[Politech] Justice Department's list of terrorism-related court cases

From: Declan McCullagh (declan@private)
Date: Mon Nov 17 2003 - 16:37:33 PST

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    [Converted from a MSWD document distributed by DOJ. I apologize for the 
    poor formatting, but tables really don't render well as text. --Declan]]
    
    
    
    Overview of Major Terrorism-Related Court Cases
    
    Case
    
    Government Position
    
    
    on Primary Issue
    
    Court Decision
    
    Current Status of Case
    
    U.S. v. Awadallah
    2nd Circuit
    A witness whose testimony is material to criminal proceedings, including 
    grand juries, may be detained when that detention is reasonable and 
    necessary.
    SUSTAINED
    “Awadallah’s detention as a material witness was a scrupulous and 
    constitutional use of the federal material witness statute. . . . [I]n the 
    wake of a mass atrocity and in the midst of an investigation that 
    galvanized the nation, Awadallah did not step forward to share information 
    he had about one or more of the hijackers, whose names and faces had been 
    widely publicized across the nation. . . . The question is whether his 
    failure to come forward, in combination with the other facts listed above, 
    establishes probable cause to believe that he had information material to 
    the grand jury and that it might become impracticable to secure his 
    presence by subpoena.  In the circumstances presented in this case ­ in 
    which the totality of the circumstances known to the court included the 
    terrorist attacks known to everyone else on the planet, and the implicit 
    threat of further attacks ­ we hold that it does.”
    Second Circuit ruled in the government’s favor on November 7, 2003.
    Hamdi
    v. Rumsfeld
    4th Circuit
    In a time of armed conflict, the President has the authority to detain 
    enemy combatants captured abroad in active zones of combat, regardless of 
    citizenship.
    SUSTAINED
    “Because it is undisputed that Hamdi was captured in a zone of active 
    combat in a foreign theater of conflict, we hold that the submitted 
    declaration is a sufficient basis upon which to conclude that the Commander 
    in Chief has constitutionally detained Hamdi pursuant to the war powers 
    entrusted to him by the United States Constitution. No further factual 
    inquiry is necessary or proper.”
    Fourth Circuit denied a petition for rehearing en banc.  Hamdi has 
    petitioned for review by the Supreme Court.
    
    Padilla
    v. Rumsfeld
    2nd Circuit
    In a time of armed conflict, the President has the power to detain enemy 
    combatants captured inside the United States, regardless of citizenship.
    SUSTAINED
    “The President . . . has both constitutional and statutory authority to 
    exercise the powers of Commander in Chief, including the power to detain 
    unlawful combatants, and it matters not that Padilla is a United States 
    citizen captured on United States soil. . . . The President’s determination 
    that an individual is an unlawful combatant receives deference and need 
    only be supported by ‘some evidence.’” (DCt)
    The Second Circuit heard oral argument on November 17, 2003.
    
    Coalition of Clergy
    v. Bush
    9th Circuit
    The group of clerics, lawyers, and academics lacks standing to seek 
    judicial relief for combatants held at Guantanamo Bay.
    
    SUSTAINED
    
    “Because the Coalition failed to demonstrate any relationship with any of 
    the detainees, it lacks next-friend or third-party standing.”
    The Coalition asked the Supreme Court to hear an appeal.  The court denied 
    cert.
    
    Al Odah
    v. United States
    D.C. Circuit
    The privilege of litigation in federal courts does not extend to alien 
    combatants in military custody outside the United States.
    SUSTAINED
    “If the Constitution does not entitle the detainees to due process, and it 
    does not, they cannot invoke the jurisdiction of our courts to test the 
    constitutionality or legality of restraints on their liberty.”
    D.C. Circuit denied a petition for rehearing en banc.  The Supreme Court 
    will hear the case.
    
    North Jersey Media Group
    v. Ashcroft
    3rd Circuit
    The government can close immigration hearings of aliens determined to be of 
    special interest to the 9/11 terrorism investigation.
    SUSTAINED
    “To the extent that the Attorney General’s national security concerns seem 
    credible, we will not lightly second-guess them. . . . Our judgment is 
    confined to the extremely narrow class of deportation cases that are 
    determined by the Attorney General to present significant national security 
    concerns.  In recognition of his experience (and our lack of experience) in 
    this field, we will defer to his judgment.”
    North Jersey Media asked the Supreme Court to hear an appeal. The Supreme 
    Court denied cert.
    
    Global Relief
    Foundation
    v. O’Neill changed to Global Relief Foundation v. Snow
    7th Circuit
    The President has authority to freeze assets of purported charitable 
    organizations that provide funds to terrorists.
    SUSTAINED
    “The legal interest in GRF’s property lies in the United States, … but the 
    focus must be on how assets could be controlled and used, not on bare legal 
    ownership. … The fact that GRF as a U.S. corporation owns all of its assets 
    does not mean that the assets are free of any foreign national’s interest. 
    … [The IEEPA] does not offer GRF a silver bullet that will terminate the 
    freeze without regard to the nature of its activities.”
    Seventh Circuit denied a petition for rehearing en banc.  The Supreme Court 
    denied cert.
    
    Holy Land Foundation v. Ashcroft
    D.C. Circuit
    The government properly designated Holy Land Foundation as a terrorist 
    organization.
    
    The President has authority to freeze assets of purported charitable 
    organizations that provide funds to terrorists.
    
    SUSTAINED
    
    “The law is established that there is no constitutional right to fund 
    terrorism.  The ample record evidence… establishing HLF’s role in the 
    funding of Hamas and of its terrorist activities is incontrovertible.”
    
    The Treasury Dept “did not exceed its authority when it blocked the assets 
    after the designation, because [Treasury] needed only to determine that 
    Hamas had an interest in HLF’s property, and the record provided 
    substantial evidence to support that conclusion.”
    D.C. Circuit denied a petition for rehearing en banc.
    
    ACLU v. County of Hudson
    N.J. Sup. Appellate Div.
    The federal government can prohibit local officials from disclosing 
    information about special interest detainees held in local detention 
    facilities on behalf of the federal government.
    SUSTAINED
    “There can be no question that the government of the United States has a 
    compelling interest in securing the safety of the nation’s citizens against 
    terrorist attack.”
    The New Jersey Supreme Court denied an appeal.
    
    In re Sealed Case
    Foreign Intel.
    Court of Review
    New intelligence sharing procedures which remove artificial barriers that 
    had hampered the ability of law enforcement and intelligence agents to 
    coordinate efforts to prevent terrorist attacks are a reasonable balance of 
    constitutional interests.
    SUSTAINED
    “Ultimately, the question becomes whether FISA, as amended by the Patriot 
    Act, is a reasonable response based on a balance of the legitimate need of 
    the government for foreign intelligence information to protect against 
    national security threats with the protected rights of citizens.  We … 
    believe firmly… that FISA as amended is constitutional because the 
    surveillances it authorizes are reasonable.”
    The Supreme Court declined to hear an appeal.
    
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