No. 08-368 In the Supreme Court of the United States...2009/01/28 · No. 08-368 In the Supreme Court of the United States ALI SALEH KAHLAH AL-MARRI, Petitioner, v. COMMANDER DANIEL

No 08-368

In the Supreme Court of the United States

ALI SALEH KAHLAH AL-MARRI

Petitioner

v

COMMANDER DANIEL SPAGONEUSN CONSOLIDATED NAVAL BRIG

Respondent

On Writ of Certiorari tothe United States Court of Appeals

for the Fourth Circuit

BRIEF AMICUS CURIAE OF FORMERFEDERAL JUDGES AND FORMER SENIOR

JUSTICE DEPARTMENT OFFICIALS INSUPPORT OF PETITIONER

JAMES C SCHROEDER

GARY A ISAAC

Counsel of RecordHEATHER LEWIS DONNELL

Mayer Brown LLP71 South Wacker DriveChicago Illinois 60606(312) 782-0600

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

INTEREST OF THE AMICI CURIAE 1

SUMMARY OF ARGUMENT2

ARGUMENT 3

THE CRIMINAL JUSTICE SYSTEM ISWELL EQUIPPED TO PROSECUTEPEOPLE ACCUSED OF PLANNING ORCOMMITTING TERRORIST ACTS3

A The Criminal Justice System HasRepeatedly Proven Its Effectiveness InProsecuting Alleged Terrorists 6

B CIPA Equips Courts To EffectivelyManage Classified Material In TerrorismProsecutions12

C Evidence The Government ObtainsThrough FISA Surveillance May Be AdmittedWithout Compromising SensitiveInformation 16

D The Government Possesses OtherLawful Means By Which It Also MayProsecute And Imprison Persons SuspectedOf Terrorism 18

CONCLUSION 21

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Demore v Kim538 US 510 (2003) 20

Hamdi v Rumsfeld542 US 507 (2004) 4

In re Sealed Case310 F3d 717 (FIS Ct Rev 2002) 17 18

Rumsfeld v Padilla542 US 426 (2004) 4

United States v Abu Ali2006 US Dist Lexis 29461 (ED Va Apr17 2006) affrsquod and remanded 528 F3d210 (4th Cir 2008) petition for cert filed(Oct 6 2008) (No 08-464) 9

United States v Abu Ali395 F Supp 2d 338 (ED Va 2005) 8

United States v Abu Ali528 F3d 210 (4th Cir 2008) petition forcert filed (Oct 6 2008) (No 08-464) 9 14

United States v al-Arian267 F Supp 2d 1258 (MD Fla 2003) 18

United States v al-MoayadNo 03-cr-01322 (EDNY Nov 17 2003) 5

United States v Aref533 F3d 72 (2d Cir 2008) petitions forcert filed (Dec 8 2008) (Nos 08-7650 08-7651) 10

United States v Batiste2007 US Dist Lexis 61186 (SD Fla Aug21 2007) 8

iii

TABLE OF AUTHORITIESmdashcontinued

Page(s)

United States v El-Hage213 F3d 74 (2d Cir 2000) 5

United States v Faris162 F Apprsquox 199 (4th Cir 2005) 6

United States v Holy LandFound for Relief amp Dev 2007 US DistLEXIS 48616 (ND Tex July 5 2007) 18


United States v Lindh227 F Supp 2d 565 (ED Va 2002) 8

United States v MoussaouiNo 01-cr-00455 (ED Va May 4 2006) 20

United States v Odeh548 F3d 276 (2d Cir 2008) 11

United States v Paracha2006 WL 12768 (SDNY Jan 3 2006)affrsquod 2008 WL 2477392 (2d Cir June 192008) 11

United States v PaulNo 07-cr-00087 (SD Ohio Apr 23 2007) 18

United States v PaulNo 207-cr-00087-GLF (SD Ohio June 62008) 10

United States v Rahman189 F3d 88 (2d Cir 1999) 6 19

United States v Reid369 F3d 619 (1st Cir 2004) 7

iv


Page(s)

United States v Sabir2007 US Dist Lexis 77952 (SDNY Oct15 2007) 9

United States v Salameh152 F3d 88 (2d Cir 1998) 6

United States v Wen477 F3d 896 (7th Cir 2006) 17

United States v Yousef327 F3d 56 (2d Cir 2003) 6

Zadvydas v Davis533 US 678 (2001) 20

STATUTES

8 USC sect 1225(a) 20

8 USC sect 1226a(a)(3) 20

8 USC sect 1231(a)(1) 20

18 USC sect 32(a) 7

18 USC sect 373 19

18 USC sect 1001 19

18 USC sect 1425 19

18 USC sect 1546 19

18 USC sect 2332a(a)(1) 7

18 USC sect 2332b 5

18 USC sect 2339A 4 9 11

18 USC sect 2339B 4 8 9

18 USC sect 2339C 5

18 USC sect 2339D 5

18 USC sect 2384 4

v


Page(s)

18 USC sect 3142 5

18 USC app 3 sectsect 1-16 2

18 USC app 3 sect 3 12



18 USC app 3 sect 6 12 13



42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9

50 USC sect 1801 et seq 2

50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16

Intelligence Authorization Act for Fiscal Year1995 Pub L No 103-359 108 Stat 3443(1994) 16

USA Patriot Act Pub L 107-56 sect 1004 115Stat 272 (2001) 16

vi


Page(s)

MISCELLANEOUS

Vanessa Blum Third Liberty City Trial Set forJanuary New Lawyers Get Time ToPrepare SUN-SENTINEL May 1 2008 at 2B 8

Robert M Chesney Beyond ConspiracyAnticipatory Prosecution and the Challengeof Unaffiliated Terrorism 80 S CAL LREV 425 (2007) 19

John C Coughenour The Right Place to TryTerrorism Cases WASH POST July 272008 at B7 14 20

Deprsquot of Justice Press Release available athttpwwwusdojgovopapr2008December08-nsd-1127html 11

Jack Epstein amp Johnny Miller The Record inCourt of US Charges Brought AgainstTerrorism Suspects by the JusticeDepartment SF CHRONICLE Sept 172004 at A3 7

Mitch Frank Terror Goes on Trial TIME Mar7 2005 at 34 7

John J Goldman First ldquoLackawanna SixrdquoSentencing LA TIMES Dec 4 2003 atA20 7

John J Goldman Last of the ldquoLackawannaSixrdquo Terror Defendants Sentenced LATIMES Dec 18 2003 at A38 7

Jury selection begins in Florida terror retrialASSOCIATED PRESS Jan 27 2009 8

vii


Page(s)

Eric Lichtblau Scholar Is Given Life Sentencein lsquoVirginia Jihadrsquo Case NY TIMES July14 2005 at A21 9

Luis F Perez Cleared Man May Be DeportedSUN-SENTINEL Aug 25 2008 at 6B 8

Press Release US Attyrsquos Office D ConnJury Finds Former Member of US NavyGuilty of Terrorism and Espionage Charges(Mar 5 2008) 10

Kenneth Roth After Guantanamo The CaseAgainst Preventative Detention FOREIGN

AFFAIRS MayJune 2008 at 9 14

Mitch Stacy Egyptian student gets 15 years inFla terror case ASSOCIATED PRESS Dec18 2008 11

SERRIN TURNER amp STEPHEN J SCHULHOFERTHE SECRECY PROBLEM IN TERRORISM

TRIALS (Brennan Ctr For Justice 2005) 15

US Deprsquot of Justice 2006 CounterterrorismWhite Paper at 29-30 available athttptracsyredutracreportsterrorism169includeterrorismwhitepaperpdf 19

Richard B Zabel amp James J Benjamin JrIN PURSUIT OF JUSTICE PROSECUTING

TERRORISM CASES IN FEDERAL

COURTS (May 2008) 5 14 15 16 17 19

Paul von Zielbauer 5 Men Are Convicted inPlot on Fort Dix NY TIMES Dec 22 2008 11

INTEREST OF THE AMICI CURIAE1

Amici curiae are 14 former federal judges (one ofwhom was the Director of the FBI) 2 formerAttorneys General and 12 other former seniorofficials in the United States Department of JusticePlease see the attached Appendix for a list of theamici along with biographical information for eachone Amici are interested in this case because oftheir years of dedicated service to the United Statesand their commitment to the Constitution and therule of law Amici are gravely concerned about theFourth Circuitrsquos decision in this case which permitsthe government to seize and indefinitely imprisonanyone in this country citizens and non-citizensalike without the procedural protections provided incriminal prosecutions

The Fourth Circuitrsquos decision rests on thepremise that the ldquowar on terrorrdquo justifies deviationfrom settled principles of due process and that theExecutive Branch should be permitted to arrestwithin the United States and to detain indefinitelywithout charge or trial anyonemdasheven a legal alien orUnited States citizenmdashwhom it alleges to be anldquoenemy combatantrdquo We emphatically reject thatpremise Those who plan terrorist acts should betried and if guilty as charged convicted in a court oflaw Indeed in many cases in recent years thecriminal justice system has been used to effectivelyprosecute people accused of committing or planning

1 Pursuant to Rule 376 amici affirm that no counsel fora party authored this brief in whole or in part and that noperson other than amici and their counsel made amonetary contribution to its preparation or submissionThe partiesrsquo letters consenting to the filing of this briefhave been filed with the Clerkrsquos office

2

to commit acts of terrorism within the United StatesBased on their many years of experience amici areknowledgeable about the tools prosecutors possessthe ability of the federal courts to handle casesinvolving classified evidence and the effectiveness ofthe criminal justice system to prosecute allegedterrorists and protect American citizens

SUMMARY OF ARGUMENT

In this extraordinary case the Fourth Circuithas held that the government has the power to arrestand imprison indefinitely anyone in the UnitedStates mdash including American citizens mdash whom thegovernment suspects of being a potential terroristwithout the normal procedural protections found inthe criminal justice system This unprecedentedexpansion of Executive authority within the bordersof the United States is not only at odds with morethan 200 years of history but it is whollyunnecessary The United States criminal justicesystem is well equipped to prosecute and imprisonpeople who plan or commit terrorist acts in recentyears the United States has successfully prosecutedmany terrorists in the federal courts In additionthe Classified Information Procedures Act (ldquoCIPArdquo)18 USC app 3 sectsect 1-16 and the Foreign IntelligenceSurveillance Act (ldquoFISArdquo) 50 USC sect 1801 et seqprovide effective tools that courts have used tohandle terrorism prosecutions and the foreignintelligence and classified information often presentin such cases

It is essential that this Court reverse the FourthCircuitrsquos decision which permits the government toforgo the criminal process and instead implement aregime of indefinite Executive detention As long asthat ruling stands it will be a grave threat to the

3

civil liberties of American citizens an omnipresentcudgel that may be wielded by the Executive Branchat its discretion against anyone suspected of posing apotential threat

ARGUMENT

THE CRIMINAL JUSTICE SYSTEM IS WELLEQUIPPED TO PROSECUTE PEOPLEACCUSED OF PLANNING OR COMMITTINGTERRORIST ACTS

This case raises fundamental issues concerningthe power of the Executive Branch The FourthCircuit has held that the government has the powerto arrest and imprison indefinitely anyone in theUnited States whom the government suspects ofbeing a potential terrorist without the normalprocedural protections found in the criminal justicesystem (In this case for example al-Marri was heldincommunicado for 16 months without access to hisattorneys after the government dismissed thecriminal charges against him and decided to detainhim as an ldquoenemy combatantrdquo instead Pet 4)Moreover the unprecedented power granted to thegovernment by the Fourth Circuitrsquos decision appliesnot only to non-citizens seized in this country but toAmerican citizens as well We are gravely concernedthat the Fourth Circuitrsquos decision gives thegovernment unfettered discretion to avoid criminalprosecutions and the protections associated withthem such as the defendantrsquos right to counsel theright to hear all of the evidence offered against himthe right to confront witnesses and the governmentrsquosobligation to prove guilt beyond a reasonable doubt

Moreover we are concerned with the appearancein this case that the government may have subjected

4

al-Marri to indefinite military detention in order tointerrogate him outside the ldquostrictures of criminalprocessrdquo Pet App 54a n19 (Motz J concurring inthe judgment) (ldquoThe Governmentrsquos recent admissionin other litigation that it has subjected al-Marri torepeated interrogation during his imprisonment inthe Naval Brig would seem to substantiate al-Marrirsquoscontentionrdquo that he is being detained indefinitely forinterrogation outside the criminal justice system)As Justice OrsquoConnor wrote for the plurality in Hamdiv Rumsfeld 542 US 507 521 (2004) ldquoindefinitedetention for the purpose of interrogation is notauthorizedrdquo See also Rumsfeld v Padilla 542 US426 465 (2004) (Stevens J dissenting) (executivedetention is not ldquojustified by the naked interest inusing unlawful procedures to extract informationIncommunicado detention for months on end is sucha procedure For if this Nation is to remain trueto the ideals symbolized by its flag it must not wieldthe tools of tyrants even to resist an assault by theforces of tyrannyrdquo)

The Fourth Circuitrsquos decision is especiallytroubling because the animating force underlyingitmdashthe notion that indefinite executive detention isthe only means of preventing alleged terroristactivitymdashis demonstrably false Congress hasenacted a wide variety of statutes that may be usedto effectively prosecute suspected terrorists Seeeg 18 USC sect 2384 (conspiring to overthrow makewar or oppose by force the government of the UnitedStates) 18 USC sect 2339A (criminalizing theprovision of ldquomaterial support or resourcesrdquo toterrorist organizations for carrying out a number ofspecified offenses including murder kidnapping andthe violation of various anti-terrorism statutes) 18USC sect 2339B (criminalizing knowingly providing

5

material support for foreign terrorist organizationsbut not requiring intent that the support be used infurtherance of terrorist activity) 18 USC sect 2339C(prohibiting conduct that ldquodirectly or indirectlyrdquoprovides funds with the knowledge that the fundswill be used to carry out terrorist activities) 18USC sect 2339D (making it a crime to receivemilitary-type training from an organization that theSecretary of State has designated a foreign terroristorganization) 18 USC sect 2332b (criminalizing ldquoactsof terrorism transcending national boundariesrdquo)2 Asdiscussed in Section D infra there are also a varietyof other federal statutes that the government hasused to prosecute and imprison persons suspected ofterrorist-related activity

In addition CIPA and FISA provide effectivetools for the investigation and prosecution of thosesuspected of planning or committing terrorist actsFISA allows the government to lawfully conductelectronic surveillance and physical searches togather foreign intelligence CIPA establishesprocedures to handle classified information thatmight be used during a criminal trial

2 For defendants charged with terrorism-related offensesthere is a statutory presumption that the defendant willbe detained before trial 18 USC sect 3142 To overcomethat presumption defendants must show that they do notpose a risk to the community or a flight risk Order of De-tention United States v al-Moayad No 03-cr-01322(EDNY Nov 17 2003) (Dkt No 6) cited in Richard BZabel amp James J Benjamin Jr IN PURSUIT OF JUSTICEPROSECUTING TERRORISM CASES IN FEDERAL COURTS 85(May 2008) For example in the Embassy bombing casesdefendant El-Hage was detained thirty-three months be-fore his trial United States v El-Hage 213 F3d 74 81(2d Cir 2000)

6

A The Criminal Justice System HasRepeatedly Proven Its Effectiveness InProsecuting Alleged Terrorists

The criminal justice system has repeatedlydemonstrated its ability to prosecute terrorismcrimes including the following cases

1 In a series of related cases 17 individualswere convicted of planning and executing the 1993bombing of the World Trade Center conspiring tobomb United States commercial airliners inSoutheast Asia and engaging in a seditiousconspiracy ldquoto wage a war of urban terrorism againstthe United States and forcibly to oppose itsauthorityrdquo United States v Rahman 189 F3d 88104 (2d Cir 1999) see also United States v Yousef327 F3d 56 (2d Cir 2003) United States v Salameh152 F3d 88 (2d Cir 1998) (all affirming convictions)Among the offenses for which the Rahmandefendants were convicted were seditious conspiracyattempted bombing a variety of firearms chargesand several counts of murder attempted murder andconspiracy to commit murder (including theattempted murder of Egyptian President HosniMubarak and the murder of Rabbi Meir Kahane)Rahman 189 F3d at 104

2 Iyman Faris was charged with and ultimatelypleaded guilty to conspiring with other members ofal Qaeda to destroy the Brooklyn Bridge UnitedStates v Faris 162 F Apprsquox 199 (4th Cir 2005)(affirming Farisrsquos conviction and 20-year sentence)

3 Seven young men dubbed the ldquoPortlandSevenrdquo were apprehended in 2002 and charged withvarious counts of conspiracy one fled the country forAfghanistan where he was killed in battle while the

7

other six pleaded guilty and received prisonsentences Mitch Frank Terror Goes on Trial TIMEMar 7 2005 at 34 Jack Epstein amp Johnny MillerThe Record in Court of US Charges Brought AgainstTerrorism Suspects by the Justice Department SFCHRONICLE Sept 17 2004 at A3

4 Six men from New York State who came to beknown as ldquoThe Lackawanna Sixrdquo were charged withproviding material assistance to a terroristorganization after they traveled to Afghanistan totrain at an Al Qaeda training camp where they metwith Osama bin Laden All six defendants enteredguilty pleas and were sentenced to prison termsJohn J Goldman First ldquoLackawanna SixrdquoSentencing LA TIMES Dec 4 2003 at A20 John JGoldman Last of the ldquoLackawanna Sixrdquo TerrorDefendants Sentenced LA TIMES Dec 18 2003 atA38

5 On December 22 2001 Richard Reid wasarrested for trying to destroy an airplane withexplosives embedded in his shoes He later pleadedguilty to various terrorism-related offensesincluding attempted use of a weapon of massdestruction 18 USC sect 2332a(a)(1) placing anexplosive device on board an aircraft and interferingwith an airline flight crew and attendants 49 USCsect 46504 and attempted destruction of an aircraft 18USC sect 32(a) United States v Reid 369 F3d 619619 n1 (1st Cir 2004) He was sentenced to life inprison Id at 619-620

6 United States citizen John Walker Lindh wasapprehended in Afghanistan and ultimately pleadedguilty to charges that included assisting al Qaedaand carrying explosive devices He received a 20-

8

year sentence United States v Lindh 227 F Supp2d 565 (ED Va 2002)

7 In 2006 the government indicted sevensuspected terrorists including the grouprsquos leaderNarseal Batiste who were arrested in Florida forallegedly plotting to destroy the Sears TowerUnited States v Batiste 2007 US Dist Lexis 61186(SD Fla Aug 21 2007) They have been chargedwith violating 18 USC sectsect 2339B (providingmaterial support to terrorists) 2339A (providingmaterial support or resources to designated foreignterrorist organizations) 844(n) (conspiracy to importmanufacture distribute and store explosivematerials) and 2384 (treason sedition andsubversive activities) Id One of the defendants wasacquitted and now faces deportation to Haiti Luis FPerez Cleared Man May Be Deported SUN-SENTINEL Aug 25 2008 at 6B A third trial is setfor the remaining defendants after two mistrialsVanessa Blum Third Liberty City Trial Set forJanuary New Lawyers Get Time To Prepare SUN-SENTINEL May 1 2008 at 2B As of the time of thisfiling jury selection had begun Jury selection beginsin Florida terror retrial ASSOCIATED PRESS Jan 272009

8 Ahmed Omar Abu Ali was arrested in SaudiArabia and transferred to the United States wherehe was prosecuted for joining al Qaeda andparticipating in plans to commit terrorist acts withinthe United States United States v Abu Ali 395 FSupp 2d 338 341 (ED Va 2005) He was sentencedto 30 yearsrsquo imprisonment after being convicted ofnine counts including providing material supportand resources to a designated foreign terroristorganization in violation of 18 USC sect 2339B

9

conspiracy to provide material support to terroristsin violation of 18 USC sect 2339A and receiving fundsand services from al Qaeda in violation of 50 USCsect 1705(b) United States v Abu Ali 2006 US DistLexis 29461 at 2 n1 20 (ED Va Apr 17 2006)The Fourth Circuit recently affirmed his convictionand remanded to the district court for resentencingon the ground that the district courtrsquos significantdownward departure from the sentencing guidelineswas unjustified United States v Abu Ali 528 F3d210 269 (4th Cir 2008) petition for cert filed (Oct6 2008) (No 08-464)

9 Ali al-Timimi an Islamic scholar and allegedmember of the Virginia Jihad network whoencouraged young men to travel to foreign trainingcamps and join the Taliban to fight the UnitedStates was sentenced to life in prison after a juryconvicted him of conspiracy attempting to aid theTaliban soliciting treason soliciting others to wagewar against the United States and aiding andabetting the use of firearms and explosives EricLichtblau Scholar Is Given Life Sentence in lsquoVirginiaJihadrsquo Case NY TIMES July 14 2005 at A21

10 Rafiq Sabir a doctor living in Florida andTarik Shah were charged with conspiring to providemartial arts training and medical assistance to al-Qaeda in violation of 18 USC sect 2339B Sabir wasconvicted and sentenced to 25 years in prisonfollowing a five-week jury trial United States vSabir 2007 US Dist Lexis 77952 (SDNY Oct 152007) Shah pleaded guilty to all charges and wassentenced to 15 years in prison on November 7 2007Press Release US Attyrsquos Office SDNY BronxMartial Arts Instructor Sentenced to 15 Years in

10

Prison for Conspiring to Provide Material Support toAl-Qaeda (Nov 7 2007)

11 Al-Qaeda member Christopher Paul metrepeatedly with terrorist leaders in Pakistan andAfghanistan over the course of 15 years and receivedweapons training from them United States v PaulNo 207-cr-00087-GLF (SD Ohio June 6 2008)The Ohio resident pleaded guilty in June 2008 toconspiracy to use weapons of mass destructionagainst European and United States targets andwas sentenced to 20 years in prison Id

12 Yassin Aref and Mohammed Hossain twoAlbany mosque leaders were convicted of a moneylaundering conspiracy to provide material support toa terrorist organization in a case involving a schemeto use a missile in an attack on New York City TheSecond Circuit recently affirmed their convictionsand held that the district court properly sealedcertain classified documents in their trials UnitedStates v Aref 533 F3d 72 83 (2d Cir 2008)petitions for cert filed (Dec 8 2008) (Nos 08-765008-7651)

13 In March 2008 a jury found a formermember of the United States Navy Hassan Abu-Jihaad guilty of providing material support toterrorists and disclosing classified national defenseinformation as part of a conspiracy to kill UnitedStates citizens Press Release US Attyrsquos Office DConn Jury Finds Former Member of US NavyGuilty of Terrorism and Espionage Charges (Mar 52008)

14 On November 24 2008 the Second Circuitaffirmed the convictions of Mohamed Sadeek OdehMohamed Rashed Daoud Al-lsquoOwhali and Wadih El-

11

Hage for their involvement in the 1998 bombings ofthe American embassies in Kenya and TanzaniaUnited States v Odeh 548 F3d 276 (2d Cir 2008)In doing so the court held that the district courtrsquosreliance on CIPA to restrict access to classifiedinformation to individuals with security clearancedid not violate El-Hagersquos constitutional rights Id

15 On December 22 2008 a jury convicted fivedefendants for conspiracy to kill US soldiers at FortDix in a jihadist plot Paul von Zielbauer 5 Men AreConvicted in Plot on Fort Dix NY TIMES Dec 222008 The defendants potentially face lifeimprisonment

16 Ahmed Abdellatif Sherif Mohamed receiveda 15-year sentence after pleading guilty to providingmaterial support to a terrorist organization inviolation of 18 USC sect 2339A for possessing bombmaking material and posting an instruction video onremote bomb detonation on YouTube Mitch StacyEgyptian student gets 15 years in Fla terror caseASSOCIATED PRESS Dec 18 2008 see also Deprsquot ofJustice Press Release available at httpwwwusdojgovopapr2008December08-nsd-1127html

17 Uzair Paracha was sentenced to 30 yearsrsquoimprisonment after being convicted of variousterrorism-related charges for trying to obtainimmigration documents for an al Qaeda member andsafeguarding al Qaeda assets United States vParacha 2006 WL 12768 (SDNY Jan 3 2006)affrsquod 2008 WL 2477392 (2d Cir June 19 2008)

12

B CIPA Equips Courts To EffectivelyManage Classified Material InTerrorism Prosecutions

The Classified Information Procedures Act is animportant statutory tool that provides soundprocedures for courts to effectively manage classifiedinformation at issue in terrorism prosecutions Thecriminal justice systemrsquos record of effectivelyhandling classified information without securitybreaches reinforces the conclusion that our criminaljustice system is more than able to deal withterrorism prosecutions

CIPA contains the following central features

The government may seek a protective orderto prevent disclosure of classified informationprovided to a defendant in a trial 18 USCapp 3 sect 3

The defendant must provide the court andgovernment with written notice that heintends to use classified information 18USC app 3 sect 5

The court is authorized to determine therelevance and admissibility of all classifiedinformation including any classifiedinformation requested by the defendant 18USC app 3 sectsect 4 amp 6(a) The governmentmay request a hearing for the court to makesuch a determination that hearing may beheld in camera upon a proper showing that apublic hearing would disclose the classifiedinformation Id sect 6(a)

The statute also provides alternativeprocedures the court may use for addressing

13

classified information where the courtauthorizes its disclosure such as redactingclassified portions of documents or allowingfor a substitution such as a statementadmitting the relevant facts or a summary ofthe classified information 18 USC app 3sect 6(c)(1) In response to a courtrsquos decision toauthorize disclosure of classified information(or its substitute) the Attorney General maysubmit an affidavit ldquocertifying that disclosureof classified information would causeidentifiable damage to the national securityof the United States If so requested by theUnited States the court shall examine suchaffidavit in camera and ex parterdquo Idsect 6(c)(2) The court may also seal or close theproceedings Id sect 6(d) amp (f)

CIPA provides for immediate appeal of thedistrict courtrsquos decisions regarding theadmission or exclusion of classifiedinformation 18 USC app 3 sect 7

Section 8 provides procedures to deal withclassified information at trial such asadmitting only a portion of documents orevidence and taking further precautions withthe witnessesrsquo testimony to avoid disclosureof classified information 18 USC app 3sect 8

CIPA has been an effective tool in terrorismprosecutions It enables courts to protect nationalsecurity interests while at the same timeestablishing fair procedures that permit theprosecution of persons accused of planning orcommitting terrorist acts Judges with CIPAexperience ldquospeak of it as a reasonable compromise

14

between fairness and securityrdquo Kenneth Roth AfterGuantanamo The Case Against PreventativeDetention FOREIGN AFFAIRS MayJune 2008 at 9Judge Coughenour who presided over theMillennium Bomber trial in 2001 noted that CIPAldquoplayed a prominent role during the trialrdquo and thatldquothe actrsquos extensive protections [were] more thanadequaterdquo John C Coughenour The Right Place toTry Terrorism Cases WASH POST July 27 2008 atB7 Indeed a recent study concludes that ldquoCIPA hasprovided a flexible practical mechanism forproblems posed by classified evidencerdquo citing at leasteighteen terrorism cases where CIPA has beenemployed successfully Richard B Zabel amp James JBenjamin Jr IN PURSUIT OF JUSTICE PROSECUTING

TERRORISM CASES IN FEDERAL COURTS 85 (May 2008)See also eg Abu Ali 528 F3d at 250-255 (affirmingconvictions for terrorism-related offenses andexplaining in detail how the district courtldquoappropriately balancedrdquo the interests of thegovernment in protecting national security interestsand the defendantrsquos right to a fair trial)3

3 In his opinion below Judge Wilkinson cited twoinstances of alleged disclosures to support his view thatour criminal justice system is not up to the task ofprosecuting those accused of terrorism without creating adangerous security risk Pet App 214a-219a (WilkinsonJ concurring in part dissenting in part) (citing MichaelB Mukasey Jose Padilla Makes Bad Law WALL ST JAug 22 2007 at A15) First Judge Wilkinson referencedthe prosecution of Omar Adel Rahman in which thegovernmentrsquos list of unindicted co-conspirators wasturned over to the defendant and reportedly reachedOsama bin Laden in Khartoum shortly thereafter secondJudge Wilkinson referred to testimony given during thetrial of Ramzi Yousef the mastermind of the 1993 World

15

Indeed Patrick Fitzgerald the prosecutor in thecase arising out of the bombings of the Americanembassies in Tanzania and Kenya has commentedthat ldquo[w]hen you see how much classifiedinformation was involved in that case and when yousee that there werenrsquot any leaks you get pretty darnconfident that the federal courts are capable ofhandling these prosecutions I donrsquot think peoplerealize how well our system can work in protectingclassified informationrdquo SERRIN TURNER amp STEPHEN

J SCHULHOFER THE SECRECY PROBLEM IN

TERRORISM TRIALS 25 (Brennan Ctr For Justice2005) (quoting a November 29 2004 consultationwith Patrick Fitzgerald)

Trade Center bombings that allegedly helped terroristsdiscover that one of their communications links had beencompromised

In both cases however the government apparently didnot invoke CIPA to limit access to the evidence IN

PURSUIT OF JUSTICE at 88-89 With respect to the list ofco-conspirators in Rahmanrsquos trial the governmentevidently did not invoke CIPA to prevent disclosure of thelist in other cases since then including the EmbassyBombings case the government has successfully invokedCIPA to prevent disclosure of sensitive information Idat 88 (citing the protective order issued in United Statesv El-Hage No 98-cr-001023 (SDNY Dec 17 1998)(Dkt 27)) With respect to the second example publiclyavailable information cannot confirm the incident butagain the trial record does not indicate that thegovernment invoked CIPA to prevent disclosure of thetestimony that Judge Wilkinson referenced Id at 88Far from illustrating the inadequacies of CIPA theseexamples highlight the importance of invoking thestatutersquos protections more fully

16

C Evidence The Government ObtainsThrough FISA Surveillance May BeAdmitted Without CompromisingSensitive Information

The admissibility of evidence obtained throughsurveillance under the Foreign IntelligenceSurveillance Act and the Executiversquos ability tointroduce surveillance-derived evidence withoutcompromising its sources and methods have furtherenhanced the governmentrsquos ability to successfullyprosecute suspected terrorists in the criminal justicesystem

FISA was originally enacted in 1978 to permitthe government to conduct lawful electronic searchesfor the purpose of gathering foreign intelligencewithin the United States without satisfying theFourth Amendmentrsquos criminal probable causerequirements IN PURSUIT OF JUSTICE at 77 4 Underthe 1978 statutory scheme the government had toshow that the ldquoprimary purposerdquo of the interceptionwas for obtaining foreign intelligence 50 USCsect 1804 In 2001 Congress amended FISA in theUSA Patriot Act Pub L 107-56 sect 1004 115 Stat272 (2001) making it easier for the government tomeet its burden to obtain FISA surveillance and touse information discovered in that surveillance in

4 Congress amended FISA in 1994 to expand its reach tophysical searches Intelligence Authorization Act forFiscal Year 1995 Pub L No 103-359 108 Stat 3443(1994) In 1998 Congress amended the statute to createmodified procedures for obtaining pen registers and toauthorize the Executive Branch to access business recordsfor foreign intelligence and international terrorisminvestigations See 50 USC sectsect 1861-1862

17

criminal prosecutions For example the Patriot Actchanged the governmentrsquos burden from having toshow that the ldquoprimary purposerdquo was to obtaininternational intelligence to show only that ldquoasignificant purposerdquo of the interception was to obtaininternational intelligence 50 USC sect 1804(a)(6)(B)In addition Congress explicitly allowed federalofficers who obtained foreign intelligence informationto ldquoconsult with Federal law enforcement officers tocoordinate efforts to investigate or protect againstrdquoattack or other acts of terrorism 50 USCsect 1806(k)(1)

Moreover FISA allows the special ForeignIntelligence Surveillance Court (ldquoFISCrdquo) whichmeets ex parte and in secret to authorize electronicsurveillance and physical searches5 A FISA order isbased on probable cause that the target is a foreignpower or an agent of a foreign power 50 USC sect1805(a)

Material obtained under FISA may be admittedin criminal trials See United States v Wen 477F3d 896 897 (7th Cir 2006) (Easterbrook J) (citingIn re Sealed Case 310 F3d 717 (FIS Ct Rev2002)) As the FISA review court explained in In reSealed Case ldquoCongress did not impose anyrestrictions on the governmentrsquos use of the foreignintelligence information to prosecute agents offoreign powers for foreign intelligence crimesrdquo 310

5 The Justice Department submitted 2181 FISAapplications in 2006mdashdouble the number submitted in2001 Of those applications the FISC rejected only oneSee IN PURSUIT OF JUSTICE at 81 (citing Letter fromRichard A Hertling Acting Assistant Attrsquoy Gen to HonNancy Pelosi (Apr 27 2007))

18

F3d at 725 Thus the government is able to useFISA evidence in terrorism prosecutions See egUnited States v Holy Land Found for Relief amp Dev2007 US Dist LEXIS 50239 at 12-13 26 (NDTex July 11 2007) (denying defendantsrsquo motions tocompel production of the FISA application and tosuppress non-privileged evidence obtained from theFISA surveillance) United States v Holy LandFound for Relief amp Dev 2007 US Dist LEXIS48616 at 8-9 (ND Tex July 5 2007) (denyingdefendantsrsquo motion to declassify all communicationsobtained via FISA) United States v Paul No 07-cr-00087 (SD Ohio Apr 23 2007) (Dkt 19)(governmentrsquos notice that it would use evidenceobtained through electronic and physical FISAsurveillances the defendant pleaded guilty in June2008 see Dkt 59 amp 60) United States v al-Arian267 F Supp 2d 1258 1260 (MD Fla 2003) (trialevidence was to include 21000 hours of telephonerecordings in Arabic obtained under FISA defendantlater pleaded guilty) Moreover 50 USC sect 1806(f)provides that FISA materials in specifiedcircumstances shall be reviewed by the court exparte and in camera to determine whether the FISAsurveillance was lawfully authorized and conducted

D The Government Possesses Other Law-ful Means By Which It Also May Prose-cute And Imprison Persons SuspectedOf Terrorism

In addition to statutes aimed specifically atterrorist-related activity the government has avariety of other lawful means by which it mayprosecute and imprison suspected terrorists and thusthwart terrorist activity in its nascent stages

19

For example the Department of Justice hasprosecuted suspected terrorists for fraudulentlyobtaining travel documents (18 USC sect 1546) forimmigration violations (18 USC sect 1425) formaking misrepresentations to federal investigators(18 USC sect 1001) and for use of a false socialsecurity number (42 USC sect 408(a)(7)(B)) See USDeprsquot of Justice 2006 Counterterrorism White Paperat 29-30 available at httptracsyredutracreportsterrorism169includeterrorismwhitepaperpdf seealso IN PURSUIT OF JUSTICE at 51-54 Robert MChesney Beyond Conspiracy AnticipatoryProsecution and the Challenge of UnaffiliatedTerrorism 80 S CAL L REV 425 430-433 (2007)The government has also prosecuted suspectedterrorists under the criminal solicitation statute 18USC sect 373 see eg Rahman 189 F3d at 125-126as well as for other garden variety crimes such asfraud money laundering or illegal possession offirearms

Indeed the government originally employed thisstrategy with al-Marri charging him with variouscriminal violations including credit card fraudmaking false statements to the FBI and identitytheft Pet Br 3 Had al-Marri been convicted on allcounts he could have been sentenced for up to 30yearsrsquo imprisonment under federal sentencingguidelines because of the enhancements for terrorist-related activity See USSG sect 3A146 See also idn2

6 Section 3A14 of the federal sentencing guidelines provides foran increased sentence for defendants charged with a felonyldquothat involved or was intended to promote a federal crime ofterrorismrdquo

20

The government also used this strategy againstZacarias Moussaoui The government originallyarrested Moussaoui on immigration charges foroverstaying his visa when he raised suspicions at theflight school he attended He ultimately pleadedguilty to conspiracy charges related to the September11 attacks on the World Trade Center and wassentenced to life Judgment United States vMoussaoui No 01-cr-00455 (ED Va May 4 2006)

The government also has the authority to detainindividuals during pending deportation proceedings8 USC sect 1225(a) (authorizing the Attorney Generalto issue warrants for the arrest and detention of anyalien pending a removal decision) Indeed detentionis mandatory when the alien is reasonably believedto be engaged in terrorist activity 8 USC sect1226a(a)(3) see also Demore v Kim 538 US 510513 (2003) (holding that mandatory detention underthe Immigration Act does not violate the Due ProcessClause) And once an order for removal has beenentered the government is authorized to detain thealien for a reasonable period necessary to secureremoval 8 USC sect 1231(a)(1) Zadvydas v Davis533 US 678 682 (2001)

Judge Coughenour recently wrote that ldquo[a]sconstituted US courts are not only an adequatevenue for trying terrorism suspects but are also atremendous asset in combating terrorismrdquo TheRight Place to Try Terrorism Cases WASH POSTJuly 27 2008 at B7 We wholeheartedly agree Thecases and statutes we have discussed demonstratethat the existing criminal justice system is morethan up to the task of prosecuting and bringing tojustice those who plan or attempt terrorist acts

21

within the United Statesmdashwithout sacrificing any ofthe rights and protections that have been thehallmarks of the American legal system for morethan 200 years But unless the Fourth Circuitrsquosdecision is overturned the potential for indefiniteExecutive detention will threaten the civil liberties ofeveryone in this Nation

CONCLUSION

The judgment of the court of appeals should bereversed

Respectfully submitted

JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION

The amici curiae are as follows

Judge William G Bassler served on the UnitedStates District Court for the District of New Jerseyfrom 1991 to 2006 and on the Superior Court for theState of New Jersey from 1988 to 1991

Robert C Bundy was United States Attorney forthe District of Alaska from 1994 to 2001 He iscurrently Of Counsel to Dorsey amp Whitney LLP inAnchorage

A Bates Butler III was United States Attorneyfor the District of Arizona from 1980 to 1981 andFirst Assistant United States Attorney for theDistrict of Arizona from 1977 to 1980

Judge Edward N Cahn served on the UnitedStates District Court for the Eastern District ofPennsylvania from 1974 to 1998 and served as ChiefJudge from 1993 to 1998 Judge Cahn is currentlyOf Counsel to Blank Rome LLP

W Thomas Dillard was United States Attorneyfor the Eastern District of Tennessee in 1981 and theNorthern District of Florida from 1983 through 1986He is currently a partner at Ritchie Dillard ampDavies PC in Knoxville

Edward L Dowd Jr was United States Attorneyfor the Eastern District of Missouri from 1993 to1999 and the Deputy Special Counsel for the WacoInvestigation under Special Counsel from 1999 to2000 He is currently a partner at Dowd BennettLLP in St Louis

Judge Susan Getzendanner served on the UnitedStates District Court for the Northern District of

2a

Illinois from 1980 to 1987 From 1987 to 1991 shewas a partner at Skadden Arps Slate Meagher ampFlom Prior to serving on the federal judiciary shewas an associate and partner at Mayer Brown LLPSince 1991 Judge Getzendanner has worked as anarbitrator

Judge Shirley M Hufstedler served on theUnited States Court of Appeals for the Ninth Circuitfrom 1968 to 1979 Judge Hufstedler also served asAssociate Justice for the California Court of Appealsfrom 1966 to 1968 and as a judge on the Los AngelesCounty Superior Court from 1961 to 1966 Inaddition she served as United States Secretary ofEducation from 1979 to 1981

Judge Nathaniel R Jones served on the UnitedStates Court of Appeals for the Sixth Circuit from1979 to 2002 and as Assistant United StatesAttorney for the Northern District of Ohio He iscurrently Of Counsel at Blank Rome LLP inCincinnati Ohio

William A Kimbrough was United StatesAttorney for the Southern District of Alabama from1977 to 1981

Nicholas deB Katzenbach served as AttorneyGeneral of the United States from 1965 to 1966Deputy Attorney General from 1962 to 1965 andAssistant Attorney General from 1961 to 1962

Philip Allen Lacovara was Deputy SolicitorGeneral of the United States in charge of criminaland internal security cases before the Supreme Courtfrom 1972 to 1973 and Counsel to the SpecialProsecutor Watergate Special Prosecution Forcefrom 1973 to 1974 He is now senior counsel atMayer Brown LLP in New York City

3a

Judge Thomas D Lambros served on the UnitedStates District Court for the Northern District ofOhio from 1967 to 1995 and served as Chief Judgefrom 1990 to 1995 Judge Lambros also served asJudge of the Ohio Court of Common Pleas from 1961until 1967

Judge George N Leighton served on the UnitedStates District Court for the Northern District ofIllinois from 1976 to 1987 He served as Justice ofthe Illinois Appellate Court from 1969 to 1976 and asJudge on the Circuit Court of Cook County Illinoisfrom 1964 to 1969 Judge Leighton is a SeniorCounselor of the Illinois Bar Association Sinceretiring from the federal judiciary Judge Leightonhas been Of Counsel with the Chicago firm Neal andLeroy LLC

Judge Timothy K Lewis served on the UnitedStates Court of Appeals for the Third Circuit from1992 to 1999 and on the United States District Courtfor the Western District of Pennsylvania from 1991to 1992 He is a former Assistant United StatesAttorney for the Western District of Pennsylvaniaand Assistant District Attorney for AlleghenyCounty Pennsylvania

David L Lillehaug was the United StatesAttorney for the District of Minnesota from 1994 to1998 He is currently an officer and shareholder atFredrikson amp Byron PA in Minneapolis

Kenneth J Mighell was United States Attorneyfor the Northern District of Texas from 1977 to 1981and Assistant United States Attorney for 16 yearsHe is currently Of Counsel to Cowles amp Thompson inDallas

4a

Judge Abner J Mikva served on the UnitedStates Court of Appeals for the District of ColumbiaCircuit from 1979 to 1995 and served as Chief Judgefrom 1991 to 1994 He served as White HouseCounsel from 1994 to 1995 He served Illinois as amember of the United States House ofRepresentatives from 1969 to 1973 and from 1975 to1979 He was an Illinois State Representative from1956 to 1966 He was a visiting professor at theUniversity of Chicago from 1996 until 2008

Judge Stephen M Orlofsky served on the UnitedStates District Court for the District of New Jerseyfrom 1995 to 2003 and was Magistrate Judge from1976 to 1980 He is currently a partner at BlankRome LLP

H James Pickerstein was Court AppointedUnited States Attorney for the District ofConnecticut from 1973 to 1974 and Chief AssistantUnited States Attorney for the District ofConnecticut from 1974 to 1986 He is currently apartner at Pepe amp Hazard LLP in Connecticut

Janet Reno served as Attorney General of theUnited States from 1993 to 2001 She was the StateAttorney of the Eleventh Judicial District of Floridafrom 1978 to 1993

Richard A Rossman was United States Attorneyfor the Eastern District of Michigan from 1980 to1981 and Chief of Staff for the Criminal Division ofthe United States Department of Justice from 1998to 1999

Judge H Lee Sarokin served on the UnitedStates Court of Appeals for the Third Circuit from1994 to 1996 and served on the United States

5a

District Court for the District of New Jersey from1979 to 1994

Judge William S Sessions was Director of theFederal Bureau of Investigation from 1987 to 1993He served on the United States District Court for theWestern District of Texas from 1974 to 1987 andserved as Chief Judge from 1980 to 1987 He wasUnited States Attorney for the Western District ofTexas from 1971 to 1974 He is currently a partnerat Holland amp Knight LLP

Thomas P Sullivan was United States Attorneyfor the Northern District of Illinois from 1977 to1981 He is currently a partner at Jenner amp BlockLLP in Chicago

Judge Patricia M Wald served on the UnitedStates Court of Appeals for the District of ColumbiaCircuit from 1979 to 1999 and served as Chief Judgefrom 1986 to 1991 She was the United States Judgeto the International Criminal Tribunal for theFormer Yugoslavia from 1999 to 2001

Francis M Wikstrom was United StatesAttorney for the District of Utah in 1981 He iscurrently an attorney at Parsons Behle amp Latimer inSalt Lake City Utah

Judge Alfred M Wolin served on the UnitedStates District Court for the District of New Jerseyfrom 1987 to 2004 He was Presiding Judge for theSuperior Court of New Jersey Criminal Divisionfrom 1983 to 1987 and a judge on the Superior Courtof New Jersey Civil Division from 1982 to 1983

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

INTEREST OF THE AMICI CURIAE 1

SUMMARY OF ARGUMENT2

ARGUMENT 3

THE CRIMINAL JUSTICE SYSTEM ISWELL EQUIPPED TO PROSECUTEPEOPLE ACCUSED OF PLANNING ORCOMMITTING TERRORIST ACTS3

A The Criminal Justice System HasRepeatedly Proven Its Effectiveness InProsecuting Alleged Terrorists 6

B CIPA Equips Courts To EffectivelyManage Classified Material In TerrorismProsecutions12

C Evidence The Government ObtainsThrough FISA Surveillance May Be AdmittedWithout Compromising SensitiveInformation 16

D The Government Possesses OtherLawful Means By Which It Also MayProsecute And Imprison Persons SuspectedOf Terrorism 18

CONCLUSION 21

ii


Page(s)

CASES

Demore v Kim538 US 510 (2003) 20











iii


Page(s)













iv


Page(s)






STATUTES

8 USC sect 1225(a) 20

8 USC sect 1226a(a)(3) 20

8 USC sect 1231(a)(1) 20

18 USC sect 32(a) 7

18 USC sect 373 19

18 USC sect 1001 19

18 USC sect 1425 19

18 USC sect 1546 19

18 USC sect 2332a(a)(1) 7

18 USC sect 2332b 5

18 USC sect 2339A 4 9 11

18 USC sect 2339B 4 8 9

18 USC sect 2339C 5

18 USC sect 2339D 5

18 USC sect 2384 4

v


Page(s)

18 USC sect 3142 5








42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9


50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16



vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







ii


Page(s)

CASES

Demore v Kim538 US 510 (2003) 20











iii


Page(s)













iv


Page(s)






STATUTES

8 USC sect 1225(a) 20

8 USC sect 1226a(a)(3) 20

8 USC sect 1231(a)(1) 20

18 USC sect 32(a) 7

18 USC sect 373 19

18 USC sect 1001 19

18 USC sect 1425 19

18 USC sect 1546 19

18 USC sect 2332a(a)(1) 7

18 USC sect 2332b 5

18 USC sect 2339A 4 9 11

18 USC sect 2339B 4 8 9

18 USC sect 2339C 5

18 USC sect 2339D 5

18 USC sect 2384 4

v


Page(s)

18 USC sect 3142 5








42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9


50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16



vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







iii


Page(s)













iv


Page(s)






STATUTES

8 USC sect 1225(a) 20

8 USC sect 1226a(a)(3) 20

8 USC sect 1231(a)(1) 20

18 USC sect 32(a) 7

18 USC sect 373 19

18 USC sect 1001 19

18 USC sect 1425 19

18 USC sect 1546 19

18 USC sect 2332a(a)(1) 7

18 USC sect 2332b 5

18 USC sect 2339A 4 9 11

18 USC sect 2339B 4 8 9

18 USC sect 2339C 5

18 USC sect 2339D 5

18 USC sect 2384 4

v


Page(s)

18 USC sect 3142 5








42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9


50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16



vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







iv


Page(s)






STATUTES

8 USC sect 1225(a) 20

8 USC sect 1226a(a)(3) 20

8 USC sect 1231(a)(1) 20

18 USC sect 32(a) 7

18 USC sect 373 19

18 USC sect 1001 19

18 USC sect 1425 19

18 USC sect 1546 19

18 USC sect 2332a(a)(1) 7

18 USC sect 2332b 5

18 USC sect 2339A 4 9 11

18 USC sect 2339B 4 8 9

18 USC sect 2339C 5

18 USC sect 2339D 5

18 USC sect 2384 4

v


Page(s)

18 USC sect 3142 5








42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9


50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16



vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







v


Page(s)

18 USC sect 3142 5








42 USC sect 408(a)(7)(B) 19

49 USC sect 46504 7

50 USC sect 1705(b) 9


50 USC sect 1804 16

50 USC sect 1804(a)(6)(B) 17

50 USC sect 1805(a) 17

50 USC sect 1806(f) 18

50 USC sect 1806(k)(1) 17

50 USC sectsect 1861-1862 16



vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







vi


Page(s)

MISCELLANEOUS










vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







vii


Page(s)












COURTS (May 2008) 5 14 15 16 17 19






2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a











2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







2


SUMMARY OF ARGUMENT



3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







3


ARGUMENT




4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







4



5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







5




6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







6






7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







7





8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







8




9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







9




10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







10






11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







11





12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







12








13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







13





14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







14




15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







15







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







16





17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







17





18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







18




19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







19




20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







20




21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







21


CONCLUSION



JAMES C SCHROEDER

GARY A ISAAC




JANUARY 2009

APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







APPENDIX

APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







APPENDIX

AMICI INFORMATION









2a







3a






4a







5a







2a







3a






4a







5a







3a






4a







5a







4a







5a







5a







Documents

No. 08-368 In the Supreme Court of the United States...2009/01/28 · No. 08-368 In the Supreme Court of the United States ALI SALEH KAHLAH AL-MARRI, Petitioner, v. COMMANDER DANIEL