assessing the government’s access-to-counsel argument; the government’s conjecture is, on the facts presented to me in those documents, gossamer [sound good but doesn’t mean much] speculation. Although the government presents facts showing that Padilla had contact with and was acting on behalf of al Qaeda, there is nothing to indicate that Padilla in particular was trained to transmit information in the way the government suggests, or that he had information to transmit.

Third, Padilla has already had meetings with counsel in New York, and thus whatever speculative damage the government seeks to prevent may already have been done.

Fourth, there is no reason that military personnel cannot monitor Padilla’s contacts with counsel, so long as those who participate in the monitoring are insulated from any activity in connection with this petition, or in connection with a future criminal prosecution of Padilla, if there should ever be one. The U.S. Bureau of Prisons has adopted such procedures with respect to incarcerated defendants who present a similar danger. See Prevention of Acts of Violence and Terrorism, 28 C.F.R. § 501.3(a) (2002) (special procedures to be used if “there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily harm to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons”). One would think that such procedures would go a long way toward preventing Padilla from transmitting information through his lawyers to others.

Finally, Padilla’s lawyers themselves are members of this court’s Criminal Justice Act panel who have appeared before this court in numerous cases. In addition to being able advocates, they have conducted themselves at all times in a fashion consistent with their status as--to use the antique phrase--officers of the court. There is nothing in their past conduct to suggest that they would be inclined to act as conduits for their client, even if he wanted them to do so.

Even giving substantial weight, as I do, to the President’s statement in the June 9 Order that Padilla is “a continuing, present and grave danger to the national security of the United States” and that his detention “is necessary to prevent him from siding with al Qaeda in its efforts to attack the United States,” there has been no fact presented to me that shows that the source of that danger is the possibility that Padilla will transmit information to others through his lawyers.

By contrast, Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel. On the facts presented in this case, the balance weighs heavily in Padilla’s favor.

            I do not believe that the decision in Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir.2002), alters the balance in the government’s favor. In that case, the Court of Appeals for the Fourth Circuit reversed the order of a district court directing the government to permit unmonitored access by counsel to a detainee captured in Afghanistan and held at a Navy brig in Norfolk, Virginia. The order was rendered without benefit of briefing or argument, and with “little indication in the order (or elsewhere in the record for that matter) that the court gave proper weight to national security concerns.” According to the Fourth Circuit, “the peremptory nature of the [District Court’s] proceedings stood in contrast to the significance of the issues before the court.”

No such access is to be granted here, and the court has had the full benefit of the government’s submissions, both sealed and unsealed. Further, Padilla’s situation appears to differ from Hamdi’s in that he had access to counsel after his capture but before his designation as an enemy combatant, and thus no potential prophylactic effect of an order barring access by counsel could have been lost.

            Because this court has jurisdiction over Padilla’s petition, and because the procedure outlined by the applicable statutes cannot be followed unless Padilla is permitted to consult with counsel, respondent Secretary Rumsfeld will be directed to permit Padilla to consult with counsel solely for the purpose of submitting to the court facts bearing upon his petition, under such conditions as the parties may agree to, or, absent agreement, such conditions as the court may direct so as to foreclose, so far as possible, the danger that Padilla will use his attorneys for the purpose of conveying information to others.

Questions

1. According to the court, why doesn’t Padilla have a 5^th amendment right to a lawyer in this case?
2. According to the court, why doesn’t he have a right to a lawyer under either the 5^th amendment self-incrimination or due process clause?
3. According to the court, what statutes provide Padilla with a right to a lawyer in this case?
4. According to the government’s lawyer, what’s the source of the President’s power over Padilla’s right to a lawyer?
5. According to the government, how broad is the President’s power over Padilla’s rights in this case?
6. According to the government, what are the dangers of providing Padilla with a lawyer in this case?
7. According to the court, what measures to prevent the dangers are already in place and/or can be easily put in place?

trial

Suspected terrorists can be tried either for crimes (like treason and murder) in the ordinary courts (called Article III courts because their authority comes from the Article III of the U.S. Constitution creating the judiciary), or for war crimes (fighting for terrorist organization) in special military courts (usually called military commissions or sometimes military tribunals). If they’re tried for ordinary crimes in ordinary courts, all that you’ve learned in Chapters 10 through 14 applies so we don’t need to go over it again.

Here, we’ll examine the relaxed rules of procedure and proof and diminished rights for defendants that apply to military commissions, which consist of a panel of military officers acting under military authority to try enemy combatants for war crimes (acts during wartime that inflict “needless and disproportionate suffering and damages” in pursuit of a “military objective.” (Don’t confuse military commissions with military courts martial which are also made up military officers but to try members of U.S. armed forces for violating the Uniform Code of Military Justice.) (Elsea 2001, 16, 7).

Military Order of November 13, 2001 (Federal Register 2001, 57831-57836) spells out the rules governing military commissions to try suspected terrorists. Let’s look at the main points in Order relevant to military commissions.

Sources of military commission authority

The President bases his authority to establish military commissions on three sources. First. the U.S. Constitution, Article II, Section 2 makes the President the “Commander in Chief” of the armed Forces. As Commander in Chief he’s responsible for trying terrorists. Second, Article II, Section 2 also imposes on the President to “take care that the laws shall be faithfully executed.” In this case, according to the Order, the laws include trying war crimes under the Articles of War, and the Authorization for Use of Military Force passed by a joint resolution of Congress on September 14, 2001 (page XXX). The joint resolution authorized the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized committed, or aided” or “harbored” them.

Jurisdiction of military commissions

The Order applies only to “certain Non-Citizens in the War Against Terrorism” (Federal Register 2001, 57833) Here’s how Section 2 of the Order defines non-citizens

(a)…any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order. (57834)

As non citizens, the individuals the Order applies to don’t “necessarily enjoy the same constitutional rights as citizens” even if they’re legally in the country. During war time, aliens of enemy nations can be

detained and deported, and their property can be confiscated…. They may also be denied access to the courts of the United States if they would use the courts to the advantage of the enemy or to impede the U.S. prosecution of a war. (Elsea 2001, 28-29)

            The Order takes away the jurisdiction of all courts in and outside the U.S. to try any cases covered by the Order. According to Order Section 7(b)(1) “military tribunals shall have exclusive jurisdiction with respect to offenses by the individual…” (57835). The Order also strips individuals of the right to have their cases reviewed by any other courts. According to Sections 7(b)(2) and (c):

the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in

(i) any court of the United States, or any State thereof,

(ii) any court of any foreign nation, or

(iii) any international tribunal.

(c)  This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable…by any party against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. (57836)

            If this sweeping exclusion is meant to include habeas corpus review, it may not survive constitutional challenge because of Ex Parte Quirin (1942), the leading U.S. Supreme Court case on the subject. Quirin took place in the darkest days of World War II when the Allies were losing most of the battles against both Germany and Japan. Hitler brazenly sent two groups of four saboteurs by submarine to the U.S. One group sneaked on shore in New York and in Florida. They were carrying explosives and other materials of sabotage which they intended to use to blow up strategic targets and to terrorize and demoralize the populace.

They quickly turned themselves in to the FBI for reasons not yet clear and were set for trial by secret military commission. Before the trials began, their lawyers filed habeas corpus petitions, challenging their detention and the jurisdiction of the secret commission. The U.S. Supreme Court denied their petitions. But, the Court made clear it had the authority (jurisdiction) to hear their petition. In other words, even Nazis were entitled to some review by ordinary courts.

Trial proceedings of military commissions

Military commissions aren’t bound by the constitutional requirements that apply to ordinary (Article III) courts. So, defendants have no constitutional right to a speedy trial, to trial by jury, to counsel, remain silent, or to proof beyond a reasonable doubt. Nevertheless, the Department of Defense, authorized by the Military Order to establish rules for military commissions guarantees “each accused tried by Military Commission”

1. the presumption of innocence, 

2. proof of guilt beyond a reasonable doubt,

3. the right to call and cross examine witnesses (subject to the rules regarding production of witnesses and protection of information), 

4. nothing said by an accused to his attorney, or anything derived therefrom, may be used against him at trial, 

5. no adverse inference for remaining silent,

6. and the overall requirement that any military commission proceeding be full and fair.

7. Finally, to assist him in preparing a defense, each accused has Military Defense Counsel provided at no cost to him.

8. The accused may also hire a civilian defense counsel at no cost to the government as long as that counsel:

a. Is a United States citizen;

b. Is admitted to practice in a United States jurisdiction;

c. Has not been the subject of sanction or disciplinary action;

d. Is eligible for and obtains at least a SECRET level clearance; and 

e. Agrees to follow the Military Commission rules. (Military Commission Procedures 2002, 2)

            As for proving guilt, here’s the Defense Department;s standard:

The Presiding Officer may admit any evidence that “would have probative value to a reasonable person.” This standard of evidence takes into account the unique battlefield environment that is different than traditional peacetime law enforcement practices in the U.S.  For example, soldiers are not required to obtain a search warrant when someone is shooting at them from a cave.  This standard of evidence allows both the defense and the prosecution to admit evidence that was acquired during military operations. (2)

And as to finding guilt:

A finding of guilt and the imposition of a sentence must be with the concurrence of two-thirds of the Military Commission panel members. (2)

            If the Commission finds the defendant guilty, the Commission

panel members may impose any appropriate sentence, including death.  A sentence of death requires a unanimous vote from a seven-member Military Commission panel. (2)

The Department of Defense has also established a review process that follows the verdict and sentence:

1. A three-member Review Panel of Military Officers, one of whom must have prior experience as a judge, will review all cases for material errors of law, and may consider matters submitted by the Prosecution and Defense.  Review Panel members may be civilians who were specifically commissioned to serve on the panel.  If a majority of the Review Panel members believe a material error of law has occurred, they may return the case to the Military Commission for further proceedings.

2. The Secretary of Defense will review the record of trial and, if appropriate, may return it to the Military Commission for further proceedings, or forward the case to the President with a recommendation as to disposition.

3. The President may either return the case to the Military Commission for further proceedings or make the final decision as to its disposition.

4. The President may delegate final decision authority to the Secretary of Defense, in which case the Secretary may approve or disapprove the findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the sentence imposed, or any portion thereof.  A finding of Not Guilty as to a charge shall not be changed to a finding of Guilty. (3)

After, the final decision is made, “a sentence shall be carried out promptly” (3).

Figure 15.1

Source: Military Commission Procedures. 2002, page 4. Department of Defense Fact Sheet. Washington DC: U.S. Government.

Summary Outline

I. Balance between government power and individual privacy and liberty

A. Most strained during emergencies

B. Balance tips toward government power over individual liberty and privacy

C. Limits on government power

1. necessity—emergency power only when and to extent necessary

2. temporary—extraordinary power ends as soon as emergency ends

II. History of Criminal Procedure in Wartime

A. Clear principles applied to wars fought between two nations

1. declarations of war defined beginning

2. laws of war controlled fighting

3. peace treaties defined end

B. Total war (World Wars I and II)

1. required commitment of whole people, government, and people

2. otherwise resembled earlier wars

C. Cold War

1. International communism crossed national borders

2. Spies came to U.S. and looked and acted like non Communists

3. Hidden enemy that “bored from within” to learn our secrets and pass them on to Communist governments

4. Fighting required not military combat but intelligence gathering about Communists, their actions, and their plans

5. Goal sometimes to prosecute but more often to deport them and prevent further infiltration into the U.S.

D. War on Terror

1. Major shift from prosecution to prevention.

2. Primary mission shift in law enforcement from gathering evidence to prosecute terrorists for past attacks to gathering intelligence to prevent future attacks

3. Prosecution still a mission

4. New laws (USA Patriot Act, other laws, regulations, court opinions)

a. Knowledge limited to what laws say (not how they’re operating)

i. Need for secrecy to guard against future attacks

ii. Too recent to produce more than a few court cases.

b. Based on requirement in a constitutional requirement to balance need for government power to prevent and prosecute terrorist acts and rights of individuals guaranteed by U.S. Constitution.

III. Surveillance and Terrorism

A. Fourth Amendment (Chapter 3) doesn’t protect

1. wiring informants for sound (U.S. v. White)

2. retrieving lists telephone numbers of outgoing (pen registers, Smith v. Maryland, Chapter 3) and incoming (trap and trace) calls.

3. bank records of individuals’ financial dealings (U.S. v. Miller)

B. Three-tiered system of balancing government power and individual privacy

1. “Real-Time” electronic surveillance (Tier 1)

a. protects individual privacy most

b. ban established in 1968 (Crime Control and Safe Streets Act)

c. “serious crime” exception to ban under conditions:

i. approval of application by high official

ii. judge approval of application

iii. application include

a. statement of facts and circumstances

b. statement as to whether other investigative procedures tried and failed

c. statement as to projected length of interception

d. Patriot Act adds terrorist crimes to list of “serious crimes” ban

2. Surveillance of Stored electronic communications (Tier 2)

a. Patriot Act significantly expands government electronic surveillance power

b. Allows government access to stored communications (voice mail and e-mail messages (not just telephone numbers and e-mail addresses)

c. Applies to “any criminal investigation”

d. Limits to government Tier 2 surveillance power

i. Messages stored less than 6 months (warrant and probable required)

ii. Messages stored over 6 months (Warrant required but 90-day delay in notification to subscriber allowed if court determines notification “may have an adverse result.”

C. Secret “caller ID” (Tier 3)

a. Government power broader than tier 2 but invades individual privacy less

b. Power of secret “caller ID” allows government to access pen registers and trap and trace telephone numbers.

i. To investigate any crime

ii. Without court approval

iii. Without ever notifying subscribers

c. limitation: approval of department superior required

d. Patriot Act expansions

i. Creates power to seek court order to retrieve e-mail headers (not messages)

ii. Orders apply to “anywhere in the U.S.” not just district where order approved

e. Patriot Act limits: Government required to submit report to court showing

i. Name of officer who installed and/or accessed device

ii. Date and time of device installation, access, disconnection

iii. Device configuration and modification

iv. Information captured

IV. “Sneak and Peek” Searches

A. Variation of “no knock” entries (Chapter 6)

B. Allow officers to enter private places without owner consenting or knowing about the entry.

C. Up to 9/11 used mainly in drug cases with court approval but no statute.

D. Patriot Act included the use of “sneak and peek” warrants if

a. court finds reasonable cause to believe notification may have an “adverse effect”

b. warrant prohibits seizure of any property except where court finds reasonable necessity for seizure

c. warrant provides for giving notice within a reasonable time of execution

d. Controversy over Patriot Act provision

i. Against: Gives government too much power

ii. For: reasonably balances government need and individual privacy in the fight against terrorism

V. Detention of Terrorist Suspects

A. Ordinary times—even brief detentions are unreasonable 4^th amendment seizures without an objective basis to back them up. (Chapters 4, 5, 12)

B. Balancing security and rights after 9/11

1. Presidential Proclamation 7463 (September 14, 2001) declared “national emergency.”

2. Congressional joint resolution Authorization for Use of Military Force (September 14, 2001) to catch 9/11 attackers and their supporters and to prevent future terrorist attacks.

3. President’s Military Order of November 13, 2001 provided for rules of detention, treatment, and trial of “certain non citizens” in the “war against terrorism.”

a. Broad definition of non citizens to include persons who there’s reason to believe

i. Is a past or present al Qaeda member

ii. has acted in some connection with acts of international terrorism or

iii. has knowingly harbored one or more individuals described in 1 or 2…

b. Conditions of confinement and treatment of detainees

i. Humane and non discriminatory treatment

ii. Afford adequate food, water, shelter, clothing, and medical treatment

iii. Allowed free exercise of religion

iv. Secretary of Defense may prescribe other conditions

C. Detaining citizens after 9/11 (Padilla v. Rumsfeld 2003)

a. U.S. Circuit Court affirms the right to detain citizens

b. No right to detain citizens indefinitely

c. Detained citizens have a right to challenge detention

VI. Right to Counsel

A. Sixth Amendment guarantees the right to the assistance of counsel in “all criminal prosecution” so all persons detained for prosecution of terrorist-related crimes are protected by the right to counsel (Chapter 12

B. Terrorist detention cases aren’t all criminal cases so detainees don’t have a Sixth Amendment right to counsel.

C. But terrorists have a right to counsel created by statutes

1. habeas corpus statute implies right to assistance of a lawyer to help challenge detention

2. All Writs Act permits appointment of counsel in habeas proceedings “if the interests of justice so require.”

VII. Trial

A. Suspected terrorists can be tried either for crimes in ordinary (Article III) courts or for war crimes (acts during wartime that inflict “needless and disproportionate suffering and damages” in pursuit of a “military objective.”) by military commissions (courts).

B. Ordinary rules govern trials in Article III courts (Chapters 10-14)

C. Special rules with fewer rights and more relaxed procedures and standards of proof govern military commissions

D. Sources of military commission authority according to Military Order of November 13, 2001

1. U.S. Constitution, Article II, Section 2: Commander-in-Chief

2.  U.S. Constitution, Article II, Section 2: President to “faithfully” execute the laws

3. Laws include (according to the President), Articles of War and Authorization for Use of Military Force)

E. Jurisdiction of military commission according to Military Order of November 13, 2001

1. applies only to non citizens as defined in Order

2. individuals subject to the Order don’t “necessarily enjoy the same constitutional rights as citizens”

3. strips Article III courts of jurisdiction either to hear or review military commission cases (may not survive constitutional challenges)

VIII. Trial proceedings according to Military Order of November 13, 2001

A. Defendants have no constitutional rights to speedy trial, trial by jury, right to counsel, remain silent, or proof beyond a reasonable doubt.

B. Defendants trial rights under the Order:

9. the presumption of innocence

10. proof of guilt beyond a reasonable doubt

11. the right to call and cross examine witnesses

12. nothing said by an accused to his attorney may be used against defendants

13. no adverse inference for remaining silent,

14. overall requirement that any military commission proceeding be full and fair.

15. Each accused is entitled to Military Defense Counsel provided at no cost to him.

16. Accused may also hire a civilian defense counsel at no cost to the government under listed conditions

D. Finding of Guilt

1. two-thirds of Military Commission members required to find guilt

2. unanimous vote required for imposing death penalty

VII. Review of Commission proceedings

A. Review panel of 3 military officers review cases

B. Secretary of Defense reviews trial record and either

1. Send it back to Commission for further proceedings

2. Forward it to President with a recommended disposition

C. President may return case to Commission or make final decision

D. After final decision, sentence to be “promptly carried out.”

Review Questions

1. Identify and describe two limits on government’s emergency powers.

2. Summarize the history of criminal procedure in wartime.

3. Identify the difference between the responses to ordinary crime we’ve studied in previous chapters and the responses to domestic and international terrorism

4. Describe how our study of anti terrorism laws is limited and give two reasons for this limitation.

5. What requirement of a constitutional democracy are all federal anti-terrorism procedure laws based on?

6. Describe the two sides of the “chatter” about the changes in the balance between power and liberty brought about by September 11 attacks.

7. Identify three types of personal information not protected from electronic surveillance by the Fourth Amendment.

8. According to the U.S. Supreme Court, why are the sources of personal information you identified in Question 7 not protected from government surveillance by the Fourth Amendment?

9. Identify and describe the three tiers of the surveillance system designed to balance government power and individual privacy. Be sure to include in your description both government powers and the limits on that power in each tier.

10. How, if at all, has the U.S. Patriot Act modified the balance in question 9?

11. What were “sneak and peek” searches originally used for and how has their legal status and definition changed since 9/11?

12. List and describe the three conditions under which the Patriot Act authorizes judges to issue sneak and peek warrants.

13. Summarize the two sides of the argument over “sneak and peek” warrants that followed passage of the Patriot Act.

14. Identify and describe the significance of the three sources that have affected the balance balanced security and rights in the detention of terrorist suspects after 9/11.

15. Explain how the Sixth Amendment right to counsel works differently in ordinary criminal cases and terrorism cases where the object is not to prosecute suspects?

16. Identify and describe two sources for the right to counsel other than the Sixth Amendment.

17. Identify and describe the two kinds of proceedings for the trial of suspected terrorists.

18. Identify the sources of authority for Military Order of November 13, 2001 and describe the jurisdiction of military commissions created the Order.

19. How do the constitutional requirements that apply to Article III (ordinary) criminal courts differ from those of military commissions?

20. According to the Military Order of November 13, 2001, describe the following elements of a military trial: (a) the standard of proof; (b) the rule for votes in finding guilt; (c) the rights of the accused; and (d) the review process.

Key Terms

Laws of war

Total wars

Intelligence (as it relates to war)

USA Patriot Act

“law in books”

“law in action”

pen register

trap and trace

serious crime exception (in Crime Control and Safe Streets Act)

secret “caller ID” (as it relates to electronic surveillance)

“sneak and peek” searches

ex parte (court proceedings)

Presidential Proclamation 1763

Authorization for Use of Military Force (joint resolution)

Military Order of November 13, 2001

Pro se (as it relates to right to counsel)

Article III courts

Military commission

War crimes

courts martial

---

[1] These details should not be read to suggest that Padilla is in fact innocent or that the government lacked substantial reasons to be suspicious of him. We include them because they are relevant to our analysis of the President’s power to detain Padilla as an enemy combatant. As is evident from the government investigation, described below, the government had ample cause to suspect Padilla of involvement in a terrorist plot. We, of course, reach no conclusion as to Padilla’s guilt or innocence.

[2] Prior to oral argument, we reviewed the sealed Mobbs declaration as well as a sealed declaration of Vice Admiral Lowell E. Jacoby, the Director of the Defense Intelligence Agency, which was submitted to the District Court in connection with Secretary Rumsfeld’s motion for reconsideration. Nothing in the ensuing discussion or holdings relies on either of these sealed documents.

[3] “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.

[4] FN31. The debates on the Joint Resolution are at best equivocal as to the President’s powers and never mention the issue of detention. Therefore, even assuming they could overcome the lack of a specific grant to the President, they do not suggest that Congress authorized the detention of United States citizens captured on United States soil. Some legislators believed the President’s authority was strictly limited. See, e.g., 147 Cong. Rec. H5639 (Rep. Lantos: “to bring to bear the full force of American power abroad”). Supporters of the President’s power argued that it was too limited. See, e.g., id. at H5653 (Rep. Barr arguing that in addition to the joint resolution, Congress should declare war to “[g]ive the President the tools, the absolute flexibility he needs under international law and The Hague Convention to ferret these people out wherever they are, however he finds them, and get it done as quickly as possible”); id. at H5654 (Rep. Smith: “This resolution should have authorized the President to attack, apprehend, and punish terrorists whenever it is in the best interests of America to do so. Instead, the resolution limits the President to using force only against those responsible for the terrorist attacks last Tuesday. This is a significant restraint on the President’s ability to root out terrorism wherever it may be found.”)

[5] Under the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 4(A)(4), 6 U.S.T. 3317, 75 U.N . T.S. 135, prisoners of war subject to capture include all “persons who accompany the armed forces without actually being members thereof.”

[6] The Sixth Amendment to the Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const., amend. VI.

[7] That clause states that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.