SUMMARY OF RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS HAVING CIVIL LIBERTIES IMPLICATIONS1

Nancy Chang, Center for Constitutional Rights (New York City) and Alan Kabat, Bernabei & Katz, PLLC (Washington, D.C.)

March 8, 2004

Introduction ...... 2

I. The Detention of Non-Citizens of Special Interest to the Government’s Terrorism Investigation Based on Immigration Charges . . . 3 A. The Blanket Closure of Immigration Hearings to the Press and Public 3 B. Freedom of Information Act Requests for Information on Non-Citizens Detained by the INS Following the September 11, 2001 Terrorist Attacks 4 C. Civil Rights Lawsuits Brought by INS Detainees Seeking Damages and Other Relief ...... 5

II. The Detention of Material Witnesses for Grand Juries . . . 8

III. The Military Detention of Enemy Combatants and Foreign Nationals . 9

1 Nancy Chang and the Center for Constitutional Rights are counsel of record in a number of cases described in this paper, including North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 123 S. Ct. 2215 (2003), Humanitarian Law Project, et al., v. Ashcroft, et al., 352 F.3d 382 (9th Cir. 2003) (“Humanitarian Law Project I”), Humanitarian Law Project, et al. v. Ashcroft, et al., 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 23, 2004) (“Humanitarian Law Project II”), Haddad v. Ashcroft, 221 F. Supp. 2d 799 (E.D. Mich. 2002), and Turkmen, et al., v. Ashcroft, et al., No. 02 CV 2307 (JG) (E.D.N.Y.). In addition, Nancy and the Center have submitted amicus briefs in support of several individuals whose cases are described in this paper, including Jose Padilla, Lynne Stewart, and John Walker Lindh.

Alan Kabat and Bernabei & Katz, PLLC, are counsel of record in Burnett, et al. v. Al Baraka Investment and Development Corporation, et al., 274 F. Supp. 2d 86 (D.D.C. 2003), and 32 County Sovereignty Committee v. Department of State, 292 F.3d 797 (D.C. Cir. 2002).

Preliminary versions of this paper were presented at the July 26, 2003 and January 23, 2004 meetings of the National Coalition to Protect Political Freedom (NCPPF) in Washington, D.C. The authors express their appreciation to the NCPPF and its President, Kit Gage, for hosting these presentations.

Copyright Nancy Chang (Center for Constitutional Rights) and Alan Kabat (Bernabei & Katz, PLLC), 2003-2004 A. The Detention of American Citizens Designated as Enemy Combatants 9 B. The Detention of Foreign Nationals at the Guantanamo Bay Naval Base and Other Overseas Locations . . . . . 12

IV. Sixth Amendment Rights of Criminal Defendants Charged with Terrorist Crimes 14

V. The Crime of Providing Material Support to Proscribed Organizations . 17 A. The Designation of Groups as “Foreign Terrorist Organizations” . 17 B. Criminal Prosecutions for Material Support . . . . 19 C. Civil Damage Lawsuits Brought by Victims of Terrorism . . 29

VI. Affirmative Challenges to USA Patriot Act Provisions . . . 32

VII. Decisions of the Foreign Intelligence Surveillance Courts . . . 34

VIII. Freezing the Assets of Charities Alleged to Have Supported Terrorism . 36

IX. Secrecy in the Courts ...... 37

X. Government Interference with Public Protest . . . . . 38

Introduction

In the eleven years since the 1993 bombing of the World Trade Center in New York City, criminal prosecutions, civil lawsuits, habeas petitions, and other legal proceedings involving persons and groups alleged to have engaged in or supported terrorism have proliferated. The number of such proceedings has escalated sharply with the September 11, 2001 terrorist attacks on the United States and the subsequent enactment of the USA Patriot Act and introduction of executive anti-terrorism measures, and this trend has continued unabated to the present. Unfortunately, information documenting these legal developments is scattered about in case reporters, newspapers, and journals, and it has been difficult for the general public – and even lawyers – to obtain an overview of this rapidly evolving body of law. In order to assist interested members of the public, press, and the bar, we provide this compilation and analysis of recent court rulings on terrorism-related matters.

In times of national crisis, the executive branch and Congress traditionally implement measures in the name of security that expand the power of the government and contract the civil liberties of citizens – and, to a far greater degree, non-citizens. While the courts have traditionally served as a check on abuses of power by the political branches, they also have a strong tradition of deferring to the political branches on matters of national security. The period following the September 11, 2001 attacks has proven no exception to these general rules. One trend that we identify in this paper is an increased willingness on the part of the government to resort to what may be pretextual grounds for detaining those whom it wishes to investigate for terrorist ties but for whom it lacks the probable cause required under the Fourth Amendment to

2 hold in criminal detention. Another trend we identify is an increase in prosecutions that appear to impose guilt on the basis of political and religious associations with individuals and groups suspected of terrorism.

As the cases discussed below illustrate, the federal courts have divided between those that have scrutinized, and found wanting, the government’s rationale for actions that curtail our freedoms, and those that have accepted the rationales presented by the government at face value. At present, the U.S. Supreme Court has not issued any substantive decisions on the lawsuits discussed in this paper. On November 10, 2003, however, the Supreme Court agreed to review consolidated cases (Rasul and Al-Odah) that present the issue of whether the federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated by the United States military in Guantanamo Bay, Cuba. And on January 9, 2004, the Supreme Court agreed to review the case (Hamdi) of a U.S. citizen who was designated by the President as an enemy combatant in 2002 and who has been held in incommunicado detention in a military brig ever since; on February 20, 2004, the Supreme Court granted certiorari in another case brought by an enemy combatant (Padilla). However, in 2003 and early 2004, the Supreme Court denied petitions for certiorari review in three cases that challenged the secrecy surrounding INS detentions of non-citizens in the aftermath of the September 11 attacks (North Jersey Media Group, Center for National Security Studies, and M.K.B.).

We intend to update this paper on a periodic basis in order to incorporate new legal developments falling within our area of focus – civil rights and civil liberties in an age of terrorism. Information on new developments in the cases discussed in this paper and on cases that ought to be incorporated into future editions would be greatly appreciated, as would suggestions and corrections regarding our presentation of the cases in this paper. Please bear in mind that space and time limitations preclude us from presenting an exhaustive description of each case. Your comments should be submitted to Nancy Chang at [email protected] and to Alan Kabat at [email protected].

I. The Detention of Non-Citizens of Special Interest to the Government’s Terrorism Investigation Based on Immigration Charges.

A. The Blanket Closure of Immigration Hearings to the Press and Public.

On September 21, 2001, Chief Immigration Judge Michael Creppy issued a directive barring the press and public on a blanket basis from attending immigration hearings of individuals detained by the Immigration and Naturalization Service (INS)2 and classified by the government as being of “special interest” to its investigation of the September 11, 2001 terrorist attacks. The U.S. Courts of Appeal for the Third and Sixth Circuits split on the question of

2 On March 1, 2003, the INS was transferred from the Department of Justice to the Department of Homeland Security, and the INS’s enforcement functions were assumed by the Bureau of Immigration and Customs Enforcement (BICE).

3 whether the Creppy Directive comports with the First Amendment, and the U.S. Supreme Court declined review of this issue.3

The Sixth Circuit ruled in August 2002 that the press has a First Amendment right of access to the immigration hearings covered by the Creppy Directive unless the judge assigned to hear the matter has made an individualized determination that secrecy is required in order to protect national security. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002), reh’g en banc denied (Jan. 22, 2003). As Judge Damon Keith, the author of the Sixth Circuit opinion, explained: “Democracies die behind closed doors . . . . When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” Id. at 683. In a similar vein, Judge Nancy Edmunds of the U.S. District Court in Detroit held in a related case, Haddad v. Ashcroft, 221 F. Supp. 2d 799 (E.D. Mich. 2002), that the Creppy Directive interferes with an INS detainee’s right under the Due Process Clause to a fair and open immigration hearing.

But in November 2002, the Third Circuit deferred to the judgment of the Department of Justice (DOJ) and held that the Creppy Directive was constitutional. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 123 S. Ct. 2215 (2003). In doing so, the Third Circuit reversed the ruling of Chief Judge John Bissell of the U.S. District Court for New Jersey, who, in May 2002, had enjoined the operation of the Creppy Directive on the grounds that it was not narrowly tailored to serve the national security interests asserted by the government and therefore could not withstand the strong presumption of access to government proceedings under the First Amendment. North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d 288 (D.N.J. 2002). The Third Circuit denied rehearing en banc, and the media plaintiffs’ petition to the Supreme Court for certiorari review was denied in May 2003.

B. Freedom of Information Act Requests for Information on Non-Citizens Detained by the INS Following the September 11, 2001 Terrorist Attacks.

DOJ refused to comply with a Freedom of Information Act (FOIA) request filed in October 2001 by dozens of public interest organizations seeking the identities of the many hundreds of non-citizens who were arrested and detained by the INS in the wake of September 11. Judge Gladys Kessler of the U.S. District Court for the District of Columbia ordered DOJ to release the INS detainees’ names under supervised conditions. Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 215 F. Supp. 2d 94, 103 (D.D.C. 2002).

Instead of doing so, DOJ obtained a stay of the order from Judge Kessler and appealed her decision to the U.S. Court of Appeals for the D.C. Circuit. On June 17, 2003, the D.C. Circuit reversed Judge Kessler’s order and held that DOJ did not have to release the detainees’ names under any conditions, over a strong dissenting opinion by Judge Tatel. Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003). The majority opinion (authored by Judge Sentelle, and joined by Judge Henderson) deferred to the government’s assertion of national security concerns and concluded that FOIA’s law enforcement exemption, 5 U.S.C. § 552(b)(7)(A), shielded the names of detainees from public disclosure. Id. at 926-32.

3 The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands; the Sixth Circuit covers Kentucky, Michigan, Ohio, and Tennessee.

4 This exemption allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records of information . . . could reasonably be expected to interfere with enforcement proceedings.” U.S.C. § 552(b)(7)(A).

The panel also held that the names of the detainees’ attorneys could be withheld under the law enforcement exemption since that information might allow Al Qaeda operatives or others to contact the attorneys and compile a list of the detainees. Id. at 932-33. The panel rejected the plaintiffs’ First Amendment challenge, which was based on earlier decisions upholding the right of the public to obtain arrest records, on the grounds that the records being sought were not individual criminal judicial proceedings, but instead were comprehensive listings compiled from non-judicial records in a special investigation to prevent terrorism. Id. at 933-36. Judge Tatel’s dissent recognized that while “uniquely compelling governmental interests are at stake,” the majority’s approach was misguided:

While the government’s reasons for withholding some of the information may well be legitimate, the court’s uncritical deference to the government’s vague, poorly explained arguments for withholding broad categories of information about the detainees, as well as its willingness to fill in the factual and logical gaps in the government's case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.

Id. at 937 (Tatel, J., dissenting).

The plaintiffs filed their petition for certiorari review with the Supreme Court on September 29, 2003. However, on January 12, 2004, the Supreme Court denied the request. Center for National Security Studies v. Department of Justice, 124 S. Ct. 1041 (2004); see also C. Lane, “Secrecy Allowed on 9/11 Detention,” Washington Post, Jan. 13, 2004, at A-1, A-8.

C. Civil Rights Lawsuits Brought by INS Detainees Seeking Damages and Other Relief.

In April 2002, the Center for Constitutional Rights filed Turkmen v. Ashcroft, a civil rights suit for money damages and declaratory and injunctive relief, on behalf of a class of male non-citizens from the Middle East and South Asia with no ties to terrorism who were arrested following the September 11 attacks on the pretext of minor immigration violations and were improperly detained for months on end. Ibrahim Turkmen, Asif-Ur-Rehman Safi, Syed Amjad Ali Jaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, and Akil Sachveda v. John Ashcroft, Robert Mueller, James Ziglar, et al., No. 02 CV 2307 (JG) (E.D.N.Y.). On June 18, 2003, plaintiffs amended their complaint to incorporate newly revealed findings made by the DOJ’s Office of the Inspector General (OIG) in a report released on June 2, 2003, “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” This report and a second OIG report issued on December 5, 2003, “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York,” document that these detainees languished for months in INS detention without opportunity for release on bond until they were cleared of terrorist ties by the FBI, and that those detainees who were held in Brooklyn’s

5 Metropolitan Detention Center were subjected to a communications blackout and a widespread pattern and practice of physical and verbal abuse by prison guards. See also D. Eggen, “Tapes Show Abuse of 9/11 Detainees,” Washington Post, Dec. 19, 2003, at A-1, A-18, A-19; P. von Zielbauer, “Detainees’ Abuse Is Detailed,” N.Y. Times, Dec. 19, 2003, at A-23; T. Perrotta, “Report Claims Detainees Denied Rights in 9/11 Aftermath,” N.Y. Law Journal, Dec. 24, 2003.

As amended, the Turkmen complaint alleges that post-September 11 INS detainees were arbitrarily classified as being “of interest” to the government’s terrorism investigation notwithstanding the absence of evidence tying them to terrorism. The complaint further alleges that these detainees were subjected to a set of policies and practices that violated their rights under the First, Fourth, Fifth, and Sixth Amendments, including beatings by prison guards, interference with their ability to practice their religion, delayed notice of the charges on which they were being held, a blanket policy of denying them release on bond, a communications blackout that interfered with their ability to retain counsel and seek access to the courts, and a “hold until cleared policy” under which the INS refused to return them to their countries of origin until the FBI had cleared them of terrorist ties. The named defendants – the United States, Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar, and the current and past Wardens of the Metropolitan Detention Center – moved to dismiss the complaint on jurisdictional and qualified immunity grounds. Judge John Gleeson of the U.S. District Court for the Eastern District of New York is expected to rule on this motion shortly.

In September 2002, Hady Hassan Omar filed an individual civil rights action for money damages. Mr. Omar, an Egyptian, was arrested on September 12, 2001, and detained by the INS for a total of 73 days, while apparently being investigated by the FBI for terrorist ties. Hady Hassan Omar v. Casterline, et al., 288 F. Supp. 2d 775 (W.D. La. 2003). Omar alleged in his complaint that he was subjected to severe bodily and mental injury by prison guards who repeatedly and unnecessarily conducted invasive cavity searches, mistreated him, denied him access to counsel, and interfered with his religious practices.

On September 10, 2003, Judge Little of the U.S. District Court for the Western District of Louisiana issued an opinion on a motion for summary judgment filed by the defendants – who included a Special INS Agent and the Warden and employees of the Pollock Penitentiary in Louisiana, where Omar was detained – each of whom argued that the claims against him should be dismissed on the grounds that he had qualified immunity from suit. Omar, 288 F. Supp. 2d 775. Judge Little dismissed Omar's claims against Special INS Agent Vence Carmach based on a finding that Omar had failed to allege Carmach's personal involvement in any of the constitutional violations alleged in the complaint. Id. at 779. In addition, Judge Little dismissed Omar's claims based on a body cavity search and probe that was conducted on him when he first entered the Pollock Penitentiary. Treating Omar's status to be equivalent to that of a pretrial detainee, the Judge concluded on a Fourth Amendment analysis that the safety and security concerns of the search outweighed the intrusiveness of the search. Similarly, he concluded on a due process analysis that the search was a reasonable measure in light of the prison's security concerns. Id. at 779-781. However, Judge Little did conclude that Omar’s First Amendment claim for violation of his right to practice his religion could proceed to trial. Omar alleged that defendants had fed him pork and had refuse to tell him the time of day or date (so that he could

6 not follow his prayer schedule or observe Ramadan), even after he told them of his religious beliefs. Id. at 781-82.

At least one of the September 11 INS detainees remained in custody through the beginning of 2004, more than two years after he was cleared of any involvement with terrorist activities, due to what a magistrate judge found to be governmental misconduct and incompetence. U.S. Magistrate Judge Kenneth Schroeder of the U.S. District Court for the Western District of New York concluded that the continued detention of Benamar Benatta arose from a “sham” created by the FBI and immigration officers who attempted, through a “subterfuge” to hold Benatta in criminal detention without any legal justification. United States v. Benatta, No. 01-CR-247E, 2003 WL 22202371, at *4 (W.D.N.Y. Sept. 12, 2003). Not only did Judge Schroeder find that “the facts of this case clearly establish[ed] that there was collusion between the INS and the FBI in the treatment of the defendant,” id. at *7, but he found that the prosecutors were part of this cover-up; he went on to criticize “the prosecution’s attempt to put a ‘spin’ on what was done in this case,” id. at *8, and the prosecutors’ “incompetence and negligence,” id. at *10. He recommended dismissal of the indictment because: “This type of government malfeasance or negligence should not be tolerated since it ‘falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying’ the criminal prosecution of the defendant.” Id. at *12; see also M. Powell, “A Prisoner of Panic After 9/11; Algerian-Born Detainee Seen as Victim of Excess,” Washington Post, Nov. 29, 2003 at A-1, A-4, A-5. Shortly after Judge Schroeder issued his recommendation, the government agreed to dismiss the criminal charges. However, Benatta remains subject to immigration charges and is requesting asylum as a refugee from Algeria. See M. Powell, “Release from Jail Sought for Cleared Terrorism Suspect,” Washington Post, Dec. 31, 2003, at A-4.

The U.S. Court of Appeals for the Ninth Circuit held that Harpal Singh Cheema, a Sikh lawyer, and his wife, Rajwinder Kaur, both of whom are refugees from India, could not be deported under the Immigration and Nationality Act (INA), at 8 U.S.C. §§ 212(a)(3)(B)(iv) and 241(a)(4)(B), based on a bare government allegation that they had engaged in terrorist activity. Instead, the statute requires a determination of “whether there are reasonable grounds to believe that the alien is a danger to the security of the United States.” Cheema v. INS, 350 F.3d 1035, 1041 (9th Cir. 2003). Thus, even if Cheema had engaged in terrorist activity with respect to the Sikh separatist movement in India, the INS had proffered no evidence, let alone the requisite “substantial evidence,” id. at 1042, showing that such activity had affected the national security of this country. The majority opinion, by Judge Noonan, recognized that “one country’s terrorist can often be another country’s freedom fighter,” id., and noted that Americans, and even the American government, had a long history of supporting rebels abroad, going back to 1848, and including support for such diverse figures as Nelson Mandela, Eamon De Valera, Ben Gurion, the Nicaraguan Contras, and the Solidarity Movement in Poland. Id. at 1043. Thus, the Ninth Circuit ordered that the deportation orders be rescinded, but remanded the petitions for asylum for a proper determination. Id. at 1044. The court recognized that Cheema and his wife were understandably concerned about the potential consequences of deportation to India, as opposed to continued detention: “to be offered indefinite imprisonment as an alternative to likely torture is to be offered a harsh choice.” Id. at 1041. The dissenting opinion, by Judge Rawlinson, averred that even minor terrorist attacks abroad can have worldwide repercussions, citing the example of the assassination in Sarajevo that led to World War I. Id. at 1044-45. It remains to

7 be seen whether this decision will have an impact on analogous provisions, introduced by the USA Patriot Act, which can be used to prosecute individuals. See also B. Egelko, “Court Orders Jailed Sikh Activist Freed; He Funded Foreign Terrorists, but Wasn’t Deemed Dangerous,” San Francisco Chronicle, Dec. 3, 2003. On February 18, 2004, the government petitioned the Ninth Circuit for rehearing en banc.

On January 22, 2004, the Center for Constitutional Rights filed a suit challenging the decision by U.S. officials to send, under its “extraordinary renditions” program, Maher Arar, a 33-year-old naturalized Canadian citizen, to Syria, where he was interrogated under torture about possible terrorist ties. Arar v. Ashcroft, et al., No. 1:04-CV-00249-DGT (E.D.N.Y.) (Brooklyn). Arar asserts that he has no involvement whatsoever in any terrorist activities. He was arrested by FBI and INS agents on September 26, 2002, while transiting through JFK Airport to a connecting flight to Canada on his return from a family vacation and coercively interrogated by them. These officials deprived Arar of contact with his family, consulate, and lawyer and, after two weeks, summarily removed him to Syria, where he was detained for close to a year and interrogated under torture. See “Canadian Sues U.S. Officials; Terror Suspect Was Deported to Syria, Jailed and Tortured,” Washington Post, Jan. 23, 2004, at A-17. Syria is one of seven countries that the Bush administration has designated as a sponsor of state terrorism. Arar asserts that U.S. government officials deported him to Syria precisely because that country uses methods of interrogation that contravene the Convention against Torture, a treaty signed and ratified by the United States in 1994, and that would not be legal or morally acceptable in this country. He claims that U.S. officials acted in violation of the Torture Victims Protection Act and Due Process Clause of the Fifth Amendment. On January 28, 2004, the Canadian government announced that it would conduct a public inquiry into the role of Canadian officials in Arar’s arrest and deportation to Syria. See K. Harris, “‘Great Day’ for Justice; Maher Arar Gets Public Inquiry,” The Toronto Sun, Jan. 29, 2004, at 5; see also “Mr. Arar’s Lawsuit” [editorial], Washington Post, Feb. 2, 2004, at A-16.

II. The Detention of Material Witnesses for Grand Juries.

Two judges in the Southern District of New York have reached different conclusions in determining whether the Material Witness statute, 18 U.S.C. § 3144, authorizes the government to detain individuals when it deems their testimony to be material to a grand jury proceeding. The government, reading this statute expansively, has secretly locked up an undisclosed number of terrorism suspects – believed to number in the dozens – even though it lacks probable cause to hold them on criminal or immigration charges. Judge Shira Scheindlin concluded that the material witness statute “carve[s] out a carefully limited exception to the general rule that an individual’s liberty may not be encroached upon unless there is probable cause to believe that he or she has committed a crime.” United States v. Awadallah, 202 F. Supp. 2d 55, 58 (S.D.N.Y. 2002). Construing the statute narrowly, she ruled that it does not extend to grand jury proceedings. Judge Michael Mukasey, however, concluded that “[t]he duty to disclose knowledge of crime rests upon all citizens” and “is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” In re Application of the United States for a Material Witness Warrant, 213 F. Supp. 2d 287, 299 (S.D.N.Y. 2002). Judge Mukasey ruled that the application of the material witness statute to grand jury proceedings does not

8 violate the Fourth Amendment. The government appealed Judge Scheindlin’s ruling to the Second Circuit. The appellate argument took place on April 10, 2003, and the Second Circuit issued its decision on November 7, 2003, which reversed the district court and held that Awadallah could be detained under the material witness statute. United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003). See generally R. McFadden, “Court Reinstates Charges in 9/11-Related Case,” N.Y. Times, Nov. 8, 2003, at A-11; E. Walsh, “Court Upholds a-Post 9/11 Detention Tactic,” Washington Post, Nov. 8, 2003, at A-11; M. Hamblett, “Prosecutors Win Big in Terrorism Ruling,” N.Y. Law Journal, Nov. 10, 2003. On January 7, 2004, Awadallah filed a petition for rehearing en banc with the Second Circuit. United States v. Awadallah, No. 02- 1269.

At least one material witness has been revealed to have been detained based on a false statement. In re Application of the United States for a Material Witness Warrant, 214 F. Supp. 2d 356 (S.D.N.Y. 2002). Abdallah Higazy, an Egyptian student, was a guest at the Millennium Hilton Hotel, across the street from the World Trade Center, at the time of the September 11 attacks. A security guard at the hotel, Ronald Ferry, claimed that a radio transceiver was found in the safe in Higazy’s room, along with his passport and a copy of the Koran. In a telling example of how law enforcement agents exert intense psychological pressure on suspects in their custody, Higazy is reported to have “confessed” on a polygraph test that the radio transceiver was his. Id. at 359. In fact, the radio transceiver was found in the room of another hotel guest, an airline pilot. The government was forced to dismiss the indictment of Higazy, and Ferry was charged with making false statements to which he pled guilty. In December 2002, Higazy filed a civil rights lawsuit against the FBI agent and Hilton charging false arrest.

Earlier this year, the U.S. District Court for the District of Oregon held that a material witness could be detained pending completion of grand jury proceedings, while it concluded that the material witness statute did not allow public disclosure of the reasons for detaining the witness. In re Grand Jury Material Witness Detention, No.03-49-MISC-CR, 2003 WL 21674456 (D. Or. Apr. 7, 2003). Even though the identity and detention of this witness – Maher Hawash – was well known to the general public, his detention hearing was closed in order to prevent disclosure of information relating to the grand jury. Subsequently, the government indicted Hawash, along with six other defendants, for conspiracy to support al Qaeda and the Taliban. See Part V, Section B, infra.

III. The Military Detention of Enemy Combatants and Foreign Nationals.

A. The Detention of American Citizens Designated as Enemy Combatants.

In the first half of 2002, the executive branch claimed, for the first time, the extraordinary power to detain United States citizens wholly outside of the legal system – on an indefinite basis – under the military powers reserved to it in Article II of the Constitution. The Department of Defense has been holding at least two American citizens –Yasser Hamdi, an alleged Taliban fighter who was captured in Afghanistan, and Jose Padilla, an alleged “dirty bomber” who was arrested at a Chicago airport – in incommunicado detention as “enemy combatants” for well over a year. The government has taken the position that it may hold enemy combatants in military

9 custody without notifying them of the charges against them, without allowing them access to counsel or the outside world, and without providing with them a trial before an impartial arbiter until “the end of hostilities.” In response to habeas petitions that have been filed on behalf of both Hamdi and Padilla, the government has also taken the position that the courts lack jurisdiction to conduct a de novo hearing on whether its designation of enemy combatants is supported by the evidence.

The Fourth Circuit, in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), reh’g denied, 337 F.3d 335 (4th Cir. 2003) (en banc), largely accepted the DOD’s designation of Yasser Hamdi as an enemy combatant despite the fact that the evidence against Hamdi consisted solely of hearsay – the unchallenged declaration of Michael Mobbs, an employee of the Department of Defense, asserting that Hamdi was captured in the zone of active combat, but providing little in the way of detail. In her dissent from rehearing en banc, Judge Diana Gribbon Motz warned that “the panel embarks on a perilous new course – approving the Executive’s designation of enemy combatant status not on the basis of facts stipulated or proven, but solely on the basis of an unknown Executive advisor’s declaration, which the panel itself concedes is subject to challenge as ‘incomplete[]’ and ‘inconsistent’ hearsay.” Hamdi, 337 F.3d at 371. On October 1, 2003, Hamdi’s attorneys submitted their petition to the Supreme Court for certiorari review. Hamdi v. Rumsfeld, petition for cert. filed (U.S. Oct. 1, 2003) (No. 03-6696); see also J. Markon, “High Court Urged to Review Hamdi Detention,” Washington Post, Oct. 2, 2003, at B-3. Fred Korematsu, the lead plaintiff in the World War II Japanese detention camp cases, submitted an amicus brief in support of Hamdi and the Guantanamo detainees. See “The Court’s Conscience” [editorial], Washington Post, Oct. 10, 2003, at A-26.

While Hamdi’s petition for certiorari was pending, DOD unexpectedly agreed to allow Hamdi access to counsel, on the same day that the government’s opposition to Hamdi’s petition was to be filed. See J. Markon & D. Eggen, “U.S. Allows Lawyer for Citizen Held as ‘Enemy Combatant,’” Washington Post, Dec. 3, 2003, at A-1, A-7; D. Eggen, “Decision to Allow Lawyer for ‘Enemy Combatant’ Is New Policy,” Washington Post, Dec. 4, 2003, at A-10; J. Markon, “Military to Watch Prisoner Interview,” Washington Post, Jan. 31, 2004, at B-3.

On January 9, 2004, the Supreme Court granted Hamdi’s petition for certiorari. Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004). See C. Lane, “High Court to Weigh Detention of Citizens,” Washington Post, Jan. 10, 2004, at A-3. Oral argument is scheduled for April 28, 2004.

In the case of Jose Padilla, Judge Michael Mukasey issued an order as a matter of discretion, rather than right, granting limited access to counsel. Padilla v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003); see also Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). Unlike Hamdi, Padilla was a civilian and was arrested in the United States, far from the field of battle. By order dated April 9, 2003, Judge Mukasey certified several questions for immediate review, including the following: “Does the President have the authority to designate as an enemy combatant an American citizen captured within the United States, and through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda?” Additional questions certified by Judge Mukasey address the burden that the government must meet to detain an enemy combatant, whether Padilla has the right to present facts in support of his habeas corpus petition, and whether it was a proper exercise of the court’s discretion and authority to direct that Padilla be afforded access to counsel for the purpose of presenting facts in

10 support of his habeas petition. The U.S. Court of Appeals for the Second Circuit agreed to consider this case on an interlocutory basis. In August 2003, an outpouring of amicus curiae briefs opposing Padilla’s executive detention was filed by bar organizations, retired judges, law professors, legal organizations, including the Center for Constitutional Rights, and others. See generally P. Span, “Enemy Combatant Vanishes Into a ‘Legal Black Hole,’” Washington Post, July 30, 2003, at A-1, A-8; M. Hamblett, “Government Argues Jose Padilla Has Few Rights,” N.Y. Law Journal, July 29, 2003; T. Adcock, “Padilla Defense Turns Attorney’s Life Upside Down,” N.Y. Law Journal, Aug. 26, 2003; N. Hentoff, “Bush’s Vanished Prisoner: He Wonders Whether He Will See the Light of the Day Again,” Village Voice, Oct. 10, 2003.

A Second Circuit panel consisting of Judges Pooler, Parker, and Wesley heard arguments in this case on November 17, 2003. See M. Garcia, “Appeals Court Weights Case of Enemy Combatant,” Washington Post, Nov. 18, 2003, at A-3; W. Glaberson, “Judges Question Detention of American,” N.Y. Times, Nov. 18, 2003, at A-17; M. Hamblett, “Tough Questions for U.S. on Detention,” Legal Times, Nov. 24, 2003, at 12. On December 18, 2003, the Second Circuit held that the President could not detain Padilla as an enemy combatant, without express congressional authority, thereby rejecting the government’s view that the President’s inherent constitutional authority allowed him to do so. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003); see also N.A. Lewis & W. Glaberson, “U.S. Courts Reject Detention Policy in 2 Terror Cases,” N.Y. Times, Dec. 19, 2003, at A-1, A-22; M. Powell & M. García, “Seized Citizen Is Ordered Released,” Washington Post, Dec. 19, 2003, at A-1, A-24. The majority opinion, by Judges Pooler and Parker, held that “clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2002) (the “Non-Detention Act”) prohibits such detentions absent specific congressional authorization.” Padilla, 352 F.3d at 699. The partial dissent, by Judge Wesley, while recognizing that Padilla should have access to counsel, asserted that the Congressional joint resolution, passed shortly after September 11, 2001, authorized the President to take actions necessary to “thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens.” Id. at 726.

The U.S. government announced that it would seek expedited appeal to the Supreme Court. See C. Lane, “Showdown on Terrorism Case; Administration Seeks Fast Track for High Court Appeal,” Washington Post, Jan. 8, 2004, at A-2; A. Gearan, “Court May Hear Case of Terror Suspect, White House Fights Release of Man in ‘Dirty Bomb’ Case,” Washington Post, Jan. 17, 2004, at A-3. The Second Circuit granted the government’s request to stay the order freeing Padilla. See “Appeals Court Stays Order to Free Padilla,” Washington Post, Jan. 23, 2004, at A-2. Meanwhile, one commentator suggested that it is improbable that Padilla would have the expertise to obtain the materials for making a “dirty bomb” (which the prosecution alleged he was attempting to do). See L.Z. Koch, “Dirty Bomber? Dirty Justice,” Bulletin of Atomic Scientists, Jan.-Feb. 2004, at 59.

On February 20, 2004, the U.S. Supreme Court granted certiorari and ordered an expedited briefing schedule in Padilla. The case is scheduled for oral argument on April 28, 2004, immediately following the Hamdi oral argument. Rumsfeld v. Padilla, No. 03-1027, 2004 WL 95802 (U.S. Feb. 20, 2004); see also C. Lane, “Court Accepts Case of ‘Dirty Bomb’ Suspect,” Washington Post, Feb. 21, 2004, at A-4; N.A. Lewis, “Supreme Court Will Hear 3rd Detainee Case in April,” N.Y. Times, Feb. 21, 2004, at A-9; T. Mauro, “Weighing the Balance of

11 Power,” Legal Times, Feb. 23, 2004, at 1, 10. Meanwhile, the government announced that Padilla could see his attorney, but subject to monitoring by government officials. See T.E. Ricks & M. Powell, “2nd Suspect Can See Lawyer,” Washington Post, Feb. 12, 2004, at A-16; M. Powell, “Lawyer Visits ‘Dirty Bomb’ Suspect,” Washington Post, Mar. 4, 2004, at A-10.

In late February 2004, Alberto Gonzales, White House Counsel, in a speech to the American Bar Association, described the process by which the administration determines whether U.S. citizens could be designated as enemy combatants, using an analytical framework based on the Supreme Court’s decision in Ex parte Quirin, 317 U.S. 1 (1942). See V. Blum, “Bush Counsel: How U.S. Classifies Terror Suspects,” Legal Times, Mar. 1, 2004, at 1, 13; S. Taylor, “Progress on Gitmo Process,” Legal Times, Mar. 1, 2004, at 54.

On June 23, 2003, the government announced a third enemy combatant designation in the case of a non-citizen – Ali Saleh Kahlah Al-Marri, a foreign student from Qatar – and transferred him from the Illinois prison, where he had been in detention since late 2001 – first as a material witness and then as a criminal defendant – to military custody in South Carolina. United States v. Ali Saleh Kahlah Al-Marri, Nos. 03-M-6020 and 03-CR-10044 (C.D. Ill.) (Peoria). On July 8, 2003, Al-Marri filed a petition for writ of habeas corpus with the U.S. District Court for the Central District of Illinois. Al-Marri v. Bush, No. 03-CV-1220 (C.D. Ill.). On July 27, 2003, Judge Michael Mihm dismissed Al-Marri’s petition on the ground that the Illinois district court did not have venue over his petition now that he was in South Carolina. See generally R.A. Serrano, “Combatant Loses Bid for Freedom,” L.A. Times, July 29, 2003; J. Edwards, “In the Forefront of Terror Cases,” N.J. Law Journal, Aug. 8, 2003. On August 25, 2003, Judge Mihm denied Al-Marri’s motion for reconsideration; Al-Marri then filed a notice of appeal to the Seventh Circuit. On March 8, 2004, the Seventh Circuit, in an opinion by Judge Easterbrook, affirmed the district court’s decision, on the grounds that the habeas statute, 28 U.S.C. § 2241, only allowed a petition to be filed in the federal district in which the petitioner is detained. Al- Marri v. Rumsfeld, No. 03-3674 (7th Cir. Mar. 8, 2004). The Seventh Circuit also criticized the Second Circuit’s Padilla decision on the grounds that habeas jurisdiction can only be based on the person responsible for maintaining custody (the Commander of the Naval Brig in Charleston, South Carolina), not the person who authorized the custody (Defense Secretary Rumsfeld). Id.

The Association of the Bar of the City of New York recently issued an extensive 166- page report, which questioned the detention of Americans as enemy combatants. See Ass’n of the Bar of the City of N.Y., Committee on Federal Courts, “The Indefinite Detention of ‘Enemy Combatants’: Balancing Due Process and National Security in the Context of the War on Terror,” (Feb. 6, 2004), online at: .

B. The Detention of Foreign Nationals at the Guantanamo Bay Naval Base and Other Overseas Locations.

On March 11, 2003, the U.S. Court of Appeals for the D.C. Circuit ruled in Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), that U.S. courts lack jurisdiction to hear cases filed on behalf of foreign nationals detained outside the sovereign territory of the United States. The petitioners in Al Odah and two related cases decided at the same time – one of which, Rasul v. Bush, No. 02-5288 (D.C. Cir.), is being litigated by the Center for Constitutional Rights – are being detained at the U.S. naval base on Guantanamo Bay, Cuba. In Al-Odah, the petitioners,

12 relatives of 12 Kuwaiti citizens who were detained while allegedly serving as humanitarian volunteers in Afghanistan and Pakistan, challenged their detention as violating their Fifth Amendment due process rights and their rights under international law. The Al-Odah petitioners seek injunctive relief ordering the government to inform them of the charges against them and to allow their counsel and families to visit them. Similarly, the Rasul petitioners, relatives of two Australian detainees and a British detainee, seek a proceeding comporting with the Due Process Clause of the Fifth Amendment and international law at which their legal status would be determined and the propriety and terms of their continued detention would be reviewed.

The D.C. Circuit concluded that the U.S. base in Guantanamo was not within the sovereign territory of the United States, notwithstanding the fact that, under the terms of a lease agreement dating back to 1903, the United States has exclusive jurisdiction and control over the entire territorial area. The D.C. Circuit held that since the lease agreement did not relinquish Cuba’s “ultimate sovereignty” over Guantanamo, it lacked jurisdiction to hear any case involving non-citizens detained in Guantanamo. The court relied heavily on Johnson v. Eisentrager, 339 U.S. 763 (1950), a decision in which the Supreme Court held that Nazi war prisoners tried before military commissions in China and detained by the U.S. military in military-occupied Germany were not within the sovereign territory of the United States and did not have any rights cognizable in U.S. courts. In September 2003, the Rasul and Al-Odah petitioners filed a petition for writ of certiorari with the U.S. Supreme Court. Fred Korematsu submitted an amicus brief in support of the Guantanamo detainees, along with many others. See “The Court’s Conscience” [editorial], Washington Post, Oct. 10, 2003, at A-26. At around the same time, the International Committee of the Red Cross charged that the U.S. government’s actions at Guantanamo were unacceptable and intolerable, given the indefinite detentions that had then lasted for nearly two years. See N.A. Lewis, “Red Cross Criticizes Indefinite Detention in Guantanamo Bay,” N.Y. Times, Oct. 10, 2003, at A-1, A-24.

On November 10, 2003, the Supreme Court granted the petitions for writs of certiorari filed by Al-Odah and Rasul on the limited question of whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Rasul v. Bush, 124 S. Ct. 534 (2003). These cases were consolidated, and argument is scheduled for April 20, 2004. This is the first grant of review by the Supreme Court of a case challenging the government’s response to the September 11 attacks. See L. Greenhouse, “Justices to Hear Case of Detainees at Guantánamo,” N.Y. Times, Nov. 11, 2003, at A-1, A-14; C. Lane, “Justices to Rule on Detainees’ Rights,” Washington Post, Nov. 11, 2003, at A-1, A-5; C. Lane, “Supreme Court Revisits Enemy Combatants,” Washington Post, Nov. 23, 2003, at A-3. More than a dozen groups, including a group of retired judges, have filed amici briefs on behalf of the petitioners. While the brief filed by military defense lawyers assigned to represent the Guantanamo detainees during the military tribunals agreed with the government that the President has the power to indefinitely detain enemy combatants, the brief argued that the detainees should still have the ability to seek judicial review of their detention through the filing of habeas petitions with the federal courts. See V. Blum, “Military Lawyers Urge Role for High Court; Amicus Brief by Defenders of Accused Terrorists Argues Justices Should Assert Jurisdiction over Tribunals,” Legal Times, Jan. 19, 2004, at 1, 12; J. Toobin, “Inside the Wire,” The New Yorker, Feb. 9, 2004, at 36-41.

13 Meanwhile, the government announced in early 2004 plans to release some of the Guantanamo detainees to their home countries, which may potentially moot the habeas petitions before the Supreme Court. See G. Frankel, “U.S. Agrees to Free 5 Britons, Dane from Guantanamo Jail,” Washington Post, Feb. 20, 2004, at A-20; P. Baker, “U.S. Sends to Russia 7 Held at Guantanamo,” Washington Post, Mar. 2, 2004, at A-14. Several of the remaining 650 detainees at Guantanamo have been designated for trial before a military tribunal or designated as eligible for such a trial. Defense Secretary Rumsfeld announced that the remaining prisoners would be subjected to annual reviews by a three-member review panel of military officers. Human rights groups questioned whether these annual reviews would provide sufficient due process. See J. Mintz, “U.S. Outlines Plan for Detainee Review,” Washington Post, Mar. 4, 2004, at A-10.

On December 18, 2003, the U.S. Court of Appeals for the Ninth Circuit held that the detainees at Guantanamo were entitled to access to counsel and a judicial forum to challenge their detention. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003). The majority opinion, written by Judge Reinhardt and joined by Judge Shadur, held that “we simply cannot accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement.” Id. at 1283. Judge Graber, dissenting, concluded that the Supreme Court’s decision in Johnson v. Eisentrager was controlling and supported the government’s position, and averred that the Ninth Circuit should have waited for the Supreme Court’s resolution of Al-Odah and Rasul before deciding this case. Id. at 1305-06. See also N.A. Lewis & W. Glaberson, “U.S. Courts Reject Detention Policy in 2 Terror Cases,” N.Y. Times, Dec. 19, 2003, at A-1, A- 22; J. Mintz, “Hearing Ordered for Terrorism Detainee; 9th Circuit Ruling Could Lead to Court Dates for Others at Guantanamo Bay,” Washington Post, Dec. 19, 2003, at A-19. On January 28, 2004, Justice O’Connor granted the government’s request for a stay of the Ninth Circuit’s order pending resolution by the Supreme Court of the government’s petition for certiorari. On February 17, 2004, Justice O’Connor denied Gherebi’s request that he be permitted a visit from counsel or provided information about his case; and on March 3, 2004, the government filed its petition for writ of certiorari. Bush v. Gherebi, No. 03-1245; Gherebi v. Bush, No. 03A693.

The Ninth Circuit previously ruled that various concerned clergy, lawyers, and law professors did not have standing to bring a habeas petition filed on behalf of these detainees, because they lacked a sufficiently close connection to the detainees. Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002).

IV. Sixth Amendment Rights of Criminal Defendants Charged with Terrorist Crimes.

The ongoing prosecution of Zacarias Moussaoui has generated much controversy and has raised a number of thorny legal issues. This section will examine one of these issues: the Sixth Amendment right of Moussaoui, a criminal defendant who is charged with terrorist crimes, to interview and cross-examine a high-ranking Al Qaeda detainee, Ramzi Binalshibh, who is presently in U.S. military custody overseas. Moussaoui argues that the government should not be allowed to prosecute him while at the same time it denies him access to a potentially

14 favorable witness. The government argues that allowing Moussaoui access to this particular witness would compromise national security as Binalshibh is an alleged ringleader of the September 11 attacks. Moussaoui’s defense appears to be that he had no involvement with the planning for the attacks but instead was involved with planning another attack that was to occur much later, and that Binalshibh could confirm this. On March 10, 2003, U.S. District Court Judge Leonie Brinkema ruled that the government had to make Binalshibh available to Moussaoui, subject to certain conditions. United States v. Moussaoui, No. CR. 1-455-A, 2003 WL 21263699 (E.D. Va. Mar. 10, 2003).

Judge Brinkema recognized that while the government had a “good faith interest in protecting national security,” that interest “does not categorically override a defendant’s right to a fair trial,” which “includes the Sixth Amendment right to compulsory process for favorable witnesses.” Id. at *2. Judge Brinkema explained, in a partially redacted opinion, that:

The Court fully appreciates that the United States has a compelling interest in <> captures key al Qaeda operatives <>. However, this legitimate Government concern must be balanced against the equally compelling right of a defendant in a capital prosecution to receive the fair trial to which he is entitled under the Constitution and laws of the United States. Because a criminal trial is a quest for the truth, both the defendant and the public will be denied a fair trial if Moussaoui is deprived of the opportunity to present <> testimony.

Id. at *5 (citations omitted). The government promptly appealed to the Fourth Circuit, which heard oral argument on June 3, 2003. On June 26, 2003, the three-judge panel issued its decision, which concluded that since Judge Brinkema had not imposed any sanction on the government for failing to comply with the court’s order, the appeal was premature. United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003).

The government then requested that the Fourth Circuit rehear this case en banc. Of the twelve active-duty judges, only five voted to rehear this case; seven votes (i.e., a majority of the twelve) were needed for that purpose. United States v. Moussaoui, 336 F.3d 279 (4th Cir. 2003). Three of the five judges (Widener, Wilkinson, and Luttig) wrote dissenting opinions to explain why they thought the case should be reheard, despite the lack of finality of Judge Brinkema’s decision. In doing so, they suggested that the Fourth Circuit’s refusal to act would irreparably harm national security. In response, Chief Judge Wilkins, joined by four other judges, explained why the dissenters’ concerns were unwarranted and counterproductive:

Finally, I must address my colleague’s claim that the panel decision impairs national security. According to my colleague [Judge Luttig], “any decision in a litigation of this sensitivity inescapably” has a “profound effect . . . upon the delicate psychological balance that can determine victory or defeat as much as can combat itself.” . . . Thus, my colleague implies, we must exercise jurisdiction here so that we do not tip the “psychological balance” in favor of the nation’s enemies.

Indeed, according to my colleague, the order of the district court and our determination that the order is presently unreviewable have already affected the manner in which the

15 executive branch is exercising its national security function. My colleague’s allegations find no support whatsoever in the record. Such speculation can only serve to needlessly alarm the public and appears, regrettably, to be an attempt to divert attention from the legal principles that control our decision.

My colleague apparently would have us simply rule in favor of the government in all cases like this one. From his limited review of the petition for rehearing and suggestion for rehearing en banc, the accuracy of which he assumes, he believes – because the Government asserts national security interests and because he speculates about national security interests the Government does not assert – that it is our duty to exercise jurisdiction without waiting to determine whether any sanction that might be imposed would be acceptable to the Government. Siding with the Government in all cases where national security concerns are asserted would entail surrender of the independence of the judicial branch and abandonment of our sworn commitment to uphold the rule of law.

Moussaoui, 336 F.3d at 281-82.

Judge Brinkema subsequently asked the parties to suggest what sanctions, other than dismissal of the prosecution, might be imposed on the government if it refused to produce Binalshibh. See S. Roth, “Terror Case Could Redraw Lines of Power,” Legal Times, July 21, 2003, at 1, 6; J. Markon, “Judge Seeks Guidance on Sanctioning U.S. in Terror Case,” Washington Post, July 18, 2003, at A-4. In addition, in late August 2003, Judge Brinkema ordered the government to make two other witnesses, Khalid Sheik Mohammed and Mustafa Ahmed Hawsawi, available to Moussaoui. See J. Markon, “Moussaoui Granted Access to Witnesses,” Washington Post, Aug. 30, 2003, at A-12; J. Markon, “Judge Says Witness May Aid Moussaoui,” Washington Post, Sept. 4, 2003, at A-16; J. Markon, “Moussaoui Judge Rejects U.S. Offer, Washington Post, Sept. 10, 2003, at A-6. The government refused to make these witnesses available to Moussaoui; as a result, Judge Brinkema dismissed the terrorism charges, by ordering that the government could not present any evidence regarding Moussaoui’s alleged involvement with the Sept. 11 attacks, and ordered that the government could not seek the death penalty. United States v. Moussaoui, 282 F. Supp. 2d 480, 486-87 (E.D. Va. 2003). Judge Brinkema concluded as follows:

That the United States has deprived Moussaoui of any opportunity to present critical testimony from the detainees at issue in defense of his life requires, as a sanction, the elimination of the death penalty as a possible sentence. The defendant remains exposed to possible sentences of life imprisonment.

Particularly in light of the Government's concessions regarding the nature and scope of the charged conspiracies and the marginal relevance of the allegations concerning the September 11 attacks to the charges against Moussaoui, as an additional sanction, the Government will be foreclosed at trial from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11 attacks. It would simply be unfair to require Moussaoui to defend against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting those accusations.

16

With the death penalty removed from this case, and the prosecution prohibited from arguing that Moussaoui had any knowledge of, or involvement in, the planning or execution of the September 11 attacks, the Court is no longer satisfied that testimony from the detainees at issue would be material to the defense. Moussaoui's constitutional right to a fair trial, therefore, is not offended by the Government's refusal to comply with the Court's Orders of January 31 and August 29, 2003.

Id. at 487. Instead of proceeding to trial on the remaining charges and evidence, the government appealed to the Fourth Circuit. See J. Markon, “Dismissal of Terror Charges Appealed,” Washington Post, Oct. 8, 2003, at A-2. In its brief to the Fourth Circuit, the government argued that Moussaoui, even though not part of the September 11 attacks, was a conspirator, and would have been involved in follow-up airplane hijackings. Thus, the government claims, Moussaoui should be subject to the death penalty even when the government has not provided him with access to the witnesses who are in detention. See J. Markon, “Moussaoui Liable for Death Penalty, U.S. Argues,” Washington Post, Nov. 1, 2003, at A-2. A panel of the Fourth Circuit, comprised of Judges Wilkinson, Williams, and Gregory, heard oral argument on December 3, 2003, with part of the session closed to the public. United States v. Moussaoui, No. 03-4792.4

V. The Crime of Providing Material Support to Proscribed Organizations.

A. The Designation of Groups as “Foreign Terrorist Organizations.”

The Secretary of State, through 8 U.S.C. § 1189, has the authority to designate groups as foreign terrorist organizations. Once designated, the groups are blocked from engaging in any activities in the United States, including fundraising and advocacy. Individuals who knowingly provide material support to a designated group can be subjected to harsh criminal penalties. A foreign terrorist organization can challenge its designation by filing a petition for review with the D.C. Circuit. The D.C. Circuit has ruled on four challenges. It has denied three of them and remanded one to the Department of State; a fifth challenge is pending.

People’s Mojahedin Org. of Iran v. U.S. Department of State, 182 F.3d 17 (D.C. Cir. 1999). The D.C. Circuit held that the two petitioners – an Iranian dissident group, and the Liberation Tigers of Tamil Eelan, a Sri Lanka dissident group – lacked sufficient contacts with the United States to entitle them to constitutional due process. The court found that the record evidence, including classified evidence not made available to the petitioners, had substantial support for the determination that both groups engaged in terrorist activities.

National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001). The D.C. Circuit held that the two petitioners – both Iranian dissident groups – had sufficient

4 In two similar cases, German courts recently held that Moroccan defendants Mounir Motassadeq and Abdelghani Mzoudi could not be convicted for terrorism charges arising from the September 11 attacks, because the United States refused to produce Ramzi Binalshibh, whom these defendants had alleged was a key witness in their cases. See J. Burgess, “German Court Orders New Trial for 9/11 Suspect,” Washington Post, Mar. 5, 2004, at A-16.

17 contacts with the United States through their local office and bank account, so that they were entitled to constitutional protection under the Due Process Clause. Thus, the Secretary of State was required to provide them with advance notice of an impending designation, and an opportunity to present evidence to the Department of State regarding their activities. This case was remanded to the Department of State to allow the two groups to present further evidence about their activities and their contacts with the United States. As discussed below, in 2001 the Department of State rejected the submissions of the People’s Mojahedin Organization, an affiliate of the National Council, and in 2003, ordered the closure of the U.S. offices of the National Council.

32 County Sovereignty Committee v. Department of State, 292 F.3d 797 (D.C. Cir. 2002). The D.C. Circuit held that the two petitioners – both Irish dissident groups – did not have sufficient contacts with the United States, notwithstanding their local office and bank account, so that they had no entitlement to due process. As was the case in the court’s 1999 decision in People’s Mojahedin, the classified evidence was found to support a determination that the groups were engaged in terrorist activities.

People’s Mojahedin Org. of Iran v. Department of State, 327 F.3d 1238 (D.C. Cir. 2003). The Department of State rejected the petitioner’s submissions and redesignated this group in 2001. The D.C. Circuit upheld this designation because the classified evidence supported a determination that this group was engaged in terrorist activities.

National Council of Resistance of Iran v. Department of State, No. 01-1480 (D.C. Cir.). This petition, by the sister group of People’s Mojahedin, is to be argued on April 2, 2004. On August 15, 2003, the State Department ordered the closure of this group’s U.S. offices. See “Iranian Opposition Group’s Offices Shut,” Washington Post, Aug. 17, 2003, at A-12.

In addition to the aforementioned challenges brought by designated groups, a suit was brought in March 1998 by the Center for Constitutional Rights on behalf of the Humanitarian Law Project and other plaintiffs who wished to support the lawful and humanitarian activities of two designated groups, the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelan (LTTE). Humanitarian Law Project, et al., v. Ashcroft, et al., 352 F.3d 382 (9th Cir. 2003) (“Humanitarian Law Project I”); Humanitarian Law Project I, 205 F.3d 1130 (9th Cir. 2000); Humanitarian Law Project I, 2001 U.S. Dist. LEXIS 16729 (C.D. Cal. Oct. 3, 2001); Humanitarian Law Project I, 9 F. Supp. 2d 1176 (C.D. Cal. 1998). The plaintiffs asked the court to declare that the material support statute, at 18 U.S.C. §§ 2339A and 2339B, violates the First Amendment insofar as it criminalizes the provision of such support.

On plaintiffs’ motion for preliminary injunction, and again on the parties’ cross-motions for summary judgment, Judge Audrey Collins rejected plaintiffs’ argument that the ban on material support violates the First Amendment insofar as it criminalizes the provision of cash and humanitarian aid that is solely intended to further the lawful purposes of a designated organization. However, Judge Collins agreed with plaintiffs that the law is unconstitutionally vague in that it criminalizes the provision of material support in the form of “personnel” and “training.” She found that these provisions “d[id] not . . . appear to allow persons of ordinary intelligence to determine what type of training or provision of personnel is prohibited” and,

18 furthermore, “appeared to prohibit activity protected by the First Amendment – distributing literature and information and training others to engage in advocacy.” She issued narrowly tailored preliminary and permanent injunctions barring the government from prosecuting any of the plaintiffs in the suit or any members of the organizational plaintiffs for providing “personnel” or “training” to the PKK or the LTTE.

Judge Collins’ preliminary injunction was affirmed by the Ninth Circuit on March 3, 2000, and the Supreme Court denied the parties’ cross-petitions for certiorari review on March 5, 2001. Humanitarian Law Project I, 532 U.S. 904 (2001). On December 3, 2003, Judge Collins’ permanent injunction was affirmed by the Ninth Circuit. Humanitarian Law Project I, 352 F.3d 382 (9th Cir. 2003). The 2003 panel reiterated the earlier panel’s holding “that the prohibition of ‘personnel’ and ‘training’ in § 2339B is unconstitutionally vague,” while holding that those provisions were severable, so that the rest of that statute remains enforceable. Id. at 405. Judge Pregerson, joined by Judge Thomas, went on to hold that “to sustain a conviction under [18 U.S.C.] § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist organization or that the donor had knowledge of the organization's unlawful activities that caused it to be so designated.” Id. at 403. Judge Rawlinson, however, dissented with respect to the imposition of a mens rea requirement. Id. at 407-08. See also E. Lichtblau, “Appeals Court Cast Doubt on Parts of Key Antiterrorism Law,” N.Y. Times, Dec. 4, 2003, at A-29; C. Lane, “Court Rules on Aiding Terrorist Groups; Knowledge of Activity Must be Proved for Conviction,” Washington Post, Dec. 4, 2003, at A-10. In January 2004, the parties cross-petitioned the Ninth Circuit for rehearing en banc. [See Section VI, infra, for a discussion of a lawsuit filed by the Humanitarian Law Project in August 2003 challenging a USA Patriot Act amendment to the material support statute that makes it a crime to provide “expert advice or assistance” to a designated group.]

In October 2003, the Department of State, in designating various entities as terrorist groups, or as aliases of previously designated entities, designated several web sites. As a result, the provision of funds or other material support to those websites has been criminalized. See Department of State, “Amendment of Certain Designations,” 68 Fed. Reg. 58,738-58,739 (Oct. 10, 2003). This appears to be the first time that websites have been designated, as opposed to conventional groups.

B. Criminal Prosecutions for Material Support.

If a group has been designated as a foreign terrorist organization, then individuals who knowingly provide material support to such groups can be subject to criminal penalties under 18 U.S.C. §§ 2339A, 2339B (a fine and a sentence of up to 15 years, unless death results, in which case a sentence for any term of years or for life). If there is specific intent to further unlawful ends, then a ten or twenty-year sentence may be imposed under 18 U.S.C. § 2339C. Although several individuals have been indicted on material support counts, and some have pled guilty to material support or to lesser offenses, there have evidently been only three jury convictions under the material support statute. See generally E. Lichtblau, “U.S. Uses Terror Law to Pursue Crimes from Drugs to Swindling; Broad Steps Anger Critics of Expanded Powers,” N.Y. Times, Sept. 28, 2003, at A-1, A-21; S. Roth, “Material Support Law: Weapon in War on Terror,” Legal

19 Times, May 5, 2003, at 11; E. Lichtblau, “1996 Statute Becomes the Justice Department’s Antiterror Weapon of Choice,” N.Y. Times, Apr. 6, 2003, at B-15; D. Eggen & S. Fainaru, “For Prosecutors, 1996 Law Is Key Part of Anti-Terror Strategy,” Washington Post, Oct. 15, 2002, at A-2.

The cases are discussed in the following four groupings: (1) Jury Convictions; (2) Plea Bargains; (3) Pending Criminal Prosecutions (which includes several multi-defendant cases in which some but not all defendants have pled guilty); and (4) Appeal Pending. Within each grouping, the cases are arranged alphabetically by the last name of the lead defendant.

Jury Convictions:

United States v. Soliman S. Biheiri, No. 03-CR-365 (E.D. Va.) (Alexandria). Biheiri was indicted on August 7, 2003 for several immigration charges arising from his illegal attempts to obtain his own naturalization. However, the government’s Declaration in Support of Pre-Trial Detention (Aug. 14, 2003), avers that Biheiri, who had established an investment firm, was involved with investing funds provided by several Muslim charities, including the International Islamic Relief Organization and the Muslim World League, and allegedly engaged in transactions with designated terrorist financiers, all of which suggests that a superseding indictment based on material support may ensue. See generally D. Farah, “U.S. Links Islamic Charities, Terrorist Funding,” Washington Post, Aug. 20, 2003, at A-2; G.R. Simpson & D.S. Cloud, “Immigration Case May Further Fray Saudi-U.S. Ties,” Wall Street Journal, Aug. 12, 2003, at A-3, A-6. Subsequently, Judge Ellis denied bail to Biheiri, on the grounds that the prosecutors had presented evidence showing that he had engaged in business with individuals designated as terrorists. See J. Markon, “Va. Terror Network Suspect Denied Bail,” Washington Post, Sept. 12, 2003, at A-16; G. R. Simpson, “U.S. Details an Alleged Terror-Financing Web,” Wall Street Journal, Sept.1 5, 2003, at A-5. On October 9, 2003, the jury convicted Biheiri on two immigration counts: unlawful procurement of naturalization and false oath in matter relating to naturalization. Ordinarily, this conviction would only result in a sentence of up to six months, but the government asked Judge Ellis to impose a sentence of up to 10 years, based on the allegation that Biheiri’s immigration offenses had the purpose of aiding terrorism. See J. Markon, “Man Convicted in Islamic Charity Probe,” Washington Post, Oct. 10, 2003, at A-12; J. Markon, “Sentencing Questioned in Islamic Charity Case,” Washington Post, Dec. 19, 2003, at A-32. On January 12, 2004, Judge Ellis sentenced Biheiri to only one year in prison on the charge that he lied in an attempt to obtain U.S. citizenship. However, Judge Ellis held that the prosecutors were unable to prove that Biheiri engaged in terrorist conduct or support. See J. White, “Va. Terror Suspect Sentenced to 1 Year,” Washington Post, Jan. 13, 2004, at A-5.

United States v. Abdel-Ilah Elmardoudi, Karim Koubriti, Ahmed Hannan and Farouk Ali- Haimoud, No. 01-CR-80778 (E.D. Mich.) (Detroit). After a nine-week trial in June 2003, the jury convicted two defendants (Elmardoudi and Koubriti) of providing material support to Al Qaeda and engaging in document fraud (government visas), convicted one defendant (Hannan) of conspiracy to engage in document fraud but not of material support, and acquitted one defendant (Ali-Haimoud). Before the trial, the court denied the defendants’ motion to suppress evidence obtained from a residential search, United States v. Koubriti, 199 F. Supp. 2d 656 (E.D. Mich. 2002), and denied the defendants’ motion to adjourn the trial while the Iraqi war was

20 underway. United States v. Koubriti, 252 F. Supp. 2d 437 (E.D. Mich. 2003). The convicted defendants are presently engaged in post-trial motions regarding length and terms of their sentences. On February 25, 2004, Judge Rosen suggested in open court that one defendant (Hannan) could be freed from prison, pending sentencing or retrial, but subjected to electronic monitoring, after his counsel argued that he had already served twice the time he would likely be sentenced to under the federal sentencing guidelines. See D. Ashenfelter, “Terror Convict Could Gain Reprieve,” Detroit Free Press, Feb. 26, 2004.

Judge Rosen had imposed a gag order on the parties on October 23, 2001, in order to prevent or minimize any taint to the jury. Despite this order, Attorney General Ashcroft, only one week later, made public statements about the alleged crimes; then-Assistant Attorney General Michael Chertoff had to apologize to Judge Rosen. In August of 2002, Fox News broadcast an account of the charges against the defendants, which was taken from a superseding indictment that had not yet been filed with the court; Deputy Attorney General Larry Thompson had to inform Ashcroft and other government officials of Judge Rosen’s gag order. Despite these two events, Ashcroft, on April 17, 2003, made public statements praising a government informant (Youssef Hmimssa). The defendants moved to hold the Attorney General in contempt for having violated Judge Rosen’s order. On September 26, 2003, Judge Rosen held a closed hearing on this motion. See D. Shepardson, “Judge Weighs Ashcroft Charge,” Detroit News, Oct. 3, 2003. On December 16, 2003, Judge Rosen denied the defendants’ motion, but did order “that Attorney General John Ashcroft be formally and publicly admonished for violating the Court’s October 23, 2001 Order.” United States v. Koubriti, No. 01-CR-80778, Opinion and Order (Docket No. 455) (Dec. 16, 2003).

Meanwhile, Judge Rosen also initiated an inquiry into the prosecutor’s refusal to turn over evidence that undercut their key witness (Hmimssa) and could potentially exonerate the defendants; the Department of Justice removed the prosecutors (Convertino and Corbett), and the new prosecutor (Strauss) belatedly turned over the exculpatory information. The Department of Justice Office of Professional Responsibility is also conducting an ethics investigation into the alleged prosecutorial misconduct by Convertino. The result may lead to a new trial for the defendants. See R.E. Pierre, “Judge in Terror Trial Orders Hearing on Prosecutors,” Washington Post, Dec. 11, 2003, at A-25; R.E. Pierre, “Terrorism Case Thrown into Turmoil; Factors Judge Is Considering Include Evidence Withheld from Defense,” Washington Post, Dec. 31, 2003, at A-5; D. Ashenfelter, “Note Could Aid 3 Convicted in Terrorism Trial,” Detroit Free Press, Jan. 13, 2004; D. Ashenfelter, “Details Give Credibility to Notes on Star Witness in Terrorism Case,” Detroit Free Press, Jan. 15, 2004; D. Ashenfelter, “Terror Case Prosecutor Is Probed on Conduct,” Detroit Free Press, Jan. 17, 2004. A conference on defendants’ motion for acquittal was held on January 12, 2004, and was continued to February 2, 2004. See also D. Hakim, “Inquiries Begun Into Handling of Detroit Terror Cases,” N.Y. Times, Jan. 29, 2004, at A-21; D. Ashenfelter, “Questions Cloud Terror Case,” Detroit Free Press, Jan. 31, 2004; A. Lengel & D. Eggen, “FBI Investigates Head of Detroit Office; Agent Reassigned as Agency Looks into Handling of Confidential Informants,” Washington Post, Jan. 31, 2004, at A-3. On February 27, 2004, Attorney General Ashcroft appointed Craig Morford, a federal prosecutor from Ohio, as a “special attorney” to investigate these allegations. See D. Eggen, “Handling of Terror Case Probed; ‘Special Attorney’ Hired to Review Allegations of Misconduct,” Washington Post, Feb.

21 28, 2004, at A-2; R.B. Schmitt, “Terrorism Trial Triumph Turns into an Embarrassment,” L.A. Times, Mar. 7, 2004.

On February 13, 2004, Mr. Convertino, who had served as the lead prosecutor in these cases until his removal, took the highly unusual step of filing a civil lawsuit against the U.S. Department of Justice, Attorney General Ashcroft, three officials with the U.S. Attorneys’ Office for the Eastern District of Michigan, and the counsel for the Office of Professional Responsibility, claiming violations of his rights under the Privacy Act and the First Amendment arising from allegedly unauthorized public disclosures of false and misleading information about him. Convertino v. U.S. Dep’t of Justice, et al., No. 04-CV-00236 (RCL). See D. Eggen, “Terrorism Prosecutor Sues Justice Dept.,” Washington Post, Feb. 18, 2004, at A-3; T. Schoenberg, “Detroit Terror Prosecutor Fires Back at DOJ,” Legal Times, Feb. 23, 2004, at 3.

United States v. Hammoud, et al., No. 00-CR-147 (W.D.N.C.) (Charlotte). Twenty-six defendants, all allegedly connected to a smuggling ring that shipped cigarettes from North Carolina to Michigan, were accused of diverting the profits to Hezbollah, a designated terrorist organization in Lebanon. Some of the defendants were dismissed; others pled guilty to charges of smuggling and were sentenced for terms ranging from one to several years, and others have pending cases. On June 21, 2002, a jury convicted Mohammad Hammoud for providing material support to Hezbollah. Mohammad Hammoud and his brother, Chawki Hammoud, were also convicted of cigarette smuggling, money laundering, and racketeering. On February 28, 2003, Mohamad Hammoud was sentenced to 155 years in prison (the length of this sentence is attributable in part to the fact that separate counts were imposed consecutively, not concurrently); he is currently incarcerated with a projected release date of 2135; his brother received a much shorter sentence of several years.

Plea Bargains:

United States v. Enaam Arnaout, No. 02-CR-892 (N.D. Ill.) (Chicago). The district court upheld the indictment of Arnaout, based on alleged conspiracy to provide material support, through the Benevolence International Foundation, to Al Qaeda, Hezb e Islami, and the Sudanese Popular Defense Force. 236 F. Supp. 2d 916 (N.D. Ill. 2003). Subsequently, Arnaout pled guilty to a lesser racketeering conspiracy charge. On July 17, 2003, Judge Conlon concluded that Arnaout did not engage in terrorism-related activities through his fundraising, and thus rejected the government’s request to sentence him to 20 years. On August 18, 2003, Judge Conlon sentenced Arnaout to eleven years and four months, an upward departure on the basis of her finding that Arnaout had misled the charity’s donors and recipients by diverting funds to purchase military supplies. However, Judge Conlon rejected the government’s request for a higher sentence, because there was no evidence that Arnaout actually supported terrorism. See J. Mintz, “Head of Muslim Charity Sentenced,” Washington Post, Aug. 19, 2003, at A-2. Arnaout subsequently appealed the upward departure to the U.S. Court of Appeals for the Seventh Circuit; briefing is scheduled to be completed by March 22, 2004. United States v. Arnaout, No. 03-3297 (7th Cir. filed Aug. 28, 2003).

United States v. Jeffrey Battle, Patrice Lumumba Ford, Ahmed Bilal, Muhammad Bilal, Habis al Saoub, October Lewis, and Maher Hawash, No. 02-CR-399 (D. Or.) (Portland). The seven

22 defendants were indicted on May 2, 2003, for conspiracy to support al Qaeda and the Taliban through attempting to travel to Afghanistan in October 2001, and several were also indicted on money laundering and/or firearms charges. On August 6, 2003, Hawash pled guilty to aiding the Taliban, and agreed to testify against the other defendants in exchange for dropping the remaining charges. Five of the remaining defendants pled innocent, and Habis al Saoub has not yet been arrested. See A. Kramer, “Software Engineer Admits Aiding Taliban,” Associated Press (Aug. 6, 2003). In September 2003, two defendants (A. Bilal and M. Bilal) pled guilty to conspiracy and weapons charges, and another defendant (Lewis) pled guilty to money laundering charges. See “2 Ore. Men Plead Guilty to Terror Charges,” Associated Press (Sept. 18, 2003); “Ore. Woman Pleads Guilty in Terror Case,” Associated Press (Sept. 26, 2003). On October 16, 2003, the two remaining defendants in custody (Battle and Ford) pled guilty to one count of conspiracy to commit war against the United States; the remaining charges were dropped. See “Duo Pleads Guilty to Conspiracy Against U.S.,” Washington Post, Oct. 17, 2003, at A-3. Lewis was sentenced to three years; Battle and Ford were sentenced to eighteen years on the conspiracy charge. See “U.S. Woman Gets 3 Years for Plot to Aid Taliban,” Washington Post, Dec. 2, 2003, at A-13. On February 9, 2004, the remaining three defendants were sentenced to reduced terms for having cooperated with the prosecution: Hawash to seven years, Ahmed Bilal to ten years, and Muhammad Bilal to eight years. “Final Members of ‘Portland Seven’ are Sentenced,” Seattle Post-Intelligencer, Feb. 10, 2004.

United States v. Iyman Faris, No. 03-CR-189 (E.D. Va.) (Alexandria). Faris (aka Mohammad Rauf), an Ohio truck driver who met Osama bin Laden and plotted to destroy the Brooklyn Bridge and attack Washington, D.C., pled guilty on May 1, 2003 to providing material support to al Qaeda. The indictment and plea agreement were not unsealed until June 19, 2003. On October 28, 2003, Judge Brinkema sentenced Faris to the maximum sentence of 20 years imprisonment, having rejected his claims that he lacked mental competency, or that he was trying to fool the FBI and was merely trying to write a book on terrorism. See J. Markon, “Ohio Man Gets 20 Years for Al Qaeda Plot,” Washington Post, Oct. 29, 2003, at A-2; E. Lichtblau, “Trucker Sentenced to 20 Years in Plot Against Brooklyn Bridge,” N.Y. Times, Oct. 29, 2003, at A-19.

United States v. Yahya Goba, Sahim Alwan, Shafal Mosed, Yaseinn Taher, Faysal Galab and Mukhtar Al-Bakri, Nos. 02-M-107, 02-M-108 (W.D.N.Y.) (Buffalo). The “Lackawanna Six” were alleged to have provided material support to Al Qaeda, through attending the al Farooq training camp in early 2001. The district court upheld their continued detention without bail. 220 F. Supp. 2d 182 (W.D.N.Y. 2002); 240 F. Supp. 2d 242 (W.D.N.Y. 2003). Between January and May 2003, all six defendants pled guilty to the material support charge. The government later unsealed an indictment against a seventh defendant, Jaber Elbaneh, originally an unindicted co-conspirator. See M. Powell, “No Choice But Guilty; Lackawanna Case Highlights Legal Tilt,” Washington Post, July 29, 2003, at A-1, A-8. As part of the plea bargain, the defendants extracted from the government an agreement not to designate them as enemy combatants. According to defense counsel, it was the fear of such a designation that motivated the plea bargain. See J. Zremski, “Security at what price? The USA Patriot Act was Passed to Fight Terrorism, But Critics Say Civil Liberties are Being Sacrificed,” Buffalo News, Sept. 5, 2003, available online at: http://www.buffalonews.com/editorial/20030905/pdf/1046001.pdf. It appears that the government had little evidence that the defendants were actually engaged in

23 material support, as opposed to weapons charges. See M.W. Purdy & L. Bergman, “Unclear Danger: Inside the Lackawanna Terror Case,” N.Y. Times, Oct. 12, 2003, at A-1, A-23 to A-25. The six defendants were sentenced for seven to ten year terms. See D. Staba, “Man Who Trained with Al Qaeda Gets a 10-Year Sentence,” N.Y. Times, Dec. 4, 2002, at A-29 (al-Bakri, 10 years); D. Staba, “Qaeda Trainee Is Sentenced to 8-Year Term,” N.Y. Times, Dec. 5, 2003, at A-29 (Taher); D. Staba, “New York Man in Qaeda Case Will Serve 8 Years,” N.Y. Times, Dec. 10, 2003, at A-25 (Mosed); “Lackawanna 6 Figure Pleads Not Guilty to Money Charges,” Washington Post, Jan. 13, 2004, at A-18 (remaining defendants); L. Bergman, “Qaeda Trainee Is Reported Seized in Yemen,” N.Y. Times, Jan. 29, 2004, at A-21 (capture of Jaber Elbaneh, the seventh defendant).

United States v. John Walker Lindh, No. Crim. 02-37-A (E.D. Va.) (Alexandria). The district court upheld the indictment of Lindh, based on alleged conspiracy to provide material support, by joining Al Qaeda and HUM (Harakat ul-Mujahideen), and engaging in various activities, including combat, that furthered the goals of those groups. 212 F. Supp. 2d 541 (E.D. Va. 2002). Subsequently, Lindh pled guilty to lesser charges, and was sentenced on October 4, 2002 to 20 years.

United States v. Hassan Moussa Makki, et al., No. 03-CR-80079 (E.D. Mich.) (Detroit). Makki was one of thirteen defendants indicted as part of an investigation into an alleged cigarette smuggling ring. However, only Makki was indicted under Section 2339B for providing material support to a terrorist organization, Hizbollah. Makki pled guilty on September 18, 2003, and was sentenced on December 16, 2003 to 57 months. See D. Ashenfelter, “Man Admits to Funding Terror,” Detroit Free Press, Sept. 19, 2003; D. Ashenfelter, “Man is Charged in Terror Probe,” Detroit Free Press, Jan. 16, 2004.

United States v. Bahram Tabatabai, No. 99-CR-225 (C.D. Calif.) (Los Angeles). The defendant was one of fifteen individuals indicted as part of an investigation into alleged immigration fraud. However, only Tabatabai was indicted under Section 2339B for providing material support to the Mujahedin-el Khalq, an Iranian group designated as a foreign terrorist organization. Tabatabai pled guilty to conspiracy and material support charges on October 25, 1999, while the remaining immigration charges were dismissed. Tabatabai was sentenced to 24 months followed by supervised release of three years. Tabatabai subsequently dismissed his attorney and filed an appeal to the Ninth Circuit, which dismissed the appeal because “Tabatabai was sentenced within the terms of his plea agreement and has knowingly and voluntarily waived his right to appeal.” United States v. Tabatabai, 67 Fed. Appx. 465, 466 (9th Cir. 2003). According to the Bureau of Prisons, Tabatabai was released early, on December 8, 2000.

United States v. James Ujaama, No. 02-CR-00283-BJR (W.D. Wash.) (Seattle). The defendant was indicted for conspiracy to provide material support to the Taliban, and weapons charges. On April 14, 2003, Ujaama pled guilty to the conspiracy charge, and agreed to a 2-year sentence in exchange for providing testimony against Abu Hamza al-Masri, the London iman who was alleged to be a recruiter for Al Qaeda. See C. McGann, “Ujaama Case Comes to End,” Seattle Post-Intelligencer, Feb. 14, 2004.

Pending Criminal Prosecutions:

24

United States v. Yehuda Abraham, No. 03-7107 (D.N.J.); United States v. Moinuddeen Ahmed Hameed, No. 03-7111 (D.N.J.); United States v. Hemant Lakhani, No. 03-7106 (D.N.J.). Three defendants were indicted on August 11 and 13, 2003, for their involvement in a scheme to sell a shoulder-fired missile, which could shoot down an airplane, to an FBI informant who claimed to be a Somali terrorist. Lakhani was an arms dealer who was indicted for material support and for illegal transport and transfer of a foreign defense article. The other two defendants were involved in financing this proposed transaction, and were indicted for criminal conspiracy.

United States v. Sami Amin Al-Arian, et al., No. 03-CR-77 (M.D. Fla.) (Tampa). Eight defendants were indicted on February 19, 2003, for material support and racketeering. The four defendants who were arrested (the others evidently remain at large) pled not guilty and are engaged in pretrial litigation. See also United States v. Al-Arian, 280 F. Supp. 2d 1345 (M.D. Fla. 2003) (denying bail to two of the four defendants).

United States v. Mohammed Albanna, Ali A. Albanna, and Ali Taher Elbaneh, No. 02-CR-255 (W.D.N.Y.) (Buffalo). The three defendants, also from Lackawanna, were indicted on charges of providing material support to al Qaeda, through money laundering. The parties are currently engaged in pre-trial discovery and briefing. In January 2004, the prosecutors issued a superseding indictment, which alleged that the defendants sent money to Yemen without registering with the U.S. government. See “Buffalo Man Indicted Over Money Transfers,” Washington Post, Jan. 9, 2004, at A-18. The three defendants, one of whom was a spokesman for the aforementioned “Lackawanna 6,” pled not guilty. See “Lackawanna 6 Figure Pleads Not Guilty to Money Charges,” Washington Post, Jan. 13, 2004, at A-18.

United States v. Sami Omar Al-Hussayen, No. CR 03-0048-C-EJL (D. Idaho). The defendant, Saudi citizen and a graduate student in computer sciences at the University of Idaho, was originally indicted on immigration charges based on allegations that he improperly conducted business while on a student visa. On January 9, 2004, the prosecutors filed a superseding indictment, which alleged that Al-Hussayen conspired to provide material support, through websites and e-mail groups allegedly intended to recruit and raise funds for terrorist purposes, in violation of 18 U.S.C. §§ 371 and 2339A. Al-Hussayen pled not guilty to the additional charge. See also S. Schmidt, “U.S. Indicts Saudi Student; Internet Allegedly Used to Aid Terrorist Groups in Jihad,” Washington Post, Jan. 10, 2004, at A-10; “Nation in Brief,” Washington Post, Jan. 13, 2004, at A-18. On March 4, 2004, the prosecutors filed a second superseding indictment, which added a charge based on conspiracy to provide material support to Hamas; trial is currently scheduled for April 13, 2004. See “Charge Added for Moscow Terrorism Suspect,” Idaho Statesman, Mar. 5, 2004.

United States v. Bayan Elashi, Ghassan Elashi, Basman Elashi, Hazim Elashi, Ihsan Elashi, Mousa Abu Marzook, Nadia Elashi, and Infocom Corp., No. 02-CR-00052 (N.D. Texas) (Dallas). The defendants, some associated with the Holy Land Foundation, were indicted for material support through engaging in financial dealings with Hamas (Islamic Resistance Movement) and providing computers to Libya and Syria. The trial, initially set for October 6, 2003, was rescheduled to March 8, 2004 by the consent of all the parties. On September 2, 2003,

25 the court requested, without explanation, the recusal of Judge Buchmeyer, and the case was reassigned to Judge Lindsay.

United States v. Mahmoud Youssef Kourani, No. 03-CR-80481 (E.D. Mich.) (Detroit). Kourani was initially indicted, on May 14, 2003, with an immigration count, to which he pled guilty in August 2003. In a superseding indictment unsealed on January 15, 2004, Kourani was charged with providing material support to Hezbollah. United States v. Mahmoud Youssef Kourani, No. 03-CR-81030 (RHC) (RSW) (E.D. Mich.) (Detroit). See also D. Ashenfelter & N. Warikoo, “Man Is Charged in Terror Probe,” Detroit Free Press, Jan. 16, 2004; “Lebanese Man Accused of Fighting for Hezbollah,” Washington Post, Jan. 16, 2004, at A-20.

United States v. Sheik Muhammad Ali Hassan al-Mouyad and Muhammad Moshen Yahya Zayed, Nos. 03-MJ-00016, 03-MJ-00043 (E.D.N.Y.) (Brooklyn). The two defendants, from Yemen, were indicted on January 5, 2003; they were arrested in Frankfurt (Germany) and a German court granted the extradition order subject to the U.S. government pledging that the defendants would not be tried before a military tribunal. The defendants appealed the extradition order to Germany’s highest court. See M. Landler, “Germany: Delay in Extradition Ruling,” N.Y. Times, July 26, 2003, page A-2. In early November, the German judiciary agreed to their extradition, and Mouyad and Zayed were arraigned and held without bail. See D. Eggen, “Cleric Charged with Aiding Al Qaeda,” Washington Post, Nov. 18, 2003, at A-3; E. Lichtblau, “Two Yemenis Held Abroad Are to Face Trial in a U.S. Court,” N.Y. Times, Nov. 18, 2003, at A-21. On February 18, 2004, in a related case, a New Jersey man was convicted by a jury for making false statements during the government’s investigation of these defendants. United States v. Numan Maflahi, No. 03-CR-00412 (NG) (E.D.N.Y); see also W. Glaberson, “Trial Traces Terror Aid to Brooklyn; Cleric Raised Money for Qaeda, U.S. Says,” N.Y. Times, Feb. 12, 2004, at A-30; W. Glaberson, “Man Guilty of Lying to the F.B.I. in Sheik Case, N.Y. Times, Feb. 19, 2004, at B-8.

United States v. Uzair Paracha, No. 03-CR-01197-SHS (S.D.N.Y.). The defendant, detained as a material witness for several months, was indicted in August 2003 for allegedly conspiring to smuggle Al Qaeda members or weapons into the United States. On August 12, 2003, Magistrate Judge Andrew Peck denied Paracha’s request to be released on bail. See generally D. Eggen, “U.S. to File Terrorism Charges Against Pakistani Detainee,” Washington Post, Aug. 6, 2003, at A-7; “Pakistani to Face Charge of Aiding Terror, His Lawyer Says,” N.Y. Times, Aug. 6, 2003, at B-3; B. Weiser, “Bail Is Denied for Pakistani Accused of Aiding Al Qaeda,” N.Y. Times, Aug. 13, 2003, at B-2. On January 5, 2004, the defendant filed a motion to suppress evidence and to allow the defendant access to three witnesses in order to take their depositions. Oral argument on this motion is set for February 26, 2004.

United States v. Randall Todd Royer, Ibrahim Ahmed Al-Hamdi, Masoud Ahmad Khan, Yong Ki Kwon, Mohammed Aatique, Seifullah Chapman, Hammad Abdur-Raheem, Donald Thomas Surratt, Basha Ibn Abdur-Raheem, Khwaja Mahmood Hasan, and Sabri Benkhala, No. 03-CR- 296 (E.D. Va.) (Alexandria). The eleven defendants, the so-called “Virginia Jihad Network,” were indicted on June 25, 2003 under the Neutrality Act and on weapons counts based on their support of Lashkar-I-Taiba, a designated terrorist group that supports Muslim control of Kashmir. See M.B. Sheridan, “More Serious Charges Possible in ‘Va. Jihad Network’ Case,” Washington Post, Aug. 2, 2003 at B-2. From August 21 to 25, 2003, three defendants (Hasan,

26 Kwon, and Surratt) pled guilty to conspiracy and weapons charges, with other charges against them dismissed; Kwon and Hasan were sentenced to 11 years, and Surratt to less than four years. See J. Markon, “3 Plead Guilty in Jihad Conspiracy,” Washington Post, Aug. 26, 2003, at A-1, A-5; J. Markon, “3 Defendants Sentenced in ‘Jihad’ Case,” Washington Post, Nov. 8, 2003, at B- 1, B-4. In September 2003, another defendant (Aatique) pled guilty to aiding and abetting and weapons charges. See J. Markon, “Fourth Man Pleads Guilty in Alleged Va. Jihad Group,” Washington Post, Sept. 23, 2003, at A-12.

The prosecutors then charged the remaining defendants with a new indictment that included a charge based on providing material support to Al Qaeda and the Taliban. See J. Markon & M.B. Sheridan, “Indictment Expands ‘Va. Jihad’ Charges,” Washington Post, Sept. 26, 2003, at B-3. Subsequently, three of the remaining seven defendants (Hamdi, Khan, and Royer) pled guilty to aiding and abetting and weapons charges. See “Jihad Case Pleas,” Washington Post, Sept. 30, 2003, at B-2; J. Markon & M.B. Sheridan, “Leading Va. Jihad Member Pleads Guilty,” Washington Post, Jan. 17, 2004, at B-3.

In late January 2004, the remaining defendants announced that they were seeking a bench trial before Judge Brinkema, in lieu of a jury trial, because of concerns with obtaining an unbiased jury. See J. Markon, “4 Va. Jihad Suspects Won’t go Before Jury,” Washington Post, Jan. 28, 2004, at A-2. The bench trial against four of the defendants (Basha Abdur-Raheem, Hammad Abdur-Raheem, Chapman, and Khan) commenced on February 9, 2004. On February 20, 2004, Judge Brinkema dismissed all the charges against Basha Abdur-Raheem, and dismissed some of the charges against the other three defendants. The last defendant (Benkahla) is scheduled for a separate trial in March 2004. See J. Markon, “Case Dismissed Against Alleged Jihad Group Member,” Washington Post, Feb. 21, 2004, at A-4; J. Dao, “Judge Acquits Virginia Man Accused of Tie to Terrorists,” N.Y. Times, Feb. 21, 2004, at A-9. On March 4, 2004, Judge Brinkema convicted the three defendants of providing material support to Lakshar- e-Taiba, and of several weapons and conspiracy charges, but acquitted Khan of conspiracy to provide material support to Al-Qaeda. United States v. Khan, __ F. Supp. 2d ___, 2004 WL 406338 (E.D. Va. Mar. 4, 2004); see also M.B. Sheridan, “Judge Convicts Three in ‘Va. Jihad’ Case,” Washington Post, Mar. 5, 2004, at A-1, A-10; J. Dao, “3 American Muslims Convicted of Helping Wage Jihad,” N.Y. Times, Mar. 5, 2004, at A-18.

United States v. Carlos Ali Romero Varela, Uwe Jensen, Elkin Alberto Arroyav Ruiz, and Edgar Fernando Blanco Puerta, No. 02-CR-714 (S.D. Tex.) (Houston). In this drug smuggling case, the four defendants were indicted on November 1, 2002, for conspiring to deliver $25 million in weapons to a Colombian terrorist group in exchange for cocaine. On April 23, 2003, Romero Varela pled guilty and was sentenced; the remaining defendants are engaged in pretrial litigation.

United States v. Ahmed Abdel Sattar, Yassir Al-Sirri, Lynne Stewart, and Mohammed Yousry, No. 02-CR-395 (JGK) (S.D.N.Y.) (New York City). Lynne Stewart, an attorney for convicted terrorist Sheik Abdel Rahman – the spiritual leader of a designated terrorist group in Egypt – stands accused along with two paralegals of crimes relating to her representation of the Sheik. The Sheik is incarcerated under highly restrictive conditions that strictly limit his ability to communicate with the outside world. On July 22, 2003, Judge John Koeltl dismissed the two counts of provision of material support in the form of “communications equipment” and

27 “personnel” against the defendants, on the grounds that these terms are unconstitutionally vague. United States v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003). In doing so, Judge Koeltl stated that “the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO, could avoid being subject to criminal prosecution as a ‘quasi-employee’ allegedly covered by the statute.” Id. at 359. Relying on the Ninth Circuit’s ruling in Humanitarian Law Project, 205 F.3d at 1137-38, Judge Koeltl concluded that he was “not authorized to rewrite the law so that it will pass constitutional muster.” Sattar, 272 F. Supp. 2d at 360. Judge Koeltl denied the defendants’ motion to dismiss the indictment in all other respects. See generally A. Liptak, “Defending Those Who Defend Terrorists,” N.Y. Times, July 27, 2003, Section 4, page 4. Subsequently, Michael Tigar, Ms. Stewart’s attorney, charged that the FBI had improperly destroyed or mishandled the surveillance records, which include some 85,000 audio recordings, 1,300 faxes, and 10,000 pages of e-mails and attachments. See B. Weiser, “F.B.I. Accused of Corrupting Surveillance,” N.Y. Times, Aug. 20, 2003, at A-21. On September 15, 2003, Judge Koeltl denied the defendants’ motion to suppress evidence obtained through FISA search warrants, and granted the government’s request that none of the classified evidence be disclosed to the defendants, except for certain redacted documents. United States v. Sattar, 2003 WL 22137012 (S.D.N.Y. Sept. 15, 2003). On October 7, 2003, the government withdrew its interlocutory appeal of the dismissal of some charges against Ms. Stewart, thereby allowing the remaining charges to go to trial. See M. Hamblett, “Government Backs Off Appeal in Prosecution of NY Lawyer,” N.Y. Lawyer, Oct. 8, 2003. The government can still appeal the dismissal of those charges after the jury verdict, under 18 U.S.C. § 3731, provided that the dismissed charges do not have the same elements or evidence as for the charges that went to trial. On November 5, 2003, Judge Koeltl denied Stewart’s motion to dismiss the indictment, holding that there was no evidence of any nonprosecution agreement or that the Government ever promised that she would not be indicted. United States v. Sattar, 2003 WL 22510398 (S.D.N.Y. Nov. 5, 2003). Judge Koeltl also found that the prosecutors’ failure to preserve and turn over certain audio files from their telephone surveillance of the defendants’ telephone calls was not in bad faith, so no sanctions were warranted. United States v. Sattar, 2003 WL 22510435 (S.D.N.Y. Nov. 5, 2003). On November 19, 2003, the government issued a superseding indictment, alleging material support in violation of 18 U.S.C. § 2339A; the defendants assert that the new charges are an impermissible recasting of the previously dismissed conspiracy charge. See S. Schmidt, “Lawyer, Two Others Face New Terror Charges,” Washington Post, Nov. 20, 2003, at A-3; M. Hamblett, “Justice Charges Lawyer Aided Terrorists,” Legal Times, Nov. 24, 2003, at 8. The trial is currently scheduled for May 17, 2004, after Judge Koeltl rejected the government’s demand that the trial should be held in early January 2004. See “NY Lawyer Awaits Trial in Terror Case,” N.Y. Lawyer, Jan. 26, 2004.

United States v. Syed Mustajab Shah, Muhammed Abid Afridi, and Ilyas Ali, No. 02-CR-2912 (S.D. Cal.) (San Diego). The three defendants were indicted on October 30, 2002, for conspiring to smuggle heroin and hashish in exchange for cash and four Stinger anti-aircraft missiles, which were to be sold to Al Qaeda. The defendants were apprehended in March 2003 and pled not guilty to the material support and drug charges. On September 26, 2003, defendant Shah filed a motion to dismiss the indictment on the grounds that 18 U.S.C. § 2339B was unconstitutional. On October 10, 2003, Judge Lorenz denied in part and continued in part this motion, with the hearing scheduled to resume on January 16, 2004.

28 United States v. Mohamed Abdullah Warsame, No. 04-CR-29 (D. Minn.). The defendant, a Canadian citizen of Somali origin, was indicted on January 20, 2004, under Section 2339B for conspiracy to provide material support to al Qaeda. According to news accounts, he attended al Qaeda training camps at which Osama bin Laden was present. See S. Schmidt, “Canadian Held for Alleged Al Qaeda Ties; U.S. Accuses Man of Plotting to Provide Aid to Terrorists,” Washington Post, Jan. 22, 2004, at A-3.

Appeal Pending:

United States v. Hossein Afshari, Mohammad Omidvar, Hassan Rezaie, Roya Rahmani, Navid Taj, Mustafa Ahmady, and Alireza Mohamad Moradi, No. 01-CR-209 (C.D. Cal.) (Los Angeles). The seven defendants were indicted for material support through their fundraising for the “Mujahedin-e Khalq,” an alias for the People’s Mojahedin Organization of Iran. Judge Takasugi dismissed the indictments on the grounds that the statute that defines the term “foreign terrorist organization,” 8 U.S.C. § 1189, was unconstitutional because it provided no due process and could not be used as the basis for a criminal prosecution. United States v. Rahmani, 209 F. Supp. 2d 1045 (C.D. Cal. 2002); see generally G. Winter, “Judge Drops Case Against 7 Tied to Group Called Terrorist,” N.Y. Times, June 24, 2002, at A16. The government appealed this decision to the Ninth Circuit, No. 02-50355, and oral argument occurred on September 9, 2003 before Judges Kleinfeld, Wardlaw and W. Fletcher.

C. Civil Damage Lawsuits Brought by Victims of Terrorism.

Some victims of terrorism have brought civil lawsuits against alleged assailants and their alleged supporters, primarily through common-law claims (e.g., negligence, conspiracy, wrongful death, intentional infliction of emotional distress) and two federal statutes: (1) the Anti-Terrorism Act, 18 U.S.C. § 2331 et seq.; and (2) Civil RICO, 18 U.S.C. § 1961 et seq. The material support statute is a predicate act for both of these statutes, although it was not incorporated into the Civil RICO statute until October 2001, after the September 11 attacks. Most of this civil litigation has involved lawsuits against foreign governments and their agencies. This section will emphasize several recent lawsuits brought against individuals and organizations, including several Islamic charities in the U.S.A.

In Boim, the plaintiffs sued several Islamic charities – including Holy Land Foundation and Quranic Literacy Institute – for allegedly providing material support to Hamas, a designated terrorist organization whose members included two individuals who murdered David Boim, an American student in the West Bank. Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002). The Seventh Circuit upheld the district court’s denial of the defendants’ motion to dismiss the plaintiffs’ claims under the Anti-Terrorism Act. The Seventh Circuit carefully differentiated between several theories of liability. Critically, plaintiffs could not succeed on an allegation that the defendants had merely made donations to an alleged terrorist group, without “knowledge of and intent to further the [recipient’s] violent criminal acts.” Id. at 1011-12. However, if there was such knowledge and intent on the defendant’s part, then the plaintiffs could succeed on an “aiding and abetting” claim, so that the Anti-Terrorism Act reaches not only those who directly engage in terrorism, but also those who aid and abet terrorist acts, such as through material support. Id. at 1021.

29

For example, in Boim, the plaintiffs had alleged nine detailed and specific facts about the defendants’ conduct that directly linked the defendants to the tortious acts, i.e., that the defendants knew about Hamas’ illegal operations, and that they provided substantial aid to Hamas, with the intent of facilitating those terrorist activities. Id. at 1024. The Seventh Circuit’s requirement of knowledge and intent narrows the statute to avoid penalizing constitutionally protected advocacy, since the First Amendment does not protect criminal activity. The parties are now in the district court, conducting depositions and other pre-trial discovery.

A recent decision from the U.S. District Court for the District of Columbia demonstrates the potential for overreaching by plaintiffs in suing defendants remote from the terrorist acts that are the subjects of litigation, for allegedly providing material support to terrorists. In Ungar, the plaintiffs (relatives of an American and his Israeli wife killed in Israel by five Palestinians) sued Iran, two Iranian agencies, and three Iranian officers. Ungar v. Islamic Republic of Iran, 211 F. Supp. 2d 91 (D.D.C. 2002). The plaintiffs’ theory was that since Iran was known to have supported Hamas, and Hamas, in turn, engaged in terrorism, Iran must be held liable for the murders of the Ungars. Judge James Robertson, after an evidentiary hearing, held that even where plaintiffs had evidence that Iran had provided financial and training assistance to Hamas, a known terrorist group, plaintiffs could not seek a recovery absent a showing that Iran had provided training, “sole funding,” or weapons to the individuals (who considered themselves members of Hamas) who had committed the Ungar murders, or that Iran had “approval authority or total control over” those individuals. Ungar, 211 F. Supp. 2d at 99. In Ungar, even though “plaintiffs have established that Iran provided extensive support to Hamas . . . their proof does not link that support to the Ungar murders specifically.” Id. Thus, Judge Robertson dismissed the plaintiffs’ lawsuit against the Iranian defendants.

There are currently pending several civil lawsuits brought by victims of the September 11 attacks. Some are class actions, and others are multiple-plaintiff cases against individuals, groups, and countries alleged to have conducted, or to have provided support to those who conducted, these attacks. The two major lawsuits are Burnett v. Al Baraka Investment & Development Corp., No. 02-CV-01616 (JR) (D.D.C.), and Ashton v. Al Qaeda, No. 02-CV-6977 (RCC) (S.D.N.Y.). Both lawsuits have several thousand plaintiffs and several hundred defendants, with significant overlap of parties and claims between the suits. The Burnett complaint is over 400 pages, and the separate listing of plaintiffs is nearly 600 pages. The Ashton complaint is over 250 pages.

The Burnett lawsuit seeks recovery through (1) five statutory claims: the Anti-Terrorism Act, Civil RICO, the Alien Tort Claims Act, the Torture Victim Protection Act, and the Foreign Sovereign Immunities Act (the last only against Sudan and several of its agencies); (2) five common-law tort claims: wrongful death, survival, intentional infliction of emotional distress, conspiracy, and aiding and abetting; and (3) two common-law negligence claims: negligence and negligent infliction of emotional distress. The plaintiffs seek damages, including punitive damages, of more than $1 trillion dollars.

The Ashton lawsuit seeks recovery through (1) three statutory claims: the Anti-Terrorism Act, the Torture Victim Protection Act, and the Anti-Terrorism and Effective Death Penalty Act

30 (the last only against Iraq, Iran, and Sudan); and (2) four common-law tort claims: wrongful death, survival, assault and battery, and property damage. The plaintiffs seek damages, including punitive damages, of more than $1 billion dollars.

In the Burnett lawsuit, initially before Judge Robertson of the U.S. District Court for the District of Columbia, four defendants completed the briefing on their motions to dismiss by June 2003. Judge Robertson convened a motions hearing on June 24, 2003, and his decision was issued one month later. Burnett v. Al Baraka Inv. & Devel. Corp., 274 F. Supp. 2d 86 (D.D.C. 2003). Judge Robertson held that the plaintiffs lacked standing to bring their Civil RICO claims, because that statute does not cover losses arising from personal injuries. As for a charity defendant, he granted the motion to dismiss as to the plaintiffs’ negligence claims, because a charity owes no duty to the general public, but denied it as to the plaintiffs’ remaining tort claims. As for an individual defendant who was briefly associated with another charity, the Judge concluded that the plaintiffs’ allegations were too vague, and granted leave for this defendant to file a request for a more definite statement (on August 22, 2003, the plaintiffs instead dismissed that defendant from the lawsuit). As for a Saudi bank defendant, the Judge concluded that it might have a defense based on lack of personal jurisdiction, and granted the plaintiffs an opportunity to conduct discovery limited to that purpose, but only after that defendant had the opportunity to file a request for a more definite statement, upon which the bank renewed its motion to dismiss. Judge Robertson then held a second hearing on the motions to dismiss by Prince Sultan and Prince Turki, two high-ranking members of the Saudi royal family, who argued that they had immunity under the Foreign Sovereign Immunities Act. On November 14, 2003, Judge Robertson granted the motions to dismiss of these two Saudi princes. Burnett v. Al Baraka Inv. & Devel. Corp., 292 F. Supp. 2d 9 (D.D.C. 2003); see also C.D. Leonnig, “Judge Rejects Saudi Terrorist Link,” Washington Post, Nov. 15, 2003, at A-16.

The Ashton lawsuit is pending before Judge Casey of the U.S. District Court for the Southern District of New York. In addition, several insurance companies that paid out benefits to the injured victims, or the estates of the deceased victims, filed lawsuits in the Southern District of New York, against many of the same defendants; the insurance companies also sought leave to intervene in the Burnett and Ashton actions. Federal Insurance Co., et al. v. Al Qaida, et al., No. 03-CV-6978 (S.D.N.Y.); Vigilant Insurance Co., et al. v. Kingdom of Saudi Arabia, et al., No. 03-CV-8591 (S.D.N.Y.).

On August 7, 2003, the Saudi Binladin Group, a defendant in several of these lawsuits, filed a motion for transfer and consolidation of all these lawsuits with the Judicial Panel on Multidistrict Litigation. In re Terrorist Attacks on September 11, 2001, No. MDL-1570 (J.P.M.L.). The relief requested, under 28 U.S.C. § 1407, was to have these lawsuits consolidated as a single action before Judge Robertson. Of the parties who responded to this motion, nearly all consented in their written submissions to this consolidation, and transfer of the New York lawsuits to the District of Columbia. However, after the written submissions were filed, Judge Robertson issued his ruling in Burnett, supra (dismissing the Saudi Princes), upon which the plaintiffs switched sides, instead arguing that the cases should be consolidated before Judge Casey. The Panel thereupon ordered that the cases be transferred and consolidated before Judge Casey. In re Terrorist Attacks on Sept. 11, 2001, 295 F. Supp. 2d 1377 (J.P.M.L. 2003).

31 VI. Affirmative Challenges to USA Patriot Act Provisions.

Six weeks after the September 11 attacks, the USA Patriot Act was passed by an overwhelming margin in both houses of Congress over the vigorous objections of civil liberties groups on both sides of the political spectrum.5 This complex and far-reaching legislation has become a source of controversy because it vastly expands the government’s powers to conduct surveillance, suppress dissent, and detain and deport non-citizens. In the summer of 2003, two separate suits challenging the constitutionality of its provisions were filed. See M. Coyle, “Watching the Watchers,” National L.J., Aug. 13, 2003.

On January 23, 2004, the first court ruling to declare a USA Patriot Act provision unconstitutional was issued in Humanitarian Law Project, et al. v. Ashcroft, et al., No. CV 03- 6107 ABC, 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 23, 2004) (“Humanitarian Law Project II”).6 This suit, filed by the Center for Constitutional Rights in August 2003, raises First and Fifth Amendment challenges to a USA Patriot Act provision that amended a section of the 1996 Anti-Terrorism and Effective Death Penalty Act criminalizing the provision of material support to designated foreign terrorist organizations. As described more fully in Section V, above, it is a crime to provide material support to a designated organization even when that support is directed solely to the organization’s lawful and peaceful ends. Section 805(a)(2)(B) of the USA Patriot Act amended the definition of material support to include “expert advice or assistance.”

The Humanitarian Law Project II plaintiffs are organizations and U.S. citizens who wish to lend their expertise in the fields of law, peace, medicine, information technology, and the cultural arts to promote the political and social activities of two designated organizations, the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). The Humanitarian Law Project and its President, Ralph Fertig, would like to offer their legal expertise to the PKK towards the goals of negotiating a peaceful resolution of the Kurds’ longstanding conflict with the Turkish government and seeking redress for human rights violations against the Kurds. Plaintiff Dr. Nagalingam Jeyalingam, a Tamil-American physician, would like to provide his expert medical advice on how to improve the delivery of health care in the war-ravaged areas of Sri Lanka that fall under the control of the LTTE. Although the Humanitarian Law Project II plaintiffs believe that providing expert advice and assistance towards these laudable goals is protected under the First Amendment, they are afraid that they could be prosecuted and convicted for providing “expert advice or assistance” under the material support law if they were to act on their wishes without prior court approval. The plaintiffs filed a motion for summary judgment on October 10, 2003 seeking a declaration that the term “expert advice or assistance” should be struck because it is unconstitutionally vague and overbroad, that the Act’s prohibition on providing “expert advice or assistance” violates the First and Fifth Amendments to the Constitution insofar as it criminalizes pure speech in association with proscribed groups without requiring any showing of intent to incite imminent lawless activity or

5 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56.

6 These plaintiffs also serve as plaintiffs in a pending suit that was filed in 1998 to challenge the 1996 material support law on First Amendment grounds. The earlier filed suit, which bears the same short form caption as this suit, is discussed in Section V.A., supra.

32 further the organization’s unlawful ends, and that the prohibition violates the First and Fifth Amendments by granting the Secretary of State effectively unreviewable authority to license speech by designating foreign organizations as “terrorist.”

The January 23, 2004 opinion, authored by Judge Collins of the U.S. District Court in Los Angeles and amended on January 30, 2004, declared the term “expert advice or assistance” – added to the definition of “material support” by the USA Patriot Act – void for vagueness under the First Amendment. Judge Collins found that this term, like the terms “training” and “personnel,” which had been added to the definition of material support in 1996 – was not sufficiently clear as to the activities that it prohibited and could be construed to include advocacy and associational activities protected by the First Amendment. Id. at *43-*45. The government is expected to appeal this decision to the Ninth Circuit. See generally J. Mintz, “Part of Patriot Act Is Struck Down,” Washington Post, Jan. 27, 2004, at A-15; J. Bravin, “Judge Deals Blow to the Patriot Act,” Wall Street Journal, Jan. 27, 2004, at A-6; E. Lichtblau, “Citing Free Speech, Judge Voids Part of Antiterror Act,” N.Y. Times, Jan. 27, 2004, at A-21.

The second suit that challenges the constitutionality of a USA Patriot Act provision is Muslim Community Association of Ann Arbor, et al. v. Ashcroft, No. 03-CV-72913 (E.D. Mich.). This suit was filed by the ACLU in July 2003, on behalf of six organizations that support the needs of Arab Americans and Muslims. The Muslim Community Association suit attacks the constitutionality of Section 215 of the USA Patriot Act, a provision amending the Foreign Intelligence Surveillance Act of 1978 (FISA). Section 215 permits the FBI to obtain in total secrecy “any tangible things,” including “books, records, papers, documents, and other items,” whether they are in a person’s home or in the possession of a third party such as a library, hospital, Internet service provider, or political organization, on a simple showing that they are “sought for” an ongoing foreign intelligence, counterintelligence, or international terrorism investigation. Under Section 215, the government need not make the showing of probable cause to believe that the target of its order is engaged in criminal activity. Parties served with a Section 215 order are automatically subject to a “gag order,” which bars them from disclosing the existence of the order to the target or anyone else. As a result, individuals do not know whether or not they are targets of a Section 215 order. Moreover, Section 215 orders are more onerous than grand jury subpoenas in that there are no established procedures under which a party served with such an order can file a motion to quash in a court.

The Muslim Community Association plaintiffs allege that Section 215 infringes their rights to free speech, privacy, and due process in violation of the First, Fourth, and Fifth Amendments. See D. Eggen, “Seizure of Business Records Is Challenged,” Washington Post, July 31, 2003, at A-2. In October 2003, the Department of Justice filed a motion to dismiss the lawsuit, arguing that the plaintiffs did not have standing to sue and that Section 215 was constitutional. See D. Shepardson, “Dismiss Patriot Act Challenge, Feds Urge,” Detroit News, Oct. 7, 2003. The NAACP submitted an amicus brief in support of the plaintiffs in which it described the chilling effect on membership caused by government requirements to disclose the names of its members. The brief stated that during the 1960’s, NAACP members “feared they would lose their jobs and be attacked physically if their membership in the organization was disclosed.” Judge Denise Page Hood heard argument on the government’s motion on December 3, 2003, and a decision is expected shortly.

33 On September 18, 2003, Attorney General Ashcroft admitted that the government had never used Section 215. See E. Lichtblau, “Government Says It Has Yet to Use New Power to Check Library Records,” N.Y. Times, Sept. 19, 2003, at A-16. Nevertheless, the Department of Justice takes the position that the government needs the ability to conduct terrorism investigations in secret.

In addition to the two above-described affirmative challenges to the USA Patriot Act provisions, the ACLU litigated a suit under the Freedom of Information Act seeking information on the government’s use of the surveillance and investigatory tools authorized by USA Patriot Act Section 206 (non-FISA provision allowing for roving wiretaps), Section 213 (non-FISA provision allowing for “sneak and peek” searches and seizures), Section 214 (FISA provision loosening the restrictions on the use of pen registers and trap and trace devices), and Section 215 (FISA provision allowing the FBI to obtain “tangible things” on showing that they are “sought for” an ongoing foreign intelligence, counterintelligence, or international terrorism investigation). ACLU v. Dept. of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003). DOJ turned over only a few of the documents sought by the ACLU, and refused to provide statistical records showing how broadly it has been using its USA Patriot Act powers on the grounds that such information was covered by the FOIA exemption for classified national security documents, 5 U.S.C. § 552(b)(1). In her May 2003 decision, Judge Huvelle of the U.S. District Court for the District of Columbia dismissed the action with prejudice, adopting the government’s position that the withheld documents were covered by this exemption. No appeal was filed from this decision, and the time to do so has expired.

VII. Decisions of the Foreign Intelligence Surveillance Courts.

The Foreign Intelligence Surveillance Act establishes a highly secretive Foreign Intelligence Surveillance Court (FISC), which has the authority to issue orders permitting the government to conduct clandestine wiretaps and physical searches based on a one-sided presentation by the DOJ. 50 U.S.C. § 1801 et seq. Under FISA, the government need not meet the Fourth Amendment’s probable cause requirements. But before the USA Patriot Act was enacted, FISA surveillance orders were available only when the gathering of foreign intelligence information was “the purpose” of the surveillance. With the introduction of Section 218 of the USA Patriot Act, however, FISA orders are available as long as the gathering of foreign intelligence information is “a significant purpose” of the surveillance.

From its inception in 1978 to early 2002, the FISC had granted all of DOJ’s requests for FISA orders. However, on May 17, 2002, the FISC made history by issuing an opinion that imposed restrictions on electronic surveillance in an attempt to maintain a wall between the government’s intelligence and prosecutorial functions. In August 2002, the FISC again made history by making this decision the first decision to be published in its 24 years of existence. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (Foreign Intel. Surv. Ct. 2002). The opinion was also noteworthy for its disclosure that the government had “confess[ed] error in some 75 FISA applications related to major terrorist attacks directed against the United States, including misstatements and omissions of material facts.”

34

In November 2002, however, the Foreign Intelligence Surveillance Court of Review convened for the first time since FISA was enacted, in order to review the May 2002 FISC decision, which the government had appealed. Since the government has refused to disclose the identity of the subject of the surveillance order, this individual was not a party to the proceeding. However, the Court of Review granted leave to the ACLU and the National Association of Criminal Defense Lawyers to submit amici briefs.

In In re Sealed Case No. 02-001, 310 F.3d 717 (Foreign Intel. Surv. Ct. Rev. 2002) (per curiam), the Court of Review reversed the lower court decision by interpreting Section 218 of the USA Patriot Act as amending FISA to permit the government to obtain a FISA surveillance order even when the government’s primary purpose is criminal investigation, as long as the government “entertains a realistic option of dealing with [the target of investigation] other than through criminal prosecution.” Id. at 735. This ruling has served to tear down the procedural wall separating law enforcement operations from foreign intelligence operations that, for two decades, had served the vital function of ensuring that the government did not use its intrusive FISA surveillance powers as an end-run around the Fourth Amendment’s requirement of probable cause when the government’s primary interest in a target of surveillance was prosecution. The ACLU and the Bar Association of San Francisco filed motions for leave to intervene to file a petition for writ of certiorari with the Supreme Court. On March 24, 2003, however, these motions were denied. ACLU v. United States, 123 S. Ct. 1615 (2003).

At least one criminal defendant who is under prosecution on terrorism-related charges, Jeffrey Battle, filed a motion on August 30, 2003 to suppress evidence obtained under FISA on the ground that FISA is unconstitutional as it has been amended by Section 218 of the USA Patriot Act.7 United States v. Jeffrey Battle, et al., No. 02-CR-399 (D. Or.) (Portland). Battle’s primary argument in support of his motion to suppress is that permitting FISA surveillance based on a showing that the gathering of foreign intelligence information is a significant – but not the primary – purpose of the surveillance, violates the Fourth Amendment’s probable cause requirement. Battle also argued that FISA violates the Fifth and Sixth Amendments by failing to provide targets with the opportunity to bring an adversarial challenge at the point in time when the government applies for a surveillance order. In addition, Battle argued that the government targeted him for surveillance because of his exercise of his First Amendment rights thereby violating the First Amendment. The ACLU was granted permission to file an amicus brief in support of Battle’s motion. However, on October 16, 2003, Battle pled guilty to one count of conspiracy to commit war against the U.S., with the remaining counts dropped, so there was no resolution of his pending motion. See “Duo Pleads Guilty to Conspiracy Against U.S.,” Washington Post, Oct. 17, 2003, at A-3. More criminal defendants in other cases are expected to file comparable motions to suppress on these grounds.

VIII. Freezing the Assets of Charities Alleged to Have Supported Terrorism.

Under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq., the Secretary of Treasury has the authority to block the assets of any person or entity who

7 The criminal case against Battle is described supra, in Section V.B.

35 has been designated as a “Specially Designated Global Terrorist.” The consequences of freezing the assets are that the person or entity can no longer engage in any monetary transactions in the U.S.A. IEEPA does not provide any statutory mechanism to challenge this designation. Despite this absence of a judicial review provision, two Islamic charities have challenged their designations and ensuing freezing of their assets: Holy Land Foundation (Texas) and Global Relief Foundation (Illinois). See generally David Cole, “The New McCarthyism: Repeating History in the War on Terrorism,” 38 Harv. C.R.-C.L. L. Rev. 1, 26-28 (2003) (criticizing unfettered discretion of the President in designating entities under IEEPA and in freezing their assets at time when the organization is merely being investigated for potential IEEPA violations).

The Global Relief Foundation (GRF) was designated in December 2001, and filed a lawsuit in the U.S. District Court for the Northern District of Illinois, seeking a preliminary injunction against the extension of its designation, and raising various constitutional claims. Judge Wayne Andersen denied GRF’s request. Global Relief Found. v. O’Neill, 207 F. Supp. 2d 779 (N.D. Ill. 2002). GRF appealed to the U.S. Court of Appeals for the Seventh Circuit, which affirmed in all respects. Global Relief Found. v. O’Neill, 315 F.3d 748 (7th Cir. 2002), petition for cert. filed, 72 U.S.L.W. 3113 (July 3, 2003) (No. 03-46). The Seventh Circuit held that GRF was not constitutionally entitled to notice and a pre-seizure hearing, since “postponement is acceptable in emergencies,” id. at 754, and if the designation turned out to be in error, then GRF could seek recovery through a lawsuit in the Court of Federal Claims. Id. The Seventh Circuit also rejected GRF’s argument that IEEPA does not cover corporations that are legally registered in the U.S.A., since “the focus must be on how the assets could be controlled and used, not on bare legal ownership. GRF conducts its operations outside the United States; the funds are applied for the benefit of non-citizens and thus are covered by [IEEPA].” Id. at 753. On November 10, 2003, the Supreme Court denied GRF’s petition for certiorari. Global Relief Found. v. Snow, 124 S. Ct. 531 (2003).

The Holy Land Foundation (HLF) was also designated in December 2001, and filed a lawsuit in the U.S. District Court for the District of Columbia, raising constitutional claims under the First, Fourth, and Fifth Amendments, and statutory claims under the Religious Freedom Restoration Act and the Administrative Procedure Act. Judge Kessler granted defendants’ motion to dismiss the complaint, except as to their search and seizure claim under the Fourth Amendment. Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002). HLF appealed to the U.S. Court of Appeals for the D.C. Circuit, which affirmed in all respects, and directed the grant of summary judgment in favor of the government. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). The D.C. Circuit held that the government could rely on hearsay evidence in designating HLF, id. at 162, and adopted the Seventh Circuit’s reasoning in Global Relief as being “unassailable.” Id. at 163. The D.C. Circuit rejected HLF’s claims under the Religious Freedom Restoration Act on the grounds that there was “no free exercise right to fund terrorists” and that the evidentiary “record clearly supports a conclusion that HLF did.” Id. at 167. The D.C. Circuit subsequently denied HLF’s petition for rehearing en banc. See Order (No. 02-5307) (D.C. Cir. Aug. 22, 2003). On March 1, 2004, the Supreme Court denied HLF’s petition for certiorari. Holy Land Foundation for Relief & Dev. v. Ashcroft, No. 03-775, 2004 WL 368125 (2004); see also E. Amon, “Accused Charity’s Last Gasp,” National Law Journal, Mar. 8, 2004, at 1.

36 Subsequently, HLF learned that the original affidavit used to obtain wiretaps from the FISA Court (discussed supra, Part VII), which was prepared by Michael Resnick, an FBI counterterrorism official, had a number of errors. After the FISA Court barred Resnick from appearing before them, the FBI commenced an internal audit of Resnick’s other affidavits, and discovered that the HLF affidavit similarly had errors. The FBI then prepared a new affidavit, which was approved by the FISA Court, although it remains to be seen whether evidence obtained under the old affidavit can be used at trial. See S. Braun, “Charity’s Fate Seen as Test of Wider War on Terror; U.S. Accuses an Islamic Foundation of Ties to Hamas, FBI Errors may Spark a Legal Challenge,” Los Angeles Times, Sept. 14, 2003.

IX. Secrecy in the Courts.

The government has sought to maintain complete secrecy regarding its detention of an unknown number of Arab and Muslim men in the period following the September 11, 2001 attacks. In at least a few cases, courts took the extraordinary step of sealing the entire court docket on habeas petitions and civil actions brought by detainees.8

For example, Mohamed Kamel Bellahouel was a waiter at a restaurant in Delray Beach (Florida) where he coincidentally served several of the Al Qaeda hijackers in the summer of 2001. Bellahouel, an Algerian, overstayed his student visa and was illegally working without obtaining the proper immigration status. Bellahouel was detained after he was turned in by someone who claimed that she saw Bellahouel go into a movie theater with one of the hijackers. Bellahouel was detained for over five months, but was released on an immigration bond in March 2002. While detained, Bellahouel filed a habeas petition with the U.S. District Court for the Southern District of Florida, Bellahouel v. Wetzel, No. 02-CV-20034, naming the warden of the federal prison in Miami as the respondent. The entire proceeding before the district court was sealed, as was Bellahouel’s subsequent appeal to the U.S. Court of Appeals for the Eleventh Circuit, which issued a sealed decision on March 31, 2003. It was only through a series of clerical errors, in which the court dockets and calendars were briefly posted online, that a reporter for the Miami Daily Business Review was able to learn about this case.9 The federal immigration authorities are still attempting to deport Bellahouel, who is married to an American.

8 See generally Reporters Committee for Freedom of the Press, “Secret Justice: Secret Dockets” (2003), at http://www.rcfp.org/secretjustice/secretdockets/index.html.

9 D. Christensen, “Feds File Sealed Response in Secrecy Case,” Miami Daily Bus. Rev., Jan. 7, 2004; D. Christensen, “Journalists Ask Courts to End Secret Dockets, Miami Daily Bus. Rev., Dec. 31, 2003; D. Christensen, “Scrutinizing ‘Supersealed Cases,” Miami Daily Bus. Rev., Dec. 2, 2003; D. Christensen, “Plea for Openness,” Miami Daily Bus. Rev., Nov. 5, 2003; D. Christensen, “Secrecy Appealed,” Miami Daily Bus. Rev., Sept. 25, 2003, http://www.law.com/jsp/article.jsp?id=1063212087029; D. Christensen, “Federal Court in Florida Hides Cases from Public,” Miami Daily Bus. Rev., May 12, 2003, http://www.law.com/jsp/article.jsp?id=1052440717444; D. Christensen, “Secrecy Within,” Miami Daily Bus. Rev., Mar. 12, 2003, http://www.law.com/jsp/article.jsp?id=1046833547729; see also D. de Vise, “Case Galvanizes Opponents of U.S. Secrecy,” Miami Herald, Jan. 19, 2004; W. Richey, “Secret 9/11 Case Before High Court,” Christian Science Monitor, Oct. 30, 2003, http://www.csmonitor.com/2003/1030/p01s02-usju.htm.

37

On June 27, 2003, Bellahouel filed a petition for writ of certiorari with the U.S. Supreme Court. M.K.B. v. Warden, No. 03-6747 (U.S. Jun. 27, 2003). The petition was filed under seal, with a redacted version made public. See “Petition for Writ of Certiorari,” No. 03-6747, at: http://news.findlaw.com/hdocs/docs/scotus/mkbwarden62703cpet.pdf. Bellahouel argues that the sealing of the record by the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the Eleventh Circuit is contrary to Supreme Court precedents under both the common-law and the First Amendment governing the right of public access to court filings and judicial proceedings. Critically, the lower courts could have allowed partial redactions limited to factual matters as opposed to legal arguments. According to the Supreme Court’s online docket, the respondents, who are represented by the Solicitor General, initially waived their right to file a response to the petition for certiorari. However, on November 4, 2003, the Supreme Court ordered the Administration to file a response to Bellahouel’s petition for certiorari. See C. Lane, “White House Told to Justify Secrecy,” Washington Post, Nov. 5, 2003, at A-6. The Reporters Committee for Freedom of the Press, on behalf of numerous other media organizations filed its amicus brief in support of the petition for certiorari. See Amicus Brief, http://www.rcfp.org/news/documents/20031103-mkbvwarden.pdf (Nov. 3, 2003); Motion to Intervene, http://www.rcfp.org/news/documents/20040102-mkbvwarden.pdf (Jan. 5, 2004) see also L. Greenhouse, “News Groups Seek to Open Secret Case,” N.Y. Times, Jan. 5, 2004, at A- 12. Notably, when the government filed its opposition to Bellahouel’s petition for certiorari, its entire submission was filed under seal. See “U.S. Requests Secrecy in 9/11 Detainee’s Case,” Washington Post, Jan. 6, 2004, at A-10. On February 23, 2004, the Supreme Court denied certiorari, and denied the motion to intervene. M.K.B. v. Warden, No. 03-6747, 2004 WL 324470 (2004); see also C. Lane, “Court Denies Review of Post-9/11 Secrecy,” Washington Post, Feb. 24, 2004, at A-6; D. Christensen, “Still a Secret,” Miami Daily Business Review, Feb. 24, 2004; D. Christensen, “Feds Defend Secret Docketing of Post-9/11 Detainee’s Case, Miami Daily Business Review, Mar. 5, 2004.

X. Government Interference with Public Protest.

The United States’ announcement of its plans in 2002 to invade Iraq, and its subsequent preemptive invasion of Iraq in March 2003, touched off a wave of mass anti-war rallies and demonstrations all across this nation. Unfortunately, many police departments met peaceful protesters with hostility and force. Moreover, according to a leaked confidential memorandum, the FBI has been investigating these protesters in the guise of investigating terrorism. Although the FBI recognized the existence of “traditional demonstration tactics,” the FBI believed that “activists” and “extremist elements” might “engage in more aggressive tactics,” and concluded that “[l]aw enforcement agencies should be alert to these possible indicators of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force.” See FBI Intelligence Bulletin No. 89, “Tactics Used During Protests and Demonstrations” (Oct. 15, 2003) (online at: http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=14452&c=207). Civil libertarians have expressed concern that the FBI has selectively targeted protesters based on the content of their message, in violation of the First Amendment and the procedures that were put in place in the 1970s to halt the types of intelligence abuses that occurred under the FBI’s

38 Cointelpro investigations. See E. Lichtblau, “F.B.I. Scrutinizes Antiwar Rallies,” N.Y. Times, Nov. 23, 2003, at A-1, A-18.

The District of Columbia, as the seat of the government and home to many international institutions, including the World Bank and the International Monetary Fund (IMF), has hosted a disproportionate number of these protests. A number of lawsuits have been filed by protesters who have challenged the conduct of the police who arrested or otherwise restricted their protest activities. One set of lawsuits filed in the U.S. District Court for the District of Columbia arose from the September 2002 protests that took place in front of the World Bank and the IMF. The plaintiffs in these suits are several hundred protesters who were arrested and detained for between one and two days without being charged. Raymond Chang, et al. v. United States, No. 02-CV-2010 (D.D.C.); Jeffrey Barham, et al. v. Ramsey, No. 02-CV-2283 (D.D.C.); Franklin Jones, et al. v. District of Columbia, No. 02-CV-2310 (D.D.C.); Julie Abbate, et al. v. Ramsey, No. 03-CV-767 (D.D.C.). The plaintiffs variously brought First, Fourth, and Fourteenth Amendment claims and common law claims of false arrest and false imprisonment against the District of Columbia. The Barham plaintiffs also brought an equal protection challenge to the District’s failure to offer the detainees an opportunity to obtain release while preserving their right to go to trial, as the District customarily does for other offenses. Some plaintiffs also asserted conversion of property claims, and others sought injunctive relief against the federal law enforcement agencies who participated in the challenged actions.

On September 12, 2003, Judge Sullivan ordered that the District of Columbia’s internal investigative reports of the police actions be publicly released. Chang v. United States, 2003 WL 22118347 (D.D.C. Sept. 12, 2003) (http://www.dcd.uscourts.gov/02-2010.pdf); see also C. Leonnig, “IMF Arrests Improper, Police Found,” Washington Post, Sept. 13, 2003, at B-1; C. Leonnig, “D.C. Told to Release Report on Protests,” Washington Post, Sept. 12, 2003, at B-1.

On September 19, 2003, Judge Sullivan ruled that class certification of these claims was warranted, and that the individual claims would be consolidated. Chang v. United States, 203 F.R.D. 262 (D.D.C. 2003) (http://www.dcd.uscourts.gov/02-2010a.pdf); see also “Class-Action Case,” Washington Post, Sept. 25, 2003, at B-2. Subsequently, the District of Columbia settled, for $7,000 to $10,000 each, the claims brought by three students who were bystanders and were merely photographing the protest. Settlement discussions on the other cases (involving those of active protesters) remain pending. See C. Leonnig, “District Reaches Settlement over Mass Arrests,” Washington Post, Jan. 1, 2004, at B-1, B-4; see also A. Santana, “Ramsey Defends Surveilling Protesters,” Washington Post, Dec. 19, 2003, at B-5.

Protesters have filed lawsuits in a number of other cities. On July 24, 2003, ACORN (Association for Community Organizations for Reform Now), and four other plaintiffs, all represented by the ACLU, filed a lawsuit in Philadelphia against the Secret Service, and several local police departments, seeking injunctive relief to prohibit these law enforcement agencies from keeping anti-Bush protesters further away from the President than the supporters of the President. ACORN, et al. v. City of Philadelphia, et al., No. 03-CV-4312 (E.D. Pa.) (Philadelphia). The other two defendants were the Police Department of the City of Philadelphia (subsequently dismissed by consent) and the U.S. Secret Service. The plaintiffs filed an amended complaint on September 23, 2003, and the defendants’ response was due by November

39 24, 2003. See also C. Leonnig, “Lawsuit Criticizes Secret Service; Anti-Bush Protesters Are Kept at Bay, Advocacy Groups Say,” Washington Post, Sept. 24, 2003, at A-27.

In California, at least one lawsuit arose from the actions of the Oakland police in breaking up an anti-war protest on April 7, 2003, which included firing rubber and wooden bullets directly at protesters, and other improper use of lethal force against the protesters. Several months later, misdemeanor charges were filed against 25 demonstrators, notwithstanding the fact that they had not been charged with any offenses at the time they were arrested. On June 26, 2003, the ACLU and the National Lawyers Guild filed a civil class action lawsuit against Oakland on behalf of numerous demonstrators and community groups. Local 10, Int’l Longshore & Warehouse Union v. City of Oakland, No. 03-CV-02962 (N.D. Cal.) (San Francisco). The plaintiffs alleged violation of their First Amendment rights to free speech and association, their Fourth Amendment rights to be free of unreasonable seizure and excess force, their Fourteenth Amendment rights to due process and equal protection, and violations of various California constitutional, statutory and common-law rights. On August 18, 2003, this case was referred to Magistrate Judge Larson for settlement purposes.

In early February 2004, a grand jury convened by the U.S. Attorney’s Office for the Southern District of Iowa issued subpoenas for records relating to an anti-war gathering that took place at the Drake University School of Law on November 15, 2003. See In re Ongoing Grand Jury Investigation, No. M-1-39 (S.D. Iowa); see also “University Records on Antiwar Meeting Sought,” Washington Post, Feb. 8, 2004, at A-10; M. Davey, “An Antiwar Forum in Iowa Brings Federal Subpoenas,” N.Y. Times, Feb. 10, 2004, at A-12. In the face of strong public opposition, and a motion to quash filed by the National Lawyers Guild – the organization that sponsored the gathering – on the grounds that these subpoenas infringed on the First Amendment rights of the organization and the attendees at this gathering, the subpoenas were withdrawn. The government failed to explain why the grand jury subpoena was so broad in scope; it has simply claimed that it was investigating an alleged incident of trespassing at Camp Dodge, an Iowa National Guard facility, which occurred the day after the Drake University gathering. See M. Davey, “Subpoenas on Antiwar Protest are Dropped,” N.Y. Times, Feb. 11, 2004, at A-16; “Subpoenas Tied to Trespassing Case,” Washington Post, Feb. 15, 2004, at A-13; L. Post, “A Furor over Iowa Subpoenas,” National Law Journal, Feb. 16, 2004, at 4.

40