National Security Amicus Briefs

NACDL National Security Amicus Curiae Briefs

NACDL strives to promote the fair and proper administration of justice and ensure due process for even the least among us who may be accused of wrongdoing. To this end, NACDL has filed numerous amicus curiae briefs in the United States Supreme Court and Courts of Appeal seeking to preserve due process and proper treatment for individuals suspected of engaging in terrorism or other national security offenses. NACDL has been particularly active in advocating the right of Guantánamo Bay detainees to challenge the lawfulness of their detention through writs of habeas corpus.

Jewel v. National Security Agency, 9th Circuit Court of Appeals; Case No. 15-16133. On appeal from the U.S. District Court for the Northern District of California, Case No. 4:08-cv-04373-JSW. The government's mass interception and scanning of Americans' Internet communications is a search and seizure, triggering the Fourth Amendment's warrant requirement. The "special needs" exception to the warrants requirement cannot justify the government's surveillance program. Foreign Intelligence is not the "primary purpose" of the NSA's dragnet surveillance program. The impact of the intrusion from the NSA's Internet surveillance outweighs the government's need. The privacy interests harmed by upstream surveillance outweigh the government's interest in the program. Indiscriminately seizing and searching communications will include attorney-client communications and therefore impact individuals' Sixth Amendment rights. Benjamin B. Au, Tara J. Norris, and W. Henry Huttinger, Durie Tangri LLP, Los Angeles, CA; Catherine R. Gellis, Sausalito, CA; Michael Price, NACDL, Washington, DC; Gia L. Cincone, NACDL, San Francisco.

Clapper v. Amnesty International USA, U.S. Sup. Ct., No. 11-1025, case below 638 F.3d 118 (2d Cir. 2011), brief filed 9/25/12. Electronic Surveillance—Foreign Intelligence Surveillance Act (FISA)—Injunctions—Standing. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondents.  Background: Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)-referred to here as Section 1881a - allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Two of the plaintiff-respondents in this case are criminal defense lawyers for whom confidentiality is essential in their work. They are seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. Argument: In light of every attorney’s duty of confidentiality, the petitioners, both “United States persons,” are wrong to contend these plaintiff-respondents allege merely “speculative” and/or “self-inflicted injuries” from surveillance under the FISA Amendments Act (FAA), §1881a. FISA surveillance targets regions, persons and subjects heavily implicated by matters in which the respondents serve as defense counsel. They thus must choose between foregoing international communications about sensitive matters or incurring the expense and burden of traveling overseas for in-person communication. The court of appeals should be affirmed. Author: John D. Cline, San Francisco, CA and Joshua Dratel, New York, NY.

Simels v. United States, U.S. Sup. Ct., No. 11-947, decision below 654 F.3d 161 (2nd Cir. 2011), brief filed 2/28/12. Wiretapping—Suppression of Illegal Intercepts—Impeachment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III. Author: Joshua L. Dratel, Dratel & Mysliwiec, P.C., New York, NY.

United States v. Jones, U.S. Sup. Ct., No. 10-1259, case below United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), brief filed 10/3/11, argument 11/8/11. GPS Surveillance--Search and Seizure--Warrant Requirement--Associational Privacy. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, Brennan Center for Justice at New York University School of Law, First Amendment Lawyers Association, District of Columbia Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Argument: The decision of the D.C. Circuit Court of Appeals should be affirmed. Warrantless GPS surveillance imposes an unacceptable burden on First Amendment associational rights, as well as Fourth Amendment privacy rights. The warrant requirement is minimally burdensome, as illustrated by the facts of this case. There is nothing about the nature of motor vehicles that justifies a blanket exception to the warrant requirement, and the automobile exception manifestly does not apply to warrantless GPS tracking. Authors: Jeffrey T. Green, co-Chair of NACDL’s Amicus Curiae Committee and partner at Sidley Austin LLP in Washington, DC; Susan J. Walsh of Vladeck, Waldman, Elias & Engelhard in New York City; Professor Sarah O’Rourke Schrup of the Northwestern University Supreme Court Practicum in Chicago, Ill.; and Executive Director Norman L. Reimer and Deputy Director of Public Affairs & Communications Ivan J. Dominguez of NACDL in Washington, DC.

Ashcroft v. Al-Kidd, U.S. Sup. Ct., No. 10-98, decision below 580 F.3d 949 (9th Cir. 2009), brief filed 1/28/11, argument scheduled 3/2/2011. Material Witnesses—False Arrest—Remedies. Amicus curiae brief of Human Rights Watch and the National Association of Criminal Defense Lawyers. Argument: The material witness statute, 18 U.S.C. §3114 provides for the arrest and detention of witnesses only when absolutely necessary and for the limited purpose of securing their testimony when material to a criminal proceeding. The statute does not provide for the detention of persons suspected of criminal conduct – but against whom there is insufficient proof to meet the constitutional requirements for arresting or charging criminal suspects – in order to conduct further investigation. In this case, the Department of Justice misused the statue to arrest and detain the plaintiff, a native-born U.S. citizen. The plaintiff (and others) was arrested in the manner of a dangerous criminal suspect (except without Miranda warnings), subjected to coercive custodial interrogations about his own activities without counsel, detained for 15 nights in high-security prisons with convicted criminals, routinely shackled and strip-searched during his detention, and released subject to restrictive conditions. If the DOJ truly viewed the plaintiff as a witness, it could have subpoenaed him or deposed and released him, as provided by the statute. Authors: Joseph F. Tringali, Ryan A. Kane, Fadi Hanna, Greg Szewczyk, Simpson Thacher & Bartlett LLP, New York, NY. 

United States v. El-Mezain. et al. (Holy Land Foundation for Relief and Development), 5th Cir., No. 09-10560, brief filed 10/26/2010. Confrontation—Sixth Amendment—Anonymous Witnesses. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Two witnesses who testified at trial were allowed to keep their identities secret while offering crucial testimony on behalf of the government. One, a purported member of the Israeli Security Agency, was offered as an expert witness with supposed expertise on Palestinian zakat committees and their connections to Hamas. He was not just anonymous to the jury or the public, but unknown to the defendants and their attorneys. The defense was thus deprived of any opportunity to investigate and cross-examine him regarding his background, stated experience, reputation in his field of expertise, reputation for honesty, still unknown biases against defendants, or any other information that might cause the jury to view his testimony in a different light. Anonymous testimony violates the Sixth Amendment’s Confrontation Clause; at a minimum defense counsel must know the identity of testifying witnesses; in particular, research into an expert witness’s background can reveal damning biases and conflicts of interest which powerfully discredit the expert. Authors: Jean-Jacques Cabou and Joseph N. Roth, Osborn Maledon, PA, Phoenix, AZ and Barbara Bergman, Univ. of New Mexico School of Law/NACDL, Albuquerque, NM. 

Salahi v. Obama, D.C. Cir., No. 10-5087, brief filed 06/16/2010. Habeas Corpus – Admissibility of Statements Obtained by Coercion or Torture. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner – Appellee Mohamedou Ould Salahi urging affirmance of the district court’s decision granting habeas petitioner’s plea for release from Guantanamo Bay Naval Station, Cuba. Argument: Mr. Salahi, detained by the United States since November 2001 on suspicion of involvement in the failed “Millennium Plot” to bomb the Los Angeles International Airport, has been subjected to repeated torture and other mistreatment as part of a sustained program of highly coercive interrogation. His coerced statements, therefore, cannot provide a basis for detention as a matter of law because they are unreliable, as the district court correctly determined. Furthermore, because Mr. Salahi’s original statements were obtained through torture, his subsequent statements lie in the shadow of that torture and coercion, are equally unreliable, and therefore cannot be used to sustain his detention. Authors: David R. Berz, Weil Gotshal & Manges LLP, Washington, DC; Gregory Silbert, Jennifer H. Wu, Ritu Pancholy, Weil Gotshal & Manges LLP, New York, NY; and Michael W. Price, NACDL, Washington, DC. 

Kiyemba v. Obama (Uighur Case), U.S. Sup. Ct., No. 08-1234, opinion below Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009); brief filed 12/11/09. Habeas corpus—Separation of Powers. Amicus curiae brief of the Association of the Bar of the City of New York, the Brennan Center for Justice at New York University School of Law, the Constitution Project, People for the American Way Foundation, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioners. Question Presented: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, 553 U.S. __, 128 S. Ct. 2229 (2008), has no power to order the release of prisoners held by the Executive for seven years in the Guantánamo prison, where the Executive detention is indefinite and without authorization in law, and release in the continental United States is the only possible effective remedy. Argument: The court of appeals’ ruling undermines the “judicial Power” conferred by Article III of the Constitution and the role of an independent judiciary in our constitutional system of separated powers. Authors: Sidney S. Rosdeitcher, Association of the Bar of the City of New York; Alex Young K. Oh, Philip G. Barber, and David G. Clunie, Washington, DC; Elizabeth Goitein and Emily Berman, and Aziz Huq, Brennan Center for Justice; Sharon Bradford Franklin, Constitution Project; Margery F. Baker and Deborah Liu, People for the American Way Foundation; John W. Whitehead, Rutherford Institute; Malia N. Brink, National Association of Criminal Defense Lawyers. 

U.S. v. Diaz, U.S. Court of Appeals for the Armed Forces (C.A.A.F.), USCA Dkt. No. 09-0535/NA, Crim. App. No. 200700970; filed 10/29/09. Sixth Amendment Right to Present a Defense – Fifth Amendment Right to a Fair Trial – Mens Rea – Classified Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant Lt. Cmdr. Matthew M. Diaz. Argument: Lt. Cmdr. Diaz, a Navy JAG convicted of improper disclosure of classified information did not receive a fair trial because he was precluded from introducing any evidence of his “intent,” “state of mind,” “motive,” “ethical obligations” as an attorney, and “ethical obligations” as a commissioned officer in the Navy. Appellant was precluded from introducing evidence that the information (a list of detainees being held at Guantanamo Bay, Cuba) was not marked as classified; that he did not know or believe his actions to be illegal; and that his actions were in good faith and consistent with his duties and obligations a lawyer. Excluding this evidence violated his right to a fair trial and right to present a defense. Furthermore, the Military Judge failed to determine whether the “classified information in question was lawfully classified." Author: Donald G. Rehkopf, Jr., Brenna, Brenna & Boyce, PLLC, Rochester, NY. 

Al-Marri v. Spagone,U.S. Sup. Ct., No. 08-368, opinion below Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). Amicus curiae brief of the National Association of Criminal Defense Lawyers in Support of Petitioner, filed 1/28/09. Argument: The government’s purported authority to indefinitely detain a lawful U.S. resident as an “enemy combatant” violates the Sixth Amendment and disrupts the criminal justice system and the courts. The Constitution requires full Sixth Amendment due process for all U.S. residents, especially in cases involving high security detainees and serious threats to national security. Authors: Julia E. McEvoy, Christian G. Vergonis, and Katherine E. Stern, Jones Day. 

Kiyemba v. Bush (Uighur Case), D.C. Cir., Nos. 08-5424, 08-5425, 08-5426, 08-5427, 08-5428, 08-5429, opinion below In re Guantanamo Bay Detainee Litigation, 581 F. Supp. 2d 33 (D.D.C. 2008), brief filed 10/31/08. Habeas corpus—Separation of Powers. Amicus curiae brief of the Brennan Center for Justice at New York University School of Law, the Constitution Project, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Does the Constitution’s Separation of Powers grant the District Court the power to remedy the indefinite detention of conceded non-enemy combatants who were forcibly taken into U.S. custody? Argument: The Executive’s asserted authority to indefinitely detain conceded non-enemy combatants is inconsistent with the Suspension Clause, Article III, and the Constitution’s framework of separated powers. Authors: Sharon Bradford Franklin, Constitution Project, Washington, DC; John W. Whitehead, Rutherford Institute, Charlottesville, VA; Malia N. Brink, National Association of Criminal Defense Lawyers, Washington, DC; Alex Young K. Oh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington DC; Aziz Huq, Brennan Center for Justice at New York University School of Law, New York, NY. 

United States v. Moussaoui, 4th Circuit, No. 06-4494, filed 2/22/08. Classified Information Procedures Act (CIPA)—Discovery—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argues that providing classified discovery to defense counsel with security clearance under a protective order that prohibits disclosure to the defendant effectively denies the defendant the right to effective assistance of counsel and creates an ethical conflict of interest for the defense counsel; case involving classified evidence are proliferating and the legal principles and law enforcement techniques used in those cases are seeping into the prosecution of ordinary criminal cases. Author: Joshua Dratel, New York, NY. 

Boumediene v. Bush, U.S. Sup. Ct., Nos. 06-1195 & 06-1196. Habea corpus--Military Commission Act. Amicus curiae brief of the Coaltion of Non-Governmental Organizations, including the National Association of Criminal Defense Lawyers, arguing that the habeas-stripping provisions of the Military Commissions Act of 2006, Pub.L. No. 109-366, violates the Suspension Clause of the U.S. Constitution. Authors: Jonathan S. Franklin, et al., Fulbright & Jaworsky LLP, Washington, DC. 

Hamdan v. Rumsfeld (Hamdan II),U.S. Sup Ct, No. 05-184. NACDL Amicus Curiae brief before the Supreme Court of the United States arguing that (1) military commissions were first created during the Mexican-American War in areas of Mexico where there were no functioning civilian courts; (2) the President has no “inherent” presidential authority to create or convene the current military commissions, before which petitioner Salim Ahmed Hamdan is a defendant; and (3) per the Manual for Courts Martial (1917), “United States Courts may, on writ of habeas corpus, inquire into the legality of detention of a person held by military authority, at any time, either before or during trial or while serving sentence….” Excellent history of military authority over civilians in time of war and peace. Author: Donald G. Rehkopf, Jr., Brenna & Brenna, PLLC, Rochester, NY. 

Hamdan v. Rumsfeld (Hamdan I), D.C. Cir., No. 04-5393. NACDL Amicus Curiae brief in support of petitioner-appellee Salim Ahmed Hamdan. Military commissions created by Respondents are incompatible with the express or implied will of Congress. Constitutionally, there is no “inherent” Presidential authority to create these military commissions and challenge to their jurisdiction via habeas corpus has long been recognized in our military law. 

Hamdi v. Rumsfeld, U.S. Sup Ct, No. 03-6696. Experts on the Law of War Amicus Curiae brief before the Supreme Court of the United States in support of petitioners. 

Hamdi v. Rumsfeld, 4th Cir., No. 02-7338. NACDL Amicus Curiae brief in support of petitioner-appellee Yaser Esam Hamdi. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the Constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. 

Moussaoui v. United States, U.S. Sup Ct, No. 04-8385, NACDL Amicus Curiae brief in support of petitioner. Government's refusal to produce defense witnesses it US custody in capital case violates defendant's Sixth Amendment right to compulsory process. Author: Donald G. Rehkopf.

Padilla v. Hanft, U.S. Sup Ct, No. 05-533, filed 12/18/05. NACDL Amicus Curiae brief in support of Jose Padilla’s petition for a writ of certiorari. Author and Military Law Committee Co-Chair Donald Rehkopf argues that despite Padilla’s indictment in a federal court in Florida, his military detention claims are not moot and that certiorari should be granted in order to resolve the continuing constitutional issues, i.e., whether the president may lawfully detain a civilian U.S. citizen indefinitely in military custody and whether the term “enemy combatant” has legal significance. Author: Donald Rehkopf, Brenna & Brenna PLLC, Rochester, NY. 

In Re Appeal from July 19, 2002 Decision of the United States Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Ct. of Rev., No. 02-001; filed 9/19/2002. Fourth Amendment Search & Seizure – Probable Cause – Electronic Surveillance – Foreign Intelligence Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of a 2002 decision of the United States Foreign Intelligence Surveillance Court imposing certain “minimization requirements” on an order authorizing electronic surveillance of an “agent of a foreign power” who is a American citizen. Argument: The Fourth Amendment requires a warrant and probable cause to conduct electronic surveillance of an American citizen where the “primary” purpose of the surveillance is criminal investigation, even if the collection of foreign intelligence information is a “significant” secondary purpose. The USA PATRIOT Act in 2001 unconstitutionally amends the Foreign Intelligence Surveillance Act (FISA) to permit the Department of Justice (DOJ) to conduct warrantless electronic surveillance of an American citizen when foreign intelligence is a “significant purpose” rather than the “primary purpose.” FISA’s so-called “privacy protections” are “illusory” and do not “justify abandoning the Fourth Amendment warrant and probable cause requirements.” Authors: John D. Cline and Zachary A. Ives, Freedman, Boyd, Daniels, Hollander, Goldberg, & Cline P.A., Albuquerque, NM; Joshua Dratel, New York, NY.

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