September 11^th, 2001 and the Courts

Major Criminal Cases Relating to September 11th

1) United States v. John Walker Lindh

The so-called “American Taliban,” Walker Lindh was detained in Afghanistan before being transferred back to the U.S., where he was indicted on 10 counts in February 2002 in the United States District Court for the Eastern District of Virginia. He pled guilty on July 15 to two charges – count nine of the initial indictment, supplying services to the Taliban in violation of 50 U.S.C. § 1705(b), and a previously-unindicted charge of carrying explosives in the commission of a felony, in violation of 18 U.S.C. § 844(h)(2). Lindh will be sentenced on October 4, and faces a statutory maximum of 20 years in prison.

See http://notablecases.vaed.uscourts.gov/1:02-cr-00037/DocketSheet.html.

2) United States v. Zacarias Moussaoui

Originally detained in Minnesota for immigration violations in August of 2001, Moussaoui, believed to be the “twentieth hijacker,” was transferred to the United States District Court for the Eastern District of Virginia where he is currently awaiting trial on six different charges – conspiracy to commit acts of terrorism transcending national boundaries (in violation of 18 U.S.C. § 2332b(a)(2) and (c)), conspiracy to commit aircraft piracy (in violation of 49 U.S.C. §§ 46502(a)(1)(A) and (a)(2)(b)), conspiracy to destroy aircraft (in violation of 18 U.S.C. §§ 32(a)(7) and 34), conspiracy to use weapons of mass destruction (in violation of 18 U.S.C. § 2332a(a)), conspiracy to commit murder (in violation of 18 U.S.C. §§ 1114 and 1117), and conspiracy to destroy property (in violation of 18 U.S.C. §§ 844(f), (i), and (n)). Moussaoui has filed nearly 100 pre-trial motions, and the trial itself is set to get underway January 6, 2003. If convicted on some or all of the charges, Moussaoui faces the death penalty.

See http://notablecases.vaed.uscourts.gov/1:01-cr-00455/DocketSheet.html.

3) United States v. Richard Reid

Richard Reid, also known as the “shoe bomber,” was arrested at Logan International Airport on December 22, 2001, after attempting to ignite bombs hidden in his shoes during a transatlantic flight from London to Miami. Reid was indicted on nine counts, though one of the counts – attempted wrecking of a mass transportation vehicle under the USA PATRIOT Act – was subsequently dismissed on June 11 by Chief Judge William G. Young (the presiding judge in the case). Reid’s trial is set to begin on November 4, and he potentially faces the death penalty if convicted on some or all of the eight remaining counts.

See http://news.findlaw.com/legalnews/us/terrorism/cases/index2.html#reid.

Major Habeas Cases Relating to September 11th

1) Jose Padilla v. United States

Jose Padilla, also known as the “dirty bomber,” was detained by the FBI outside Chicago’s O’Hare International Airport on May 8, 2002 under a material witness warrant, and was subsequently transferred to the United States District Court for the Southern District of New York, where he appeared in court on May 15. An initial motion hearing was scheduled for Tuesday, June 11, but on the previous Sunday, June 9, President Bush declared Padilla to be an “enemy combatant,” and he was transferred to the Department of Defense, which subsequently incarcerated him at the Consolidated Naval Brig in Charleston, South Carolina. Currently, a petition for a writ of habeas corpus is pending before the Southern District of New York.

See http://news.findlaw.com/legalnews/us/terrorism/cases/index.html#padilla.

2) Hamdi v. Rumsfeld

Yaser Esam Hamdi was initially detained in Afghanistan in the fall of 2001, and was transferred to the detention facility at Camp X-Ray, at the U.S. Naval Base at Guantanamo Bay, Cuba, in early 2002. Shortly thereafter, the government ascertained that Hamdi was still a U.S. citizen, and transferred him stateside. President Bush declared Hamdi to be an “enemy combatant,” and he was subsequently detained in the Navy Brig at the Norfolk (Va.) Naval Station. Hamdi has filed a petition for a writ of habeas corpus, which is currently pending before United States District Court for the Eastern District of Virginia. In the interim, the Fourth Circuit, in an interlocutory appeal, dismissed the Eastern District’s decision granting Hamdi access to counsel.

See http://news.findlaw.com/legalnews/us/terrorism/cases/index.html#hamdi.

Major Civil Cases Relating to September 11th

See http://news.findlaw.com/hdocs/docs/terrorism/fisaapp091902amicus.pdf

2) Rasul, et al. v. Bush, et al. Odah, et al. v. United States, et al.

On February 19, 2002, the families of one Australian and two British security detainees at the United States Naval Base at Guantanamo Bay, Cuba, filed a petition for a writ of habeas corpus (Rasul case). On May 1, 2002, family members of twelve Kuwaiti security detainees, also at Guantanamo, filed petitions that (unlike the Rasul petitioners) did not directly seek release from confinement for the detainees, but rather sought access to the detainees by their families and their families' attorneys, as well as "access to the courts or some other impartial tribunal" for the detainees themselves (Odah case). The two cases were consolidated for jurisdictional purposes. On July 31, 2002, Judge colleen Kollar-Kotelly of the United States District Court for the District of Columbia dismissed the suit for lack of jurisdicitons, ruling that noncitizens held outside of sovereign U.S. territory may not use U.S. courts to pursue claims under the Constitution.

On December 2, 2002, the Circuit Court for the District of Columbia Circuit heard argument from the Government and attorneys representing the Rasul and Odah plaintiffs, most of whom maintain that their family members were either victims of bounty hunters or mistakenly identified to U.S. forces as combatants. While conceding that the U.S. Government was entitled to hold battlefield detainees in Guantanamo, the detainees’ lawyers insisted that there must be some kind of adjudicative proceeding, if not in a Federal Court, then at least in a “competent tribunal” as provided for in article 5 of the Third Geneva Convention. Decision may be expected within the next two months.

See http://news.findlaw.com/hdocs/docs/terrorism/rasulvbush073102dsm.pdf


3) ACLU of New Jersey v. County of Hudson

Under New Jersey’s “Right-to-Know Law,” the ACLU of New Jersey sued Hudson and Passaic counties seeking information on the identities and other personal details of a number of immigrant prisoners detained by the INS as part of the ongoing post-September 11th anti-terrorism investigations. The Superior Court of the State of New Jersey, Law Division, decided in favor of the ACLU, but the appellate division reversed, finding that the United States government had a clear and compelling interest in protecting the names and identities of those detained.

See 799 A.2d 629, 352 N.J. Super. 44 (N.J. Super. A.D. June 12, 2002).

4) North Jersey Media Group v. Ashcroft & Detroit Free Press v. Ashcroft

In the aftermath of the September 11th attacks, Michael Creppy, Chief Immigration Judge, issued a memo advising all immigration judges of new INS directives that they could close deportation proceedings to the public in any case involving “special” (terrorist-related) circumstances. In a pair of cases, this policy was challenged in the Eastern District of Michigan and in the District of New Jersey. Both times, federal judges ruled that such a regulation, though acceptable in specific cases, was too broad to be generally applied, and ordered the proceedings opened to the public. On appeal to the Sixth Circuit, the government's argument was again rebuffed, with a unanimous panel of three judges writing that "democracies die behind closed doors."

See North Jersey Media Group, 205 F. Supp. 2d 288 (D.N.J. May 28, 2002); Detroit Free Press, 195 F. Supp. 2d 937 (E.D. Mich. Apr. 3, 2002); Detroit Free Press v. Ashcroft, --- F.3d ----, 2002 WL 1972919 (6th Cir. 2002). http://laws.lp.findlaw.com/6th/02a0291p.html

5) In Re Awadallah & In Re Application of the United States for a Material Witness Warrant

Another new Justice Department directive in the aftermath of September 11th authorized the FBI to detain individuals with links to the ongoing anti-terrorism investigations as material witnesses, a practice that was called into question in In Re Awadallah, where a federal judge in Manhattan ruled that the material witness statute, 18 U.S.C. § 3144, did not authorize the detention of material witnesses in connection with ongoing grand jury investigations. Instead, such detentions can only occur at the pretrial phase and after. However, another judge in the same court, the U.S. District Court for the Southern District of New York, reached the opposite conclusion in a similar case a little over two months later. In In Re Application of the U.S., Michael Mukasey, Chief Judge of the Southern District, ruled that the detention of material witnesses during an ongoing grand jury investigation was authorized by the statute, and that such detention is not a Fourth Amendment violation. Given the split within the same District Court, it is likely that the Second Circuit will intervene.

See Application of the U.S., --- F. Supp. 2d ----, 2002 WL 1592739 (S.D.N.Y. July 11, 2002); Awadallah, 202 F. Supp. 2d 55 (S.D.N.Y. Apr. 30, 2002).

6) Coalition of Clergy v. Bush

Last, only a few cases have specifically dealt with the detention of non-U.S. citizens at Camp X-Ray and Camp Delta in Guantanamo Bay. The most prominent such case arose out of the U.S. District Court for the Central District of California, where a group including two journalists, ten lawyers, three rabbis, and a Christian pastor filed a petition for a writ of habeas corpus on behalf of the Guantanamo detainees. The district judge, in a major blow to subsequent such petitions, ruled that the petitioners lacked standing, that, even if they did not, the Central District lacked jurisdiction, and, that even if it did not, that the detainees had no right to the writ of habeas corpus. Thus, in a sweeping decision, the petition was dismissed.

See 189 F. Supp. 2d 1036 (C.D. Cal.).

7) CNSS v. DOJ

On August 2 Judge Gladys Kessler of the Federal District Court in Washington ordered the Justice Department to produce the names of all detainees and their lawyers within 15 days. On August 15th Judge Kessler issued a stay of her original order and said the names need not be disclosed before an appeals court ruled on the issue, which could take weeks or months.