UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE SADDAM HUSSEIN Miscellaneous Action No. 06-566 (CKK) MEMORANDUM OPINION (December 29, 2006) At approximately 1:00 p.m. today, Petitioner, Saddam Hussein, filed an Application for Immediate, Temporary Stay of Execution with this Court. Petitioner's application asks that this Court delay Hussein's sentence of death by an Iraqi court in order to protect his alleged due process right to notice in a civil action presently before Judge Emmet G. Sullivan, Ali Rasheed v. Hussein, Civ. A. No. 04-1862, in which Petitioner Hussein is named as a defendant. The Court held two hearings in this matter during the late afternoon today, during which Petitioner's counsel orally represented to the Court that he sought an order enjoining the United States Military and the United States Department of State, under whose custody Petitioner Hussein asserted he was allegedly being held, from transferring custody of Petitioner Hussein to the Iraqi government for execution prior to January 4, 2007. Petitioner's counsel further represented that, although his Application was not styled as such, he sought this order under the legal framework of a petition for habeas corpus. Based on the pleadings and oral representations made by Petitioner's counsel during the hearings before this Court, the Court shall deny Petitioner's Application for Immediate, Temporary Stay of Execution.
I: BACKGROUND As an initial matter, the Court notes that the Certificate of Service attached to Petitioner's Application indicated that he served Secretary of Defense, Dr. Robert M. Gates, and Secretary of State, Dr. Condoleezza Rice, by mail today. App. of Def. Saddam Hussein for Imm., Temp. Stay of Execution (hereinafter "Pet.'s App."). The Court alerted Petitioner's counsel that this service was inadequate because, pursuant to Federal Rule of Civil Procedure 4(i)(1), in addition to serving Secretary Gates and Secretary Rice, Petitioner was required to effect service on the United States Attorney for the District of Columbia and the Attorney General of the United States. Fed. R. Civ. P. 4(i). Petitioner's counsel orally represented to the Court that he intended to bring his Application pursuant to Federal Rule of Civil Procedure 65(b), which allows a court to grant a temporary restraining order without written or oral notice to the adverse party, pursuant to certain conditions. Fed. R. Civ. P. 65(b). The Court determined, however, that Petitioner's counsel had failed to meet the requirement of Federal Rule of Civil Procedure 65(b)(2) because counsel had not "certifie[d] to the court in writing the efforts, if any, which ha[d] been made to give the notice and the reasons supporting the claim that notice should not be required." Fed. R. Civ. P. 65(b)(2). Furthermore, the Court found that Petitioner's counsel, who indicated that he discovered at 11:00 a.m. this morning that Petitioner Hussein was to be executed within the next 24-48 hours, had adequate time to serve the United States Attorney and the Attorney General, but had failed to do so, or even to make efforts to reach or discuss his Application with government counsel. The Court held a hearing on the record in this matter during the late afternoon today, during which Petitioner's counsel clarified certain matters. Without waiving service, and at the 2
request of the Court, Counsel from the Department of Justice, Federal Programs Division participated by telephone. Based on Petitioner's counsel's assertion that Petitioner Hussein's death sentence would be imposed within the next 24 to 48 hours, the Court determined that this matter should be handled on an expedited basis, and as such, requested certain information from the government, notwithstanding the fact that service had not been perfected. At the Court's request, counsel for the government identified for the Court and Petitioner's counsel cases relevant to the key jurisdictional issue in this matter, already identified by the Court whether Petitioner Hussein was in the custody of the United States. At approximately 6:00 p.m. this evening, the Court addressed an additional discrete question to Petitioner's counsel on the record, at which point Petitioner's counsel also indicated that he had left service with the United States Attorney's Office. Petitioner's Application asserts that Petitioner has been named as a defendant in a civil action, Ali Rasheed v. Hussein, Civ. A. No. 04-1862, currently pending before Judge Sullivan, and that "his incarceration has prevented him from receiving proper due process notice of his rights to defend himself and his estate" in that case. Pet.'s App. at 1. ^1 As a result, Petitioner's Application requests that this Court delay Petitioner's sentence of death by the government of Iraq, "to protect his right of due process and rights under the Geneva Conventions." Id. at 5. Petitioner's Application cites Hill v. McDonough, 548 U.S. ___, 126 S. Ct. 2096, 2101, 165 L. 1 In an Order filed September 14, 2006, Judge Sullivan determined that Petitioner Hussein had been properly served in Ali Rasheed v. Hussein pursuant to Federal Rule of Civil Procedure 4(f)(3) because service was effected upon his Counsel. Ali Rasheed v. Hussein, Civ. A. No. 04- 1862 (D.D.C. Sept. 14, 2006). The Court notes that Petitioner has subsequently filed a motion to dismiss in Ali Rasheed v. Hussein, not fully briefed, in which he asserts that the court lacks personal jurisdiction over him because he has not been properly served. 3
Ed. 2d 44, 51 (2006), a case arising under 42 U.S.C. § 1983, for the proposition that the Court has the authority to order a stay of execution pursuant to its equitable powers. Id. Petitioner's Application appends as exhibits two declarations one submitted by one of Petitioner Hussein's criminal lawyers, the other by "Hussein's principal, Iraqi lawyer," Pet.'s App. at 1 which indicate that, while Petitioner Hussein has been incarcerated in Iraq, these attorneys' access to Petitioner Hussein has been at the discretion of the United States Military and Department of State. Id. at 2. Based on these declarations, Petitioner Hussein asserts that he "is incarcerated under the custody of the United States government through the United States military and the Department of State." Id. at 1. During the hearing on the record this afternoon, Petitioner's counsel clarified a number of matters, including the following: (1) although Petitioner's Application asserted that this Court had equitable powers to issue the remedy sought based on a case under 42 U.S.C. § 1983, he did not seek to bring an action under that statute; (2) Petitioner's counsel represented that Petitioner, in fact, sought a writ of habeas corpus; and (3) as to specific relief, Petitioner sought an order enjoining the United States Military and Department of State from releasing Petitioner Hussein to the custody of Iraqi officials for execution at any time prior to January 4, 2007, the date on which Petitioner's counsel represented that Petitioner Hussein was scheduled to meet with attorneys who would apprise him of the suit before Judge Sullivan. III: DISCUSSION "When it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, it shall dismiss the action." Fed. R. Civ. P. 12(h)(3). As such, "[i]f a court determines that it lacks subject matter jurisdiction, it therefore is duty bound to dismiss the case 4
on its own motion." Hawk v. Olson, 326 U.S. 271, 272. 66 S. Ct. 116, 90 L. Ed. 61 (1945). The following matters are not in dispute: (1) this Court, a court of limited jurisdiction, has no jurisdiction over the Iraqi officials who will carry out the execution of an Iraqi citizen pursuant to a sentence of death issued by an Iraqi court for violations of Iraqi law; (2) this Court only has jurisdiction to issue a writ of habeas corpus if the petitioner is "in custody under or by color of the authority of the United States," 28 U.S.C. § 2241; ^2 and (3) members of the United States Military maintain custody over Petitioner Hussein pursuant to their authority as members of Multi-National Force-Iraq ("MNF-I"). As Judge Reggie Walton recently concluded in a strikingly similar matter, this "Court lacks habeas corpus jurisdiction over an Iraqi citizen, convicted by an Iraqi court for violations of Iraqi law, who is held pursuant to that conviction by members of the Multi-National Force- Iraq." Al-Bandar v. Bush, et al., Civ. A. No. 06-2209 (RMC) (D.D.C. Dec. 27, 2006) (denying motion for temporary restraining order to prevent transfer of petitioner to Iraqi custody); see also, Al-Bandar v. Bush, et al., Civ. A. No. 06-5425 (D.C. Cir. Dec. 29, 2006) (denying motion for stay or injunction enjoining transfer of petitioner to Iraqi custody pending appeal). A United States court has no "power or authority to review, affirm, set aside or annul the judgment and sentence imposed" by the court of a sovereign nation pursuant to their laws. Hirota, et al. v. General of the Army Douglas McArthur, et al., 338 U.S. 197, 198, 69 S. Ct. 197, 93 L. Ed. 1902 (1948); Flick v. Johnson, 174 F. 2d 983, 984 (D.C. Cir. 1949). Accordingly, this Court has no 2 Although Petitioner's counsel did not specify whether he brings the instant action under statutory or constitutional habeas grounds, it is clear that the instant Petitioner cannot bring a constitutional habeas action before the instant court. See Johnson v. Eisentrager, 339 U.S. 763, 768, 777-78, 70 S. Ct. 936, 94 L. Ed. 1255 (1950). 5
jurisdiction to prevent the transfer of Petitioner Hussein to the custody of the Iraqi government, as that would effectively alter the judgment of an Iraqi court. Moreover, Petitioner is not being held under the custody of the United States, and as a result, this Court lacks habeas corpus jurisdiction. Petitioner's counsel agreed that, while Petitioner may be held by members of the United States Military, it is pursuant to their authority as members of the MNF-I. The MNF-I derives its "ultimate authority from the United Nations and the MNF-I member nations acting jointly, not from the United States acting alone." Mohammed v. Harvey, 456 F. Supp. 2d 115, 122 (D.D.C. 2006). As such, it is clear that Petitioner is either in the actual physical custody of the MNF-I or in the constructive custody of the Iraqi government, and not in the custody of the United States. Id. As Petitioner is clearly not held in the custody of the United States, this Court is without jurisdiction to entertain his petition for a writ of habeas corpus. IV: CONCLUSION For the reasons set forth above, the Court shall DENY Petitioner's Application for Immediate, Temporary Stay of Execution. An appropriate Order accompanies this Memorandum Opinion. Date: December 29, 2006 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 6
As presented by the Washington Times website:
By Christopher Torchia and Qassim Abdul-Zahra
Saddam Hussein, who ruled Iraq with remorseless brutality for a quarter-century, was hanged early today. On state-run Iraqiya television, a news announcer said, "Criminal Saddam was hanged to death."
By Jeff Wilson
Borne by eight servicemen in crisp dress uniforms, Gerald R. Ford's flag-draped casket was carried past his widow into their hometown church yesterday for a public viewing that marked the start of six days of mourning for the former president.
Oh, and should you want to retrieve a piece of mail tendered to the USPS? Fuggedaboudit, it's against regulations, and perhaps against federal law. Once tendered to the USPS for delivery, mail is deemed out of the control of the sender. Usually.
Tax Forms Mailed With Soc. Sec. Numbers
Associated Press - December 30, 2006
MILWAUKEE (AP) -- Wisconsin's revenue agency said Friday that it sent as many as 170,000 forms to taxpayers with mailing labels mistakenly printed with their Social Security numbers.
... "We want to prevent any chance identity theft might occur," department spokeswoman Meredith Helgerson said. An agency news release included an apology to taxpayers and a statement that steps were being taken "to make sure that this will never happen again."
The misprinted labels, blamed on a computer error while they were being prepared ...
... The agency said the postal service has agreed to retrieve and return any tax booklets that have not yet been delivered.
Contrary to my first report posted hours ago, this motion ...
12/20/06 MOTION filed (Captioned MOTION of AMICI CURAIE DOW JONES and the AP to UNSEAL)(5 copies) by Amicus Curiae for Appellant Dow Jones Co Inc in 04-3138, Amicus Curiae for Appellant Assoc Press in 04-3138 (certificate of service dated 12/20/06 ) [1012356-1]
... was NOT filed under seal.
A small share of blame for reporting the presence of official secrecy might go to the Circuit Court clerks and the photocopy service for asserting that this motion was filed under seal. But given the nature of the filing, it is beyond ken that this filing would be under seal, and I have to take full responsibility for repeating via post that "the DJ Motion of December 20 was filed under seal." Additional research was certainly called for before piping up, and additional research resulted in finding that the filing was not under seal.
To the notion that this filing will produce something useful to the Libby trial, I have a one-word response. "Nonsense." The Court (with Fitzgerald's agreement) already released more than Dow Jones asked for in November, 2005 (Dow Jones didn't ask then for the release of affidavits, it asked only for release of redacted portions of the Opinion), and the Court released everything in the "Motion to Compel Reporter Testimony" that related to the prosecution of Libby. Any further releases are irrelevant to the question of whether or not Libby lied to investigators.
As to the notion that grand jury testimony relating to investigation of Rove should become public, based on Rove's admission, Armitage coming clean, and other public revelations to date, I assume the Court will reject the notion and the motion. The court and grand jury won't "lead" the publication of secret testimony, although they may well (and should) follow. Sure, we might see revelations such as "Karl Rove testified on such and so date," and technically, that constitutes the Court releasing more information. But I don't expect a release that documents why the Special Counsel was considering Rove as a target for a false statements and/or perjury charge, and I think that's what the bulk of the redactions comprise.
Transcribed by hand with only a spell check as a crutch. Blame me for typos, but pin your substantive criticism on Theodore J. Boutrous, Jr., Thomas H. Dupree, Jr. and Jack M. Weiss, all of Gibson, Dunn & Crutcher, LLP.
... ---oooOOO===OOOooo--- ...
MOTION OF AMICI CURIAE DOW JONES
AND THE ASSOCIATED PRESS TO UNSEAL
More than three years ago, the Deputy Attorney General of the United States appointed United States Attorney Patrick Fitzgerald to investigate the disclosure of the identity of CIA operative Valerie Plame. The principle questions at the time were whether the disclosure of Ms. Plame's identity was part of a concerted effort originating in the White House to discredit her husband, who was a critic of the President's war policies, and whether the disclosure violated federal criminal laws, including the Intelligence Identities Protection Act. As part of his investigation, the Special Counsel obtained orders compelling two reporters to disclose their conversations with confidential sources or be imprisoned; those orders ultimately led to one of the reporters being imprisoned for nearly three months.
Recently, the public learned that the Special Counsel's pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's name to Robert Novak, the columnist who had first published it. The public now knows that the Special Counsel knew the identity of that leaker -- Richard Armitage, the former Deputy Secretary of State -- from the very beginning of his investigation.
This development regarding Mr. Armitage, along with recent public statements by the attorney for presidential advisor Karl Rove that the Special
Counsel has advised that Mr. Rove will not be charged in connection with this matter, justify releasing the remaining sealed portions of Judge Tatel's opinion in this case, as well as the Special Counsel's sealed affidavits. This will allow the public to gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters, and why it was necessary to imprison one of those journalists for 85 days for refusing to divulge her conversations with a different government official, I. Lewis "Scooter" Libby.
Accordingly, pursuant to Fed. R. App. P. 27 and D.C. Circuit Rules 27 and 47.1, amici Dow Jones & Company, Inc. and the Associated Press respectfully move this Court to unseal all or some of the remaining redacted portions of Judge Tatel's opinion and the Special Counsel's sealed affidavits in this case. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138 (D.C. Cir. 2006)(ordering some, but not all, of these materials to be unsealed and stating that the Court would consider unsealing additional portions as the matter progressed). 1
1 Dow Jones and the Associated Press filed their corporate disclosure statements in their amicus brief submitted October 25, 2004.
This case arises from the disclosure of Valerie Plame's identity as a CIA operative. On February 15, 2005, a panel of this Court affirmed the district court's refusal to quash grand jury subpoenas issued to New York Times reporter Judith Miller, Time magazine reporter Matthew Cooper, and Time, Inc.
In so holding, the panel split three ways as to whether the common law and Federal Rule of Evidence 501 recognized a reporter's confidential source privilege. The panel agreed, however, that "if [a common law] privilege applies here, it has been overcome" by the Special Counsel's ex parte evidentiary proffer that purportedly established the need for the reporters' testimony and documents. 397 F.3d at 973. The panel stated that on this point it was adopting the reasoning of Judge Tatel's concurring opinion, which devoted eight pages to explaining how the Special Counsel, with his "voluminous classified filings," had "met his burden of demonstrating that the information [sought from reporters] is both critical and unobtainable from any other source." 397 F.3d at 1002 (Tatel, J., concurring). Those pages, however, which comprised eight pages of the slip opinion, were redacted from the versions of the opinion made available to the reporters and the public on the basis that they contained nonpublic grand jury information protected from disclosure pursuant to Federal Rule of Criminal Procedure 6(e). 397 F.3d at 1002.
On November 2, 2005, in the wake of the grand jury's indictment of Mr. Libby, the former Chief of Staff to the Vice President of the United States, Dow Jones moved to unseal Judge Tatel's opinion in full or in part. On February 3, 2006, this Court granted the motion, unsealing certain portions of Judge Tatel's opinion, along with portions of one of the Special Counsel's affidavits that set forth his alleged need for reporters' testimony. See In re Grand Jury Subpoena, 438 F.3d 1138. The Court explained that "there is no longer any need to keep significant portions of the eight pages under seal," given that "Libby's indictment, now part of the public record, reveals some grand jury matters, and we see little purpose in protecting the secrecy of grand jury proceedings that are no longer secret." Id. at 1140. Thus, the Court "unseal[ed] those portions containing grand jury matters that the special counsel confirmed in the indictment or that have been widely reported." Id. The Court also unsealed "parts of one of the special counsel's affidavits upon which [it] relied in concluding that Miller's evidence was critical to the grand jury investigation," explaining that '[i]f the public is to see our reasoning, it should also see what informed that reasoning." Id.
The Court declined, however, to unseal the entirety of Judge Tatel's opinion or the Special Counsel's affidavits/ The Court noted that unsealing additional portions of these documents could identify witnesses or jeopardize the Special Counsel's ongoing investigation. Id. at 1141. But the Court recognized that
additional public disclosure could warrant unsealing the remaining portions of the opinion and affidavits, and thus emphasized that "[t]his order is without prejudice to Dow Jones's right to move to unseal additional materials at a later date." Id.
Subsequent to this Court's February 2006 ruling, two significant events have occurred that appear to warrant the unsealing of additional materials. First, former Deputy Secretary of State Richard Armitage has publicly disclosed that he was the source of the leak that led to the first public disclosure of the CIA affiliation of Valerie Plame. See Transcript of CBS Evening News at 3-4 (sept 7, 2006) (Attached as Exh. A); David Johnston, Source in C.I.A. Leak Case Voices Remorse, N.Y.Times (Sept. 8, 2006)(attached as Exh. B). Mr. Armitage has publicly stated that he told FBI investigators that he was the person who told columnist Robert Novak that Ms. Plame worked at the CIA, and that he also discussed Ms. Plame with Washington Post reporter Bob Woodward. Id. Mr. Armitage further stated that he disclosed his role in October 2003, but that Special Counsel "asked me not to discuss this and I honored his request." Exh A at 4; Exh. B at 2. He added that the Special Counsel has now given him permission to discuss these matters publicly. See Exh. B at 2 ("This week, after news reports clearly identified him as the source, Mr. Armitage said Mr. Fitzgerald had consented to his public disclosure of his role."); see also Robert Novak, My Role in the Plame Leak Probe, Chi. Sun-
Times (July 12, 2006)(discussing substance of his grand jury testimony)(attached as Exh. C); Robert Novak, The Real Story Behind the Armitage Story, Chi. Sun-Times (Sept. 14, 2006)(discussing conversation with Mr. Armitage)(attached as Exh. D).
Second, an attorney for presidential advisor Karl Rove has publicly disclosed that Mr. Rove was advised by the Special Counsel that he will not be charged in connection with this matter. See CNN.com, Lawyer: Rove won't be charged in CIA leak case (June 13, 2006)(attached as Exh. E)("White House senior advisor Karl Rove has been told by Special Counsel Patrick Fitzgerald that he will not be charged in the CIA leak case, according to Robert Luskin, Rove's lawyer."). Moreover, Matthew Cooper and Robert Novak have revealed their own testimony concerning Mr. Rove. See Matthew Cooper, What I Told the Grand Jury, Time, July 25, 2005, at 38; Novak, My Role in the Plame Leak Probe, Chi. Sun-Times (July 12, 2006).
As this Court has explained in its prior order in this case, "[g]rand jury secrecy is not unyielding," and thus "[j]udicial materials describing grand jury information must remain secret only 'to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.'" 438 F.3d at 1140 (quoting Fed. R. Crim. P. 6(c)(6))(emphasis added by the Court). The Court
noted that its precedent "reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public" 438 F.3d at 1140. Indeed, "'[t]here must come a time . . . when information s sufficiently widely known that it has lost its character as Rule 6(e) material.'" Id. (quoting In re North, 16 F. 3d 1234, 1245 (D.C. Cir. 1994)). See also In re: Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998)(public disclosure of grand jury materials is warranted if doing so will not endanger grand jury secrecy, and "Rule 6(e)(5) contemplates that this shall be done")(emphasis added).
Here, the public statements of Mr. Armitage and Mr. Rove's lawyer strongly suggest that additional portions of Judge Tatel's concurrence and the Special Counsel's affidavits may now be unsealed. Where, as here, the witnesses themselves have made grand jury information widely known, continued secrecy is unwarranted. In In re: Motions of Dow Jones & Co., for example, the Court held that secrecy was in appropriate when a witness' attorney "virtually proclaimed from the rooftops that his client had been subpoenaed to testify before the grand jury." 142 F.3d at 505. The Court noted that the witness' "identity as a person subpoenaed to appear before the grand jury has become [public] information, not because of press reports relying on unnamed sources, but because [the witness'] attorney decided to reveal this fact to the public." Id.
In this case, Mr. Armitage has publicly revealed that he was the source of the leak that led to the first public disclosure of Ms. Plame's identity; that he told FBI investigators of this fact in October 2003, before the Special Counsel had even been appointed; and that Special Counsel asked him not to publicly discuss the matter, but recently released him from that promise. Likewise, Mr. Rove's lawyer has publicly revealed that Mr. Rove is not a target f the investigation and will not be charged in this case. These disclosures strongly suggest that additional portions of Judge Tatel's opinion and the Special Counsel's affidavits can be released without compromising the interests protected by Rule 6(e). See In re Grand Jury Subpoena, 438 F.3d at 1141 (declining to unseal additional material because "publication at this juncture could identify witnesses, reveal the substance of their testimony, and -- worse still -- damage the reputations of individuals who may never be charged with crimes"); id. (noting the need to protect information concerning witnesses' "role in the investigation"). Although the Court in its prior order noted that the fact that "the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy," id., it now appears that the Special Counsel's investigation is over.
These proceedings involve a matter of great public importance that has already received considerable publicity and public attention. In Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991), this Court emphasized "the critical
importance of contemporaneous access . . . to the public's role as overseer of the criminal justice process." Id. at 287 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980)(Breman, J., concurring)).
These considerations carry special force here, where the criminal justice process has embroiled officials at the highest levels of the United States government and forced journalists to testify about their confidential sources. Unsealing the redacted portions of Jude Tatel's opinion and the Special Counsel's affidavits will enable the public to scrutinize the basis for this Court's ruling that any common law reporter's privilege was overcome. Furthermore, it will help the public understand the basis for the appointment of the Special Counsel and the Special Counsel's determination and argument that, notwithstanding Mr. Armitage's revelation in October 2003, he viewed it necessary to compel testimony from Ms. Miller and Mr. Cooper -- and force the imprisonment of Ms. Miller -- to fulfill his investigatory mandate.
For all the reasons set forth above, this Court should now unseal Judge Tatel's opinion and the Special Counsel's affidavits in their entirety or, at a minimum, unseal those portions that concern Mr. Armitage and Mr. Rove and that are no longer protected under Rule 6(e).
Dated: December 20, 2006
Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C 20036
Jack M. Weiss
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
Attorneys for amici curiae
This affidavit was partially released on a favorable Circuit Court Ruling on Dow Jones's November 2, 2005 Motion.
Hat tip to yargb.blogspot.com for substantial portions of the text.
Pagination omitted. Footnotes are associated with their numbered points in the original, on a best-guess basis in cases where footnote numbers are themselves redacted from the publicly-released affidavit. Guesses of contents of redaction are noted in some places, likewise approximate length of some redactions.
Redactions conspicuous by absence:
In re: Grand Jury Subpoena, Miller
Cases Below (D.D.C.) 1:04-mc-00407, 1:04-mc-00408
Case on Appeal (D.C. Cir.) 04-3138
AUGUST 27, 2004 AFFIDAVIT OF PATRICK J. FITZGERALD
PLACED IN PUBLIC FILE PURSUANT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ........................................... : In re: Special Counsel Investigation : Case No. 04-MS-407 (D.D.C.) : Case No. 04-MS-408 (D.D.C.) (Grand Jury Subpoena to Judith Miller) : (Chief Judge Thomas F. Hogan) : REDACTED : UNDER SEAL ...........................................PATRICK J. FITZGERALD, being duly sworn, deposes and says:
1. I am the United States Attorney for the Northern District of Illinois, having been appointed by the President and confirmed by the Senate in October 2001. For purposes of the instant matter, I serve in the capacity as "Special Counsel," in that I have been delegated all the relevant powers vested in the Attorney General of the United States, including the power to issue subpoenas generally, to authorize subpoenas to the media and to appear in Court on behalf of the United States. I submit this affidavit in opposition to the Motions by (i) New York Times reporter Judith Miller [redacted (names movants to Motions to Quash, probably Cooper and Time, Inc.)] to quash grand jury subpoenas.
2. In this affidavit, I set forth below: the basis for my authority to conduct this investigation (paragraph 5); the general subject matter of the investigation (paragraphs 6 through 8); general factual background on the investigation (paragraphs 9 through 16); the factual background giving rise to the subpoenas issued to Miller (paragraphs 18 through 48); [redacted (probably parallels the previous - i.e., "the factual background giving rise to the subpoenas issued to Cooper")] the need for the reporters' testimony (paragraphs 81 through 83); the extent to which alternative remedies have been exhausted (paragraphs 84 through 88); and that the subpoenas were validly issued after a careful balancing of appropriate interests in free speech (paragraphs 89 through 100).
3. As discussed in greater detail below, reporter Miller has been subpoenaed because her testimony is essential to determine whether or not Lewis Libby, the Vice President's Chief of Staff, as committed crimes involving the improper disclosure of national defense information and perjury. Libby has admitted to speaking to reporter Miller in July 2003 and discussing the the purported employment of former Ambassador Joseph Wilson's wife by the Central Intelligence Agency ("CIA"). However, Libby has testified under oath that he only advised Miller that other reporters were saying that Wilson's wife worked at the CIA and that Libby himself did not know if that were true. There is substantial reason to question Libby's account. First, Libby testified that he merely relayed to Miller on July 12 or 13 what Libby had learned from Tim Russert on July 10. However, Russert has testified under oath that he did not discuss Wilson's wife with Libby on that date and indeed did not know then about Wilson's wife. Thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters [redacted] and Matt Cooper of Time magazine-- that are contradicted in many respects by the testimony of [redacted] and Cooper. And investigation to date has determined that Libby had spoken with as many as seven (7) different government officials about Wilson's wife [redacted] employment prior to the date of the Russert conversation when he claimed to have hear the information from Russert as if it were new. One of those officials, Ari Fleischer, was told the information by Libby three days before the purported Russert conversation and was advised by Libby that the information was "hush hush." The grand jury needs to hear the testimony of Miller before making any determination whether Libby should be charged. Libby has expressly waived any claim of confidentiality as to conversations with Miller on the subject matter of the investigation.
Authority to Conduct Investigation
5. In this particular matter, Attorney General John Ashcroft has recused himself from participation and delegated his full authority to Deputy Attorney General James B. Comey as Acting Attorney General The Deputy Attorney General is not recused from this matter but has delegated all the power he has concerning this matter to the letters dated December 30, 2003, and February 6, 2004, copies of which are annexed as Exhibits A and B. The Deputy Attorney General has exercised his discretion not to participate in the conduct of the investigation so as to allow him to participate fully in efforts to coordinate-national security matters with other members of the administration. Thus, as Special Counsel I serve as the functional equivalent of The Attorney General on this matter. 1
1 I have not been appointed pursuant to Title 28, United States Code, Part 600, which is the provision allowing the Attorney General to appoint an attorney outside the Department of Justice to investigate and prosecute certain matters. In fact, the authority delegated in this case is in many respects broader than the authority conferred by the latter provision as I need not seek approvals prior to significant investigative or prosecutive steps.
The General Subject Matter of the Investigation
6. This investigation concerns the disclosure by government officials to the press in July 2003 of then classified information concerning the employment of Valerie Wilson Plame by the Central Intelligence Agency ("CIA"). In particular, the investigation seeks to determine which administration officials disseminated information concerning Ms. Plame to members of the media in spring 2003, the motive for the dissemination, and whether any violations of law were committed in the process. While the initial reporting regarding Ms. Plame's employment was in a column by syndicated columnist Robert Novak, 2 the investigation of unauthorized disclosures is not limited to disclosures to Novak. 3 Moreover, the investigation seeks to determine whether any witnesses interviewed to date have made false statements, committed perjury in the grand jury or otherwise obstructed justice.
2 Novak authored a Jury 14, 2003, Chicago Sun Times column revealing Plame's purported association with the CIA. (A copy of that column is annexed as Exhibit C.)
In seeking to determine the sources for these
disclosures, and the motives for the disclosures, the
investigation also necessarily has sought to determine whether,
as was reported in The Washington Post in September 2003,
administration officials called a number of other members of the
media in order to reveal information about Ms. Plame.
The investigation has focused primarily on disclosures pre-dating July 14, 2003, the date of Novak's column
7. In particular, this affidavit is submitted ex parte to apprise the Court why it is necessary that reporter Judith Miller of the New York Times be compelled to testify in compliance with a validly authorized grand jury subpoena as to conversations she had with I. Lewis Libby, a/k/a "Scooter Libby." Mr. Libby has signed a written waiver of confidentiality concerning his conversations with the media and upon information and belief has also expressly released at least cue other reporter (Matt Copper from Time) from any agreement of confidentiality.
8. [redacted] This affidavit is submitted under seal because it concerns a grand jury matter and is filed ex parte because it describes in detail various sensitive aspects of the grand jury investigation.
The Background Facts:
The Controversy About Niger and Uranium
9. The "leaks" under investigation must be viewed in the context of a controversy concerning the content of the State of the Union address delivered by President George W. Bush on January 28,2003. In that speech, President Bush stated: "The British government has learned that Saddam Hussein sought significant quantities of uranium from Africa." Those remarks, since referred to colloquially as the "16 words," were called into question by a series of articles in the spring of 2003, including several ultimately sourced in part to Ambassador Joseph Wilson. Wilson, a retired career State Department official who had been posted to a number of different African countries, had taken a trip to Niger at the request of the CIA in February 2002 to investigate allegations that yellowcake uranium had been sought or obtained by Iraq from Niger. (The CIA commissioned Wilson to take this trip after the CIA received inquiries from the Vice President about the allegation that uranium had been sought from Niger, but the Vice President himself did not request such a trip) Wilson reported to the CIA that he doubted the Iraq had obtained uranium from Niger recently, for a number of reasons. After the State of the Union speech, the International Atomic Energy Association revealed in March 2003 that documents apparently evidencing efforts to obtain yellowcake uranium from Niger were demonstrable forgeries. Thereafter, over the course of spring 2003, the "16 words" controversy attracted greater media attention. Wilson, who was not a government employee at the time of the trip and [about 65 characters redacted (probably a sentence break included, with the last words being "Richard Armitage")] spoke to several reporters, including Nicholas Kristof of the New York Times and Walter Pincus of the Washington Post, who wrote articles on May 6 and June 12 respectively concerning Wilson's trip to Niger, without naming Wilson. The articles called into question the accuracy of the "16 words." Those news stories generated significant conversation within and between the Office of the Vice President, the CIA, the State Department and the White House as to the circumstances under which Wilson's trip was undertaken.
The Wilson Op Ed Piece
10. On July 6, 2003, Wilson authored an Op-Ed piece in the New York Times entitled "What I Did Not Find in Africa" and was interviewed for an article in the Washington Post about his trip. Both items appeared in the July 6 editions of the respective newspapers. Also on July 6, Wilson appeared as a guest on Meet the Press, hosted that day by Andrea Mitchell. Those media appearances by Wilson generated heightened media interest and increased frustration in the Office of the Vice President that the Vice President was being identified incorrectly as the person sending Wilson on his trip. As a result of press inquiries at the White House the day following the articles and Wilson's television appearance, White House Press Secretary Ari Fleischer stated at a July 7, 2003 press "gaggle" that the Vice President had not requested Wilson's trip, had not been aware of it and had not been briefed on the results. [redacted]
11. Thereafter, the issue of how the "16 words" came to be in the State of the Union was a very prominent issue during the week of July 7 to July 12, while the President and several cabinet members were on a trip to Africa. The attention was increased in part by remarks by National Security Adviser Dr. Condoleeza Rice on Air Force One on July 10, 2003, which appeared to attribute blame for the "16 words" to the CIA. On Friday, July 11, 2003, CIA Director Tenet issued a written statement accepting responsibility for the inclusion of the "16 words" in the State of the Union address. [appears to be partially redacted]
4 As understood by various officials interviewed "on the record" comments are statements made for attribution to a government official by name. "Background" comments are comments that are attributed to a generic description of the government official. "Deep background" comments can be reported as part of the story but not specifically attributed to a government official. "Off the record" comments cannot be reported in the story but can be used to inform the reporter's understanding of the facts.
The Novak Column
14. On. Monday, July 14, 2003, Robert Novak published his syndicated column revealing that Wilson's wife was an "agency operative on weapons of mass destruction." Novak also reported, "[t]wo senior administration officials told me his [Wilson's] wife suggested sending Wilson to Niger to investigate the Italian report." A Time magazine piece authored by Mr. Cooper (as well as several coauthors) entitled "A War on Wilson?" appeared on the Internet later that week (July 17) which stated:
And some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction. These officials have suggested that she was involved in her husband's being dispatched  Niger to investigate reports...
(Copy annexed as Exhibit F.)
15. A Newsday article the following week quoted an intelligence official as confirming Valerie Plame's purported status' as a CIA employee. (Copy annexed as Exhibit D.)
16. The media published more information in the fall of 2003 confirming that Novak was not the only reporter contacted during the relevant period. The September 28, 2003, Washington Post reported that one unidentified source had advised that two top White House officials had contacted at least six reporters prior to the time that Novak published his July 14 story. (Copy annexed as Exhibit G.) The October 12 Washington Post story by Pincus and Allen revealed that a Washington Post reporter had been told about Wilson's wife's employment by an administration official on July 12, two days before Novak's column was published. (Exhibit E.) And Novak himself described the circumstances of his contact with his two administration sources in his October 1, 2003, Chicago Sun Times column. (Copy annexed as Exhibit H.)
The Instant Subpoenas
17. The instant subpoenas to New York Times reporter Miller concern conversations between I. Lewis Libby, a/k/a "Scooter Libby," and reporter Miller in July 2003 and related documents. Libby, a subject of this investigation who has testified twice before grand jury to date, is Assistant to the President, Chief of Staff to the Vice President, and Assistant to the Vice President for National Security Affairs. [redacted]
The Subpoena to Miller
Libby's Account of The July 8 Meeting Between Libby and Miller
18. Libby met with New York Times reporter Judith Miller on July 8, 2003. [redacted]
21. [5-6 lines redacted]
... Libby did not testify that Wilson's wife was discussed at the meeting - having repeatedly staked the position that he didn't discuss Wilson's wife with any one prior to July 10, the date when he thought he learned about Wilson's wife for the first time from Tim Russert. As discussed elsewhere, however, there appears to have been no such conversation with Russert about Wilson's wife on July 10 and Libby was discussing Wilson's wife with others prior to July 10. Thus, it is plausible that Libby may have discussed with Miller Wilson's wife on July 8, given that he discussed Wilson's wife with Ari Fleischer on July 7 and he admits discussing Wilson's wife with Miller at least on July 12.
Libby's Account of The July 12 Telephone Call Between Libby and Miller
22. Libby testified that he spoke to Judith Miller on July 12 or Jury 13 about Wilson's wife by telephone from his home, believing that the call occurred on Jury 12. The call to Miller would have followed conversations described below with reporters Matt Cooper (Time magazine)
Libby's Claimed Basis for Knowledge About Wilson's Wife
23. Libby testified in the grand jury that Tim Russert of NBC advised him by telephone on or about July 10 or July 11, 2003, that Wilson's wife worked for the CIA. Libby testified that he believed he was learning this information for the first tone from Russert. Libby further testified that he thereafter spoke to reporters [redacted (reporter name(s))(Glenn Kessler of the Washington Post)] Matt Cooper of Time magazine and Judith Miller of the New York Times and discussed with them the fact that Wilson's wife worked at the CIA, relaying what he heard from Russert (and what Karl Rove also told him that Rove had learned from Robert Novak). Libby acknowledged that his own notes indicated that he had been advised by the Vice President in early June 2003 that Wilson's wife worked at the CIA. Libby maintained, however, that while he had learned that fact from the Vice President in June, he had forgotten about it by the time he spoke to Russert in early Jury. Further, according to Libby, he did not recall his conversion with the Vice President even when Russert allegedly told him about Wilson's wife's employment.
[redacted (one line)] ... Because Libby's account is substantially at odds with essentially every material witness questioned to date, Libby's account is set forth in detail below and compared with the accounts of other witnesses.
Libby's Account of His July 10 Conversation With Tim Russert
24. More specifically, Libby has testified that he spoke with Tim Russert on July 10 or 11, 2003, when Libby called to complain to Russert in Russert's capacity as NBC Washington Bureau chief about what Libby perceived to be unfair coverage by Chris Matthews of MSNBC. (Matthews was reporting that the Vice President and/or his staff knew about Wilson's trip to Niger and thus, in Matthews' view, knowingly allowed the President to mislead the public in the State, of the Union.) During that conversation, Libby claims that Russert advised Libby that Wilson's wife worked at the CIA and that "all" the reporters knew that information. As noted above, Libby specifically recalls believing that he was learning that fact for the first time even though by his own admission Libby's notes show that he had been told this fact by the Vice President the month before. (Exhibit I at pages 84-87.) When confronted on whether he had discussed Wilson's wife with other government officials earlier that week -- including White House press secretary Ari Fleischer, Director of Communications for the Vice President Cathie Martin and others -- Libby's repeated refrain was that he could not have discussed the matter earlier in the week because he specifically recalled that he learned about Wilson's wife from Russert that week as if it were new (Exh. L at 156-60).
25. Libby explained in detail how he was certain he said nothing to confirm what Russert said was true and that in fact that he did not recall what he knew about Wilson and his wife at the tune of the conversation:
[Russert asked] "did you know that Wilson's wife works at the CIA?" taken aback by that I remember being taken aback by it And I said -- he may have said a little more but that was -- he said that. And I said, no, I don't know what intentionally because I didn't want him to take anything I was saying as in any way confirming what he said because at that point in time I did not recall that I had ever known and I though that this was something that he was telling me that I was first learning. And so I said, no, I don't know that because I want to be very careful not to confirm it for him so that he didn't take my statement as confirmation for him.
. . . [Libby then clarifies mat he had made clear that the Russert conversation had been off theme record]
So then he said - I said -- he said, sorry -- he, Mr. Russert said to me, did you know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no, I don't know that. And then he said, yeah -- yes, all of the reporters know it. And I said again, I don't know that ... I just wanted to be clear that I wasn't confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was important fact, but I didn't ask him any more about it because I didn't want to be digging in on him and then he moved on and finished the conversation...
(Exh. I at 143)
Russert's Account of His Conversation With Libby
26. Russert testified under oath that he had no recollection that he and Libby discussed Wilson's wife during that week. Russert recalled neither being advised by Libby that Wilson's wife worked at the CIA nor advising Libby of the same. Russert recalled that Libby did call to complain to him about Chris Matthews coverage. Russert recalled that when he first read Novak's column on July 14, 2003, that he had a reaction of "wow" because reading the article was the first time he had heard of Wilson's wife's purported affiliation with the CIA. (Transcript of Russert's Deposition annexed as Exhibit K). In addition, Russert had not heard any reporters talking about Wilson's wife working at the CIA before the Novak column appeared. Having not heard that Wilson's wife worked at the CIA, and not having heard that any reporters were saying that prior to Novak's July 14 column, it thus appears impossible that Russert advised Libby on July 10 or 11 that "all" the reporters were saying Wilson's wife worked at the CIA. Indeed, Russert advised that had he known that Wilson's wife was purported to be a CIA employee prior to reading Novak's column, he would have taken steps to have NBC investigate that story, which he had no recollection of doing.
Other Information Inconsistent with Libby's Account
27. Moreover the record developed in the course of this investigation suggestions that as many as seven government officials discussed Wilson's wife's employment at the CIA with Libby prior to the date when Libby claims to have learned this information (for what he claims to have then believed was the first time) from Russert:
(1) As indicated above, Libby now admits being told by the Vice President about Wilson's wife's employment in early June 2003; 6
(2) Undersecretary of State Marc Grossman recalls telling Libby in early June 2003 that "Joe Wilson's wife works for the CIA" and that "our people say that she was involved hi the organization of the-trip."
(3) [redacted] a former member of the communications staff for the Office of Vice President, recalls advising Libby [redacted] in June or early July 2003 (at a time that appears to be prior to the date of the purported Russert conversation) that she had heard that Wilson's wife worked at the CIA.
(4) David Addington, Counsel for the Office of the Vice President, recalls being asked privately by Libby in the week of July 7 what kind of paperwork the CIA would maintain if an employee's spouse were sent on a trip by the CIA. Addington testified that from the context of the question he understood Libby to be discussing Wilson and Wilson's trip to Niger.
(5) A CIA employee assigned to provide daily intelligence briefs to the Vice President and Libby has handwritten notes indicating that Libby referred to "Joe Wilson" and "Valerie Wilson" by those names in conversation with the briefer on June 14, 2003 - a month before the Russert conversation.
(6) [5 lines redacted] After a June 2003 article about Iraq and the uranium issues that caused concern to Edelman and Libby, Edelman asked Libby whether information about how the Wilson trip came about could be shared with the press to rebut allegations that the Vice president seat Wilson. Edelman testified that Libby responded by indicating that there would be 'complications" at the CIA in disclosing that information publicly. Ambassador Edelman indicated that he understand that he and Libby could not further discuss the matter because they were speaking on an open telephone line and Edelman understood that this might involve classified information
(7) Former White House press secretary Ari Fleischer, [redacted (maybe additional names)] testified that he went to lunch with Libby on Monday, July7, 2003, and in a conversation Fleischer described as "weird," Libby told Fleischer that Wilson's wife worked at the CIA. Libby told Fleischer the information about Wilson's wife was "hush hush" or "on the QT." Thus, according to Fleischer, Libby imparted what Libby appeared to have considered sensitive information about Wilson's wife's employment three days prior to when he claims to have received it as "new" information during the Russert conversation.
33. Libby testified that Cooper then asked why Wilson was claiming that the Vice President had sent him to Niger if the Vice President had not. Libby testified that he then explained to Cooper that Wilson might have heard something unofficial (and inaccurate) about the Vice President sending Wilson and "in that context" and "off the record" Libby told Cooper that "reporters are telling us" that Wilson's wife worked at the CIA "and I don't know if it's true" (Exh. I at 182-86). Libby testified several times that he told Cooper (and the other relevant reporters discussed below, including Miller) that he did not know if the information was true or even if Wilson had a wife. 9
9 "And when I talked to the reporters about it, I explicitly said, you know, I don't know if this is true, I don't know the man, I don't know if he has a wife, but reporters are telling us that." (Exhibit J at 177.)
"And you're certain as you sit here today that
every reporter you told that Wilson's wife worked at the CIA, you
sourced it back to other reporters?"
A: "Yes, sir ..."
(Exhibit J at 181.)
[redacted] Paragraph one of the subpoena requested documents concerning conversations between July 6 and July 13 between Judith Miller and a "government official with whom she met in Washington. D.C., on July 8,2003, concerning Valerie Plame... or concerning Iraqi efforts to obtain uranium."
Libby's Waiver of Confidentiality
47. To the extent that a "reporter's privilege" is claimed to exist under the law, Libby has waived its protections. Libby has executed a signed waiver which recites in pertinent part:
I have informed the Federal Bureau of Investigation of my recollection of any communications I have had with members of the media regarding the subject matters under investigation. I hereby waive any promise of confidentiality, express or implied, made to me by any member of the media in connection with any communications that I may have had with that member of the media regarding the subject matters under investigation, including any communications made "on background," "off the record," "not for attribution," or in any other form. I request any member of the media with whom I may have communicated to fully disclose all such communications to federal law enforcement authorities. In particular, I request that no member of the media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit in connection with the subject matters under investigation.
48. Libby has also described his version of his conversations with reporter Miller under oath before the grand jury on two occasions. And, as discussed above, Libby has apparently provided express consent (through his lawyer) for Cooper to testify. Cooper testified at his deposition that he agreed to testify because he was convinced based upon his attorney's conversation with Libby's attorney that Libby voluntarily released Libby from any promise of confidentiality. Thus, to the extent that Judith Miller calls into question the voluntariness of Libby's waiver, she need look no further than to her own attorney (who represents Cooper as well) who, according to Cooper, has assessed that Libby's waiver of confidentiality has been voluntary.
The Need for the Reporters' Testimony
81. The testimony of reporter Miller is central to the resolution of that part of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information. 15 The grand jury needs to know when Libby advised Miller about Wilson's wife -- during their private meeting outside the White House on July 8 or during the three minute telephone call on July 12 -- and whether Libby qualified his disclosure to Miller by stating that he had heard it only from a reporter and did not know if it were true. Miller's testimony is essential to determine whether Libby fabricated his claim that he only told reporters what he claimed he had heard from Russert without a belief that the information he was passing on was either true or classified.
15 If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting national defense." In order to establish a violation of Title 50, United States Code 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
82. [5 lines redacted]
Miller would shed light on the context in which any conversation about Wilson's wife took place.
Exhaustion of Alternative Remedies
84. All reasonable alternatives to compelling the reporters' testimony have been explored. Indeed, the effort expended to date far exceeds what could ever be reasonably required. An experienced team of FBI agents has been working on the case since October 2003, led by Special Agent Jack Eckenrode then of the Inspection Division. At least six agents have been assigned to the case at any time and extensive forensic computer and telephone work is being done. Attorneys with the Criminal Division of the Department of Justice: a Deputy Assistant Attorney General; the Chief Deputy Chief and a Trial Attorney from the Counterespionage Section; and a Trial Attorney from the Public Integrity Section. All five attorneys are well versed in the facts and participating to varying degrees in interviews of witnesses, review of documents and examination of witnesses before the grand jury. From the United States Attorney's Office in Illinois, a number of senior attorneys have participated. Besides my own participation in the factual investigation, the First Assistant United States Attorney, the Chief of the Criminal Division, the Chief of Appeals and the Chief of Public Corruption have participated to varying degrees in the discussion of legal issues, including analyzing the relevant statutes, analyzing the First Amendment issues and determining the available means to obtain electronic evidence. An additional attorney from the appellate section has spent substantial time on legal research and briefing in recent months.
85. The Department of Justice has been investigating this matter since about October 1, 2003, and my participation as Special Counsel began in late December 2003. [4-5 lines redacted]
88. In short, wherever the line should be drawn in requiring the government to explore alternative remedies, we respectfully submit that any reasonable threshold that might be set has been far exceeded.
The Subpoenas Are Issued Legitimately and Not For Purposes to Harass
89. It is important to bear in mind that the applicable regulations do not "create any legally enforcible right in any person" (See Title 28 Code of Federal Regulations, Section 50.10, a copy of which is annexed as Exhibit O, at paragraph (n)). Nonetheless, issuance of the subpoena at issue was consistent with the principles set forth in those regulations. First, the subpoenas are narrowly drafted after a careful balancing of the First Amendment interests. Indeed, as set forth in the next section, a number of reporters, and their toll records, are not being subpoenaed at this time. Most will likely never be subpoenaed.
92. Subpoenas were issued to Matt Cooper and Time magazine, as well as Tim Russert and NBC. After motions to quash the subpoenas were denied, Russert and NBC agreed to a deposition. After Cooper and Time were held in contempt, but prior to appeal, they agreed to a deposition.
[6-7 lines redacted]
94. In deciding whether to issue subpoenas to reporters, I have carefully weighed and balanced the competing interests of the First Amendment and the public interest in the free dissemination of ideas and information and the countervailing interests in effective law enforcement and the fair administration of justice; namely determining whether a crime was committed and whether someone should be prosecuted for that crime. One key factor in deciding whether to issue a subpoena has been whether the "source" to be identified appears to have leaked to discredit the early source (Wilson) as opposed to a leak who revealed information as a "whistleblower" (e.g., the source for the September 28 Washington Post column). The First Amendment interests are clearly different when the "source" being sought may have committed a crime in order to attack a person such as Wilson who, correctly or incorrectly, sought to expose what he perceived as misconduct by the White House. Indeed, failure to effective steps to identify such sources might chill future whistleblowers such as Wilson, thus impairing "a reporter's responsibility to cover as broadly as possible controversial public issues." (28 CFR Section 50.1). We have also not issued subpoenas to date where the reporter may have relevant information but it is shown to be likely that the reporter does [phrase redacted] or where the information is not essential to determining guilt or innocence of a crime likely to be charged.
96. The instant subpoenas were issued only after first making certain that any efforts at a negotiated resolution would be fruitless. Indeed, Special Counsel has engaged in fruitful negotiations with other members of the media.
97. There are reasonable grounds to believe based on information from nonmedia sources that a crime has occurred -- both the improper disclosure of national defense information to the media and perjury before the grand jury -- and that the testimony of reporters Miller [name redacted (and Cooper?)] is essential to a successful investigation and may directly establish Libby's guilt or innocence, and [1-2 lines redacted (that the testimony of reporter Cooper may directly establish Rove's guilt or innocence?)]. The subpoenas are not issued to obtain peripheral, nonessential or speculative information.
98. There are no alternative nonmedia sources to provide accounts of what Libby told Miller -- all others, including Libby, have been questioned extensively. [short sentence redacted] And the subpoenas are issued to verify published information and surrounding circumstances relating to the accuracy of the published information, including information published in the Washington Post that "top White House officials" were contacting reporters prior to July 14, 2003, and more specific information published in the Washington Post that one of its reporters was told about Wilson's wife on July 12, 2003. And the subpoenas are directed at material information regarding a limited subject matter. Miller's subpoena focuses on particular conversations with a single person (Libby) on given dates. [3-4 lines redacted]
99. Indeed, on the facts of this case, it is hard to imagine a stronger case: Libby claims that he told Miller only what he heard "reporters are telling us." Thus, we are in the remarkable position of having identified the person who spoke to Miller and having obtained that person's consent to having Miller disclose the conversation. To deprive the grand jury of the ability to hear and assess Miller's account of what Libby told her is to ask the Special Counsel and the grand jury to make a decision on prosecution partly in the blind -- where it is unknown whether the information will be inculpatory or exculpatory. The possible consequences of a mistake -- wither the failure to charge what would otherwise be determined to involve a crime carried out to discredit a source who was a whistleblower or, worse, charging a confidential source in good faith with a crime where the claim of a "reporter's privilege" deprived the investigation of exculpatory information -- could do far more to undermine both First Amendment interests and the fair administration of justice that could enforcement of the subpoenas. Indeed, the testimony of reporter Cooper was distinctly different from what Libby testified [phrase redacted]. Given that Libby's account of conversations has been largely inconsistent with every other material witness to date [phrase redacted] the only way to make an appropriate decision as to whether Libby committed a crime in his conversation with Ms. Miller -- or in his sworn testimony describing the same -- is to question Miller.
CADC Case No. 04-3138
One of the Motions of Dow Jones, to unseal the Opinion and Affidavits of the prosecutor in the cases In re: Grand Jury Subpoenas, Judith Miller et al, is a matter of public record.
11/2/05 MOTION filed (5 copies) by Amicus Curiae Dow Jones & Co., Inc. in Nos. 04-3138, 04-3139, 04-3140 (certificate of mail service date 11/2/05) to unseal [929790-1].
The text of the above-noted November 2, 2005 motion is reproduced below, as a hand transcription. It was followed, of course, by a Government Response & Resulting Court Opinion.
In contrast to the November 2, 2005 Motion being a "matter of public record," last year's Reply by movant Dow Jones, and the recent (December 20, 2006) Motion to Unseal ...
12/6/05 REPLY filed [935817-1] (5 copies) by Amicus Curiae Dow Jones Co Inc, et al. (certificate of service dated 12/6/05) to a response to the motion unseal. [929790-1] 12/20/06 MOTION filed (Captioned MOTION of AMICI CURAIE DOW JONES and the AP to UNSEAL)(5 copies) by Amicus Curiae for Appellant Dow Jones Co Inc in 04-3138, Amicus Curiae for Appellant Assoc Press in 04-3138 (certificate of service dated 12/20/06 ) [1012356-1]
... are themselves SEALED at the Circuit Court of Appeals, according to
the document retrieval and copying service authorized by the United States Circuit Court
of Appeals for the District of Columbia.
is had been in fact true, I find more than a hint of irony that a
Motion to Unseal is itself sealed, where the movant is asking for relief on the grounds of
making more information available to the public. The movants (Dow Jones and Associated Press),
who could make the material public, aren't making the material public.
That suggests that Dow Jones' current (December 2006) motion contains information pertinent to subpoenas to Miller, Cooper and Time other than what is relevant in the Libby case, and the Court, in an exercise of prudent judgment, is unwilling to be used as a publication tool for Dow Jones.
The clerk of the court and the document retrieval service were in error. The December 20, 2006 Motion to Unseal is emphatically NOT filed under seal.
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE GRAND JURY SUBPOENAS TO JUDITH MILLER
IN RE GRAND JURY SUBPOENAS TO MATTHEW COOPER
IN RE GRAND JURY SUBPOENA TO TIME INC.
On Appeal From The United States District Court
For the District Of Columbia
MOTION OF AMICUS CURIAE DOW JONES TO UNSEAL
Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C 20036
Jack M. Weiss
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
Attorneys for Amicus Curiae
MOTION OF AMICUS CURIAE DOW JONES TO UNSEAL
Pursuant to Fed. R. App. P. 27 and D.C. Circuit Rules 27 and 47.1, amicus Dow Jones & Company, Inc. respectfully moves this Court to unseal the redacted portions of Judge Tatel's opinion in this case. See 397 F.3d 964, 1002; slip op. at 30-39 (attached as Exhibit A). 1
This case arises from the disclosure of Valerie Plame's identity as a CIA operative. On February 15, 2005, a panel of this Court affirmed the district court's refusal to quash grand jury subpoenas issued to New York Times reporter Judith Miller, Time magazine reporter Matthew Cooper, and Time, Inc.
In so holding, the panel split three ways as to whether the common law and Federal Rule of Evidence 501 recognized a reporter's confidential source privilege. The panel agreed, however, that "if [a common law] privilege applies here, it has been overcome" by the Special Counsel's ex parte evidentiary proffer that purportedly established the need for the reporters' testimony and documents. 397 F.3d at 973; slip op. at 17. The panel stated that on this point it was adopting the reasoning of Judge Tatel's concurring opinion, which devoted eight pages to
1 Dow Jones filed its corporate disclosure statement in its amicus brief submitted October 25, 2004.
explaining how the Special Counsel, with his "voluminous classified filings," had "met his burden of demonstrating that the information [sought from reporters] is both critical and unobtainable from any other source." 397 F.3d at 1002 (Tatel, J., concurring); slip op. at 30. Those pages, however, were redacted from the versions of the opinion made available to the reporters and the public on the basis that they contained nonpublic grand jury information protected from disclosure pursuant to Federal Rule of Criminal Procedure 6(e). 397 F.3d at 1002; slip op. at 30-39.
On October 28, 2005, the grand jury indicted I. Lewis "Scooter" Libby, the then-Chief of Staff to the Vice President of the United States, on charges arising out of the Special Counsel's investigation. The indictment, attached hereto as Exhibit B, describes conversations Mr. Libby allegedly had with Ms, Miller and Mr. Cooper as forming the factual basis for certain charges. Shortly after the release of the indictment, the Special Counsel held a press conference in which he discussed the indictment and his investigation in more detail. A transcript of the press conference is attached hereto as Exhibit C.
As shown below, this Court should now unseal the redacted pages of Judge Tatel's opinion in their entirety or, at a minimum, unseal those portions that are no longer protected under Rule 6(e) in light of the indictment, the Special Counsel's public statements, and the public statements of the witnesses themselves.
Federal Rule of Criminal Procedure 6(e)(6) provides that orders relating to grand jury proceedings must be kept under seal only "to the extent and as long as necessary" to prevent the unauthorized disclosure of grand jury matters. See also D.C. Circuit Rule 47.1(c)("[a] party or any other interested person may move at any time to unseal any portion of the record in this court"); D.D.C. Local Rule 6.1 (district court may make public sealed documents concerning grand jury proceedings if the court determines "that continued secrecy is not necessary to prevent disclosure of matters occurring before the grand jury").
In In re: Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998), this Court held that although there is no First Amendment right of access to judicial records and proceedings ancillary to the grand jury, public disclosure of such materials is warranted if doing so will not endanger grand jury secrecy. Indeed, "Rule 6(e)(5) contemplates that this shall be done." 142 F. 3d at 502 (emphasis added). The Court explained that while "[i]t is true that Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs . . . it is also true that when information is sufficiently widely known . . . it has lost its character as Rule 6(e) material." Id. at 505 (internal quotations and citations omitted).
Accordingly, this Court has directed that its opinions be unsealed when their content no longer qualifies as Rule 6(e) material. See, e.g., In re Lindsey, 158 F.3d
1263, 1265-66 (D.C.Cir. 1998)(ordering "that the redacted portions of this Court's opinion . . . are no longer protected from public disclosure by Rule 6(e)" and that "the entire opinion of this Court . . . shall be unsealed"); In re: Sealed Case, 162 F.3d 670, 671-72 (D.C.Cir. 1998)(unsealing opinion of the Court).
Here, the grand jury's indictment and the Special Counsel's public statements strongly suggest that the redacted portions of Judge Tatel's opinion are no longer protected from public disclosure by Rule 6(e). Among other things, the indictment discloses conversations Mr. Libby allegedly had with Ms. Miller and Mr. Cooper. Exh B. at p6, ¶14; p7, ¶17; p8, ¶¶22-24. The indictment also discloses Mr. Libby's statements to the FBI concerning those conversations, id. at p9, ¶26; p17, ¶¶2-3, as well as his (and apparently the reporters') grand jury testimony about the conversations. Id. at pp11-14, ¶¶32-33; pp20-22, ¶¶2-3. Indeed, the indictment includes lengthy verbatim quotations from Mr. Libby's grand jury testimony concerning his conversation with Mr,. Cooper. Id. at p20, ¶2.
More generally, the indictment discloses the nature and "major focus" of the grand jury's investigation, as well as the various matters that were material in the investigation, including "[w]hether and when LIBBY disclosed to members of the media that [Plame] was employed by the CIA." Id at pp9-10, ¶¶27-29.
Similarly, in his press conference following issuance of the indictment, the Special Counsel disclosed that "Mr. Libby was the first official known to have told
a reporter when he talked to Judith Miller in June of 2003 about Valerie [Plame]." Exh. C at 1. See also id. at 3-5 (discussing Mr. Libby's conversations with Ms,. Miller and Mr. Cooper and stating that "It's important to focus on what it is that Mr. Libby said to the reporters"); id. at 10-11, 25 (discussing need for reporters' testimony). Indeed, the Special Counsel explicitly recognized that while "this grand jury investigation has been conducted in secret . . . [w]e are now going from a grand jury investigation to an indictment, a public charge and a public trial. The rules will be different." Id. at 5.
It is also relevant that Ms. Miller and Mr. Cooper, and other witnesses who appeared before the grand jury or have otherwise testified -- including Tim Russert on NBC News and Walter Pincus of the Washington Post -- have publicly disclosed the substance of their testimony. See Judith Miller, My Four Hours Testifying in the Federal Grand Jury Room, N.Y.Times, Oct. 16, 2005, at A31; Matthew Cooper, What Scooter Libby and I talked About, Time, Nov. 7, 2005, at 42; NBC Nightly News Transcript, Tim Russert Shares His Involvement in CIA Leak Case, Oct. 28, 2005; Walter Pincus, Anonymous Sources: Their Use in a Time of Prosecutorial Interest, Nieman Reports 27 (Summer 2005)(all attached as Exhibit D).
Due to the extensive public discussion of these facts, it appears that the redacted portions of Judge Tatel's opinion, or at minimum certain parts of them
have now "lost [their] character as Rule 6(e) material" and are no longer protected from disclosure. In re Motions of Dow Jones & Co., 142 F.3d at 505 (quotation omitted). The Dow Jones decision makes clear that where, as here, prosecutors and witnesses have made grand jury information widely known, continued secrecy is unwarranted. Moreover, if a motion to unseal is denied in whole or in part, a court must explain the specific basis for its decision to keep information secret. See 142 F.3d at 505 (when "we cannot tell from the explanation given in [the district court's] order" the basis of denying public access to court filings, "[o]ur only recourse . . . is to vacate the order insofar as it denied the motion for redacted versions of the transcript and other papers and remand the case for reconsideration").
Finally, these proceedings involve a matter of great public importance that has already received considerable publicity. In Washington Post v. Robinson, 935 F.2d 282 (D.C.Cir. 1991), this Court emphasized "the critical importance of contemporaneous access . . . to the public's role as overseer of the criminal justice process." Id. at 287 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980)(Brennan, J., concurring)). Here, unsealing the redacted portions of Judge Tatel's opinion will enable the public to scrutinize the basis for this Court's ruling, and to understand why this Court concluded that any common law reporter's privilege was overcome.
For the reasons set forth above, this Court should unseal the redacted portions of Judge Tatel's opinion in full or in part.
Dated: November 2, 2005
Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C 20036
Jack M. Weiss
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
Attorneys for amicus curiae
Hat-tip to howappealing.law.com for the following note, which in turn prompted me to grab the linked opinion and convert it.
Current judges remind former judges that former judges aren't "judges" any longer: The majority on a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today issued an order that likely will strike many as rather petty. Today's order states, in full:
Upon consideration of the unopposed motion of retired federal jurists for leave to file brief amici curiae in support of petitioners regarding the Military Commissions Act of 2006, and the lodged brief, it is
ORDERED that the motion for leave to file be denied. See Advisory Opinion No. 72, Committee on Codes of Conduct, Judicial Conference of the United States ("Judges should insure that the title 'judge' is not used in the courtroom or in papers involved in litigation before them to designate a former judge, unless the designation is necessary to describe accurately a person's status at a time pertinent to the lawsuit.").
The Clerk is directed to return to movant-amici curiae the lodged brief.
Circuit Judge Judith W. Rogers issued a short statement noting her disagreement with the order rejecting the amicus brief. It is an interesting question whether the referenced Advisory Opinion, which says that former judges shouldn't be referred to as "judge" in the courtroom or in papers filed in litigation, was intended to prevent former judges from being referred to as "former judges."
ORAL ARGUMENT HELD SEPTEMBER 8, 2005 AND MARCH 22, 2006 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 05-5064, 05-5095 through 05-5116 KHALED A.F. AL ODAH, et al., Petitioners-Appellees/Cross-Appellants, v. UNITED STATES OF AMERICA, et al., Respondents-Appellants/Cross-Appellees. Nos. 05-5062 and consolidated case 05-5116 LAKHDAR BOUMEDIENE, et al., Petitioners-Appellants, v. GEORGE W. BUSH, et al., Respondents-Appellees. ON CONSOLIDATED APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF OF AMICI CURIAE RETIRED FEDERAL JURISTS IN SUPPORT OF PETITIONERS' SUPPLEMENTAL BRIEF REGARDING THE MILITARY COMMISSIONS ACT OF 2006 Patricia A. Bronte Agnieszka M. Fryszman Douglas A. Sondgeroth COHEN, MILSTEIN, HAUSFELD JENNER & BLOCK LLP & TOLL, PLLC 330 N. Wabash Avenue 1100 New York Avenue, N.W. Chicago, IL 60611 Washington, DC 20005 312 222-9350 202 408-4600 Dated: November 1, 2006 Counsel for Amici Curiae
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), the undersigned counsel of record certifies as follows: A. Parties and Amici Except for the following, all parties, intervenors, and amici appearing before the District Court and/or in this Court on these appeals are listed in the Opening Brief of the Government in Al-Odah v. United States, Nos. 05-5064, 05-5095 through 05-5116, in the Opening Brief of the Petitioners in Boumediene v. Bush, Nos. 05-5062 and 05-5063, in the Brief of the Government in Boumediene v. Bush filed on May 25, 2005, in the Guantanamo Detainees' Corrected Second Supplemental Brief Addressing the Effect of the Detainee Treatment Act of 2005 in Al Odah v. United States filed on March 10, 2006, and in the briefs filed on November 1, 2006 by the Petitioners in Al-Odah v. United States and Boumediene v. Bush. Amici curiae, former federal judges, are: · The Honorable Shirley M. Hufstedler, who served as a judge on the United States Court of Appeals for the Ninth Circuit from 1968 to 1979. · The Honorable Nathaniel R. Jones, who served as a judge on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002. · The Honorable George N. Leighton, who served as a judge on the United States District Court for the Northern District of Illinois from 1976 to 1987. i
· The Honorable Timothy K. Lewis, who served as a judge on the United States District Court for the Western District of Pennsylvania from 1991 to 1992, and as a judge on the United States Court of Appeals for the Third Circuit from 1992 to 1999. · The Honorable Frank J. McGarr, who served as a judge on the United States District Court for the Northern District of Illinois from 1970 to 1988, and as chief judge of the court from 1981 to 1986. · The Honorable Abner J. Mikva, who served as a judge on the United States Court of Appeals for the District of Columbia Circuit from 1979 to 1994, and as chief judge of this Court from 1991 to 1994. · The Honorable Patricia M. Wald, who served as a judge on the United States Court of Appeals for the District of Columbia Circuit from 1979 to 1999, and as chief judge of this Court from 1986 to 1991. The law firms of Jenner & Block LLP and Cohen, Millstein, Hausfeld & Toll, PLLC have appeared for amici. Jenner & Block LLP currently represents fourteen Guantánamo detainees, only one of whom is a petitioner in these consolidated appeals. The firm previously submitted an amicus brief to this Court on behalf of petitioners in Qassim, et al. v. Bush, No. 05-5477. In addition, Jenner & Block LLP represented amici before the Supreme Court in Hamdi v. Rumsfeld, No. 03-6696, and Rasul, et al. v. Bush, No. 03-334. Cohen, Milstein, Hausfeld & Toll PLLC currently represents four Guantánamo detainees, but none of the detainees is a petitioner in these consolidated appeals. ii
B. Rulings Under Review References to the rulings at issue appear in the Opening Briefs of the Government in Al-Odah v. United States and of the Petitioners in Boumediene v. Bush. C. Related Cases The Opening Briefs of the Government in Al-Odah v. United States and of the Petitioners in Boumediene v. Bush indicate which of the cases on review were previously before this Court and identify the names and numbers of related cases pending in this Court or in the District Court. iii
TABLE OF CONTENTS Certificate as to Parties, Rulings, and Related Cases .........................i A. Parties and Amici ....................................................i B. Rulings Under Review............................................... iii C. Related Cases...................................................... iii Table of Authorities .........................................................vi Glossary................................................................... viii Interest of Amici Curiae.......................................................1 Summary of Argument ...........................................................1 Argument.......................................................................4 Adopting The Government's Interpretation Of The MCA/DTA Would Unconstitutionally Force This Court To Condone The Use Of Evidence Secured By Torture. ..................................................4 A. The CSRTs Failed to Consider Whether Evidence Relied Upon Was Obtained By Torture..........................................4 1. CSRTs referred torture allegations for investigation but did not wait for the investigation results..............6 2. Many CSRTs did not address evidence of torture. ............9 3. A few CSRTs cross-examined detainees to distance U.S. forces from the alleged torture. .....................11 B. The Fifth Amendment and the Common Law Prohibit Detention Based on Evidence Procured by Torture. ....................15 1. The Due Process Clause.....................................15 2. The Common Law.............................................16 iv
C. The Government's Reading of the MCA/DTA Would Allow Indefinite Imprisonment Based On Evidence Secured By Torture, in Violation of the Constitution and the Common Law. ................18 Conclusion ...................................................................20 v
TABLE OF AUTHORITIES Cases A(FC) v. Secretary of State for the Home Department,  UKHL 71 (H.K. Dec. 8, 2005) ......................................17 *Brown v. Mississippi, 297 U.S. 278 (1936) ...................................16 Chambers v. Florida, 309 U.S. 227 (1940) .....................................18 Chavez v. Martinez, 538 U.S. 760 (2003).......................................15 County of Sacramento v. Lewis, 523 U.S. 833 (1998)............................15 Felker v. Turpin, 518 U.S. 651 (1996).........................................16 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (U.S. 2006) ...............................2 In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) ............6 *INS v. St. Cyr, 533 U.S. 289 (2001)..........................................16 *Jackson v. Denno, 378 U.S. 368 (1964) .......................................15 *Miller v. Fenton, 474 U.S. 104 (1985)....................................15, 16 Palko v. Connecticut, 302 U.S. 319 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1979) .............................15 Rasul v. Bush, 542 U.S. 466 (2004).............................................1 Rochin v. California, 342 U.S. 165 (1951).................................15, 16 *Swain v. Pressley, 430 U.S. 372 (1977).......................................18 * Authorities upon which we chiefly rely are marked with asterisks vi
Statutes Pub. L. No. 109-148, 119 Stat. 2739 (2005).....................................2 Pub. L. No. 109-366, 120 Stat. 2600 (2006).....................................2 U.S. Const. Art. I, § 9, cl. 2................................................18 Other Authorities 4 William Blackstone, Commentaries on the Laws of England (1st ed. 1803) .........................................................17 Edward Coke, The Third Part of the Institutes of the Laws of England (W. Clarke & Sons 1817) .................................................17 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1836) ........................15, 18 Lawrence Herman, The Unexpected Relationship Between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I), 53 Ohio St. L.J. 101 (1992)....................18 David Hope, Torture, 53 Int'l & Comp. L. Q. 807 (2004)....................17, 18 Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. Pa. J. Const. L. 278 (2003) ..........................................................18 John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancient Regime (1977) ...........................................17 Joseph Margulies, Guantánamo and the Abuse of Presidential Power 182 (New York 2006) ..............................................................7 Leonard A. Parry, The History of Torture in England 1 (1933) .................16 Proceedings Against John Felton, 3 Howell's St. Tr. 367 (1628) ...........17, 18 vii
GLOSSARY Term Definition CSRT Combatant Status Review Tribunal DTA Detainee Treatment Act, Pub. L. No. 109- 148, 119 Stat. 2739 (2005) MCA Military Commissions Act, Pub. L. No. 109- 366, 120 Stat. 2600 (2006) viii
INTEREST OF AMICI CURIAE The issue presented by these consolidated cases challenges the integrity of our judicial system: may this Court sanction life-long detention in the face of credible allegations that the evidence upon which the detention is based was secured by torture? As former federal judges, we believe that compelling this Court to sanction Executive detentions based on evidence that has been condemned in the American legal system since our Nation's founding erodes the vital role of the judiciary in safeguarding the Rule of Law. Therefore, pursuant to Federal Rule of Appellate Procedure 29 and this Circuit's Rule 29, amici respectfully submit this brief in support of Petitioners Al Odah, et al. and Boumediene, et al. Amici curiae include the following former federal judges, as further identified in the Parties and Amici section of this brief: The Honorable Shirley M. Hufstedler, the Honorable Nathaniel R. Jones, the Honorable George N. Leighton, the Honorable Timothy K. Lewis, the Honorable Frank J. McGarr, the Honorable Abner J. Mikva, and the Honorable Patricia M. Wald. SUMMARY OF ARGUMENT After the Supreme Court found in Rasul v. Bush, 542 U.S. 466 (2004), that detainees at the Guantánamo Bay Naval Base in Cuba were entitled to challenge their detentions in federal court, the United States Defense Department announced 1
that each prisoner would appear before a "Combatant Status Review Tribunal." At the same time, the Defense Department also stated that every prisoner at the base had been determined "through multiple levels of review" to be an "enemy combatant." ^1 The stated purpose of the CSRT was to decide whether this determination would be upheld. ^2 Between August 2004 and January 2005, the military conducted 558 CSRT hearings, finding all but 38 prisoners to be enemy combatants. ^3 On December 30, 2005, the President signed the Detainee Treatment Act. Pub. L. No. 109-148, 119 Stat. 2739 (2005). The DTA purported to replace plenary district court review over the prisoners' habeas petitions with the CSRT and limited review in this Court. On June 29, 2006, the Supreme Court held that the DTA did not apply to pending habeas cases which, like these consolidated cases, "challeng[ed] the very legitimacy" of the CSRTs. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2769 (2006). On October 17, 2006, the President signed the Military Commissions Act. Pub. L. No. 109-366, 120 Stat. 2600 (2006). 1 Memo. of Deputy Sec'y of Def. to Sec. of Navy, Order Establishing Combatant Status Review Tribunal 1 (July 7, 2004) (A442). Amici respectfully submit with this brief an Addendum of cited materials marked A1 to A445. 2 Id.; Memo. of Deputy Sec'y of Def., Implementation of Combatant Status Review Tribunal Procedures (July 29, 2004) (A382) (hereinafter "CSRT Procedures"). 3 Dep't of Def., Combatant Status Review Tribunal Summary, available at http://www.defenselink.mil/news/Mar2005/d20050329csrt.pdf. 2
In their briefs, the Petitioners discuss the various statutory and constitutional infirmities of the MCA. Amici direct this brief at one specific and fundamental flaw. ^4 With the CSRT, the Government created a tribunal that was permitted to accept evidence secured by torture and presume that evidence was genuine and accurate. Furthermore, the limited review in this Court provided by the MCA/DTA cannot remove the stain of torture because the Court at least according to the Government cannot alter or expand the record created by the military. One of the most hallowed judicial roles in our constitutional democracy is to ensure that no person is imprisoned unlawfully. The statutory scheme created by the MCA/DTA inhibits the Judiciary's ability to ensure that Executive detentions are not grounded on torture or cruel, inhuman, or degrading treatment. Because no habeas court would permit detentions based on evidence obtained in this manner, the MCA/DTA scheme is not an adequate substitute for habeas review and is therefore unconstitutional. 4 Amici take no position on other constitutional deficiencies in the MCA. 3
ARGUMENT ADOPTING THE GOVERNMENT'S INTERPRETATION OF THE MCA/DTA WOULD UNCONSTITUTIONALLY FORCE THIS COURT TO CONDONE THE USE OF EVIDENCE SECURED BY TORTURE. A. The CSRTs Failed to Consider Whether Evidence Relied Upon Was Obtained By Torture. Two of the rules governing the CSRT procedures are particularly relevant to our purpose: First, the CSRT could rely on any information it deemed "relevant and helpful to a resolution of the issues before it," and second, the CSRT was obligated to accept the Government's evidence against the prisoner as presumptively "genuine and accurate." ^5 Applying these rules, the CSRTs were allowed to and apparently did conclude that prisoners' incriminating statements were both "relevant and helpful" to the decision, and presumptively correct. Yet, case after case for which transcripts of the CSRT hearings are publicly available, ^6 prisoners told the CSRT panels that their so-called confessions were false and had been wrung from them through torture. ^7 Often they assured the 5 CSRT Procedures, Encl. 1 ¶¶ G(7) and G(11) (A390) ("There is a rebuttable presumption that the Government Evidence . . . to support a determination that the detainee is an enemy combatant, is genuine and accurate."). 6 See Dep't of Def., Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) Documents, available at http://www.dod.mil /pubs/foi/detainees/csrt/index.html (last visited Oct. 29, 2006). 7 Because the prisoners did not have access to counsel and many did not attend their CSRT hearing, the CSRT record likely underreports the extent to which evidence obtained by torture formed the basis of enemy combatant determinations. 4
CSRT their account could be confirmed by review of medical records or other reports. But the Executive has maintained that investigating allegations of torture was not "the CSRT's role," and that it was permissible for the Tribunal to rely on evidence "obtained through a non-traditional means, even torture" to determine that a prisoner was an enemy combatant. ^8 Amici take no position on the veracity of the prisoners' accounts, ^9 nor do we attempt here to distinguish between torture and other illegal forms of coercion. But we do firmly contend that Article III courts have a duty to inquire whether, in fact, evidence has been gained by torture or 8 Transcript of Oral Argument at 83-87, Boumediene v. Bush, et al., Civ. No. 04- 1166 (RJL) (D.D.C. Dec. 2, 2004) (A377-81). The DTA required the Department of Defense to revise its procedures so that future CSRTs would, "to the extent practicable, assess whether any statement derived from or relating to such detainee was obtained as a result of coercion; and the probative value (if any) of any such statement." DTA § 1005(b). The prisoners with cases currently pending in federal court, however, were found to be "enemy combatants" under the prior rules. Moreover, the MCA/DTA does not require the prior CSRT determinations to meet the new standard, and the MCA explicitly states that the determination of enemy combatant status under the prior rules is final, at least for the purpose of eligibility for trial by a Military Commission. MCA § 948a(1). 9 We note, however, that investigations by the military, international bodies, and human rights organizations revealed that abusive interrogations did occur. See, e.g., Dep't of Def., Army Regulation 15-6: Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade 63 (Aug. 2004) ("Abu Ghraib Report"), available at http://www.defenselink.mil/news/ Aug2004/ d20040825fay.pdf; United Nations, Conclusions and Recommendations of the Committee against Torture: United States of America ¶¶ 24, 26, 30 (July 25, 2006); Human Rights First, Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan (Feb. 2006). 5
other cruel, inhuman, or degrading treatment, and to reject that evidence if so obtained. In the CSRT process, however, that inquiry did not take place. **** The publicly available record indicates the CSRT panels did little to evaluate the probity of allegedly coerced evidence, even when evidence such as medical records was readily available. Some CSRTs found the torture allegations credible enough to warrant investigation by other military authorities, but the panels nevertheless found the detainees to be enemy combatants without awaiting the outcome of the investigation. Although the Government might have adduced other, non-coerced evidence in individual cases, the CSRT neither examined allegations of torture before the individual was adjudicated an enemy combatant nor did it exclude such evidence from its consideration. 1. CSRTs referred torture allegations for investigation but did not wait for the investigation results. Many cases involved reports of false confessions coerced by interrogators in countries where the State Department has long condemned the use of torture by state security agents. ^10 For instance, the District Court recounted the torture endured by Mamdouh Habib, who was rendered by the United States to Egypt, 10 See, e.g., Dep't of State, Country Reports on Human Rights Practices 2005 Egypt (Mar. 8, 2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/ 61687.htm. 6
where he alleges he was subjected to horrific abuse. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 473 (D.D.C. 2005). The United States has never denied the truth of Habib's allegations. All the Government's claims against Habib were based on "confessions" he gave to interrogators in Egypt. ^11 (See September 9, 2004 Memo at 1-2, A20-21.) Habib's Personal Representative reported to the CSRT that his "confessions" were made "under duress" in an attempt to "tell interrogators what they wanted to hear because he was in fear." (Unclassified Summary at 1, 3, A12, A14.) Yet, the CSRT simultaneously (a) determined that the torture allegations were credible enough to warrant an investigation, and (b) found Habib to be an enemy combatant. (Id. at 3, A14.) Habib's case is not unusual. Several prisoners told the CSRT they had been tortured by Pakistani security forces. ^12 For example, Abd Al Nasir Khantumani and his son, Muhammad Khantumani, were arrested in Pakistan. The Pakistanis 11 Joseph Margulies, Guantánamo and the Abuse of Presidential Power 182 (New York 2006). 12 These allegations are consistent with the State Department's findings that Pakistan tortures prisoners. See Dep't of State, Country Reports on Human Rights Practices - 2005 Pakistan (Mar. 8, 2006), available at http://www.state.gov/g/ drl/rls/hrrpt/2005/61710.htm. Ironically, the 2005 report also criticizes an anti- terrorism law under which "coerced confessions are admissible in special courts." Id. The State Department made similar allegations in its 2004, 2003, 2002, and 2001 reports. See, e.g., Dep't of State, Country Reports on Human Rights Practices - 2004 Pakistan (Feb. 28, 2005), available at http://www.state.gov/g/ drl/rls/hrrpt/2004/41743.htm. 7
wanted them to admit they had been on a particular bus: "the Pakistanis tortured us to a point that we admitted we were on the bus." (Transcript at 4, A85.) "We tried to say no, no, no," his son, Muhammad, testified at his father's Tribunal, "but they just keep torturing us. Then they broke my nose and I said I was on the bus." (Id. at 7, A88.) "If you look at my nose," he said, "you can see it is broken." (Id.) The CSRTs passed the Khantumanis' allegations of torture up the chain of command, but found them both to be enemy combatants before any investigation was conducted. (Unclassified Summary at 3, A81, 118; Report at 1, A78, 115.) The CSRT took the same action in the case of Abdul Aziz Al Khaldi, who told the CSRT he had been captured by the Afghani police. "They were threatening me and torturing me," he said. (Transcript at 9, A161.) "If I didn't say that I was from al Qaeda or Taliban I was tortured." (Id.) The Afghanis transferred him to Kandahar, where the beatings continued. (Id.) "The guy was speaking English saying, al Qaeda? Taliban? . . . Evidence of the torture is that they broke my tooth, which was fixed here [in Cuba]." (Id.) Al Khaldi's allegations of torture were referred for investigation (Unclassified Summary at 2, A168), but the CSRT found Al Khaldi to be an enemy combatant on the day of his CSRT hearing (Report at 1, A167). 8
2. Many CSRTs did not address evidence of torture. A number of CSRTs simply ignored testimony that the detainee's prior statements to interrogators were the result of torture. Bisher al Rawi, for example, reported to the CSRT that he confessed "only after I was subjected to sleep deprivation and various threats were made against me" at Bagram, Afghanistan. ^13 (Transcript at 24, A216.) Al Rawi, a British resident, was arrested during a business trip to Gambia and taken to Afghanistan. (Id.) The CSRT discussed other aspects of al Rawi's testimony, but did not address al Rawi's testimony that his confession to interrogators had been coerced. (Unclassified Summary at 3-4, A190-91.) Similarly, Fahd Al Sharif was arrested while visiting Pakistani villages with a group of missionaries. (Transcript at 5, A314.) He told the CSRT that he confessed to interrogators at Kandahar because they beat him so severely that his wrist was broken and his eardrum punctured. (Id. at 2, A311.) According to the publicly available record, the CSRT did not retrieve Sharif's medical records. 13 Prisoners held in Afghanistan reported being subjected to prolonged isolation, sleep deprivation, environmental manipulation, hooding, and so-called "stress and duress positions" all techniques the U.S. has admitted using. See, e.g., Don Van Natta, Jr. and Ray Bonner, Questioning Terror Suspects in a Dark and Surreal World, N.Y. Times at A1 (Mar. 9, 2003); Tim Golden, In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths, N.Y. Times at A1 (May 20, 2005); Abu Ghraib Report 63; Human Rights Watch, Enduring Freedom: Abuses by U.S. Forces in Afghanistan at 37-40 (Mar. 2004), available at http://hrw.org/reports/ 2004/afghanistan0304. 9
Similarly, the public record indicates no investigation of Mohammed Souleimani Laalami's testimony that he confessed to training at the al-Farouq training camp only to end the beatings by his captors. "I did say these things," he told the panel, "but I said them when I was captured and being beaten and threatened with death. . . . I told the Red Cross in Kandahar, I and others were being beaten and admitted to things that were not true. . . . I was beaten until I said they were true." (Transcript at 1, A322.) These accounts are not unique. When the CSRT accused Mohammed Haidel of receiving artillery training in Afghanistan, for instance, Haidel explained that an interrogator in Kandahar "hit my arm and told me I received training in mortars." (Transcript at 1, A325.) When Haidel denied the allegation, the beating intensified. "As he was hitting me, I kept telling him, no I didn't receive training." (Id.) Throughout this interrogation, Haidel was kneeling on the ground with his hands lashed behind his back. (Id.) He began to bleed from his head. "I was crying and finally I told him I did receive the training. . . . I was in a lot of pain, so I said I had the training." (Id.) "At that point," Haidel said, "if he had asked me if I was Usama Bin Ladin, I would have said yes." (Id.) Samuer Abdenour explained to the CSRT that in Kandahar he had admitted to advance knowledge of the 9/11 attacks because interrogators refused to tend his wounded leg: "They just wanted anything. Any information. I just told them 10
anything; whatever they wanted to hear because I wanted them to treat my leg. I saw other people whose legs had to be cut off [as a result of injuries]. I did not want my leg to be cut off." (Transcript at 4, A331.) The CSRT found Abdenour to be an enemy combatant. ^14 The publicly available record does not indicate that the CSRT sought to review any potentially relevant medical or other records. 3. A few CSRTs cross-examined detainees to distance U.S. forces from the alleged torture. On occasion, CSRTs probed the torture allegations, but to demonstrate that U.S. forces did not participate in the torture, not to determine whether the "confession" was reliable or the product of coercion. For example, Abdul Rahim Ginco told the CSRT that he had been tortured by both the Taliban and forces allied with Americans. (Transcript at 11, 13, A352, A354.) The Taliban had accused Ginco of being an American spy, and imprisoned him from May 2000 until January 2002. (Id. at 3, 6-7, A344, A347-48.) Upon release from the Taliban prison, Ginco and a friend told an Australian reporter that they "wanted to be witnesses against al Qaida and Taliban . . . to the Americans." (Id. at 6, 8, A347, A349.) Two days later, U.S. forces arrested Ginco and held him in Kandahar. (Id.) Ginco told the CSRT the interrogators at Kandahar "kept pushing me, they 14 See Annual Review Board Transcript for Detainee ISN #659 at 1, available at http://www.dod.mil/pubs/foi/detainees/csrt/ARB_Transcript_Set_8_20751-21016. pdf. (indicating enemy combatant status). 11
beat and tortured me. . . . Military intelligence, they told me to say I'm al Qaida, so, I told them, ok, I'm al Qaida." (Id. at 13, A354.) In finding Ginco to be an enemy combatant, the CSRT apparently relied not only on Ginco's coerced confessions to U.S. interrogators, but also a false videotaped confession that Ginco made after weeks of torture by the Taliban and high-level Al Qaeda members. (Id. at 3, 10-11, A344, A351-52.) The CSRT had asked Ginco only about torture by the Taliban: "So it was the Taliban prison people who forced you to do this [videotape]?" (Id. at 11, A352.) ^15 **** In each of these cases, the prisoner reported to the CSRT that he had "confessed" only to stop the torture. But because the CSRTs relied on secret evidence, it is impossible to know how many times a CSRT found a prisoner to be an enemy combatant based on a false accusation by one prisoner who was tortured to incriminate another. For instance, the Department of Defense has reported that interrogation of Guantánamo detainee Mohammed al Qahtani produced "detailed information about 30 of Osama Bin Laden's bodyguards who are also held at 15 See also Transcript of Obaidullah at 5, A360 (CSRT asked detainee whether he had "told a consistent story since" arriving in Cuba, but did not inquire into alleged torture in Afghanistan leading to false confession). 12
Guantanamo." ^16 According to the publicly released portion of his Department of Defense interrogation log, ^17 al Qahtani was interrogated at Guantánamo for about 20 hours per day for seven weeks, during which period he was kept in isolation, intimidated with military dogs, sexually humiliated, and subjected to sleep and sensory deprivation. ^18 Under standard CSRT procedures, the 30 men whom al Qahtani implicated would never be told who had accused them of being Osama Bin Laden's bodyguards or under what circumstances, and al Qahtani's coerced accusations would be presumed accurate. This Court cannot know how many other prisoners remain at Guantánamo based on accusations produced by similar interrogation techniques. ^19 16 Dep't of Def., News Release (June 12, 2005), available at http://www. defenselink.mil/releases/2005/nr20050612-3661.html. 17 Dep't of Def., Interrogation Log, Detainee 063 (Nov. 23, 2002 to Jan. 11, 2003), available at www.time.com/time/2006/log/log.pdf. 18 Id. at 27 (At one point al Qahtani's heart rate slowed to 35 beats per minute). 19 See, e.g., FBI email from (name redacted) to (name redacted) (Aug. 2, 2004), available at http://www.aclu.org/torturefoia/released/FBI.121504.5053.pdf (describing detainees chained to floor for 18-24 hours, subjected to extreme temperatures, sleep deprivation, and threatened with dogs); FBI email from (name redacted) to Gary Bald, Frankie Battle, and Arthur Cummings (Dec. 5, 2003), available at http://www.aclu.org/torturefoia/released/FBI. 121504.3977.pdf; Dep't of Def., Army Regulation 15-6: Investigation Into FBI Allegations of Detainee Abuse at Guantánamo Bay, Cuba, Detention Facility, Executive Summary (June 9 2005), available at http://www.defenselink.mil/news/Jul2005/d20050714 report.pdf; Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantánamo, N.Y. 13
Furthermore, even when prisoners suspected that the allegations against them came from another detainee's torture, it was impossible for them to prove it. For example, Ibrahim Zeidan told his CSRT that he believed another person Anwar Abu Faris had made false statements about Zeidan receiving training in Afghanistan because Faris had been rendered to Jordan and tortured. ^20 (Transcript at 3, 6, A369, A372.) Amici are not aware of a single CSRT that permitted the prisoner to develop an evidentiary record regarding statements allegedly obtained by torture. Yet, according to the Government, the MCA/DTA does not allow this Court to consider facts outside the CSRT record bearing on the grounds for detention, even if those facts would show that the prisoner is detained based on a false confession obtained through torture. Amici cannot know if the torture allegations are true, but the reviewing court will likewise not be able to make that determination. TIMES (Nov. 30, 2004), available at http://www.nytimes.com/ 2004/11/30/politics/ 30gitmo.html?ex=1259470800&en=825f1aa04c65241f&ei =5088&partner=rssnyt. 20 The State Department has reported on confessions obtained by torture in Jordanian prisons. Dep't of State, Country Reports on Human Rights Practices 2005 Jordan (Mar. 8, 2006), available at http://www.state.gov/g/drl/rls/hrrpt/ 2005/61691.htm. 14
B. The Fifth Amendment and the Common Law Prohibit Detention Based on Evidence Procured by Torture. 1. The Due Process Clause "What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment." ^21 Patrick Henry's words expressed the Founding Fathers' deep abhorrence of torture, which they viewed as a tool of royal despotism. This abhorrence is embedded in our Constitution. The Supreme Court has consistently held that the Due Process Clause of the Fifth Amendment prohibits the government from depriving a person of his liberty based on statements obtained by torture. See, e.g., Miller v. Fenton, 474 U.S. 104, 109 (1985); Rochin v. California, 342 U.S. 165, 173-74 (1951). Indeed, the most fundamental purpose of the Due Process Clause is to "give protection against torture, physical or mental" to all persons subject to government power. Palko v. Connecticut, 302 U.S. 319, 326 (1937), overruled on other grounds by, Benton v. Maryland, 395 U.S. 784 (1979); see also Chavez v. Martinez, 538 U.S. 760, 774 (2003) (plurality); County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Not only is evidence derived from torture inherently unreliable, ^22 but allowing detentions based on such evidence corrupts the judicial process. An 21 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447 (1836). 22 See, e.g., Jackson v. Denno, 378 U.S. 368, 385-86 (1964). 15
unwavering stand against the use of this evidence is therefore essential. For that reason, federal courts have long held that "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned . . . ." Miller, 474 U.S. at 109. Beatings and other forms of physical and psychological torture are interrogation methods that are "revolting to the sense of justice." Brown v. Mississippi, 297 U.S. 278, 286 (1936). Coerced confessions "offend the community's sense of fair play and decency. . . . [T]o sanction [such] brutal conduct . . . would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society." Rochin, 342 U.S. at 173-74. 2. The Common Law The common law similarly condemns torture and the use of its fruits. At a minimum, the Suspension Clause protects habeas as it existed at common law. See, e.g., INS v. St. Cyr, 533 U.S. 289, 301 (2001) (citing Felker v. Turpin, 518 U.S. 651, 663-64 (1996) and stating "at the absolute minimum, the Suspension Clause protects the writ `as it existed in 1789'"). "It has always been the boast of Englishmen that torture was forbidden by the Common Law of the land." ^23 23 Leonard A. Parry, The History of Torture in England 1 (1933). 16
Blackstone, for instance, derided the rack as "an engine of state, not of law." ^24 Coke was likewise unequivocal in condemning torture, declaring without reservation that "there is no law to warrant tortures" in England. ^25 By the time the common law was developed in the colonies, and long before the Constitution was adopted, torture was a discarded relic of a repudiated past. See A(FC) v. Secretary of State for the Home Department,  UKHL 71 (H.K. Dec. 8, 2005) ¶¶10-17 (holding common law forbids reliance on evidence gained via torture even where detaining power didn't conduct the torture). In 1628, King Charles asked the common law judges whether John Felton, assassin of the Duke of Buckingham, "might not be racked" to make him identify his accomplices and "whether there were any law against it." ^26 The judges answered unanimously that the common law would not tolerate a prisoner's detention or prosecution based on 24 4 William Blackstone, Commentaries on the Laws of England at 320-21 (1st ed. 1803). 25 Edward Coke, The Third Part of the Institutes of the Laws of England 35 (W. Clarke & Sons 1817) (1644); see also David Hope, Torture, 53 Int'l & Comp. L.Q. 807, 811 (2004) ("the use of torture was not permitted in any of the common law courts in England as part of the ordinary course of the administration of justice."). 26 Proceedings Against John Felton, 3 Howell's St. Tr. 367, 371 (1628); John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancient Regime 134 (1977). 17
evidence secured by torture. ^27 As noted above, the framers of the Constitution shared the English common law's abhorrence for evidence obtained by torture. ^28 C. The Government's Reading of the MCA/DTA Would Allow Indefinite Imprisonment Based On Evidence Secured By Torture, in Violation of the Constitution and the Common Law. No habeas court would ever rely on evidence obtained by torture, whether its review were grounded in the common law or the Fifth Amendment. Instead, when presented with allegations that evidence had been so obtained, a habeas court would ensure a searching inquiry. We do not understand Congress to have suspended the writ. See U.S. Const. art. I, § 9, cl. 2 (limiting Congress's power to suspend the writ to cases of invasion or rebellion). Absent a suspension, therefore, the constitutional question is simply whether allegations of torture under the MCA and DTA are handled in a fashion equivalent to that under the common law or the Constitution. See, e.g., Swain v. Pressley, 430 U.S. 372, 384 (1977) (absent suspension, Congress cannot divest federal courts of habeas jurisdiction without providing an adequate and effective substitute "commensurate" with the scope of 27 Lawrence Herman, The Unexpected Relationship between the Privilege Against Compulsory Self-Incrimination and the Involuntary Confession Rule (Part I), 53 Ohio St. L.J. 101, 134 (1992) (citing Proceedings Against John Felton, 3 Howell's St. Tr. 367, 371 (1628)); see also Hope, supra, at 812; Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. Pa. J. Const. L. 278, 311 n.17 (2003). 28 See, e.g., Chambers v. Florida, 309 U.S. 227, 236-37 (1940); 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447 (1836). 18
habeas). Regrettably, the CSRTs did not subject allegations of torture and other abuse to the same searching inquiry as would a habeas court. The MCA, therefore, is unconstitutional, at least in its treatment of such allegations. Section 7 of the MCA purports to strip the federal courts of jurisdiction to hear habeas corpus claims by aliens whom the Executive has designated enemy combatants and to relegate such persons to the limited judicial review the DTA specifies. Under the DTA, the Court is limited to considering whether the CSRT followed its own "standards and procedures" in determining enemy combatant status and, "to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures . . . is consistent with the Constitution and the laws of the United States." DTA § 1005(e)(2)(C). The Executive Branch interprets the first clause to prevent this Court from considering any evidence not presented to and considered by the CSRT. According to the Government, "the DTA does not authorize the submission of new evidence to this Court relating to the detainee's status as an enemy combatant." ^29 Moreover, the Government claims the Tribunal's evidentiary record "is entitled to 29 Resp'ts' Resp. in Opp'n to Mot. to Compel at 19, Bismullah v. Rumsfeld, No. 06-1197 (D.C. Cir., Aug. 21, 2006). 19
the strongest sort of presumption of regularity." ^30 The Government would apparently relegate this Court to undertaking the most cursory review into whether the CSRT followed its own rules, beginning with a presumption that it did. If the Court adopted this interpretation, it like the CSRT would be forced to accept evidence obtained under torture, a result abhorrent to this Nation's judicial and legal principles. The Government maintains that the second clause has no effect because the Constitution and laws of the United States do not apply to this Court's review of CSRT determinations. If this were correct, then MCA/DTA effectively would bar this Court from examining whether evidence presented to the CSRT had been obtained by torture or other illegal coercion, and if so, whether there remained a sufficient basis in law or fact to justify detention. Accordingly, the Government's interpretation would mean that the MCA/DTA fails to provide an adequate or effective substitute for habeas in violation of the Suspension Clause. CONCLUSION The Executive's interpretation of the MCA/DTA threatens to force the federal judiciary to sanction indefinite detention based on evidence secured by torture. This prospect raises grave constitutional concerns and jeopardizes the 30 Id.; see also id. at 14 ("In sum, the DTA does not provide for evaluating evidence outside of the record reviewing [sic] a CSRT's factual conclusion of evidentiary sufficiency."). 20
integrity of the Judiciary. This Court should not be made to accept evidence wrung from the prisoner by the simple expedient of brute force. Dated: November 1, 2006 Respectfully submitted, By: ______________________________ Patricia A. Bronte Agnieszka M. Fryszman Douglas A. Sondgeroth COHEN, MILSTEIN, HAUSFELD JENNER & BLOCK LLP & TOLL, PLLC 330 N. Wabash Avenue 1100 New York Avenue, N.W. Chicago, IL 60611 Washington, DC 20005 312 222-9350 202 408-4600 Counsel for Amici Curiae 21
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 29(c)(5) and 32(a)(7)(C), and Circuit Rule 32(a)(7)C), that the foregoing Brief of Amici Curiae Retired Federal Jurists complies with the type-volume limitations set forth in Circuit Rule 32(a)(7)(B) and the Court's Order of October, 18, 2006. This brief is in 14-point, proportionally spaced Times-New Roman Type, and the number of words in this brief, according to the word-processing system utilized in preparing it, is 4,881. Dated: November 1, 2006 Certified by: __________________________ Agnieszka M. Fryszman Counsel for Amici Curiae
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2006, two copies of the foregoing Brief of Amici Curiae Retired Federal Jurists were hand-delivered and were also sent by e-mail transmission, to the following counsel: Robert M. Loeb Thomas B. Wilner Douglas N. Letter Neil H. Koslowe S. Department of Justice Shearman & Sterling Civil Division, Appellate 801 Pennsylvania Avenue, NW 950 Pennsylvania Ave., N.W. Suite 900 Washington, DC 20530-0001 Washington, DC 20004-2634 Robert.Loeb@usdoj.gov firstname.lastname@example.org email@example.com In addition, two copies of the foregoing were sent by overnight mail and e-mail transmission to the counsel listed below: Stephen H. Oleskey Robert C. Kirsch Melissa A. Hoffer Mark Fleming Wilmer Cutler Pickering Hale & Dorr 60 State Street Boston, MA 02109 Melissa.Hoffer@wilmerhale.com Mark.Fleming@wilmerhale.com Douglas F. Curtis Wilmer Cutler Pickering Hale & Dorr LLP 339 Park Avenue New York, NY 10022 Douglas.Curtis@wilmerhale.com _____________________________ Linda Aono
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