UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------x JOSE PADILLA, DONNA R. NEWMAN, as Next Friend of Jose Padilla, : Petitioners, : -against- : 02 Civ. 4445 (MBM) GEORGE W. BUSH, DONALD RUMSFELD, : JOHN ASHCROFT and COMMANDER M.A. MARR : Respondents. ------------------------------------------------------------------------x BRIEF SUBMITTED ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION, NEW YORK CIVIL LIBERTIES UNION AND CENTER FOR NATIONAL SECURITY STUDIES AS AMICI CURIAE Steven R. Shapiro (SS-9900) Lucas Guttentag (LG-0329) Robin R. Goldfaden Amrit Singh AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 17th Floor New York, New York 10004 (212) 549-2500 Arthur N. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) Donna Lieberman (DL-1268) NEW YORK CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 17th Floor New York, New York 10004 (212) 344-3005 Kate Martin CENTER FOR NATIONAL SECURITY STUDIES 1120 19th Street, N.W., Suite 800 Washington, DC 20036 (202) 721-5650 Attorneys for Amici Curiae Dated: New York, New York September 26, 2002 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. ii INTEREST OF AMICI. 1 INTRODUCTION . 2 ARGUMENT: THE CONSTITUTION DOES NOT PERMIT THE INDEFINITE DETENTION OF AN AMERICAN CITIZEN ARRESTED IN THE UNITED STATES AND HELD IN AN AMERICAN MILITARY JAIL WITHOUT CHARGES, TRIAL, OR ACCESS TO COUNSEL. 4 A. Petitioner’s Confinement Without Charges Or Trial Is Unauthorized By Law. 6 B. Petitioner’s Confinement Without Trial In A Military Brig Cannot Be Justified As A Form Of Preventive Detention. 10 C. Petitioner Can Be Criminally Charged, As Others Have Been In Similar Circumstances . 14 D. Petitioner’s Ongoing Confinement In A Military Brig Has Not Been Accompanied By Any Procedural Safeguards . 16 CONCLUSION . 18 i TABLE OF AUTHORITIES Page CASES Brown v. Allen, 344 U.S. 443 (1953) . 14 Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956) . 15 Duncan v. Kahanamoku, 327 U.S. 304 (1946) . 1, 6, 15 Ex parte Endo, 323 U.S. 283 (1944) . 5 Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) . 5, 9 Ex parte Milligan, 71 U.S. 2 (1866) . 3, passim Ex parte Quirin, 317 U.S. 1 (1942) . 5, passim Foucha v. Louisiana, 504 U.S. 71 (1992) . 6, 15, 17 Hirabayashi v. United States, 320 U.S. 81 (1943) . 1 In re Gault, 387 U.S. 1 (1967) . 6 In re Territo, 156 F.2d 142 (9th Cir. 1946) . 16 In re Yamashita, 327 U.S. 1 (1946) . 15 INS v. St. Cyr, 533 U.S. 289 (2001). 14 Jackson v. Indiana, 406 U.S. 715 (1972) . 5 Johnson v. Eisentrager, 339 U.S. 763 (1950) . 1 Kansas v. Crane, 534 U.S. 407 (2002) . 6, 14 Kent v. Dulles, 357 U.S. 116 (1958) . 6 Little v. Barreme, 6 U.S. 170 (1804) . 9 ii Luther v. Borden, 48 U.S. 1 (1849) . 15 Mathews v. Eldridge, 424 U.S. 319 (1976) . 17 Moyer v. Peabody, 212 U.S. 78 (1909) . 15 O’Connor v. Donaldson, 422 U.S. 563 (1975) . 6 Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989) . 3 Sterling v. Constantin, 287 U.S. 378 (1932). 5, 15 United States v. Salerno, 481 U.S. 739 (1987) . 6, 14, 16 United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla 1990) . 13 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) . 5, 9 Zadvydas v. Davis, 533 U.S. 678 (2001) . 5, 6, 14 STATUTES 8 U.S.C. § 1226 A . 8 10 U.S.C. § 956(5) . 7 18 U.S.C. § 4001 . 4, 8 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 . 7 Emergency Detention Act of 1950, Pub. L. No. 81-131, 64 Stat. 987 . 8 USA PATRIOT ACT, Pub. L. No. 107-56, 115 Stat. 272 . 8 EXECUTIVE ORDERS AND NOTICES 66 Fed. Reg. 57833 (Nov. 13, 2001) . 14 LEGISLATIVE REPORTS H. Rep. No. 92-116 (April 6, 1971), reprinted in 1971 U.S.C.C.A.N. 1435 . 8 iii INTEREST OF AMICI The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with nearly 300,000 members dedicated to preserving the principles of individual liberty embodied in the Constitution. The New York Civil Liberties Union (NYCLU) is the New York State affiliate of the ACLU. Since its founding in 1920, the ACLU has consistently taken the position that civil liberties must be respected, even in times of national emergency. In support of that position, the ACLU has appeared before the Supreme Court and other federal courts on numerous occasions, both as direct counsel and as amicus curiae. See, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950); Duncan v. Kahanamoku, 327 U.S. 304 (1946); Hirabayashi v. United States, 320 U.S. 81 (1943). The ACLU has also opposed arbitrary and indefinite detention as a violation of due process in many different contexts. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001). Because this case raises those issues again, its proper resolution is a matter of critical importance to the ACLU and its members. The Center for National Securities Studies (the Center) is a nonprofit, nongovernmental civil liberties organization founded in 1974 to ensure that civil liberties are not eroded in the name of national security. The Center has worked for more than 25 years to protect the due process rights of Americans and to find solutions that protect both the civil liberties of individuals and the national security interests of the government. 1 INTRODUCTION Jose Padilla is an American citizen.1 He was initially arrested on a material witness warrant when he landed at O’Hare Airport on May 8, 2002. Attorney General Ashcroft subsequently announced that Padilla was an agent of al Qaida who was involved in a plot to explode a “dirty” nuclear bomb in the United States. Padilla has never been formally charged with that crime. Instead, approximately one month after his arrest, he was designated as an “enemy combatant” by the government. 2 He was then transferred to a military brig in South Carolina where, according to his habeas corpus petition, he has been denied access to counsel. See Am. Pet. for Writ of Habeas Corpus at ¶¶ 1, 23, 67. Furthermore, the government contends that it can jail Padilla in a military brig indefinitely and that Padilla can be held without charges or trial in any forum, civilian or military, until the terrorist threat from al Qaida has ended. See Resp. to Am. Pet. at ¶ 25. A habeas corpus petition has been filed to challenge the legality of his detention. Freedom from physical restraint “has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Under the most basic principles of due process, executive officials cannot seek to detain an individual indefinitely based upon an accusation of wrongdoing without providing the accused with a trial at which the government bears a heavy burden of proof and at which any penalties imposed have been prescribed by the legislature. Moments of crisis and national anxiety, however legitimate, cannot be permitted to negate these constitutional principles. “History teaches that grave threats to liberty often come in times of urgency, 1 Although petitioner has apparently taken the name of Abdullah al-Muhajir, he is referred to as Jose Padilla in the habeas corpus petition. Accordingly, amici refer to petitioner as Jose Padilla in this brief. 2 The change in petitioner’s status was announced in a presidential order dated June 9, 2002. 2 when constitutional rights seem too extravagant to endure. [But] when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall & Brennan, JJ., dissenting). One hundred and fifty years ago, the Supreme Court emphatically rejected the notion that due process safeguards could be ignored in the midst of a national emergency. To the contrary, it held that an American citizen arrested during the Civil War for aiding the enemy had a right to be tried in the civilian courts, so long as those courts were open and functioning. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Court’s language and logic are just as pertinent today. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence. Id. at 120-21. The government has sought to distinguish Milligan by unilaterally declaring Padilla to be an “enemy combatant.” The scope of the government’s position is unprecedented. It is not seeking to treat Padilla as a prisoner of war, nor is it seeking to try Padilla before a military commission. Instead, it is asking this Court to authorize the indefinite and potentially lifelong confinement of an American citizen in a military brig without any opportunity to contest the charges against him because no charges have been filed.