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

[Declan McCullagh <declan () well com>]

[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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