No THE AMERICAN CONSTITUTION SOCIETY FOR LAW AND POLICY 2010 CONSTANCE BAKER MOTLEY NATIONAL MOOT COURT COMPETITION IN CONSTITUTIONAL LAW

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1 No THE AMERICAN CONSTITUTION SOCIETY FOR LAW AND POLICY 2010 CONSTANCE BAKER MOTLEY NATIONAL MOOT COURT COMPETITION IN CONSTITUTIONAL LAW BURHAN UDDIN AHMED, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Writ of Certiorari to the Supreme Court of the United States BRIEF FOR THE RESPONDENT Team No i

2 QUESTIONS PRESENTED 1. Whether the President's Commander in Chief powers and Congress's Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001) (AUMF) authorize, for the duration of the current conflict, the detention of a person determined by the military to be an enemy combatant residing in the country for the purpose of aiding al Qaeda's ongoing hostilities against the United States. 2. Whether the process afforded by the district court to challenge a designation as an enemy combatant was sufficient under the requirements of the Fifth Amendment. ii

3 TABLE OF CONTENTS QUESTIONS PRESENTED...II TABLE OF CONTENTS...III TABLE OF AUTHORITIES... IV BRIEF FOR THE PETITIONER...1 OPINIONS BELOW...1 JURISDICTION...1 STATUTORY PROVISIONS INVOLVED...1 STATEMENT...1 SUMMARY OF ARGUMENT...5 ARGUMENT...6 I. CONGRESS EXPRESSLY AUTHORIZED PETITIONER'S DETENTION...6 A. THE AUMF CLEARLY AUTHORIZES THE USE OF ALL NECESSARY AND APPROPRIATE FORCE AGAINST AL QAEDA OPERATIVES...6 B. THE DETENTION OF ENEMY COMBATANTS DURING ONGOING CONFLICT IS A FUNDAMENTAL INCIDENT OF WAR AUTHORIZED BY THE AUMF...8 II. THE PRESIDENT IS CONSTITUTIONALLY AUTHORIZED TO ORDER PETITIONER'S DETENTION AS AN ENEMY COMBATANT...11 A. THE COMMANDER IN CHIEF'S AUTHORITY TO SEIZE AND DETAIN ENEMY COMBATANTS DURING TIMES OF CONFLICT IS WELL-SETTLED...11 B. THE PRESIDENT'S DECISION TO DETAIN PETITIONER IS SUPPORTED BY THE STRONGEST OF PRESUMPTIONS BECAUSE HIS CONSTITUTIONAL AUTHORITY IS AT ITS HEIGHT...15 III. PETITIONER WAS AFFORDED ADEQUATE DUE PROCESS UNDER HAMDI...19 A. THE HAMDI FRAMEWORK GOVERNS DUE PROCESS FOR ALL ENEMY COMBATANT DESIGNATIONS OF U.S. CITIZENS...19 i. The Hamdi Framework...21 ii. The Hamdi Framework Incorporates the Mathews Balancing of Government and Individual Interests...22 iii. The Court of Appeals Erred in its Reading of Hamdi...23 B. ENEMY ALIENS ARE NOT ENTITLED TO MORE THAN THE PROCESS AFFORDED TO ENEMY COMBATANT CIVILIANS IN HAMDI...26 i. Petitioner s Enemy Alien Status...27 ii. The Process Afforded to Petitioner by the District Court is Due Process...29 IV. CONCLUSION...30 iii

4 TABLE OF AUTHORITIES Cases Center for Nat l Sec. Studies v. Dep t of Justice, 331 F.3d 918 (D.C. Cir. 2003)...18 Chae Chan Ping v. United States, 130 U.S. 581 (1889)...27 Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956)...13, 14 Demore v. Hyung Joon Kim, 538 U.S. 510 (2003) Dep t of Navy v. Egan, 484 U.S. 518 (1988)...18 Duncan v. Kahanamoku, 327 U.S. 304 (1946) Edward J.DeBartoio Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) , 29 Ex parte Quirin, 317 U.S. 1 (1942)...7, 8, 9, 11, 13, 14, 24 Ex Parte Toscano, 208 F. 938 (S.D. Cal. 1913)...13 Haig v. Agee, 453 U.S. 280 (1981)...18 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)....5, 7, 8, 9, 10, 11, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 30 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1874) Hirota v. MacArthur, 338 U.S. 197 (1949)...12 In re Territo, 156 F. 2d 142 (9th Cir. 1946)....9, 13 Johnson v. Eisentrager, 339 U.S. 763 (1950)...11, 13 Lincoln v. Vigil, 508 U.S. 182 (1993)...18 Ludecke v. Watkins, 335 U.S. 160 (1948)...11 Marbury v. Madison, 5 U.S. 137 (1803)...21 Mathews v. Eldridge, 424 U.S. 319 (1976)...20, 22 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)...16 Orloff v. Willoughby, 345 U.S. 83 (1953)...18 Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005)...8 Padilla v. Hanft, 547 U.S (2006)...16 Prize Cases, 67 U.S. (2 Black) 635 (1862) Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005)...18 Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101 (1944)..16 Terminiello v. Chicago, 337 U.S. 1 (1949)....6 United States v. Nixon, 418 U.S. 683 (1974)...18 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Zadvydas v. Davis, 533 U.S. 678 (2001) Statutes 28 U.S.C Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001) (AUMF)...1, 2, 6, 8, 9, 15 INA 212(a)(3)(B)(iv)...28 INA 212(a)(3)(F)...28 INA 236(c)(1)(D)...28 INA 237(a)(4)(B)...28 iv

5 Other Authorities Declaration of John R. Murphy, Director, Joint Intelligence Task Force for Combating Terrorism...3, 8, 10, 14, 27, 29 Elisabeth Bumiller, Gates Says U.S. Army s Size Will Grow by 22,000, New York Times, Jul. 20, Military Order of Nov. 13, 2001, 3 C.F.R. 918, 1(a)...2 Remarks of President Barack Obama, A New Strategy for Afghanistan and Pakistan in Washington D.C. (Mar. 27, 2009), available at W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920)..9 Constitutional Provisions U.S. Const. Amend. V...19 U.S. Const. Art. II...5 U.S. Const. Art. II, v

6 BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the court of appeals (Pet. App. 5a-46a) is reprinted in an appendix to this brief. JURISDICTION The judgment of the court of appeals was entered November 24, The petition for a writ of certiorari was granted on October 2, The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Congress's Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001) (AUMF) is reprinted in an appendix to this brief. STATEMENT 1. On September 11, 2001, the terrorist organization al Qaeda launched a series of attacks on the United States. The attacks claimed approximately 3000 lives higher than the death toll inflicted at Pearl Harbor. 2. Within a week, Congress responded by passing the Authorization for Use of Military Force (AUMF), directing the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of 1

7 September 11th. AUMF, Pub. L. No , 115 Stat In passing the AUMF, Congress recognized that al Qaeda continue[d] to pose an unusual and extraordinary threat to the national security. Preamble, 115 Stat The President confirmed that the country was in a state of armed conflict with al Qaeda, and in the fall of 2001, he initiated Operation Enduring Freedom, deploying troops to Afghanistan. See Military Order of Nov. 13, 2001, 3 C.F.R. 918, 1(a). American soldiers today remain engaged in the conflict against al Qaeda in Afghanistan. See Remarks of President Barack Obama, A New Strategy for Afghanistan and Pakistan in Washington D.C. (Mar. 27, 2009), available at In the course of this continuing military campaign, the United States and its allied forces have, in accordance with the traditional practice of war, seized and detained combatants operating on behalf of al Qaeda to prevent them from returning to the transnational battlefield. 4. Petitioner Burhan Uddin Ahmed is one such combatant. A Pakistani national, he legally entered the United States on September 8, 2001 for the ostensible purpose of pursuing a veterinary degree. Evidence gathered by the Federal Bureau of Investigation (FBI), the Department of Defense (DoD), and the Joint Intelligence Task Force for Combating Terrorism reports 2

8 that Petitioner is in fact an al Qaeda sleeper agent who entered the country with the intent to facilitate terrorist attacks against the United States. Declaration of John R. Murphy, Director of the Joint Task Force for Combating Terrorism ( Murphy Decl. ). Prior to arriving in East Dakota, Petitioner attended a terrorist training camp in Afghanistan, where he coordinated his plans of attack against the United States with al Qaeda leaders Osama Bin Laden and Khalid Sheikh Mohammed. Murphy Decl On June 13, 2003, the President, pursuant to the AUMF and his Commander in Chief powers, determined that Petitioner was an enemy combatant closely associated with al Qaeda who engaged in conduct that constituted hostile and war-like acts and represent[ed] a continuing, present, and grave danger to the national security of the United States. Murphy Decl. 4. The reports upon which the President based his designation jointly concluded that Petitioner's military detention was necessary to prevent him from aiding al Qaeda. Id. 6. The government filed a motion to dismiss the criminal charges of Social Security fraud and false statement against Petitioner so that he could be transferred into military custody. The District of East Dakota granted the government's motion, and Petitioner was brought to the Army Regional Consolidated Detention Facility in Sounds, East Dakota, where he 3

9 is currently detained. Upon his transfer, Petitioner filed a petition for a writ of habeas corpus in the District of East Dakota under 28 U.S.C Respondent opposed his release, arguing that the President was authorized by both the AUMF and his constitutional Commander in Chief powers to detain al Qaeda operatives for the duration of the country's armed conflict against that organization. 7. Upon reviewing the Murphy Declaration, the district court held that Petitioner could properly be detained as an enemy combatant if the government afforded him the opportunity to challenge the factual basis of his detention, in accordance with his procedural due process rights. The district court assigned Petitioner's case to a magistrate judge, who determined that the Murphy Declaration provided Petitioner with adequate notice of the facts against him. 8. Petitioner failed to present even a modicum of rebuttal evidence to the Murphy Declaration, instead relying on a general denial of the facts described therein. The district court dismissed the petition for habeas corpus. 9. On appeal, a panel of the Twelfth Circuit Court of Appeals affirmed the district court s dismissal. 10. Upon rehearing en banc, the Twelfth Circuit vacated the panel opinion, holding that Petitioner's detention was expressly authorized by the AUMF and the President's Commander 4

10 in Chief powers, as declared in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), but finding that Petitioner did not receive a constitutionally adequate opportunity to challenge the factual basis of his detention. 12. Justice Morrison dissented from the majority's opinion, asserting that Petitioner was afforded adequate due process the same process, in fact, that the Supreme Court set forth in Hamdi. He noted that the deficiency in Petitioner's defense was not for lack of an opportunity; it was based upon Petitioner s own refusal to put forth a defense. SUMMARY OF ARGUMENT On September 18, 2001, in recognition of the grave threat posed to this country by the terrorist network responsible for the September 11th attacks, Congress expressly authorized the President of the United States to use all necessary and appropriate force against al Qaeda and its supporters. The President acted pursuant to that authorization and the authority exclusively vested in him by Article II of the Constitution when he took Petitioner into military custody as an enemy combatant. Security and basic safety are the essential backbones to civil liberty in a democratic society. This Court has recognized, on many occasions, its role in outlining the delicate balance necessary for upholding basic liberties while respecting national security imperatives. The Constitution is 5

11 not a suicide pact; the rights granted therein require a strong and stable country to sustain them. Terminiello v. Chicago, 337 U.S. 1 (1949) (J. Jackson, dissenting). In recognition of fundamental liberty interests that must be protected even when this country is threatened, this Court devised a process in Hamdi to afford U.S. citizens an opportunity to challenge their designation as enemy combatants. Petitioner, an enemy alien, was afforded this process when a neutral decisionmaker a district court of the United States gave him the opportunity to challenge the factual basis underlying his designation as an enemy combatant. ARGUMENT I. CONGRESS EXPRESSLY AUTHORIZED PETITIONER'S DETENTION A. The AUMF Clearly Authorizes The Use Of All Necessary And Appropriate Force Against Al Qaeda Operatives The AUMF authorizes the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, Stat The plain language of the statute demonstrates that the Court of Appeals was correct in holding that persons associated with al Qaeda, the organization known to have carried out the 9/11 attacks against the United States are individuals Congress sought to target in passing the AUMF. Pet. App. 14a. Because the terrorist organization al Qaeda was directly 6

12 responsible for the September 11th attacks on this country, there can be no doubt that Congress authorized the President to use all necessary and appropriate force against enemy combatants like Petitioner who take up arms on behalf of that organization's campaign against the United States. 1 This Court's interpretation of the AUMF in Hamdi is directly applicable to the case at hand. Here, as in Hamdi, the President has acted according to Congress's authorization by detaining an individual who has aided an enemy organization in its ongoing armed conflict against this country. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). Hamdi drew upon the Court's precedent in Ex parte Quirin, 317 U.S. 1 (1942) to hold that '[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of... the law of war. Hamdi, 542 U.S. at 1 In the Court of Appeals, Petitioner argued that the AUMF does not apply to him because al Qaeda is not a foreign government. As the court there aptly recognized, it would be illogical if the AUMF, which is intended to authorize force against the perpetrators of 9/11, authorized the detention of Taliban combatants on the grounds that they harbored al Qaeda, but did not authorize detention of al Qaeda combatants themselves. Pet. App. 15A ( Given the integration of al Qaeda and the Taliban in Afghanistan, it makes little sense to say that we are legitimately at war with the Taliban, but we cannot be at war with al Qaeda. ); see also Prize Cases, 2 Black (67 U.S.) 667, 669 (1862) ( It is not necessary that the independence of [a] state be acknowledged in order to constitute... a party belligerent in a war according to the law of nations. ). Additionally, this argument is irreconcilable with the plain text of the statute, which authorizes the use of force against nations, organizations, or persons associated with the September 11th attacks. If Congress intended to restrict its authorization to enemy governments, it could have done so. However, it expressed its intent by specifically including the words organizations and persons within the category of parties the President may determine are enemy entities. 115 Stat

13 519 (quoting Quirin, 317 U.S. at 37-38); cf. Padilla v. Hanft, 423 F.3d 386, 389 (4th Cir. 2005) (holding that AUMF authorizes the military detention of a citizen closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets ); Murphy Decl. 19 ( Ahmed was an active al Qaeda agent at the time he entered the United States. After entering the country, he engaged in conduct in preparation for acts of international terrorism intended to cause injury to the United States. ). The statutory text of the AUMF also calls for deference to the President's judgment as to when an individual is an enemy combatant. The AUMF authorizes the President to use force against those parties he determines are associated with those responsible for the September 11th attacks. 115 Stat The President has made such a determination with regards to Petitioner's association with al Qaeda, on the basis of intelligence gathered and analyzed through the cooperation of several Executive Branch agencies. Murphy Decl. 4. B. The Detention Of Enemy Combatants During Ongoing Conflict Is A Fundamental Incident of War Authorized By The AUMF By authorizing the use of necessary and appropriate 8

14 force, Congress has clearly and unmistakably authorized the detention of enemy combatants who have taken up arms against this country. Hamdi, 524 U.S. at 519. Long standing law-of-war principles, by universal agreement and practice, firmly establish that detention to prevent a combatant s return to arms is a fundamental incident of waging war. Id. at 518; Quirin, 317 U. S. at 28; see also In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) ( The object of capture is to prevent the captured individual from serving the enemy. ); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ( The time has long passed when no quarter was the rule on the battlefield... A prisoner of war['s]... imprisonment is a simple war measure. ) (internal quotes omitted). Here, again, Hamdi is controlling. This Court held that it is of no moment that the AUMF does not use specific language of detention because the detention of enemy combatants for the duration of the particular conflict in which they [a]re captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use. Hamdi, 524 U.S. at 519. That Hamdi was captured in Afghanistan does not alter the statute's applicability to Petitioner the AUMF, by its own words, applies both at home and abroad. 115 Stat. 224 (declaring it necessary and appropriate that the United States exercise 9

15 its rights to self-defense and to protect United States citizens both at home and abroad ) (emphasis added). Petitioner's detention serves the vital and traditional war objective of preventing a combatant from rejoining the enemy in conflict against this country. There is nothing to stop Petitioner from continuing his assistance of al Qaeda's terrorist activities against the United States if he is released, especially given the relationships he has established with senior al Qaeda leaders in Afghanistan. Murphy Decl Petitioner's detention is authorized by the AUMF so long as conflict is ongoing. Hamdi, 524 U.S. at 519. American troops are currently involved in active combat operations against al Qaeda in Afghanistan and Iraq. See, e.g. Elisabeth Bumiller, Gates Says U.S. Army s Size Will Grow by 22,000, New York Times, Jul. 20, 2009, p.a8 (reporting on the presence of 130,000 American troops in Iraq and about 60,000 expected in Afghanistan by the end of the year); cf. Hamdi, 524 U.S. at 521 (stating that the presence of 13,500 troops in Afghanistan is evidence of active combat operations... ongoing in Afghanistan ). Congress' grant of authority to detain enemy combatants for the duration of the relevant conflict authorizes Petitioner's current military detention in the context of these ongoing combat operations. Hamdi, 524 U.S. at 518,

16 II. THE PRESIDENT IS CONSTITUTIONALLY AUTHORIZED TO ORDER PETITIONER'S DETENTION AS AN ENEMY COMBATANT A. The Commander In Chief's Authority To Seize And Detain Enemy Combatants During Times Of Conflict Is Well-Settled The Constitution vests the President, as Commander in Chief, with broad authority to make determinations central to warfare and the protection of the national security. See U.S. Const. Art. II, 2 (declaring the President the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States ). The determination of when and whether to detain an individual who has taken up arms in support of an enemy of this country, during a time of conflict, is undoubtedly within the President's constitutional role as Commander in Chief. The President's authority to detain enemy combatants during times of conflict is established by our nation's law, and by its history. See Hamdi, 524 U.S. at 519; Quirin, 317 U.S. at 30-31; Johnson v. Eisentrager, 339 U.S. 763, 774 (1950) ( Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security. ); Ludecke v. Watkins, 335 U.S. 160, 170 (1948) ( The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers... was also entrusted by Congress, almost throughout the 11

17 whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric. ); see also Duncan v. Kahanamoku, 327 U.S. 304, (1946) (finding it unnecessary to question the well-established power of the military to exercise jurisdiction over... enemy belligerents, prisoners of war, or others charged with violating the laws of war... [and] to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war ). It is also a matter of settled law that the determination that an individual is an enemy combatant is a military judgment the Constitution vests specifically in the President. Prize Cases, 67 U.S. (2 Black) 635, 670 (1862) ( Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance... as will compel him to accord to them the character of belligerents is a question to be decided by him. ); Hirota v. MacArthur, 338 U.S. 197, 215 (1949) ( [T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander in Chief, and as spokesman for the nation in foreign affairs, had the final say. ) (Douglas, J., concurring); see also Boumediene, 128 S. Ct. at 2277 ( The law must accord the Executive substantial authority to apprehend and detain those 12

18 who pose a real danger to our security. ); Eisentrager, 339 U.S. at 789 (detention of enemy combatants is part of the conduct of diplomatic and foreign affairs, for which the President is exclusively responsible ); Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (it is "the President alone [] who is constitutionally invested with the entire charge of hostile operations ). This Presidential authority has been recognized in various contexts and locations through the evolution of warfare. See, e.g. Lieber Code, 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (Union Army code stating that captured rebels would be treated as prisoners of war during the Civil War); Ex Parte Toscano, 208 F. 938 (S.D. Cal. 1913) (upholding detention of armed faction of troops who crossed U.S. borders during Mexican Civil War); Quirin, 317 U.S 1 (upholding detention of Nazi operatives captured in Illinois); In re Territo, 156 F.2d 142 (9th Cir. 1946) (upholding detention, in California, of American citizen who took up arms on behalf of Italian army during World War II); Colepaugh v. Looney, 235 F.2d 429, 431 (10th Cir. 1956), cert, denied 352 U.S (1957) (upholding military detention of individuals who, acting for the German Reich, secretly passed through, in civilian dress, contrary to the law of war, 13

19 the military and navel lines of the United States for purpose of committing espionage, sabotage, and other hostile acts ). That the field of battle has again shifted in our current conflict against al Qaeda in no way diminishes the President's constitutional power to detain an individual who actively aids enemy forces in waging war against this country. Indeed, Quirin demonstrates that the Commander in Chief has the authority to detain enemy combatants who have effectively infiltrated domestic territories. There, the Court held that an individual determined to be a spy was subject to military detention, even though he was captured in Chicago, Illinois. Quirin, 317 U. S., at 31, 37 38; see also Looney, 235 F.2d at Just as the President was constitutionally authorized to seize and detain Nazi saboteurs who entered the country in civilian clothing, so may he detain al Qaeda operatives who have infiltrated this country for the purpose of committing terrorist acts. Murphy Decl (describing Petitioner's commission as a sleeper agent). Petitioner's active plans to attack the Social Security Administration, his research into weapons of mass destruction, and the support and communications he received from 2 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) does not preclude the President's ability to detain enemy combatants captured domestically. As this Court explained in Quirin and affirmed in Hamdi, the holding in Milligan turned on the facts that Milligan was not a prisoner of war and Indiana was not part of the theater of military operations because it had not been invaded by the enemy. Hamdi, 542 U.S. at ; Quirin, 317 U.S. at 45; Milligan, 71 U.S. at 126 ( On [Indiana's] soil there was no hostile foot. ). Here, to the contrary, conflict is ongoing, and the military has determined that al Qaeda has in fact invaded East Dakota and other parts of the United States. Murphy Decl. at

20 senior al Qaeda members while residing in East Dakota are evidence in and of themselves that he was seized from his intended theater of combat. Id As the devastating events of September 11 more than clearly demonstrated, an enemy combatant can wage war against this nation and its people from within the borders of the country as much as it can from without. In this day and age of modern technology, it is beyond question that an individual residing within the United States is capable of supporting forces hostile to the United States or coalition partners and engag[ing] an armed conflict against the United States. Hamdi, 524 U.S. at 516. Preventing another attack by al Qaeda is well within the duties the Constitution assigns to the President. See AUMF, 115 Stat. 224 ( the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States ). B. The President's Decision To Detain Petitioner Is Supported By The Strongest Of Presumptions Because His Constitutional Authority Is At Its Height Preventing another attack in the nature of those committed by al Qaeda on September 11th is not only a duty constitutionally assigned to the President it is also one statutorily authorized by Congress. 15 Stat. 224 (authorizing the President to use force in order to prevent any future acts of international terrorism against the United States ); Hamdi, 15

21 524 U.S. at 517 (concluding that the AUMF is explicit congressional authorization for enemy combatant detention that satisfies 4001(a) s requirement that a detention be pursuant to an Act of Congress ). Because the President's decision to detain Petitioner was congruent with this express congressional authorization, the constitutional authority upon which Petitioner's detention is based is at its height. 3 The Executive and the Legislature have spoken with one voice with regards to the detention of al Qaeda operatives. As Justice Jackson stated in Youngstown, When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate... In these circumstances, [the President] personif[ies] the federal sovereignty. Youngstown Sheet & Tube Co. v. Sawyer, The doctrine of constitutional avoidance counsels this Court to interpret the AUMF so as to avoid the more difficult constitutional question of whether the President's constitutionally assigned Commander-in-Chief power is enough to authorize Petitioner's detention here, in the absence of or in the face of Congressional will. See Edward J.DeBartoio Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, , 504 (1979)) ( [W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. ); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) ( If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable. ); Padilla v. Hanft, 547 U.S. 1062, 126 S.Ct. 1649, 1650 (2006) (Kennedy, J., concurring) ( That Padilla s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against [unnecessarily] addressing those claims. ). This Court need not hazard the creation of such a constitutional problem where Congress's intent has been made so clear by the statute's language and the context in which it was passed. 16

22 U.S. 579, (1952) (Jackson, J., concurring). In order for this Court to find Petitioner's detention unconstitutional, then, it must hold that the Federal Government, as an undivided whole, lacks power to seize and detain an enemy combatant who has infiltrated a domestic territory. Youngstown, 343 U.S. at Because he acted pursuant to an Act of Congress, the President's decision to detain Petitioner as an enemy combatant is supported by the strongest of presumptions and the widest latitude of judicial interpretation, such that the burden of persuasion [rests] heavily upon any who might attack it Youngstown, 343 U.S. at 637. Additionally, the President's military determination to detain Petitioner is due substantial deference according to established separation of powers principles. It is a widely recognized conclusion that tactical and military decisions such as the decision to detain an enemy combatant are properly left to the Executive branch's institutional expertise in the field. See, e.g. Boumediene, 128 S. Ct. at 2277 ( The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. ); Hamdi, 542 U.S. at 531 ( [w]ithout doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned 17

23 and most politically accountable for making them. ); Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) ( [D]ecisionmaking in the fields of foreign policy and national security is textually committed to the political branches of government. ). Courts should therefore hesitate to question the propriety of the military decision to detain enemy combatants operating in domestic territories. See, e.g. United States v. Nixon, 418 U.S. 683 (1974) ( As to [military and foreign policy] areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities. ); Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ( the interests of national security [are] an area of executive action 'in which courts have long been hesitant to intrude' ); Dep t of Navy v. Egan, 484 U.S. 518, (1988) ( courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs ); Orloff v. Willoughby, 345 U.S. 83, 94 (1953) ( Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters... ); Haig v. Agee, 453 U.S. 280, 292 (1981) ( [m]atters intimately related to... national security are rarely proper subjects for judicial intervention. ); Center for Nat l Sec. Studies v. Dep t of Justice, 331 F.3d 918, 932 (D.C. Cir. 2003) ( It is within the role of the executive to acquire and exercise the expertise of protecting national security. It is not within 18

24 the role of the courts to second-guess executive judgments made in furtherance of that branch s proper role. ). The pervasiveness of al Qaeda's reach into our domestic territories is no reason to diminish the President's inherent authority to safeguard the nation in times of conflict. Indeed, it is precisely in times like these, where the threat of attack against our nation takes such a novel and dangerously proliferated form, that the safety of our country is best served by the flexibility the Constitution permits to the Executive in matters of war. See Hamdi, 296 F.3d at 283 ( The political branches are best positioned to comprehend this global war in its full context. ). III. PETITIONER WAS AFFORDED ADEQUATE DUE PROCESS UNDER HAMDI A. The Hamdi Framework Governs Due Process for All Enemy Combatant Designations of U.S. Citizens The Court s framework in Hamdi governs the determination of what process is constitutionally due to a citizen who disputes his enemy-combatant status under the Fifth Amendment. Hamdi, 542 U.S. at 524. Contrary to the holding of the Court of Appeals, the Court in Hamdi did not contemplate a fact-dependent reevaluation of due process in each individual enemy-combatant designation proceeding. The facts of each case certainly matter, but they are incorporated into the procedural framework proposed in Hamdi, in which each individual has a chance to prove 19

25 military error while giving due regard to the Executive. Hamdi, 542 U.S. at 534. The Court in Hamdi builds upon the due process calculus articulated in Mathews v. Eldridge due process calculus to create the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. Hamdi, 542 U.S. at 532. The Court does not contemplate that some enemy-combatant proceedings may be tailored as it suggests; it states that all enemy-combatant proceedings involving a U.S. citizen detained in the United States, as a category, may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hamdi, 542 U.S. at 533. The Court of Appeals incorrectly reads the word some into this declaration, from the Court s use of the word may, to suggest that the proceedings in Hamdi are due process for only an undefined subset of enemy-combatants. The Court in Hamdi uses the word may to indicate that the suggested proceedings are just one set of proceedings that would satisfy due process not to indicate that those proceedings might satisfy due process only under certain circumstances, or a certain sub-category of enemy-combatant designations. The Court s holding in Hamdi would be a narrow one indeed if each individual enemy-combatant designation would require a new 20

26 form of process in the Executive s interaction with the judiciary. It is emphatically the province and duty of the Judicial Department to say what the law is. Marbury v. Madison, 5 U.S. 137, at 177 (1803). In Hamdi, the highest Court in the land took up that duty to play a necessary role in maintaining this delicate balance of governance. Hamdi, 542 U.S. at 536. In the interest of efficiency, consistency, and respect for stare decisis, the framework in Hamdi must be applied in this case. i. The Hamdi Framework The Court in Hamdi holds that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government s factual assertions before a neutral decision-maker. Hamdi, 542 U.S. at 533. Hamdi outlines one acceptable version of this procedure: hearsay from the Government may be accepted as evidence; the court may begin with a rebuttable presumption in favor of the Government s evidence; and a fair opportunity for rebuttal must be provided. Hamdi, 542 U.S. at This burden-shifting scheme would meet the goal of both giving individuals a chance to prove military error and giving the Executive due regard once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. Hamdi, 542 U.S. at 534. The Court held that procedures of this 21

27 sort would sufficiently address the risk of an erroneous deprivation of a detainee s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. Hamdi, 542 U.S. at 534. ii. The Hamdi Framework Incorporates the Mathews Balancing of Government and Individual Interests The Court in Hamdi constructs its framework for evaluating due process in enemy-combatant designations of U.S. citizens based on the balancing test articulated in Mathews v Eldridge. Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews requires weighing the private interest against the Government s asserted interest, including the function involved and the burdens the Government would face in providing greater process. Hamdi, 542 U.S. at 529 (citing Mathews, 424 U.S. at 335). The Court explains that our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee. Hamdi, 542 U.S. at 531. Any application of the Mathews test begins with the presumption that the individual is erroneously detained. Hamdi, 542 U.S. at 530. Therefore, the Court explicitly ignores the individual conditions of the detention of a particular potential enemycombatant, dealing with accused enemy-combatants as an overarching category. The Court then turns to the Government interest, the function involved, and the additional burdens the Government 22

28 would face. As extensively discussed above, the detention of enemy combatants during a time of ongoing conflict is a fundamental incident of waging war, both inherent in the authority of the Executive in military and national security affairs, and supported by Congress in the AUMF. The Court notes the Government s interest in preventing discovery that would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Hamdi, 542 U.S. at 532. These Government concerns are as equally applicable here as in Hamdi. iii. The Court of Appeals Erred in its Reading of Hamdi The Court of Appeals erred in construing the Hamdi framework as dependent on the specific factual circumstances articulated in that individual case. More specifically, the court misread Hamdi as standing for the proposition that the government must first show that the Murphy Declaration is the most reliable evidence reasonably available. The Court of Appeals claims that the use of the term exigencies of the circumstances in the Hamdi Court s construction of a due process framework indicates that the framework was intended for application only under the unique facts of the Hamdi case. At 24. This is plainly incorrect. The exigencies of the circumstances refer to exigencies common to all enemy-combatant proceedings, not individual fact 23

29 patternshamdi, 542 U.S. at 532. These exigent circumstances are as applicable in Petitioner s case as they were in Hamdi. The Court of Appeals placed particular significance in the fact that Petitioner was not captured on the physical battlefield, grounding its argument in Milligan. Pet. App. 35a. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). At 35. The Court in Hamdi, however, does not use Milligan for the proposition that an enemy-combatant must be captured in an actual physical field of combat. It merely points out that the fact of battlefield capture is not irrelevant, as Justice Scalia claims. Hamdi, 542 U.S. at 524. In fact, the Court points out that [h]ad Milligan been captured while he was assisting Confederate soldiers the holding of the Court might well have been different. Hamdi, 542 U.S. at 522. The Court goes on to clarify that the legal category of enemy combatant is not limited to military aid on the battlefield alone, citing Quirin for the proposition that the military does have the authority to try an American citizen accused of spying against his country during wartime. Hamdi, 542 U.S. at 522. In considering the appropriate balance of interests, the Court in Hamdi did not link its process requirements to capture on the battlefield. It did not indicate that the Government s specific burdens dictated the specific procedure required; it said that the requisite procedure took the Government s burdens 24

30 into account. Hamdi, 542 U.S. at 532. The Court of Appeals claims that because Petitioner was arrested in the United States, [t]here is a much greater risk of misidentifying a civilian as an enemy combatant in this context. Pet. App. 27a. As has been already noted, however, the Court in Hamdi explicitly considered the individual s liberty interest as though the individual had been erroneously detained. Hamdi, 542 U.S. at 530 (emphasis in original). Thus the Court of Appeal s battlefield-based analysis adds nothing to the existing Mathews calculation in Hamdi. Limiting the definition of enemy combatant to traditional weaponry on physical battlefields in the age of international terrorism is both outdated and misinformed. Such a definition would prevent the designation as enemy combatants of the al Qaeda terrorists who destroyed the World Trade Center on September 11, 2001, until the moment the towers turned into a physical battlefield the moment the planes became physical weapons causing actual deaths. The purpose of the AUMF was to prevent exactly such a worst-case scenario, founded on delayed reactions and missed opportunities. The final significant misreading performed by the Court of Appeals concerns the standard it creates for evidence presented by the government. The Court of Appeals claims that the Government must meet a most reliable evidence standard, basing 25

31 this conclusion on the Hamdi Court s statement that [h]earsay may need to be accepted as the most reliable available evidence. Hamdi, 542 U.S. at 534 (emphasis added). The Court of Appeals requires the government to initially show that it would be unable to produce non-hearsay evidence without unduly burdening its interests, or that a relaxed evidentiary standard was necessary in light of the specific facts of the case. Pet. App. 24a. This reading, too, is erroneous on its face. Hamdi does not establish a unified evidentiary standard, and certainly not the rigorous standard articulated by the Court of Appeals. Hamdi, 542 U.S. at 534 (requiring credible evidence, or meaningful support for [the government s] conclusion ). The Court of Appeals has arbitrarily chosen a new evidentiary standard in lieu of Hamdi s clear statement that hearsay may be accepted as evidence in enemy-combatant designation procedures. There is no indication that the Hamdi court, in reinforcing the flexibility of due process requirements, demands further process to meet the Mathews and Fifth Amendment standards. B. Enemy Aliens Are Not Entitled to More Than The Process Afforded to Enemy Combatant Civilians in Hamdi The Court in Hamdi explicitly considers the standard of due process afforded to a citizen who disputes his enemy-combatant status. Hamdi, 542 U.S. at 524. Petitioner is not a United States citizen. He is a citizen of Pakistan who entered the 26

32 United States for the purpose of aiding al Qaeda s campaign against this country. This unquestionably affects the due process rights afforded to him. i. Petitioner s Enemy Alien Status The Court in Hamdi considered the due process standard for a U.S. citizen accused of being an enemy combatant and detained on U.S. soil. Petitioner is a citizen of Pakistan who entered the country under the auspices of pursing a degree, and is at risk of losing his legal status because he is in failing status at the university due to his consistent absenteeism. Murphy Decl. 8. It is far from clear that Hamdi intends identical standards to apply to both U.S. citizens and an individual of Petitioner s tenuous legal status. The Fifth Amendment s due process requirement is not limited to citizens of the United States. Zadvydas v. Davis, 533 U.S. 678 (2001). Due process often, however, requires a different standard for citizens than for aliens, because issues of foreign relations and national security implicated in the immigration context place noncitizens more firmly under the purview of the legislative and executive branches of government. Chae Chan Ping v. United States, 130 U.S. 581 (1889) (stating that the power of the government to exclude foreigners from the country whenever, in its judgment the public interests require such exclusion, has never [been] denied ). This Court has firmly 27

33 and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. Demore v. Hyung Joon Kim, 538 U.S. 510 (2003). In the immigration context, this Court has held that a limited class of deportable aliens may be detained pending their removal hearings, with no additional process at all. Demore, 538 U.S Congress has in fact mandated the detention, pending removal proceedings, of any noncitizen alleged to be deportable on the basis of terrorist activities. INA 236(c)(1)(D) ( The Attorney General shall take into custody any alien who is deportable under section 237(a)(4)(B) ). Convictions are not required for such detention. An alien who has engaged in a terrorist activity is deportable. To be considered engaged in terrorist activity, an alien may have done as little as solicit funds or other things of value for (1) terrorist activity, or (2) a designated terrorist organization, of which al Qaeda most certainly is one. INA 212(a)(3)(B)(iv). Furthermore, an alien who has been associated with a terrorist organization and intends while in the United States to engage incidentally in activities that could endanger the welfare, safety, or security of the United States may be removed even after legal admission. INA 212(a)(3)(F); INA 237(a)(4)(B). Determination of enemy-combatant status is not an 28

34 immigration proceeding. If the Mathews test applied by the Court in Hamdi is to be altered at all, however, Petitioner s status as an alien permitted into the United States by the grace of the U.S. Government must be taken into consideration in weighing the Government s interest. If the Court is looking for a further way to distinguish this case from Milligan, it should strongly weigh the fact that Petitioner is not a U.S. citizen. Petitioner may be legally detained in the immigration context prior to any sort of hearing at all. It is not clear that the Court in Hamdi intended to establish a due process standard for the determination of aliens as enemy combatants. What is clear is that the Court establishes a due process standard that it deems adequate even for citizens who are challenging their enemycombatant designation. ii. The Process Afforded to Petitioner by the District Court is Due Process Even if Petitioner, as a noncitizen, is not owed the due process outlined in Hamdi, he has been afforded it by the magistrate judge and the district court. Petitioner s treatment has certainly met this outline of due process owed to citizendetainees. In front of a neutral decision-maker, the magistrate judge, Ahmed was given both notice of the factual basis of his classification (the Murphy Declaration), and a fair opportunity of sixty (60) days in which to present rebuttal evidence. Cf. Hamdi, 542 U.S. at 533 (requiring notice of the factual basis 29

35 for his classification and a fair opportunity to rebut the Government s factual assertions before a neutral decisionmaker ). These procedures precisely mirror the specific process approved by the Court in Hamdi. The magistrate judge specifically considered the Murphy Declaration and concluded that it offered sufficient credible evidence to indicate that Petitioner was an enemy combatant. At 9. Then, in accordance with Hamdi, the magistrate judge shifted the burden to Petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. Hamdi, 542 U.S. at 534. It is questionable whether Petitioner, as an alien, is owed the process outlined in Hamdi. He has, however, been afforded it not by military tribunal, nor any other substitute decisionmaker but by a court of law in the United States. IV. CONCLUSION For the foregoing reasons, Respondent respectfully requests that the judgment of the Court of Appeals for the Twelfth Circuit be reversed. Respectfully submitted, Team No Counsel for Respondent January 15,