IN THE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
AT
PEORIA
ALI SALEH KAHLAH AL-MARRI,
Petitioner,
v.
GEORGE W. BUSH, President of the United States of America,
DONALD H. RUMSFELD, United States Secretary of Defense, and
COMMANDER M.A. MARR, Naval Consolidated Brig, Charleston, South Carolina,
Respondents.
On Petition for Habeas Corpus
MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE AND BRIEF
AMICUS CURIAE OF THE WORLD
ORGANIZATION AGAINST
TORTURE USA IN SUPPORT OF THE PETITIONER
MORTON SKLAR
Executive Director
WORLD ORGANIZATION
AGAINST TORTURE USA
1725 K Street, N.W., Suite 610
Washington, D.C. 20006
(202) 296-5702
IN THE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
AT
PEORIA
ALI SALEH KAHLAH AL-MARRI,
Petitioner,
v.
GEORGE W. BUSH, President of the United States of America,
DONALD H. RUMSFELD, United States Secretary of Defense, and
COMMANDER M.A. MARR, Naval Consolidated Brig, Charleston, South Carolina,
Respondents.
On Petition for Habeas Corpus
MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE IN SUPPORT OF THE PETITIONER
Consistent with the requirements for the filing of amicus curiae submission in federal courts including Fed Rules App. Proc. Rule 29, the World Organization Against Torture USA (WOAT) seeks the leave of the Court to file the attached brief amicus curiae in support of the petition for writ of certiorari in the above captioned case. WOAT sought and received consent to file an amicus curiae brief in this case from Petitioner’s counsel of record, Lawrence S. Lustberg and Mark A. Berman. WOAT received consent to file an amicus brief on the issues of jurisdiction and venue from Sharon Paul at the U.S. Attorneys Office for the Central District of Illinois, Springfield office on July 21, 2003.
The World Organization Against Torture USA is a non-profit, non-governmental human rights group operating in the United States as a 501( c)(3) tax exempt organization dedicated to the prevention of torture and other major human rights abuses. We are incorporated in the State of Maryland as a non-profit organization. Established in 1996, WOAT serves as the United States affiliate of a worldwide network of more than 200 human rights groups, each giving primary attention to human rights compliance by their own governments and in their own countries. The international network is known as the SOS Torture Network, and has an international secretariat located in Geneva, Switzerland referred to as l’Organisation Mondiale Contre La Torture (OMCT, or World Organization Against Torture international).
To accomplish this mission, WOAT monitors and reports on U.S. compliance under each of the major international human rights treaties, with a special focus on torture related issues, and provides legal assistance in a limited number of cases raising the most significant legal questions relating to human rights. Most recently, we compiled (with an informal working group of over 60 domestic civil rights and civil liberties organizations that we organized and chair) and submitted to the appropriate United Nations agencies, reports on U.S. compliance under the Convention Against Torture (1998) and the International Convention on the Elimination of Racial Discrimination (2000), giving particular attention to such issues as the death penalty, prison conditions, police brutality, the status and treatment of refugees, and discrimination against people of color and indigenous peoples. WOAT also works extensively on refugee cases and issues, providing information clearinghouse services, and direct legal representation and support in cases raising the most significant legal concerns. Our work and expertise on torture related cases and issues, and the application and interpretation of the Convention Against Torture, are widely recognized, as indicated by the fact that the Washington, D.C. Office of the United Nations High Commissioner for Refugees regularly refers our group to those seeking information and assistance on the Convention Against Torture, and its application and interpretation. The value of our work, and our expertise on international law matters also is indicated by the nomination by the United States Government, and election by the General Assembly of the Organization of American States, of the Executive Director of WOAT to serve as Judge on one of two international courts operated by the Organization of American States. He also served as a military lawyer with the Navy Judge Advocate General’s Corps from 1967-1971.
Our group also is heavily engaged in litigation here in the United States, and in the courts of foreign nations, in a newly emerging area involving application of the principles of criminal accountability and universal jurisdiction to major human rights abusers, following the precedents established in the Pinochet case involving the requested extradition of the former dictator of Chile, Augusto Pinochet, from the United Kingdom to Spain, for prosecution of human rights crimes committed while he was in office. We have filed amicus briefs in criminal cases applying these principles in Senegal, Belgium, Mexico, and the U.S., and have filed two civil tort liability cases in U.S. courts based on the principle of universal jurisdiction embodied in the Alien Tort Claims Act and the Torture Victims Protection Act.
Additional information on the interest of the amicus in filing this brief is provided in the Statement of Interest on page one of the text of the attached brief.
Request for leave to file the attached amicus brief is hereby respectfully submitted this 23rd day of July, 2003 by: ____________________________________
MORTON SKLAR
Executive Director
WORLD ORGANIZATION
AGAINST TORTURE USA
1725 K Street, N.W., Suite 610
Washington, D.C. 20006
(202) 296-5702
____________________________________
SARAH M. MATHIS
Legal Intern
New York Law School
IN THE
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
AT
PEORIA
ALI SALEH KAHLAH AL-MARRI,
Petitioner,
v.
GEORGE W. BUSH, President of the United States of America,
DONALD H. RUMSFELD, United States Secretary of Defense, and
COMMANDER M.A. MARR, Naval Consolidated Brig, Charleston, South Carolina,
Respondents.
On Petition for Habeas Corpus
BRIEF
AMICUS CURIAE OF THE WORLD
ORGANIZATION AGAINST TORTURE USA IN SUPPORT OF THE PETITIONER
MORTON SKLAR
Executive Director
WORLD ORGANIZATION AGAINST TORTURE USA
1725 K Street, N.W., Suite 610
Washington, D.C. 20006
(202) 296-5702
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED……………………………………………….
TABLE OF AUTHORITIES………………………………………………..
STATEMENT OF INTEREST……………………………………………..
FACTS……………………………………………………………………..
SUMMARY OF ARGUMENT……………………………………………….
ARGUMENTS………………………………………………………………..
I. THE HABEAS PETITION WAS PROPERLY BROUGHT BEFORE THIS COURT BY THE PETITIONER.
II. THE HABEAS CORPUS STATUTE, 28 U.S.C. § 2241, SPECIFICALLY PROVIDES FOR JURISDICTION OVER CASES OF THIS TYPE IN THE U.S. DISTRICT COURTS.
A. The President Does Not Have The Authority To Restrict Or Eliminate Habeas Jurisdiction Of The Federal Courts.
B. Under U.S. Case Law And Definitions Of The Geneva Conventions, Military Tribunals Are Only Authorized In Situations Involving Armed Conflict. The Alleged Offenses Of The Petitioner Do Not Bring Him Under Military Authority.
III. THE FACTS OF THIS PARTICULAR CASE MUST BE DISTINGUISHED FROM RECENT CASES WHERE ACCESS TO HABEAS WAS DENIED TO MILITARY COMBATANTS ABROAD, SINCE AL-MARRI LAWFULLY ENTERED THE U.S. AND AT THE TIME OF HIS ARREST WAS A LONG-TIME LAWFUL PERMANENT RESIDENT.
IV. DENYING THE GOVERNMENT THE RIGHT TO PROSECUTE AL-MARRI THROUGH MILITARY AUSPICES DOES NOT ELIMINATE THE GOVERNMENT’S RIGHT TO PROSECUTE HIM THROUGH CIVILIAN COURTS.
V. VENUE IS PROPER IN THIS COURT SINCE IT HAS JURISDICTION OVER THOSE OFFICIALS RESPONSIBLE FOR AL-MARRI’S DETENTION UNDER MILITARY AUTHORITY, AND RESIDENTIAL AND FAMILY TIES IN THIS AREA.
A. The President Of The United States And Secretary Of Defense Rumsfeld Are Proper Respondents Since They Are Responsible For The Policies And Actions Resulting In The Petitioner’s Detention And Supervise His Current Status.
B. Illinois Is The Most Suitable Venue Given That:
i. Al-Marri has lived in Peoria, Illinois for many years and was detained for a long period of time in Illinois.
ii. The government has recognized the suitabiliity of this court’s jurisdiction.
iii. Access to counsel requires maintaining jurisdiction in Illinois.
CONCLUSION………………………………………………………………………….
QUESTIONS PRESENTED
STATEMENT OF INTEREST
As an international human rights organization focusing on the issues of torture (defined under the Convention Against Torture as “severe pain and suffering”) and U.S. compliance with international human rights standards, and closely tied to an international human rights network dealing with these issues, the World Organization Against Torture USA (WOAT) has special qualifications to assist the Court in its consideration of this case in the capacity of amicus curiae. Our amicus brief will provide information and legal analyses that would be relevant to the determination of how international legal standards and practices relate to the subjects and issues raised by the case at bar. Our amicus brief also will be able to provide the Court and the parties with information and analysis on legal issues and questions relating to the applicability and legally binding effect of international human rights treaties and the Constitution of the United States with regard to issues associated with Habeas Corpus review in the context of the circumstances raised by the present case.
We believe this case raises a number of significant and important issues and concerns that relate to how international legal standards and practices may apply to, or inform, domestic law and practices regarding the application of Habeas Corpus jurisdiction to review the President’s designation of a person as an “enemy combatant” for purposes of prosecution in military court and believe that we can provide this Court and the parties with useful information and analyses on these matters through the submission of an amicus brief. We believe our input, reflective of our international contacts and experiences, and our status as a well-recognized international human rights organization that plays a major role in litigation involving international human rights issues in the United States courts, will be useful to the Court and the Parties in the adjudication process, and will provide an important international perspective that may not be adequately understood or addressed by the Parties in their submissions to the Court.
WOAT, in the past and currently, has not had, and does not presently have, any financial or other connection with any of the parties in this case. We have never accepted any funds from any of the parties, and have drafted this amicus brief without input or direction from any of the parties, other than receiving copies of some of the official pleadings in the case.
FACTS
A more detailed review of the facts is provided in submissions made by the Parties to the court. Key highlights as presented to the court by the parties to the case that are most relevant to the issues dealt with in this brief include the following:
Petitioner Ali Saleh Kahlah al-Marri is a citizen of Qatar and is currently being held unlawfully without charge at the Naval Consolidated Brig in Charleston, South Carolina. He last lawfully entered the U.S. on September 10, 2001 with his wife and five children for the purpose of obtaining a master’s degree from Bradley University in Illinois. Although precise dates cannot be provided due to petitioner’s detention and in communicado status, to the best of our knowledge, he had previously entered the U.S. in or around 1987 for the purpose of receiving a bachelor’s degree from Bradley University, and stayed in the U.S. at least until he received his degree, which was in 1991.
Al-Marri was arrested on December 12, 2002 by the FBI and held as a material witness in the government’s investigation of the terrorist attacks of September 11, 2001. At the time of his arrest, he was a long-term lawful U.S. resident. Because of petitioner’s status as a lawful permanent resident in the United States, his detention and treatment is subject is subject to the U.S. Constitution, including due process protections. Since petitioner is a resident, his ties to the U.S. are great. Having entered the U.S. on several occasions and resided in the United States for many years, he is entitled to full constitutional rights and protections.
On January 28, 2002, the government formally arrested Petitioner on a criminal complaint, charging him with non-terrorist related offenses, namely credit card fraud, in the U.S. District Court for the Central District of Illinois. During that time, petitioner was held in custody first at the Peoria County Jail, then in the Special Housing Unit of the Metropolitan Correctional Facility, New York (MCC-NY), and again in the Peoria County Jail.
On February 6, 2002, the government charged Petitioner in a one-count indictment of additional non-terrorist charges: possession of 15 or more unauthorized or counterfeit access devices, with intent to defraud, in violation of 18 U.S.C. 1029 (a)(3) in the U.S. District Court for the Southern District of New York. Again on January 22, 2003, Petitioner was charged with other non-terrorist related offenses. He was charged in a second, six-count indictment with two counts of making a false statement to the FBI, in violation of 18 U.S.C. 1001, three counts of making a false statement in a bank application, in violation of 18 U.S.C. 1014, and one count of using a means of identification of another person for the purpose of influencing the action of a federally insured financial institution, in violation of 18 U.S.C. 1028(a)(7) in U.S. District Court for the Southern District of New York. Petitioner was continuously detained throughout these proceedings in Illinois and briefly in New York.
On April 24, 2003 al-Marri’s criminal cases (all non-terrorism related) were consolidated in the U.S. District Court for the Central District of Illinois. Petitioner entered not-guilty pleas to all counts. The Southern District of New York indictments were dismissed on May 12, 2003 on grounds of improper venue.
President Bush ordered the Secretary of Defense, Donald Rumsfeld, on June 23, 2003 to designate and detain Al-Marri as an “enemy combatant” and directed the Attorney General who was then detaining petitioner in Peoria County Jail in Peoria, Illinois in connection with his non-terrorism related criminal charges, to surrender Petitioner to the Secretary of Defense. The U.S. District Court for the Central District of Illinois then entered an Order dismissing the non-terrorism related criminal charges against petitioner with prejudice. Al-Marri was then moved to the Naval Consolidated Brig in Charleston, South Carolina and has been held there for roughly one month. Since that time, defense counsel has been denied access to petitioner. No charges have been filed.
SUMMARY
OF ARGUMENT
The habeas petition is properly brought before this court by the petitioner because under 28 U.S.C. § 2242 the habeas petition is signed and verified by the person for whose relief it is intended or by someone acting in his behalf. A habeas petitioner’s attorney can sign and verify the petition for the petitioner, since in the absence of evidence to the contrary there is a presumption that a petitioner has been fully informed of, and has consented to, claims raised in the petition by his duly authorized attorney. Lucky v. Calderon, 86 F. 3d 923 at 925. This is especially true where access to the Petitioner by his attorney is being denied by the government.
The Habeas Corpus statute provides that jurisdiction lies in the U.S. District Court. 28 U.S.C. § 2242. Further, the President does not have the authority to restrict or eliminate habeas jurisdiction in the federal courts. Congress has not expressly eliminated Habeas Corpus review in the context of the “war on terrorism.” In addition, since Military Tribunals are only authorized in situations involving armed conflict and no current declared war or armed conflict exists, the alleged offenses do not bring petitioner under military authority.
This case is distinguishable from recent cases involving the capture of those engaged in hostilities as an enemy and held in Guantanamo Bay. Since Mr. Al-Marri is a long-term resident of the U.S. who never took part in military hostilities in a theater of war, he remains subject to full constitutional protections and due process rights as a long-term legal resident of the U.S.
Even if the habeas is granted, and the Petitioner is released from military custody, the government still has the opportunity to prosecute Petitioner in civilian court for terrorism related charges, and to detain him in custody as a threat to the community once that threat can be established.
Lastly, venue is proper in the Central District of Illinois because of the Petitioner’s ties to Illinois, his previous criminal charges in the Central District and considerations of access to counsel and the ability of this Court to properly serve and exercise jurisdiction over all named respondents.
ARGUMENT
I.
THE HABEAS PETITION WAS PROPERLY BROUGHT BEFORE THIS COURT BY THE
PETITIONER.
The Government has made the claim that the habeas petition is not properly brought before this Court because it is not personally signed by the Petitioner, nor brought on his behalf by an appropriate “next friend.” What this argument unaccountably overlooks is that neither a habeas petition nor any other legal submission need be personally signed by the petitioner where it is properly submitted on his behalf by his recognized legal representative, especially where the government makes signature and verification by the petitioner difficult by denying him access to his counsel. 28 U.S.C. § 2242.
28 U.S.C. § 2242 specifies that a habeas petition must be signed and verified “by the person for whose relief it is intended or by someone acting in his behalf.” (emphasis added). This follows the actual practice of the Court, as set forth in United States ex rel. Funaro v. Watchorn, 164 F. 152 (1908, CC NY) and in Collins v. Traeger, 27 F.2d 842 (1928). It is inconceivable that the government would suggest that the long-standing legal representatives of the Petitioner would not fit within the clear and intended meaning of the term “someone acting in his behalf.” This is particularly the case where the respondents are holding the petitioner in a military prison and denying him access to his counsel or any other individuals. Under these circumstances, Respondents can not be permitted to argue that habeas jurisdiction is improper absent the petition being signed or verified by the petitioner, at the same time that they deny him access to his legal representative who has prepared the petition on his behalf. Even if the lack of signature or verification is considered a defect, it “is one that the District Court may, if it sees fit, disregard.” See, e.g., Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 2003) citing Morris v. U.S. 399 F. Supp. 720, 723 (E.D. Va. 1975). See, also, Lucky v. Calderon, 86 F. 3d 923 (9th Cir. 1996), where petition not signed by the Petitioner was accepted because attorney was fully authorized to act in the Petitioner’s behalf. The Court held that “a habeas petitioner’s attorney can sign and verify the petition for the petitioner,” since, “in the absence of evidence to the contrary, there is a presumption that a petitioner has been fully informed of, and has consented to, claims raised in the petition” by his duly authorized attorney. Id. at 925.
In this case the habeas petition has been submitted by the attorneys of record who were authorized directly by the Petitioner to act in his behalf, and who have, in fact, and with his full approval and support, been acting in his behalf in related criminal proceedings for a number of months. Under these circumstances there is no legal basis for the government to suggest that these authorized legal representatives are not properly acting on behalf of the Petitioner in these proceedings.
One would hope that the government is not seriously contending that a petition for Habeas Corpus, which by its nature often is brought in circumstances where the petitioner himself may not be easily accessible, can never be considered by a court when it is not personally signed by the petitioner. Such a thesis would produce a result where the government could avoid the operation of habeas jurisdiction simply by keeping a petitioner permanently in communicado. This could not conceivably have been what the Constitution and Congress intended when habeas corpus proceedings were authorized. See generally United States ex rel. Funaro v. Watchorn, 164 F. 152 (1908, CC NY) and in Collins v. Traeger, 27 F.2d 842 (1928). However, this is what would occur if potential habeas petitioners such as Mr. Al-Marri who have retained counsel, and have been represented by these counsel for some time in related proceedings, are denied the right to act through these counsel to bring a habeas petition before a court.
II.
THE HABEAS CORPUS STATUTE, 28 U.S.C. § 2241, SPECIFICALLY PROVIDES FOR
JURISDICTION OVER CASES OF THIS TYPE IN THE U.S. DISTRICT COURTS.
The language of 28 U.S.C. § 2241 (a) states that, “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” This case presents a typical set of circumstances suitable for the exercise of habeas jurisdiction involving the unlawful detention of the Petitioner by the U.S. Government, and an effort by the government to remove the Petitioner from the reach of the court’s processes.
Under these circumstances, where unlawful detention is alleged, habeas jurisdiction properly lies with the U.S. District Court for the Central District of Illinois.
A.
The President Does Not Have The Authority To Restrict Or Eliminate Habeas
Jurisdiction Of The Federal Courts.
Shortly after September 11, 2001, Congress authorized the President to use “force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force, Pub. L. No., 107-40 § 2(a), 115 Stat. 224, 224 (2001).
Nowhere in the Authorization for Use of Military Force law did Congress expressly authorize the President to suspend the writ of Habeas Corpus either partially or completely. Only Congress may, within constitutional limits, suspend the writ of habeas corpus and regulate the jurisdiction of federal courts. U.S. Const. Art. I, § 8, cl. 2 and Art. III, § 2, cl. 1-2. See, also, INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), Lopez v. Monterey County, 525 U.S. 266, 119 S. Ct. 693 (1999), Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 (1996).
Since Congress has not expressly eliminated Habeas Corpus review in the context of the “war on terrorism,” the President can not defeat or limit this jurisdiction by seeking to place the petitioner in military custody. Habeas Corpus review continues to exist and lies properly in the hands of the U.S. District Court for the Central District of Illinois in this case.
B.
Under U.S. Case Law And Definitions Of The Geneva Conventions, Military
Tribunals Are Only Authorized In Situations Involving Armed Conflict. The
Alleged Offenses Of The Petitioner Do Not Bring Him Under Military Authority.
Another reason why the legality of the government’s action in seeking to transfer this case to military authority must be questioned is that the application of military jurisdiction to the Petitioner as a long term resident of the U.S. is of dubious validity.
The concept of the “enemy combatant” classification came out of the Supreme Court ruling in Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 2 (1942). The Court held that eight German born U.S. residents, who were captured by the U.S. as they tried to enter the country during war time for the purpose of sabotage, espionage, hostile or warlike acts, or violations under the law of war, having been designated as “enemy combatants,” did not have a constitutional right to a criminal trial before a civilian jury, but instead that the President of the United States could try petitioners in a military tribunal. The Court stated that a case involving “an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.” Id at 31. The Court also affirmed the President’s authority to try petitioners before a military tribunal without a jury.
In the case of In re Yamashita, 327 U.S. 1 (1946), Yamashita, a Japanese military commander, was charged with permitting his troops to engage in brutal atrocities against civilians and prisoners of war, and wanton destruction of both public and private property, including religious monuments. Yamashita was tried by a military commission convened shortly after the general Japanese surrender. He was convicted and sentenced to hang. Yamashita petitioned for a writ of habeas corpus and argued to the Supreme Court that the military commission lacked jurisdiction to try him after the cessation of hostilities. The Court held that the U.S. military commander in Japan, as part of the War Power delegated by Congress, could administer a system of military justice for the trial and punishment of enemy combatants who have violated the law of war. However, such a system would only continue in operation "so long as a state of war exists." Id at 11-12. The existence of a state of war is defined by the Court to extend from the declaration of war to the proclamation of peace. Id.
Quirin and Yamashita are distinguishable from the case at bar in that both Quirin and Yamashita arose during a declared war against nations that were officially identified as enemies, and involved military personnel and enemy agents committing war crimes. In Yamashita the defendant was a military commander in the theater of war. In Quirin, the defendants were saboteurs seeking entry into the U.S. to commit sabotage. There was a formal congressional “Declaration of War” in existence, and therefore, an identified enemy.
In the case before us, Al Qaeda is not an enemy nation and there is no declared war. The term “war on terrorism,” as used by President Bush does not refer to an officially recognized armed conflict but to a general effort by the United States to combat the threat of terrorism and to protect U.S. interests worldwide. By its nature, terrorism is not confined to a particular place or time, and involves what could be an open-ended and all-encompassing state of affairs. Further, there is no confirmation that Al-Marri is an enemy agent. He has not participated in any type of armed conflict, or actions of a military nature. As a legal, long-term resident he is entitled to be accorded full Constitutional protections and not arbitrarily, through administrative fiat, removed from civilian jurisdiction and placed under military authority.
There are certain
requirements promulgated by international law for the identification and
treatment of combatants in war time. Under the Geneva Conventions anyone
committing “a belligerent act” during an armed conflict and “having fallen
into the hands of the enemy…shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent tribunal.” (emphasis added).
Article 5, Convention Relative to the Treatment of Prisoners of War, 6
U.S.T. 3316, entered into force 1950, for the U.S. Feb. 2, 1956.
Pursuant to these standards, even if the Petitioner were to be classified
as an unlawful “enemy combatant,” pursuant to Articles 43 and 44 of the
Protocol Relating to International Armed Conflicts, 1977 U.M. Jurid. Y.B. 95, 16
ILM 1391 (1977), he would be entitled to treatment as a prisoner of war until
such time as “a competent tribunal” can assess and determine his status.
In this case, none of these procedures have taken place.
Only an administrative determination by the President of the U.S. serves
as the basis for removing the Petitioner to a military brig, maintaining him in communicado, and denying him access to the regular civilian
courts. In violation of Geneva
Convention standards, Al-Marri was neither a member of a duly constituted and
organized national military force, wearing a uniform or other distinctive
insignia, nor bearing arms openly. See
generally Protocol Additional to the Geneva Convention of 12 August 1949, at
3032 (1977) [hereinafter Protocol].
Therefore, the government is improperly using the term “enemy combatant.” The apparent definition of an “enemy combatant” allows one to be detained for as long as war continues. In the case at bar, the Administration has not yet explained what war or conflict they are referring to. The vague definition of what war or conflict is taking place, the absence of any official declaration of war, and the status of the Petitioner as a long-term resident and civilian, makes it inappropriate to try to treat the Petitioner in the same way as the saboteurs in Quirin and Yamashita.
III.
THE FACTS OF THIS PARTICULAR CASE MUST BE DISTINGUISHED FROM RECENT CASES
WHERE ACCESS TO HABEAS WAS DENIED TO MILITARY COMBATANTS ABROAD, SINCE AL-MARRI
LAWFULLY ENTERED THE U.S. AND AT THE TIME OF HIS ARREST WAS A LONG-TIME LAWFUL
PERMANENT RESIDENT.
It has long been accepted that aliens who have not entered the U.S. and are not living in this country have fewer constitutional protections than U.S. citizens and lawful permanent residents. See Generally Johnson v. Eisentrager, 339 U.S. 763 (1950), Zadvydas v. Davis, 533 U.S. 678 (2001), U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), Wong Wing v. U.S., 163 U.S. 228 (1896).
For example, in Al Odah v. U.S., 321 F.3d 1134 (2003), the U.S. Court of Appeals for the District of Columbia Circuit held that detainees who were nationals of Kuwait, Australia, or the United Kingdom and who were taken into custody in Afghanistan and Pakistan and are currently held as prisoners of war in Guantanamo Bay, were precluded from seeking Habeas Relief in the courts of the United States because the Constitution did not entitle them, as aliens outside of the territory of the United States who had engaged in military action, to due process and habeas corpus protection. Id.
This is a far cry from the case at bar which involves a long-term
resident of the U.S. who, while accused of criminal acts that may be associated
with terrorism, has never engaged in acts of war or military actions, and has
not taken part in hostilities in a theater of war.
IV.
DENYING THE GOVERNMENT THE RIGHT TO PROSECUTE AL-MARRI THROUGH MILITARY
AUSPICES DOES NOT ELIMINATE THE GOVERNMENT’S RIGHT TO PROSECUTE HIM THROUGH
CIVILIAN COURTS.
The Government seems to be suggesting in their Motion to Dismiss or Transfer the Petition For Writ of Habeas Corpus, page 1, that the U.S. District Court’s granting of the petition for a writ of habeas corpus and Petitioner’s release from military custody would result in Mr. Al-Marri’s release into the general public. This is simply not the case. If the U.S. District Court granted the writ of habeas corpus, it would only effectively remove the Petitioner from military authority and return him to civilian jurisdiction. The U.S. Government, as they have previously done, may charge the Petitioner with any number of crimes in U.S. District Court, so long as they give Al-Marri his full constitutional rights, including due process.
It is important to note that while the criminal charges already placed against the petitioner were dismissed with prejudice, the offenses covered by the Court’s order only involved non-terrorist related causes of action. This does not preclude the government from filing other charges associated with his alleged terrorist activities, as well as those that may involve other non-terrorism related violations.
It is inconceivable, if in fact petitioner was involved in terrorist activities, that the government could not find suitable criminal charges to make against him without running afoul of the previous dismissal with prejudice.
V.
VENUE IS PROPER IN THIS COURT SINCE IT HAS JURISDICTION OVER THOSE
OFFICIALS RESPONSIBLE FOR AL-MARRI’S DETENTION UNDER MILITARY AUTHORITY, AND
RESIDENTIAL AND FAMILY TIES IN THIS AREA.
This court has proper venue over each of the named respondents, is the jurisdiction of the Petitioner’s residence, the site of his alleged unlawful activities, and the only location where the Petitioner can have reasonable access to his attorneys.
A.
The President Of The United States And Secretary Of Defense Rumsfeld Are
Proper Respondents Since They Are Responsible For The Policies And Actions
Resulting In The Petitioner’s Detention And Supervise His Current Status.
President Bush and Secretary Rumsfeld are the proper respondents in this case due to their level of involvement in the designation of Al-Marri as an enemy combatant, and the establishment and supervision of the policies and orders that have now placed him in military custody. Both are responsible for Petitioner’s plight, and therefore are appropriate respondents, along with the commander of his prison, in petitioner’s request for habeas corpus jurisdiction.
In Padilla v. Bush, an almost identical jurisdictional situation to the case at bar, a federal judge held that Secretary Rumsfeld was the proper respondent in that case, and that the U.S. District Court had proper jurisdiction over him, as well as jurisdiction to hear the case. The Government’s motion to dismiss for lack of jurisdiction or transfer to South Carolina was denied. Padilla v. Bush, 233 F. Supp. 2d 564 (2003). In Padilla v. Bush, J. Mukasey stated that “Of the particular facts present here, the one that seems to me to bear most directly on the issue of who is a proper respondent is the personal involvement of the Cabinet-level official named as a respondent in the matter at hand. It was Secretary Rumsfeld who was charged by the President in the Order with detaining Padilla; it was plainly Secretary Rumsfeld who, in following that order, sent Defense Department personnel into this District to take custody of Padilla; it could only have been Secretary Rumsfeld, or his designee, who determined that Padilla would be sent to the brig in South Carolina, as opposed to a brig or stockade elsewhere; and it would appear to be Secretary Rumsfeld who decides when and whether all that can be learned from Padilla has been learned, and at least in part, when and whether the danger he allegedly poses has passed. This level of personal involvement by a Cabinet-level officer in the matter at hand is, so far as I can tell, unprecedented.” Id. at 581.
Although the warden of a facility where a habeas petitioner is being held certainly is an appropriate respondent as the person primarily responsible for certain forms of treatment that are being challenged, there are circumstances where higher level officials also may be the proper respondents. Monk v. Secretary of the Navy, 253 U.S. App. D.C. 293, 793 F.2d 364 (D.C. Cir. 1986). In this case it is the President and Secretary of Defense who have issued the rules governing the Petitioner’s status, specifically ordered him made subject to those rules, and ordered him removed from Illinois to South Carolina to be placed in military custody. Here, Secretary Rumsfeld was directed by the President to take custody of Al-Marri, and the government has acknowledged that agents of the Department of Defense came into this district to do so. That conduct, through agents, is sufficient to confer jurisdiction over the President and Secretary Rumsfeld.
The particular facts in the case at bar are nearly identical to that of Padilla, and the level of participation of the President and Secretary Rumsfeld is identical to the supervisory authority exercised in the cases of Padilla and Al-Marri that justified habeas jurisdiction over supervisory officials.
B.
Illinois Is The Most Suitable
Venue Given The Petitioner’s Substantial Ties To The Government’s
Acknowledgement Of It’s Suitability, and Access To Counsel Considerations.
i.
Al-Marri has lived in Peoria, Illinois for many years and was detained
for a long period of time in Illinois.
The subject phrase “within their respective jurisdictions” in the Habeas Corpus statute, 28 U.S.C. 2241(a) was read initially by the Supreme Court in Ahrens v. Clark, 335 U.S. 188, 92 L. Ed. 1898, 68 S. Ct. 1443 (1948), to require that a petitioner be physically present within the geographic boundaries of the district before a petition could be heard. However, the court did away with that requirement in Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973), where it held that a prisoner confined in an Alabama state prison following a felony conviction could seek habeas corpus relief in Kentucky to attack an indictment pending there, reasoning that in enforcing a Kentucky detainer, the Alabama warden was acting simply as the agent of the state of Kentucky.
In Braden v. 30th Judicial Circuit Court, the Court stated that the language of the Habeas Corpus statute, 28 U.S.C. 2241 “requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.” In Henderson v. INS the Second Circuit stated that “A court has personal jurisdiction in a habeas case ‘so long as the custodian can be reached by service of process.” Henderson v. INS, 157 F.3d 106 at 122 (2d Cir. 1998). Both before and after Henderson, many other district courts have held that if a respondent can be reached through the forum state’s long-arm statute, the court has jurisdiction to hear the petition. Padilla v. Bush, 233 F.Supp.2d 564 (2002) citing Barton v. Ashcroft, 152 F.Supp.2d 235, 239 (D.Conn. 2001), Perez v. Reno, No. 97 Civ. 6712, 2000 WL 686369, at 3 (S.D.N.Y. May 25, 2000), and Roman v. Ashcroft, 162 F.Supp.2d 755, 758 (N.D. Ohio 2001).
Similarly, in Ex Parte Mitsuye Endo, 323 U.S. 283, 304-306 (1944), the Supreme Court held that the district court may act upon petition for habeas if there is a respondent within reach of its process who has custody of the prisoner, even though petitioner has been removed from the district.
The Illinois Long-Arm Statute, 735 ILCS 5/2-209 (2003), states that “(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts (1) The transaction of any business within this State” or “(2) The commission of a tortious act within this State”…
Clearly, the Illinois Long-Arm Statute would apply to President Bush and Secretary of Defense Rumsfeld since they committed a tortuous act in the state of Illinois, namely the unlawful arrest, unlawful removal, and unlawful transfer of Petitioner to a military brig in South Carolina. Therefore, this court has proper jurisdiction to thear this case.
ii.
The Government has recognized the suitability of this court’s
jurisdiction.
Until placing the Petitioner under military authority, and moving him to South Carolina for that purpose, the government appeared to acknowledge that the Central District of Illinois was the most suitable jurisdiction for his incarceration and trial. The initial criminal charges against him were brought in this jurisdiction. He was incarcerated in this jurisdiction except for a brief period of time when he was indicted in New York and moved to that jurisdiction for that purpose. On April 24, 2003 all of the Petitioner’s criminal cases pending at that time were consolidated before this Court.
These actions were taken in recognition that this was the jurisdiction where the Petitioner had long-term residence and family ties, and where most of the allegedly illegal actions he was accused of having committed took place.
In essence, the government has acknowledged the validity of this court’s jurisdiction in the actions it took before the Petitioner was summarily removed to military custody. The government should not be permitted to defeat or restrict the jurisdiction of the Court by transferring him to another jurisdiction. This, by its very definition, is forum shopping. The All Writs Act, 28 USCS § 1651 (2003), states that “(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The All Writs Act calls for the Central District of Illinois to have proper jurisdiction over this case.
iii.
Access to counsel requires maintaining jurisdiction in Illinois.
Petitioner’s counsel is located in Peoria, Illinois, and this is the only jurisdiction where he can properly have access to his counsel, and therefore receive proper legal representation of his choice.
CONCLUSION
This Court has proper jurisdiction over this habeas petition because Petitioner’s legal representatives had the authority to submit it in behalf, the President does not have the authority to restrict, eliminate or defeat the ability of federal courts to exercise habeas jurisdiction, and the status and actions of the Petitioner do not in any case make him subject to military jurisdiction.
Moreover, as a long-term legal resident of the U.S. the Petitioner is as fully entitled to Constitutional protections as a U.S. citizen, and, as such, should not have been summarily transferred out of civilian jurisdiction and made subject to military authority based on an unreviewable determination by the President and Secretary of Defense that he was an enemy combatant.
Finally, the President and Secretary of Defense were properly named as respondents because they played a direct and primary role in placing the Petitioner in the circumstances leading to his habeas challenge, and they exercise a major degree of supervisory authority over the circumstances of his present detention and treatment as a military prisoner.
Respectfully Submitted this 23rd day of July, 2003 by:
____________________________________
Morton Sklar
Executive Director
World Organization Against Torture USA
1725 K Street NW
Washington, DC 20009
____________________________________
Sarah M. Mathis
Legal Intern
New York Law School
CERTIFICATE OF COMPLIANCE
This motion complies with the type-volume limitation of Local Rule 7.1(B)(2) because this motion contains __________ number of words, including all headings, footnotes, and quotations.
Signed and Certified to this 23rd day of July, 2003 by:
_________________________________
Morton Sklar
World Organization Against Torture USA
1725 K Street NW
Washington, DC 20009
CERTIFICATE OF SERVICE
It is hereby certified that service of the foregoing MOTION
FOR LEAVE TO
FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE WORLD ORGANIZATION AGAINST TORTURE USA IN SUPPORT OF THE PETITIONER has been made on the parties listed below by depositing a copy thereof in the United States first class mail, postage prepaid, addressed to:
Lawrence S. Lustberg, Esq.
Mark A. Berman, Esq.
Michael A. Baldassare, Esq.
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Riverfront Plaza
Newark, New Jersey 07102-5496
L. Lee Smith, Esq.
HINSHAW & CULBERTSON
ATTORNEYS-AT-LAW
456 Fulton Street, Suite 298
Peoria, IL 61602-1220
Jan Paul Miller
United States Attorney
Central District of Illinois
One Technology Plaza
211 Fulton Street, Suite 400
Peoria, IL 61602
Sharon Paul
United States Attorneys Office
Central District of Illinois
318 S. 6th Street
Springfield, IL 62701
Signed and Certified to this 23rd day of July, 2003 in Washington, D.C. by:
______________________________
Morton Sklar
World Organization Against Torture