2020 UPDATE ANTI-TERRORISM ANDCRIMINAL ...

2020

UPDATE

TO

ANTI-TERRORISM

AND CRIMINAL

ENFORCEMENT

Fifth Edition

▪ ▪ ▪

By

Norman Abrams

Distinguished Professor of Law Emeritus

University of California, Los Angeles

AMERICAN CASEBOOK SERIES ®

PUBLISHING

PREFACE

This 2020 Update to the 5th edition of Anti-terrorism and Criminal En-

forcement covers relevant developments during the almost three years since

the 5th edition was published early in 2018. This 2020 Update incorporates

some of what appeared in the 2019 Update supplemented by important de-

velopments since that previous Update was issued.

These materials include cases, statutory materials, government docu-

ments, references to media and other sources and new text notes, all pre-

sented in aid of making the book and courses taught from it as up-to-date as

possible.

As always, comments from users and perusers of the book and this Up-

date are welcome.

December, 2020 Norman Abrams

iv CHAPTER 0. TERRORISM: INTRODUCTION TO THE CONCEPT

TABLE OF CONTENTS

Chapter 1—Overview: Transitions between Presidents ............................... 1

Chapter 2—Terrorism: Introduction to the Concept:

Enforcement Issues: Selected Terrorism Offenses ................................ 5

Chapter 3—The Material Support Offenses: 18 U.S.C. §

2339A, 2339B ............................................................................................. 9

Chapter 5—Electronic Surveillance ............................................................. 11

Chapter 6—Searches and Administrative Subpoenas ................................ 54

Chapter 7—Interrogation and Rendition .................................................... 55

Chapter 8—Material Witness and Immigration Detention ........................ 59

CHAPTER 10—DETENTION IN MILITARY CUSTODY ...................... 80

Chapter 10—Detention in Military Custody ............................................... 84

Chapter 11—Military Commissions and the Choice Between

Criminal Prosecution in the Federal Courts or Military

Commission Trials ................................................................................ 121

Chapter 12—Targeted Killing..................................................................... 147

CHAPTER 1

OVERVIEW: TRANSITIONS BETWEEN PRESIDENTS

Page 22. Add before the material titled, The Content of

Specific Chapters.

On October 4, 2018, President Trump issued a National Strategy for

Counterterrorism which is described in the following fact sheet issued by

the White House:

President Donald J. Trump is Protecting

the United States from Terrorism

NATIONAL SECURITY & DEFENSE

Issued on: October 4, 2018

“When it comes to terrorism, we will do whatever is necessary

to protect our Nation.”

President Donald J. Trump

THE PATH TO VICTORY: President Donald J. Trump is releas-

ing a new National Strategy for Counterterrorism that will protect

American citizens and interests at home and abroad.

• Today, President Trump is releasing his National Strategy for

Counterterrorism, the United States’ first robust and fully-articu-

lated strategy on counterterrorism since 2011.

• The Administration is outlining a new approach to counter and pre-

vent the evolving terrorist threat, making it clear that we will take

all steps necessary to keep our country safe.

• President Trump’s National Strategy for Counterterrorism focuses

on:

o Pursuing terrorists to their source;

o Isolating terrorists from their sources of support;

o Modernizing and integrating the United States’ counterterror-

ism tools;

o Protecting American infrastructure and enhancing resilience;

o Countering terrorist radicalization and recruitment; and

2 NORMAN ABRAMS ● Update to ANTI-TERRORISM AND CRIMINAL ENFORCEMENT, 5TH ED.

o Strengthening the counterterrorism abilities of our international

partners.

A NEW APPROACH: The new strategy builds on lessons learned

from past counterterrorism efforts and offers a new path toward

strengthening the security of Americans.

• The new strategy focuses the United States on countering all ter-

rorists with the intent and ability to harm our country.

• The strategy emphasizes the use of all of America’s tools to pre-

vent and counter terrorism, strengthening military approaches

while delivering a new emphasis on non-military capabilities.

o Many United States Government agencies have important roles

to play, including our law enforcement, diplomatic, and treas-

ury officials.

• The strategy places America first, emphasizing strong borders,

strengthening security at points of entry, protecting critical infra-

structure, and facilitating preparedness.

• However, America First does not mean America alone. The new

strategy commits us to expand our partnerships at home and abroad

to encourage partners’ assistance in counterterrorism activities.

o This includes working with our North Atlantic Treaty Organi-

zation (NATO) Allies and partners.

DEFEATING TERROR: Thanks to President Trump’s leader-

ship, the United States has accelerated efforts to defeat terrorists

and protect the United States from global threats.

• Under President Trump, the United States and global partners have

decimated ISIS and pushed the group to the brink of extinction in

Iraq and Syria.

o Nearly all of the territory previously held by ISIS has been re-

captured.

o More than 7.5 million people have been freed from the group’s

oppressive rule.

• At President Trump’s urging, NATO members agreed to

strengthen the alliance’s counterterrorism actions and capabilities.

• In December 2017, President Trump issued a new National Secu-

rity Strategy that focused, in part, on combatting terrorism.

------------------------------------------------------------------------------------------

This Update is being issued as the country transitions to the fourth

presidential administration since the terrorist attacks of September 11,

2001. While there have been some important differences among the

George W. Bush, Obama and Trump administrations in regard to anti-ter-

rorism criminal enforcement, particularly with respect to some policies

and many specifics, arguably the similarities have been more significant

than the differences. Of course, that may reflect the fact that largely the

same agencies with many of the same personnel have been handling anti-

terrorism enforcement in the field.

It remains to be seen what changes will be made by the Biden admin-

istration. Undoubtedly there will again be many specifics. One anticipated

change, based on statements President-elect Biden made during the cam-

paign, will be a presidential desire to close the Guantanamo Bay detention

facility (to be contrasted with the President Trump wish to keep it open

and send some "bad dudes" there). There is little reason to anticipate that

Biden will be any more successful in implementing that desire than was

President Obama, as long as the Congress remains resolute in its desire not

to bring any of the detainees onto the U.S. mainland.

CHAPTER 2

TERRORISM: INTRODUCTION TO THE CONCEPT: ENFORCEMENT ISSUES:

SELECTED TERRORISM OFFENSES

Page 53. Insert the following before D.

RECENT DEVELOPMENTS REGARDING DOMESTIC TERRORISM

Recent media reports indicate that terrorism attacks and killings within

the United States with an international link (e.g., involving persons con-

nected to, or wanna-be, al Qaeda, etc.) have been outpaced by terrorism

attacks lacking an international connection (e.g., white supremacists, etc.,

including extremists at both ends of the political spectrum). Terrorism

which is purely domestic is becoming an increasingly important area of con-

cern. While this casebook still focuses mainly on domestic criminal en-

forcement against international terrorism, that is, terrorism with an interna-

tional link, the materials, especially in this chapter, will be paying more at-

tention to domestic terrorism without an international link.

There is an oddity in the federal law relating to domestic terrorism.

While there is a federal definition of the kind of conduct that constitutes

domestic terrorism, see casebook, p. 32, no penalties are prescribed by this

definition; nor are there any other federal crimes specifically aimed at do-

mestic terrorism. Such offenses can currently only be prosecuted federally,

if at all, under other specific crime headings, including, e.g., where appro-

priate, federal hate crimes.

But compare HR 4192 introduced into the House of Representatives,

August 16, 2019, by Congressman Schiff. This bill, had it been enacted,

would have created a terrorism offense using the definition of domestic ter-

rorism in § 2331, discussed supra. This offense would have included as an

element of the offense the kind of terrorism motive and acts contained in

the § 2331 definition of domestic terrorism. It also would have required that

one of a list of jurisdictional facts be present and that the Attorney General

certify that certain facts are present. See

https://schiff.house.gov/news/press-releases/schiff-introduces-legislation-

to-create-a-federal-domestic-terrorism.

Some controversy has attached to the question of whether federal do-

mestic terrorism offenses should be legislated, akin, for example, to the ma-

terial support offenses which are to be studied in chapter 3, infra. Opponents

of such legislation argue that enactment of such offenses carries a risk of

https://schiff.house.gov/news/press-releases/schiff-introduces-legislation-to-create-a-federal-domestic-terrorism

https://schiff.house.gov/news/press-releases/schiff-introduces-legislation-to-create-a-federal-domestic-terrorism


trenching on the First Amendment. See generally, Adam Goldman, Domes-

tic Terror Rises and FBI Feels Its Limits, NY Times, A1, June 5, 2019;

Miriam Valverde, A Look at the Data on Domestic Terrorism and Who’s

behind It, August 16, 2017 https://www.politifact.com/truth-o-meter/arti-

cle/2017/aug/16/look-data-domestic-terrorism-and-whos-behind-it/.

Would HR 4192, described in the previous paragraph, if it had been enacted

into law, have survived constitutional scrutiny?

See the description of a recent case where two alleged domestic terror-

ists, linked to a domestic far-right extremist group, Boogaloo Bois and to a

subgroup, Boojahideen, became involved with providing aid to a foreign

terrorist organization, viz., Hamas. This made it possible to charge them

with violation of § 2339B, providing material support to a designated for-

eign terrorist organization—see ch. 3, infra. See Katie Benner, Justice De-

partment Charges Two with Trying to Support Terrorist Group Hamas, NY

Times, September 5, 2020, A17. This same article also describes the fact

that President Trump was attributing violent and criminal behavior at pro-

tests to far-left activists and was supported by Attorney General Barr in that

assertion, whereas in several instances, the Department of Justice had in-

vestigated violent activities by individuals linked to Boogaloo, the far-right

group, based upon which they were charged with federal crimes.

Sometimes the line between domestic and international terrorism may

be muddied. Consider, for example, the indictment in Los Angeles of Mark

Steven Domingo, a recent convert to Islam and a U.S. army combat veteran,

who was charged with providing material support to terrorists and attempted

use of a weapon of mass destruction. Domingo allegedly planned to deto-

nate an explosive device at a white nationalist rally to take place in Long

Beach. See Alexa Diaz, Veteran in Terror Plot Enters Plea, LA Times, B3,

June 1, 2019.

While the FBI is typically involved in investigating domestic terror in-

cidents, in the spate of mass shootings, for example, where the shooter sur-

vives, he or she is often likely to be prosecuted under state law. For exam-

ple, an early announcement regarding the shooter in an El Paso mass shoot-

ing, was that he was going to be charged with capital murder under Texas

law. Would it be useful, desirable, for him also to be chargeable under fed-

eral law? Would there be a serious constitutional objection to legislating a

federal crime of murder with a terrorist purpose? Compare 18 U.S.C. §

2332, infra, casebook, p. 71.

While there are a few federal crimes specially directed toward terrorism,

there are a plethora of specific federal crimes that, depending on the facts

in the case, can often be used in prosecuting domestic terrorists. Is the lack

of appropriate federal crime legislation a barrier to effective federal enforce-

ment against domestic terrorism? Are there any other barriers?

https://www.politifact.com/truth-o-meter/article/2017/aug/16/look-data-domestic-terrorism-and-whos-behind-it/

https://www.politifact.com/truth-o-meter/article/2017/aug/16/look-data-domestic-terrorism-and-whos-behind-it/

Some, for example, have criticized the FBI, asserting that they have not

been active enough against domestic terrorism. See, e.g., generally, Adam

Goldman, Domestic Terror Rises and FBI Feels Its Limits, NY Times, A1,

June 5, 2019; Del Quentin Wilber, FBI Struggles to Confront Right Wing

Terrorism, LA Times, August 11, 2019, https://www.

latimes.com/politics/story/2019-08-10/fbi-struggles-to-confront-domestic-

terrorism-by-right-wing-groups. The FBI has strenuously responded to such

criticism, See, for example, the testimony by the Director of the FBI: Chris-

topher Wray, Director of the FBI, Statement Before the Senate Judiciary

Committee, Oversight of the Federal Bureau of Investigation, July 23, 2019,

https://www.fbi.gov/news/testimony/oversight-of-the-federal-bureau-of-

investigation-072319

Can and should the preventive, proactive enforcement approaches that

have been used in addressing international terrorism in this country be ap-

plied to domestic terrorism? See Sabrina Tavernise, Katie Benner, Matt

Apuzzo and Nicole Perlroth, Shootings Renew Debate over How to Combat

Domestic Terrrorism, NY Times,

https://www.bing.com/search?q=rod+rosenstein+shootings+de-

bate+&form=EDGSPH&mkt=en-us&httpsmsn=1&plvar=0&re-

fig=3ea29cdcf46e43ffa5a9432c73a0fedf&sp=-1&pq=rod+rosen&sc=8-

9&qs=n&sk=&cvid=3ea29cdcf46e43ffa5a9432c73a0fedf.

Consider, for example, some of the proactive measures mentioned in

Chapter 4, and the electronic surveillance authority provided under the

FISA statute, as described in Chapter 5. Should such measures be used in

domestic terrorism preventive actions? Would it be constitutional to legis-

late such authority for use in domestic terrorism cases?

In recent years there have been a spate of mass shootings in schools,

malls, night clubs and other places where large numbers of people gather.

Have these all been instances of terrorism? As the materials in the casebook

illustrate, the signature evidence of terrorism is the motive or purpose with

which the violent acts are done. Typically, it requires a purpose to influence

or intimidate or retaliate against a government for a political or social pur-

pose. The afore-mentioned mass shootings have been perpetrated with var-

ious motivations: hatred and prejudice toward particular groups, personal

grievances, purpose to influence or intimidate governments, and, on occa-

sion, no discernible or discoverable motive. And sometimes, it seems as if

there is a mixture of more than one motive. Yet in each instance, the result

has been the same: a large number of people lying dead and a still larger

number wounded, often very seriously.

Reflecting the perspectives derived from the phenomenon of targeted

mass violent attacks that produce similar deadly results irrespective of the

particular motives involved, the Department of Homeland Security issued

https://www.latimes.com/politics/story/2019-08-10/fbi-struggles-to-confront-domestic-terrorism-by-right-wing-groups



https://www.fbi.gov/news/testimony/oversight-of-the-federal-bureau-of-investigation-072319

https://www.fbi.gov/news/testimony/oversight-of-the-federal-bureau-of-investigation-072319

https://www.bing.com/search?q=rod+rosenstein+shootings+debate+&form=EDGSPH&mkt=en-us&httpsmsn=1&plvar=0&refig=3ea29cdcf46e43ffa5a9432c73a0fedf&sp=-1&pq=rod+rosen&sc=8-9&qs=n&sk=&cvid=3ea29cdcf46e43ffa5a9432c73a0fedf





in September, 2019, a report titled, Strategic Framework for Countering

Terrorism and Targeted Violence. It contained the following passages:

For purposes of this Strategy, targeted violence refers to any inci-

dent of violence that implicates homeland security and/or U.S. Depart-

ment of Homeland Security (DHS) activities, and in which a known or

knowable attacker selects a particular target prior to the violent attack.

Unlike terrorism, targeted violence includes attacks otherwise lacking

a clearly discernible political, ideological, or religious motivation, but

that are of such severity and magnitude as to suggest an intent to inflict

a degree of mass injury, destruction, or death commensurate with

known terrorist tactics. In the Homeland, targeted violence has a sig-

nificant impact on the safety and security of our communities, schools,

places of worship, and other public gatherings. The threats of terrorism

and targeted violence increasingly intersect with one another, and there

is likewise some alignment in the tools that can be used to counter them.

Thus, rather than dealing with terrorism and targeted violence as dis-

tinct phenomena, this Strategy addresses the problems, and the tools

that can be wielded to address them, together.

These casebook materials began with a focus on international terrorism.

The have already been expanded at the margin to include materials on do-

mestic terrorism and hate crimes. Should they be further expanded, at least

at the margin, to include materials relating to targeted mass violence at-

tacks?

CHAPTER 3

THE MATERIAL SUPPORT OFFENSES: 18 U.S.C. § 2339A, 2339B

Page 123. Add to Note 2 following the quoted excerpt.

Walker Lindh had pled guilty to providing material support to a foreign

terrorism organization and carrying a firearm and an explosive during the

commission of a felony, and had been sentenced to 20 years in prison. He

was released from prison on probation on May 23, 2019, having served 17

years. See Carol Rosenberg, ‘American Taliban’, Held 17 Years Nears Re-

lease, NY Times, A1, May 22, 2019. Walker Lindh’s release triggered some

voicing of concerns arising from the release of possibly still-dangerous Ji-

hadists who have been convicted in U.S. domestic courts and completed

their sentences. Ibid. Walker Lindh, for example, had been prosecuted in a

U.S. district court rather than before a Military Commission at Guantanamo

because he was a U.S. citizen. Compare how the thought-to-be-still-danger-

ous persons among the Guantanamo detainees are dealt with. See, e.g., note

6, p. 871 in Chapter 10 in the casebook.

Page 124. Add as new paragraph to note 8.

With the defeat of ISIS on the field of battle, a new set of problems has

arisen—what to do with the spouses and children of the fighters; in many

instances, the fighter-husband has been killed, leaving his wife and children

behind, and they have ended up being detained in camps. See Vivian Yee,

American Family Detained in Syria for ISIS Ties Is Sent Back to U.S., NY

Times, A11, June 6, 2019. Reportedly, there are about 12, 000 women and

children and 1000 fighters being held in detention camps in northeastern

Syria. Ibid. While there are a relatively small number in these categories

from the U.S., with many more from Europe, Asia and Middle Eastern

countries, their repatriation presents numerous issues: e.g., determining

whether they are U.S. citizens, determining whether they present a security

risk and whether, depending on the circumstances, they should be prose-

cuted, for example under §2339A or §2339B. Ascertaining the facts rele-

vant to answering such questions can be very challenging. Additional diffi-

culties will be faced in the efforts to integrate these women and children

back into the society of their homeland. See Livia Albeck-Ripka, Orphaned

Children of an ISIS Fighter Will Return to Australia. Is Australia Ready?

NY Times, A8, June 29, 2019.


Page 140. Insert as note 9 before E. Mens Rea Issues…

9. For a recent case in which the defendant was intercepted at the

airport before traveling to Amman, Jordan, he claimed that he was traveling

to visit his daughter who lived there with her mother, and the FBI suspected

he was traveling there to join a terrorist organization, see United States v.

Rahim, 382 F.Supp.3d 561 (N.D. Tex. 2019). The defendant was charged

with six counts of making false statements under 18 U.S.C. § 1001, one

count of attempting to provide material support and one count of conspiring

to provide material support. Another opinion in the Rahim case is repro-

duced in the note for page 262, infra.

The question of whether imposing criminal liability for an attempt to

provide material support raises a constitutional issue is explored in Norman

Abrams, A Constitutional Minimum Threshold for the Actus Reus of

Crime? MPC Attempts and Material Support Offenses, 37 Quinnipiac L.

Rev. 199 (2019).

Page 165. Add as a new note 9 and renumber existing note

9 as note 10.

9. Most recently on April 15, 2019, as one of a number of actions that

have been taken against Iran by the Trump administration, the Islamic Rev-

olutionary Guard Corps (IRGC) was designated by the Secretary of State as

a Foreign Terrorist Organization. The action was seen by some as contro-

versial both because it was the first time an official military arm of a gov-

ernment was designated as an FTO and because it could complicate rela-

tionships with various groups in Iraq and elsewhere. See Ann Gearan and

Carol Morello, Trump to Designate Iranian Military Unit as Terrorist

Group, https://www.washingonpost.com/politics/trump-names-iranian-

military-unit-as-a-terrorist-group/2019/04/08/1613f82e-5a01-11e9-842d-

7d3ed7eb3957_story.html?utm_term=.f6bb20bdf398. Note that the second

reason, above, is essentially a political concern.

A proposal, also controversial, at one point was being discussed within

the Trump administration, to designate the Muslim Brotherhood as an FTO.

See David D. Kirkpatrick, Labeling Muslim Brotherhood as Terrorists May

Upset Allies, NY Times, A1, May 11, 2019. As of the date of this writing,

no action has been taken on this proposal.

CHAPTER 5

ELECTRONIC SURVEILLANCE

Page 262. Insert as note 4, before b. The Terrorist Surveillance

Program…

4. Generally, the government has maintained the confidentiality of the

content of applications for FISA warrants even in criminal prosecutions

where disclosure is made of the fact that FISA electronic surveillance has

taken place. A recent combination of events, much in the news, arising out

of the FBI and Special Counsel investigations of contacts by the Donald

Trump campaign organization with Russians and the Russian government

in connection with the 2016 Presidential election, led to the examination,

review and disclosure, redacted of course, of the FISA warrant application

to surveil Carter Page, a person involved in the campaign. See David Kris,

What to make of the Carter Page FISA Applications, Lawfare, July 21,

2018, https://www.lawfareblog.com/what-make-carter-page-fisa-applica-

tions. Defects found in the basis for the issuance of the Carter Page warrant

triggered reviews and reports by the Inspector General of the Department

of Justice regarding FISA warrants, responses by the Department of Justice

and opinions of the Foreign Intelligence Court. Additionally, a budding

literature, mostly online, concerning these reports began to be developed. A

selection of materials relating to these events includes the following:

a. An Inspector General's report titled, Review of Four FISA Applications

and Other Aspects of the FBI’s Crossfire Hurricane Investigation, De-

cember, 2019 https://www.justice.gov/storage/120919-examina-

tion.pdf, included the examination of the bases for the Carter Page FISA

warrant. See the following excerpts from this December, 2019 report:

…

We found that the FBI did not have information corroborating

the specific allegations against Carter Page in Steele's reporting

when it relied upon his reports in the first FISA application or sub-

sequent renewal applications. OGC and NSD attorneys told us that,

while the FBI's "Woods Procedures" (described in Chapter Two)

require that every factual assertion in a FISA application be "veri-

fied," when information is attributed to a FBI CHS, the Woods

Procedures require only that the agent verify, with supporting doc-

umentation, that the application accurately reflects what the CHS

told the FBI. The procedures do not require that the agent corrobo-

rate, through a second, independent source, that what the CHS told

https://www.lawfareblog.com/what-make-carter-page-fisa-applications

https://www.lawfareblog.com/what-make-carter-page-fisa-applications

https://www.justice.gov/storage/120919-examination.pdf

https://www.justice.gov/storage/120919-examination.pdf


the FBI is true. We did not identify anything in the Woods Proce-

dures that is inconsistent with these officials' description of the

procedures.

However, absent corroboration for the factual assertions in the

election reporting, it was particularly important for the FISA appli-

cations to articulate the FBI's knowledge of Steele's background

and its assessment of his reliability. On these points, the applica-

tions advised the court that Steele was believed to be a reliable

source for three reasons: his professional background; his history

of work as an FBI CHS since 2013; and his prior non-election re-

porting, …which the FBI described as "corroborated and used in

criminal proceedings." As discussed below, the representations

about Steele's prior reporting were overstated and had not been ap-

proved by Steele's handling agent, as required by the Woods Pro-

cedures.

Due to Evans's persistent inquiries, the FISA application also

included a footnote, developed by OI based on information pro-

vided by the Crossfire Hurricane team, to address Evans's concern

about the potential political bias of Steele's research. The footnote

stated that Steele was hired by an identified U.S. person (Glenn

Simpson) to conduct research regarding "Candidate #l's" (Donald

Trump) ties to Russia and that the FBI "speculates" that this U.S.

person was likely looking for information that could be used to dis-

credit the Trump campaign.

Relevant Information Inaccurately Stated, Omitted, or Undocu-

mented in the First Application

Our review found that FBI personnel fell far short of the re-

quirement in FBI policy that they ensure that all factual statements

in a FISA application are "scrupulously accurate." We identified

multiple instances in which factual assertions relied upon in the

first FISA application were inaccurate, incomplete, or unsupported

by appropriate documentation, based upon information the FBI had

in its possession at the time the application was filed. We found

that the problems we identified were primarily caused by the

Crossfire Hurricane team failing to share all relevant information

with OI and, consequently, the information was not considered by

the Department decision makers who ultimately decided to support

the applications.

As more fully described in Chapter Five, based upon the infor-

mation known to the FBI in October 2016, the first application

contained the following seven significant inaccuracies and omis-

sions:

1. Omitted information the FBI had obtained from another U.S.

government agency detailing its prior relationship with Page,

including that Page had been approved as an "operational con-

tact" for the other agency from 2008 to 2013, and that Page had

provided information to the other agency concerning his prior

contacts with certain Russian intelligence officers, one of

which overlapped with facts asserted in the FISA application;

2. Included a source characterization statement asserting that

Steele's prior reporting had been "corroborated and used in

criminal proceedings," which overstated the significance of

Steele's past reporting and was not approved by Steele's han-

dling agent, as required by the Woods Procedures;

3. Omitted information relevant to the reliability of Person 1, a

key Steele sub-source (who was attributed with providing the

information in Report 95 and some of the information in Re-

ports 80 and 102 relied upon in the application), namely that (

1) Steele himself told members of the Crossfire Hurricane team

that Person 1 was a "boaster" and an "egoist" and "may engage

in some embellishment" and (2) the FBI had opened a counter-

intelligence investigation on Person 1 a few days before the

FISA application was filed;

4. Asserted that the FBI had assessed that Steele did not directly

provide to the press information in the September 23 Yahoo

News article based on the premise that Steele had told the FBI

that he only shared his election-related research with the FBI

and Fusion GPS, his client; this premise was incorrect and con-

tradicted by documentation in the Woods File-Steele had told

the FBI that he also gave his information to the State Depart-

ment;

5. Omitted Papadopoulos's consensually monitored statements to

an FBI CHS in September 2016 denying that anyone associated

with the Trump campaign was collaborating with Russia or

with outside groups like Wikileaks in the release of emails;

6. Omitted Page's consensually monitored statements to an FBI

CHS in August 2016 that Page had "literally never met" or

"said one word to" Paul Manafort and that Manafort had not re-

sponded to any of Page's emails; if true, those statements were

in tension with claims in Report 95 that Page was participating


in a conspiracy with Russia by acting as an intermediary for

Manafort on behalf of the Trump campaign; and

7. Included Page's consensually monitored statements to an FBI

CHS in October 2016 that the FBI believed supported its the-

ory that Page was an agent of Russia but omitted other state-

ments Page made that were inconsistent with its theory, includ-

ing denying having met with Sechin and Divyekin, or even

knowing who Divyekin was; if true, those statements contra-

dicted the claims in Report 94 that Page … had met secretly

with Sechin and Divyekin about future cooperation with Russia

and shared derogatory information about candidate Clinton.

None of these inaccuracies and omissions were brought to the

attention of OI before the last FISA application was filed in June

2017. Consequently, these failures were repeated in all three re-

newal applications.

Further, as we discuss later, we identified 10 additional signifi-

cant errors in the renewal applications.

The failure to provide accurate and complete information to the

OI Attorney concerning Page's prior relationship with another U.S.

government agency (item 1 above) was particularly concerning be-

cause the OI Attorney had specifically asked the case agent in late

September 2016 whether Carter Page had a current or prior rela-

tionship with the other agency. In response to that inquiry, the case

agent advised the OI Attorney that Page's relationship was "dated"

(claiming it was when Page lived in Moscow in 2004-2007) and

"outside scope." This representation, however, was contrary to in-

formation that the other agency had provided to the FBI in August

2016, which stated that Page was approved as an "operational con-

tact" of the other agency from 2008 to 2013 (after Page had left

Moscow). Moreover, rather than being "outside scope," Page's sta-

tus with the other agency overlapped in time with some of the in-

teractions between Page and known Russian intelligence officers

that were relied upon in the FISA applications to establish probable

cause. Indeed, Page had provided information to the other agency

about his past contacts with a Russian Intelligence Officer (Intelli-

gence Officer 1), which were among the historical connections to

Russian intelligence officers that the FBI relied upon in the first

FISA application (and subsequent renewal applications). Accord-

ing to the information from the other agency, an employee of the

other agency had assessed that Page "candidly described his con-

tact with" Intelligence Officer 1 to the other agency. Thus, the FBI

relied upon Page's contacts with Intelligence Officer 1, among oth-

ers, in support of its probable cause statement in the FISA applica-

tion, while failing to disclose to OI or the FISC that (1) Page had

been approved as an operational contact by the other agency during

a five-year period that overlapped with allegations in the FISA ap-

plication, (2) Page had disclosed to the other agency contacts that

he had with Intelligence Officer 1 and certain other individuals,

and (3) the other agency's employee had given a positive assess-

ment of Page's candor.

Further, we were concerned by the FBI's inaccurate assertion in

the application that Steele's prior reporting had been "corroborated

and used in criminal proceedings"….

b. After examining the bases for four FISA warrant applications as de-

scribed in the report cited in note 4.a. above, the Inspector General un-

dertook a more general audit examining 29 FISA warrant applications.

The IG issued a report in March, 2020, that found that all of the 29 war-

rant applications contained inaccuracies, and there were other kinds of

errors, e.g. missing files in four of the instances and other kinds of errors

or facts that were not adequately supported. See Jeremy Gordon, Sum-

mary: Justice Department Inspector General Memorandum on FBI

Compliance With FISA Procedures, Lawfare, March 31, 2020

https://www.lawfareblog.com/summary-justice-department-inspector-

general-memorandum-fbi-compliance-fisa-procedures

c. Meanwhile, around the same time that the IG issued his 29 cases report,

note 4.b., above, the Foreign Intelligence Surveillance Court issued an

opinion in response to the Inspector General's December 2019 report

described in 4a. above. This opinion the subject title of which is: In re

accuracy concerns regarding FBI matters submitted to the FISC, Docket

No. Misc. 19-02, U.S. Foreign Intelligence Surveillance Court, March

4, 2020 https://fisc.uscourts.gov/sites/de-

fault/files/Misc%2019%2002%20Opinion%20and%20Or-

der%20PJ%20JEB%20200304.pdf, detailed the measures that the FBI

and DOJ had committed to undertake to avoid in the future the kind of

flaws in its processes that the December, 2019 report had uncovered.

The Court began its opinion, stating the following:

Last December, the Department of Justice's Office of the Inspector

General issued a comprehensive report examining, among other

things, applications to the Foreign Intelligence Surveillance Court

for authority to conduct electronic surveillance of U.S. person Carter

W. Page. The OIG found that those applications contained signifi-

cant factual inaccuracies and omissions relevant to whether there

https://www.lawfareblog.com/summary-justice-department-inspector-general-memorandum-fbi-compliance-fisa-procedures

https://www.lawfareblog.com/summary-justice-department-inspector-general-memorandum-fbi-compliance-fisa-procedures

https://fisc.uscourts.gov/sites/default/files/Misc%2019%2002%20Opinion%20and%20Order%20PJ%20JEB%20200304.pdf




was probable cause to believe Page was an agent of the Russian gov-

ernment. There is thus little doubt that the government breached its

duty of candor to the Court with respect to those applications.

The frequency and seriousness of these errors in a case that, given

its sensitive nature, had an unusually high level of review at both

DOJ and the Federal Bureau of Investigation have called into ques-

tion the reliability of the information proffered in other FBI applica-

tions. To safeguard the integrity of its proceedings going forward,

the Court ordered the government to explain how it would ensure

the accuracy and completeness of future FBI applications. Acknowl-

edging its deficiencies, the government has done so, undertaking

multiple remedial measures in response to both the OIG Report and

this Court's Order.

Yet the errors the OIG pointed out cannot be solved through pro-

cedures alone. DOJ and the FBI, including all personnel involved in

the FISA process, must fully understand and embrace the heightened

duties of probity and transparency that apply in ex parte proceed-

ings. While DOJ and the FBI have both expressed their commitment

to these tenets, this Opinion and Order sets out a framework for

holding them accountable to those commitments.

d. Further, in August, 2020, the Department of Justice filed a response to

earlier orders by the FISC instructing the DOJ to respond to information

in the Inspector General's report reviewing the 29 FISA warrants. See

Jacob Schulz, Justice Department Releases Its Review of FISA Appli-

cations Examined by Inspector General, LawFare, August 3, 2020,

https://www.lawfareblog.com/justice-department-releases-its-review-

fisa-applications-examined-inspector-general. The DOJ filing appears

at the following link.

https://assets.documentcloud.org/documents/7013140/NSD-Review-

of-Woods-Procedures-IGAudit.pdf. Excerpts from the DOJ filing ap-

pear immediately below.

https://www.lawfareblog.com/justice-department-releases-its-review-fisa-applications-examined-inspector-general

https://www.lawfareblog.com/justice-department-releases-its-review-fisa-applications-examined-inspector-general

https://assets.documentcloud.org/documents/7013140/NSD-Review-of-Woods-Procedures-IGAudit.pdf

https://assets.documentcloud.org/documents/7013140/NSD-Review-of-Woods-Procedures-IGAudit.pdf

FOREIGN INTELLIGENCE SURVEILLANCE

COURT

WASHNGTON, D.C.

(U) IN RE ACCURACY CONCERNS REGARDING

FBI MATTERS SUBMITTED TO THE FISC.

Docket No. Misc. 19-02

(U) SUPPLEMENTAL RESPONSE TO THE COURT'S ORDER

DATED APRIL 3, 2020

(U) The United States respectfully submits this supplemental response to

the Order of the Foreign Intelligence Surveillance Court (FISC or the

Court) entered on April 3, 2020

(April 3, 2020 Order). As detailed below, based on the Government's find-

ings, of the hundreds of pages of facts contained in the 29 applications au-

dited by the Office of the Inspector General (OIG), the Government has

identified only one material misstatement and one material omission, nei-

ther of which are assessed to have invalidated the authorizations granted

by the Court in the applicable dockets.

1. (U) BACKGROUND REGARDING THE APRIL 3, 2020 ORDER

AND THE GOVERNMENT'S JUNE 15, 2020 PARTIAL RESPONSE

TO THAT ORDER

(U) By way of background, the April 3, 2020 Order directed the Govern-

ment to take certain steps in response to the OIG's audit of 29 Foreign In-

telligence Surveillance Act (FISA) applications, as discussed in the OIG's

March 30, 2020 Management Advisory Memorandum for the Director of

the Federal Bureau of Investigation Regarding the Execution of Woods.

Procedures for Applications Filed with the Foreign Intelligence Surveil-

lance Court Relating to U.S. Persons (OIG Memorandum). Specifically,

the April 3, 2020 Order directed the Government to assess to what extent

those 29 applications involved material misstatements or omissions; to as-

sess whether any material misstatements or omissions rendered invalid, in

whole or in part, authorizations granted by the Court in the reviewed dock-


ets or other dockets; and to report on the conduct and results of its assess-

ments, including the basis for assessing that particular misstatements or

omissions were not material or did not render invalid any Court authoriza-

tions.

(U) On June 15, 2020, the Government filed a supplemental response

to the April 3, 2020 Order providing these assessments and reports for 14

applications audited by the OIG, and moved for an extension of time in

which to provide the Court with this information for the remaining appli-

cations (the June 15, 2020 Response). On June 23, 2020, the Court granted

the Government's request for an extension of time and directed the Gov-

ernment to provide the above assessments and reports for the remaining 15

applications audited by the OIG by July 29, 2020. This filing discusses the

Government's findings and assessments as to the remaining 15 applica-

tions audited by the OIG.

(U) As background, the OIG's audit was limited to examining the

FBI's execution of, and compliance with, its accuracy procedures for the

sample of applications reviewed. OIG Memorandum at 2. The OIG audit

"consisted solely of determining whether the contents of the FBI's Woods

File supported statements of fact in the associated FISA application" and

"did not seek to determine whether support existed elsewhere for the fac-

tual assertion in the FISA application…." Id. The OIG identified instances

of deficient documentation or documentation in the FBI's accuracy sub-

files that differed from a factual assertion in the application being audited,

giving rise to the OIG's concerns about possible inaccuracies in the appli-

cations reviewed. Id at 3. The OIG itself did not, however, determine

whether any factual assertions in the applications were inaccurate, materi-

ally or otherwise. Id

(U) In reviewing the accuracy of the 29 applications pursuant to the

April 3, 2020 Order, the Government has been able to resolve many of the

concerns or potential errors identified by the OIG with regard to those ap-

plications. As detailed in the attached Declaration of Dawn M. Browning,

Acting General Counsel, Federal Bureau of Investigation, in Support of the

Government's Supplemental Response to the Court's Order Dated April 3,

2020 (the FBI Declaration) as well as the FBI Declaration attached to the

June 15, 2020 Response, in many instances, documentation that supported

a factual assertion was located elsewhere in the accuracy sub-file, the case

file, and/or in other files and databases available to the FBI. In some addi-

tional instances, the Office of Intelligence (01) has reviewed the factual as-

sertion contained in an application, obtained additional documentation or

information from the FBI, and concluded that a concern or potential issue

identified by the OIG is not an error.1

(U) As noted in the June 15, 2020 Response, for the 14 applications

described in that submission, 01 identified one material misstatement or

omission among the hundreds of pages of facts contained within these 14

filings. Moreover, that single misstatement or omission did not render in-

valid the authorization granted by the Court in that docket or subsequent

dockets targeting that individual. 01 did identify a total of 63 non-material

errors or unsupported facts in total for those 14 applications. The number

of these non-material errors and unsupported facts ranged from one appli-

cation in which 01 assesses there were no errors or unsupported facts to

one application in which 01 assesses there to have been 15 non-material

errors or unsupported facts. Approximately 29 of these 63 non-material er-

rors reflect typographical errors or date discrepancies between an assertion

in an application and a source document. Of the remaining 34 non-mate-

rial errors or unsupported facts, 13 involve non-material factual assertions

that may be accurate, but for which a supporting document could not be

located in the FBI's files, and 21 involve non-material deviations between

a source document and an application and/or a misidentified source of in-

formation.

(U) SUMMARY OF THE GOVERNMENT'S FINDINGS REGARDING

THE REMAINING APPLICATIONS AUDITED BY THE OIG

(U) As described in greater detail below, in its completed review of

these 15 applications, 01 identified one material misstatement in an appli-

cation seeking to initiate Court-authorized electronic surveillance and

physical search. 01 assesses this misstatement did not invalidate the au-

thorizations granted by the Court in that docket, which the Government

did not seek to renew. This misstatement was identified during an FBI

CDC office accuracy review conducted following the OIG audit and in-

volved the difference between the statement in an application stating that

the target had become sympathetic toward a particular terrorist group and

the supporting documentation which established that a witness reported

that this target had become more sympathetic to radical Muslim causes. 01

assessed that this difference is material with regard to the requested proba-

ble cause determination that the target was an agent of that particular for-

eign power. As explained in greater detail below, 01 assessed that this

1 (U) In some instances, identified herein, an accuracy review conducted

by the Chief Division Counsel's offce (CDC) for the relevant field office iden-

tified misstatements or omissions that were not identified as potential issues dur-

ing the OIG audit. These errors were brought to the attention of 01 in order to conduct the assessments required by the April 3, 2020 Order and are included

among the errors identified in the charts included in the FBI Declaration.


misstatement did not invalidate the requested probable cause determina-

tion based on the significant, contemporaneous derogatory information in

the application.

(U) Also as described herein, Ol's assessments of the results of OIG

and CDC office reviews of the approximately four hundred pages of state-

ments of facts for the 15 applications discussed below identified a total of

138 non-material errors or unsupported facts; those errors are described in-

dividually in the FBI Declaration, are summarized below, and in some

cases are explained in greater detail herein for the Court's information.2

The number of these non-material errors and unsupported facts range from

one application in which 01 assesses there were no errors or unsupported

facts to one application in which 01 assesses there to have been 23 nonma-

terial errors or unsupported facts. Approximately 48 of these 138 non-ma-

terial errors reflect typographical errors or date discrepancies between an

assertion in an application and a source document. Of the remaining 91

non-material errors or unsupported facts, four involve nonmaterial factual

assertions that may be accurate, but for which a supporting document

could not be located in the FBI's files; 73 involve non-material deviations

between a source document and an application; and 13 involve errors in

which the source of an otherwise accurate factual assertion was misidenti-

fied.

(U) In sum, based on the Government's findings, as detailed in this

submission and the June 15, 2020 Response, 01 identified two material er-

rors among the hundreds of pages of statements of facts in the 29 FISA

applications audited by the OIG and reviewed by the CDCs, and these two

material errors did not invalidate the authorizations granted by the Court

in the applicable dockets. In addition, of the 29 applications reviewed, 01

identified a total of 201 non-material errors or unsupported facts, none of

which rendered invalid the Court's authorizations in the applicable dock-

ets.

A further document was filed by the government in the same matter,

viz. Response to the Court’s Corrected Opinion and Order Dated March 5,

2 (U) For purposes of context, the Government observes that the 14 ap-

plications discussed in the June 15, 2020 Response included multiple applications

targeting the same individual and included, in some cases, the same errors appear-

ing in multiple applications. By comparison, the 15 cases discussed herein did not

include renewal applications targeting the same individual.

https://www.fisc.uscourts.gov/public-filings/response-court%E2%80%99s-corrected-opinion-and-order-dated-march-5-2020-and-update-government

2020 and Update to the Government’s January 10, 2020 and January 31,

2020 Responses https://www.fisc.uscourts.gov/sites/de-

fault/files/FISC%20Misc%2019%2002%20%20Re-

sponse%20to%20the%20Court%27s to update the Court on the efficacy

of various FISA reform measures that … [had] been undertaken by the

government in response [to] the OIG report of December 2019.

Page 262. Insert the following after new note 4, page 262.

United States v. Rahim

2019 WL 1595682 (N.D. Tex. 2019)

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, United States District Judge

Before the Court is Defendant’s Motion to Suppress FISA-Related Ma-

terial and for Disclosure of FISA-Related Material (Doc. 76). For the fol-

lowing reasons, the Court DENIES the Motion.

I. BACKGROUND

Defendant Said Azzam Mohamad Rahim has been charged with six

counts of making false statements in violation of 18 U.S.C. § 1001, one

count of attempting to provide material support to a designated foreign ter-

rorist organization in violation of 18 U.S.C. § 2339B, and one count of con-

spiracy to provide material support to a designated foreign terrorist organi-

zation in violation of 18 U.S.C. § 2339B. 2d Superseding Indictment.

On October 18, 2018, the Government notified Rahim that it “intends to

offer into evidence, or otherwise use or disclose ... information obtained or

derived from electronic surveillance conduct pursuant to the Foreign Intel-

ligence Surveillance Act of 1978 (‘FISA’).” see 50 U.S.C. § 1806(c). On

December 26, 2018, pursuant to 50 U.S.C. § 1806(e), Rahim moved to have

those materials disclosed to him or suppressed. On March 25, 2019, the

Government filed its response in opposition to Rahim’s motion and attached

a declaration and claim of privilege from the United States Attorney Gen-

eral. In this declaration, the Attorney General stated that disclosure or an

adversary hearing with respect to the FISA materials related to this case

would harm the national security of the United States. This declaration trig-

gered 50 U.S.C. § 1806(f)’s review process; thus, the Court “review[ed] in

camera and ex parte the application, order, and such other materials relating

to the surveillance as [was] necessary to determine whether the surveillance

of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C.

§ 1806(f). After reviewing these materials and the parties’ briefing, the

Court is ready to decide Rahim’s motion.



https://www.fisc.uscourts.gov/sites/default/files/FISC%20Misc%2019%2002%20%20Response%20to%20the%20Court%27s




II. ANALYSIS

Rahim first argues that the FISA evidence should be suppressed be-

cause: (1) a significant purpose of the investigation was not to obtain foreign

intelligence information; (2) Rahim did not act as the agent of a foreign

power, as defined by the statute; and (3) the FISA evidence was obtained

solely on the basis of Rahim’s protected First Amendment activities. Sec-

ond, Rahim argues that disclosure of the FISA materials is necessary to de-

termine the legality of the surveillance or is otherwise required by due pro-

cess. Last, Rahim makes a number of constitutional objections to FISA and

the Patriot Act Amendments.

First, the Court decides whether the surveillance of Rahim was lawfully

authorized and conducted. This requires the Court to review, in camera and

ex parte, the classified materials that were submitted to the Foreign Intelli-

gence Surveillance Court (“FISC”) in support of the FISA application. 50

U.S.C. § 1806(f). The FISA application must include the information spec-

ified at 50 U.S.C. § 1804(a)(1)–(9) (electronic surveillance) and §

1823(a)(1)–(8) (physical searches). Of notable importance amongst these

requirements, the Government must show that there is probable cause” to

believe that the target is a foreign power or an agent of a foreign power and

that the place of surveillance was being used, or was about to be used, by

an agent of a foreign power. United States v. El-Mezain, 664 F.3d 467, 569–

70 (5th Cir. 2011) (citing 50 U.S.C. § 1804(a)(3)). The statute defines

“agent of a foreign power” at § 1801(b)(1)–(2). Additionally, the Govern-

ment must also submit a written certification from a high-level executive-

branch official with national-security responsibilities, that a “significant

purpose” of the proposed surveillance is to obtain foreign intelligence in-

formation. 50 U.S.C. § 1804(a)(6). Finally, minimization procedures that

regulate the acquisition and retention, while prohibiting dissemination, of

nonpublic information of unconsenting United States persons must also be

followed. Id. § 1801(h)(1).

The Court first addresses Rahim’s argument that the Government did

not have probable cause to believe that he was a foreign power or agent

thereof. Rahim asserts he is neither a foreign power, nor agent of one, be-

cause the case against him is based on his activity in relation to a social-

media application and this activity has no international connection to terror-

ism. After assessing the classified materials in support of the FISA applica-

tion and conducting a de novo review of the FISC’s probable-cause deter-

mination, the Court is fully convinced that the Government met FISA’s

probable-cause requirements, including the belief that the target of the sur-

veillance was an agent of a foreign power and that the place of surveillance

was being used, or was about to be used, by an agent of foreign power. 18

U.S.C. § 1804(a)(3); see also El-Mezain, 664 F.3d at 569–70.

Next, Rahim contends that there was no foreign intelligence objective

in his investigation, and thus the only purpose of the surveillance was crim-

inal prosecution. While courts conduct a de novo review to determine the

legality of the FISA surveillance and searches, certifications submitted in

support of the FISA application should be presumed valid and subjected

only to minimal judicial scrutiny. See El-Mezain, 664 F.3d at 568; United

States v. Huang, 15 F. Supp. 3d 1131, 1140 (D.N.M. 2014). Thus, courts do

not “second-guess whether the certifications were correct,” but merely en-

sure they were made in accordance with FISA’s requirements. Huang, 15

F. Supp. 3d at 1140 (quoting United States v. Alwan, 2012 WL 399154, at

7 (W.D. Ky. Feb. 7, 2012)). When the target is a United States person, the

district court should also ensure that each certification was not “clearly er-

roneous.” Sensitive to the fact that Rahim’s counsel makes this objection

without the benefit of reviewing the information underlying the FISA ap-

plication, the Court is nonetheless satisfied that the Executive Branch’s cer-

tification meets all the FISA requirements, including the “significant pur-

pose” requirement. The in camera, ex parte review of the FISA materials

related to this matter convinces the Court that the Executive Branch’s certi-

fication is free of clear error and that a significant purpose of the authorized

surveillance was to gather foreign intelligence information. Rahim’s argu-

ment to the contrary is rejected.

…

In sum, a detailed, in camera review of the FISA materials in this case

clearly shows that: (1) the FISA application here established the requisite

probable cause; (2) the certification submitted by the Executive Branch in

support of the FISA application was properly made; and (3) the collection

and retention of nonpublic information was properly minimized. Accord-

ingly, the Court finds that disclosure of the FISA materials is not necessary

in this case. In the course of conducting an in camera review of the FISA

materials, “the district court has discretion to disclose the information to the

aggrieved person but only where such disclosure is necessary to make an

accurate determination of the legality of the surveillance.” El-Mezain, 664

F.3d at 566 (quoting 50 U.S.C. § 1806(f)) (emphasis added and internal

quotations removed). On the other hand, “[w]hen the district court ‘deter-

mines that the surveillance was lawfully authorized and conducted, it shall

deny the motion of the aggrieved person except to the extent that due pro-

cess requires discovery or disclosure.” Id. (quoting § 1806(g)) (emphasis

added). “[D]isclosure of FISA materials is the exception and ex parte, in

camera determination is the rule.” Id. at 567 (quoting United States v. Abu–

Jihaad, 630 F.3d 102, 129 (2d Cir. 2010)). In fact, it appears, as the parties

acknowledge, that no court has found it necessary to disclose FISA materi-

als to determine the legality of surveillance. Gov’t’s Resp., 15–16 (citing,


inter alia, El-Mezain, 664 F.3d at 566 (citing the district court’s finding that

no court has ever ordered that FISA materials be disclosed or that an adver-

sarial hearing be conducted as provided by § 1806(f))). The Court has con-

ducted an extensive in camera review of the FISA applications, orders, and

other materials associated with the present matter. Review of these materi-

als has not been overly complicated, and the Court finds that it does not

need the assistance of defense counsel to make an accurate determination

of the legality of the surveillance. Nor does the Court find that due process

necessitates disclosure of any of the confidential FISA materials. See

United States v. Hasan, 535 F. App’x 378, 379 (5th Cir. 2013) (holding that

generalized due-process objection against FISA was “foreclosed by circuit

precedent” in El-Mezain, 664 F.3d at 567–68). The Court thus holds disclo-

sure is not necessary here.

…

Finally, the Court acknowledges that Rahim has made a number of ar-

guments attacking the constitutionality of the FISA statutory framework. In

making these challenges, Rahim admits that many of them have been ex-

plicitly rejected, but nonetheless asserts they should be considered because

of the particular facts of this case and lack of binding precedent. The Court

declines the opportunity to revisit these issues and dismisses Rahim’s con-

stitutional arguments as follows:

1. While undecided in this Circuit, see United States v. Aldawsari,

740 F.3d 1015, 1018 (5th Cir. 2014), the Court sides with the

contingent of circuits that have held the “significant purpose”

standard does not violate the Fourth Amendment. Relatedly,

Rahim’s argument that FISA’s probable cause standard violates

the Fourth Amendment has been rejected and thus fails.

2. The Court rejects Rahim’s arguments that FISA runs afoul of the

Fourth Amendment’s warrant, particularity, and magistrate re-

quirements. See United States v. Cavanagh, 807 F.2d 787, 790–

91 (9th Cir. 1987) (rejecting Fourth Amendment warrant, partic-

ularity, and judicial-review challenges to FISA); United States

v. Mubayyid, 521 F. Supp. 2d 125, 135–38 (D. Mass. 2007)

(same). See also In re Sealed Case, 310 F.3d 717, 739–42 (FISA

Ct. Rev. 2002) (discussing particularity and warrant require-

ments).

3. Rahim’s right-to-counsel and Confrontation Clause challenges

to FISA ex parte review procedure have been rejected. The

Court agrees with those decisions.

4. The Court rejects Rahim’s argument that FISA violates Article

III by permitting courts to act when there is no case or contro-

versy. See Cavanagh, 807 F.2d at 791–92; Matter of Kevork,

634 F. Supp. 1002, 1014 (C.D. Cal. 1985), aff’d, 788 F.2d 566

(9th Cir. 1986) (rejecting Article III and separation-of-powers

challenges); Falvey, 540 F. Supp. at 1313 n.16 (rejecting similar

arguments). Nor does FISA impermissibly abrogate the author-

ity of the judiciary in favor of the executive branch or violate

some other separation-of-powers principle.

In summary, the Court has reviewed Rahim’s constitutional challenges

and finds they have been foreclosed by the vast majority of courts to con-

sider them. Rahim’s facial and as-applied constitutional challenges to FISA

are therefore denied.

III. CONCLUSION

For these reasons, the Court DENIES Defendant Said Azzam Mo-

hamad Rahim’s Motion to Suppress FISA-Related Material and for Disclo-

sure of FISA-Related Material The Court rejects all of Rahim’s arguments

for both disclosure and/or suppression of the FISA materials related to this

case. Based on the Court’s in camera and ex parte review of the relevant

FISA materials, the Court concludes that disclosure of FISA materials to

defense counsel is not warranted in this case because the electronic surveil-

lance was lawfully authorized and lawfully conducted, according to the rel-

evant minimization procedures. Additionally, the Court finds no basis to

suppress any of the evidence collected pursuant to the FISA application and

warrant issued by the FISC Court.

So ordered

Page 317. Add as new notes 9 and 10, and renumber existing

notes 9 and 10 as new notes 11 and 12.

9. As mentioned in the casebook, section 1881a (section 702 in the

original legislation) was amended in 2015, and subsequently in 2017-2018

by the FISA Amendments Reauthorization Act. Section 702 had been set to

expire and the FISA Amendments Reauthorization Act extended its life un-

til 2023. The version of the provision reproduced in the casebook (pp. 280-

291) is the version President Trump signed into law on January 19, 2018.

In connection with his doing so, the following statement, excerpted here,

was issued by the White House:

Today, I signed into law S. 139, “FISA Amendments Reauthoriza-

tion Act of 2017” (the “Act”). The Act reauthorizes Title VII of the

Foreign Intelligence Surveillance Act until December 31, 2023, and


makes a number of amendments to current law. Section 702 of Title

VII allows the Intelligence Community, under a robust regime of over-

sight by all three branches of Government, to collect critical intelli-

gence on international terrorists, weapons proliferators, and other im-

portant foreign intelligence targets located outside the United States.

…

Section 702 provides robust privacy protections for American citi-

zens, and most importantly prohibits the Government from using it to

target Americans and persons located in the United States. Only for-

eigners located abroad may be targeted for surveillance under section

702. While every court to have considered section 702 has found it to

be legal and consistent with the Fourth Amendment to the Constitution,

the Act establishes additional procedures to further protect the privacy

of Americans whose communications are incidentally collected under

section 702. Among these is a new requirement that in a predicated

criminal investigation — an investigation with an elevated factual

foundation — the Federal Bureau of Investigation (FBI) apply for and

obtain an order from the Foreign Intelligence Surveillance Court before

accessing the contents of section 702 — acquired communications that

were retrieved using certain United States person “query” terms. By

applying this provision only to certain queries in investigations unre-

lated to national security, the Act preserves the FBI’s ability to “con-

nect the dots” and look for national security-related threats, especially

during the critical pre investigation phase when it often does not yet

have enough information to know whether a suspected threat relates to

national security. Although the Fourth Amendment does not require a

court order to query information lawfully collected under section 702

— information already lawfully in the Government’s possession — this

new procedure, along with the Act’s other oversight and transparency

requirements, provides further privacy safeguards, while preserving the

operational effectiveness of our foreign intelligence collection efforts.

I would have preferred a permanent reauthorization of Title VII to

protect the safety and security of the Nation. By signing this Act today,

however, I am ensuring that this lawful and essential intelligence pro-

gram will continue to protect Americans for at least the next 6 years.

We cannot let our guard down in the face of foreign threats to our

safety, our freedom, and our way of life.

DONALD J. TRUMP

THE WHITE HOUSE

10. While the reader has available in the casebook the actual current

provisions of sec. 702 as well as some relevant background materials, e.g.,

the report of the Privacy and Civil Liberties Oversight Board, it may be

helpful also to review the following detailed summary of the FISA Amend-

ments Reauthorization Act of 2017 that was issued in October, 2018 by the

Director of National Intelligence. See: https://www.dni.gov/files/docu-

ments/icotr/Summary-FISA-Reauthorization-of-2017---10.15.

The FISA Amendments Reauthorization Act of 2017: Enhanced

Privacy Safeguards for Personal Data Transfers Under Privacy

Shield

In 2008, Congress passed updates to the Foreign Intelligence Sur-

veillance Act (FISA), including the addition of Section 702, which au-

thorized the acquisition of electronic communications of non-U.S. per-

sons located outside the United States for the express purpose of col-

lecting foreign intelligence information, under FISA Court-approved

procedures and subject to FISA Court oversight. On January 19, 2018,

Congress reauthorized Section 702 for six years.

In addition to reauthorizing Section 702, the FISA Amendments

Reauthorization Act of 2017 (the “Act”) expands privacy safeguards

under FISA and other U.S. intelligence laws. These new safeguards are

discussed below.

Limitations on Collection, Use, and Processing

Congressional Review and Oversight of “Abouts” Collection

The Government terminated “abouts” collection in April 2017, as

has been publicly disclosed. “Abouts” collection refers to a communi-

cation that is acquired based on it containing a reference to a Section

702-tasked selector (such as an email address), not because the com-

munication is to or from the Section 702-tasked selector. The Act re-

quires that if the government wants to resume acquiring “abouts” com-

munications, absent an emergency situation, certain steps must be

taken. First, the government must inform Congress thirty days prior to

commencing such collection; during this period, Congress may hold

hearings and review the proposed collection. Second, the government

must also inform and obtain approval from the FISA Court. Prior to the

FISA Court approving the government’s request, the Act directs the

FISA Court to consider appointing an amicus curiae to advocate for

individual privacy and civil liberties interests during its review of any

such proposed collection.


Querying Procedures Required

The Act now requires the Attorney General and the Director of Na-

tional Intelligence (DNI) to adopt querying procedures for information

acquired pursuant to Section 702. These procedures must be reviewed

and approved by the FISA Court. Section 702 querying constraints are

already in place for information concerning persons of any nationality,

as set forth in relevant agencies’ publicly available “minimization pro-

cedures.” The minimization procedures place certain limits on agen-

cies’ ability to query, retain, or disseminate Section 702-acquired in-

formation. Those procedures require, for example, (1) strict controls on

access to and querying of Section 702 acquired data, regardless of the

nationality of the individual to whom the data pertains; (2) in depth

training for all personnel with access to raw Section 702 data; and (3)

deletion of data acquired when the statutory requirements have not been

met (e.g., a non-U.S. person Section 702 target who is outside of the

United State unexpectedly travels to the United States) or based on er-

rors in the application of Section 702 targeting or minimization proce-

dures.

The Act also imposes additional querying and use restrictions for

incidentally acquired Section 702 information concerning U.S. per-

sons, who may not be targeted under Section 702. The FBI must now

obtain a FISA Court order to access the contents of U.S. person queries

of Section 702 acquired information when the purpose of the query is

to retrieve evidence of a crime in connection with a criminal investiga-

tion unrelated to national security. Additionally, information concern-

ing a U.S. person acquired under Section 702 may not be used against

that U.S. person in a criminal proceeding unless such a FISA Court

order was obtained prior to reviewing the query results or the proceed-

ing involves national security or specified serious crimes.

Enhanced Oversight Mechanisms

Privacy and Civil Liberties Oversight Board

The Act makes two changes to the enabling statute for the Privacy

and Civil Liberties Oversight Board (PCLOB) that allows the PCLOB

to better exercise its advisory and oversight functions. First, the Act

provides that remaining members of the Board may appoint new staff

in the absence of a Chairman. Previously, the authority to appoint staff

members resided solely with the Chairman. The PCLOB staff currently

provides important assistance to the Board and continues its work

while the Board is without a quorum.

Second, the Act enhances the PCLOB members’ authority to meet

and deliberate in private by clarifying that, notwithstanding the open

meetings and procedural requirements of the Sunshine Act (5 U.S.C.

552b), Board members may meet or otherwise communicate in any

number to confer or deliberate in a manner that is closed to the public.

The PCLOB continues to be required to submit public reports and hold

public hearings.

Privacy and Civil Liberties Officers

An existing statute requires a number of agencies to establish and

maintain Privacy and Civil Liberties Officers (PCLOs) to serve as prin-

cipal advisor to their agencies on certain matters related to privacy and

civil liberties and to ensure that there are adequate procedures to re-

ceive, investigate, respond to, and redress complaints from individuals

who allege that the agency violated their privacy or civil liberties. Such

PCLOs are also to report directly to the head of the agency. Although

the Office of the Director of National Intelligence, the Department of

Defense, the Department of Justice, and the Central Intelligence

Agency were included in the earlier statute, the National Security

Agency (NSA) and Federal Bureau of Investigation (FBI), which are

within the departments of Defense and Justice respectively, were not.

The Act adds the FBI and the NSA to this list of agencies that are re-

quired to establish and maintain PCLOs.

Before the change in the Act, the NSA and the FBI had, as a matter

of policy and practice, already established and maintained PCLOs.

NSA’s PCLO, named in February 2014, has prepared and published

several important reports on NSA’s surveillance authorities and activi-

ties, and maintains a robust public presence:

https://www.nsa.gov/about/civil-liberties/. Likewise, the FBI has long

maintained a PCLO.

The Act represents Congressional ratification of existing practices

at both the NSA and the FBI, and reinforces the sense of Congress of

the importance of maintaining a PCLO at these agencies.

Whistleblower Protections for Contractors of the Intelligence Commu-

nity

The Act extends whistleblower protections to contract employees at

intelligence agencies. It prohibits management to retaliate against con-

tractors who report to Inspectors General, Congress, or other senior of-

ficials on violations of law, gross mismanagement, or abuses of author-

ity. Contractors were previously protected from agency management

retaliation in the security clearance process. The Act extends protec-

tions to personnel actions taken by a contractor’s employer.

New Oversight Provisions Complement Existing Oversight Mecha-

nisms

These new oversight provisions in the Act complement the many

intelligence oversight mechanisms already in place, including the FISA


Court’s review of compliance with its orders authorizing surveillance

programs and related procedures. Compliance at each intelligence

agency is further secured through requirements to report violations of

FISA orders, PCLOs (who serve as internal privacy officers), inde-

pendent Inspectors General, independent oversight bodies (such as the

PCLOB), and by Congress through its legislative and oversight role.

Enhanced Transparency Mechanisms

Additional Reporting Requirements

The Act increases transparency by imposing several additional dis-

closure requirements on the government, including annual good faith

estimates of the number of (1) Section 702 targets, (2) non-U.S. persons

targeted pursuant to certain FISA Court orders, including those involv-

ing the content of communications, and (3) criminal proceedings in

which the government provides notice to a person, regardless of nation-

ality, of its intent to disclose information acquired or derived from

FISA acquisition. It also requires the publication of the FISA Court-

approved Section 702 minimization procedures after a classification re-

view and application of necessary redactions.

Many of these new provisions mandate transparency measures that

the government previously had undertaken voluntarily. For example,

the government has already published partially redacted versions of the

Section 702 targeting and minimization procedures. Additionally, the

government already releases good faith estimates of the number of Sec-

tion 702 targets and of other non-U.S. persons targeted under other cer-

tain FISA provisions; these statistics have been published in the DNI’s

annual Statistical Transparency Reports.

These documents and a wealth of other information related to intel-

ligence activities, including thousands of pages of documents on FISA

Court proceedings and other intelligence-related matters, may be found

at the ODNI internet site called “IC on the Record.” The U.S. intelli-

gence agencies’ commitment to openness–including its commitment to

the IC’s Principles of Intelligence Transparency–is unsurpassed by any

intelligence service in the world and facilitates public scrutiny and

oversight of U.S. intelligence activities.

Page 355. Add as new notes 3, 4, 5 and 6 and renumber

existing notes 3 and 4 as notes 7 and 8.

3. The government’s data retention and data mining program that was

regularized by the provisions of the USA Freedom Act and was described

in the casebook continued to encounter difficulties. Media reports revealed:

1) that the NSA disclosed that it had discovered in October, 2018 that it had

inadvertently collected telephone data that it was not authorized to collect;

and 2) that subsequently the NSA inadvertently retained some of the data

that it had inappropriately collected even though it had indicated that the

data would be purged. See Charlie Savage, NSA Collected Data It Was Not

Authorized To, NY Times, June 27, 2019, A17; Charlie Savage, The N.S.A.

Didn’t Purge Some Data, a Report Says, NY Times, July 31, 2019, A20.

See Charlie Savage, The N.S.A. Didn’t Purge Some Data, A Report Says,

op. cit. supra.

4. On December 6, 2019, the Foreign Intelligence Surveillance Court

(FISC) issued a heavily redacted opinion and order (which was only made

public in September, 2020). See intelligence.gov/assets/docu-

ments/702%20Documents/declassified/2019_702_Cert_FISC_Opin-

ion_06Dec19_OCR.pdf

In the introductory paragraphs of the opinion were listed the certifications

under § 702(h) that it dealt with, as follows:

Part III addresses the targeting procedures, which include, among

other changes, new provisions that require the National Security

Agency and the Central Intelligence Agency to provide certain tar-

get-identifying information to the Federal Bureau of Investigation

… The Court finds that those procedures, as written, satisfy the re-

quirements of the statute. The Court examines the proposed mini-

mization procedures and querying procedures in Part IV. They in-

clude, among other changes, new provisions regarding user-activ-

ity monitoring activities by the FBI, CIA, and NSA. The Court

finds that the procedures, as written, also satisfy the requirements

of the statute.

The Court also concluded that the procedures that had been submitted for

approval were consistent with the Fourth Amendment. Further, the Court

also examined--

the FBI's progress in implementing recordkeeping and documenta-

tion requirements in the FBI's querying procedures, which came

into effect upon the Court's approval on September 4, 2019…

The Court concludes that the overall state of compliance and im-

plementation permits [certification]….

Finally, the Court also summarized its order in the concluding section of

the opinion. Inter alia, in this summary section, the Court also specified

the following:

Raw information obtained by NSA's upstream Internet collection

under section 702 shall not be provided to the FBI, the CIA or the

NCTC unless it is done pursuant to revised minimization proce-

dures that are adopted by the AG and DNI and submitted to the

FISC for review in conformance with section 702.


Also, in this summary section, the Court stated:

d. the government shall promptly submit in writing a report con-

cerning each instance in which FBI personnel accessed unmini-

mized section 702-acquired contents information that was returned

by a query that used a U.S.-person query term and was not de-

signed to find and extract foreign-intelligence information. The re-

port should include a detailed description of the information at is-

sue and the manner in which it has been or will be used for analyti-

cal, investigative or evidentiary purposes. It shall also identify the

query terms used to elicit the information and provide the FBI's ba-

sis for concluding that the query was consistent with applicable

procedures.

5. Several provisions in the USA Freedom Act of 2015 that contained

sunsetting clauses were extended by that Act to December 15, 2019. See

Elizabeth McElvein, The Political Landscape of FISA Reauthorization,

LawFare, February 25, 2020. Also see p. 355 of the casebook, first para-

graph. The three provisions concerned

"(1) the production of business records including call detail records

and other tangible things (sec. 215);

(2) roving electronic surveillance orders; and

(3) a revised definition of "agent of a foreign power" that includes

any non-U.S. persons who engage in international terrorism or pre-

paratory activities (commonly referred to as the "lone wolf" provi-

sion)."

It seems likely that there is strong majority support for extending the oper-

ation of these three provisions. As it turned out, however, the occasion for

renewing these provisions provided an opportunity to add additional lan-

guage to the FISA statute aimed at addressing a number of issues and pos-

sible remedies relating to various controversial aspects of the govern-

ment's FISA-related electronic surveillance programs. The difficulty of

dealing with these issues was further complicated by the fact that the

House of Representative, the Senate and the President had different views

of what legislative fixes were needed. And these issues were further in-

flamed by then-recent events relating to FISA, e.g. the discovery that the

basis for the Carter Page FISA warrant had been flawed and that the sub-

sequent DOJ Inspector reports had uncovered numerous mistakes in a se-

ries of FISA warrants. See supra, this Update, this chapter, notes for Page

262, note 4.

The tortured chronology of the efforts to reauthorize the three provi-

sions and make desired changes in the FISA procedures proceeded as fol-

lows:

1. As a temporizing action, legislation was adopted that reauthorized the

three provisions only for the period from December 15, 2019 to March

15, 2020. The March date passed, however, without a legislative ex-

tension having been enacted. The original enactment of these provi-

sions, however, had contained a savings clause that continued the law

in effect in regard to pre-existing investigations, and, for the present, it

seemed that no significant harm was being done to the government's

use of FISA in its investigations.

2. In the spring, 2020, there were differing views in both the House and

the Senate that led to a variety of proposals to amend the bill, in favor

of providing more civil liberties protections in the bill or aimed at en-

suring the accuracy and reliability of the information provided by the

FBI to the FISA court [which appears to have been a response to the

type of errors that appeared in the Carter Page FISA warrant. See su-

pra.]

3. In mid-May, 2020, the House and Senate passed slightly different ver-

sions of a bill reauthorizing the three provisions and adding additional

provisions. Excerpts from a summary of the provisions of the Senate

version of this bill that appears at https://www.con-

gress.gov/bill/116th-congress/house-bill/6172 are reproduced below:

This bill reauthorizes through December 1, 2023, provisions re-

lated to intelligence gathering under the Foreign Intelligence and

Surveillance Act (FISA) and amends FISA-related provisions.

The Federal Bureau of Investigation may not seek certain FISA-

authorized orders to obtain (1) call detail records on an ongoing

basis, (2) a tangible thing where a person has a reasonable expecta-

tion of privacy and a warrant would typically be required, or (3)

cellular or GPS location information.

…

In applications for certain FISA-authorized orders to obtain infor-

mation or conduct surveillance, the applicant must certify that [ed.

whether?] the Department of Justice (DOJ) has received any infor-

mation that might raise doubts about the application.

The bill increases criminal penalties for violations related to elec-

tronic surveillance conducted under color of law or false state-

ments made to the Foreign Intelligence Surveillance Court (FISA

court). A U.S. government employee, officer, or contractor

who engages in deliberate misconduct before a FISA court shall be

subject to adverse actions, such as removal from the individual's

position.

https://www.congress.gov/bill/116th-congress/house-bill/6172

https://www.congress.gov/bill/116th-congress/house-bill/6172


…

The bill broadens the FISA court's authority to appoint an amicus

curiae …and expands such amici's powers, such as the power to

ask the court to review a decision. An amicus may also seek the

court's permission to address any novel or significant privacy or

civil liberties issues arising in a case, even if the court did not ask

for assistance on that issue. The FISA court may employ legal ad-

visors to assist in considering any matter.

Efforts to arrive at an agreed upon version of the bill through votes of

the two houses of the Congress failed. The normal procedure in that situa-

tion would be then to convene a conference committee the members of

which are appointed by the leaders of the two houses of the Congress, to

reconcile the differences and produce a final version of the bill. The

Speaker of the House, Nancy Pelosi appointed the members from the

House of Representatives, but the Senate Majority Leader, Mitch

McConnell did not at the time, and as of time of this writing, still has not

appointed conference committee members from the Senate, thus leaving

the bill, effectively, in a state of suspended animation. Unless something

changes, as of the date of this writing, it looks like the bill will die, though

it is an odd way to kill proposed legislation and rather late in the legisla-

tive process to do so. What might have accounted for this outcome?

See Margaret Taylor, The Specter of FISA Reform Haunts Capitol Hill,

LawFare, May 29, 2020, https://www.lawfareblog.com/specter-fisa-re-

form-haunts-capitol-hill which describes the various votes on different

amendments that cost votes and support along the way but ends up focus-

ing on a tweet from President Trump that the author seems to view as ad-

ministering the coup de grace to the proposed legislation.

Donald J. Trump

@realDonaldTrump

·May 26

I hope all Republican House Members vote NO on FISA until such

time as our Country is able to determine how and why the greatest

political, criminal, and subversive scandal in USA history took

place!

See also Charlie Savage, McConnell Appears Set to Let Long-Debated

Surveillance Bill Wither, NY Times, August 15, 2020, which contains

similar speculations and focuses on McConnell's failure to appoint mem-

bers to the conference committee.

https://www.lawfareblog.com/specter-fisa-reform-haunts-capitol-hill

https://www.lawfareblog.com/specter-fisa-reform-haunts-capitol-hill

https://twitter.com/realDonaldTrump




https://twitter.com/realDonaldTrump/status/1265422768625123335

Meanwhile, the three FISA provisions have not been renewed. What are

the implications for FISA-authorized national security and anti-terrorist in-

vestigations? Ms. Taylor in the afore-referenced Lawfare article summa-

rizes the question nicely: "What impact will a longer term, or even perma-

nent, lapse of these authorities actually have on law enforcement and intel-

ligence capabilities?"

6. Suppose a criminal defendant alleges that as a result of the kind of

mining the metadata that is described in the casebook, an evidentiary lead

is discovered that is part of the basis for obtaining a FISA warrant that in

turn produces wiretap evidence that was introduced in his criminal trial.

Consider in this connection the following case:

United States v. Moalin

973 F. 3d 977 (9th Cir. 2020)

Before: Marsha S. Berzon and Jacqueline H. Nguyen, Circuit Judges,

and Jack Zouhary, District Judge.

BERZON, Circuit Judge:

INTRODUCTION

Four members of the Somali diaspora appeal from their convictions for

sending, or conspiring to send, $10,900 to Somalia to support a foreign

terrorist organization. Their appeal raises complex questions regarding the

U.S. government's authority to collect bulk data about its citizens’ activi-

ties under the auspices of a foreign intelligence investigation, as well as

the rights of criminal defendants when the prosecution uses information

derived from foreign intelligence surveillance. We conclude that the gov-

ernment may have violated the Fourth Amendment and did violate the

Foreign Intelligence Surveillance Act (“FISA”) when it collected the te-

lephony metadata of millions of Americans, including at least one of the

defendants, but suppression is not warranted on the facts of this case. Ad-

ditionally, we confirm that the Fourth Amendment requires notice to a

criminal defendant when the prosecution intends to enter into evidence or

otherwise use or disclose information obtained or derived from surveil-

lance of that defendant conducted pursuant to the government's foreign in-

telligence authorities. We do not decide whether the government failed to

provide any required notice in this case because the lack of such notice did

not prejudice the defendants. After considering these issues and several

others raised by the defendants, we affirm the convictions in all respects.

BACKGROUND

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I.

Somalia's turbulent recent history forms the backdrop for this case. Af-

ter military dictator Siad Barre was ousted in 1991, the country spiraled

into civil war. Fighting between rival warlords led to a humanitarian crisis

in Mogadishu, Somalia's capital, and other parts of the country. An esti-

mated 30,000 people died in Mogadishu alone, and hundreds of thousands

more were displaced. As the war continued, its impact on the populace

was exacerbated by recurring periods of severe drought and famine.

In 2004, an interim government for Somalia, the Transitional Federal

Government (“TFG”), was established in Kenya. Although the TFG re-

ceived significant international support, it faced widespread distrust and

opposition in Somalia. The TFG installed itself in Somalia with the protec-

tion of Ethiopian military forces, which occupied Somalia beginning in

2006. Somali opposition to the TFG and the Ethiopian occupation devel-

oped into a broad-based, violent insurgency undertaken by a variety of

groups with disparate agendas.

One element of the insurgency was a group called “al-Shabaab,”

which means “the youth” in Arabic. Al-Shabaab used distinctive types of

violence, such as improvised explosive devices and suicide bombings. In

March 2008, the United States designated al-Shabaab a foreign terrorist

organization. A key figure in al-Shabaab, Aden Hashi Ayrow, was killed

in a U.S. missile strike on May 1, 2008.

Many Somalis have fled the country. An estimated three million live

abroad, creating a global Somali diaspora. Somalis abroad often remain

actively engaged in developments in Somalia, and contributions from the

diaspora are a critical source of financial support within the troubled coun-

try. As Somalia has no formal banking system, members of the diaspora

who wish to send money back frequently rely on informal money transfer

businesses called “hawalas.”

II.

Defendants Basaaly Saeed Moalin (“Moalin”), Mohamed Mohamed

Mohamud (“M. Mohamud”), Issa Doreh (“Doreh”), and Ahmed Nasir

Taalil Mohamud (“Nasir Mohamud”) immigrated to the United States

from Somalia years ago and lived in Southern California. Moalin and Na-

sir Mohamud were taxicab drivers; M. Mohamud was an imam at a

mosque; and Doreh worked at Shidaal Express, a hawala.

Between October 2010 and June 2012, the United States (“the govern-

ment”) charged defendants in a five-count indictment with conspiring to

send and sending $15,900 to Somalia between January and August of

2008 to support al-Shabaab. The charges against all four defendants were:

conspiracy to provide material support to terrorists, in violation of 18

U.S.C. § 2339A(a); conspiracy to provide material support to a foreign ter-

rorist organization, in violation of 18 U.S.C. § 2339B(a)(1); and conspir-

acy to launder monetary instruments, in violation of 18 U.S.C. §

1956(a)(2)(A) and (h). Moalin, M. Mohamud, and Doreh were charged

with an additional count of providing material support to a foreign terrorist

organization, in violation of 18 U.S.C. § 2339B(a)(1) and (2), and Moalin

was charged with a further count of conspiracy to provide material support

to terrorists in violation of 18 U.S.C. § 2339A(a), based on his alleged

provision of a house in Somalia to members of al-Shabaab.

Shortly after filing the initial indictment, the government filed notice

that it intended to use or disclose in the proceedings “information obtained

or derived from electronic surveillance conducted pursuant to the authority

of the Foreign Intelligence Surveillance Act.” At trial, the government's

principal evidence against defendants consisted of a series of recorded

calls between Moalin, his codefendants, and individuals in Somalia, ob-

tained through a wiretap of Moalin's phone. The government obtained ac-

cess to Moalin's calls after receiving a court order under FISA Subchapter

I, 50 U.S.C. §§ 1801–1812. …. In addition to the intercepted phone calls,

the government introduced records of money transfers completed by

Shidaal Express, the hawala where Doreh worked.

…

Defendants did not dispute that they sent money to Somalia through

Shidaal Express, but they did dispute that the money was intended to sup-

port al-Shabaab. They maintained that … that their money went to support

the work of regional administrations governing in the absence of an effec-

tive central government. Moalin also presented evidence that he supported

humanitarian causes in Somalia during the time period of the indictment.

In February 2013, the jury convicted defendants on all counts.

III.

Before trial, Moalin moved to suppress, among other things, “all inter-

ceptions made and electronic surveillance conducted pursuant to

[FISA], 50 U.S.C. § 1801, et seq., and any fruits thereof, and/or for disclo-

sure of the underlying applications for FISA warrants.” Moalin contended

that information in the government's applications for the FISA wiretap

may have been “generated by illegal means”—that is, that the government

may have violated the Fourth Amendment or its statutory authority under

FISA in collecting information supporting the FISA warrants. The district

court denied Moalin's suppression motion and did not grant security-

cleared defense counsel access to the documents supporting the FISA or-

ders.

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Two days before trial, the prosecution disclosed an email from a re-

dacted FBI email address to the government's Somali linguist, who was

monitoring Moalin's phone calls during the wiretap. The email said: “We

just heard from another agency that Ayrow tried to make a call to Basaaly

[Moalin] today, but the call didn't go through. If you see anything today,

can you give us a shout? We're extremely interested in getting real-time

info (location/new #’s) on Ayrow.”

Months after the trial, in June 2013, former National Security Agency

(“NSA”) contractor Edward Snowden made public the existence of NSA

data collection programs. One such program, conducted under FISA Sub-

chapter IV, involved the bulk collection of phone records, known as te-

lephony metadata, from telecommunications providers. Other programs,

conducted under the FISA Amendments Act of 2008, involved the collec-

tion of electronic communications, such as email messages and video

chats, including those of people in the United States.

Subsequent statements of public officials defending the telephony

metadata collection program averred that the program had played a role in

the government's investigation of Moalin. These statements reported that

the FBI had previously closed an investigation focused on Moalin without

bringing charges, then reopened that investigation based on information

obtained from the metadata program.

For instance, in a hearing before the House Permanent Select Commit-

tee on Intelligence held shortly after the Snowden disclosures, then-FBI

Deputy Director Sean Joyce described a post-9/11 investigation conducted

by the FBI that initially “did not find any connection to terrorist activity.

Several years later, under [FISA Subchapter IV], the NSA provided us a

telephone number only in San Diego that had indirect contact with an ex-

tremist outside the United States.” Joyce explained that the FBI “served le-

gal process to identify who was the subscriber to this telephone number,”

then, after “further investigation and electronic surveillance that we ap-

plied specifically for this U.S. person with the FISA Court, we were able

to identify co-conspirators, and we were able to disrupt” their financial

support to a Somali designated terrorist group. According to Joyce, “if [the

FBI] did not have the tip from NSA, [it] would not have been able to reo-

pen that investigation.” In another congressional hearing, Joyce specifi-

cally named Moalin as the target of the investigation.

On September 30, 2013, defendants filed a motion for a new trial. De-

fendants argued that the government's collection and use of Moalin's te-

lephony metadata violated the Fourth Amendment, and that the govern-

ment had failed to provide notice of the metadata collection or of any sur-

veillance of Moalin it had conducted under the FISA Amendments Act, in-

cluding, potentially, the surveillance referred to in the email to the linguist.

The district court denied the motion, concluding that “public disclosure of

the NSA program adds no new facts to alter the court's FISA ... rulings,”

and that the telephony metadata program did not violate the Fourth

Amendment. United States v. Moalin, No. 10-CR-4246 JM, 2013 WL

6079518, at *4, *8 (S.D. Cal. Nov. 18, 2013).

This appeal followed. On appeal, defendants continue to challenge the

metadata collection and the lack of notice of both the metadata collection

and of any additional surveillance not disclosed by the government. They

also make arguments regarding the government's obligation to produce ex-

culpatory evidence; the district court's evidentiary rulings; and the suffi-

ciency of the evidence to convict Doreh. We present the facts relating to

each argument as we analyze it.

DISCUSSION

I. The Telephony Metadata Collection Program

The government's telephony metadata collection program was author-

ized in a series of classified orders by the FISA Court under FISA Sub-

chapter IV, the “business records” subchapter.

The court orders authorized the NSA to compile the records into a da-

tabase and to query the database under certain conditions to obtain foreign

intelligence information. During the time period relevant to this case, the

government was permitted to search the database when certain NSA offi-

cials determined that “reasonable, articulable suspicion” existed connect-

ing a specific selection term—for example, a particular phone number—

with “one of the identified international terrorist organizations.” Id. The

government was also allowed to search phone numbers within three

“hops” of that selector, i.e., the phone numbers directly in contact with a

selector, the numbers that had been in contact with those numbers, and the

numbers that had been in contact with those numbers. In re Application of

the FBI for an Order Requiring the Prod. of Tangible Things from [re-

dacted], No. BR 14-96, 2014 WL 5463290, at *2 & n.2 (FISA Ct. June

19, 2014).

Snowden's disclosure of the metadata program prompted significant

public debate over the appropriate scope of government surveillance. In

June 2015, Congress passed the USA FREEDOM Act, which effectively

ended the NSA's bulk telephony metadata collection program. Pub. L. No.

114-23, 129 Stat. 268 (codified at 50 U.S.C. § 1861). The Act prohibited

further bulk collection of phone records after November 28,

2015. Id.; see Smith v. Obama, 816 F.3d 1239, 1241 (9th Cir. 2016). Be-

sides ending the bulk collection program, Congress also established new

reporting requirements relating to the government's collection of call detail

records. Pub. L. No. 114-23, § 601, 129 Stat. at 291.

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Defendants contend that the discontinued metadata program violated

both the Fourth Amendment and FISA Subchapter IV, under which it was

authorized. They argue that the “fruits” of the government's acquisition of

Moalin's phone records should therefore have been suppressed. According

to defendants, those fruits included the phone records themselves and the

evidence the government obtained through its subsequent wiretap of

Moalin's phone.

A.

Moalin contends that the metadata collection violated his Fourth

Amendment “right ... to be secure ... against unreasonable searches and

seizures.” U.S. Const. amend. IV. A person may invoke the protections of

the Fourth Amendment by showing he had “an actual (subjective) expecta-

tion of privacy,” and “the expectation [is] one that society is prepared to

recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Moalin asserts

he had a reasonable expectation of privacy in his telephony metadata.

The district court held, and the government argues, that this case is

controlled by Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d

220 (1979), which helped establish the so-called third-party doctrine in

Fourth Amendment jurisprudence. Smith held that the government's use of

a pen register to record the numbers the defendant dialed from his home

telephone did not constitute a Fourth Amendment search, because individ-

uals have no reasonable expectation of privacy in information they volun-

tarily convey to the telephone company. Id. at 742–43, 99 S.Ct.

2577. Smith relied on United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619,

48 L.Ed.2d 71 (1976), which had held that defendants had no legitimate

expectation of privacy in their bank records. The government argues that

the NSA's collection of Moalin's telephony metadata is indistinguishable,

for Fourth Amendment purposes, from the use of the pen register in Smith.

There are strong reasons to doubt that Smith applies here. Advances in

technology since 1979 have enabled the government to collect and analyze

information about its citizens on an unprecedented scale. Confronting

these changes, and recognizing that a “central aim” of the Fourth Amend-

ment was “to place obstacles in the way of a too permeating police sur-

veillance,” the Supreme Court recently declined to “extend” the third-

party doctrine to information whose collection was enabled by new tech-

nology. Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2214,

2217, 201 L.Ed.2d 507 (2018) (quoting United States v. Di Re, 332 U.S.

581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948)).

Carpenter did not apply the third-party doctrine to the government's

acquisition of historical cell phone records from the petitioner's wireless

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carriers. The records revealed the geographic areas in which the petitioner

used his cell phone over a period of time. Id. at 2220. Citing the “unique

nature of cell phone location information,” the Court concluded in Car-

penterthat “the fact that the Government obtained the information from a

third party does not overcome [the petitioner's] claim to Fourth Amend-

ment protection,” because there is “a world of difference between the lim-

ited types of personal information addressed in Smith ... and the exhaustive

chronicle of location information casually collected by wireless carriers

today.” Id. at 2219–20.

There is a similar gulf between the facts of Smith and the NSA's long-

term collection of telephony metadata from Moalin and millions of other

Americans. In Smith, a woman was robbed and gave the police a descrip-

tion of the robber and of a car she saw nearby. 442 U.S. at 737, 99 S.Ct.

2577. After the robbery, the woman received “threatening and obscene

phone calls from a man identifying himself as the robber.” Id. Police later

spotted a man and car matching the robber's description and traced the li-

cense plate number to Smith. Id. Without obtaining a warrant, they asked

the telephone company to install a “pen register,” a device that would rec-

ord the numbers dialed from Smith's home telephone. Id. The day the pen

register was installed it recorded a call from Smith's home to the home of

the robbery victim. Id. Based on that and other evidence, police obtained a

warrant to search Smith's home and arrested him two days later. Id.

Holding that the use of the pen register did not constitute a “search” for

Fourth Amendment purposes, id. at 745–46, 99 S.Ct. 2577, the Court rea-

soned, first, that it was unlikely “that people in general entertain any actual

expectation of privacy in the numbers they dial,” id. at 742, 99 S.Ct. 2577.

Second, “even if [Smith] did harbor some subjective expectation that the

phone numbers he dialed would remain private, this expectation is not

‘one that society is prepared to recognize as “reasonable.” ’ ” Id. at 743,

99 S.Ct. 2577 (quoting Katz, 389 U.S. at 361, 88 S.Ct. 507). Smith had

“voluntarily conveyed numerical information to the telephone company”

and in so doing had “assumed the risk that the company would reveal to

police the numbers he dialed.” Id. at 744, 99 S.Ct. 2577.

The distinctions between Smith and this case are legion and most prob-

ably constitutionally significant. To begin with, the type of information

recorded in Smith was “limited” and of a less “revealing nature” than the

telephony metadata at issue here. Carpenter, 138 S. Ct. at 2219. The pen

register did not disclose the “identities” of the caller or of the recipient of a

call, “nor whether the call was even completed.” Smith, 442 U.S. at 741,

99 S.Ct. 2577 (quoting United States v. New York Tel. Co., 434 U.S. 159,

167, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)). In contrast, the metadata in

this case included “comprehensive communications routing information,





























including but not limited to session identifying information (e.g., originat-

ing and terminating telephone number, International Mobile station Equip-

ment Identity (IMEI) number, International Mobile Subscriber Identity

(IMSI) number, etc.), trunk identifier, telephone calling card numbers, and

time and duration of call.” In re Application II, 2013 WL 5741573, at *1

n.2. “IMSI and IMEI numbers are unique numbers associated with a par-

ticular telephone user or communications device.” Br. of Amici Curiae

Brennan Center for Justice 11. “A ‘trunk identifier’ provides information

about where a phone connected to the network, revealing data that can lo-

cate the parties within approximately a square kilometer.” Id. at 11–12.

Although the Smith Court perceived a significant distinction between

the “contents” of a conversation and the phone number dialed, see 442

U.S. at 743, 99 S.Ct. 2577, in recent years the distinction between content

and metadata “has become increasingly untenable,” as Amici point out.

Br. of Amici Curiae Brennan Center for Justice 6. The amount of metadata

created and collected has increased exponentially, along with the govern-

ment's ability to analyze it. “Records that once would have revealed a few

scattered tiles of information about a person now reveal an entire mo-

saic—a vibrant and constantly updating picture of the person's life.” Klay-

man v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013), vacated and re-

manded, 800 F.3d 559 (D.C. Cir. 2015). According to the NSA's former

general counsel Stewart Baker, “[m]etadata absolutely tells you everything

about somebody's life. ... If you have enough metadata you don't really

need content ....” Laura K. Donohue, The Future of Foreign Intelli-

gence 39 (2016). The information collected here was thus substantially

more revealing than the telephone numbers recorded in Smith.

The duration of the collection in this case—and so the amount of infor-

mation collected—also vastly exceeds that in Smith. While the pen register

in Smith was used for a few days at most, here the NSA collected Moalin's

(and millions of other Americans’) telephony metadata on an ongoing,

daily basis for years. Carpenter distinguished between using a beeper to

track a car “during a discrete automotive journey,” which the Court had

upheld in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75

L.Ed.2d 55 (1983), and using cell phone location information to reveal “an

all-encompassing record of the holder's whereabouts” “over the course of

127 days.” 138 S. Ct. at 2215, 2217 (internal quotation marks omitted). As

the Court put it, “Sprint Corporation and its competitors are not your typi-

cal witnesses. Unlike the nosy neighbor who keeps an eye on comings and

goings, they are ever alert, and their memory is nearly infallible.” Id. at

2219.

Like the cell phone location information in Carpenter, telephony

metadata, “as applied to individual telephone subscribers, particularly with



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relation to mobile phone services and when collected on an ongoing basis

with respect to all of an individual's calls ... permit something akin to ...

24-hour surveillance ....” Am. Civil Liberties Union v. Clapper, 785 F.3d

787, 824 (2d Cir. 2015). This long-term surveillance, made possible by

new technology, upends conventional expectations of privacy. Histori-

cally, “surveillance for any extended period of time was difficult and

costly and therefore rarely undertaken.” United States v. Jones, 565 U.S.

400, 429, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Alito, J., concurring in

the judgment). Society may not have recognized as reasonable Smith's ex-

pectation of privacy in a few days’ worth of dialed numbers but is much

more likely to perceive as private several years’ worth of telephony

metadata collected on an ongoing, daily basis—as demonstrated by the

public outcry following the revelation of the metadata collection program.

Also problematic is the extremely large number of people from whom

the NSA collected telephony metadata, enabling the data to be aggregated

and analyzed in bulk. The government asserts that “the fact that the NSA

program also involved call records relating to other people ... is irrelevant

because Fourth Amendment rights ... cannot be raised vicariously.” Br. of

United States 58. The government quotes the FISA Court, which reasoned

similarly that “where one individual does not have a Fourth Amendment

interest, grouping together a large number of similarly-situated individuals

cannot result in a Fourth Amendment interest springing into existence ex

nihilo.” In re Application II, 2013 WL 5741573, at *2. But these observa-

tions fail to recognize that the collection of millions of other people's te-

lephony metadata, and the ability to aggregate and analyze it, makes the

collection of Moalin's own metadata considerably more revealing.

A couple of examples illustrate this point: A woman calls her sister at

2:00 a.m. and talks for an hour. The record of that call reveals some of the

woman's personal information, but more is revealed by access to the sis-

ter's call records, which show that the sister called the woman's husband

immediately afterward. Or, a police officer calls his college roommate for

the first time in years. Afterward, the roommate calls a suicide hotline.

These are simple examples; in fact, metadata can be combined and ana-

lyzed to reveal far more sophisticated information than one or two individ-

uals’ phone records convey. As Amici explain, “it is relatively simple to

superimpose our metadata trails onto the trails of everyone within our so-

cial group and those of everyone within our contacts’ social groups and

quickly paint a picture that can be startlingly detailed”—for example,

“identify[ing] the strength of relationships and the structure of organiza-

tions.” Br. of Amici Curiae Brennan Center for Justice 21 (internal quota-

tion marks and alterations omitted). Thus, the very large number of people







from whom telephony metadata was collected distinguishes this case

meaningfully from Smith.

Finally, numerous commentators and two Supreme Court Justices have

questioned the continuing viability of the third-party doctrine under cur-

rent societal realities. The assumption-of-risk rationale underlying the doc-

trine is “ill suited to the digital age, in which people reveal a great deal of

information about themselves to third parties in the course of carrying out

mundane tasks.” Jones, 565 U.S. at 417, 132 S.Ct. 945 (Sotomayor, J.,

concurring). “Even our most private documents—those that, in other eras,

we would have locked safely in a desk drawer or destroyed—now reside

on third party servers. Smith ... teach[es] that the police can review all of

this material, on the theory that no one reasonably expects any of it will be

kept private. But no one believes that, if they ever did.” Carpenter, 138 S.

Ct. at 2262 (Gorsuch, J., dissenting).

For all these reasons, defendants’ Fourth Amendment argument has

considerable force. But we do not come to rest as to whether the discontin-

ued metadata program violated the Fourth Amendment because even if it

did, suppression would not be warranted on the facts of this

case. See United States v. Ankeny, 502 F.3d 829, 836–37 (9th Cir.

2007) (declining to decide “close” Fourth Amendment question where

suppression was “not appropriate”). Having carefully reviewed the classi-

fied FISA applications and all related classified information, we are con-

vinced that under established Fourth Amendment standards, the metadata

collection, even if unconstitutional, did not taint the evidence introduced

by the government at trial. See Wong Sun v. United States, 371 U.S. 471,

488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). To the extent the public state-

ments of government officials created a contrary impression, that impres-

sion is inconsistent with the contents of the classified record.

B.

Defendants also argue that the metadata collection program violated

FISA Subchapter IV, under which the FISA Court authorized it.

1.

At the outset, the government asserts that Moalin lacks standing to

pursue his statutory challenge…

As our cases have explained, “Fourth amendment standing is quite dif-

ferent ... from ‘case or controversy’ determinations of article III stand-

ing.” United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991). Whereas

Article III standing concerns our jurisdiction, Fourth Amendment standing

“is a matter of substantive fourth amendment law; to say that a party lacks











fourth amendment standing is to say that his reasonable expectation of pri-

vacy has not been infringed.” Id.8

We reject the government's invitation to dispense with defendants’

statutory argument on the basis of Fourth Amendment standing. First,

as Carpenter clarified after this case was briefed, there is no categorical

rule preventing criminal defendants from challenging third-party subpoe-

nas. Carpenter, 138 S. Ct. at 2221. Second, as discussed above, Moalin

likely had a reasonable expectation of privacy in his telephony metadata—

at the very least, it is a close question. Finally, and most importantly, de-

fendants’ statutory and Fourth Amendment arguments rest on independent

legal grounds, and we see no reason why Moalin's “standing” to pursue

the statutory challenge should turn on the merits of the Fourth Amendment

issue. We therefore proceed to the merits of the statutory challenge.

2.

Section 1861 of FISA Subchapter IV authorizes the government to ap-

ply to the FISA Court for an “order requiring the production of any tangi-

ble things (including ... records ...) for an investigation to obtain foreign

intelligence information not concerning a United States person or to pro-

tect against international terrorism or clandestine intelligence activi-

ties.” 50 U.S.C. § 1861(a)(1).9 At the time relevant to this case, the statute

required the government to include in its application “a statement of facts

showing that there are reasonable grounds to believe that the tangible

things sought are relevant to an authorized investigation (other than a

threat assessment).” 50 U.S.C. § 1861(b)(2)(A) (2006) (emphasis added).

Defendants argue that the metadata program defied this relevance require-

ment because the government collected phone records in bulk, without re-

gard to whether any individual record was relevant to any specific, al-

ready-authorized investigation.

The government's theory, expressed in its initial application to the

FISA Court to authorize the metadata collection, was that “[a]lthough ad-

mittedly a substantial portion of the telephony metadata that is collected

would not relate to operatives of [redacted], the intelligence tool that the

Government hopes to use to find [redacted] communications—metadata

analysis—requires collecting and storing large volumes of the metadata to

enable later analysis.” Mem. of Law in Supp. of Appl. for Certain Tangi-

ble Things for Investigations to Protect Against International Terrorism

15, In re Application of the FBI for an Order Requiring the Prod. of Tan-

gible Things, No. BR 06-05 (FISA Ct. May 23, 2006). According to the

government, “[a]ll of the metadata collected is thus relevant, because the

success of this investigative tool depends on bulk collection.” Id.


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Defendants respond that Congress intended for the relevance require-

ment to be a limiting principle. They argue that the government's interpre-

tation of the word “relevant” is essentially limitless and so contravenes the

statute. Defendants rely principally on Clapper, which held that the text

of section 1861 “cannot bear the weight the government asks us to assign

to it, and ... does not authorize the telephone metadata program.” 785 F.3d

at 821. We agree.

As the Second Circuit noted, the “expansive concept of ‘relevance’”

used by the government to justify the metadata program “is unprecedented

and unwarranted.” Id. at 812. The government had argued in Clapper that

Congress's intention in adopting section 1861 was to give the government

“broad-ranging investigative powers analogous to those traditionally used

in connection with grand jury investigations into possible criminal behav-

ior.” Id. at 811. Although the Second Circuit agreed with that premise, it

concluded that the metadata collection orders were dissimilar from grand

jury subpoenas with respect to both the quantity and the quality of the in-

formation sought. First, “while ... subpoenas for business records may en-

compass large volumes of paper documents or electronic data, the most

expansive of such evidentiary demands are dwarfed by the volume of rec-

ords obtained pursuant to the orders in question here.” Id. at 813. Second,

“document subpoenas typically seek the records of a particular individual

or corporation under investigation, and cover particular time periods when

the events under investigation occurred,” but the metadata collection or-

ders “contain[ed] no such limits.” Id.

The Second Circuit also reasoned that the term “relevant” in section

1861 takes meaning from its context: records sought must be “relevant to

an authorized investigation.” 50 U.S.C. § 1861(b)(2)(A) (2006) (emphasis

added). The court faulted the government for referring to the records col-

lected under the metadata program “as relevant to ‘counterterrorism inves-

tigations,’ without identifying any specific investigations to which such

bulk collection is relevant.” Clapper, 785 F.3d at 815.

Here, the government, in the two pages it devotes to defending the

metadata program's compliance with FISA, maintains that the Second Cir-

cuit got it wrong because “[t]here were in fact multiple specified counter-

terrorism investigations for which the [FISA Court], in repeatedly approv-

ing the program, found reasonable grounds to believe the telephony

metadata would be relevant.” Br. of United States 53. But, as the Second

Circuit noted, referring to the findings of the Privacy and Civil Liberties

Oversight Board (“PCLOB”) in a 2014 report on the metadata collection

program:

[T]he government's practice is to list in § [1861] applications mul-

tiple terrorist organizations, and to declare that the records being















sought are relevant to the investigations of all of those groups. ... As

the [PCLOB] report puts it, that practice is “little different, in practical

terms, from simply declaring that they are relevant to counterterrorism

in general. ... At its core, the approach boils down to the proposition

that essentially all telephone records are relevant to essentially all in-

ternational terrorism investigations.”

785 F.3d at 815 (quoting Privacy and Civil Liberties Oversight Board,

Rep. on the Tel. Records Program Conducted Under Section 215 of the

USA PATRIOT Act and on the Operations of the Foreign Intelligence

Surveillance Court 59–60 (Jan. 23, 2014)). The government's approach

“essentially reads the ‘authorized investigation’ language out of the stat-

ute.” Id. at 815–16.

Finally, we do not accept the government's justification in this case

that “the call detail records at issue here—the records that suggested that a

particular U.S.-based telephone number may have been associated with a

foreign terrorist—were clearly relevant to a counterterrorism investiga-

tion.” Br. of United States 52 (emphasis added). That argument depends

on an after-the-fact determination of relevance: once the government had

collected a massive amount of call records, it was able to find one that was

relevant to a counterterrorism investigation. The problem, of course, is

that FISA required the government to make a showing of relevance to a

particular authorized investigation before collecting the records. 50 U.S.C.

§ 1861(b)(2)(A) (2006).

We hold that the telephony metadata collection program exceeded the

scope of Congress's authorization in section 1861and therefore violated

that section of FISA. See Clapper, 785 F.3d at 826.

3.

As a remedy for the FISA violation, defendants ask us to suppress the

alleged “fruits” of the unlawful metadata collection, including the evi-

dence from the government's wiretap of Moalin's phone. Because “sup-

pression is a disfavored remedy,” we impose it to remedy a statutory vio-

lation “only ... where it is clearly contemplated by the relevant stat-

ute.” United States v. Forrester, 512 F.3d 500, 512 (9th Cir. 2008). To de-

cide whether suppression is clearly contemplated by FISA in this context,

we begin with 50 U.S.C. § 1861, the section under which Moalin's

metadata was collected and which that collection violated.

Section 1861 authorizes the recipient of a production order to “chal-

lenge the legality” of the order. Id. § 1861(f)(2)(A)(i). But it does not ex-

pressly provide for a challenge by the subject of the records collected—

that is, the person whose records are collected from a third party. Nor

does section 1861, either as it read at the time relevant to this case, or as it












reads now, after amendment by the USA Freedom Act, contain any provi-

sion for suppressing in a criminal trial evidence obtained in violation of

the section. Compare 50 U.S.C. § 1861 with 50 U.S.C. § 1861 (2006). The

remainder of Subchapter IV likewise makes no mention of a suppression

remedy.

The lack of a suppression remedy in section 1861, and in Subchapter

IV more generally, is significant because all the other FISA subchapters

authorizing intelligence collection do contain a suppression remedy. See

id. § 1806(g) (Subchapter I, concerning electronic surveillance); id. §

1825(h) (Subchapter II, concerning physical searches); id. § 1845(g) (Sub-

chapter III, concerning pen registers and trap-and-trace devices); id. §

1881e(b) (Subchapter VI, or the FISA Amendments Act, concerning sur-

veillance of persons outside the United States).

Of particular significance is that Congress added Subchapters III and

IV to FISA in the same legislation. It chose expressly to authorize a sup-

pression remedy in Subchapter III but not in Subchapter IV. See Pub. L.

No. 105-272, Title VI, §§ 601–602, 112 Stat. 2396, 2404–2412 (1998).

“[W]here Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the disparate inclusion or

exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78

L.Ed.2d 17 (1983) (alteration in original). This presumption is “strongest

in those instances in which the relevant statutory provisions were consid-

ered simultaneously when the language raising the implication was in-

serted,” as is the case with Subchapters III and IV. Gomez-Perez v. Potter,

553 U.S. 474, 486, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008) (internal quo-

tation marks omitted). We therefore conclude that suppression is not

“clearly contemplated” by section 1861, Forrester, 512 F.3d at 512, and

that there is no statutory basis for suppressing Moalin's metadata itself.

…

To obtain the Moalin wiretap order, the government submitted an ap-

plication to the FISA Court including, among other things, “a statement of

the facts and circumstances relied upon by the applicant to justify his be-

lief that ... the target of the electronic surveillance is a foreign power or an

agent of a foreign power.” 50 U.S.C. § 1804(a)(4)(A) (2006). The govern-

ment's application is classified, and the district court denied defendants’

request to see it. Nonetheless, defendants assume, based on the public

statements of government officials following the Snowden disclo-

sures, that the application relied at least in part on Moalin's metadata. De-

fendants contend that because the metadata was obtained in violation of

the “relevance” provision in Subchapter IV, 50 U.S.C. § 1861(b)(2)(A)




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(2006), the evidence obtained from the subsequent wiretap was therefore

“unlawfully acquired” for purposes of Subchapter I, 50 U.S.C. § 1806(e).

Contrary to defendants’ assumption, the government maintains that

Moalin's metadata “did not and was not necessary to support the requisite

probable cause showing” for the Subchapter I application in this case. Our

review of the classified record confirms this representation. Even if we

were to apply a “fruit of the poisonous tree” analysis, see Wong Sun, 371

U.S. at 487–88, 83 S.Ct. 407, we would conclude, based on our careful re-

view of the classified FISA applications and related information, that the

FISA wiretap evidence was not the fruit of the unlawful metadata collec-

tion. Again, if the statements of public officials created a contrary impres-

sion, that impression is inconsistent with the facts presented in the classi-

fied record. Because the wiretap evidence was not “unlawfully acquired,”

suppression is not warranted. 50 U.S.C. § 1806(e).

II. Notice of Surveillance Activities

Separately from their contention that the metadata collection violated

their Fourth Amendment rights, defendants maintain that the Fourth

Amendment required the government to provide notice to defendants of its

collection and use of Moalin's telephony metadata. They also contend that

they were entitled to notice of any additional surveillance, other than FISA

Subchapter I surveillance, that the government conducted of them during

the course of its investigation.

A.

After defendants were indicted, the government notified them and the

district court that it intended to “use or disclose” in “proceedings in this

case information obtained or derived from electronic surveillance con-

ducted pursuant to the authority of [FISA].” See 50 U.S.C. §

1806(c) (FISA Subchapter I notice requirement). That information turned

out to be recordings and transcripts of defendants’ phone calls stemming

from the government's wiretap of Moalin's cell phone under FISA Sub-

chapter I.

The government did not notify defendants that it had collected Moal-

in's phone records as part of the metadata program. Defendants learned

that after trial—from the public statements that government officials made

in the wake of the Snowden disclosures. See supra pp. 987–88. Nor did

the government provide notice of any additional surveillance, apart from

FISA Subchapter I surveillance, it had conducted of defendants. …

Just months after defendants’ convictions, news articles in the wake of

the Snowden disclosures revealed that the government had been using evi-


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dence derived from foreign intelligence surveillance in criminal prosecu-

tions without notifying the defendants of the surveillance. Five years ear-

lier, Congress had passed the FISA Amendments Act (“FAA”), which pro-

vided congressional authorization for a surveillance program the govern-

ment had previously conducted outside the auspices of FISA. Pub. L. No.

110-261, 122 Stat. 2436 (2008); see Kris & Wilson, supra note 5, § 17:1.

The FAA permits the government to conduct electronic surveillance of

people it believes are located outside the United States without using the

procedures required by FISA Subchapter I. 50 U.S.C. §§

1881a, 1881b, 1881c. If the government intends to use evidence “obtained

or derived from” FAA surveillance in a criminal prosecution, however, it

must provide notice to the defendants as required by FISA Subchapter

I. Id. §§ 1806(c), 1881e(a)(1). In 2013, it came to light that the govern-

ment had been using evidence derived from FAA surveillance in criminal

prosecutions without providing the mandated notice. See Charlie Sav-

age, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct.

16, 2013, http://nyti.ms/1r7mbDy.

Additionally, the government conducts other foreign intelligence sur-

veillance outside the United States, beyond the scope of FISA or the FAA,

under Executive Order 12,333. See Exec. Ord. No. 12,333, as amended by

Exec. Ord. Nos. 13,284 (2003), 13,355 (2004), and 13,470 (2008); Kris &

Wilson, supra note 5, §§ 2:7, 17:1. Following the passage of the FAA, Ex-

ecutive Order 12,333 no longer authorizes surveillance targeting U.S. per-

sons, but such persons’ communications and metadata may be incidentally

collected.14 See Kris & Wilson, supra note 5, § 17:19. Executive Order

12,333 does not contain any notice requirement.

B.

The Fourth Amendment requires that a person subject to a government

search receive notice of the search, absent “exigent circumstances.” Ber-

ger v. State of New York, 388 U.S. 41, 60, 87 S.Ct. 1873, 18 L.Ed.2d 1040

(1967); see United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).

Courts have excused advance notice in the wiretapping context for a prac-

tical reason: if the subject of a wiretap were “told in advance that federal

officers intended to record his conversations, the point of making such re-

cordings would obviously [be] lost.” Katz, 389 U.S. at 355 n.16, 88 S.Ct.

507. In such circumstances, the government must provide a “constitution-

ally adequate substitute for advance notice.” Dalia v. United States, 441

U.S. 238, 248, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). Dalia explained that

the Wiretap Act, which governs the use of electronic surveillance in crimi-

nal investigations, meets this requirement by instructing that “once the

surveillance operation is completed the authorizing judge must cause no-

tice to be served on those subjected to surveillance.” Id. (citing 18 U.S.C.

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§ 2518(8)(d)); see United States v. Donovan, 429 U.S. 413, 429 n.19, 97

S.Ct. 658, 50 L.Ed.2d 652 (1977).

The government argues that Berger and Dalia are inapposite here be-

cause they dealt with ordinary criminal investigations, and the Fourth

Amendment requirements are different in the foreign intelligence context.

The government points to United States v. Cavanagh, which

quoted United States v. United States District Court (Keith), 407 U.S. 297,

322–23, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), for the proposition that a

different standard may be compatible with the Fourth Amendment in the

intelligence-gathering context if it is “reasonable both in relation to the le-

gitimate need of Government for intelligence information and the pro-

tected rights of our citizens.” 807 F.2d 787, 790 (9th Cir.

1987). Cavanagh held that “FISA satisfies the constraints the Fourth

Amendment places on foreign intelligence surveillance conducted by the

government.” Id. For our purposes, the essential insight of Cavanagh is

that even if the Fourth Amendment applies differently in the foreign intel-

ligence context, it still applies, at least if U.S. persons are involved.

Cavanagh did not address the Fourth Amendment's notice require-

ment, but the insight we glean from it bears on our analysis here: because

the Fourth Amendment applies to foreign intelligence investigations, U.S.

criminal defendants against whom the government uses evidence obtained

or derived from foreign intelligence surveillance may have Fourth Amend-

ment rights to protect. The principal remedy for a Fourth Amendment vio-

lation is the exclusionary rule: …

Notice is therefore a critical component of the Fourth Amendment in

the context of a criminal prosecution. And although the Fourth Amend-

ment may apply differently to foreign intelligence surveillance than to

searches undertaken in ordinary criminal investigations, notice of a search

plays the same role in the criminal proceeding: it allows the defendant to

assess whether the surveillance complied with the Fourth Amendment's re-

quirements, whatever the parameters of those requirements are. Indeed,

the Supreme Court has recognized that the notice provisions in FISA and

the FAA serve precisely that function. See Amnesty Int'l USA, 568 U.S. at

421 & n.8, 133 S.Ct. 1138.

At the same time, the need for secrecy inherent in foreign intelligence

investigations justifies a more circumscribed notice requirement than in

the ordinary criminal context. See Kris & Wilson, supra note 5, § 29:2

(discussing the need for secrecy). Whereas the Wiretap Act requires notice

at the end of an investigation regardless of whether an indictment is

filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice provisions are

more limited, requiring notice only when the “Government intends to en-



















ter into evidence or otherwise use or disclose in any trial ... or other pro-

ceeding in or before any court ... or other authority of the United States,

against an aggrieved person, any information obtained or derived from an

electronic surveillance of that aggrieved person pursuant to the authority

of this subchapter,” 50 U.S.C. § 1806(c); see id. §§ 1825(d) (physical

search), 1845(c) (pen register and trap-and-trace surveillance); 1881e(a)(1)

(FAA). According to the Senate Judiciary Committee Report accompany-

ing FISA, Congress was aware that it was “depart[ing] from traditional

Fourth Amendment criminal procedures,” but it concluded that the “need

to preserve secrecy for sensitive counterintelligence sources and methods

justifies elimination” of the “requirement of subsequent notice to the sur-

veillance target ... unless the fruits are to be used against him in legal pro-

ceedings.” S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).

At a minimum, then, the Fourth Amendment requires notice to a crimi-

nal defendant when the prosecution intends to enter into evidence or other-

wise use or disclose information obtained or derived from surveillance of

that defendant conducted pursuant to the government's foreign intelligence

authorities. See Dalia, 441 U.S. at 248, 99 S.Ct. 1682; Berger, 388 U.S. at

60, 87 S.Ct. 1873.

18This constitutional notice requirement applies to surveillance con-

ducted under FISA and the FAA, which codify therequirement with re-

spect to several types of surveillance. 50 U.S.C. §§

1806(c), 1825(d), 1845(c), 1881e(a)(1). It also applies to surveillance con-

ducted under other foreign intelligence authorities, including Executive

Order 12,333 and the FAA's predecessor programs. Indeed, the notice re-

quirement is of particular importance with regard to these latter, non-statu-

tory programs precisely because these programs lack the statutory protec-

tions included in FISA. Where statutory protections are lacking, the Fourth

Amendment's reasonableness requirement takes on importance as a limit

on executive power, and notice is necessary so that criminal defendants

may challenge surveillance as inconsistent with that requirement.

We emphasize that notice is distinct from disclosure. Given the need

for secrecy in the foreign intelligence context, the government is required

only to inform the defendant that surveillance occurred and that the gov-

ernment intends to use information obtained or derived from it.

Knowledge of surveillance will enable the defendant to file a motion with

the district court challenging its legality. If the government avers that dis-

closure of information relating to the surveillance would harm national se-

curity, then the court can review the materials bearing on its legality in

camera and ex parte. See, e.g., 50 U.S.C. § 1806(f) (allowing in cam-

era, ex parte review of the legality of electronic surveillance uder FISA


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Subchapter I if “the Attorney General files an affidavit under oath that dis-

closure or an adversary hearing would harm the national security of the

United States”).

C.

Here, assuming without deciding that the government should have pro-

vided notice of the metadata collection to defendants, the government's

failure to do so did not prejudice defendants. Defendants learned of the

metadata collection, albeit in an unusual way, in time to challenge the le-

gality of the program in their motion for a new trial and on ap-

peal. See Mohamud, 843 F.3d at 436. The “purpose of the [notice] rule has

thereby been vindicated.” New York v. Harris, 495 U.S. 14, 20, 110 S.Ct.

1640, 109 L.Ed.2d 13 (1990).

…

CONCLUSION

Defendants’ convictions are AFFIRMED.





CHAPTER 6

SEARCHES AND ADMINISTRATIVE SUBPOENAS

Page 409. Insert as new note 2 and renumber following notes

accordingly.

2. In 2017, the Ninth Circuit decided In re National Security Letter un-

der Seal v. Sessions, 863 F.3d 1110 (9th Cir. 2017). Taking into account,

the statutory amendments enacted in the USA FREEDOM Act of 2015, the

court (per Ikuta, J.) summarized its ruling as follows (the entire opinion is

lengthy; only a few short excerpts are reproduced here):

In this case, we consider challenges to the constitutionality of the

law authorizing the Federal Bureau of Investigation (FBI) to prevent a

recipient of a national security letter (NSL) from disclosing the fact that

it has received such a request. 18 U.S.C. § 2709(c). An NSL is an ad-

ministrative subpoena issued by the FBI to a wire or electronic com-

munication service provider which requires the provider to produce

specified subscriber information that is relevant to an authorized na-

tional security investigation. Id. § 2709(a). By statute, the NSL may

include a requirement that the recipient not “disclose to any person that

the Federal Bureau of Investigation has sought or obtained access to

information or records” under the NSL law. Id. § 2709(c)(1)(A). Both

the information request and the nondisclosure requirement are subject

to judicial review. See id. § 3511. (Because § 2709 and § 3511 work

together, we refer to them collectively as “the NSL law.”)

Certain recipients of these NSLs claim that the nondisclosure re-

quirement violates their First Amendment rights. We hold that the non-

disclosure requirement in 18 U.S.C. § 2709(c) is a content-based re-

striction on speech that is subject to strict scrutiny, and that the nondis-

closure requirement withstands such scrutiny. Accordingly, we affirm.

CHAPTER 7

INTERROGATION AND RENDITION

Page 496. Add to note 1.

Abu Khatallah was sentenced to 22 years in prison. Also see addition to

note 2e. p. 497, casebook, immediately following this note.

Page 497. Add to note 2e.

Al-Imam’s trial was completed in June, 2019. As in the Abu Khatallah

case, the jury deadlocked on the most serious charges, aiding and abetting

murder counts. Al-Imam was convicted on two counts, conspiracy to pro-

vided material support to terrorists and aiding the malicious destruction of

U.S. property. The trial judge declared a mistrial on the 15 remaining

charges. He was sentenced to more than 19 years in prison. https://www.jus-

tice.gov/opa/pr/mustafa-al-imam-sentenced-more-19-years-prison-septem-

ber-2012-terrorist-attack-benghazi-libya#:~:text=Janu-

ary%2023%2C%202020-,Mustafa%20Al%2DImam%20Sen-

tenced%20to%20More%20than%2019%20Years%20in,of-

fenses%20stemming%20from%20the%20Sept. See Megan Mineiro, Mis-

trial Declared on Murder Counts for Benghazi Suspect, https://www.court-

housenews.com/mistrial-declared-on-murder-counts-for-benghazi-sus-

pect/. Also see Adam Goldman and Charlie Savage, Jury Convicts Libyan

on 2 Terrorism-related Counts in Benghazi Trial, NY Times, A8, June 14,

2019.

Page 497-498. Add to note 2f.

In October, 2018, a New York Times article reported that the American

ISIS suspect was freed in Bahrain where his wife and daughter are located.

He had been held for more than a year without any court having ruled on

the legality of his detention. While his passport was cancelled, he was not

required to relinquish his U.S. citizenship as a condition of the release ar-

rangement. See Charlie Savage, Rukmini Callimachi and Eric Schmitt,

American ISIS Suspect Is Freed After Being Held without Charges for Over

a Year, NY Times, October 30, 2018, A6. The Times identified the suspect

by name, Abdulrahman Ahmad Alsheikh, which they derived from an “Is-

lamic State intake form and identifying public records about him.” Ibid.

https://www.justice.gov/opa/pr/mustafa-al-imam-sentenced-more-19-years-prison-september-2012-terrorist-attack-benghazi-libya#:~:text=January%2023%2C%202020-,Mustafa%20Al%2DImam%20Sentenced%20to%20More%20than%2019%20Years%20in,offenses%20stemming%20from%20the%20Sept







Page 500. Insert as a new paragraph following fourth full

paragraph.

An example of the use of extradition to bring an alleged enemy com-

batant to the U.S. for trial in a federal court is the case of Ibrahim Adnan

Harun Hausa. He was alleged to have fought for Al Qaeda in Afghanistan,

been involved in an attack that killed two Americans, had been trained in

Pakistan before going to Nigeria where he planned to participate in an attack

on the U.S. embassy there. He was returning to Europe when he was ar-

rested by Italian authorities who extradited him to the U.S. He was con-

victed of several offenses and sentenced to life imprisonment. He appealed

on grounds of Sixth Amendment violations—he had asked to represent him-

self, asked to be tried in a military court and had generally been noncoop-

erative, belligerent and extremely disruptive. The Second Circuit affirmed

his conviction. United States v. Hausa 922 F.3d 129 (2d Cir. 2019).

Another case involving the unwillingness of a foreign government to

provide evidence to be used in prosecution of foreign terrorists captured

abroad unless the U.S. provides assurances involved the United Kingdom.

Two individuals who were part of an ISIS British cell had held captured

Western hostages in Syria, some of whom were executed by beheading.

In this case, the British government initially insisted on the no-death-

penalty condition, the U.S. had been unwilling to provide the assurance and

the British gave in and were willing to provide the evidence without the

assurance. But then a unanimous ruling by the British Supreme Court held

that transferring the evidence without a no-death-penalty assurance would

violate a British data protection law. See Charlie Savage and Adam Gold-

man, British Court Denies Evidence to U.S. for Trial of 2 Islamic State

'Beatles', NY Times, March 26, 2020, A20. [The two individuals were mem-

bers of a four person cell which was nicknamed the Beatles because of their

British accents.]

Subsequently, Attorney General Barr wrote a letter to the British Home

Secretary committing the U.S. not to seek the death penalty in the case. See

Charlie Savage, No Death Penalty for ISIS 'Beatles' If Britain Shares Evi-

dence, Barr Says, NY Times, August 20, 2020, A11.

The two men were extradited and flown to the U.S. in early October,

2020 and shortly after arrival were arraigned in federal district court. See

Page 531. Add to note 11.

Julian Borger, The Guardian, October 7, 2020. https://www.theguard-

ian.com/world/2020/oct/07/us-charges-alleged-isis-beatles-members-el-

shafee-elsheikh-and-alexanda-kotey-british

Apparently, a reason why the British Government initially gave in to

the U.S. unwillingness to provide a no-death-penalty assurance in the 'Beat-

les' case was concern that otherwise the men would be transferred to Guan-

tanamo. See Charlie Savage and Adam Goldman, British Court Denies Ev-

idence ….

https://www.theguardian.com/world/2020/oct/07/us-charges-alleged-isis-beatles-members-el-shafee-elsheikh-and-alexanda-kotey-british



CHAPTER 8

MATERIAL WITNESS AND IMMIGRATION DETENTION

Page 594. Add as new note 11 and renumber existing notes 11

and 12 as notes 12 and 13.

11. For a lawsuit somewhat similar to the Al-Kidd case, considering the

application of the Fourth Amendment to a fact situation arising under a state

material witness statute, see Simon v. New York, 893 F. 3d 83 (2d Cir.

2018):

Before: KATZMANN, Chief Judge, Chin, Circuit Judge, and Nathan, District Judge.

Opinion

KATZMANN, Chief Judge:

This case takes us to the intersection of an allegedly wrongful arrest and

detention on a material witness warrant, the Fourth Amendment, and qual-

ified immunity. Plaintiff Alexina Simon brought this action in the United

States District Court for the Eastern District of New York (Vitaliano, J.)

under 42 U.S.C. § 1983, claiming that a state prosecutor and two police

officers falsely arrested and imprisoned her in violation of the Fourth

Amendment. Simon alleges that the defendants unlawfully detained her for

18 hours over two days on the authority of a warrant that, on its face, di-

rected police officers to bring Simon to court at a fixed date and time to

determine whether she should be adjudged a material witness and detained.

Simon was never presented to the court. The district court, relying chiefly

on the lack of case law analyzing the constitutionality of material witness

seizures and detentions, held that the defendants are entitled to qualified

immunity and granted summary judgment in their favor.

We conclude that, with the facts taken in the light most favorable to

Simon, the defendants violated the Fourth Amendment. A warrant must be

executed in conformity with its terms. See, e.g., Miller v. Kennebec Cty.,

219 F.3d 8, 11 (1st Cir. 2000) (“[I]t is self-evident that a seizure conducted

pursuant to an arrest warrant must conform to the terms of that warrant.”).

Here, the warrant required the defendants to produce Simon to court on Au-

gust 11, 2008, at 10:00 a.m., but they instead detained her for 18 hours over

August 11 and 12, occasionally interrogated her about a crime, and never

presented her to a judge.

We further conclude that the unlawfulness of the defendants’ conduct

was clearly established when they acted. This is an uncommon “‘obvious


case’” in which “the unlawfulness of the [defendants’] conduct is suffi-

ciently clear even though existing precedent does not address similar cir-

cumstances.” No officer who is executing a warrant that requires that a pro-

spective material witness be brought before a judge at a fixed date and time

to determine whether the witness should be detained can reasonably believe

that she is free instead to detain and interrogate the witness for hours on end

outside of court supervision.

We are also unpersuaded by the defendants’ contention that they are

entitled to qualified immunity from claims arising out of the second day’s

events because reasonable officers could disagree about whether Simon

consented to accompany them. A long line of cases holds that securing

someone’s presence at a police station using coercive tactics like those em-

ployed by the defendants here—including entering Simon’s home and tell-

ing her that her attendance is mandatory—is constitutionally indistinguish-

able from a traditional arrest.

…

Accordingly, the judgment of the district court is VACATED and this

case is REMANDED for further proceedings consistent with this decision.

Page 658. Add the following after note 4).

Since the travel ban was initiated through an Executive Order from the

President, it can be repealed by Executive Order. It is anticipated that

President-elect Biden, when he takes office will issue an Order repealing

the travel ban. Nevertheless, it is useful for students to read the Supreme

Court decision upholding the ban. Among other things to be learned, is

how the government responded and took steps to cure the flaws in the

earlier versions of the ban,

Trump v. Hawaii 138 S.Ct. 2392 (2018)

Opinion

Chief Justice ROBERTS delivered the opinion of the Court.

Under the Immigration and Nationality Act, foreign nationals seeking

entry into the United States undergo a vetting process to ensure that they

satisfy the numerous requirements for admission. The Act also vests the

President with authority to restrict the entry of aliens whenever he finds that

their entry “would be detrimental to the interests of the United States.” 8

U.S.C. § 1182(f). Relying on that delegation, the President concluded that

it was necessary to impose entry restrictions on nationals of countries that

do not share adequate information for an informed entry determination, or

that otherwise present national security risks. Presidential Proclamation No.

9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this liti-

gation, respondents here, challenged the application of those entry re-

strictions to certain aliens abroad. We now decide whether the President had

authority under the Act to issue the Proclamation, and whether the entry

policy violates the Establishment Clause of the First Amendment.

I.

A.

Shortly after taking office, President Trump signed Executive Order No.

13769, Protecting the Nation From Foreign Terrorist Entry Into the United

States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of

Homeland Security to conduct a review to examine the adequacy of infor-

mation provided by foreign governments about their nationals seeking to

enter the United States. § 3(a). Pending that review, the order suspended for

90 days the entry of foreign nationals from seven countries—Iran, Iraq,

Libya, Somalia, Sudan, Syria, and Yemen—that had been previously iden-

tified by Congress or prior administrations as posing heightened terrorism

risks. § 3(c). The District Court for the Western District of Washington en-

tered a temporary restraining order blocking the entry restrictions, and the

Court of Appeals for the Ninth Circuit denied the Government’s request to

stay that order.

In response, the President revoked EO–1, replacing it with Executive

Order No. 13780, which again directed a worldwide review. 82 Fed. Reg.

13209 (2017) (EO–2). Citing investigative burdens on agencies and the

need to diminish the risk that dangerous individuals would enter without

adequate vetting, EO–2 also temporarily restricted the entry (with case-by-

case waivers) of foreign nationals from six of the countries covered by EO–

1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§ 2(c), 3(a). The order

explained that those countries had been selected because each “is a state

sponsor of terrorism, has been significantly compromised by terrorist or-

ganizations, or contains active conflict zones.” § 1(d). The entry restriction

was to stay in effect for 90 days, pending completion of the worldwide re-

view.

These interim measures were immediately challenged in court. The Dis-

trict Courts for the Districts of Maryland and Hawaii entered nationwide

preliminary injunctions barring enforcement of the entry suspension, and

the respective Courts of Appeals upheld those injunctions, albeit on differ-

ent grounds. International Refugee Assistance Project (IRAP ) v. Trump,

857 F.3d 554 (C.A.4 2017); Hawaii v. Trump, 859 F.3d 741 (C.A.9 2017)

(per curiam ). This Court granted certiorari and stayed the injunctions—

allowing the entry suspension to go into effect—with respect to foreign na-


tionals who lacked a “credible claim of a bona fide relationship” with a per-

son or entity in the United States. Trump v. IRAP, 582 U.S. ––––, ––––, 137

S.Ct. 2080, 2088, 198 L.Ed.2d 643 (2017) (per curiam ). The temporary

restrictions in EO–2 expired before this Court took any action, and we va-

cated the lower court decisions as moot. Trump v. IRAP, 583 U.S. ––––, 138

S.Ct. 353, 199 L.Ed.2d 203 (2017); Trump v. Hawaii, 583 U.S. ––––, 138

S.Ct. 377, 199 L.Ed.2d 275 (2017).

On September 24, 2017, after completion of the worldwide review, the

President issued the Proclamation before us—Proclamation No. 9645, En-

hancing Vetting Capabilities and Processes for Detecting Attempted Entry

Into the United States by Terrorists or Other Public–Safety Threats. 82 Fed.

Reg. 45161. The Proclamation (as its title indicates) sought to improve vet-

ting procedures by identifying ongoing deficiencies in the information

needed to assess whether nationals of particular countries present “public

safety threats.” § 1(a). To further that purpose, the Proclamation placed en-

try restrictions on the nationals of eight foreign states whose systems for

managing and sharing information about their nationals the President

deemed inadequate.

The Proclamation described how foreign states were selected for inclu-

sion based on the review undertaken pursuant to EO–2. As part of that re-

view, the Department of Homeland Security (DHS), in consultation with

the State Department and several intelligence agencies, developed a “base-

line” for the information required from foreign governments to confirm the

identity of individuals seeking entry into the United States, and to determine

whether those individuals pose a security threat. § 1(c). The baseline in-

cluded three components. The first, “identity-management information,” fo-

cused on whether a foreign government ensures the integrity of travel doc-

uments by issuing electronic passports, reporting lost or stolen passports,

and making available additional identity-related information. Second, the

agencies considered the extent to which the country discloses information

on criminal history and suspected terrorist links, provides travel document

exemplars, and facilitates the U.S. Government’s receipt of information

about airline passengers and crews traveling to the United States. Finally,

the agencies weighed various indicators of national security risk, including

whether the foreign state is a known or potential terrorist safe haven and

whether it regularly declines to receive returning nationals following final

orders of removal from the United States. Ibid.

DHS collected and evaluated data regarding all foreign governments. §

1(d). It identified 16 countries as having deficient information-sharing prac-

tices and presenting national security concerns, and another 31 countries as

“at risk” of similarly failing to meet the baseline. § 1(e). The State Depart-

ment then undertook diplomatic efforts over a 50–day period to encourage

all foreign governments to improve their practices. § 1(f). As a result of that

effort, numerous countries provided DHS with travel document exemplars

and agreed to share information on known or suspected terrorists. Ibid.

Following the 50–day period, the Acting Secretary of Homeland Secu-

rity concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea,

Syria, Venezuela, and Yemen—remained deficient in terms of their risk

profile and willingness to provide requested information. The Acting Sec-

retary recommended that the President impose entry restrictions on certain

nationals from all of those countries except Iraq. §§ 1(g), (h). She also con-

cluded that although Somalia generally satisfied the information-sharing

component of the baseline standards, its “identity-management deficien-

cies” and “significant terrorist presence” presented special circumstances

justifying additional limitations. She therefore recommended entry limita-

tions for certain nationals of that country. § 1(i). As for Iraq, the Acting

Secretary found that entry limitations on its nationals were not warranted

given the close cooperative relationship between the U.S. and Iraqi Govern-

ments and Iraq’s commitment to combating ISIS. § 1(g).

After consulting with multiple Cabinet members and other officials, the

President adopted the Acting Secretary’s recommendations and issued the

Proclamation. Invoking his authority under 8 U.S.C. §§ 1182(f) and

1185(a), the President determined that certain entry restrictions were neces-

sary to “prevent the entry of those foreign nationals about whom the United

States Government lacks sufficient information”; “elicit improved identity-

management and information-sharing protocols and practices from foreign

governments”; and otherwise “advance [the] foreign policy, national secu-

rity, and counterterrorism objectives” of the United States. Proclamation §

1(h). The President explained that these restrictions would be the “most

likely to encourage cooperation” while “protect[ing] the United States until

such time as improvements occur.” Ibid.

The Proclamation imposed a range of restrictions that vary based on the

“distinct circumstances” in each of the eight countries. Ibid. For countries

that do not cooperate with the United States in identifying security risks

(Iran, North Korea, and Syria), the Proclamation suspends entry of all na-

tionals, except for Iranians seeking nonimmigrant student and exchange-

visitor visas. §§ 2(b)(ii), (d)(ii), (e)(ii). For countries that have information-

sharing deficiencies but are nonetheless “valuable counterterrorism part-

ner[s]” (Chad, Libya, and Yemen), it restricts entry of nationals seeking im-

migrant visas and nonimmigrant business or tourist visas. §§ 2(a)(i), (c)(i),

(g)(i). Because Somalia generally satisfies the baseline standards but was

found to present special risk factors, the Proclamation suspends entry of

nationals seeking immigrant visas and requires additional scrutiny of na-

tionals seeking nonimmigrant visas. § 2(h)(ii). And for Venezuela, which

refuses to cooperate in information sharing but for which alternative means

are available to identify its nationals, the Proclamation limits entry only of


certain government officials and their family members on nonimmigrant

business or tourist visas. § 2(f)(ii).

The Proclamation exempts lawful permanent residents and foreign na-

tionals who have been granted asylum. § 3(b). It also provides for case-by-

case waivers when a foreign national demonstrates undue hardship, and that

his entry is in the national interest and would not pose a threat to public

safety. § 3(c)(i); see also § 3(c)(iv) (listing examples of when a waiver might

be appropriate, such as if the foreign national seeks to reside with a close

family member, obtain urgent medical care, or pursue significant business

obligations). The Proclamation further directs DHS to assess on a continu-

ing basis whether entry restrictions should be modified or continued, and to

report to the President every 180 days. § 4. Upon completion of the first

such review period, the President, on the recommendation of the Secretary

of Homeland Security, determined that Chad had sufficiently improved its

practices, and he accordingly lifted restrictions on its nationals. Presidential

Proclamation No. 9723, 83 Fed. Reg. 15937 (2018).

B.

Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Is-

mail Elshikh, John Doe # 1, and John Doe # 2), and the Muslim Association

of Hawaii. The State operates the University of Hawaii system, which re-

cruits students and faculty from the designated countries. The three individ-

ual plaintiffs are U.S. citizens or lawful permanent residents who have rel-

atives from Iran, Syria, and Yemen applying for immigrant or nonimmi-

grant visas. The Association is a nonprofit organization that operates a

mosque in Hawaii.

Plaintiffs challenged the Proclamation—except as applied to North Ko-

rea and Venezuela—on several grounds. As relevant here, they argued that

the Proclamation contravenes provisions in the Immigration and Nationality

Act (INA), 66 Stat. 187, as amended. Plaintiffs further claimed that the

Proclamation violates the Establishment Clause of the First Amendment,

because it was motivated not by concerns pertaining to national security but

by animus toward Islam.

The District Court granted a nationwide preliminary injunction barring

enforcement of the entry restrictions…. This Court then stayed the injunc-

tion in full pending disposition of the Government’s appeal. 583 U.S. ––––

, ––– S.Ct. ––––, ––– L.Ed.2d –––– (2017), 583 U.S. ––––, ––– S.Ct. ––––

, ––– L.Ed.2d –––– (2017).

The Court of Appeals affirmed. The court first held that the Proclama-

tion exceeds the President’s authority under § 1182(f). In its view, that pro-

vision authorizes only a “temporary” suspension of entry in response to “ex-

igencies” that “Congress would be ill-equipped to address.” 878 F.3d 662,

684, 688 (2017). The court further reasoned that the Proclamation “conflicts

with the INA’s finely reticulated regulatory scheme” by addressing “matters

of immigration already passed upon by Congress.” Id., at 685, 690. The

Ninth Circuit then turned to § 1152(a)(1)(A) and determined that the entry

restrictions also contravene the prohibition on nationality-based discrimina-

tion in the issuance of immigrant visas. The court did not reach plaintiffs’

Establishment Clause claim.

We granted certiorari. 583 U.S. ––––, 138 S.Ct. 923, 199 L.Ed.2d 620

(2018).

II.

Before addressing the merits of plaintiffs’ statutory claims, we consider

whether we have authority to do so. The Government argues that plaintiffs’

challenge to the Proclamation under the INA is not justiciable. Relying on

the doctrine of consular nonreviewability, the Government contends that

because aliens have no “claim of right” to enter the United States, and be-

cause exclusion of aliens is “a fundamental act of sovereignty” by the polit-

ical branches, review of an exclusion decision “is not within the province

of any court, unless expressly authorized by law.”United States ex rel.

Knauff v. Shaughnessy, 338 U.S. 537, 542–543, 70 S.Ct. 309, 94 L.Ed. 317

(1950). According to the Government, that principle barring review is re-

flected in the INA, which sets forth a comprehensive framework for review

of orders of removal, but authorizes judicial review only for aliens physi-

cally present in the United States. See Brief for Petitioners 19–20 (citing 8

U.S.C. § 1252).

The justiciability of plaintiffs’ challenge under the INA presents a dif-

ficult question. … … [W]e may assume without deciding that plaintiffs’

statutory claims are reviewable, notwithstanding consular nonreviewability

or any other statutory nonreviewability issue, and we proceed on that basis.

III.

The INA establishes numerous grounds on which an alien abroad may

be inadmissible to the United States and ineligible for a visa. See, e.g., 8

U.S.C. §§ 1182(a)(1) (health-related grounds), (a)(2) (criminal history),

(a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress

has also delegated to the President authority to suspend or restrict the entry

of aliens in certain circumstances. The principal source of that authority, §

1182(f), enables the President to “suspend the entry of all aliens or any class

of aliens” whenever he “finds” that their entry “would be detrimental to the

interests of the United States.”1

1 The President also invoked his power under 8 U.S.C. § 1185(a)(1), which grants the

President authority to adopt “reasonable rules, regulations, and orders” governing entry


Plaintiffs argue that the Proclamation is not a valid exercise of the Pres-

ident’s authority under the INA. In their view, § 1182(f) confers only a re-

sidual power to temporarily halt the entry of a discrete group of aliens en-

gaged in harmful conduct. They also assert that the Proclamation violates

another provision of the INA 8 U.S.C. § 1152(a)(1)(A)—because it discrim-

inates on the basis of nationality in the issuance of immigrant visas.

By its plain language, § 1182(f) grants the President broad discretion to

suspend the entry of aliens into the United States. The President lawfully

exercised that discretion based on his findings—following a worldwide,

multi-agency review—that entry of the covered aliens would be detrimental

to the national interest. And plaintiffs’ attempts to identify a conflict with

other provisions in the INA, and their appeal to the statute’s purposes and

legislative history, fail to overcome the clear statutory language.

A.

The text of § 1182(f) states:

“Whenever the President finds that the entry of any aliens or of any

class of aliens into the United States would be detrimental to the

interests of the United States, he may by proclamation, and for such

period as he shall deem necessary, suspend the entry of all aliens or

any class of aliens as immigrants or nonimmigrants, or impose on

the entry of aliens any restrictions he may deem to be appropriate.”

By its terms, § 1182(f) exudes deference to the President in every clause.

It entrusts to the President the decisions whether and when to suspend entry

(“[w]henever [he] finds that the entry” of aliens “would be detrimental” to

the national interest); whose entry to suspend (“all aliens or any class of

aliens”); for how long (“for such period as he shall deem necessary”); and

on what conditions (“any restrictions he may deem to be appropriate”). It is

therefore unsurprising that we have previously observed that § 1182(f) vests

the President with “ample power” to impose entry restrictions in addition to

those elsewhere enumerated in the INA. Sale, 509 U.S., at 187, 113 S.Ct.

2549 (finding it “perfectly clear” that the President could “establish a naval

blockade” to prevent illegal migrants from entering the United States); see

also Abourezk v. Reagan, 785 F.2d 1043, 1049, n. 2 (C.A.D.C.1986) (de-

scribing the “sweeping proclamation power” in § 1182(f) as enabling the

President to supplement the other grounds of inadmissibility in the INA).

The Proclamation falls well within this comprehensive delegation. The

sole prerequisite set forth in § 1182(f) is that the President “find[ ]” that the

entry of the covered aliens “would be detrimental to the interests of the

or removal of aliens, “subject to such limitations and exceptions as [he] may prescribe.”

Because this provision “substantially overlap[s]” with § 1182(f), we agree with the Gov-

ernment that we “need not resolve ... the precise relationship between the two statutes” in

evaluating the validity of the Proclamation. Brief for Petitioners 32–33.

United States.” The President has undoubtedly fulfilled that requirement

here. He first ordered DHS and other agencies to conduct a comprehensive

evaluation of every single country’s compliance with the information and

risk assessment baseline. The President then issued a Proclamation setting

forth extensive findings describing how deficiencies in the practices of se-

lect foreign governments—several of which are state sponsors of terror-

ism—deprive the Government of “sufficient information to assess the risks

[those countries’ nationals] pose to the United States.” Proclamation §

1(h)(i). Based on that review, the President found that it was in the national

interest to restrict entry of aliens who could not be vetted with adequate

information—both to protect national security and public safety, and to in-

duce improvement by their home countries. The Proclamation therefore

“craft[ed] ... country-specific restrictions that would be most likely to en-

courage cooperation given each country’s distinct circumstances,” while se-

curing the Nation “until such time as improvements occur.” Ibid.2 3

Plaintiffs believe that these findings are insufficient. They argue, as an

initial matter, that the Proclamation fails to provide a persuasive rationale

for why nationality alone renders the covered foreign nationals a security

risk. And they further discount the President’s stated concern about defi-

cient vetting because the Proclamation allows many aliens from the desig-

nated countries to enter on nonimmigrant visas.

Such arguments are grounded on the premise that § 1182(f) not only

requires the President to make a finding that entry “would be detrimental to

the interests of the United States,” but also to explain that finding with suf-

ficient detail to enable judicial review. That premise is questionable. See

Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)

(concluding that a statute authorizing the CIA Director to terminate an em-

ployee when the Director “shall deem such termination necessary or advis-

able in the interests of the United States” forecloses “any meaningful judi-

cial standard of review”). But even assuming that some form of review is

appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings

cannot be sustained. The 12–page Proclamation—which thoroughly de-

scribes the process, agency evaluations, and recommendations underlying

the President’s chosen restrictions—is more detailed than any prior order a

President has issued under § 1182(f). Contrast Presidential Proclamation

No. 6958, 3 C.F.R. 133 (1996) (President Clinton) (explaining in one sen-

tence why suspending entry of members of the Sudanese government and

armed forces “is in the foreign policy interests of the United States”); Pres-

idential Proclamation No. 4865, 3 C.F.R. 50–51 (1981) (President Reagan)

3 The Proclamation states that it does not disclose every ground for the country-specific restrictions

because “[d]escribing all of those reasons publicly ... would cause serious damage to the national

security of the United States, and many such descriptions are classified.” § 1(j).


(explaining in five sentences why measures to curtail “the continuing illegal

migration by sea of large numbers of undocumented aliens into the south-

eastern United States” are “necessary”).

Moreover, plaintiffs’ request for a searching inquiry into the persuasive-

ness of the President’s justifications is inconsistent with the broad statutory

text and the deference traditionally accorded the President in this sphere.

….

The Proclamation also comports with the remaining textual limits in §

1182(f). We agree with plaintiffs that the word “suspend” often connotes a

“defer[ral] till later,” Webster’s Third New International Dictionary 2303

(1966). But that does not mean that the President is required to prescribe in

advance a fixed end date for the entry restrictions. Section 1182(f) author-

izes the President to suspend entry “for such period as he shall deem neces-

sary.” It follows that when a President suspends entry in response to a dip-

lomatic dispute or policy concern, he may link the duration of those re-

strictions, implicitly or explicitly, to the resolution of the triggering condi-

tion. …

…

Finally, the Proclamation properly identifies a “class of aliens”—na-

tionals of select countries—whose entry is suspended. Plaintiffs argue that

“class” must refer to a well-defined group of individuals who share a com-

mon “characteristic” apart from nationality. Brief for Respondents 42. But

the text of § 1182(f), of course, does not say that, and the word “class” com-

fortably encompasses a group of people linked by nationality. Plaintiffs also

contend that the class cannot be “overbroad.” Brief for Respondents 42. But

that simply amounts to an unspoken tailoring requirement found nowhere

in Congress’s grant of authority to suspend entry of not only “any class of

aliens” but “all aliens.”

In short, the language of § 1182(f) is clear, and the Proclamation does

not exceed any textual limit on the President’s authority.

…

B.

Because plaintiffs do not point to any contradiction with another provi-

sion of the INA, the President has not exceeded his authority under §

1182(f).

…

2.

Plaintiffs seek to locate additional limitations on the scope of § 1182(f)

in the statutory background and legislative history. Given the clarity of the

text, we need not consider such extra-textual evidence. See State Farm Fire

& Casualty Co. v. United States ex rel. Rigsby, 580 U.S. ––––, ––––, 137

S.Ct. 436, 444, 196 L.Ed.2d 340 (2016). At any rate, plaintiffs’ evidence

supports the plain meaning of the provision.

…

… [P]laintiffs’ argument about historical practice is a double-edged

sword. The more ad hoc their account of executive action—to fit the history

into their theory—the harder it becomes to see such a refined delegation in

a statute that grants the President sweeping authority to decide whether to

suspend entry, whose entry to suspend, and for how long.

C.

Plaintiffs’ final statutory argument is that the President’s entry suspen-

sion violates § 1152(a)(1)(A), which provides that “no person shall ... be

discriminated against in the issuance of an immigrant visa because of the

person’s race, sex, nationality, place of birth, or place of residence.” They

contend that we should interpret the provision as prohibiting nationality-

based discrimination throughout the entire immigration process, despite the

reference in § 1152(a)(1)(A) to the act of visa issuance alone. Specifically,

plaintiffs argue that § 1152(a)(1)(A) applies to the predicate question of a

visa applicant’s eligibility for admission and the subsequent question

whether the holder of a visa may in fact enter the country. Any other con-

clusion, they say, would allow the President to circumvent the protections

against discrimination enshrined in § 1152(a)(1)(A).

As an initial matter, this argument challenges only the validity of the

entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly

limited to the issuance of “immigrant visa[s]” while § 1182(f) allows the

President to suspend entry of “immigrants or nonimmigrants.” At a mini-

mum, then, plaintiffs’ reading would not affect any of the limitations on

nonimmigrant travel in the Proclamation.

In any event, we reject plaintiffs’ interpretation because it ignores the

basic distinction between admissibility determinations and visa issuance

that runs throughout the INA. Section 1182 defines the pool of individuals

who are admissible to the United States. Its restrictions come into play at

two points in the process of gaining entry (or admission) into the United

States. First, any alien who is inadmissible under § 1182 (based on, for ex-

ample, health risks, criminal history, or foreign policy consequences) is

screened out as “ineligible to receive a visa.” 8 U.S.C. § 1201(g). Second,

even if a consular officer issues a visa, entry into the United States is not

guaranteed. As every visa application explains, a visa does not entitle an

alien to enter the United States “if, upon arrival,” an immigration officer

determines that the applicant is “inadmissible under this chapter, or any

other provision of law”—including § 1182(f). § 1201(h).

…


… Section 1152(a)(1)(A) has never been treated as a constraint on the

criteria for admissibility in § 1182. Presidents have repeatedly exercised

their authority to suspend entry on the basis of nationality. As noted, Presi-

dent Reagan relied on § 1182(f) to suspend entry “as immigrants by all Cu-

ban nationals,” subject to exceptions. Proclamation No. 5517, 51 Fed. Reg.

30470 (1986). Likewise, President Carter invoked § 1185(a)(1) to deny and

revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 C.F.R.

461 (1979), as amended by Exec. Order No. 12206, 3 C.F.R. 249 (1980);

Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, Vol.

1, Apr. 7, 1980, pp. 611–612 (1980); …

On plaintiffs’ reading, those orders were beyond the President’s author-

ity. The entry restrictions in the Proclamation on North Korea (which plain-

tiffs do not challenge in this litigation) would also be unlawful. Nor would

the President be permitted to suspend entry from particular foreign states in

response to an epidemic confined to a single region, or a verified terrorist

threat involving nationals of a specific foreign nation, or even if the United

States were on the brink of war.

…

The Proclamation is squarely within the scope of Presidential authority

under the INA. Indeed, neither dissent even attempts any serious argument

to the contrary, despite the fact that plaintiffs’ primary contention below and

in their briefing before this Court was that the Proclamation violated the

statute.

IV.

A.

We now turn to plaintiffs’ claim that the Proclamation was issued for

the unconstitutional purpose of excluding Muslims. Because we have an

obligation to assure ourselves of jurisdiction under Article III, we begin by

addressing the question whether plaintiffs have standing to bring their con-

stitutional challenge.

…

Plaintiffs first argue that they have standing on the ground that the Proc-

lamation “establishes a disfavored faith” and violates “their own right to be

free from federal [religious] establishments.” Brief for Respondents 27–28

(emphasis deleted). They describe such injury as “spiritual and dignitary.”

Id., at 29.

We need not decide whether the claimed dignitary interest establishes

an adequate ground for standing. The three individual plaintiffs assert an-

other, more concrete injury: the alleged real-world effect that the Proclama-

tion has had in keeping them separated from certain relatives who seek to

enter the country. See ibid.

The Government responds that plaintiffs’ Establishment Clause claims

are not justiciable because the Clause does not give them a legally protected

interest in the admission of particular foreign nationals. But that argu-

ment—which depends upon the scope of plaintiffs’ Establishment Clause

rights—concerns the merits rather than the justiciability of plaintiffs’

claims. We therefore conclude that the individual plaintiffs have Article III

standing to challenge the exclusion of their relatives under the Establish-

ment Clause.

B.

The First Amendment provides, in part, that “Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise

thereof.” Our cases recognize that “[t]he clearest command of the Establish-

ment Clause is that one religious denomination cannot be officially pre-

ferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673,

72 L.Ed.2d 33 (1982). Plaintiffs believe that the Proclamation violates this

prohibition by singling out Muslims for disfavored treatment. The entry sus-

pension, they contend, operates as a “religious gerrymander,” in part be-

cause most of the countries covered by the Proclamation have Muslim-ma-

jority populations. And in their view, deviations from the information-shar-

ing baseline criteria suggest that the results of the multi-agency review were

“foreordained.” Relying on Establishment Clause precedents concerning

laws and policies applied domestically, plaintiffs allege that the primary

purpose of the Proclamation was religious animus and that the President’s

stated concerns about vetting protocols and national security were but pre-

texts for discriminating against Muslims. Brief for Respondents 69–73.

At the heart of plaintiffs’ case is a series of statements by the President

and his advisers casting doubt on the official objective of the Proclamation.

For example, while a candidate on the campaign trail, the President pub-

lished a “Statement on Preventing Muslim Immigration” that called for a

“total and complete shutdown of Muslims entering the United States until

our country’s representatives can figure out what is going on.” App. 158.

That statement remained on his campaign website until May 2017. Id., at

130–131. Then-candidate Trump also stated that “Islam hates us” and as-

serted that the United States was “having problems with Muslims coming

into the country.” Id., at 120–121, 159. Shortly after being elected, when

asked whether violence in Europe had affected his plans to “ban Muslim

immigration,” the President replied, “You know my plans. All along, I’ve

been proven to be right.” Id., at 123.

One week after his inauguration, the President issued EO–1. In a televi-

sion interview, one of the President’s campaign advisers explained that

when the President “first announced it, he said, ‘Muslim ban.’ He called me

up. He said, ‘Put a commission together. Show me the right way to do it


legally.’ “ Id., at 125. The adviser said he assembled a group of Members

of Congress and lawyers that “focused on, instead of religion, danger....

[The order] is based on places where there [is] substantial evidence that

people are sending terrorists into our country.” Id., at 229.

Plaintiffs also note that after issuing EO–2 to replace EO–1, the Presi-

dent expressed regret that his prior order had been “watered down” and

called for a “much tougher version” of his “Travel Ban.” Shortly before the

release of the Proclamation, he stated that the “travel ban ... should be far

larger, tougher, and more specific,” but “stupidly that would not be politi-

cally correct.” Id., at 132–133. More recently, on November 29, 2017, the

President retweeted links to three anti-Muslim propaganda videos. In re-

sponse to questions about those videos, the President’s deputy press secre-

tary denied that the President thinks Muslims are a threat to the United

States, explaining that “the President has been talking about these security

issues for years now, from the campaign trail to the White House” and “has

addressed these issues with the travel order that he issued earlier this year

and the companion proclamation.” IRAP v. Trump, 883 F.3d 233, 267

(C.A.4 2018).

The President of the United States possesses an extraordinary power to

speak to his fellow citizens and on their behalf. Our Presidents have fre-

quently used that power to espouse the principles of religious freedom and

tolerance on which this Nation was founded. In 1790 George Washington

reassured the Hebrew Congregation of Newport, Rhode Island that “happily

the Government of the United States ... gives to bigotry no sanction, to per-

secution no assistance [and] requires only that they who live under its pro-

tection should demean themselves as good citizens.” 6 Papers of George

Washington 285 (D. Twohig ed. 1996). President Eisenhower, at the open-

ing of the Islamic Center of Washington, similarly pledged to a Muslim

audience that “America would fight with her whole strength for your right

to have here your own church,” declaring that “[t]his concept is indeed a

part of America.” Public Papers of the Presidents, Dwight D. Eisenhower,

June 28, 1957, p. 509 (1957). And just days after the attacks of September

11, 2001, President George W. Bush returned to the same Islamic Center to

implore his fellow Americans—Muslims and non-Muslims alike—to re-

member during their time of grief that “[t]he face of terror is not the true

faith of Islam,” and that America is “a great country because we share the

same values of respect and dignity and human worth.” Public Papers of the

Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it

cannot be denied that the Federal Government and the Presidents who have

carried its laws into effect have—from the Nation’s earliest days—per-

formed unevenly in living up to those inspiring words.

Plaintiffs argue that this President’s words strike at fundamental stand-

ards of respect and tolerance, in violation of our constitutional tradition. But

the issue before us is not whether to denounce the statements. It is instead

the significance of those statements in reviewing a Presidential directive,

neutral on its face, addressing a matter within the core of executive respon-

sibility. In doing so, we must consider not only the statements of a particular

President, but also the authority of the Presidency itself.

The case before us differs in numerous respects from the conventional

Establishment Clause claim. Unlike the typical suit involving religious dis-

plays or school prayer, plaintiffs seek to invalidate a national security di-

rective regulating the entry of aliens abroad. Their claim accordingly raises

a number of delicate issues regarding the scope of the constitutional right

and the manner of proof. The Proclamation, moreover, is facially neutral

toward religion. Plaintiffs therefore ask the Court to probe the sincerity of

the stated justifications for the policy by reference to extrinsic statements—

many of which were made before the President took the oath of office.

These various aspects of plaintiffs’ challenge inform our standard of review.

C.

For more than a century, this Court has recognized that the admission

and exclusion of foreign nationals is a “fundamental sovereign attribute ex-

ercised by the Government’s political departments largely immune from ju-

dicial control.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d

50 (1977); see Harisiades v. Shaughnessy, 342 U.S. 580, 588–589, 72 S.Ct.

512, 96 L.Ed. 586 (1952) (“[A]ny policy toward aliens is vitally and intri-

cately interwoven with contemporaneous policies in regard to the conduct

of foreign relations [and] the war power.”). Because decisions in these mat-

ters may implicate “relations with foreign powers,” or involve “classifica-

tions defined in the light of changing political and economic circum-

stances,” such judgments “are frequently of a character more appropriate to

* either the Legislature or the Executive.” Mathews v. Diaz, 426 U.S. 67,

81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976).

Nonetheless, although foreign nationals seeking admission have no con-

stitutional right to entry, this Court has engaged in a circumscribed judicial

inquiry when the denial of a visa allegedly burdens the constitutional rights

of a U.S. citizen. In Kleindienst v. Mandel, the Attorney General denied

admission to a Belgian journalist and self-described “revolutionary Marx-

ist,” Ernest Mandel, who had been invited to speak at a conference at Stan-

ford University. 408 U.S., at 756–757, 92 S.Ct. 2576. The professors who

wished to hear Mandel speak challenged that decision under the First

Amendment, and we acknowledged that their constitutional “right to re-

ceive information” was implicated. Id., at 764–765, 92 S.Ct. 2576. But we

limited our review to whether the Executive gave a “facially legitimate and

bona fide” reason for its action. Id., at 769, 92 S.Ct. 2576. Given the author-


ity of the political branches over admission, we held that “when the Execu-

tive exercises this [delegated] power negatively on the basis of a facially

legitimate and bona fide reason, the courts will neither look behind the ex-

ercise of that discretion, nor test it by balancing its justification” against the

asserted constitutional interests of U.S. citizens. Id., at 770, 92 S.Ct. 2576.

The principal dissent suggests that Mandel has no bearing on this case,

post, at 2440, and n. 5 (opinion of SOTOMAYOR, J.) (hereinafter the dis-

sent), but our opinions have reaffirmed and applied its deferential standard

of review across different contexts and constitutional claims. …

Mandel’s narrow standard of review “has particular force” in admission

and immigration cases that overlap with “the area of national security.” Din,

576 U.S., at ––––, 135 S.Ct., at 2140 (KENNEDY, J., concurring in judg-

ment). For one, “[j]udicial inquiry into the national-security realm raises

concerns for the separation of powers” by intruding on the President’s con-

stitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi,

582 U.S. ––––, ––––, 137 S.Ct. 1843, 1861, 198 L.Ed.2d 290 (2017) (inter-

nal quotation marks omitted). For another, “when it comes to collecting ev-

idence and drawing inferences” on questions of national security, “the lack

of competence on the part of the courts is marked.” Humanitarian Law Pro-

ject, 561 U.S., at 34, 130 S.Ct. 2705.

The upshot of our cases in this context is clear: “Any rule of constitu-

tional law that would inhibit the flexibility” of the President “to respond to

changing world conditions should be adopted only with the greatest cau-

tion,” and our inquiry into matters of entry and national security is highly

constrained. Mathews, 426 U.S., at 81–82, 96 S.Ct. 1883. We need not de-

fine the precise contours of that inquiry in this case. A conventional appli-

cation of Mandel, asking only whether the policy is facially legitimate and

bona fide, would put an end to our review. But the Government has sug-

gested that it may be appropriate here for the inquiry to extend beyond the

facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing

Mandel as “the starting point” of the analysis). For our purposes today, we

assume that we may look behind the face of the Proclamation to the extent

of applying rational basis review. That standard of review considers

whether the entry policy is plausibly related to the Government’s stated ob-

jective to protect the country and improve vetting processes. See Railroad

Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368

(1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will

uphold the policy so long as it can reasonably be understood to result from

a justification independent of unconstitutional grounds.

D.

Given the standard of review, it should come as no surprise that the

Court hardly ever strikes down a policy as illegitimate under rational basis

scrutiny. On the few occasions where we have done so, a common thread

has been that the laws at issue lack any purpose other than a “bare ... desire

to harm a politically unpopular group.” Department of Agriculture v.

Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In one

case, we invalidated a local zoning ordinance that required a special permit

for group homes for the intellectually disabled, but not for other facilities

such as fraternity houses or hospitals. We did so on the ground that the city’s

stated concerns about (among other things) “legal responsibility” and

“crowded conditions” rested on “an irrational prejudice” against the intel-

lectually disabled. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

448–450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal quotation marks

omitted). And in another case, this Court overturned a state constitutional

amendment that denied gays and lesbians access to the protection of anti-

discrimination laws. The amendment, we held, was “divorced from any fac-

tual context from which we could discern a relationship to legitimate state

interests,” and “its sheer breadth [was] so discontinuous with the reasons

offered for it” that the initiative seemed “inexplicable by anything but ani-

mus.” Romer v. Evans, 517 U.S. 620, 632, 635, 116 S.Ct. 1620, 134 L.Ed.2d

855 (1996).

The Proclamation does not fit this pattern. It cannot be said that it is

impossible to “discern a relationship to legitimate state interests” or that the

policy is “inexplicable by anything but animus.” Indeed, the dissent can

only attempt to argue otherwise by refusing to apply anything resembling

rational basis review. But because there is persuasive evidence that the entry

suspension has a legitimate grounding in national security concerns, quite

apart from any religious hostility, we must accept that independent justifi-

cation.

The Proclamation is expressly premised on legitimate purposes: pre-

venting entry of nationals who cannot be adequately vetted and inducing

other nations to improve their practices. The text says nothing about reli-

gion. Plaintiffs and the dissent nonetheless emphasize that five of the seven

nations currently included in the Proclamation have Muslim-majority pop-

ulations. Yet that fact alone does not support an inference of religious hos-

tility, given that the policy covers just 8% of the world’s Muslim population

and is limited to countries that were previously designated by Congress or

prior administrations as posing national security risks. See 8 U.S.C. §

1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such as

Iran as “countr[ies] or area[s] of concern” for purposes of administering the

Visa Waiver Program); Dept. of Homeland Security, DHS Announces Fur-

ther Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) (des-

ignating Libya, Somalia, and Yemen as additional countries of concern);

see also Rajah, 544 F.3d, at 433, n. 3 (describing how nonimmigrant aliens


from Iran, Libya, Somalia, Syria, and Yemen were covered by the National

Security Entry–Exit Registration System).

The Proclamation, moreover, reflects the results of a worldwide review

process undertaken by multiple Cabinet officials and their agencies. Plain-

tiffs seek to discredit the findings of the review, pointing to deviations from

the review’s baseline criteria resulting in the inclusion of Somalia and omis-

sion of Iraq. But as the Proclamation explains, in each case the determina-

tions were justified by the distinct conditions in each country. Although So-

malia generally satisfies the information-sharing component of the baseline

criteria, it “stands apart ... in the degree to which [it] lacks command and

control of its territory.” Proclamation § 2(h)(i). As for Iraq, the Secretary of

Homeland Security determined that entry restrictions were not warranted in

light of the close cooperative relationship between the U.S. and Iraqi Gov-

ernments and the country’s key role in combating terrorism in the region. §

1(g). It is, in any event, difficult to see how exempting one of the largest

predominantly Muslim countries in the region from coverage under the

Proclamation can be cited as evidence of animus toward Muslims.

The dissent likewise doubts the thoroughness of the multi-agency re-

view because a recent Freedom of Information Act request shows that the

final DHS report “was a mere 17 pages.” Post, at 2443. Yet a simple page

count offers little insight into the actual substance of the final report, much

less predecisional materials underlying it. …

More fundamentally, plaintiffs and the dissent challenge the entry sus-

pension based on their perception of its effectiveness and wisdom. They

suggest that the policy is overbroad and does little to serve national security

interests. But we cannot substitute our own assessment for the Executive’s

predictive judgments on such matters, all of which “are delicate, complex,

and involve large elements of prophecy.” Chicago & Southern Air Lines,

Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568

(1948); …

Three additional features of the entry policy support the Government’s

claim of a legitimate national security interest. First, since the President in-

troduced entry restrictions in January 2017, three Muslim-majority coun-

tries—Iraq, Sudan, and Chad—have been removed from the list of covered

countries. The Proclamation emphasizes that its “conditional restrictions”

will remain in force only so long as necessary to “address” the identified

“inadequacies and risks,” Proclamation Preamble, and § 1(h), and estab-

lishes an ongoing process to engage covered nations and assess every 180

days whether the entry restrictions should be terminated, §§ 4(a), (b). In

fact, in announcing the termination of restrictions on nationals of Chad, the

President also described Libya’s ongoing engagement with the State De-

partment and the steps Libya is taking “to improve its practices.” Proclama-

tion No. 9723, 83 Fed. Reg. 15939.

Second, for those countries that remain subject to entry restrictions, the

Proclamation includes significant exceptions for various categories of for-

eign nationals. The policy permits nationals from nearly every covered

country to travel to the United States on a variety of nonimmigrant visas.

See, e.g., §§ 2(b)-(c), (g), (h) (permitting student and exchange visitors from

Iran, while restricting only business and tourist nonimmigrant entry for na-

tionals of Libya and Yemen, and imposing no restrictions on nonimmigrant

entry for Somali nationals). These carveouts for nonimmigrant visas are

substantial: Over the last three fiscal years—before the Proclamation was

in effect—the majority of visas issued to nationals from the covered coun-

tries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation

also exempts permanent residents and individuals who have been granted

asylum. §§ 3(b)(i), (vi).

Third, the Proclamation creates a waiver program open to all covered

foreign nationals seeking entry as immigrants or nonimmigrants. According

to the Proclamation, consular officers are to consider in each admissibility

determination whether the alien demonstrates that (1) denying entry would

cause undue hardship; (2) entry would not pose a threat to public safety; and

(3) entry would be in the interest of the United States. § 3(c)(i); see also §

3(c)(iv) (listing examples of when a waiver might be appropriate, such as if

the foreign national seeks to reside with a close family member, obtain ur-

gent medical care, or pursue significant business obligations). On its face,

this program is similar to the humanitarian exceptions set forth in President

Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3

C.F.R. 249; Public Papers of the Presidents, Jimmy Carter, Sanctions

Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation

also directs DHS and the State Department to issue guidance elaborating

upon the circumstances that would justify a waiver.

Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214,

65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dis-

sent may see in doing so, Korematsu has nothing to do with this case. The

forcible relocation of U.S. citizens to concentration camps, solely and ex-

plicitly on the basis of race, is objectively unlawful and outside the scope of

Presidential authority. But it is wholly inapt to liken that morally repugnant

order to a facially neutral policy denying certain foreign nationals the priv-

ilege of admission. See post, at 2447 – 2448. The entry suspension is an act

that is well within executive authority and could have been taken by any

other President—the only question is evaluating the actions of this particu-

lar President in promulgating an otherwise valid Proclamation.


The dissent’s reference to Korematsu, however, affords this Court the

opportunity to make express what is already obvious: Korematsu was

gravely wrong the day it was decided, has been overruled in the court of

history, and—to be clear—”has no place in law under the Constitution.”

323 U.S., at 248, 65 S.Ct. 193 (Jackson, J., dissenting).

* * *

Under these circumstances, the Government has set forth a sufficient

national security justification to survive rational basis review. We express

no view on the soundness of the policy. We simply hold today that plaintiffs

have not demonstrated a likelihood of success on the merits of their consti-

tutional claim.

V.

Because plaintiffs have not shown that they are likely to succeed on the

merits of their claims, we reverse the grant of the preliminary injunction as

an abuse of discretion. Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The case now re-

turns to the lower courts for such further proceedings as may be appropriate.

Our disposition of the case makes it unnecessary to consider the propriety

of the nationwide scope of the injunction issued by the District Court.

The judgment of the Court of Appeals is reversed, and the case is re-

manded for further proceedings consistent with this opinion.

It is so ordered.

Justice KENNEDY, concurring.

I join the Court’s opinion in full.

There may be some common ground between the opinions in this case,

in that the Court does acknowledge that in some instances, governmental

action may be subject to judicial review to determine whether or not it is

“inexplicable by anything but animus,” Romer v. Evans, 517 U.S. 620, 632,

116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), which in this case would be ani-

mosity to a religion. Whether judicial proceedings may properly continue

in this case, in light of the substantial deference that is and must be accorded

to the Executive in the conduct of foreign affairs, and in light of today’s

decision, is a matter to be addressed in the first instance on remand. And

even if further proceedings are permitted, it would be necessary to deter-

mine that any discovery and other preliminary matters would not them-

selves intrude on the foreign affairs power of the Executive.

In all events, it is appropriate to make this further observation. There are

numerous instances in which the statements and actions of Government of-

ficials are not subject to judicial scrutiny or intervention. That does not

mean those officials are free to disregard the Constitution and the rights it

proclaims and protects. The oath that all officials take to adhere to the Con-

stitution is not confined to those spheres in which the Judiciary can correct

or even comment upon what those officials say or do. Indeed, the very fact

that an official may have broad discretion, discretion free from judicial scru-

tiny, makes it all the more imperative for him or her to adhere to the Con-

stitution and to its meaning and its promise.

The First Amendment prohibits the establishment of religion and prom-

ises the free exercise of religion. From these safeguards, and from the guar-

antee of freedom of speech, it follows there is freedom of belief and expres-

sion. It is an urgent necessity that officials adhere to these constitutional

guarantees and mandates in all their actions, even in the sphere of foreign

affairs. An anxious world must know that our Government remains com-

mitted always to the liberties the Constitution seeks to preserve and protect,

so that freedom extends outward, and lasts.

[Justice Thomas/also concurred in a separate opinion. Justice Breyer

joined by Justice Kagan wrote a dissenting opinion. Justice Sotomayor

joined by Justice Ginsburg also wrote a dissenting opinion.]

Note

Not surprisingly, law review commentary on the principal case quickly ap-

peared. See, e.g., Karma Orfaly, Examining Trump v. Hawaii: Moving

Forward in Light of the Supreme Court’s Adverse Holding on the Muslim

Ban, 12 GEO. J. L. & MOD. CRIT. RACE PERSP. 41(2020); Shalini

Bhargava Ray,The Emerging Lessons of Trump v. Hawaii, 29 William &

Mary Bill of Rights Journal ___(2021); Leading Case, Trump v. Hawaii,

132 Harv. L. Rev. 327 (2018).

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3632485

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3632485


CHAPTER 9

CLASSIFIED INFORMATION IN CIVILIAN TERRORISM TRIALS

Page 705-706. Add as new paragraphs to note 6.

In 2018, a U.S. district judge reversed Paracha's conviction and

granted him a new trial. United States v. Paracha, 2018 WL 3238824.

The trial date was set for March 23, 2020. Shortly before the trial date,

it was announced that a settlement had been reached in the case, all

charges were dropped, and Mr Paracha was released and flown to Paki-

stan (the country of his birth and where his family was located). As part

of the deal, Paracha gave up his status as a permanent U.S. resident.

Benjamin Weiser, Once-Accused Al Qaeda Sympathizer Goes Home,

NY Times, March 18, 2020, A21.

The following paragraphs excerpted from the district court's opin-

ion, cited supra, granting Paracha a new trial, characterize the written

statements introduced at Paracha's original trial and contrast them with

the new statements now available. The contrasts drawn by the judge

highlight the risks to a defendant when he introduced (at his original

trial) uncross-examined hearsay that he argued was exculpatory but that

contained unresolved ambiguities and nuances:

Defendant’s Newly Discovered Evidence is Not Merely Cumula-

tive or Impeaching, with a Single Exception.

The material portions of the new evidence “directly contradict the

government’s case” that defendant knowingly aided al Qaeda, ra-

ther than simply “discredit[ing] a government witness.” Indeed,

none of the newly discovered evidence may be dismissed as mere

impeachment material, of the sort that “will not ordinarily justify a

new trial.”

The government nonetheless urges that “any arguably exculpatory

portions” of the new evidence “are cumulative of the [al Baluchi] and

Khan statements admitted at Paracha’s trial” by the stipulation of the

parties. (Gov't’s Mem. At 25.) That is not a correct characterization of

the majority of the new evidence presented by defendant.

1. Most of the Material Portions of the Newly Discovered Evi-

dence Are Not Cumulative.

The great majority of the newly discovered material statements fall

into three categories, none of which can be deemed merely cumu-

lative.

First, Majid Khan’s new statements diverge substantially from his

previously stipulated testimony as adapted from the government’s

unclassified summaries. Khan, recall, was the direct beneficiary of

the alleged material support in this case: the prosecution argued

that al Qaeda plotted to get Khan back into the United States. It

was thus particularly significant that the stipulation offered at trial

in place of Khan’s live testimony contained no unambiguous asser-

tion by Khan of Paracha’s innocence. Instead, the jury heard

Khan’s decidedly equivocal testimony that “Khan assessed Uzair

Paracha as being willing to help a fellow [M]uslim at his father’s

request,” that “Khan thought Uzair Paracha was a good person

who was willing to help,” and that although “Khan might have

been interested in recruiting Uzair Paracha” for al Qaeda, “Khan

would only give Uzair Paracha a 5–10% suitability assessment” to

join the terrorist group, owing to defendant’s moderate views.

(Khan Stip. At 2.) Indeed, far from wholeheartedly exonerating

Paracha, some passages of Khan’s stipulated testimony—such as

the assertion that “Majid Khan did not assess Uzair Paracha as be-

ing suitable for any other assistance to al Qaeda besides helping

with Majid Khan’s documents at the time”—could even be read as

incriminating defendant. (Id. (emphases added).13) Thus, though

Khan’s stipulation was nominally offered on defendant’s behalf, in

reality it seems likely to have done little to help build his case at

trial.

The newly discovered statements from Khan paint an altogether

different picture. In his 2007 CSRT, Khan made the explicit asser-

tions that “UZAIR PARACHA is innocent; he is not a criminal,”

and that Khan “never told [Paracha] that I was al Qaeda.” (Khan

CSRT Tr., Doc. 101 Ex. 14 at 18–19.) Similarly, in a June 2007

interview in Guantanamo Bay with government agents, “Khan

commented that he thought Uzair Paracha was innocent, but got 30

years” and that “Uzair Paracha did not do anything, went to trial

and got 30 years.” (Khan June 2007 Interview, Doc. 101 Ex. 7 at

4, 6.) Especially given Khan’s central importance to the charges in

this case, his new, repeated, and unambiguous assertions of de-

fendant’s innocence are not simply cumulative of the stipulated

testimony offered at trial.


Second, Paracha points to the “glaring absence” of references to

defendant or his father from KSM’s newly discovered statements.

(Def.'s Reply Mem., Doc. 100 at 6.) In his 2007 CSRT and other

interviews at Guantanamo Bay, the admitted “operational director”

for al Qaeda openly confessed his responsibility for dozens of hei-

nous crimes and terrorist plots, including Khan’s gas station plot in

which Paracha’s expected support was allegedly designed to play a

role. (KSM CSRT Tr., Doc. 101 Ex. 8 at 17–19; KSM Interviews,

Doc. 101 Ex. 9 at 18–20.) In the course of these statements, KSM

freely named al Qaeda members, including Majid Khan and his

brother Mansour, and discussed at length the logistical difficulties

involved in secreting an operative into the United States, “espe-

cially after 9/11.” (KSM Interviews at 18–19.) Likewise, in a wit-

ness statement presented at al Baluchi’s CSRT, KSM further dis-

cussed how he “moved money” to named al Qaeda operatives in

order to support the group’s attacks. (Al Baluchi CSRT Tr., Doc.

101 Ex. 11 at 30.)

These statements by KSM bear directly on issues of central rele-

vance to the charges against defendant, both in general—securing

passage to the United States for al Qaeda operatives, and financial

transactions in support of the group’s terrorist activity—and in par-

ticular—the gas station plot involving Majid Khan and the effort to

facilitate Khan’s return to the United States. Crucially, KSM no-

where mentions defendant or his father. From this new evidence,

defendant could credibly ask the jury to infer Paracha’s innocence

and lack of involvement in the operations discussed.

As described above, the jury did hear some evidence—of varying de-

grees of persuasiveness—tending to exculpate defendant of knowing

involvement with al Qaeda operations. But the absence of any refer-

ence to the Parachas in KSM’s newly discovered statements, “[r]ather

than being merely cumulative, [is] evidence of a different kind” from

the testimony of Khan, al Baluchi, and defendant himself. United

States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992). At trial, the

prosecution was able to sap the probative force of that exculpatory

testimony by reference to the testimony of its expert, Evan Kohl-

mann, on the insular “cell” structure of al Qaeda. It was entirely con-

sistent with Paracha’s guilt, the prosecution argued, for other low-

level operatives like Khan and al Baluchi to remain in the dark as to

the extent of defendant’s knowledge. (See, e.g., Tr. At 1414–16.) But

KSM’s statements would not have been susceptible to this counterar-

gument, given his central role in al Qaeda, his confessed direct partic-

ipation in the planning of the specific operations at issue in this trial,

and his familiarity with the specific al Qaeda members involved. Had

defendant been able to introduce this evidence in the form of stipu-

lated testimony from KSM, the government would have been forced

to abandon its attempt, throughout the trial and in its final words to

the jury, to “embrace” the stipulations offered by Paracha, on the the-

ory that “those stipulations, as a whole, … do not help the defense in

any way.” (Id. at 1473.) Defendant’s argument on the basis of KSM’s

newly discovered statements is emphatically not cumulative of the

evidence presented at trial.

Third, the newly discovered evidence contains statements by all

three men professing that, contrary to the factual assumptions upon

which this trial proceeded, Khan and al Baluchi are themselves not

members of al Qaeda. If that is so, then defendant would be able to

argue on retrial not only that he never knowingly aided the terrorist

group, but that he never aided al Qaeda at all.

Regardless of whether that theory would prevail at trial, the several

new statements asserting Khan and al Baluchi’s non-membership

in al Qaeda most certainly are not cumulative of trial testimony,

because the parties stipulated to the opposite conclusion—that they

were members of al Qaeda—at trial. (Tr. At 227.)

2. To the Extent that Al Baluchi’s Newly Discovered Statements

Directly Assert Defendant’s Innocence, They Are Cumulative

of His Stipulated Trial Testimony.

One limited aspect of the newly proffered evidence is cumulative.

Al Baluchi’s stipulated trial testimony spoke directly to the ques-

tion of defendant’s knowledge with the statement that “Uzair Para-

cha was totally unwitting of Al-Baluchi’s Al Qaeda affiliation, or

of Al-Baluchi’s intention to use Saifullah Paracha for the broader

operational plan involving Majid Khan.” (Al Baluchi Stip. At 1–

2.) Al Baluchi’s testimony went on to assert that “Uzair Paracha

knows nothing about operations,” that “[n]either Al-Baluchi nor

Majid Khan indicated to Uzair Paracha at any time that they were

mujahidin or Al Qaeda,” and that defendant’s father remained sim-

ilarly ignorant during the time period in which defendant was

charged to have conspired to aid the terrorist group. (Id. at 2.19)

…

Note that there are in the foregoing excerpts allusions to Paracha's fa-

ther, Saifulla Paracha, who is still a detainee at Guantanamo. See this

Update, infra, Ch. 10 for the opinion in the father's habeas corpus

case.


CHAPTER 10

DETENTION IN MILITARY CUSTODY

Page 728. Add as a new first full paragraph on p. 729.

Issues relating to the reliance on the AUMF in regard to U.S. actions

against ISIS in Syria or in other countries in the Middle East seem less likely

to arise since ISIS has recently been generally defeated militarily on the

battlefield in Syria. But there is concern that ISIS may switch to engaging

in terrorism events in different countries through the instrument of ISIS

fighters returning to their home countries from Syria. See Colin P. Clarke,

Islamic State Video’s Terrifying Reach, NY Times, A11, May 6, 2019.

Efforts to repeal or revise the AUMF have continued to be made, be-

cause the possibility of the Trump administration taking military action

against Iran raised concerns that the administration might invoke the AUMF

as a support for such action. See Charlie Savage, Could Trump Use 9/11

War Law to Bypass Congress and Attack Iran, NY Times, A10, June 20,

2019, reporting on the arguments being made regarding that issue. See also,

Catie Edmonson, Move to Repeal Authorization of Military Force, NY

Times, A19, May 23, 2019.

Media reports persisted that legislators continued to be concerned by the

fact that administration officials refused to affirm that the President could

not use the AUMF to go to war against Iran. See Catie Edmondson and

Nicholas Fandos, Senate Rejects Curb on Trump’s Authority to Order Iran

Strikes, NY Times, A15, June 29, 2019. A letter from an Assistant Secretary

of State to the chair of the House Foreign Affairs Committee stated that the

administration “to date” had not interpreted the AUMF as authorization to

go to war with Iran, “except as may be necessary to defend U.S. or partner

forces engaged in counterterrorism operations.” Ibid.

In early October, 2020, President Trump tweeted that he would with-

draw all U.S. troops from Afghanistan by Christmas, 2020. This was fol-

lowed by a public statement by the National Security Adviser on October

7th that the troops in Afghanistan would be cut to 2500 by early in 2021.

This statement was then contradicted by the President in a tweet reassert-

ing the Christmas deadline. Meanwhile, the Chairman of the Joint Chiefs

Page 749. Add the following paragraphs to note 1 in Questions and Notes.

of Staff asserted his authority in these matters "based on the plans that I

am aware of and my conversations with the President." See Eric Schmitt,

Trump's New Push to Withdraw Troops Catches Pentagon Off Guard, NY

Times, October 16, 2020, A13. For earlier commitments to reduce the

number of troops in Afghanistan, see Thomas Gibbons-Neff, U.S. With-

drawal from Afghanistan Remains on Track, NY Times, August 5, 2020,

A12.

Whatever the actual numbers and timing of withdrawals, it would

seem that we are getting very close to a troop drawdown that would effec-

tively remove U.S. troops fighting in Afghanistan. Would such a with-

drawal end the authority to continue to detain individuals at Guantanamo?

Would it make any difference if there still were troops fighting al Qaeda in

Somalia, or fighting remnants of ISIS in Syria? See ibid for reporting of

proposed troop drawdowns in Syria and Somalia. Are the courts likely to

view the authority to detain individuals at Guantanamo as continuing on

the theory that we are still at war against al Qaeda? When is that war

likely to end?

al-Alwi v. Donald J. Trump 139 S.Ct. 1893 (2019)

On petition for writ of certiorari to the United States Court of Appeals

for the District of Columbia Circuit.

The petition for a writ of certiorari is denied. JUSTICE KAVANAUGH took

no part in the consideration or decision of this petition.

Statement of JUSTICE BREYER respecting the denial of certiorari.

In the immediate aftermath of the terrorist attacks of September 11,

2001, Congress passed the Authorization for Use of Military Force

(AUMF), 115 Stat. 224. The AUMF states that the President may “use all

necessary and appropriate force against those nations, organizations, or per-

sons he determines planned, authorized, committed, or aided” those attacks.

§ 2(a), ibid. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), a majority of this

Court understood the AUMF to permit the President to detain certain enemy

combatants for the duration of the relevant conflict. Id., at 517–518 (plural-

ity opinion); id., at 587 (Thomas, J., dissenting).

Justice O’Connor’s plurality opinion cautioned that “[i]f the practical

circumstances” of that conflict became “entirely unlike those of the con-

flicts that informed the development of the law of war,” the Court’s “under-

standing” of what the AUMF authorized “may unravel.” Id., at 521. Indeed,

Page 755. Insert before 4. Military Custody for Persons Arrested….


in light of the “unconventional nature” of the “war on terror,” there was a

“substantial prospect” that detention for the “duration of the relevant con-

flict” could amount to “perpetual detention.” Id., at 519–521. But as this

was “not the situation we face[d] as of th[at] date,” the plurality reserved

the question whether the AUMF or the Constitution would permit such a

result. Id., at 517–518.

In my judgment, it is past time to confront the difficult question left

open by Hamdi. See Boumediene v. Bush, 553 U.S. 723, 797–798 (2008)

(“Because our Nation’s past military conflicts have been of limited dura-

tion, it has been possible to leave the outer boundaries of war powers unde-

fined. If, as some fear, terrorism continues to pose dangerous threats to us

for years to come, the Court might not have this luxury”); Hussain v.

Obama, 572 U.S. 1079 (2014) (statement of Breyer, J., respecting denial of

certiorari).

Some 17 years have elapsed since petitioner Moath Hamza Ahmed al-

Alwi, a Yemeni national, was first held at the United States Naval Base at

Guantanamo Bay, Cuba. In the decision below, the District of Columbia

Circuit agreed with the Government that it may continue to detain him so

long as “armed hostilities between United States forces and [the Taliban and

al-Qaeda] persist.” 901 F.3d 294, 298–299 (2018). The Government repre-

sents that such hostilities are ongoing, but does not state that any end is in

sight. Brief in Opposition 4–5. As a consequence, al-Alwi faces the real

prospect that he will spend the rest of his life in detention based on his status

as an enemy combatant a generation ago, even though today’s conflict may

differ substantially from the one Congress anticipated when it passed the

AUMF, as well as those “conflicts that informed the development of the law

of war.” Hamdi, 542 U.S., at 521 (plurality opinion).

“The denial of a writ of certiorari imports no expression of opinion

upon the merits of the case.” United States v. Carver, 260 U.S. 482, 490

(1923). I would, in an appropriate case, grant certiorari to address whether,

in light of the duration and other aspects of the relevant conflict, Congress

has authorized and the Constitution permits continued detention.

QUESTIONS AND NOTES

1. In Hussain v. Obama, 572 U.S. 1079 (2014), cited by Justice Breyer in

his dissent in Alwi, supra, the Justice had written:

In this case, the District Court concluded, and the Court of Appeals

agreed, that petitioner Abdul Al Qader Ahmed Hussain could be de-

tained under the AUMF because he was “part of al-Qaeda or the Tali-

ban at the time of his apprehension.” 821 F.Supp.2d 67, 76–79

(D.D.C.2011) (internal quotation marks omitted; emphasis added); ac-

cord, 718 F.3d 964, 966–967 (C.A.D.C.2013). But even assuming this

is correct, in either case—that is, irrespective of whether Hussain was

part of al Qaeda or the Taliban—it is possible that Hussain was not an

“individual who ... was part of or supporting forces hostile to the United

States or coalition partners in Afghanistan and who engaged in an

armed conflict against the United States there.” 542 U.S., at 516, 124

S.Ct. 2633 (emphasis added).

The Court has not directly addressed whether the AUMF author-

izes, and the Constitution permits, detention on the basis that an indi-

vidual was part of al Qaeda, or part of the Taliban, but was not “en-

gaged in an armed conflict against the United States” in Afghanistan

prior to his capture. Nor have we considered whether, assuming deten-

tion on these bases is permissible, either the AUMF or the Constitution

limits the duration of detention.

The circumstances of Hussain’s detention may involve these un-

answered questions, but his petition does not ask us to answer them.

See Pet. for Cert. i. Therefore, I agree with the Court’s decision to deny

certiorari.

2. It appears that in Hussain, Justice Breyer had invited the kind of claims

that were made by Alwi. But thus far, the Justice has not been able to bring

along any other members of the Court to join him in a willingness to review

the issues that he identified. See Editorial, Trapped in a Legal Black Hole,

LA Times, A8, June 12, 2019. Why do you think that no other members of

the Court (remember that this includes the other members of the liberal wing

of the Court) do not appear willing to consider and adjudicate this set of

issues?

For a very detailed, media review of the events that led to the prose-

cution of Uzair Paracha and the continuing detention of his father, Sai-

fullah Paracha at Guantanamo, see Saba Imtiaz, Forever Prisoners:

Were a father and son wrongfully ensnared by America's war on terror?

The Guardian,

https://www.theguardian.com/news/2018/dec/13/saifullah-uzair-

paracha-guantanamo-bay-al-qaida-war-on-terror.

The latest opinion in Saifullah Paracha's habeas corpus action, a de-

cision on the merits of his petition applying both the AUMF and the

standard for detention set forth in the NDAA of 2012, is reproduced be-

low.

Page 791. Insert at bottom of the page following Questions and Notes.

https://www.theguardian.com/news/2018/dec/13/saifullah-uzair-paracha-guantanamo-bay-al-qaida-war-on-terror

https://www.theguardian.com/news/2018/dec/13/saifullah-uzair-paracha-guantanamo-bay-al-qaida-war-on-terror


Saifullah Abdullah Paracha v. Trump

453 F. Supp. 3d 168 (D. D.C. 2020)

PAUL L. FRIEDMAN, United States District Judge

In July 2003, the United States apprehended petitioner Saifullah

Paracha, a successful Pakistani businessman, on the belief that he had

provided financial and other support to members of the Taliban and Al-

Qaeda over the course of several years immediately before and after the

terrorist attacks of September 11, 2001. Mr. Paracha was taken to

Bagram Air Force Base in Afghanistan for interrogation and then to the

United States Naval Base at Guantanamo Bay, Cuba, where he remains

to this day. More than sixteen years after his capture, Mr. Paracha has

never been charged before a military commission or any other tribunal.

In November 2004, Mr. Paracha filed a petition for a writ of habeas

corpus challenging the government's legal authority to detain him. He

amended the petition in December of that year. The parties have vigor-

ously and capably litigated that petition, and the Court ultimately held a

two-week long classified evidentiary hearing in October 2019, at which

counsel presented hundreds of exhibits and made extensive argument

on five disputed issues of material fact. Upon thorough consideration of

the amended factual return, the amended traverse, the pre-hearing mer-

its and opposition briefs, the arguments and exhibits presented by coun-

sel at the evidentiary hearing, the relevant legal authorities, and the en-

tire record in this case, the Court will deny Mr. Paracha's amended peti-

tion for habeas corpus.

Congress has granted the President expansive legal authority to de-

tain individuals associated with the Taliban and Al-Qaeda, even those

who have not directly participated in hostilities against the United

States. In earlier Guantanamo Bay habeas corpus litigation, the United

States Court of Appeals for the District of Columbia Circuit has held

that the government bears a low burden of proof to establish its deten-

tion authority. Petitioner's objections to the prevailing standards for de-

tention authority and the burden of proof are noted and preserved for

appeal. As the law stands, however, the Court concludes that respond-

ents possess the legal authority to detain Mr. Paracha because they have

established by a preponderance of the evidence that he provided sub-

stantial support to the Taliban and to Al-Qaeda. The Court takes no po-

sition as to whether Mr. Paracha was a part of either the Taliban or Al-

Qaeda.

…

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I. BACKGROUND

A. Factual Overview

Saifullah Paracha is a western-educated businessman. He was born in

a rural village in Pakistan and, though raised in poverty, successfully pur-

sued an education. Mr. Paracha received a student visa to travel to the

United States, where he graduated from the New York Institute of Tech-

nology in 1974. Thereafter, he launched a travel agency in New York

City, the first of his many business ventures. Mr. Paracha received a per-

manent resident visa from the United States consulate in Pakistan; over the

next several decades, Mr. Paracha travelled frequently between Pakistan

and the United States. Several of Mr. Paracha's eleven siblings emigrated

to the United States, and many of his extended family live in the United

States to this day. Mr. Paracha is a practicing Muslim, and his counsel in-

troduced evidence to demonstrate that Mr. Paracha has cosmopolitan and

moderate sympathies. Mr. Paracha and his wife, Farhat, sent their children

to private Catholic schools in Pakistan. The family travelled frequently, to

the United States and elsewhere, and “enjoyed a comfortable life similar to

that of many westerners.” He took business trips to Malaysia, Saudi Ara-

bia, Iran, Iraq, Sweden, the United Kingdom, China, and India; he traveled

for leisure to Japan, Yugoslavia, the Philippines, and the United Arab

Emirates.

Several of Mr. Paracha's business and charitable ventures are relevant

to the conduct at issue in this case. First, in the early 1990s, Mr. Paracha

and Charles Anteby launched International Merchandise, Pvt. Ltd., which

operated as a buying and selling agent coordinating garment purchasers in

New York and textile manufacturers in Pakistan. “Mr. Paracha and Mr.

Anteby did not ship merchandise; rather, the business facilitated connec-

tions between suppliers and purchasers.” The company had 30 to 40 em-

ployees, and the petitioner managed its accounting and administrative

functions.. Second, Mr. Paracha founded and ran Universal Broadcasting,

a media company in Pakistan that “produced programming on current af-

fairs, politics, and religion, as well as entertainment.” The studio aimed to

sell its programs for distribution to cable outlets around the world; it em-

ployed about 20 people. Third, Petitioner owned an industrial company,

Abson Industries, which manufactured polypropylene bags for packaging

heavy items like cement. Fourth, petitioner launched a real estate com-

pany, SS Associates, to manage the redevelopment, construction, and sale

of a beachfront apartment complex called Cliftonia. The government does

not dispute that International Merchandise, Universal Broadcasting, Abson

Industries, and SS Associates were bona fide companies.


In addition to these business ventures, it is undisputed that Mr. Paracha

was an active philanthropist who was particularly interested in building

schools and hospitals in Pakistan and, later, in Afghanistan. Mr. Paracha

was an active member of the Council of Welfare Organizations (“CWO”),

a charitable organization “made up of successful Pakistani businessmen

and political leaders,” who shared a goal of “provid[ing] support in Paki-

stan and the region regarding education, health, justice, and food sup-

port.”. As “a respected man in his community,” Mr. Paracha had substan-

tial social status and political connections. See id. For example, he trav-

elled with or maintained relationships with Saudi Arabia's minister of pe-

troleum, the President of Afghanistan, the President of Pakistan, the head

of Pakistan's intelligence service, the mayor of Karachi, and various other

political and educational leaders in Pakistan

In the course of managing his business and philanthropic affairs, Mr.

Paracha interacted with members and leaders of various extremist groups,

including Al-Qaeda and the Taliban, the latter of which governed Afghan-

istan for several years of the period relevant to this case. Mr. Paracha's

connection to three Al-Qaeda figures, in particular, lie at the heart of this

case: Khaleid Sheikh Mohammed (“KSM”) (the alleged planner of the

9/11 attacks), Ammar Al-Baluchi (an alleged Al-Qaeda financier and log-

istician), and Majid Khan (who has admitted to serving as an operational

agent attempting to set up an Al-Qaeda cell in the United States). All three

individuals were captured in 2003 and subjected to the CIA's since-dis-

credited enhanced interrogation techniques (“EITs”). Each of these men

provided information indicating that petitioner and his son, Uzair Paracha,

had provided assistance to Al-Qaeda.

The FBI interrogated Uzair Paracha in the United States in March

2003, first during voluntary interviews and later – after his arrest as a ma-

terial witness in another investigation – at proffer sessions with prosecu-

tors, during which Uzair was assisted by counsel. Uzair Paracha provided

substantial information, independent of the statements extracted from

KSM, Al-Baluchi, and Khan, that linked Saifullah Paracha to Al-Qaeda.

On the basis of the information gathered from the Al-Qaeda sources

and Uzair Paracha, the United States decided to apprehend Saifullah Para-

cha in 2003. [Redacted] So the United States turned to Charles Anteby,

Mr. Paracha's U.S.-based business partner, to execute a scheme that lured

Mr. Paracha [Redacted] under the pretense of a business opportunity. The

United States captured Mr. Paracha [Redacted] in June 2003. DoD Interro-

gator Notes 07/08/03, JE 7, at 79. Mr. Paracha was transported first to

Bagram Air Force Base in Afghanistan, where he was held for 15 months,

and then to Guantanamo Bay, where he has remained. United States mili-

tary, intelligence, and law enforcement personnel have visited or interro-

gated Mr. Paracha hundreds of times. Unlike some of the other detainees

remaining at Guantanamo Bay, however, Mr. Paracha has not been

charged before a military commission or transferred for trial before an-

other competent tribunal. Nor has he ever been cleared for release to Paki-

stan or any other country.

Petitioner's statements during these interrogations – as supplemented

and corroborated by statements made by his son, Uzair Paracha – provide

most of the evidence with which the parties have litigated this case. Mr.

Paracha and the respondents broadly agree about what the petitioner did in

Afghanistan and Pakistan from 1999 to 2003. As discussed in the Court's

Findings of Fact, neither Mr. Paracha nor his counsel dispute that Mr.

Paracha met Osama Bin Laden on two separate trips to Afghanistan, or

that Mr. Paracha undertook a variety of tasks at the request of several of

Bin Laden's lieutenants. He distributed a press release, produced a video

message, temporarily held substantial funds belonging to Al-Qaeda, and

provided various other advice and assistance at the request of individuals

who have since been confirmed to be KSM and Al-Baluchi. It is likewise

beyond dispute that Mr. Paracha knew senior leaders of the Taliban and

provided certain assistance to its members: Mr. Paracha helped raise thou-

sands of dollars to purchase a vehicle that Taliban fighters used in combat

and provided other financial support at the request of jihadists.

B. Procedural History

[Ed. The court's decision in this opinion for the first time reaches the

full merits of a habeas corpus petition that was filed in November, 2004.

In the 15 year interim, the court ruled on various motions, for a temporary

restraining order, for a preliminary injunction, several motions for sum-

mary judgment, several matters of discovery and other procedural matters.

In addition to the delays entailed by the preceding matters, "proceedings in

this matter have been stayed at the request of the parties for a substantial

portion of the fifteen years since Mr. Paracha filed his petition…." The

court continued with this section on Procedural History as follows: ]

The Court held an evidentiary hearing from October 21 to 30, 2019.

The hearing began with unclassified opening statements, which were

transmitted via a live audio connection to the Naval Base at Guantanamo

Bay. This enabled Mr. Paracha to listen to the unclassified opening state-

ments in real time. The remainder of the proceedings were classified and,

therefore, conducted in a sealed courtroom that was closed to Mr. Paracha

and to the public. Mr. Paracha did not testify at the hearing, and neither

party called any live witnesses. Instead, the parties presented evidence and

made arguments from hundreds of joint exhibits, consisting largely of in-


terview reports and other documents concerning Mr. Paracha's interroga-

tions prepared by the FBI [Redacted] and Department of Defense. The

parties also discussed evidence connected with the interrogation and trial

of Mr. Paracha's son, Uzair Paracha. Petitioner also submitted expert re-

ports on certain aspects of Pakistani culture and on the physical and psy-

chological effects of certain interrogation techniques. Respondents submit-

ted a declaration from Special Agent Janelle Miller, Mr. Paracha's primary

FBI interrogator and the author of many of the interrogation reports in the

record, and declarations from a number of military officials with responsi-

bility for fighting terrorism and supervising detention at Guantanamo Bay.

The parties made classified closing arguments…."

II. LEGAL STANDARDS

A. The Detention Standard

…

The most current and precise statement of the government's detention

authority, however, is the National Defense Authorization Act of 2012

(“NDAA”), which codifies and arguably expands Al-Bihani's statement of

the AUMF detention authority. In the NDAA, Congress confirmed that

“the authority of the President to use all necessary and appropriate force

pursuant to [the AUMF] includes the authority for the Armed Forces of

the United States to detain covered persons ... pending disposition under

the law of war.” NDAA Sec. 1021(a) (emphasis added). As relevant to this

case, the NDAA defines a covered person as “any person” who “was

a part of or substantially supported al-Qaeda, the Taliban, or associated

forces that are engaged in hostilities against the United States or its coali-

tion partners, including any person who has committed a belligerent act or

has directly supported such hostilities in aid of such enemy forces.”

NDAA Sect. 1021 (b) (emphases added).

2In short, the NDAA authorizes detention for all those who rendered

“substantial support” to Al-Qaeda or the Taliban,

…

In the instant case, the government alleges three bases for detaining

Mr. Paracha, each of which is independently sufficient under the AUMF

and NDAA: (i) that petitioner gave substantial support to the Taliban; (ii)

that petitioner gave substantial support to Al-Qaeda; and (iii) that peti-

tioner was part of Al-Qaeda. R. Opp. Merits Br. at 20. Accordingly, as-

sessment of the habeas petition requires the Court to interpret the scope of

the detention authority conferred by the “substantial support” prong of the

NDAA, The Court has determined that it need not interpret the scope of

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the detention authority conferred by the “part of” prong of the NDAA be-

cause the Court concludes that Mr. Paracha has rendered substantial sup-

port to Al-Qaeda and the Taliban. . That finding alone requires denial of

Mr. Paracha's habeas petition.

2. Detention based on “substantial support”

There is not yet binding authority in this circuit on the precise limits of

detention authority under the current “substantial support” standard, likely

because most Guantanamo habeas petitioners have been detained under

the “part of” prong, and few cases have relied primarily on allegations of

“substantial support” since enactment of the 2012 NDAA. See Al-Hela v.

Trump, 2019 U.S. Lexis 42717 at *7-8.

…

Ultimately, this Court's assessment of the government's detention au-

thority under the AUMF “must be made on a case-by-case basis by using a

functional rather than a formal approach and by focusing upon the actions

of the individual in relation to the organization.” Al-Madhwani v. Obama,

642 F. 3d 1071, 1074 (D.C. Cir. 2011). see also Uthman v. Obama, 637

F.3d 400, 402 (D.C. Cir. 2011); Salahi v. Obama, 625 F.3d 745, 751-52

(D.C. Cir. 2010). Mr. Paracha attempts to place three limitations on the

scope of detention authority under the “substantial support” prong, each of

which merit examination.

a. Substantial support does not require specific knowledge or in-

tent

First, Mr. Paracha argues that, to establish substantial support for Al-

Qaeda or the Taliban, the government must establish that the petitioner

“knew and intended that ... his actions [would] support hostilities against

the United States.” Petitioner's Classified Merits Brief (“P. Merits Br.”), at

3-4. This is not an accurate statement of the NDAA detention standard.

Petitioner emphasizes the D.C. Circuit's reliance on analogous provisions

of the Military Commissions Acts of 2006 and 2009 – which do contain

language requiring purposeful and material support – to define the scope

of detention authority under the AUMF. But this language merely defines

those who may be tried by a military commission; it does not create a

heightened intent requirement for who may be detained. As noted above,

“the government's detention authority logically covers a category of per-

sons no narrower than is covered by its military commission authority,”

but its “[d]etention authority in fact sweeps wider....” Al-Bihani v. Obama,

590 F.3d at 872.

…

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Guantanamo habeas petitions are civil cases assessing military deten-

tion authority; they are not criminal cases determining criminal culpabil-

ity. .... Our court of appeals has generally declined to impose limitations

on the government's detention authority that do not appear in the statute it-

self:

[The detainee] argues that the government must show that he was in-

volved in the “command structure” of al Qaeda or the Taliban. rather than

[being] merely “part of” those organizations. But “nowhere in the AUMF

is there mention of a command structure.” While such a showing would he

enough to sustain [the detainee's] detention, it is not necessary.

Hussain v. Obama, 718 F.3d 964, 967 (D.C. Cir. 2013) (internal cita-

tions omitted).

What the government is required to prove, with respect to knowledge,

is that petitioner knew whom he was supporting. The court of appeals has

held that the “purely independent conduct of a freelancer is not enough” to

justify detention. Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir.

2010). As the respondents acknowledged at the evidentiary hearing in this

matter, the government must prove that Mr. Paracha knew that KSM, Al-

Baluchi, and Majid Khan were pan [sic-part] of Al-Qaeda in order to es-

tablish that assistance given to those individuals amounts to substantial

support. Similarly, the government must prove that Mr. Paracha knew he

was dealing with the Taliban or its fighters in order for that assistance to

support a claim of substantial support.

b. Substantial support does not require any nexus with active hos-

tilities

…

The question is whether the petitioner supported one of the organiza-

tions that is engaged in hostilities against the United States, not whether

the petitioner supported or participated in the hostilities.

c. Detention based on substantial support does not require proof of

future dangerousness

The third limitation that the petitioner asks the Court to place on deten-

tion authority is a requirement that the government must prove “that Mr.

Paracha continues to present a threat to security, and that his detention is

absolutely necessary for security reasons.” P. Merits Br. At 6, ….

But our court of appeals has already held that “the United States' au-

thority to detain an enemy combatant is not dependent on whether an indi-

vidual would pose a threat to the United States or its allies if re-




leased.” Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010). Nor do the rele-

vant statutes impose any future dangerousness limitation. … the NDAA

clarifies the meaning of the AUMF, and explicitly authorizes detention

“without trial until the end of the hostilities authorized by the AUMF.”

NDAA § 1021(b). See also Al-Alwi v. Trump, 901 F.3d 294, 298 (D.C.

Cir. 2018). And the court of appeals has said that this question – “the de-

termination of when hostilities have ceased” – is irreducibly “a political

decision, [in which the courts] defer to the Executive's opinion on the mat-

ter, at least in the absence of an authoritative congressional declaration

purporting to terminate the war.” Al-Bihani v. Obama, 590 F.3d at 874.

A caveat applies to the Court's view of each of petitioner's three con-

tentions about the meaning of the “substantial support” prong of the

NDAA. The Court notes that the United States Court of Appeals for the

District of Columbia Circuit has not yet conclusively interpreted the scope

of this “substantial support” detention authority with respect to petitioner's

knowledge, his participation in or support for belligerent acts against the

United States, or his future dangerousness. Indeed, several of these ques-

tions are now before the D.C. Circuit on appeal. See Al-Hela v. Trump,

Civ. No. 19-5079, Brief of Petitioner-Appellant, (D.C. Cir. Oct. 16, 2019)

(Dkt. No. 181196). Petitioner's objections to this Court's interpretations of

the provision are noted, and are preserved for appeal, where they will be

entitled to de novo review.

III. EVIDENTIARY DETERMINATIONS

Before turning to analyze the substance of the petitioner's claim that

the government lacks the legal authority to detain Mr. Paracha, the Court

first addresses several threshold evidentiary matters. See Alsabri v.

Obama, 764 F. Supp. 2d. 60, 66-67 (D.D.C. 2011). First, as the Court held

in an October 2019 memorandum opinion, see Dkt. No. 545, government

records containing hearsay are admissible in this matter. And, with respect

to one such disputed record, the Court now confirms that it will admit and

consider the stipulation of facts that Majid Khan entered before his mili-

tary commission. See Part III.A, infra. Second, as the Court held in Octo-

ber 2019, the records of hearsay admitted in evidence are entitled to a re-

buttable presumption of regularity – that is, the presumption that the rec-

ords accurately record the statements made by the objects of the reports –

subject to rebuttal by clear evidence. See Dkt. No. 545 at 1-3. Following

extensive argument on this matter during the evidentiary hearing, the

Court now finds that petitioner has not provided clear evidence to rebut

the presumption of regularity with respect to any category of the govern-

ment's evidence. See Part III.B, infra. Third, the Court must independently

determine the substantive truth or reliability of the witness statements con-








tained in the hearsay records. See Dkt. No. 545 at 4, With respect to par-

ticular categories of evidence challenged by the petitioner, the Court now

finds (i) that Mr. Paracha's statements to his interrogators were not the

products of undue coercion; and (ii) that the statements of Uzair Paracha

on which the government relies are generally reliable.

…

IV. FINDINGS OF FACT

The instant petition turns both on what Paracha did for Al-Qaeda and

the Taliban and — more vigorously disputed by the parties – what

he knew at the time he interacted with Osama Bin Laden and other mem-

bers of Al-Qaeda. Both questions are the focus of the Court's Findings of

Fact.18 The parties' presentations at the evidentiary hearing addressed five

material issues in dispute. With respect to each of the material issues in

dispute, the Court makes the following Findings of Fact by a preponder-

ance of the evidence. As noted in Part II, supra, this standard entails “a

comparative judgment about the evidence to determine whether a proposi-

tion is more likely true than not true based on all the evidence in the rec-

ord.” Almerfedi v. Obama, 654 F.3d at 5.

A. Mr. Paracha Provided Assistance to Taliban Fighters

The government's evidence on the first disputed issue of material fact

includes both specific claims about instances of support to the Taliban and

Al-Qaeda and general claims about Mr. Paracha's status within the extrem-

ist community and his attitudes toward it.

1. Mr. Paracha was knowledgeable about the Taliban and en-

dorsed the organization

Mr. Paracha has been open about his support for the Taliban. He ad-

mired the stabilizing role that it played in Afghanistan after that country's

war with the Soviet Union, and he believed that the Taliban was the best

choice for the Afghan people. FBI EC 10/14/04, JE 70-30, at 949; FM40

10/15/03, JE 26, at 201. Similarly, during early interrogations at Bagram,

Mr. Paracha openly admitted that he “sympathizes with [Al-Qaeda]” FBI

EC 07/11/03, JE 70-7, and said that he “felt it was a privilege to work with

[Al-Qaeda],” FBI EC 07/13/03, JE 70-10, at 866.

Petitioner offers information on the Pakistani cultural context in an at-

tempt to neutralize the implications of these attitudes. One of petitioner's

experts, Dr. Sadia Saeed, is a native of Pakistan and a professor of Sociol-

ogy at the University of San Francisco. In her report, Dr. Saeed surveys

Pakistani news media and academic sources to opine on the attitudes that

Pakistanis most likely had towards the Taliban and Al-Qaeda in the period

immediately before and after 9/11. Dr. Saeed explains that, before 9/11,

https://1.next.westlaw.com/Document/I8dabe210727a11ea99df8ae889484d86/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.History*oc.Search)&userEnteredCitation=2020+wl+1495787#co_footnote_B00182050659921


“expressing support for the Taliban regime ... was the official state policy

of Pakistan. Thus, expressing support for, and doing business or charitable

work with, the Taliban during this time would not have been illegal or un-

usual ... in Pakistan.” Perceptions of Taliban, Al-Qaeda, and Osama Bin

Laden in Pakistan (“Saeed Report”), JE 211, at 1560. Dr. Saeed writes that

“pro-Taliban sentiments were widely shared by ordinary Paki-

stanis.” See id. at 1562. Petitioner's counsel suggested during the eviden-

tiary hearing that many people would have found it difficult even to distin-

guish between the numerous extremist groups active in the middle east at

the time.

The Court assumes for the sake of argument that Dr. Saeed has reason-

ably described the attitudes of so-called “ordinary Pakistanis” before

9/11.19 Mr. Paracha, however, was no ordinary Pakistani. He lived in the

United States for fifteen years. In his education, his cosmopolitan world-

view, his consumption of western news media, his political connections,

and his resources, Mr. Paracha was unusual. See Part I.A, supra. Dr.

Saeed's report itself distinguishes the views and the conduct of “the Eng-

lish-speaking elite” – like Mr. Paracha – and “the average non-English

speaking Pakistani.” JE 211 at 1578. See also id. at 1564 (noting that “the

more liberal public” held “perceptions about the Taliban that were differ-

ent” from the ordinary public).

Drawing on Dr. Saeed's findings, petitioner also argues that it would

have been hard for any Pakistani to conduct charitable work in Afghani-

stan without having contact with the Taliban. P. Merits Br. at 15. But this

case does not present a question of casual contact or glancing acquaint-

ance. Mr. Paracha did not just tolerate the Taliban to the extent necessary

to do his charitable work: his statements to interrogators confirm that he

had substantial knowledge of the extremist landscape and that he endorsed

the Taliban, in particular. FBI EC 10/14/04, JE 70-30, at 949.

Moreover, Mr. Paracha's engagement with the Taliban went beyond

understanding and approval. Petitioner himself denied being an “Islamic

militant,” but the evidence shows that that he freely associated with many

who were. See JE 8 at 84. For example, Mr. Paracha knew members of the

Taliban leadership personally. JE 70-30 at 949. Accordingly, both Lash-

kar-e-Tayyibe, designated by the U.S. Department of State as a Foreign

Terrorist Organization (“FTO”), and Jamaat Islami, a Pakistani political-

religious group, asked Paracha to broker meetings with Taliban leadership.

FBI EC 10/26/2004, JE 70-33 at 972. Mr. Paracha frequently received so-

licitations of this kind. He knew Mufti Abdul Rasheed, head of the Al-Ra-

shid Trust in Pakistan, which provided “the most help” to the Taliban, in-

cluding food and shelter. FBI EC 12/03/04, JE 70-37, at 995. Rasheed fre-



quently solicited money from Paracha for jihadist causes. Id. Paracha de-

clined to assist Rasheed – but only because his own organization, the

Council of Welfare Organizations, was already helping the fighters in

other ways.

Mr. Paracha also provided more direct assistance to certain non-Tali-

ban fighters in the region. He supported the mujahedeen fighting to “keep

the Jihad alive in Kashmir,” and even helped the fighters to get out of jail

when the Pakistani government arrested them. FBI EC 10/26/2004, JE 70-

33, at 971.20 He also claimed credit for assisting mujahedeen in Chech-

nya, Kashmir, and Afghanistan. Id.

In short, these affiliations and acts of assistance show a comprehensive

and nuanced grasp of various Pakistani and Afghan jihad-oriented organi-

zations, their leadership, and their causes. The government does not allege

that any of the foregoing attitudes or affiliations show that Mr. Paracha

was part of the Taliban or one of the other non-Al-Qaeda jihadist organi-

zations. And, as Mr. Paracha's counsel have pointed out, association and

offers of assistance may not themselves amount to the provision of sub-

stantial support. Even so, these substantial and longstanding affiliations

with the Taliban and other jihadist organizations – and Mr. Paracha's

knowledge of and admiration for them – are the context in which the

Court considers the import of Mr. Paracha's more overt activities. The

Court makes the following Findings of Fact with respect to the respond-

ents' three specific claims of assistance.

2. Mr. Paracha helped Taliban fighters to procure military equip-

ment

…

. Mr. Paracha and the delegates raised roughly $7,000 to give to Rah-

man and Jabrail. See FBI EC 11/05/2004, JE 70-36, at 989. Mr. Paracha

confirmed to interrogators that the money was used to purchase a used

four-wheel drive vehicle. It appears that the vehicle was used in fighting

against the United States during the war in Afghanistan. See JE 70-33 at

972 (indicating that, when the Taliban fighters spoke with Mr. Paracha

shortly after the United States invaded, the vehicle had been “hit by a

bomb during the fighting in Afghanistan”).

Petitioner does not deny that he contributed to the purchase of a

fighting vehicle for Taliban fighters. Rather, Mr. Paracha argues that the

purpose of the trip was primarily charitable, that he made this financial

contribution as part of a large delegation, and that it cannot be the basis for

substantial support because the decision to contribute money was a collec-

tive one. But the evidence reveals that Mr. Paracha was a leader of the ef-

fort, not a passive participant.


…

3. Mr. Paracha provided financial support to Taliban fighters

Mr. Paracha received many additional requests from Taliban fighters.

In fact, Mr. Paracha told the FBI that, after the United States invaded Af-

ghanistan in September 2001, jihadists fighting against American troops

“would come to his office and ask for things because the jihadists knew

Paracha could get things done.” JE 70-30 at 950.23 For example, Saud

Ahmed, a Pakistani whom Mr. Paracha met on a trip to Afghanistan,

served as a middleman between Dr. Naseem (of the CWO) and the Tali-

ban. Saud Ahmed asked Mr. Paracha for “money for food and medicines

for the fighters in [Afghanistan].” FBI EC 10/26/2004, JE70-33, at 971.

Mr. Paracha confirmed that Ahmed gave money for such things to the

fighters, but the report detailing Ahmed's request to Mr. Paracha is not

clear as to whether Mr. Paracha himself contributed in response to the so-

licitation. Id.

Shortly after the start of the U.S.-Afghanistan war, Abdul Rahman and

Abu Jabrail again contacted Mr. Paracha – this time to seek financial sup-

port for the Taliban's war against the United States. FBI EC 10/26/2004,

JE70-33, at 972. Mr. Paracha declined – not because he did not support the

cause, but because he was already sending medicine and other supplies to

the fighters; and “he knew from living in the US that it was a waste to give

the fighters money because they would not win,” Id. at 973. The request

establishes that Taliban fighters recognized Mr. Paracha, among the vari-

ous members of the delegation, as a leader and potential source of aid.

The requests for assistance continued as the U.S.-Afghanistan war

waged on. Pakistani and Afghan fighters “who were supporters of the Tal-

iban” came to Mr. Paracha's office five or six times to ask for thousands of

dollars to “buy weapons to fight in the war in [Afghanistan] against the

[United States].” FBI EC 10/14/04, JE 70-30, at 951. Mr. Paracha agreed

to assist, but told interrogators that he did so by providing them “money so

the jihadists could buy cement to build a mosque in Pakistan near the [Af-

ghanistan] border.” Id. Mr. Paracha had one of his employees deliver the

equivalent of $600 directly to a cement company. Id.

With reference to all of the foregoing solicitations, petitioner's counsel

point out that Mr. Paracha did not admit to providing direct financial sup-

port to the Taliban for weapons purchases, and that Mr. Paracha also re-

jected solicitations. Nevertheless, when Mr. Paracha agreed to provide

$600 – allegedly to a cement company for mosque construction – he did

so in direct response to an explicit request for weapons, and he indicated

that the contribution was “to help” the war in Afghanistan. FBI EC

10/13/04, JE 70-30, at 951. It is not clear how such a mosque would be



helpful in defeating the United States, or why the Taliban fighters would

decide to organize and protect a construction project in the midst of a

pitched battle with the world's largest military. Mr. Paracha never visited

the mosque and was unable to provide any details about the mosque, in-

cluding whether it had ever been built. Id. He acknowledged that it “was

possible” that the jihadists could have used the money for another pur-

pose. Id. On these facts, it is more likely than not that the money Mr. Para-

cha provided – ostensibly for construction of a mosque – was diverted to

another use.

Mr. Paracha discussed his trips to Afghanistan in a 2005 Administra-

tive Review Board proceeding, explaining that “I had no inclination to-

ward the Taliban, the Taliban government, or the Northern Alliance. 1 am

not a political man. I just wanted to help people. I am not an extremist.”

ARB Summary 12/07/05, JE 64, at 640. Mr. Paracha may well have de-

sired to help people. Indeed, there is no necessary contradiction in being

both a benevolent businessman and also a committed jihadist. In the con-

text of his earlier admissions of aid and explicit engagement with the Tali-

ban's political program, however, this statement appears to be an attempt

to conceal the depth of his support for the Taliban.

The Court finds by a preponderance of the evidence (i) that petitioner

provided medicine and other supplies to the fighters; and (ii) that he pro-

vided financial support to Taliban fighters on at least one occasion, in the

form of a donation worth $600.

4. The government has not established by a preponderance of the

evidence that Mr. Paracha provided direct support to Al-Qaeda fight-

ers

…

B. Mr. Paracha's Meetings with Osama Bin Laden Demonstrate that

he was Trusted by and Eager to Work with Al-Qaeda.

The government's evidence on the second disputed issue of material

fact concerns Mr. Paracha's two meetings with Osama Bin Laden in Af-

ghanistan.26 The parties agree that the meetings took place, but they disa-

gree about the nature of a conversation that occurred at one of the meet-

ings and about what the meetings reveal about the intentions of Mr. Para-

cha and Al-Qaeda.

In December 1999 or January 2000, petitioner led a charitable delega-

tion of Pakistanis to Afghanistan, his second visit to that country. He and

his fellow travelers stayed at a Taliban guest house in Kandahar, FBI EC

11/05/04, JE 70-36, at 989. Mr. Paracha was one of a select group of the

delegation – between six and fifteen of the roughly 100 travelers – who


were invited to meet personally with Osama Bin Laden. The group trav-

elled to the meeting site by car, arriving after dark and parking inside a

building. FBI EC 07/11/03, JE 70-7, at 840; JE 70-36, at 989, Numerous

bodyguards secured the building, but none of the visitors was searched or

blindfolded. FBI EC 07/09/03, JE 70-3, at 787.

Inside the building, Osama Bin Laden shook the attendees' hands and

spoke to the group for thirty to forty minutes. He read from the Koran and

the sayings of the Prophet, and gave what Mr. Paracha described as “a

speech ... about jihad and fight against injustice.” 07/11/04 DoD Interroga-

tor Notes, JE 9, at 91. See also SIR 11/03/2004, JE 37, at 279 (indicating

that the Koranic verses encouraged Muslims to help other Muslims). Spe-

cial Agent Miller's handwritten notes of this interrogation contain Mr.

Paracha's statement that the “UBL message” at this meeting was “jihad –

stand up & fight against injustice.” Miller notes 07/11/2003, JE 70-6, at

824 (emphasis in original). Another interrogation report relays Mr. Para-

cha's claim that Osama Bin Laden spoke on this occasion against the

United States' policy in Israel and praised an Egyptian dictator. JE 70-3 at

787.

Toward the end of the meeting, Saifullah Paracha spoke directly with

Osama Bin Laden. Mr. Paracha gave Osama Bin Laden his business card,

“offering his media company to spread UBL message” [sic]. JE 9 at

91; see also JE 37 at 280. At another interrogation addressing the same

meeting, Mr. Paracha elaborated that “he offered [Bin Laden] the use of

[Paracha's] media company” by proposing that Bin Laden record his mes-

sage in English, which would allow him to “get his message across to

many more people.” JE 70-3 at 787. The parties vigorously dispute what

Mr. Paracha understood Bin Laden's “message” to be when he offered to

disseminate it.

Petitioner's second meeting with Osama Bin Laden took place on his

third trip to Afghanistan, which was likely in April or May 2001, just a

few months before the 9/11 terrorist attacks. The second meeting followed

a routine similar to the first: Mr. Paracha travelled with a charitable dele-

gation and stayed at a Taliban compound on the outskirts of Kandahar. A

Deputy Foreign Minister of the Taliban informed the group that a select

subset of the delegation had been invited to meet with Osama Bin Laden.

FBI EC 11/05/04, JE 70-36, at 991. Petitioner again travelled by car to

visit Bin Laden; as before, Bin Laden's handlers imposed no security

screening on the visitors. Bin Laden prayed with the group, and they

shared a meal. SIR 11/03/04, JE 37, at 286. Mr. Paracha told interrogators

that he did not speak personally with Bin Laden, about his business pro-

posal or otherwise, during this second meeting. Id.; JE 70-36 at 91.

1. The meetings show that Al-Qaeda trusted Mr. Paracha


…

2. Mr. Paracha knew about Al-Qaeda and was eager to work with

the group

Petitioner does not dispute his eagerness to do some form of business

with Osama Bin Laden. P. Merits Br. at 17. All of the reports indicate that

Mr. Paracha offered his business card and made a business proposition

concerning the use of his television studio. The Court therefore finds by a

preponderance of the evidence that Mr. Paracha was eager to do business

with Osama Bin Laden.

The parties do dispute, however, what Mr. Paracha knew about Al-

Qaeda at the time he met Bin Laden, the nature of the business arrange-

ment that Mr. Paracha contemplated with Bin Laden, and whether or not

the proposal embraced Al-Qaeda's extremist aims. The Court's analysis of

Mr. Paracha's knowledge of Al-Qaeda is relevant both to its findings on

the import of his meeting with Bin Laden and to its Findings of Fact re-

specting the assistance he gave to Bin Laden's emissaries. See Part

IV.C, infra.

Mr. Paracha argues that his proposal to Bin Laden was motivated by a

desire to make money and the thought that “[Bin Laden's] prestige in Is-

lamic society could help bridge the gap between Islam and the western

culture.” [Redacted] 01/24/04 Interview, JE 50, at 371. To that end, “he

envisioned [Bin Laden] quoting verses from the Koran and then a transla-

tion being made into English immediately following each verse.” FBI In-

formation Report 01/24/04, JE 47, at 361. Mr. Paracha argues that he in-

tended to write the script for any video and would not have allowed a mes-

sage of violent jihad. FM40 10/15/04, JE 238, at 1810; SIR 02/26/04, JE

285, 2219.

Counsel for petitioner have provided some support for Mr. Paracha's

explanation of his offer to Bin Laden. For example, Mr. Paracha had pro-

duced other news items about the Afghanistan-U.S. conflict to sell to

Western media, and he had produced at least one other video with a Mus-

lim cleric that espouses a peaceful vision of Islam. See Gaillard T. Hunt

Decl., PE H. Petitioner's counsel argue that it was not unreasonable to sup-

pose that Mr. Paracha would produce such a video, in light of Pakistani

culture's view of Al-Qaeda, In the Saeed Report, petitioner's expert ex-

plains that, before 9/11, “Pakistanis who knew about Al-Qaeda may have

reasonably perceived it to be an organization engaged in the betterment of

Muslims worldwide.” JE 211 at 1571. Mr. Paracha himself stated that

“99% of Pakistanis like [Osama Bin Laden]. The younger generation

thinks [Bin Laden] is a hero.” DoD Interrogator Notes 07/10/2003, JE 8, at

87. Dr. Saeed explains that, before 9/11, most jihad discussed in Pakistan

referred to a moral or rhetorical battle, rather than a violent physical con-

flict. JE 211 at 1569.27 She concludes that “ordinary Pakistanis” would

not have been able to distinguish between Al-Qaeda and the Taliban, and

that “only a very keen follower of news emanating from the West about

terrorism, or someone very knowledgeable about Western sources” would

have understood the distinctions between Al-Qaeda, the Taliban, and other

Islamic groups. Id. at 1572.

Saifullah Paracha, however, was just the kind of “keen follower” of

western news that Dr. Saeed envisions. He lived in the United States for

fifteen years, owned businesses here, and displayed the American flag in

the lobby of his office in Pakistan. Petitioner's Submission for 03/21/17

Periodic Review Board, PE G, at 27. The evidence shows that he traveled

frequently, spoke and read English fluently, and consumed western media,

including CNN, the BBC, and Newsweek. See ARB Summary 12/07/05,

JE 64, at 654. During one interrogation, for example, Mr. Paracha engaged

his interrogator in a conversation about the outcome of the 2004 presiden-

tial election in the United States, and the two discussed the possible out-

comes based on the results in Florida and Ohio. SIR 11/03/2004, JE 37, at

272. He also wrote letters to American Presidents which displayed an un-

derstanding of American politics and strategic priorities. See 05/12/2001

Letter from Saifullah Paracha to George H. W. Bush, JE 272, at 2131.

This background and familiarity with western sources is powerful evi-

dence of what Mr. Paracha would have known. For years before the terror-

ist attacks of 9/11, the English-language media in Pakistan was writing

about Bin Laden's affiliation with Al-Qaeda and his association with vari-

ous violent terrorist attacks. See, e.g., American Officials Take Threats Se-

riously, THE DAWN (Feb. 26, 1998), JE 107, at 1331 (providing notice,

in Pakistan's largest English language newspaper, that Bin Laden pub-

lished an edict requiring Muslims to kill Americans and their allies in any

country in the world); Saudi Millionaire Tops List of Bombing Sus-

pects, THE DAWN (Aug. 9, 1998), JE 108, at 1334 (indicating that the

United States suspected Osama Bin Laden of bombing American embas-

sies in Kenya and Tanzania). Mr. Paracha himself confirmed to an interro-

gator that he consumed media reports concerning Al-Qaeda, indicating

that he knew about the location of Al-Qaeda training camps “from watch-

ing television and reading the newspaper.” TRRS-03-07-1485, JE 120, at

1451.

Ultimately, the evidence is clear that Mr. Paracha was aware that

Osama Bin Laden and Al-Qaeda were regarded as terrorists, and that Bin

Laden was inextricably linked with Al-Qaeda itself. Mr. Paracha con-

firmed as much to FBI interrogators in January 2004, explaining that “he

was very interested [in meeting Bin Laden] because he admired UBL



greatly. Even though UBL had already been implicated in terrorist[ ] at-

tacks, [Mr.] Paracha felt he was being exploited by the media and other

groups (Jews).” FBI EC 01/22/2004, JE 73, at 1025. He displayed similar

knowledge of Al-Qaeda during another interview a few days later. Mr.

Paracha told [Redacted] interrogator that, at the time of his meeting with

Bin Laden, he understood that Bin Laden “was a known terrorist who

spouted the destruction of the United States and western culture.” [Re-

dacted] JE 50, at 371. Even so, he said, he simply did not believe that this

presented a contradiction with his aims of using Bin Laden to spread “the

message that Islam is a peaceful religion.” Id. Finally, during an Adminis-

trative Review Board proceeding at Guantanamo, the presiding officer

noted that “in 1999 when you met him, Usama bin Ladin had already fa-

cilitated terrorist acts against the United States. [He] was a wanted fugitive

by the United States government.” ARB Summary 12/07/05, JE 64, at

645. When the presiding officer of the ARB asked Mr. Paracha to confirm

that “you knew that at the time you met him,” Mr. Paracha responded in

the affirmative: “I did know that.” Id.

It is clear to the Court that Osama Bin Laden was never going to pro-

duce a video extolling a peaceful and harmonious vision of Islam. By the

time Mr. Paracha offered to spread Bin Laden's message, Bin Laden and

Al-Qaeda had declared a jihad calling for the murder of United States mil-

itary personnel on the Arabian Peninsula; had purported to issue a fatwa

calling on all Muslims to kill Americans anywhere in the world; and had

been widely accused of murderous bombings against U.S. military and

diplomatic facilities. See R. Am. Factual Return at 4. Since the moment of

its founding, Al-Qaeda's overarching goal has been “re-establishing the Is-

lamic Caliphate, unified by a common militant-Salafist ideology rooted in

a violent rejections of apostasy and characterized by fervent opposition to

Western influence.” [Redacted] Decl., JE 5, at 64.

In this context, Mr. Paracha's claim that he was hoping to use Bin

Laden to spread a message of intercultural harmony to bridge the Muslim-

Christian divide, see FBI EC 01/24/04, JE 32, at 2, is not remotely credi-

ble. Nor is Mr. Paracha's claim that he did not know the content of Bin

Laden's message at all. See JE 36 at 2. Instead, Mr. Paracha's earlier state-

ment is far more consistent with the body of evidence: Mr. Paracha “ad-

mitted that [Osama Bin Laden's] message would be to do a jihad against

westerners and the US.” FBI EC 07/10/03, JE70-5, at 816.

For the foregoing reasons, the Court makes the following Findings of

Fact by a preponderance of the evidence: (i) when he met Osama Bin

Laden, Mr. Paracha knew that Osama Bin Laden was the leader of Al-

Qaeda and that Bin Laden and Al-Qaeda had been accused of violent ter-

rorist attacks; (ii) Mr. Paracha was nevertheless eager to work with Bin

Laden and Al-Qaeda; and (iii) when he offered to spread Bin Laden's mes-

sage, Mr. Paracha knew that Bin Laden and Al-Qaeda's message was one

of violent jihad.

C. Mr. Paracha Supported Al-Qaeda by Knowingly Providing Assis-

tance to Khalid Sheikh Mohammed and Ammar Al-Baluchi

…

1. Petitioner knew KSM and Al-Baluchi were part of Al-Qaeda

when he assisted them

How much petitioner knew about KSM and Al-Baluchi during the

time he interacted with them is the single most hotly contested factual is-

sue before this Court, Mr. Paracha concedes that he knew KSM and Al-

Baluchi and that he did business with them. And no party seriously con-

tests, for the purposes of this litigation, that KSM and Al-Baluchi were, in

fact, members of Al-Qaeda. But Mr. Paracha vigorously denies that, in do-

ing business with KSM and Al-Baluchi, he “knowingly interacted with

members of al-Qaeda or anti-Coalition forces.” Nov. 19, 2019 Tr. at

125:13-15 (describing this as the “main issue at dispute in this case”). Ra-

ther, Mr. Paracha thought he was engaging with “Pakistani businessmen,”

not “members of[ ] a terrorist organization.” Id. at 125:16-19. On this

score, Mr. Paracha notes that KSM had the well-groomed appearance of a

modern Pakistani businessman: he was clean-shaven and wore a white

cap. See Janelle Miller Notes 07/11/03, JE 70-6, at 820. Nothing about

KSM's appearance struck Mr. Paracha as resembling the usual radical Is-

lamic extremist militant. [Redacted]

The cumulative weight of the evidence before the Court – Mr. Para-

cha's own admissions, in particular – render Mr. Paracha's denial of

knowledge incredible and unpersuasive. First, the Court has already found

by a preponderance of the evidence that Mr. Paracha knew at the time he

first met Bin Laden that he was widely regarded as a terrorist and Al-

Qaeda a terrorist organization. See Part IV.2, supra. That is why it is so

notable that, when Mr. Paracha met KSM and Al-Baluchi, he knew them

to be “men of the sheikh” – that is, men who had been sent by Bin

Laden. See FBI EC 11/05/04, JE 70-36, at 989 (When Mr. Paracha was

asked “if he wanted to meet the Sheikh that evening,” during a trip to Af-

ghanistan, “Paracha knew the Sheikh to be Usama Bin Laden.”).30 Mr.

Paracha knew that Bin Laden sent KSM and Al-Baluchi because they told

Mr. Paracha as much: “When KSM and [Al-Baluchi] showed up [six]

months later after meeting UBL – they said they were here for the

Sheikh.” Janelle Miller Notes, 07/10/03, JE 70-4, at 804



…

2. Petitioner assisted KSM and Al-Baluchi by promulgating Al-

Qaeda's message

Mr. Paracha's original offer to Osama Bin Laden was to help spread

his message, and the government claims that Mr. Paracha did just that on

several occasions.

a. Production of a program with Bin Laden

During Mr. Paracha's first visit with KSM, the two discussed a variety

of details for how Mr. Paracha might record a video of Bin Laden helping

to spread his message:

…

Petitioner's counsel also repeat the argument that Mr. Paracha was not

aware of the specific contents of the press release and, therefore, cannot be

said to have helped promulgate a message whose contents he did not

know. There is evidence, however, that Mr. Paracha did understand the

general thrust of the press release.

…

3. Petitioner assisted KSM and Al-Baluchi by retaining Al-Qaeda

funds for safekeeping

…

1. Al-Baluchi's Solicitation

Respondents argue that Mr. Paracha “knowingly served as a source of

advice and sounding board for [Al-Baluchi] as Al-Baluchi explored ways

to smuggle chemicals and explosives into western countries.” R. Merits

Br. at 41. This account relies primarily on notes and reports of interviews

conducted on July 8, 9, and 10, 2003 in which Mr. Paracha told interroga-

tors about a conversation (or conversations) he had with Al-Baluchi.

…

…[T]he Court makes the following Findings of Fact, by a preponder-

ance of the evidence: (i) Mr. Paracha did have a conversation in which Al-

Baluchi requested his advice and assistance about shipping chemicals and

explosives to the United Kingdom; (ii) Al-Baluchi spoke in coded lan-

guage, but Mr. Paracha understood its meaning; (iii) Mr. Paracha declined

to identify a shipping agent or to otherwise assist Al-Baluchi in smuggling

chemicals and explosives into the United Kingdom; (iv) Mr. Paracha iden-

tified potential means of smuggling chemicals into the United States in re-

sponse to a hypothetical question from an interrogator, not during his con-

versation with Mr. Al-Baluchi; (v) Mr. Paracha's PDA contains digital en-

tries that discuss chemical weapons, and Mr. Paracha has not adequately

explained the purpose of those entries; (vi) Mr. Paracha interacted with

Dr. Tariq, but there is no evidence that the two discussed or collaborated

on chemical weapons; and (vii) there is no evidence that Mr. Paracha ma-

terially or directly assisted any Al-Qaeda chemical weapons program.

E. Petitioner Knowingly Assisted Al-Qaeda by Helping its Agent

Seek Entry into the United States

The government's evidence on the fifth and final material issue of dis-

puted fact concerns whether or not Mr. Paracha helped an Al-Qaeda oper-

ative to obtain fraudulent immigration documents and enter the United

States with the purpose of establishing an Al-Qaeda cell here. The claims

require the Court to assess three questions: whether Majid Khan, the indi-

vidual in question, was an Al-Qaeda operative; whether Mr. Paracha knew

that Majid Khan was an Al-Qaeda operative; and whether Mr. Paracha as-

sisted Majid Khan.

…

Accordingly, the Court makes the following Findings of Fact by a pre-

ponderance of the evidence: (i) Mr. Paracha understood that Majid Khan

was working on behalf of Al-Qaeda: (ii) Mr. Paracha provided important

support to facilitate Majid Khan's plan, to include making it possible for

his son to assist Khan; and (iii) Mr. Paracha contributed to Al-Qaeda's

plan to place one of its agents, Majid Khan, in the United States.

V. CONCLUSIONS OF LAW

Having found by a preponderance of the evidence that Mr. Paracha

provided a wide range of assistance to the Taliban and Al-Qaeda, the

Court must now determine whether this assistance rises to the level of

“substantial support” of the Taliban or Al-Qaeda under the AUMF and

NDAA.

,,.

A. Petitioner Provided Substantial Support to the Taliban

The Court has found by a preponderance of the evidence that Mr.

Paracha assisted Taliban fighters by helping them to secure equipment and

by providing direct financial support. See Part IV.A. supra. Both of these

acts have clear legal implications for respondents' legal authority to detain

Mr. Paracha.

…


Accordingly, in the context of Mr. Paracha's embrace of the Taliban

and his affiliation with its leadership, the Court concludes as a matter of

law that Mr. Paracha provided substantial support to the Taliban by (i)

leading an effort to provide Taliban fighters with money for purchase of a

vehicle that was used in fighting with the United States; and (ii) providing

a financial contribution to the Taliban during a period of substantial mili-

tary need.

B. Petitioner Provided Substantial Support to Al-Qaeda

Mr. Paracha's support for the Taliban is not the only basis for his de-

tention: his support for Al-Qaeda was far more varied, The Court has

made Findings of Fact that Mr. Paracha was eager to work with Al-Qaeda;

that he helped Al-Qaeda to spread its message with video recordings and a

press release; that he provided a variety of other assistance to KSM and

Al-Baluchi; that he safeguarded substantial sums of Al-Qaeda money on

two occasions; and that he helped Al-Qaeda's plan to bring one of its

agents to the United States. Relatedly, the Court also found, by a prepon-

derance of the evidence, that KSM, Al-Baluchi, and Majid Khan were

members of Al-Qaeda at the time he was assisting them, and that Mr.

Paracha was aware of this. . The Court notes that its Findings of Fact

do not include any finding that Mr. Paracha participated in or directly sup-

ported any particular act of violence or force against the United States.

Mr. Paracha's primary defense to the charge that he provided substan-

tial support is not legal, but factual: he alleges that he simply did not know

that he was dealing with Al-Qaeda. The Court's factual findings respecting

Mr. Paracha's assistance to Al-Qaeda – which roundly reject the

knowledge defense – are, in themselves, almost entirely conclusive of this

habeas corpus petition. It is very difficult to see how the financial and ad-

ministrative assistance of the scope that Mr. Paracha knowingly rendered

to Al-Qaeda would not amount to substantial support of Al-Qaeda. Mr.

Paracha's able counsel, however, are persistent. They argue that, even if

Mr. Paracha did provide the alleged assistance as a matter of fact, the ef-

forts do not, as a matter of law, amount to “substantial support” for pur-

poses of detention under the AUMF and the NDAA.

For the reasons that follow, the Court rejects these arguments and con-

cludes as a matter of law that Mr. Paracha provided substantial support to

Al-Qaeda by helping Al-Qaeda spread its message, by providing financial

support, by providing other support to KSM and Al-Baluchi, and by

helping an Al-Qaeda agent's effort to come to the United States,

1. Mr. Paracha's assistance spreading Al-Qaeda's message consti-

tutes substantial support

The Court has already made factual findings that Mr. Paracha (i) took

substantial steps toward recording a video program for Bin Laden, includ-

ing the purchase of equipment and the construction of a soundproof re-

cording facility; (ii) provided free recording and editing services for Al-

Baluchi to record a video containing Al-Qaeda's message; and (iii) helped

to distribute an Al-Qaeda press release. In making these findings, the

Court rejected the argument that Mr. Paracha did not know or endorse the

content of the videos or the press release: Mr. Paracha was veritably ea-

ger to do business with Al-Qaeda, and it is more likely than not that

he did know that the planned Bin Laden video and the other materials es-

poused some version of Al-Qaeda's violent message.

…

But Mr. Paracha's own assessment of the communications he facili-

tated does not affect the government's authority to detain him: what mat-

ters is whether he provided support, not why he may have done so. The

law of this circuit creates no requirement that the United States may detain

only those who embrace Al-Qaeda's ideology.

Second, Mr. Paracha argues that his assistance in spreading Al-Qaeda's

message does not legally amount to substantial support of Al-Qaeda be-

cause the government has not demonstrated that his assistance had any

substantial effect. P. Merits Br. at 25. For example, the video starring Bin

Laden was never produced or distributed, the extent of the circulation of

the Al-Baluchi videos is unknown, and distribution of a single press re-

lease (whose reach and precise content are unknown) have not been shown

to provide any substantial benefit to Al-Qaeda.

The Court's analysis of substantial support, however, does not turn on

the reach or effect of any one of these efforts, but on a case-by-case func-

tional approach that assesses the actions of Mr. Paracha in relation to Al-

Qaeda. See Al-Madhwani v. Obama, 642 F.3d at 1074. Here, the facts

proven by a preponderance of the evidence amount to a sustained consult-

ing relationship between Mr. Paracha and Al-Qaeda. On several occasions,

beginning with the day Mr. Paracha provided his business card to Osama

Bin Laden and continuing to the time of Mr. Paracha's capture, Mr. Para-

cha offered his advice and his services to Al-Qaeda – advice that certainly

included the public communication of Al-Qaeda's message. Furthermore,

substantial assistance is assessed not just in terms of its measurable impact

but in terms of the relationship between the detainee and Al-Qaeda. Mr.

Paracha was an experienced businessman with knowledge of the interna-

tional scene and substantial experience in the media, and he shared these

assets freely with KSM and Al-Baluchi. Those consultations themselves

are substantial support because they amount to “expert advice” on public



relations – advice given to an organization that was eager to reach new re-

cruits and wage a war of public information. See Al-Hela v. Trump, 2019

U.S. Dist. Lexis 42717 at *11-13 (citing 18 U.S.C. § 2339A(b)).43

Moreover, Mr. Paracha's support went beyond consultation: even

when he did not have a direct role in creating a video or distributing a

message, he provided the equipment, facilities, personnel, and professional

network of his company for the use Al-Qaeda. Al-Qaeda, in turn, used

these assets to produce (at least) two videos and distribute a press release,

Mr. Paracha made a living providing these services to other people. In the

normal course, Al-Qaeda might otherwise have had to pay for video pro-

duction services, or recruit someone else to do this work. But Mr. Paracha

provided these services to Al-Qaeda at no charge. Accordingly, these ben-

efits amount to substantial support because they are “communications

equipment, facilities” or “service.” See Al-Hela v. Trump, 2019 U.S. Dist.

Lexis 42717 at *11-13 (citing 18 U.S.C. § 2339A(b)). The Court con-

cludes as a matter of law that Mr. Paracha's assistance spreading Al-

Qaeda's message was, in both its nature and its scope, substantial support

to Al-Qaeda.

2. Mr. Paracha's provision of financial services constitutes sub-

stantial support

The Court has already found by a preponderance of the evidence that,

on at least two occasions, Mr. Paracha held substantial deposits of Al-

Qaeda funds for safekeeping.

…

4. Mr. Paracha's assistance to Majid Khan constitutes substantial

support

The Court has made a factual finding that Mr. Paracha assisted Majid

Khan, an Al-Qaeda agent, with his plan to gain re-entry into the United

States; the Court has also found that Majid Khan was attempting to reenter

the United States for the purpose of establishing an Al-Qaeda sleeper cell.

One of Mr. Paracha's primary defenses to this charge is the factual argu-

ment that he simply did not know Majid Khan was an Al-Qaeda operative.

For the reasons described earlier, this defense strains belief.

…

Collectively, the import of these four kinds of assistance – financial as-

sistance, assistance spreading Al-Qaeda's message, assistance to Majid

Khan, and the other assistance Mr. Paracha provided to KSM and Al-

Qaeda – is quite clear. Mr. Paracha has claimed that his “motivation for

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helping AQ” was mere “business greed.” DoD Interrogator Notes July 22,

2003, JE 13, at 109. Even if that is true, Mr. Paracha did business with a

deadly terrorist organization. Whatever his personal motivations, Mr.

Paracha rendered substantial support – across a range of enterprises, and

over a period of years – to Al-Qaeda.45 Under the AUMF and the NDAA,

that is enough to establish the government's legal authority to detain Mr.

Paracha.

VI. CONCLUSION

For the foregoing reasons, the Court will deny Saifullah Paracha's

amended petition for habeas corpus [Dkt. No. 11]. An Order to this effect

and consistent with this Opinion has been issued.

Notes and Questions

1. The habeas corpus action in Paracha v. Trump was filed in 2004, and

16 years later, the instant opinion appears to be the first to be issued in

this habeas corpus case that addresses the merits of the petition after a

full evidentiary hearing. What bearing, if any, should the fact that this

action was been in process for 16 years have on the matter? Should it

make a difference as to who or what caused the delays in reaching this

stage of the matter?

2. Paracha is chronologically the oldest detainee at Guantanamo. As de-

scribed supra, he was also a part of a father-son Guantanamo-U.S. Dis-

trict Court pairing. His son, Uzair, whose statements were a source for

part of the allegations against the elder Paracha, was prosecuted in

U.S. District Court and convicted but was recently granted a new trial.

See, supra, the material for note 6, p. 765 in this Update. As reported

there, subsequently, the government settled the matter, the prosecution

against the son, Uzair Paracha was dropped, and he was voluntarily re-

patriated to Pakistan. Should the disposition of the younger Paracha's

case have any bearing on his father's case?

3. Identify the specific crimes, if any, that Saifullah Paracha committed

in the course of his dealings as described in the opinion in the principal

case above, that is, crimes under the Military Commission Act of

2009? Did he also commit any civilian crimes relating to terrorism un-

der the United States Criminal Code, that is crimes described in the

earlier chapters in the casebook?

4. If the elder Paracha committed any crimes, what are the maximum

penalties assigned to the crimes he committed, under the Military



Commission Act, under the federal criminal code? Can you make any

estimate of the number of counts he might be charged with, relating to

the particular criminal charges that you have identified?

5. Based on your identification of the crimes he may have engaged in and

the number of counts of each offense with which he might be charged

and his overall culpability as you read the facts in case, trying in effect

to put yourself into the position of the jury and the judge, what is your

best guess as the maximum sentence to which he might be subject? It

is appreciated that this is a difficult judgment to make in the context

with the information you have been given, but try to reach a conclu-

sion as to your best guess in the matter.

6. Paracha has not been charged with any crimes: he is being held in in-

definite detention, subject only to being released via a habeas corpus

action or through review of his case by a Periodic Review Board. If

you concluded that he likely did commit either military commission

crimes or civilian crimes under the United States criminal code, you

may wish to speculate as to the reasons why he has not been charged

and prosecuted for those crimes? Is there any possibility that he might

still be charged and prosecuted?

7. There are references in the court's opinion in the principal case that his

case was reviewed early in his detention by an Administrative Review

Board. The fact that he continued to be detained tells us that this re-

view did not lead to an order to release him. How were the issues in

this review different from the issues in the habeas corpus action, if

they were, or for that matter, from the issues if he had been criminally

charged?

8. The district court concluded that Paracha had provided substantial sup-

port to the Taliban and al Qaeda, but reached no conclusion on

whether he was "part of" those organizations. What is the difference

between these two bases for detaining someone in military custody un-

der the standard set forth in the NDAA of 2012? Compare Rachel

Vanlandingham, Meaningful Membership: Making War a Bit More

Criminal, 35 Cardozo L. Rev. 79 (2013).

Page 871. Add at the end of note 6.

Compare with the possibility of a) prolonged military detention without

being criminally charged or the possibility of b) being detained further after

having been convicted and served one's sentence in military commission

proceedings (as earlier raised in the casebook), c) the case of a person re-

leased on probation after conviction and sentence for terrorism offenses in

federal district court. See, for example, the reports regarding the release of

John Walker Lindh, supra, this Update, ch. 3. While Walker Lindh is free

and continues on probation, certain restrictions have been imposed: he is

barred from going online or owning a web capable device unless he obtains

permission from his probation officer, barred from traveling internationally,

getting a passport, there is required mental health counseling, and he is

prohibited from communicating with any known extremists. See Carol Ros-

enberg, “American Taliban’, Held 17 Years Nears Release, NY Times, A1,

May 22, 2019.

13. For the first time, a U.S. court has ruled that a mentally ill Guan-

tanamo prisoner is entitled under Army Regulation 190-8 to an as-

sessment of his medical condition by a mixed medical commission

composed of foreign and U.S. physicians. with a view to whether he

should be released. Army Regulation 190-8 provides that the commis-

sion "will determine whether a prisoner of war/retained person suffers

from an illness or injury that satisfies the criteria for repatriation." "If

the mixed medical commission, which is comprised of a medical of-

ficer of the U.S. military and two physicians from a neutral coun-

try, id. § 3-12(a)(2), determines that the detained individual should be

repatriated, then the United States must 'carry out [that] decision ... as

soon as possible and within 3 months of the time after it receives due

notice of the decision' Id. § 3-12(f)." Al-Qahtani v. Trump, 443

F.Supp. 3d 116 (D. D.C. 2020). See below the Al-Qahtani case.

Al-Qahtani v. Trump

443 F.Supp. 3d 116 (D. D.C. 2020)

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Petitioner Mohammed al-Qahtani is a national of Saudi Arabia who

has been held at the United States Naval Station, Guantanamo Bay, for

the past 18 years. In October 2010, Mr. al-Qahtani was granted a stay of

his 2005 petition for a writ of habeas corpus seeking release. His counsel

have now moved for an examination by a mixed medical commission to

determine if he is entitled to direct repatriation pursuant to Army Regula-

tion 190-8, Section 3-12, which deals with the repatriation of sick

and wounded prisoners. Dept. of the Army, Army Reg. 190-8, Enemy

Page 859. Add as Note 13 before 5. The Periodic Review Board Process.

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Prisoners of War, Retained Personnel, Civilian Internees, and Other De-

tainees, ch.3, § 12 (Oct. 1, 1997). The government opposes his motion.

I. BACKGROUND

Mr. al-Qahtani was taken into U.S. custody abroad during the hostil-

ities authorized after September 11, 2001 by the Authorization for Use of

Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224. “That

authority includes detaining ‘those who are part of forces associated with

Al Qaeda or the Taliban.’ ” Mr. al-Qahtani was transferred to Guan-

tanamo Bay in February 2002. He has been declared an enemy combat-

ant by the United States. Mr. al-Qahtani alleges that he was subjected to

torture during his detention at Guantanamo Bay, for which he says that

he was repeatedly hospitalized and placed in a life-threatening condi-

tion. See Pet'r Mot. [Dkt. 369] at 3. His allegation is supported by the

then-convening authority of the Department of Defense (DOD) Military

Commissions, Susan J. Crawford, who determined in 2009 that Mr. al-

Qahtani would not be subjected to a capital trial because of the torture

he had endured at the hands of the U.S. military. See id. at 3 n.4 (citing

Bob Woodward, Detainee Tortured, Says U.S. Official, The Washington

Post (Jan. 14, 2009), http://www.heal-online.org/torture011409.pdf

(quoting Susan J. Crawford)). The government does not contest this pub-

lic information.

In addition, Mr. al-Qahtani states that he has a history of mental ill-

ness, which was known to him and his family before he was taken into

U.S. custody. See Ex. C, Pet'r Mot., Report of Dr. Emily A. Keram (June

5, 2016) [Dkt. 369-1] (Keram Rep.); Ex. D, Pet'r Mot., Suppl. Decl. of

Dr. Emily A. Keram (July 12, 2016) [Dkt. 369-1] (Keram Suppl. Decl.);

Ex. E, Pet'r Mot., Second Suppl. Decl. of Dr. Emily A. Keram (Dec.

2, 2016) [Dkt. 369-1] (Keram Second Suppl. Decl.). Dr. Emily Keram,

an independent medical expert retained by counsel for Mr. al-Qahtani,

has confirmed this prior illness through interviews of Mr. al-Qahtaniat

Guantanamo Bay, telephonic interviews with his family in Saudi Arabia,

and review of previous records of psychiatric evaluations conducted on

Mr. al-Qahtani.

Dr. Keram reports that Mr. al-Qahtani was mentally ill before he is

alleged to have participated in terrorist activities and before his imprison-

ment and torture at Guantanamo Bay. Keram Rep. at 3-5. Prior to enter-

ing U.S. custody, Mr. al-Qahtaniwas diagnosed with schizophrenia, ma-

jor depression, and a possible neurocognitive disorder due to a traumatic

brain injury. Id. at 3. As a child, Mr. al-Qahtani was involved in a car

accident and suffered a head injury. Id. at 5. After that incident he suf-

fered from “episodes of extreme behavioral dyscontrol” and “auditory

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hallucinations.” Id. at 3. In one incident he was found by Riyadh police

in a dumpster and in another he threw a cell phone out of a moving vehi-

cle because “he believed it was making him ‘tired’ ” and affecting his

mind. Id. at 3-4. In 2000, Mr. al-Qahtani was committed to the psychiat-

ric unit of a hospital in Mecca after he attempted to throw himself into

moving traffic. Id. at 4. During this hospitalization he expressed suicidal

thoughts and was prescribed antipsychotic medication. Id.

In 2002, when Mr. al-Qahtani was first detained at Guantanamo Bay

but before he was tortured, U.S. government officials observed “behav-

iors consistent with psychosis, such as talking to nonexistent people.”

Pet'r Mot. at 5; see also Letter re: Suspected Mistreatment of Detainees,

from FBI Deputy Assistance Director, Counterterrorism Division, T.J.

Harrington (July 14, 2006), https://www.aclu.org/sites/default/files/tor-

turefoia/released/FBI_4622_4624.pdf. While at Guantanamo Bay,

Mr. al-Qahtani was subjected to solitary confinement, sleep deprivation,

extreme temperature and noise exposure, stress positions, forced nudity,

body cavity searches, sexual assault and humiliation, beatings, stran-

gling, threats of rendition, and water-boarding. Keram Rep. at 6. Dr. Ke-

ram concluded that these conditions were “severely cruel, degrading, hu-

miliating, and inhumane” and “would have profoundly disrupted and left

long-lasting effects on a person's sense of self and cognitive functioning

‘even in the absence of pre-existing psychiatric illness.’ ” Pet'r Mot. at 5

(quoting Keram Rep. at 6-7). Dr. Keram opines that Mr. al-

Qahtani's treatment at Guantanamo Bay exacerbated his psychological

ailments, to which he was particularly vulnerable due to his pre-existing

disorders.

In addition to his pre-existing psychiatric conditions, Dr. Keram di-

agnosed Mr. al-Qahtani with severe Post-Traumatic Stress Disor-

der (PTSD) as a result of the treatment, interrogation, and imprisonment

at Guantanamo Bay. Keram Rep. at 3, 7. Dr. Keram believes that Mr. al-

Qahtani will likely require lifelong mental health care through “a cultur-

ally-informed multi-disciplinary approach,” including “supportive psy-

chotherapy, cognitive-behavioral therapy, skills-based therapy, and psy-

chotropic medication.” Id. at 8. As a result, she has concluded that

Mr. al-Qahtani cannot receive effective treatment while he remains in

custody at Guantanamo Bay, due to, among other factors, his lack of

trust in the medical and mental health professionals at Guantanamo

Bay. Id. at 9. Dr. Keram recommends repatriation to Saudi Arabia be-

cause she believes Mr. al-Qahtani would benefit from being close to his

family who supported him when he dealt with mental illness in the

past. Id. The Saudi Ministry of Interior indicated in 2015 that Saudi Ara-

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bia would welcome back Mr. al-Qahtani and provide him with the reha-

bilitation and aftercare that he needs. See Ex. F, Pet'r Mot., Letter from

Mohammed A. Al-Muttairi (Aug. 16, 2015) [Dkt. 369-1].

In October 2005, Mr. al-Qahtani filed a Petition for Writ of Habeas

Corpus. See Petition [Dkt. 1]. Respondents filed an amended factual re-

turn in October 2008, stating that Mr. al-Qahtani is detained pursuant to

the AUMF. Notice of Am. Factual Return [Dkt. 73]. The Petition re-

mains outstanding as Mr. al-Qahtani has yet to file a Traverse but has

instead sought repeated stays. See 10/12/2010 Minute Order; 9/30/2011

Minute Order. Thus, the basis for the United States to detain Mr. al-

Qahtani as part of the forces associated with al-Qaeda or the Taliban has

not been disputed.

On April 28, 2017, Mr. al-Qahtani applied to the Department of De-

fense for repatriation or, in the alternative, an examination by a mixed

medical commission. See Ex. A, Pet'r Mot., Pet'r Letter Requesting

Mixed Medical Commission (April 28, 2017) [Dkt. 369-1] (Apr. 2017

Letter). The government denied this request on June 30, 2017. See Ex. B,

Pet'r Mot., Resp't Letter Denying Mixed Medical Commission (June 30,

2017) [Dkt. 369-1] (DOJ Letter). On August 8, 2017, Mr. al-

Qahtani fi[ed]l the instant motion to compel examination by mixed

medical commission. See Pet'r Mot. Respondents opposed, see Resp't's

Opp'n to Pet'r's Mot. to Compel [Dkt. 370] (Opp'n), and Mr. al-

Qahtani replied. See Pet'r's Reply in Further Supp. of Mot. to Compel

[Dkt. 371] (Reply). The Court held oral argument on the motion on April

19, 2018. The motion is ripe for review.

…

[The court proceeded to discuss a series of legal issues that were

raised by the detainee's motion, concluding as follows: ]

V. CONCLUSION

For the reasons discussed above, Petitioner's Motion to Compel

Examination by a Mixed Medical Commission, Dkt. 369, will be

granted.

[ed. The government appealed the judge's order in the al-Qahtani

case and on September 29, 2020, a panel of the D.C. Circuit dismissed

the appeal, essentially on the ground that the order was not reviewable at

that stage of the proceedings. The panel also ordered that the motion for

stay pending appeal and expedition be dismissed as moot. At the time of

this writing, it is not clear how the government will next proceed. ]

Page 871-872. Add as new note 7 and renumber existing note 7 as

note 8.

7. As the detention of the remaining 40 Guantanamo detainees contin-

ues, for some now in its 19th year, with a number of them still being prose-

cuted, new kinds of problems are arising. This now-small prison population

is aging and their medical problems are increasing. The medical equipment

and facilities at Guantanamo are limited and sometimes are not adequate to

deal with the medical issues that arise. Congressional legislation has barred

bringing any of the detainees to the mainland United States, even for medi-

cal treatment.

The onset of the corona virus pandemic has added new dimensions to

the concerns about the health of the detainees and the adequacy of medical

treatment and equipment for dealing with any outbreak of the virus if it

reaches the Guantanamo naval base and the detention facility. See, e.g.

Carol Rosenberg, Senators Seek Assurances about Medical Safeguards at

Guantanamo, NY Times, May 29, 2020, A6; Carol Rosenberg, Pentagon's

Covid-19 Report—Senators Criticize Plan for Guantanamo Prison, NY

Times, August 18, 2020, A5. It has been disclosed that two individuals on

the base had contracted the virus in March and April of 2020, but then the

Pentagon had ordered installations not to report any new cases of the virus

to maintain "operational security." While any non-detainee personnel could

be flown to the mainland for treatment if they contracted the virus, by law

the prisoners could not be brought to the mainland for any purpose. Were

there to be a serious outbreak of the virus at the prison, the limitations of

staff and equipment could make dealing with it very difficult. For example,

the prison clinic has six ventilators but only has personnel sufficient to

maintain patients on four ventilators at a time.

In the early stages of the drafting of the NDAA of 2020, there did ap-

pear to be some support in the Republican-controlled Senate and the Dem-

ocratic-controlled House of Representatives to allow detainees to be

brought to the mainland for necessary medical treatment. In connection with

the bill that would become the NDAA of 2020, the Senate Armed Services

Committee reported out a version that included section 1025.

S. 1790 116th Congress, 1st sess. NDAA of 2020 as reported out by

Senate Armed Services Committee contained a provision, sec. 1025,

that would have provided authority to transfer individuals detained at

United States Naval Station, Guantanamo Bay, Cuba, to the United

States temporarily for emergency or critical medical treatment. The

House Armed Services Committee reported its version of this legisla-

tion, HR 2500 that included the following:


Section 1034--Sense of Congress regarding the Provision of

Medical Care to Individuals Detained at United States Naval Sta-

tion, Guantanamo Bay ,Cuba.

This section would express the sense of Congress that the in-

creasing age of detainees at the U.S. Naval Station, Guantanamo

Bay, Cuba, poses challenges for the provision of medical care and

that the United States has an ongoing obligation to provide medical

care to detainees at Guantanamo that meets appropriate standards of

care. This section would also express the sense of Congress that the

Secretary of Defense should take into account the standards of care

provided at other relevant facilities, including those administered by

the Federal Bureau of Prisons, when determining the policies re-

garding medical care for detainees at Guantanamo.

Neither the House nor the Senate versions of these provisions made it

into the final legislation. Sections 1042-1046 of the NDAA of 2020 in their

final form continued the prohibitions on expending funds to transfer detain-

ees to other countries, to the U.S. or to build facilities in the U.S. for those

detainees or to close Guantanamo Bay Naval Station. Congress's response

to the concerns about increasing medical problems of the detainees was to

provide for a Chief Medical Officer for the Guantanamo facility to address

the questions of the proper standard of care for the detainees. The NDAA

of 2021, passed by both Houses of the Congress in December 2020 but is

not yet law. It contains the same provisions as in previous NDAA's-- barring

the use of DOD funds for transferring Guantanamo detainees to the United

States, etc. President Trump has threatened to veto this bill for reasons un-

related to our subject, and at the time of this writing, it is not clear what will

happen to the proposed legislation.

Page 872. Add to new note 8 [see note for Pages 871-872, supra].

For what happened to the five detainees exchanged for Sergeant Berg-

dahl, see Mujib Mashal and Taimoor Shah, Once at Guantanamo, 5 Senior

Taliban Members Now Join Political Office in Qatar, https://www.ny-

times.com/2018/10/31/world/asia/taliban-five-guantanamo-qatar.html.

9. For a description of Camp 7, the highly secretive and classified deten-

tion area within the Guantanamo detention facility where individuals pre-

viously interrogated by the CIA in detention facilities abroad are held (in-

cluding KS Mohammed and the four detainees being prosecuted for the

Page 879. Insert as new note 9 and renumber existing note 9 accordingly

9/11 terror attacks), see Carol Rosenberg, Inside Camp 7: Guantanamo

Bay's Most Clandestine Prisoner Facility, NY Times, March 15, 2020, 23.

10. During the period leading up to the presidential election in Novem-

ber, 2020, former Vice President Joseph Biden, while running for Presi-

dent, indicated that he supported closing the Guantanamo detention facil-

ity, but he did not state how he would proceed to accomplish the closure.

The issue of closure did not appear to enter into the give and take between

the candidates and their campaign staffs during the course of the fall, 2020

presidential campaigns. It appears to have been seen as a politically hot

and toxic issue that was best avoided in the course of the campaign. It re-

mains to be seen if, when and how it will be addressed by President-elect

Biden after he is inaugurated. See Carol Rosenberg, Closing Guantanamo

May Be Politically Toxic, but Biden Remains on Board, NY Times, June

28, 2020, 31.

Page 879. Add as new paragraph to new note 10.

CHAPTER 11

MILITARY COMMISSIONS AND THE CHOICE BETWEEN CRIMINAL PROSE-

CUTION IN THE FEDERAL COURTS OR MILITARY COMMISSION TRIALS

Page 995. Insert as new note 6.

6. As has been mentioned a number of times, the progress and comple-

tion of prosecutions before the military commissions have been slow, and

the system of trials has been beset by a multitude of different problems and

issues over the course of the last 18 years. A recent example of a particular

kind of problem that one would not ordinarily see in a U.S. district court

prosecution is found in the military commission prosecution against al-

Nashiri—see note 5 c., supra, in the casebook for a thumbnail description

of the case. In April, 2019, the D.C. Circuit decided In re al-Nashiri, repro-

duced below. The case serves several functions here. It provides a detailed

picture of the progress of al-Nashiri’s case through the military commission

system. It furnishes much information about the military commission pro-

cesses and procedure as well as its system for detailing personnel. It also

gives the reader a window into some of the specific things that went wrong

in this case. Along the way, we learn a lot about this court’s handling of

issues of bias as well as the appearance of bias in judicial proceedings and

how private lawyers serving pro bono and detailed military judges and law-

yers function in commission proceedings.

Page 995. Insert the following after new note 6 [see previous insert

for page 995.]

In re Al-Nashiri

921 F.3d 224 (D.C. Cir. 2019)

Tatel, Circuit Judge:

Abd Al-Rahim Hussein Muhammed Al-Nashiri is currently detained at

Guantanamo Bay, where he faces capital charges before a military commis-

sion. These petitions concern the conduct of Colonel Vance Spath, the mil-

itary judge who presided over Al-Nashiri’s case for four years. Shortly into

his tenure—and without disclosing it to Al-Nashiri and his lawyers—Spath

applied for employment as an immigration judge in the U.S. Department of

Justice. Then, after receiving a job offer but before retiring from the mili-

tary, Spath found himself locked in a dispute with Al-Nashiri’s defense law-

yers, three of whom sought to leave the case. Al-Nashiri now seeks a writ

of mandamus vacating commission orders issued by Spath, while two of his

former lawyers, Mary Spears and Rosa Eliades, seek a writ of mandamus

vacating commission orders refusing to recognize their withdrawal. Be-

cause we conclude that Spath’s job application to the Justice Department


created a disqualifying appearance of partiality, we grant Al-Nashiri’s peti-

tion for a writ of mandamus, vacate all orders issued by Spath after he ap-

plied for the job, and dismiss Spears and Eliades’s petition as moot.

I.

Al-Nashiri stands accused of orchestrating al Qaeda’s “boats operation”

in the Gulf of Aden, a series of plots culminating in a failed attempt to bomb

the U.S.S. The Sullivans and the completed bombings of the U.S.S. Cole in

late 2000 and the M/V Limburg in 2002. See In re Al-Nashiri (Al-Nashiri

II), 835 F.3d 110, 113 (D.C. Cir. 2016). Eighteen people lost their lives and

almost fifty were injured in these attacks. See id. at 114.

Al-Nashiri was captured in 2002, and after spending several years at

various CIA “black sites,” he was transferred to the U.S. Naval Base at

Guantanamo Bay in 2006. See id. at 140–41 (Tatel, J., dissenting). The gov-

ernment charged Al-Nashiri with multiple capital offenses, including mur-

der in violation of the law of war and terrorism, for which it seeks the death

penalty. See id. at 114. After the first military commission convened to try

Al-Nashiri disbanded in 2009, the Defense Department convened the sec-

ond and current commission in 2011.

These ongoing proceedings owe their existence to the Military Commis-

sions Act of 2009 (“MCA”), which establishes a special set of procedures

for using “military commissions to try alien unprivileged enemy belliger-

ents.” 10 U.S.C. § 948b(a). Borrowing heavily from the procedures govern-

ing trial by court-martial, the MCA creates an adversarial system of justice

to try unprivileged enemy belligerents, complete with “trial counsel” to

“prosecute in the name of the United States,” id. § 949c(a); “[d]efense coun-

sel” to represent the accused, id. § 949c(b); and a “military judge” to “pre-

side over [the] military commission,” id. § 948j(a). The MCA also estab-

lishes several layers of review of commission decisions, including by the

United States Court of Military Commission Review (“CMCR”), which

hears both interlocutory appeals and appeals from final judgments, see id.

§§ 950d, 950f; and by our court, which has “exclusive jurisdiction” to re-

view commission “final judgment[s]” that have been reviewed by the con-

vening authority and the CMCR, id. § 950g(a), and—as evidenced by Al-

Nashiri’s three previous appearances before this court—jurisdiction to hear

mandamus petitions. See Al-Nashiri II, 835 F.3d at 117 (denying petition

for writ of mandamus); In re Al-Nashiri (Al-Nashiri I), 791 F.3d 71, 78

(D.C. Cir. 2015) (denying petition for writ of mandamus); In re Al-Nashiri,

No. 09-1274, 2010 WL 4922649, at *1 (D.C. Cir. Nov. 24, 2010) (granting

motion for voluntary dismissal of mandamus petition).

Air Force Colonel Vance Spath began presiding over Al-Nashiri’s com-

mission in July 2014. But just over a year into his assignment to the case,

he applied for a job with the Department of Justice’s Executive Office for

Immigration Review. Spath, however, never disclosed the fact of his appli-

cation, much less its details, to Al-Nashiri or to his defense team. Instead,

records obtained through a Freedom of Information Act (FOIA) request—

documents whose authenticity the government does not dispute—reveal the

information we now possess about Spath’s job search. See Attachments to

Petitioner’s Reply Brief in Support of His Petition for a Writ of Mandamus

and Prohibition (“Reply Attachments”), In re Al-Nashiri, No. 18-1279

(D.C. Cir. Nov. 28, 2018) (attaching relevant FOIA documents); Order 1,

In re Al-Nashiri, No. 18-1279 (D.C. Cir. Jan. 8, 2019) (granting Al-

Nashiri’s motion to supplement the record). With the benefit of that newly

discovered information, along with the record as it appeared to the parties

at the time, we now reconstruct a timeline of the relevant events that un-

folded in Al-Nashiri’s commission proceedings from November 2015 to the

present.

A.

Spath submitted his application to an open immigration judge position

in the Executive Office for Immigration Review on November 19, 2015. In

his application, Spath highlighted his “five years of experience as a trial

judge,” including that he had been “handpicked” to preside over “the mili-

tary commissions proceedings for the alleged ‘Cole bombing’ master-

mind”—that is, Al-Nashiri—”at Guantanamo Bay.” Reply Attachments B-

1 to B-2. He also included as a writing sample an order he issued in Al-

Nashiri’s case. See id. at B-11.

After a “lengthy interview and application process,” id. at A-10, then-

Attorney General Jeff Sessions “signed an order temporarily appointing Mr.

Spath as an immigration judge,” id. at D-1, and Spath received an initial

offer of employment in March 2017, see id. at A-10. Spath’s start date, how-

ever, soon became a sticking point. In mid-June, a human resources special-

ist contacted Spath to notify him that September 18, 2017, had been “estab-

lished” as his “entrance on duty date,” id. at A-5, but Spath responded that

he was “waiting on confirmation from the Air Force,” whose approval he

would need before finalizing his retirement from the military, id. at A-3.

About a month later, in mid-July, Spath sent an email requesting that he be

allowed to start on “May 15, 2018 or later.” Id. at A-11. Reiterating his

“extreme[ ] interest[ ] in the position,” Spath explained that his “status as

an active duty member of the Armed Forces”—including that he “re-

main[ed] detailed to a case at Guantanamo Bay Cuba which requires signif-

icant time to hand to another trial judge”—”complicat[ed] ... the job offer.”

Id. at A-10. Human resources staff nonetheless concluded that they could

not “extend an offer” to Spath while “delay[ing] the [start date] indefi-

nitely.” Id. at A-9. As a result, in August 2017 they told Spath that


“[m]anagement [was] aware of his request to [start] in 2018” but could “not

agree to his terms.” Id. at A-12, A-14. Instead, they would “hold his paper-

work and contact him again in January [or] February, 2018.” Id. at A-14.

While Spath’s start-date negotiations were occurring behind the scenes,

a separate drama involving Al-Nashiri’s defense team was unfolding in

Guantanamo. In summer 2017, Al-Nashiri had four lawyers. Leading the

team was Richard Kammen, a lawyer who, given his experience “in appli-

cable law relating to capital cases,” fulfilled the MCA’s requirement that

the government must “to the greatest extent practicable” make such

“learned” counsel available in capital cases. 10 U.S.C. § 949a(b)(2)(C)(ii).

Next were Mary Spears and Rosa Eliades, civilian employees of the De-

fense Department who had served as Al-Nashiri’s assistant defense counsel

since 2015. And finally there was Lieutenant Alaric Piette, a Navy judge

advocate who had been detailed to the case a few months earlier, in April

2017. See U.S.S. Cole: Abd al-Rahim Hussein Muhammed Abdu Al-

Nashiri (2) Military Commission Appellate Exhibit (“AE”) 339G (July 11,

2017) (defense notice of Piette’s detailing). Together, the quartet reported

to the Chief Defense Counsel of the Military Commissions Defense Organ-

ization, Brigadier General John Baker, the officer in charge of detailing de-

fense counsel and “supervis[ing] all defense activities” in the military com-

missions. U.S. Department of Defense, Regulation for Trial by Military

Commission § 9-1(a)(2) (2016).

The trouble began on June 14, 2017, when Baker informed the lawyers

under his supervision that he had lost confidence in the confidentiality of

Guantanamo’s meeting spaces and recommended that defense counsel re-

frain from “conduct[ing] any attorney-client meetings at Guantanamo Bay

... until they know with certainty that improper monitoring of such meetings

is not occurring.” Corrected Attachments to Petitioner’s Petition for a Writ

of Mandamus and Prohibition (“Corrected Al-Nashiri Attachments”), At-

tachment C, at 1, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Nov. 4, 2018).

Worried about this news, Al-Nashiri’s defense team filed motions in the

commission requesting permission to notify their client of Baker’s warning

and seeking to compel discovery into the potential intrusions. See

AE369HH (June 23, 2017) (motion to advise Al-Nashiri of potential gov-

ernment intrusions into attorney-client communications); AE369PP (July

13, 2017) (motion to compel discovery). And apparently aggravating their

concerns, during the pendency of their discovery motion, the lawyers dis-

covered a hidden microphone—which the government represents was a

nonfunctional “legacy microphone”—in their meeting room at Guan-

tanamo. Brief of the United States in Opposition (“Opp. to Al-Nashiri”) 12,

In re Al-Nashiri, No. 18-1279 (D.C. Cir. Nov. 16, 2018) (internal quotation

marks omitted). Spath, however, denied both the motion for permission to

disclose and the motion for discovery, explaining that he lacked “any basis

to find there had been an intrusion into attorney-client communications be-

tween [Al-Nashiri] and [his] defense team.” U.S.S. Cole: Abd al-Rahim

Hussein Muhammed Abdu Al-Nashiri (2) Military Commission Transcript

(“Commission Tr.”) 10022 (Oct. 31, 2017); see also AE369OO, at 1 (July

7, 2017) (denying motion for permission to notify Al-Nashiri of potential

intrusions).

Remaining concerned about their ability to guarantee confidentiality

and their inability to communicate those fears to their client, defense coun-

sel sought expert advice. Kammen solicited guidance from Ellen Yaroshef-

sky, a professor of legal ethics at Hofstra University School of Law, who

opined that because Kammen could not “continue to represent Mr. Al-

Nashiri” in a way “consistent with [his] ethical obligation[s]” “to act dili-

gently and competently, to maintain confidentiality, and [to] adhere to the

duties of loyalty and communication,” he was “required to withdraw.” See

AE389, at 28 (Oct. 16, 2017). Al-Nashiri’s three civilian lawyers then

sought permission to do just that, requesting that Baker excuse them under

Rule for Military Commissions 505(d)(2)(B), which states that “[a]fter for-

mation of [an] attorney-client relationship,” “an authority competent to de-

tail” defense counsel “may excuse ... such counsel only” “[u]pon request of

the accused,” “application for withdrawal by such counsel,” or “[f]or other

good cause shown on the record.” Rule for Military Commissions

505(d)(2)(B). Baker, citing “all the information [he knew] about this mat-

ter—both classified and unclassified,” found “good cause” to terminate the

representations on October 11, 2017. AE389, at 18 (Oct. 16, 2017) (granting

Kammen’s request); Pet. Appendix 79, In re Spears, No. 18-1315 (D.C. Cir.

Nov. 26, 2018) (granting Spears’s request); id. at 113 (granting Eliades’s

request).

That left only Lieutenant Piette—a lawyer with five years of legal prac-

tice and no meaningful capital-litigation experience—to defend Al-Nashiri

against a fully staffed prosecution team consisting of the Chief Prosecutor

of the Military Commissions, a civilian Justice Department lawyer on detail

to the commission, and two judge advocates. See AE338H, at 1 (Feb. 22,

2017) (trial counsel detailing memorandum); AE389K, at 2 (Nov. 6, 2017)

(describing Piette’s lack of capital-litigation experience); Commission Tr.

10491 (Nov. 10, 2017) (describing Piette’s legal experience). Piette in-

formed the commission of his colleagues’ withdrawal and moved to abate

proceedings, citing Rule for Military Commissions 506(b), which requires,

over and above the MCA’s “to the greatest extent practicable” qualification,

see 10 U.S.C. § 949a(b)(2)(C)(ii), that “the accused [in a capital case] has

the right to be represented ... by at least one ... counsel who is learned in


applicable law relating to capital cases,” Rule for Military Commissions

506(b).

Spath denied the motion to abate, holding that the lawyers required his

permission to withdraw and further finding “no good cause ... to warrant

[their] excusal.” AE389F, at 4–5 (Oct. 27, 2017). “Mr. Kammen, Ms. Eli-

ades, and Ms. Spears,” he stated, “remain counsel of record in this case, and

are ordered to appear at the next scheduled hearing of this Commission.”

AE389A, at 1 (Oct. 16, 2017). When the lawyers did not return, Spath ruled

that proceedings would continue even absent learned counsel. Al-Nashiri

did not “have a right to learned counsel ... at every aspect of every proceed-

ing,” he stated, “especially when it doesn’t relate to capital matters.” Com-

mission Tr. 10084 (Nov. 3, 2017).

From November 2017 onwards, then, the commission proceeded

through various “pretrial issues” that, in Spath’s view, were “not related to

capital matters.” Commission Tr. 10166 (Nov. 3, 2017). The prosecution

presented two witnesses who offered testimony regarding a previously filed

defense motion to suppress. See Commission Tr. 10086–10153 (Nov. 3,

2017) (testimony of Stephen Gaudin); Commission Tr. 10201–42 (Nov. 7,

2017) (testimony of Robert McFadden). The commission concluded the

deposition (which had begun several months earlier) of Al-Nashiri’s alleged

co-conspirator—a witness who, in the prosecution’s opinion, had previ-

ously offered “devastating direct and corroborated evidence.” Commission

Tr. 10174 (Nov. 3, 2017); see also Commission Tr. 10244 (Nov. 7, 2017)

(summarizing the deposition). And across several multi-day hearing ses-

sions, the commission conducted “preadmission of evidence,” a process that

involved over thirty prosecution witnesses whose testimony laid the “foun-

dation for real [physical] evidence,” which Spath then “conditionally admit-

ted.” Commission Tr. 10483–94 (Nov. 10, 2017); see also Commission Tr.

11140–45 (Jan. 19, 2018) (detailing Spath’s “preadmission” procedure).

Throughout these proceedings, Piette consistently reiterated his position

that because Al-Nashiri stood accused of capital crimes, all proceedings

were capital proceedings at which Al-Nashiri had the right to capital-quali-

fied counsel. Confessing his own “lack of qualifications” “to assist, advise,

or represent Mr. Al-Nashiri in his capital trial,” AE389K, at 2–3 (Nov. 6,

2017), Piette declined to make arguments, cross-examine witnesses, or oth-

erwise substantively participate in any proceedings without the presence of

learned counsel. Twice more he moved for abatements, see id. at 1; Com-

mission Tr. 11689 (Feb. 12, 2018), but Spath remained unpersuaded, accus-

ing “the defense community [of] making strategic and tactical decisions to

delay,” Commission Tr. 11072 (Jan. 19, 2018).

As time went on, Spath became increasingly frustrated with defense

counsel. In December he issued orders directing Spears and Eliades “to ap-

pear ... and continue representing the Accused ... or show cause as to why

[they] cannot continue.” AE389AA, at 1 (Dec. 11, 2017) (order to Eliades);

AE389BB, at 1 (Dec. 11, 2017) (order to Spears). Spears and Eliades re-

sponded with lengthy letters explaining their reasons for withdrawal. See

AE389KK, at 1 (Jan. 17, 2018) (Eliades’s letter); AE389LL, at 1 (Jan. 17,

2018) (Spears’s letter). Then, at Spath’s direction, the government at-

tempted to “secure [Spears’s and Eliades’s] attendance” by twice serving

them with subpoenas. Commission Tr. 11054 (Jan. 19, 2018). The lawyers

moved to quash each one.

The two subplots of Spath’s story—the judge’s employment negotia-

tions with the Executive Office for Immigration Review and his standoff

with Al-Nashiri’s defense counsel—reached their denouement the week of

February 12, 2018. On Monday, Spath orally denied Spears’s and Eliades’s

motions to quash, leaving in place the subpoenas requiring their appearance

via videoconference the following day. See Commission Tr. 11536 (Feb.

12, 2018). But when, on Tuesday morning, Spears and Eliades informed the

government that they would not appear, see AE389XX, at 1 (Feb. 13, 2018),

Spath directed the government to draft writs of attachment for their arrest

so that, as he put it, he would have “options available ... when we get here

tomorrow,” Commission Tr. 11914–15 (Feb. 13, 2018). Spath, however,

made no decisions on Wednesday or Thursday. Instead, he explained that

he was “still trying to figure out what to do,” Commission Tr. 11919 (Feb.

14, 2018), and that he would “think about this overnight,” Commission Tr.

12355 (Feb. 15, 2018).

But Spath apparently was mulling a different important decision on

Thursday night. Earlier that day, he had received an email from a human

resources specialist in the Executive Office for Immigration Review in-

forming him that he was “able to [start] with [the] agency ... on July 8,

2018.” Reply Attachments A-19. “When you have returned to the [S]tates,”

she wrote, “please let me know so we can arrange a time to call you and go

over the Immigration Judge appointment information.” Id. “Thank you,”

Spath replied. Id. at A-18. “I get back over the weekend. I will give you a

call on Tuesday.” Id.

The following morning, Spath abated “indefinitely” the commission

proceedings against Al-Nashiri. Commission Tr. 12376 (Feb. 16, 2018).

Declaring that “[o]ver the last five months ... [his] frustration with the de-

fense [had] been apparent,” Spath concluded that “[w]e need action from

somebody other than me” or else “[w]e’re going to continue to spin our

wheels and go nowhere.” Commission Tr. 12364, 12374 (Feb. 16, 2018).


He added, “[I]t might be time for me to retire, frankly. That decision I’ll be

making over the next week or two.” Commission Tr. 12374 (Feb. 16, 2018).

B.

The government soon appealed Spath’s abatement order to the Court of

Military Commission Review. During the pendency of that appeal, Spath

submitted his retirement paperwork to the Air Force, and the process began

to find “a new judge with high enough clearance” for reassignment to Al-

Nashiri’s case. Reply Attachments A-20. Several months and another start-

date delay later, see id. at A-21, Spath announced his retirement, and Colo-

nel Shelly Schools took over as the military judge in Al-Nashiri’s case on

August 6, 2018, see AE302A, at 1 (Oct. 15, 2018).

At that time, all Al-Nashiri knew was that Spath planned to retire and

that Schools had replaced him; Spath had given no indication that he had

applied for and accepted a job in the Justice Department. But in summer

2018, Al-Nashiri’s defense team—which by this time had added Captain

Brian Mizer, one of Al-Nashiri’s former lawyers who had been recalled to

active duty—received “credible reports” that Spath had been pursuing em-

ployment as an immigration judge. Petition for a Writ of Mandamus and

Prohibition (“Al-Nashiri Pet.”) 23, In re Al-Nashiri, No. 18-1279 (Oct. 4,

2018). Al-Nashiri’s lawyers submitted a request for discovery on the matter,

but the government refused, calling the reports “unsubstantiated assertions”

and arguing that the “[d]efense request offers no basis to believe that the

former presiding military judge has applied for a position with the [Justice

Department] or even contacted the [Justice Department] regarding employ-

ment.” Corrected Al-Nashiri Attachments, Attachment B, at 1. Less than a

week later, however, an Associated Press photograph surfaced showing

Spath standing next to Attorney General Sessions at a welcome ceremony

for new immigration judges. See Carol Rosenberg, Controversial Guantá-

namo Judge Joins Jeff Sessions in Immigration Judge Ceremony,

McClatchy (Sept. 14, 2018), https://www.mcclatchydc.com/news/nation-

world/national/national-security/article218303315.html.

Arguing that Spath’s employment negotiations created a disqualifying

appearance of bias, Al-Nashiri filed a motion in the Court of Military Com-

mission Review seeking an order compelling the government to produce the

requested discovery and vacating Spath’s rulings. See Motion 1, United

States v. Al-Nashiri, No. 18-002 (CMCR Sept. 13, 2018). The CMCR de-

nied that motion in late September, explaining that because Al-Nashiri had

yet to raise his allegations in the still-abated commission, the appellate court

lacked a “factual record ... at the trial level to support [Al-Nashiri’s] allega-

tions.” Order 2, United States v. Al-Nashiri, No. 18-002 (CMCR Sept. 28,

2018). Apparently construing Al-Nashiri’s request as one for a writ of man-

damus, the court then concluded that Al-Nashiri had failed to “show[ ] that

‘a reasonable and informed observer would question [Spath’s] impartiality.’

“ Id. (quoting SEC v. Loving Spirit Foundation Inc., 392 F.3d 486, 493

(D.C. Cir. 2004)).

The same day the CMCR issued its order, the Justice Department an-

nounced “the investiture of ... the largest class” of immigration judges “in

the agency’s history”; number 41 on the list of 46 names was Colonel Vance

Spath. U.S. Department of Justice, Office of Public Affairs, EOIR An-

nounces Largest Ever Immigration Judge Investiture (Sept. 28, 2018),

https://www.justice.gov/opa/pr/eoir-announces-largest-ever-immigration-

judge-investiture; see also U.S. Department of Justice, Executive Office for

Immigration Review, Notice, Executive Office for Immigration Review

Swears in 46 Immigration Judges 12 (Sept. 28, 2018), https://www.jus-

tice.gov/eoir/page/file/1097241/download.

The following week, Al-Nashiri filed a petition for a writ of mandamus

in this court. But that does not quite end the story.

On October 11, 2018, the CMCR issued its opinion in the government’s

appeal of Spath’s February 2018 abatement order. Asserting “pendent juris-

diction” over the issue of Al-Nashiri’s representation, the court held that the

“right to learned counsel is not absolute” but rather exists “only ... to the

‘greatest extent practicable.’ “ United States v. Al-Nashiri, No. 18-002, slip

op. at 21, 34 (CMCR Oct. 11, 2018) (quoting 10 U.S.C. § 949a(b)(2)(C)(ii)).

The CMCR also held that Spath “had the responsibility to review the [Chief

Defense Counsel’s] decision” to excuse Al-Nashiri’s defense counsel and

that “the record does not establish good cause for” their excusal. Id. at 37.

Concluding, then, that Al-Nashiri’s defense counsel “remain[ed] counsel of

record,” the court vacated Spath’s abatement order and directed “Al-

Nashiri’s trial ... to resume forthwith.” Id. at 38. While, in its words, “re-

tain[ing] jurisdiction over the issue of Al-Nashiri’s representation,” the

CMCR otherwise remanded the case “to the military judge for proceedings

consistent with [its] decision.” Id.

With the abatement lifted, Al-Nashiri filed motions in both the CMCR

and this court requesting to stay commission proceedings pending our res-

olution of his mandamus petition. The CMCR denied that motion on No-

vember 2, 2018, opining that “[t]he principal flaw in Al-Nashiri’s underly-

ing motion to disqualify Judge Spath is that it should have been made in the

military commission where a factual record could have been created.” Order

3, United States v. Al-Nashiri, No. 18-002 (CMCR Nov. 2, 2018). “If Al-

Nashiri moves to disqualify Judge Spath” once commission proceedings re-

sume, the court explained, “the new judge will decide whether Judge Spath

acted inappropriately.” Id. at 4. But Al-Nashiri never presented his argu-

ment to Judge Schools, as we issued a stay on November 7, 2018.


In fact, Judge Schools’s tenure on Al-Nashiri’s case did not last long.

By letter dated January 4, 2019, the government’s attorneys in this case in-

formed us that, upon conducting an investigation prompted by defense

counsel’s request, they had recently discovered that “Judge Schools intends

to retire from the military in the relatively near future,” as she, too, had

“applied for and ... accepted a post-retirement immigration judge position.”

Fed. R. App. P. 28(j) Letter 1, In re Al-Nashiri, No. 18-1279 (D.C. Cir. Jan.

4, 2019). Army Colonel Lanny J. Acosta is now assigned to Al-Nashiri’s

case.

Now before us are two petitions for writs of mandamus: one filed by Al-

Nashiri, who seeks a writ directing either “the vacatur of the orders conven-

ing the military commission” against him or “the vacatur of all orders en-

tered by [Spath] whilst he was under a concealed and disqualifying ethical

conflict,” Al-Nashiri Pet. 1; and the other filed by Spears and Eliades, who

seek mandamus relief “vacating the CMCR’s October 11, 2018 Opinion

compelling [them] to serve as... [d]efense [c]ounsel after they were lawfully

excused,” Petition for Writ of Mandamus 1, In re Spears, No. 18-1315 (Nov.

21, 2018). We begin with Al-Nashiri’s petition.

II.

…

… [A]lthough the Justice Department is a complex institution with

many offices performing many different functions, it is enough to decide

this case to know that the Attorney General himself is directly involved in

selecting and supervising immigration judges. Unlike administrative law

judges, who are hired through a selection process administered by the Office

of Personnel Management, immigration judges such as Spath are appointed

directly by the Attorney General. …Once appointed, moreover, immigra-

tion judges are “subject to such supervision” and obligated to “perform such

duties as the Attorney General shall prescribe.” 8 U.S.C. § 1101(b)(4).

As to the second inquiry—who is a party to Al-Nashiri’s case?—the

government acknowledges that the “Attorney General ... and the Justice De-

partment have some involvement in the [m]ilitary [c]ommission system”

but nonetheless argues that “whatever level that involvement is,” it is “much

less than the Defense Department[‘s].” Oral Arg. Tr. 34:16–25, In re Al-

Nashiri, No. 18-1279 (D.C. Cir. Jan. 22, 2019). This, of course, is true. The

MCA gives the Secretary of Defense, not the Attorney General, authority to

convene military commissions, see 10 U.S.C. § 948h, and as a formal mat-

ter, “trial counsel of a military commission ... prosecute in the name of the

United States,” not any particular agency, 10 U.S.C. § 949c(a). On issues of

judicial impartiality, however, we confront a question of reasonable appear-

ances, not just formal designations. And we cannot escape the conclusion

that the average, informed observer would consider Spath to have presided

over a case in which his potential employer appeared. Two facts compel this

conclusion.

First, the Justice Department, presumably with the approval of the At-

torney General, detailed one of its lawyers to prosecute Al-Nashiri. See Rule

for Military Commission 501(b) (requiring that “if [civilian trial] counsel

are employed by another government agency,” they may be detailed only

“with the approval of the head of that agency”). The Rules for Military

Commissions themselves label this prosecutor a “party” to the proceedings.

See Rule for Military Commissions 103(a)(24)(B) (defining “party” to in-

clude “[a]ny trial or assistant trial counsel representing the United States”

in the military commission). And Commission transcripts reveal that this

Justice Department lawyer’s participation was far from perfunctory; indeed,

he appears to have been the prosecution team’s second-in-command for at

least part of the time. See AE338H, at 1 (Feb. 22, 2017) (detailing memo-

randum designating the Justice Department lawyer as “Trial Counsel” and

two judge advocates as “Managing Assistant Trial Counsel” and “Assistant

Trial Counsel,” respectively).

Second, aside from the particulars of Al-Nashiri’s case, the Attorney

General plays an important institutional role in military commissions more

generally. The Attorney General appears by name twice in the Military

Commissions Act: first in section 949a, which permits “the Secretary of

Defense, in consultation with the Attorney General” to establish rules for

“trials by military commission” that depart from “the procedures ... other-

wise applicable in general courts-martial”; and second in section 950h,

which allows appellate counsel appointed by the Secretary of Defense to

“represent the United States” in appeals beyond the CMCR only if “re-

quested to do so by the Attorney General.” 10 U.S.C. §§ 949a(b)(1),

950h(b)(2). The Regulation for Trial by Military Commission, too, contem-

plates that the Attorney General will detail Justice Department lawyers to

commission proceedings with some regularity. “The Chief Prosecutor shall

supervise all trial counsel,” the Regulation instructs, “including any special

trial counsel of the Department of Justice who may be made available by

the Attorney General of the United States.” U.S. Department of Defense,

Regulation for Trial by Military Commission § 8-6(a) (2011).

In sum, the Attorney General was a participant in Al-Nashiri’s case from

start to finish: he has consulted on commission trial procedures, he has

loaned out one of his lawyers, and he will play a role in defending any con-

viction on appeal. The challenge Spath faced, then, was to treat the Justice

Department with neutral disinterest in his courtroom while communicating

significant personal interest in his job application. Any person, judge or not,


could be forgiven for struggling to navigate such a sensitive situation. And

that is precisely why judges are forbidden from even trying. …

The fact of Spath’s employment application alone would thus be enough

to require his disqualification. But Spath did yet more to undermine his ap-

parent neutrality.

First, in his job application, Spath chose to emphasize his role as the

presiding judge over Al-Nashiri’s commission. He boasted that he had been

“handpicked by the top lawyer of the Air Force to be the trial judge” on “the

military commissions proceedings for the alleged ‘Cole bombing’ master-

mind,” Reply Attachments B-2, and he even supplied an order from Al-

Nashiri’s case as his writing sample, see id. at B-11. Spath thus affirma-

tively called the Justice Department’s attention to his handling of Al-

Nashiri’s case, making his performance as presiding judge a key point in

his argument for employment.

Second, while Spath made sure to tell the Justice Department about his

assignment to Al-Nashiri’s commission, he was not so forthcoming with

Al-Nashiri. At no point in the two-plus years after submitting his application

did Spath disclose his efforts to secure employment with the Executive Of-

fice for Immigration Review. Indeed, perhaps most remarkably, less than

twenty-four hours after receiving his July 2018 start date, Spath indefinitely

abated commission proceedings, musing on the record that “over the next

week or two” he would decide whether “it might be time ... to retire.” Com-

mission Tr. 12374 (Feb. 16, 2018); see also supra at 230–31. Given this lack

of candor, a reasonable observer might wonder whether the judge had done

something worth concealing. Cf. Rule for Military Commissions 902(e)

(permitting, in some circumstances, “the parties to [a] proceeding” to waive

judicial disqualification but only if the waiver “is preceded by a full disclo-

sure on the record of the basis for disqualification”).

It is, of course, entirely possible that Spath’s orders were the product of

his considered and unbiased judgment, unmotivated by any improper con-

siderations. But that is beside the point: “[a]ppearance may be all there is,

but that is enough.” Microsoft Corp., 253 F.3d at 115. As the Supreme

Courthas explained, “[t]he problem ... is that people who have not served

on the bench are often all too willing to indulge suspicions and doubts con-

cerning the integrity of judges.” Liljeberg, 486 U.S. at 864–65, 108 S.Ct.

2194. Spath’s job application, therefore, cast an intolerable cloud of partial-

ity over his subsequent judicial conduct. Al-Nashiri thus has a clear and

indisputable right to relief.

…

In addition to Spath’s many oral rulings from the bench, the government

advises us that he “issued approximately 460 written orders” in Al-Nashiri’s

case. Opp. to Al-Nashiri 8. Requiring Al-Nashiri to proceed under the long

shadow of all those orders, even if enforced by a new, impartial military

judge, would inflict an irreparable injury unfixable on direct review. Al-

Nashiri thus has no adequate remedy for Spath’s conduct other than to scrub

Spath’s orders from the case at the earliest opportunity.

…

C.

…

Although a principle so basic to our system of laws should go without

saying, we nonetheless feel compelled to restate it plainly here: criminal

justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s de-

fense counsel, all elements of the military commission system—from the

prosecution team to the Justice Department to the CMCR to the judge him-

self—failed to live up to that responsibility. And we cannot dismiss Spath’s

lapse as a one-time aberration, as Al-Nashiri’s is not the first meritorious

request for recusal that our court has considered with respect to military

commission proceedings. See In re Mohammad, 866 F.3d at 475–77 (issu-

ing a writ of mandamus recusing a CMCR judge for expressing an opinion

about the accused’s guilt). That said, we hasten to add that none of the fore-

going requires the Defense Department to change the way it assigns military

judges, or the Justice Department the way it hires immigration judges, or

the CMCR the way it considers appeals. But this much is clear: whenever

and however military judges are assigned, rehired, and reviewed, they must

always maintain the appearance of impartiality demanded by Rule for Mil-

itary Commission 902(a). It would seem, therefore, that some additional

“encourag[ement] ... to more carefully examine possible grounds for dis-

qualification,” Liljeberg, 486 U.S. at 868, 108 S.Ct. 2194, would be espe-

cially “appropriate under the circumstances,” Cheney, 542 U.S. at 381, 124

S.Ct. 2576.

On the other side of the ledger, the government warns that granting Al-

Nashiri’s petition would require relitigation of commission proceedings,

thus costing additional time and resources. But while the public unquestion-

ably possesses, as the government argues, an “interest in avoiding unwar-

ranted delays in the administration of justice,” Opp. to Al-Nashiri 50, surely

the public’s interest in efficient justice is no greater than its interest in im-

partial justice. Any institution that wields the government’s power to deny

life and liberty must do so fairly, as the public’s ultimate objective is not in

securing a conviction but in achieving a just outcome. Given that Al-

Nashiri’s case remains at the pre-trial stage, we are confident that the costs

of granting the writ are not intolerably high, especially when weighed

against the hefty burdens that would be shouldered by both Al-Nashiri and


the public were his military commission to proceed under a cloud of illegit-

imacy.

A writ is therefore more than “appropriate under the circumstances.”

Cheney, 542 U.S. at 381, 124 S.Ct. 2576. The much harder task is to fashion

its scope. Recognizing the powerful case for dissolving the current military

commission entirely (Al-Nashiri’s preferred relief), we are ultimately satis-

fied that a writ of mandamus directing vacatur of all orders entered by Spath

after November 19, 2015—the date of his application—will sufficiently

scrub the case of judicial bias without imposing an unnecessarily “draconian

remedy.” Liljeberg, 486 U.S. at 862, 108 S.Ct. 2194. Additionally, because

“ordinary appellate review” on the merits cannot “detect all of the ways that

bias can influence a proceeding,” Al-Nashiri I, 791 F.3d at 79, we shall va-

cate any CMCR orders that reviewed now-vacated Spath orders, including

the CMCR’s October 11, 2018, opinion affirming Spath’s rulings regarding

Al-Nashiri’s defense counsel.

In ordering such relief, we fully recognize the burden the writ will place

on the government, the public, and Al-Nashiri himself. Despite these costs,

however, we cannot permit an appearance of partiality to infect a system of

justice that requires the most scrupulous conduct from its adjudicators, “for

the appearance of bias demeans the reputation and integrity not just of one

jurist, but of the larger institution of which he or she is a part.” Williams v.

Pennsylvania, ––– U.S. ––––, 136 S.Ct. 1899, 1909, 195 L.Ed.2d 132

(2016).

…

IV.

We do not take lightly the crimes that Al-Nashiri stands accused of com-

mitting. To the contrary, the seriousness of those alleged offenses and the

gravity of the penalty they may carry make the need for an unimpeachable

adjudicator all the more important. We therefore grant Al-Nashiri’s petition

for a writ of mandamus and vacate all orders issued by Judge Spath on or

after November 19, 2015, and we further vacate all decisions issued by the

CMCR reviewing such orders. We dismiss Spears and Eliades’s petition for

a writ of mandamus as moot.

So ordered.

QUESTIONS AND NOTES

1. The issue in the al-Nashiri case arose from conduct engaged in by a key

functionary in commission proceedings, the military judge. One type of

problem commission proceedings have suffered from has been frequent

changes in the official personnel. Proceedings in the cases have often

been ongoing for lengthy periods, and in some instances, individuals

have been rotated out of key positions in the proceedings, sometimes

being removed because of dissatisfaction with their performance, some-

times because of retirement, and for other reasons. To what extent are

the problems illustrated here an inherent feature of a newly-established

system of adjudication operated by the military? Some specific exam-

ples of these kinds of problems as they have occurred in commission

proceedings are described in the notes that follow.

2. A New York Times article reported that the Commander of the Guan-

tanamo Bay facility was dismissed for “a loss of confidence in his abil-

ity” to lead, seven weeks before he was scheduled to step down from

the position. See Carol Rosenberg, Guantanamo Commander Is Ousted,

NY Times, April 29, 2019, A13.

3. The office of the convening authority for the military commissions is

described as follows in the official Organization Overview for the mili-

tary commissions,

The Office of the Convening Authority is responsible for the overall

management of the military commissions process, including logis-

tics and personnel support. The Convening Authority is empowered

to convene military commissions, refer charges to trial, negotiate

pre-trial agreements, and review records of trial. The Convening

Authority also provides an accused an opportunity for clemency be-

fore taking action on the findings and sentence of all military com-

mission cases.

http://www.mc.mil/ABOUTUS/OrganizationOverview.aspx See

also, e.g., MCA of 2009, secs. 948i(b) and (c), 948j (f).

In May, 2019, a New York Times article reported that a new convening

authority for military commissions—a retired navy judge and one-star

admiral, had been appointed after the position had been filled by acting

appointees for more than a year. See Carol Rosenberg, Overseer Is

Named for Guantanamo Military Court, NY Times, May 29, 2019, A6.

For a description of issues that arose during the tenure of the previous

convening authority, a leading national security lawyer, see Sarah

Grant, Convening Authority and legal Adviser for Military Commis-

sions Removed from Office, Lawfare, Feb. 6, 2018, https://www.law-

fareblog.com/convening-authority-and-legal-adviser-military-com-

missions-removed-office.

4. A counter-example to the above: The chief prosecutor for the military

commissions has served in that role since 2011. He has at least twice

had his appointment extended beyond his scheduled retirement date.

See Carol Rosenberg, op cit. supra, note 3, supra.

https://www.lawfareblog.com/convening-authority-and-legal-adviser-military-commissions-removed-office




5. In February, 2020, learned defense counsel who had represented de-

fendant Ramzi bin al-Shibh since 2012 ( he was one of the 9/11 defend-

ants along with KS Mohammad) asked to withdraw from the case plead-

ing health issues and problems with the relationship with his client. See

Carol Rosenberg, September 11 Case Faces Setback after Lawyer Asks

to Quit, NY Times, February 12, 2020, A13. The government opposed

the withdrawal. The judge held a hearing and ruled that he could with-

draw, subject to a replacement learned defense counsel being found.

(Learned defense counsel must have prior experience in death penalty

cases.) A new learned counsel was identified in early April, 2020 who

was to begin serving full time on July 1, 2020. See Carol Rosenberg, A

Veteran Defender Selected for Guantanamo's 9/11 Trial, NY Times,

April 12, 2020. https://www.nytimes.com/2020/04/12/us/politics/guan-

tanamo-911-trial-david-bruck.html

6. The military commission proceedings against Khalid Shaikh Moham-

mad and four accused accomplices began in 2012 (see note 5a. case-

book, p. 994-995), See Carol Rosenberg, Complex History and a Full

Case File Await the New Judge in the 9/11 Trial, NY Times, June 21,

2019, A18. Since the foregoing article was written, there has been an

unusual amount of turnover in the military judges presiding over this

matter.

As of the present date, the case has been presided over by six different

judges, with the most recent changes having occurred in 2020. If any-

thing, more frequent changes seem to have been occurring in 2020. The

third judge in the case, who presided for less than a year, announced in

March, 2020, that he would be retiring and that he would be stepping

down in April. See Carol Rosenberg, Military Judge in a September 11

Case Is Set to Retire, Putting the Trial's Start Date in Jeopardy, NY

Times, March 26, 2020, A 21. He was replaced in September, 2020.

In the interim between April and September, the Chief Judge for Mili-

tary Commissions handled the case on a caretaker basis The judge

newly-assigned (the fifth) to the case in September, however, an-

nounced after a couple of weeks that he was stepping down because of

conflicts of interest and possible sources of an appearance of bias that

he had not previously been aware of. See Carol Rosenberg, Newly Ap-

pointed Judge Steps Down from 9/11 Trial, Citing Personal Conflicts,

NY Times, October 3, 2020, A21.

7. A new (the sixth) person to be appointed, an Air Force judge, was as-

signed within two weeks, that is, in the second half of October, 2020.

Immediately, the military prosecutors in the case protested on the

ground that he was not qualified, having served less than two years as a

military judge. The applicable rules require two years of prior service as

https://www.nytimes.com/2020/04/12/us/politics/guantanamo-911-trial-david-bruck.html

https://www.nytimes.com/2020/04/12/us/politics/guantanamo-911-trial-david-bruck.html

a military judge, and this new appointee had become a military judge in

July, 2019. The complaining prosecutors stated that if he did not recuse

himself, they would seek to remove him. See Carol Rosenberg, Prose-

cutors Issue Protest Against Judge for 9/11 Trial, NY Times, October

17, 2020, A20. As of this writing, that is the present state of the matter.

8. The military commission proceedings referred to in notes 5 and 6, supra,

are the most important and complex proceedings remaining on the trial

docket of the commissions. Now eight years in process, one of the

sources of the delays has been the afore-described turnover in the offi-

cial personnel involved in the proceedings—each new presiding judge

or attorney involved in the case must get up to speed in a case that al-

ready involves thousands of documents and hundreds of rulings. An-

other recent, additional special source of delay has been that related di-

rectly and indirectly to the corona virus pandemic. See Carol Rosenberg,

Obstacles to Restarting Trials at Guantanamo, NY Times, July 28, 2020

A12. Still another is the great number of issues raised on motions prior

to the trial. And there are a variety of other matters that have been a

cause of delay in the proceedings. See Carol Rosenberg, A Year from

Guantanamo's 9/11 Trial, the Military Has a Long To-do List, NY

Times, February 10, 2020, A14 (E.g., obtaining security clearances for

participants, appeals of legal issues; managing weather problem on an

island often in the path of hurricanes; dealing with health issues; dealing

with changing logistical and management problems, including con-

structing new or alternate facilities).

9. As a result, the date for the beginning of the KSM et al. trial keeps get-

ting pushed back and as of present date remains a moving target. Note,

however, that while proceedings seem to move forward only in slow-

motion, the detainees remain incarcerated at Guantanamo.

10. To illustrate the prolixity of the legal questions that a commission judge

has been addressing, for a five month period in the KS Mohammed case,

the military commissions docket, https://www.mc.mil/CASES.aspx,

lists 500 documents (between February 12, 2019 and July 24, 2019):

These documents consist of rulings, motions and supplements to mo-

tions on issues, briefs, transcripts of hearings, and a vast assortment of

legal filings that contain and address a mind-boggling mine-field of both

major and minor legal issues. Many of the documents in this trove, need

to undergo a security review before being publicly released, and there-

fore there is often a time lag in making them available. Generally speak-

ing, although the website for the commissions makes everything not

classified available, it is sometimes difficult to find particular docu-

ments. The fact, too, that many of the documents are heavily redacted


means that even when they can be accessed, one’s ability to assess rul-

ings and evaluate the process is restricted. See Carol Rosenberg, At

Guantanamo, Shroud of Secrecy Around War Court Only Thickens,

April 5, 2020,

11. One of the category of issues presently at the center of the ongoing liti-

gation in the KSMohammed cases relates to the defense’s ability to refer

to and inquire into on behalf of their clients the enhanced interrogation

(“torture”) procedures used in CIA black sites against KSMohammed

plus his four alleged accomplices. [In considering the issues in this note

and succeeding notes, readers may wish to refer back to the various

pages in the casebook where interrogation issues have been addressed,

for example, in chapter 7, which treats enhanced interrogation/torture

issues, casebook, pp. 410-460, as well as Miranda issues, the FBI guide-

lines and a two-step interrogation process, casebook, pp. 460-499; in

chapter 10, interrogation statements offered in habeas corpus proceed-

ings, casebook, pp. 853-855; and in chapter 11, applicability of Miranda

warnings in military settings and admissibility of statements obtained

through torture in military commission proceedings and governing stat-

utory provisions, casebook, pp. 934-936, 943-944. Readers should also

be reminded that when the enhanced interrogation/torture techniques

were being used during the early post 9/11 years, the CIA interrogators

were not generally concerned about being able to use statements ob-

tained in the courtroom; rather, their goal was to obtain intelligence as

quickly as possible, to be used to thwart attacks by al Qaeda and appre-

hend or kill al Qaeda jihadists. It was only later when the government

wished to prosecute, convict and punish those same terrorists that due

process and the constitutional rules of admissibility have come into

play.]

12. Where statements were obtained by torture or cruel, inhuman or degrad-

ing treatment, the statements are inadmissible under sec.948r of the Mil-

itary Commission Act of 2009. In normal course, the fruits of such state-

ments are also inadmissible unless the link to the statements is suffi-

ciently attenuated. Generally, the admissibility of statements that were

obtained at CIA black sites through enhanced interrogation techniques

has not been posed as an issue in current military commission proceed-

ings; the government has not been offering into evidence such state-

ments. Nevertheless, many of the pre-trial motions in the KSMoham-

med case, relate to defense counsel’s efforts to obtain information about

the facts underlying the enhanced interrogation and other practices en-

gaged in at the black sites. Legal issues regarding these matters that have

been and are being posed, apart from the admissibility of statements

themselves made at the black sites, include the following:

a. Whether statements made in response to a “clean team” inter-

rogation by FBI agents sometime after the original CIA black

site enhanced techniques interrogation may be admitted at

trial. The question of whether the clean teams were really clean

has very recently been put in doubt, and resolution of that

doubt will complicate what was, even beforehand, a complex

legal issue. See infra note 9b.

Where the first stage of a two-step interrogation involves tor-

ture, the “cleansing” effect of a significant time interval be-

tween interrogations, the giving of Miranda warnings and

other measures taken, may not be enough to negate the coer-

cive influences from the original interrogation. See Charlie

Savage, Judge Bars Statements Made by Guantanamo Detain-

ees during FBI Interrogations, NY Times, August 18, 2018,

A16. Col. James L. Pohl, military judge, ruled in response to

a motion by Mr. Ali (a.k.a. al Baluchi) one of the defendants

in the prosecution of KSMohammad and his accomplices on

August 17, 2018, that statements made to the clean team FBI

agents were inadmissible. In his ruling he considered the nec-

essary national security limitations on the defense’s ability to

prove in detail what was done to the defendant in his black site

interrogation as the reason why statements made to the clean

team should be inadmissible. The judge’s ruling in the case

can be found at https://www.mc.mil/Por-

tals/0/pdfs/KSM2/KSM%20II%20(AE524LL(RULING)).pdf

But it turns out that that was not the end of the story. Shortly

thereafter, Judge Pohl retired, and he was replaced by a tem-

porary appointee, Col. Keith Parella who served for nine

months. On April 3, 2019, Judge Parella issued a ruling setting

aside his predecessor’s decision; he explained his ruling as fol-

lows:

… T]he Commission crafted an impromptu remedy, which

precluded the Government from introducing any FBI

Clean Team Statement from any of the Accused for any

purpose.

Upon reconsideration, the Commission finds this determi-

nation, and the resulting remedy, to be premature. Alt-

hough the Commission may ultimately reaffirm both the

finding and the remedy, the Commission believes that the

more appropriate time to assess the Defense’s ability to

present evidence related to the voluntariness of the FBI

Clean Team Statements is after conducting an evidentiary


hearing to fully explore the issue. his hearing would allow

the Defense to request relevant witnesses, and (if they are

produced) conduct a thorough examination on the record.

The premature imposition of such an exacting remedy,

which prevents the Government from introducing the FBI

Clean Team Statements for any purpose prior to the con-

duct of an evidentiary hearing on voluntariness, results in

a manifest injustice.

The Commission’s reconsideration and deferral of its rul-

ing in AE 524LL does not, however, mean that the Com-

mission’s ultimate finding won’t be the same—mainly that

PO #4 [ed. Protective Order No. 4] precludes the Defense

from having substantially the same ability to investigate,

prepare, and litigate motions to suppress the FBI Clean

Team Statements. In other words, the remedy may ulti-

mately prove appropriate, but its timing is not. The deci-

sion as to whether PO #4 allows the Defense to develop

“the particularity and nuance necessary to present a rich

and vivid account of the 3-4 year period” the Accused were

in CIA custody is best made after the Defense has the abil-

ity to use all tools at their disposal. Although the Defense

has received extensive discovery and interviewed some

RDI [ed. Rendition, Detention, Interrogation Program]

witnesses, the extent of the Government’s willingness to

further ease restrictions upon further Defense investiga-

tion, to enter into meaningful stipulations, or to produce

RDI witnesses during upcoming evidentiary suppression

hearings is not yet fully known.

The full ruling can be found at https://www.mc.mil/Por-

tals/0/pdfs/KSM2/KSM%20II%20(AE524LLL(Ruling)).pdf

b. But even Judge Parella’s ruling was not the end of the story.

From the material in note 9a., supra, it appears that whether

statements obtained by a clean team interrogation entirely sep-

arate and independent of the original torture questioning are

admissible can be a disputed issue that can engender the fore-

going two rulings that if not contradictory at least point in dif-

ferent directions. Suppose there is added to that mix a question

of whether the two sets of interrogations were somehow inter-

mixed. See Carol Rosenberg, Lawyers Press Case that 9/11

Confessions Given to FBI are tainted, NY Times, July 29,

2019 https://www.nytimes.com/2019/07/29/us/politics/sep-

tember-11-confessions-guantanamo.html, where it is reported

https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE524LLL(Ruling)).pdf

https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE524LLL(Ruling)).pdf

that there is evidence that the FBI was feeding questions to

CIA interrogators and that the FBI had in hand interrogation

statements that had been made to the CIA interrogators. If

upon full inquiry, this turns out to be the case in connection

with all of the defendants in the KSMohammed matter, the

government will be hard-pressed to gain admissibility for the

statements made to the supposed “clean” FBI team. Absent

proof of those statements, will the government be able to ob-

tain convictions in these cases? Assuming the facts reported

by Carol Rosenberg in the article cited supra, can you think of

any additional facts that, if present, might rehabilitate the clean

team interrogation?

c. Whether the extreme measures that the defendant suffered

from in the black sites are sufficient to justify dismissal of the

prosecution.

1) For a case rejecting this type of claim by a person who

had been interrogated at a CIA black site, but with the

claim raised in a U.S. district court prosecution, see

United States v. Ghailani, 751 F.Supp 2d 501 (S.D. N.Y.

2010):

In this case, Ghailani has not identified explicitly the

component of his due process rights that allegedly

was violated. But he argues that both the CIA’s use

of “enhanced interrogation techniques”—in his

word, torture—to question him and the fact that use

of those techniques was authorized by “the highest

levels of our government” are “ ‘so fundamentally

unfair’, ‘shocking to our traditional sense of justice’,

and ‘outrageous’ “ that due process requires the in-

dictment to be dismissed. He thereby invokes sub-

stantive rather than procedural due process.

The government does not here respond to Ghailani’s

assertions as to what was done to him while in CIA

custody. Nor does it join issue on the question

whether those assertions, if true, violated Ghailani’s

right to due process of law. Rather, it argues that

Ghailani’s allegations of pretrial custodial abuse are

immaterial to this motion because dismissal of the

indictment would not be a proper remedy for the gov-

ernment’s alleged misconduct. In other words, the

government argues that there is no legally significant


connection between the alleged torture and any dep-

rivation of the defendant’s liberty that might result

from this criminal prosecution.

If the government is correct in contending that

Ghailani would not be entitled to dismissal of this

criminal prosecution on due process grounds even if

he was tortured in violation of his constitutional

rights, it would be unnecessary for this Court to ad-

dress the details of Ghailani’s alleged treatment

while in CIA custody. Nor in that event would it be

appropriate to express any opinion as to whether that

treatment violated his right to due process of law.

The Court therefore passes directly to consideration

of the government’s argument.

II

The Due Process Clause, so far as is relevant here,

protects against deprivations of liberty absent due

process of law. The deprivation of liberty that

Ghailani claims may occur if this case goes forward

is his imprisonment in the event of conviction. In

seeking dismissal of the indictment, however, he

does not deny that he is being afforded every protec-

tion guaranteed to all in the defense of criminal pros-

ecutions. Rather, Ghailani in effect argues that the

case should be dismissed to punish the government

for its mistreatment of him before he was presented

in this Court to face the pending indictment.

…

This case follows a fortiori from the rationale of the

Ker–Frisbie rule. [ed. see United States v. Alvarez-

Machain and its discussion of Ker-Frisbie, casebook,

pp. 502-509.] Ghailani is charged here with complic-

ity in the murder of 224 people. The government here

has stated that it will not use anything that Ghailani

said while in CIA custody, or the fruits of any such

statement, in this prosecution. In consequence, any

deprivation of liberty that Ghailani might suffer as a

result of a conviction in this case would be entirely

unconnected to the alleged due process violation.

Even if Ghailani was mistreated while in CIA cus-

tody and even if that mistreatment violated the Due

Process Clause, there would be no connection be-

tween such mistreatment and this prosecution. If, as

Ker–Frisbie holds, the illegal arrest of a defendant is

not sufficiently related to a prosecution to warrant its

dismissal, it necessarily follows that mistreatment of

a defendant is not sufficient to justify dismissal

where, as here, the connection between the alleged

misconduct and the prosecution is non-existent or, at

least, even more remote. Certainly the government

should not be deprived here “of the opportunity to

prove his guilt through the introduction of evidence

wholly untainted by [any government] misconduct.”

Any remedy for any such violation must be found

outside the confines of this criminal case.

United States v. Toscanino is not to the contrary. The

defendant in that case allegedly was brought before

the trial court as a result of being abducted and tor-

tured by government agents, conduct that he claimed

violated his right to due process of law. Upon con-

viction, he appealed on the ground that the agents’

actions violated his right to due process and that the

district court’s jurisdiction over him was a product of

that violation. The Second Circuit reversed the con-

viction and remanded to enable the defendant to at-

tempt to prove that the agents’ conduct was suffi-

ciently outrageous to have violated the Due Process

Clause. But Toscanino does not support Ghailani

here.

As an initial matter, Toscanino was concerned with

“denying the government the fruits of its exploitation

of any deliberate and unnecessary lawlessness on its

part.” To whatever extent it is authoritative, a subject

discussed below, the case is limited to situations in

which the alleged outrageous government conduct

brought the defendant within the court’s jurisdiction,

and thus was a but-for cause of any resulting convic-

tion, and compromised the fairness and integrity of

the criminal proceedings. There is no similar connec-

tion between Ghailani’s alleged mistreatment while

in CIA custody and this prosecution. Hence, to what-

ever extent that Toscanino remains viable, it does not

apply here.


Second, as suggested already, it is doubtful that Tos-

canino remains authoritative. Several circuits have

expressed doubt as to its continued viability in light

of subsequent Supreme Court decisions. …

2) Also see, United States v. Padilla, casebook, p. 771.

d. Whether what was done to the defendant at a CIA black site should

be taken into account in deciding whether to impose the death pen-

alty. Defense counsel want to argue based on “the details of how the

detainees were treated …that the United States has lost the moral

authority to execute men it has tortured.” Carol Rosenberg, In Guan-

tanamo Trials, Wrestling with Airing Evidence on Torture, NY

Times, April 6, 2019, A1

e. Similar to d. above, whether what was done to a defendant at a CIA

black site should be taken into account in determining the sentence.

In June, 2020, in a case not involving the five 9/11 defendants, a

judge ruled that the fact that a defendant had been tortured could be

taken into account in determining his sentence. The defendant who

was charged with being a courier who had delivered money that

helped to finance the bombing of a hotel in Jakarta, Indonesia in

which 11 people were killed and being involved in plotting other

terrorist acts that had not come to fruition had pled guilty and agreed

to be a government witness, hoping to qualify for leniency. The

judge ruled on the legal question but not yet on the issue of whether

he in fact had been tortured. The judge who made the ruling is the

Chief Judge for Military Commissions, sitting as a judge in the par-

ticular case.

f. Similar to d. and e. above, potentially using such information in a

post-sentence clemency request.

10. The issues presented in items d, e and f in the previous note all involve

issues posed by defense counsel trying to inquire into the facts of the

earlier enhanced interrogation/torture conduct of government agents at

the black sites for use as a basis for mitigation of the penalties. In the

ruling described in note 8a., supra, Judge Pohl also addressed whether

defense counsel could pursue such mitigation arguments:

…With regard to use of the conditions of confinement of the Ac-

cused while in CIA custody for mitigation, the Commission con-

cludes the extensive discovery provided by the Government regard-

ing the RDI program, the extensive information about the RDI pro-

gram available in open sources, the Government’s offer to stipulate

“verifiable facts regarding the Accused’s involvement and treatment

within the CIA’s former RDI program,” and witness interviews of

CIA persons who consent to a Defense interview pursuant to Pro-

tective Order #4 will provide the Defense with the substantially the

same ability to investigate, prepare, and litigate its mitigation case.

Judge Parella also set aside this part of Judge Pohl’s ruling (see note 9a,

supra for the earlier part of Judge Parella’s ruling):

Likewise, the Commission finds premature the determination that

PO #4 will provide the Defense with substantially the same ability

to investigate, prepare, and present evidence regarding the condi-

tions of confinement of the Accused while in CIA custody for miti-

gation. The importance of mitigation evidence in a capital case war-

rants postponing this determination until the Commission further de-

velops—through, at a minimum, the conduct of evidentiary suppres-

sion hearings—additional information to inform and dictate this

analysis.

11. The sources of information listed in the Judge Pohl’s ruling quoted in

note 9, supra, are essentially the sources of information regarding the

conduct at the black sites that until this point in time have been made

available to defense counsel. A significant amount of litigation preceded

the development of this list of sources. Defense counsel, for example,

has argued that they should be able to interview firsthand witnesses. The

government in turn has argued that in most instances to allow defense

counsel to interview firsthand witnesses who were there at the time

would violate national security.

The open sources for information regarding the RDI program mentioned

in the quoted material consist of some reports resulting from some offi-

cial investigations of the interrogation conduct at the black sites. For

example, a 500+ page Executive Summary of the Report of the Senate

Select Committee on Intelligence Study into the Central Intelligence

Agency’s former rendition, detention and interrogation program was re-

leased publicly. The underlying Final Full Report, more than 6000 pages

long, was not released, however. The ACLU sought the underlying Re-

port in a Freedom of Information request. In a followup lawsuit, the DC

Circuit affirmed the district court’s dismissal of the suit on the ground

that the Final Full Report was and remained a congressional document

and therefor was exempt from disclosure under the FOIA. ACLU v.

CIA, 823 F.3d 655 (D.C. Cir. 2016). In the same lawsuit, the plaintiffs

sought the “Panetta Review,” a separate, internal CIA study commis-

sioned by the-then CIA director. The district court granted summary

judgment in favor of the government under the FOIA’s deliberative pro-

cess privilege. ACLU v. CIA, 105 F.Supp 3d 35 (D.D.C. 2015).There is

also available the CIA’s rebuttal to the Senate Committee Report, See


https://www.cia.gov/library/reports/CIAs_June2013_Re-

sponse_to_the_SSCI_Study_on_the_Former_Detention_and_Interro-

gation_Program.pdf and a CIA Inspector General’s report on this sub-

ject is available, though heavily redacted. See CIA Inspector General,

Special Review, Counter-terrorism Detention and Interrogation Activi-

ties (September, 2001-October, 2003). graphics8.nytimes.com/pack-

ages/pdf/politics/20090825-DETAIN/2004CIAIG.pdf. Defense coun-

sel in the KS Mohammad cases has sought unredacted materials as well

as underlying documents. See the transcript of one of the hearings con-

sidering such issues on April, 29, 2019. https://www.mc.mil/Por-

tals/0/pdfs/KSM2/KSM%20II%20(TRANSApr292019-

MERGED).pdf

https://www.cia.gov/library/reports/CIAs_June2013_Response_to_the_SSCI_Study_on_the_Former_Detention_and_Interrogation_Program.pdf



CHAPTER 12

TARGETED KILLING

4. On January 3, 2020, a targeted U.S. drone strike killed Maj. Gen.

Qassem Soleimani, a high military and important figure in the Iranian gov-

ernment, while he was riding in a two-car convoy near Baghdad Interna-

tional Airport shortly after landing in Iraq. Soleimani was the leader of

Iran's Revolutionary Guard's elite Quds Force. The U.S. is not formally at

war with Iran, although U.S. troops have been engaged in hostilities in Iraq,

and the U.S. has accused militias linked to Iran with killing hundreds of

U.S. soldiers.

The United States offered shifting rationales for the targeted killing. In-

itially it was asserted that it was done to avert "an imminent attack" on

Americans. It was also claimed that Soleimani was actively developing

plans to attack American diplomats and service members in Iraq and

throughout the region. No evidence or details regarding the imminent attack

or the plans to attack were made public, however. The targeted killing was

also characterized as punishment for past attacks against U.S. troops by Iran

or Iran's surrogates, for which Soleimani was alleged to have been respon-

sible. Not long after, President Trump was quoted as saying that Soleimani

"should have been taken out a long time ago. And we had a shot at it, and

we took him out."

In some of the debates about the legality and political fallout from the

killing, the issue was framed in terms of whether it was an unlawful assas-

sination or a justified killing.

Note several elements in the Soleimani targeted killing that are different

from the Awlaki killing and other drone strikes against al Qaeda or ISIS

leading figures. Soleimani was a military officer and an official of a gov-

ernment with which we are not at war. He was not a non-state actor who

was alleged to be actively engaged in terrorist acts (though if the facts al-

leged against Soleimani could be proved, the only difference might be that

he was a governmental official). In the cases of extrajudicial targeted kill-

ings of individuals associated with al Qaeda, the ability to capture and bring

to justice the target was, as a general proposition, not available or only could

be accomplished with unacceptable risks. In the case of Soleimani, while he

was not readily accessible, his movements were relatively easy to track. He

was not in hiding in some remote and inaccessible area.

Page 1013. Add as new note 4 and renumber existing notes 4 and 5 ac-

cordingly.


Apart from the legal issues, the attack was criticized in political terms,

for example, on the ground that it would lead to serious attacks in retaliation

by Iran. In the aftermath of the attack, because of concerns about possible

retaliation by Iran, there were movements of U.S. troops in the Middle East.

In early January, 2020, Iran launched more than a dozen missiles at an Iraqi

air base where U.S. forces were located, in apparent retaliation. Initially

there were reports of no casualties. See Courtney Kube and Doha Madany,

Iran Attacks Two Iraqi Military Bases Where U.S. Forces Are Based, Jan-

uary, 2020.

https://www.nbcnews.com/news/world/u-s-base-iraq-comes-under-attack-

missiles-iran-claims-n1112171. In September, 2020, there were further re-

ports of threats to retaliate against all those who were involved in the killing

of General Soleimani. See Bradford Betz, Iran's Revolutionary Guard

Threatens Retaliation for All Involved in Killing of Soleimani, September

20, 2020, //www.foxnews.com/world/irans-revolutionary-guard-threatens-

retaliation-for-all-involved-in-killing-of-soleimani

The targeted killing of General Soleimani within a short period generated

much discussion in the press and other media. Some examples include: Ag-

nes Callamard, The Targeted Killing of General Soleimani: Its Lawfulness

and Why It Matters, Just Security, January 8, 2020,

https://www.justsecurity.org/67949/the-targeted-killing-of-general-so-

leimani-its-lawfulness-and-why-it-matters/

Siobhan O'Grady, Why Soleimani's Killing Is Different from Other Tar-

geted Attacks by U.S., January 3, 2020, Washington Post,

https://www.washingtonpost.com/world/2020/01/04/why-soleimanis-kill-

ing-is-different-other-targeted-attacks-by-us/

Ophir Falk, The Significance of Targeting Soleimani, American Diplo-

macy, May, 2020, http://americandiplomacy.web.unc.edu/2020/05/the-sig-

nificance-of-targeting-soleimani/

Page 1032. Add the following at the bottom of the page.

Ali Jaber v. United States

861 F. 3d 241 (D.C. Cir. 2017)

[A separate concurring opinion was also filed by Circuit Judge Brown

and is reproduced following her opinion for the panel.]

BROWN, Circuit Judge:

Following the terrorist attacks of September 11, 2001, Congress author-

ized the President “to use all necessary and appropriate force” against al-

https://www.nbcnews.com/news/world/u-s-base-iraq-comes-under-attack-missiles-iran-claims-n1112171

https://www.nbcnews.com/news/world/u-s-base-iraq-comes-under-attack-missiles-iran-claims-n1112171

https://www.justsecurity.org/67949/the-targeted-killing-of-general-soleimani-its-lawfulness-and-why-it-matters/

https://www.justsecurity.org/67949/the-targeted-killing-of-general-soleimani-its-lawfulness-and-why-it-matters/

https://www.washingtonpost.com/world/2020/01/04/why-soleimanis-killing-is-different-other-targeted-attacks-by-us/

https://www.washingtonpost.com/world/2020/01/04/why-soleimanis-killing-is-different-other-targeted-attacks-by-us/

Qaeda, the Taliban, and associated forces. See Authorization for Use of Mil-

itary Force, Pub. L. No. 107–40 § 2(a), 115 Stat. 224 (2001). Since then, the

Executive has increasingly relied upon unmanned aerial vehicles, or

“drones,” to target and kill enemies in the War on Terror. This case concerns

an alleged drone misfire—a bombing that resulted in unnecessary loss of

civilian life.

Plaintiffs Ahmed Salem bin Ali Jaber (“Ahmed”) and Esam Abdullah

Abdulmahmoud bin Ali Jaber (“Esam”), through their next friend Faisal bin

Ali Jaber (“Faisal”), seek a declaratory judgment stating their family mem-

bers were killed in the course of a U.S. drone attack in violation of interna-

tional law governing the use of force, the Torture Victim Protection Act

(“TVPA”), and the Alien Tort Statute (“ATS”). The district court dismissed

their claims primarily on political question grounds, and Plaintiffs appeal.

At this stage of proceedings, we must accept all factual allegations asserted

in the Complaint as true.

I.

In late-August 2012, the bin Ali Jaber family gathered in Khashamir,

Yemen for a week-long wedding celebration. On August 24th, Ahmed Sa-

lem bin Ali Jaber (“Salem”), an imam in the port town of Mukalla, was

asked to give a guest sermon at a local Khashamir mosque. His sermon, a

direct “challenge[ to] al Qaeda to justify its attacks on civilians,” JA 19,

apparently did not go overlooked by local extremists. On August 29th, three

young men arrived at Salem’s father’s house and asked to speak with Salem.

The men first arrived in the “early afternoon,” but Salem’s father told

them Salem was “visiting neighboring villages.” JA 20. The three men left

and returned around 5:00pm that same day, when Salem’s father 85 in-

formed them they might find Salem “at the mosque after evening prayers.”

JA 21. The men again departed before reappearing at the mosque around

8:30pm. Fearful of the men, Salem asked Waleed bin Ali Jaber (“Waleed”),

one of the town’s two policemen, to accompany him to meet them. Accord-

ing to the Complaint, “Two of the men sat down with Salem under a palm

tree near their parked car, while the third [man] remained a short distance

away, watching the meeting.” JA 21.

Shortly thereafter, members of the bin Ali Jaber family “heard the buzz-

ing of the drone, and then heard and saw the orange and yellow flash of a

tremendous explosion.” Ibid. According to witnesses, “the first two strikes

directly hit Salem, Waleed[,] and two of the three strangers. The third mis-

sile seemed to have been aimed at where the third visitor was located.... The

fourth strike hit the [men’s] car.” JA 21–22. Plaintiffs now contend a U.S.-

operated drone deployed the four Hellfire missiles that killed the five men.


Plaintiffs allege the three visiting men—and not Salem or Waleed—

were the intended targets of the attack, and those men were not “high-level,

high-value targets to the United States.” JA 10. The Complaint further states

the men had driven “for a significant distance outside populated areas in

order to reach Khashamir,” and “loitered alone for a significant period be-

fore meeting with Salem and Waleed.” Ibid. Plaintiffs, therefore, conclude,

The three young men seeking Salem could have been interdicted

earlier in the day at manned checkpoints close to the village along

both roads in and out of Khashamir. If [a] more robust detaining

force was called for, an allied [i.e., Yemeni] military base was only

2.5–3 kilometers away from where the missiles hit.

JA 39 (second alteration in original).

That evening, a “Yemeni official” spoke by telephone with several

members of the bin Ali Jaber family, including Faisal, to “convey[ ] per-

sonal condolences for the wrongful deaths of Salem and Waleed, but [he]

offered no official acknowledgement of or redress for the strike.” JA 11. In

response to Faisal’s repeated attempts to lobby officials first in Yemen and

later in the U.S., the “Yemeni government ordered the families receive the

equivalent of around $55,000 US in Yemeni currency,” which it described

as a “condolence” payment. JA 30–31. Later, a member of Yemen’s Na-

tional Security Bureau offered a family member $100,000 in U.S. dollars;

he originally stated the money was from the U.S. government but later re-

canted once Faisal asked for the statement in writing. After trying in vain to

receive official recognition for the attack from elected officials, Plaintiffs

now turn to the courts.

Plaintiffs allege Salem and Waleed were collateral damage in a “signa-

ture strike,” an attack where the U.S. targets an unidentified person (here,

the three men) based on a pattern of suspicious behavior as identified

through metadata. Plaintiffs further claim “the drone operator(s) waited un-

til Salem and Waleed joined the three [men] to strike,” JA 40, in violation

of international law, since there was ample opportunity to strike when the

men were (1) alone in the Yemeni countryside where they could be targeted

without fear of civilian casualties or (2) in locations where Yemeni officials

could easily take them into custody.

Shortly after this lawsuit was filed, the government successfully moved

under the Westfall Act, 28 U.S.C. § 2679, to substitute the United States for

the named defendants as to all counts except those under the TVPA. There-

after, the government moved to dismiss this action for lack of subject matter

jurisdiction and failure to state a claim upon which relief may be granted.

The district court granted the motion on Federal Rule of Civil Procedure

12(b)(1) grounds. It held, while Faisal had “next friend” standing to bring

suit on Plaintiffs’ behalf, Plaintiffs’ claims were nonetheless barred on po-

litical question grounds. The district court further stated, “[P]laintiffs’

claims would [also] face insurmountable barriers on the merits” since “pre-

vious exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief” and the TVPA “does not authorize

suits against U.S. officials.” JA 62 n.6. Plaintiffs timely appealed.

II.

The “first and fundamental question” this Court is “bound to ask and

answer” is whether it has jurisdiction to decide this case. (1998). The polit-

ical question doctrine concerns the jurisdictional “ ‘case or controversy’ re-

quirement” of Article III of the Constitution, and the Court must address it

“before proceeding to the merits,”

“The nonjusticiability of a political question” as articulated by

the Supreme Court “is primarily a function of the separation of pow-

ers.” The doctrine “excludes from judicial review,” however sym-

pathetic the allegations, “those controversies which revolve around

policy choices and value determinations constitutionally committed

for resolution to the halls of Congress or the confines of the Execu-

tive Branch.” The framework laid out by the Supreme Court in

Baker v. Carr articulates the contours of the doctrine:

Prominent on the surface of any case held to involve a political question

is found [1] a textually demonstrable constitutional commitment of the issue

to a coordinate political department; or [2] a lack of judicially discoverable

and manageable standards for resolving it; or [3] the impossibility of decid-

ing without an initial policy determination of a kind clearly for nonjudicial

discretion; or [4] the impossibility of a court’s undertaking independent res-

olution without expressing lack of the respect due coordinate branches of

government; or [5] an unusual need for unquestioning adherence to a polit-

ical decision already made; or [6] the potentiality of embarrassment from

multifarious pronouncements by various departments on one question. Of

course, “[t]o find a [nonjusticiable] political question, we need only con-

clude that one factor is present, not all,” nonetheless, “[u]nless one of these

formulations is inextricable from the case at bar,” we may not dismiss the

claims as nonjusticiable, We must conduct “a discriminating analysis of the

particular question posed” in the “specific case” before the Court to deter-

mine whether the political question doctrine prevents a plaintiff’s claims

from proceeding to the merits.

A.

Plaintiffs seek a declaration stating the drone strike that killed their rel-

atives violated domestic and international law, an issue they claim courts

are constitutionally required to decide. The government responds with this


Court’s en banc decision in El–Shifa Pharmaceutical Industries Co. v.

United States, 607 F.3d 836 (D.C. Cir. 2010). There, this Court held “[t]he

political question doctrine bars our review of claims that, regardless of how

they are styled, call into question the prudence of the political branches in

matters of foreign policy or national security constitutionally committed to

their discretion.” Id. at 842. Here, El–Shifa controls; even “a statute provid-

ing for judicial review does not override Article III’s requirement that fed-

eral courts refrain from deciding political questions.” Id. at 843.

In El–Shifa, the Court addressed a U.S. retaliatory strike against “a fac-

tory in Sudan believed to be associated with the bin Ladin [terrorist] net-

work and involved in the production of materials for chemical weapons.”

Id. at 838. The owners of the El–Shifa factory sued, alleging they were pro-

ducing medicine for the Sudanese people, not chemical weapons, and argu-

ing the strike was a mistake. They sought compensation for the destruction

of their plant under the Federal Tort Claims Act (“FTCA”) and the law of

nations; they further asserted a cause of action in defamation based on U.S.

government statements asserting the El–Shifa plant had ties to bin Ladin

and functioned as part of his terror network. Id. at 839–40.

Following a panel decision affirming the district court on political ques-

tion grounds, this Circuit voted to rehear the case en banc. Id. at 840. The

full Court adopted a functional approach to the political question doctrine,

distinguishing between nonjusticiable “claims requiring [courts] to decide

whether taking military action was wise—a policy choice and value deter-

mination constitutionally committed for resolution to the halls of Congress

or the confines of the Executive Branch”—and fully justiciable “claims pre-

senting purely legal issues such as whether the government had legal au-

thority to act.” Id. at 842. Since the allegations in El–Shifa, set forth as

purely statutory claims, ultimately required the Court “to decide whether

the United States’ attack on the plant was mistaken and not justified” and

“to determine the factual validity of the government’s stated reasons for the

strike,” the Court held the case presented a nonjusticiable political question.

Id. at 844. “If the political question doctrine means anything in the arena of

national security and foreign relations, it means the courts cannot assess the

merits of the President’s decision to launch an attack on a foreign target,

and the plaintiffs ask us to do just that.” Id.; see also Bancoult, 445 F.3d at

437 (“The courts may not bind the executive’s hands on [political ques-

tions], whether directly—by restricting what may be done—or indirectly—

by restricting how the executive may do it.”).

It would be difficult to imagine precedent more directly adverse to

Plaintiffs’ position. While Plaintiffs clearly assert claims under the TVPA

and ATS, the precise grounds they raise in their Complaint call for a court

to pass judgment on the wisdom of Executive’s decision to commence mil-

itary action—mistaken or not—against a foreign target. For example, the

Complaint alleges:

• “[n]o urgent military purpose or other emergency justi-

fied” the drone strike, JA 10;

• killing the alleged targets was not “strictly unavoidable”

to defend against an “imminent threat of death” to the

“United States or its allies,” JA 36–37; and

• the risk to nearby civilians was excessive in comparison

to the military objective since “there [was] no evidence”

the three men were “legitimate military targets,” and

“there were no U.S. or Yemeni forces or military objec-

tives in the vicinity that were in need of protection

against three young Yemeni men,” JA 38.

To resolve Plaintiffs’ claims, a reviewing court must determine whether

the U.S. drone strike in Khashamir was “mistaken and not justified.” El–

Shifa, 607 F.3d at 844. As El–Shifa warns, these questions are the province

of the political branches, regardless of the statutes under which Plaintiffs

may seek to sue. … Plaintiffs will no doubt find this result unjust, but it

stems from constitutional and pragmatic constraints on the Judiciary. In

matters of political and military strategy, courts lack the competence neces-

sary to determine whether the use of force was justified.

The complex[,] subtle, and professional decisions as to the ... control of

a military force are essentially professional military judgments, subject al-

ways to civilian control of the Legislative and Executive Branches. The ul-

timate responsibility for these decisions is appropriately vested in branches

of the government which are periodically subject to electoral accountability.

Put simply, it is not the role of the Judiciary to second-guess the deter-

mination of the Executive, in coordination with the Legislature, that the in-

terests of the U.S. call for a particular military action in the ongoing War on

Terror. To be sure, courts have reviewed claims brought by individuals in-

carcerated at Guantanamo Bay on charges of terrorism and other war

crimes. See Pls. Br. 25; see also, e.g., Al Bahlul v. United States, 840 F.3d

757 (D.C. Cir. 2016) (en banc). But while “the political question doctrine

does not preclude judicial review of prolonged Executive detention predi-

cated on an enemy combatant determination,” that is “because the Consti-

tution specifically contemplates a judicial role in this area.” El–Shifa, 607

F.3d at 848. There is, in contrast, “no comparable constitutional commit-

ment to the courts for review of a military decision to launch a missile at a

foreign target.” Id. at 849.1


…

C.

Plaintiffs note the Executive has made a number of public statements

and issued several memoranda setting forth its legal analysis justifying

drone strikes and, presumably, defining the outer limits of when those

strikes are appropriate. See Procedures for Approving Direct Action

Against Terrorist Targets Located Outside the United States & Areas of Ac-

tive Hostilities 1 (May 22, 2013), available at https://www.aclu.org/sites/de-

fault/files/field_document/presidential_policy_guidance.pdf (unattributed

internal policy memo detailing the Executive’s internal rules regulating

drone strikes outside of active war zones); see also U.S. Dep’t of Justice,

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a

Senior Operational Leader of Al–Qa’ida or an Associated Force (Draft Nov.

8, 2011), available at https://www.documentcloud.org/documents/602342–

draft–white–paper.html (articulating a “legal framework” for drone strike

attacks); U.S. Dep’t of Justice, Legality of a Lethal Operation by the Central

Intelligence Agency Against a U.S. Citizen (May 25, 2011), available at

https://www.scribd.com/document/239101821/Redacted–White–Pa-

per#fullscreen&from_embed (offering a legal basis for drone strikes con-

ducted by the CIA). These Executive statements, however, do not constitute

an invitation to the Judiciary to intrude upon the traditional executive role.

(“[C]ourts lack jurisdiction over political decisions that are by their na-

ture committed to the political branches to the exclusion of the judiciary.”).

The George W. Bush and Barack Obama Administrations may have laid

out the legal rules they understood to govern their conduct, but they did not

concede authority to the Judiciary to enforce those rules. Nor could they.

While an Executive may self-regulate during his term in office, it is the

courts, and not executive branch attorneys, that possess the power to “say

what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed.

60 (1803). And it is the Executive, and not a panel of the D.C. Circuit, who

commands our armed forces and determines our nation’s foreign policy. As

explained at length above, courts are not constitutionally permitted to en-

croach upon Executive powers, even when doing so may be logistically, if

not constitutionally, manageable.

For example, when reviewing the Secretary of State’s designation of a

group as a “foreign terrorist organization” under the Antiterrorism and Ef-

fective Death Penalty Act, the D.C. Circuit held it may constitutionally de-

cide whether the government has followed the proper procedures, whether

the organization is foreign, and whether it has engaged in terrorist activity,

but not whether “the terrorist activity of the organization threatens the se-

curity of United States nationals or the national security of the United

States.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of State (PMOI ),

182 F.3d 17, 21–24 (D.C. Cir. 1999) (quoting 8 U.S.C. § 1189(a)(1)(C)).

The Court held the last criterion—however straightforwardly articulated—

presented a nonjusticiable political question because the Secretary’s deter-

mination of whether the terrorist activities at issue constituted threats to the

U.S. “are political judgments, ‘decisions of a kind for which the Judiciary

has neither appetite, facilities nor responsibility and have long been held to

belong in the domain of political power not subject to judicial intrusion or

inquiry.’).

III.

In short, El–Shifa controls the Court’s analysis here and compels dis-

missal of Plaintiffs’ claims. To borrow a closing line, “Under the political

question doctrine, the foreign target of a military strike cannot challenge in

court the wisdom of [that] military action taken by the United States. De-

spite their efforts to characterize the case differently, that is just what the

[P]laintiffs have asked us to do. The district court’s dismissal of their claims

is [a]ffirmed.” El–Shifa, 607 F.3d at 851.

So ordered.

BROWN, Circuit Judge, concurring:

Theory holds that courts must apply the political question doctrine to

circumstances where decision-making, and the constitutional interpretation

necessary to that process, properly resides in the political branches of gov-

ernment. But theory often does not correspond with reality. The world today

looks a lot different than it did when the Supreme Court decided Baker v.

Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Our latest phase in

the evolution of asymmetric warfare continues to present conundrums that

seem to defy solution. Today, the Global War on Terror has entered a new

chapter—in part because of the availability of “sophisticated precision-

strike technologies” like drones. Philip Alston, The CIA & Targeted Kill-

ings Beyond Borders, 2 Harv. Nat’l Sec. J. 283, 441 (2011). Yet the political

question doctrine insures that effective supervision of this wondrous new

warfare will not be provided by U.S. courts.

In other liberal democracies, courts play (or seem to play) a significant

supervisory role in policing exercises of executive power. See Kristen E.

Eichensehr, Comment, On Target? The Israeli Supreme Court & the Expan-

sion of Targeted Killings, 116 Yale L.J. 1873, 1873 (2007) (noting the Is-

raeli Supreme Court had authored the “world’s first judicial decision on tar-

geted killings,” holding “terrorists are civilians under the law of armed con-

flict and thus are lawfully subject to attack only when they directly partici-

pate in hostilities”). In this country, however, strict standing requirements,

the political question doctrine, and the state secrets privilege confer such


deference to the Executive in the foreign relations arena that the Judiciary

has no part to play. These doctrines may be deeply flawed. In fact, I suspect

that technology has rendered them largely obsolete, but the Judiciary is

simply not equipped to respond nimbly to a reality that is changing daily if

not hourly.

I.

In November 2001, the United States launched its first armed drone

strike in Afghanistan, targeting Mullah Akhund, the Taliban’s number three

in command; the attack missed him but killed several others. Michael C.

Horowitz et al., Separating Fact from Fiction in the Debate Over Drone Pro-

liferation, 41 Int’l Security 7, 7 (2016). The following year, the United

States conducted a drone strike in Yemen targeting Qa’id Salim Sinan al

Harithi, an al-Qaeda operative suspected of plotting the attack against the

U.S.S. Cole in 2000. Id. Thereafter, the strikes grew both in number and

geographic scope, “extending to Pakistan in 2004 and Somalia in 2007,” for

a total of approximately 50 counterterrorism strikes during the Bush Ad-

ministration. Id. In July 2016, the Obama Administration reported 473

counterterrorism strikes against terrorist targets outside areas of active hos-

tilities—largely consisting of missiles launched from drones—had killed

between 2,372 and 2,581 members of terrorist groups as well as 64 to 116

non-combatants. Office of the Dir. of Nat’l Intelligence, Summary of Infor-

mation Regarding U.S. Counterterrorism Strikes Outside Areas of Active

Hostilities 1 (July 1, 2016), available at https://www.dni.gov/files/docu-

ments/Newsroom/Press% 20Releases/DNI+Release+on+CT+Strikes+Out-

side+Areas+of+Active+Hostilities.PDF (reporting figures for the period

beginning January 20, 2009 and ending December 31, 2015). Even the gov-

ernment acknowledges the “inherent limitations” in its ability to calculate

the precise effect of these strikes, and it admits the number of non-combat-

ant deaths could be closer to 900. Id. at 2. Non-governmental sources offer

substantially higher estimates. See Br. for Brandon Bryant, et al. as Amici

Curiae Supporting Appellants 7 (“Serving in the Air Force, amici witnessed

widespread and deliberate misclassification of deaths as ‘enemy kills.’ In

situations where targets were unknown, they were often classified as ‘en-

emy kills.’ “); Daniel Byman, Why Drones Work: The Case for Washing-

ton’s Weapon of Choice, 92 Foreign Affairs 32, 35–36 (2013) (citing stud-

ies).

More recently, the drone program—run jointly by the Central Intelli-

gence Agency (“CIA”) and the Joint Special Operations Command

(“JSOC”) at the Department of Defense—has expanded to include “signa-

ture strikes,” such as the one that allegedly killed Salem and Waleed, where

the government targets anonymous suspected militants solely based on their

observed pattern of behavior. Id. at 36. This practice does not confine tar-

gets to high-level al-Qaeda operatives, and the targets of the strikes are often

unknown to U.S. intelligence. Rather, signature strikes target unidentified

individuals based on where they live, who they associate with, and whether

they engage in behavior commonly associated with militants. Indeed, even

after a signature strike is complete, the government still does not know “the

precise identities of who [was] killed.” Dan de Luce & Paul McLeary,

Obama’s Most Dangerous Drone Tactic Is Here To Stay, Foreign Pol’y

(Apr. 5, 2016), http://foreignpolicy.com/2016/04/05/obamas–most–danger-

ous–drone–tactic–is–here–to–stay/.

Drones are an unquestionably effective way to wage war against geo-

graphically-isolated targets. In addition to providing unparalleled levels of

surveillance, they have killed many al-Qaeda leaders, denied sanctuary to

terrorist groups, and encumbered communication among those seeking to

plot attacks. All this at low financial cost, zero risk of harm to U.S. forces,

and “fewer civilian casualties than many alternative methods.” Byman, su-

pra, at 32.1 On a more sinister note, lethal drone strikes avoid the complex-

ities of dealing with live terrorist prisoners—judicial review alone requires

a costly trial, complete with due process protections, followed by prospects

for protracted appeal and habeas attempts. See id. at 34 (“It has become

more politically palatable for the United States to kill rather than detain sus-

pected terrorists.”). One commentator went so far as to say the Executive

has “adopted a de facto ‘kill not capture’ policy” when confronting the ter-

rorist threat. David Rohde, The Obama Doctrine, 192 Foreign Pol’y 64, 68

(2012). One thing is clear: the current generation of drone technology pre-

sents political and operational advantages that, all else equal, encourages

the use of military force. Horowitz, supra, at 22.

II.

El–Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836

(D.C. Cir. 2010) (en banc), sensibly holds that a court should not second-

guess an Executive’s decision about the appropriate military response—

avoiding the need for boots on the ground, for example—to address a sin-

gular threat that might occur once or twice at widely separated intervals. Its

doctrine, however, seems a wholly inadequate response to an executive de-

cision—deployed through the CIA/JSOC targeted killing program—imple-

menting a standard operating procedure that will be replicated hundreds if

not thousands of times.

Addressing these two markedly different scenarios through a shared le-

gal framework is simply impossible, and yet it is precisely what our prece-

dent demands. To the extent the military sees itself as merely continuing the

war declared on the U.S. by other means, the drone program may take the

war to the enemy. Thus, anyone who credibly represents a threat can be


targeted, and, as when armies actually clash, a certain amount of collateral

damage is inevitable. On the other hand, CIA/JSOC signature strike activi-

ties are covert (at least until the missile finds its target) and intended to de-

velop intelligence that allows the U.S. to anticipate threats to interests at

home and abroad. The rules of that game are tacitly assumed to be unknown.

Courts are ill-equipped “to assess the nature of battlefield decisions” or “to

define the standard for the government’s use of covert operations in con-

junction with political turmoil in another country.” Al–Aulaqi v. Obama,

727 F.Supp.2d 1, 45 (D.D.C. 2010).

Of course, this begs the question: if judges will not check this outsized

power, then who will? No high-minded appeal to departmentalism, arguing

“each [branch] must in the exercise of its functions be guided by the text of

the Constitution according to [that branch’s] own interpretation of it,” E.

Burns, James Madison: Philosopher of the Constitution 187 (reprinted

1968), changes the fact that every other branch of government seems to be

passing the buck. The President is the most equipped to police his own

house. See generally Akhil Reed Amar, American’s Constitution: A Biog-

raphy 60–63 (2005) (discussing the President’s independent obligation to

ensure his actions comply with the Constitution). But, despite an impressive

number of executive oversight bodies, there is pitifully little oversight

within the Executive. Presidents are slow to appoint members to these

boards; their operations are shrouded in secrecy; and it often seems the

boards are more interested in protecting and excusing the actions of agen-

cies than holding them accountable. Congress, perhaps? See generally

Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV.

905, 912 (1990) (“If Congress enacts a War Powers Act and the President

goes his merry way in reliance on a more expansive view of executive

power (and a stingy view of legislative power), Congress need not give

up.”). But congressional oversight is a joke—and a bad one at that. Anyone

who has watched the zeal with which politicians of one party go after the

lawyers and advisors of the opposite party following a change of admin-

istration can understand why neither the military nor the intelligence agen-

cies puts any trust in congressional oversight committees. They are too big.

They complain bitterly that briefings are not sufficiently in-depth to aid

them in making good decisions, but when they receive detailed information,

they all too often leak like a sieve.

Our democracy is broken. We must, however, hope that it is not incur-

ably so. This nation’s reputation for open and measured action is our na-

tional birthright; it is a history that ensures our credibility in the interna-

tional community. The spread of drones cannot be stopped, but the U.S. can

still influence how they are used in the global community—including,

someday, seeking recourse should our enemies turn these powerful weapons

180 degrees to target our homeland. The Executive and Congress must es-

tablish a clear policy for drone strikes and precise avenues for accountabil-

ity.

Civilizational peril comes in many forms—sometimes malevolent phi-

losophies, sometimes hostis humanis generis (pirates, slavers, and now ter-

rorists), and in each epoch we must decide, like Thomas More in Robert

Bolt’s A Man for All Seasons, what must be preserved:

ROPER: So now you’d give the Devil benefit of law!

MORE: Yes! What would you do? Cut a great road through the law

to get after the Devil?

ROPER: I’d cut down every law in England to do that!

MORE: Oh? And when the last law was down, and the Devil turned

round on you—where would you hide, Roper, the laws all being flat?

This country’s planted thick with laws from coast to coast—man’s

laws, not God’s—and if you cut them down—and you’re just the man

to do it—d’you really think you could stand upright in the winds that

would blow then? Yes, I’d give the Devil benefit of law, for my own

safety’s sake.

Robert Bolt, A Man for All Seasons 37–38 (1960). The Court’s opinion

has not hacked down any laws, though we concede the spindly forest en-

compassing the political question doctrine provides poor shelter in this gale.

But it is all a Judiciary bound by precedent and constitutional constraints

may permissibly claim. It is up to others to take it from here. https://har-

vardlawreview.org/2018/03/bin-ali-jaber-v-united-states/

NOTE

See Elad D. Gil, INSTITUTIONAL CHOICE AND TARGETED KILL-

ING: A COMPARATIVE PERSPECTIVE, 94 Tul. L. Rev. 711 (2020);

Stephen R. Harris, CONSTITUTIONAL LAW-AMERICA'S DRONE

WAR ABROAD-JABER v. UNITED STATES, 861 F.3d 241 (D.C. Cir.

2017) 25 Suffolk J. Trial & App. Advoc. 191 (2020); Bin Ali Jaber v.

United States, D.C. Circuit Holds Statutory Challenge to Drone Strike Is

Nonjusticiable, Recent Case, 131 Harv. L. Rev. 1473 (2018).

https://harvardlawreview.org/2018/03/bin-ali-jaber-v-united-states/

https://harvardlawreview.org/2018/03/bin-ali-jaber-v-united-states/

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