Padilla v. Hanft - Opposition

No. 05-533

In the Supreme Court of the United States

JOSE PADILLA, PETITIONER

v.

C.T. HANFT, UNITED STATES NAVY COMMANDER,
CONSOLIDATED NAVAL BRIG

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
STEPHAN E. OESTREICHER, JR.
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the President had authority under the Consti tution and Congress's Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, enacted in the wake of the attacks of September 11, 2001, to order the military, pursuant to his now-superseded June 9, 2002, directive, to detain petitioner as an enemy combatant.

In the Supreme Court of the United States

No. 05-533

JOSE PADILLA, PETITIONER

v.

C.T. HANFT, UNITED STATES NAVY COMMANDER,
CONSOLIDATED NAVAL BRIG

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-23a) is reported at 423 F.3d 386. The opinion of the district court (Pet. App. 26a-54a) is reported at 389 F. Supp. 2d 678.

1. JURISDICTION

The judgment of the court of appeals was entered on Sep tember 9, 2005. The petition for a writ of certiorari was filed on October 25, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

2. STATEMENT

On June 9, 2002, the President ordered the Secretary of Defense to detain petitioner militarily, as an enemy combat ant, based on information that petitioner closely associated with al Qaeda, engaged in hostile and war-like acts, and pre sented a grave danger to the national security of the United States. C.A. App. 16. After the earlier round of litigation culminating in this Court's decision in Rumsfeld v. Padilla, 542 U.S. 426 (2004), petitioner filed a habeas petition in South Carolina seeking that he be released from military custody "or charged with a crime," C.A. App. 13, and arguing that the President lacked authority to detain him militarily, even as suming the validity of the government's allegations that peti tioner trained with and was closely associated with al Qaeda before and after September 11, 2001; engaged in armed con flict against the United States and allied forces in Afghani stan; and accepted a mission from al Qaeda to enter the United States and carry out attacks on our citizens within our borders, id. at 111-112. The district court granted summary judgment for petitioner and ordered that petitioner be re leased from custody or charged with a crime. The court of appeals reversed, concluding that, under Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the President was authorized to detain petitioner militarily as an enemy combatant.

At petitioner's request, the court of appeals issued its mandate so the case could return to the district court, where petitioner can contest the factual basis for his detention as an enemy combatant. Before the factual proceedings began, however, petitioner was indicted by a grand jury in the South ern District of Florida for a number of federal crimes-con- spiring to murder, maim, and kidnap individuals outside of the United States; conspiring to provide material support to ter rorists; and providing material support to terrorists, App., infra, 2a-22a-and the President determined that it is in the interest of the United States that petitioner be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him, App., infra, 1a. Accordingly, the President issued a Memorandum directing the Secretary of Defense, at the request of the Attorney General, to release petitioner from military custody and transfer him to the con trol of the Attorney General. That Memorandum expressly superseded the President's June 9, 2002, directive to the Sec retary of Defense to detain petitioner militarily as an enemy combatant, and specifically provided that, upon transfer of petitioner to the Attorney General, the authority of the Secre tary of Defense to detain petitioner pursuant to the Presi dent's June 9, 2002, order "shall cease." Ibid.

In light of the criminal charges now pending against peti tioner and the President's Memorandum superseding his June 9, 2002, directive and ordering that petitioner be released from military custody-the very relief that petitioner sought in this habeas action-petitioner's underlying habeas petition is now moot. Indeed, because the mandate has issued and parallel proceedings were underway in the lower courts, the court of appeals directed the parties to address whether it should recall the mandate in the case and vacate its opinion addressing the legality of petitioner's military detention. Padilla v. Hanft, No. 05-6396 (4th Cir. Nov. 30, 2005). The government submitted a supplemental brief arguing that re call and vacatur are warranted because petitioner's habeas action is moot.

The fact that the case is now moot itself calls for denial of certiorari. Indeed, that will be particularly clear if the court of appeals decides to vacate its opinion. But even if the case were not moot, certiorari would be unwarranted at this junc ture because the court of appeals' decision is interlocutory, consistent with this Court's decisions, and correct on the mer its. In any event, the intervening events have, at a minimum, seriously undercut any other basis for review in this case. For all of these reasons, the petition should be denied.

1. On September 11, 2001, the United States endured a foreign enemy attack more savage, deadly, and destructive than any sustained by the Nation on any one day in its his tory. That morning, agents of the al Qaeda terrorist network hijacked four commercial airliners and crashed three of them into targets in the Nation's financial center and seat of gov ernment. The fourth crashed in rural Pennsylvania due to the heroic efforts of the passengers. The attacks killed approxi mately 3000 persons, injured thousands more, destroyed bil lions of dollars in property, and exacted a heavy toll on the Nation's infrastructure and economy.

Congress and the President took immediate action to de fend the country and prevent additional attacks. Congress swiftly enacted its support of the President's use of "all neces sary and appropriate force against those nations, organiza tions, or persons he determines planned, authorized, commit ted, or aided the terrorist attacks that occurred on September 11, 2001 * * * in order to prevent any future acts of interna tional terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224; see Pet. App. 56a. The AUMF recognized the President's "au thority under the Constitution to take action to deter and prevent acts of international terrorism against the United States," and emphasized that it is "both necessary and appro priate that the United States exercise its rights to self-de fense and to protect United States citizens both at home and abroad." AUMF Pmbl.; see Pet. App. 55a-56a.

Soon after the AUMF's enactment, the President ex pressly confirmed that the September 11 attacks "created a state of armed conflict" with al Qaeda. Military Order of Nov. 13, 2001, 66 Fed. Reg. 57,833, § 1(a). He ordered the armed forces of the United States to subdue the al Qaeda network, as well as the Taliban regime in Afghanistan that supported it. In the course of those armed conflicts, the United States military, consistent with the Nation's settled practice in times of war, has seized and detained numerous persons who were fighting for and associated with the enemy.

The war against al Qaeda and its supporters continues, both in Afghanistan, where thousands of United States troops remain on the ground, and elsewhere. See, e.g., Global Intel ligence Challenges 2005: Meeting Long-Term Challenges with a Long-Term Strategy: Testimony Before the Senate Select Comm. on Intelligence (Feb. 16, 2005) (statement of Porter J. Goss) (testifying that al Qaeda remains "intent on finding ways to circumvent U.S. security enhancements to strike Americans and the [h]omeland," and that "[i]t may be only a matter of time before [al Qaeda] or another group attempts to use chemical, biological, radiological, and nuclear weapons"), available at <http://www.cia.gov/cia/public_affairs/ speeches/2004/Goss_testimony_02162005.html>. Indeed, 2005 has been the deadliest year in the war in Afghanistan for United States troops. See Bryan Bender, US Endures Dead liest Year In Afghanistan, Boston Globe, July 3, 2005, at A6.

2. Petitioner was one such person detained as an enemy combatant. In 2000, petitioner attended the al Qaeda-affili ated al-Farouq training camp just north of Kandahar, Afghan istan. C.A. App. 19 (Rapp Decl.). After successfully complet ing that training, petitioner spent three months just north of Kabul, Afghanistan, guarding what he understood to be a Taliban outpost while armed with a Kalashnikov assault rifle. Id. at 19-20; see Pet. App. 8a.

In early 2001, Mohammed Atef, a senior al Qaeda opera tive, asked petitioner to undertake a mission to blow up apart ment buildings in the United States. C.A. App. 19, 21. Peti tioner agreed and received further training from an al Qaeda explosives expert. Id. at 21; see Pet. App. 8a.

After the attacks of September 11th, when the United States commenced combat operations against the Taliban and al Qaeda, petitioner and other al Qaeda operatives moved from safehouse to safehouse in Afghanistan to avoid bombing or capture, and later began moving towards Afghanistan's mountainous border with Pakistan in order to evade United States forces and air strikes. C.A. App. 20-21. Armed with an assault rifle, petitioner took cover with other operatives in a network of caves and bunkers near Khowst, Afghanistan, and was eventually escorted into Pakistan by Taliban personnel. Ibid.; see Pet. App. 8a.

Soon after entering Pakistan, petitioner met with senior Osama bin Laden lieutenant Abu Zubaydah to discuss the possibility of conducting terrorist operations in the United States. C.A. App. 21. Zubaydah sent petitioner to Karachi, Pakistan, to meet with Khalid Sheikh Mohammad (KSM), al Qaeda's operations leader. Id. at 22. KSM suggested that petitioner revive the plan to detonate apartment buildings, as petitioner had initially discussed with Atef. Ibid. Petitioner accepted the assignment, and KSM gave him full authority to conduct the operation. Ibid. Before departing for the United States, petitioner received training from Ramzi Bin al-Shibh, a senior al Qaeda operative, on the secure use of telephones and e-mail protocols. Ibid. Al Qaeda operatives also gave petitioner $15,000, travel documents, a cell phone, and an e- mail address to notify an al Qaeda facilitator, Ammar al- Baluchi, upon petitioner's arrival in the United States. Ibid.; see Pet. App. 8a-9a.

On May 8, 2002, petitioner flew from Zurich, Switzerland, to Chicago's O'Hare International Airport, where he was de tained and arrested in the customs inspection area pursuant to a material witness warrant. C.A. App. 92-94; see Pet. App. 9a. Petitioner had been monitored by FBI agents in the Zurich airport and on the plane. Petitioner was carrying $10,526 in currency, the cell phone that he had been given, and the e-mail address that he was to use to update al- Baluchi. C.A. App. 23.

On June 9, 2002, the President-acting as Commander in Chief and pursuant to the AUMF-made a formal determina tion that petitioner "is, and at the time he entered the United States in May 2002 was, an enemy combatant." C.A. App. 16; see Pet. App. 6a-7a. The President found, in particular, that petitioner: was "closely associated with al Qaeda, an interna tional terrorist organization with which the United States is at war"; "engaged in * * * hostile and war-like acts, includ ing conduct in preparation for acts of international terrorism" against the United States; "possesse[d] intelligence" about al Qaeda that "would aid U.S. efforts to prevent attacks by al Qaeda on the United States"; and "represent[ed] a continuing, present and grave danger to the national security of the United States," such that his military detention was "neces sary to prevent him from aiding al Qaeda in its efforts to at tack the United States or its armed forces, other governmen tal personnel, or citizens." Ibid.

Consistent with the foregoing findings, the President di rected the Secretary of Defense "to receive [petitioner] from the Department of Justice," which had custody over petitioner pursuant to a material witness warrant, "and to detain him as an enemy combatant." C.A. App. 16; Pet. App. 7a. Immedi ately upon issuance of that directive, the Department of Jus tice moved to vacate the material witness warrant. That mo tion was granted, and petitioner was transferred to military control and taken to the Consolidated Naval Brig in Charleston, South Carolina, where he has since been de tained.

3. On June 11, 2002, petitioner's counsel filed a habeas corpus petition on his behalf in the Southern District of New York. The district court held that it had jurisdiction and that the President had legal authority to detain petitioner as an enemy combatant. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), rev'd in part and remanded, 352 F.3d 695 (2d Cir. 2003), rev'd, 542 U.S. 426 (2004).

The United States Court of Appeals for the Second Circuit agreed that the Southern District of New York had jurisdic tion. Padilla v. Rumsfeld, 352 F.3d 695, 702-710 (2003), rev'd, 542 U.S. 426 (2004). On the merits, however, the court held, over a dissent, that the President lacked authority to detain petitioner militarily as an enemy combatant. See 352 F.3d at 710-724 (majority opinion); id. at 726-733 (Wesley, J., concur ring in part and dissenting in part).

This Court granted certiorari, and held that the Southern District of New York lacked jurisdiction and that the habeas petition should have been filed in the District of South Carolina. Rumsfeld v. Padilla, 542 U.S. at 434-451. The Court declined to reach the question whether the President had authority to detain petitioner militarily as an enemy com batant. Id. at 430.

4. On July 2, 2004, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Dis trict of South Carolina seeking that he be released from mili tary custody or charged with a crime. C.A. App. 7-13.

a. Petitioner alleged that his military detention violated (i) the Constitution, because American citizens arrested in the United States may be detained only pursuant to the crimi nal process; and (ii) 18 U.S.C. 4001(a)-which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Con gress"-because the AUMF did not authorize petitioner's military detention. C.A. App. 10-11. The petition sought that petitioner "immediately be released [from military custody] or charged with a crime." Id. at 13.

The government filed a response detailing the legal and factual bases for petitioner's detention as an enemy combat ant. Attached to that response was the August 27, 2004, Dec laration of Jeffrey N. Rapp, the Director of the Joint Intelli gence Task Force for Combating Terrorism, an agency within the Department of Defense. The Rapp Declaration included information and intelligence that were not available during the earlier litigation in the Second Circuit and in this Court. Among other things, the Rapp Declaration made clear that petitioner not only came to the United States to commit ter rorist attacks, but also had associated with al Qaeda and the Taliban and evaded capture by United States armed forces on the battlefields of Afghanistan. See C.A. App. 3-7; Pet. App. 8a-9a.

On October 20, 2004, petitioner filed a motion for sum mary judgment arguing that he was "entitled to judgment as a matter of law even if all of the facts pleaded [in the Rapp Declaration] are assumed to be true." Pet. Mem. in Support of Mot. for Summ. J. 1. Accordingly, the parties and the court assumed, for purposes of petitioner's motion, that all of the facts set forth in the Rapp Declaration were true. See id. at 1, 2 n.1; Pet. App. 8a n.1.

b. On February 28, 2005, the district court granted the summary judgment motion and habeas petition and ordered that petitioner be released from custody or charged with a crime. Pet. App. 54a & n.14. The court concluded that, not withstanding this Court's decision in Hamdi, supra, the AUMF did not provide sufficiently clear authorization for peti tioner's military detention. The court held that Congress must speak in clear and unmistakable terms when it autho rizes the President to detain enemy combatants, Pet. App. 42a-43a, 47a, and that the AUMF did not clearly authorize petitioner's detention because it authorized the use of only "necessary and appropriate" force, id. at 46a-47a. In the dis trict court's view, military detention was not necessary and appropriate in petitioner's case because he was captured not on a field of battle but in a civilian setting in the United States. Id. at 40a-41a, 46a-47a. The court further concluded that the President lacked inherent authority as Commander in Chief to detain petitioner militarily as an enemy combatant. Id. at 49a-51a.

5. On September 9, 2005, the court of appeals unani mously reversed. Relying primarily on Hamdi, the court held (Pet. App. 10a-23a) that the AUMF authorized petitioner's military detention because petitioner, just like Hamdi, was "armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States." Id. at 8a. That is, the court concluded that petitioner fell squarely within "the definition of 'enemy com batant' employed in Hamdi"-namely, 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." Pet. App. 11a-12a (quoting Hamdi, 542 U.S. at 516 (plurality opinion)) (internal quotation marks omitted). Noting that Hamdi's definition of "enemy combatant" did not include any reference to the locus of a putative combatant's capture, the court re jected petitioner's attempt to distinguish Hamdi based on the fact that petitioner "was seized on American soil, whereas Hamdi was captured on a foreign battlefield." Pet. App. 14a; see id. at 14a-17a. The court emphasized (id. at 12a) that its reading of Hamdi was "reinforced" by this Court's decision in Ex parte Quirin, 317 U.S. 1 (1942), "on which * * * Hamdi itself heavily relied," and in which the Court upheld the Presi dent's exercise of military jurisdiction over a citizen who, like petitioner: "associate[d] [himself] with the military arm of the enemy government, and with its aid, guidance and direction enter[ed] this country bent on hostile acts," Pet. App. 13a (quoting Quirin, 317 U.S. at 37-38); and "had been captured domestically" in a civilian setting, id. at 16a.

The court likewise rejected petitioner's contention "that only a clear statement from Congress can authorize [peti tioner's] detention." Pet. App. 19a. The court observed that any clear-statement rule "would appear the opposite" "of the kind for which [petitioner] argues," because this Court has stated that the President's exercise of military jurisdiction over enemy combatants is "not to be set aside by the courts without the clear conviction that [it is] in conflict with the * * * laws of Congress." Pet. App. 20a (quoting Quirin, 317 U.S. at 25). In any event, the court concluded that even if a clear statement of authorization were required, the AUMF provided it, because: (a) this Court in Hamdi held that the AUMF "clearly and unmistakably authorized" Hamdi's detention, Pet. App. 21a (quoting Hamdi, 542 U.S. at 519 (plu rality opinion)); and (b) a fortiori, petitioner's detention was "clearly and unmistakably authorized" because "in addition to supporting hostile forces in Afghanistan and taking up arms against our troops on a battlefield in that country like Hamdi, [petitioner] also came to the United States in order to commit future acts of terrorism against American citizens and tar gets," ibid.1

At petitioner's request, the court of appeals issued its mandate on October 7, 2005. After the mandate issued, peti tioner asked the district court for an opportunity to brief sev eral issues concerning how to proceed with a factual challenge to petitioner's military detention as an enemy combatant. On October 25, 2005, petitioner filed a petition for a writ of certio rari in this Court.

6. On November 17, 2005, a federal grand jury in the District Court for the Southern District of Florida returned a sealed indictment charging petitioner with conspiring to murder, maim, and kidnap individuals outside of the United States, in violation of 18 U.S.C. 2 and 956(a)(1) (Count One); conspiring to provide material support to terrorists, in viola tion of 18 U.S.C. 371 and 2339A(a) (Count Two); and providing material support to terrorists, in violation of 18 U.S.C. 2 and 2339A(a) (Count Three). App., infra, 2a-35a. The indictment was unsealed on November 22, 2005.

On November 20, 2005, the President determined that "it is in the interest of the United States that [petitioner] be re leased from detention by the Secretary of Defense and trans ferred to the control of the Attorney General for the purpose of criminal proceedings against him." The President's Memo randum to that effect made clear that it "supersede[d]" the President's June 9, 2002, directive to the Secretary of Defense to detain petitioner militarily as an enemy combatant. The Memorandum directed the Secretary of Defense to release petitioner from the control of the Department of Defense and transfer him to the control of the Attorney General upon the Attorney General's request. The Memorandum also provided that, upon such transfer, the authority of the Secretary of Defense to detain petitioner pursuant to the President's June 9, 2002, order "shall cease." App., infra, 1a.

On November 22, 2005, the government filed in the court of appeals an Unopposed Emergency Application and Notice of Release and Transfer of Custody of Petitioner Jose Padilla. On November 29, 2005, petitioner filed a motion in the district court to stay further proceedings until after this Court re solves the petition for a writ of certiorari. The district court denied that motion as moot "[i]n light of * * * the indict ment of [petitioner] on criminal charges in the Southern Dis trict of Florida." Likewise, the district court "relieved" the parties of their obligation to file briefs addressing the ques tion of how to proceed with the factual disposition of the ha beas petition.

On November 30, 2005, in response to the unopposed transfer application, the court of appeals directed the parties to address whether, in light of the criminal charges against petitioner and his impending transfer from military to civilian custody, the mandate in the case should be recalled and the court's opinion vacated. On December 9, 2005, the govern ment filed a supplemental brief in that court noting that the case is moot and arguing that recall and vacatur would be well within the court's discretion under the doctrine of United States v. Munsingwear, 340 U.S. 36 (1950). The government further asked the court to grant the unopposed transfer appli cation and to remand the case with instructions to dismiss the habeas petition as moot. Petitioner's supplemental brief in response is due on December 16, 2005, the filing date of this brief in opposition.

3. ARGUMENT

The habeas petition, the decision below, and the petition for a writ of certiorari are all addressed solely to the lawful ness of petitioner's military detention as an enemy combatant. Because petitioner has been charged with criminal offenses and ordered released from that military detention, the case is moot and further review would be inconsistent with the juris dictional requirements of Article III. Indeed, the mootness of this case may be further underscored if the court of appeals vacates its September 9, 2005, opinion. Additionally, and quite apart from strict jurisdictional requirements, the pru dential axiom that courts should avoid the resolution of sensi tive constitutional issues counsels denial of certiorari here, where the Court's decision will have no practical effect on petitioner in light of the intervening events. Moreover, the court of appeals' decision that petitioner asks this Court to review is interlocutory, as evidenced by petitioner's request to the court of appeals to expedite issuance of the mandate and the district court proceedings that were underway to al low petitioner to pursue his factual challenge to his military detention. The interlocutory nature of the case has forced the lower courts to consider whether the indictment and Presi dential Memorandum moot proceedings in the lower courts, and independently renders the dispute unworthy of this Court's review at this juncture. Finally, the decision is, in all events, correct on the merits and does not conflict with any decision of this Court or any other court of appeals. For all of these reasons, further review is unwarranted.

1. a. Under Article III of the Constitution, the federal courts lack jurisdiction to entertain cases that no longer pres ent live controversies. See, e.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998); St. Pierre v. United States, 319 U.S. 41, 42 (1943) (per curiam). "This means that, throughout the litigation, the plaintiff 'must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer, 523 U.S. at 7 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). In light of the events supervening the court of ap peals' decision, that fundamental constitutional requirement is no longer satisfied in this case.

Petitioner's habeas petition is explicitly and exclusively addressed to his detention by the military "without criminal charges." C.A. App. 10. In addition, each of the claims in the habeas petition is addressed to or is necessarily dependent upon petitioner's military detention as an enemy combatant during wartime. And, as relief, the petition seeks an "order that he immediately be released or charged with a crime." C.A. App. 13. The court of appeals' opinion is similarly lim ited to petitioner's military detention as an enemy combatant: it addresses itself to and decides only the question whether "the President of the United States possesses the authority to detain militarily a citizen of this country who is closely asso ciated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets." Pet. App. 7a (empha sis altered).

The predicate for this habeas action, however, no longer exists. On November 17, 2005, petitioner was criminally charged. In addition, on November 20, 2005, the President determined that "it is in the interest of the United States that [petitioner] be released from detention by the Secretary of Defense and transferred to the control of the Attorney Gen eral for the purpose of criminal proceedings against him." The President's November 20, 2005, Memorandum expressly "supersedes" the President's June 9, 2002, directive to the Secretary of Defense to detain petitioner militarily as an en emy combatant and mandates that upon petitioner's transfer from military to civilian custody, the authority of the military to detain him as an enemy combatant "shall cease." App., infra, 1a. The President's November 20, 2005, Memorandum therefore explicitly eliminates the directive that provided the authority to detain petitioner as an enemy combatant.

Because petitioner has been criminally charged and the President has directed that petitioner's military detention "shall cease," petitioner has received the relief that he sought in the habeas petition, C.A. App. 13 (seeking an "order that he immediately be released or charged with a crime")-and, in deed, the relief that the district court ordered when it granted his petition. This habeas action therefore no longer meets the core jurisdictional requirements of Article III. It is settled law that where a claimant receives the relief he seeks-here, release from military custody or criminal charges-there is no longer a live controversy and the case is moot. See Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (per curiam); St. Pierre, 319 U.S. at 42-43.

Nothing counsels a departure from that rule here. To the contrary, further review of this case would be wholly impru dent in light of the extremely sensitive constitutional issues raised by the habeas petition. It is axiomatic that courts should avoid the resolution of constitutional questions wher ever possible. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346- 348 (Brandeis, J., concurring). As the Court made clear in Hamdi, that settled prudential principle applies with full force to enemy-combatant cases. 542 U.S. at 539 (plurality opinion) (instructing lower courts to "proceed with the caution that we have indicated is necessary in this setting" by "en gaging in a [litigation] process that is both prudent and incre mental"). Further review would be particularly imprudent in light of the fact that the President has determined that peti tioner no longer should be detained as an enemy combatant and that the Secretary of Defense's authority to detain peti tioner pursuant to the President's June 9, 2002, directive "shall cease."

b. Any claim that the case falls within the narrow excep tion to the mootness doctrine for actions "capable of repeti tion yet evading review" because the President could later decide, based on an independent determination, to redesignate petitioner as an enemy combatant would be en tirely speculative and legally insufficient. To be clear, as evi denced by the President's November 20, 2005, Memorandum, the Secretary of Defense's authority to detain petitioner as an enemy combatant will cease upon petitioner's transfer to the control of the Attorney General. While it is theoretically pos sible that the President could redesignate petitioner for de tention as an enemy combatant-just as he could theoretically designate other current criminal defendants whose conduct would suffice to justify detention as an enemy combatant-in that unlikely event, petitioner would have ample opportunity to challenge any such military custody at that time.

That hypothetical scenario would not fit within the capable-of-repetition-yet-evading-review exception. Under that exception, which was first enunciated in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), a court may review an otherwise moot case only where (1) the challenged action would be too short in duration to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expec tation or "demonstrated probability" that the plaintiff will be subject to the same action again. See Spencer, 523 U.S. at 17- 18; Honig v. Doe, 484 U.S. 305, 318 n.6 (1988); City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (plaintiff must "make a reasonable showing that he will again be subjected to the alleged illegality"). For these reasons, this Court has cautioned that "the capable-of-repetition doctrine applies only in exceptional situations." Lyons, 461 U.S. at 109.

Here, petitioner could not establish either prong of the capable-of-repetition exception. As indicated, it is entirely speculative whether petitioner would ever again face military detention as an enemy combatant, and even if he did, there is no reason to believe that such detention would be too brief to allow him to challenge fully that detention in court. Indeed, there is little need to speculate on the latter matter: If, as the government urged at the time, petitioner had filed his habeas action in the appropriate court in the first instance, the issues raised in the habeas petition presumably could have been finally resolved by this Court in June 2004. It is therefore implausible, to say the least, that any hypothetical future mili tary detention of petitioner would somehow evade meaningful judicial review. Cf. Spencer, 523 U.S. at 17-18 (holding that habeas petitioner "ha[d] not shown (and we doubt that he could) that the time between parole revocation and expiration of sentence is always so short as to evade review. Nor has he demonstrated a reasonable likelihood that he will once again be paroled and have that parole revoked.").

This conclusion is unaffected by petitioner's assertion (Pet. 29-30) of a supposed need for this Court's immediate guidance because: (1) "Executive [B]ranch officials" have purportedly "fueled" uncertainty about the scope of the Presi dent's authority to detain enemy combatants by making "vague and unconstrained statements regarding the breadth of this power"; and, relatedly, (2) criminal defendants who are uncertain about the state of the law "face immense pressure to avoid an 'enemy combatant' designation * * * by pleading guilty."2 The government has never strayed from the position that the President has authority to detain militarily a person who, like petitioner, trained with and was closely associated with al Qaeda before and after September 11, 2001; engaged in armed conflict against the United States and allied forces in Afghanistan; and, after eluding our forces in Afghanistan, accepted a mission from al Qaeda to enter the United States and carry out attacks on our citizens within our borders. The instant petition is directed only to the question of authority on those facts. This Court's resolution of that now-moot question would likely provide only limited guidance in the diverse ar ray of criminal and non-criminal cases to which petitioner apparently refers. That is especially so because, as explained at pp. 20-30, infra, this case involves nothing more than the application of the Court's recent decision in Hamdi as rein forced by this Court's recently reaffirmed decision in Quirin. There is no reason to assume that any decision by the Court applying Hamdi to the current facts would apply broadly to many other enemy combatants. Indeed, since September 11, 2001, there have been only two cases (this one and Hamdi) involving United States citizens detained militarily in the United States as enemy combatants.

2. Even if this case were not moot, review by this Court of the court of appeals' decision would be imprudent, because the court of appeals' decision is interlocutory. Because peti tioner elected to proceed first with only a legal challenge to his detention, the court of appeals' decision addresses only the question of the President's authority to order petitioner's military detention, assuming the government's facts are true, and it remands the case to the district court to decide the remainder of petitioner's habeas claims. Nor is this case in terlocutory only in some technical sense. Petitioner has indi cated that he will present a factual challenge to his military detention, and he asked the court of appeals to expedite the issuance of its mandate precisely so that he could commence that factual challenge in the district court without further delay. By his actions, therefore, petitioner has demonstrated that he views the remand proceedings as significant and capa ble of obviating the need for review of his purely legal chal lenge to the President's authority.

The interlocutory posture of this case distinguishes this case from the Hamdi and Padilla cases this Court considered in 2004, both of which involved definitive resolutions of the habeas petitions, and counsels against review at this juncture. The interlocutory character of the case "of itself alone furnishe[s] sufficient ground for the denial" of petitioner's request for this Court's review. Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258 (1916); Brotherhood of Locomo tive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam) ("because the Court of Appeals remanded the case, it is not yet ripe for review by this Court"); VMI v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring in denial of petition for certiorari) ("[w]e generally await final judgment in the lower courts before exercising our certiorari jurisdiction"); Robert L. Stern et al., Supreme Court Practice § 4.18, at 258-261 (8th ed. 2002).

That approach is particularly warranted here, because the proceeding remaining on remand is precisely the type of fac tual challenge that the plurality in Hamdi had in mind when it spelled out the due process requirements for citizen-de tainee cases. It held that "a citizen-detainee seeking to chal lenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair op portunity to rebut the Government's factual assertions before a neutral decisionmaker." 542 U.S. at 533 (emphases added); id. at 509 ("We hold that * * * due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."). Thus, were the claim not moot, proceedings in the lower courts could ob viate the need for any review of the constitutional question (if petitioner prevailed on his factual contentions), and this Court could still review the question presented in the petition after petitioner has received the full process this Court described in Hamdi and which he has now initiated in the district court.

3. In any event, the court of appeals correctly concluded that, on the facts described in the Rapp Declaration, the Pres ident has authority under the AUMF, as interpreted in Hamdi, to detain petitioner militarily, and its decision does not conflict with any decision by this Court or any other court of appeals.

In Hamdi, this Court confirmed that the military may seize and detain enemy combatants, including United States citizens, for the duration of the relevant conflict with al Qaeda. Specifically, this Court upheld the President's author ity, under the AUMF, to detain as an enemy combatant a pre sumed American citizen 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 (plurality opinion); accord id. at 587 (Thomas, J., dissenting). As the court of appeals recognized (Pet. App. 11a-12a), petitioner readily meets that description. Petitioner, like Hamdi, carried an assault rifle on the battlefields of Afghanistan against United States and coalition forces. Petitioner, moreover, associated himself not just with Taliban forces (as did Hamdi), but with al Qaeda itself at a time when the United States was engaged in armed conflict with those forces. See pp. 5-6, supra. For these reasons, as the court of appeals concluded, petitioner fits squarely within the definition of "enemy combatant" em ployed by this Court in Hamdi.

a. Petitioner errs in arguing (Pet. 9-17) that the court of appeals' opinion "dramatically extends this Court's decision in Hamdi," inasmuch as Hamdi was "captured in a foreign combat zone" while petitioner was "arrested unarmed in a civilian setting in the United States." The court of appeals correctly held (Pet. App. 16a) that "the reasoning in Hamdi does not support a distinction based on the locus of capture." Nothing in Hamdi's definition of enemy combatant turned on the place of capture. Instead, the plurality emphasized that it was defining the term enemy combatant for purposes of that case as "an individual who * * * was 'part of or sup porting forces hostile to the United States or coalition part ners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." 542 U.S. at 516. Thus, without any reference to the locus of capture, the plurality concluded that "[t]here can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the September 11] attacks, are individuals Congress sought to target in passing the AUMF." Id. at 518. Similarly, in noting that it was not attempting to define the permissible bounds of the term "en emy combatant," the plurality emphasized that "[h]ere, the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign bat tlefield; that is, that he was an enemy combatant," id. at 522 n.1, and again made no mention of place of capture.

As petitioner himself points out (Pet. 10), the plurality emphasized that the purpose of detaining enemy combatants during wartime is to prevent them from returning to battle and taking up arms once again. Hamdi, 542 U.S. at 518-519. Nothing about that purpose supports drawing a distinction based on the locus of capture. Petitioner's contention boils down to a claim that the government has less authority to detain an individual who eludes capture on the foreign battle field and then comes to the United States intent on commit ting further warlike acts. That argument cannot be squared with Hamdi, let alone with the Court's decision in Quirin, which Hamdi reaffirmed. Given the current conflict and the September 11 attacks that led to the AUMF, moreover, an al Qaeda combatant captured while attempting to enter the United States to commit hostile acts against our citizens at home poses an even greater threat than one captured on a foreign battlefield. It is therefore no surprise that the plural ity in Hamdi made no mention whatsoever of the locus of capture in discussing the preventive purpose of detaining enemy combatants. Instead, the plurality reasoned that "[a] citizen, no less than an alien, can be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States,' " and that "such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict." Id. at 519. That is necessarily true whether that citizen is captured on the battlefield in Afghanistan or attempting to travel from that foreign battlefield to the United States to include Chicago in the domestic front of the war on terror.

b. In light of Hamdi, petitioner also errs in suggesting (Pet. 6) that the decision below "directly conflicts with the decision of the Second Circuit in * * * Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003)." The Second Circuit's decision lacks precedential force because this Court reversed the deci sion and held that the Southern District of New York (and thus the Second Circuit) lacked jurisdiction over the habeas petition. Rumsfeld v. Padilla, 542 U.S. 426, 434-451 (2004); see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.") (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869)).

In any event, the Second Circuit decided the case on a record that contained no reference to the fact that petitioner, just like Hamdi, engaged in armed conflict against our forces in Afghanistan. That evidence was submitted for the first time in the district court below, and it is that evidence that the court of appeals assumed to be true for purposes of peti tioner's summary judgment motion. More importantly, that evidence, which is assumed true in this proceeding, is disposi tive under Hamdi, which was handed down after the Second Circuit's decision. Simply stated, the Second Circuit decided a different case on different facts and different law, and thus its decision would not conflict with the decision below even if this Court had not reversed it.3

4. Petitioner's contention (Pet. 12) that the decision be low conflicts with Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), is equally unavailing in light of this Court's decisions in Quirin and Hamdi.

a. In Quirin, this Court unanimously upheld the Presi dent's assertion of military control over a group of Nazi sab oteurs-including a presumed American citizen (Herbert Haupt), 317 U.S. at 20-who were seized by FBI agents in the United States before carrying out plans to sabotage domestic war facilities during World War II. In doing so, the Court explained that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guid ance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of * * * the law of war." Id. at 37-38. Once again, that readily describes peti tioner, and his case is indistinguishable in all material re spects from Quirin. There, the saboteurs were affiliated with German forces during World War II, received explosives training in Germany, and came to the United States with plans to destroy domestic targets. Id. at 21. Here, petitioner was closely associated with al Qaeda after September 11, 2001, received explosives training at al Qaeda training camps, and then came to the United States at al Qaeda's direction and with its assistance to advance the conduct of further at tacks against the United States.

Petitioner's attempts to distinguish Quirin (Pet. 17-18) are unavailing. For instance, it is factually misleading and legally irrelevant to assert (Pet. 17 & n.4) that petitioner "lacks the military status that was the prerequisite to the military jurisdiction upheld in Quirin." Contrary to peti tioner's contention, the Quirin saboteurs did not "have" or "assert" military status; though they landed in the United States wearing military uniforms, "[i]mmediately after land ing they buried their uniforms * * * and proceeded in civil ian dress." 317 U.S. at 21. As the District Court for the Southern District of New York observed, the saboteurs had donned the partial uniforms only to preserve a plausible claim to prisoner-of-war status should they have been captured during the landing. Padilla ex rel. Newman, 233 F. Supp. 2d at 594 n.12. When they were later seized and detained in a civilian setting, the saboteurs were clearly not asserting mili tary status.

More fundamentally, whether and when the saboteurs asserted military status is legally irrelevant, because the Quirin Court did not rest its decision on that fact; rather, it held that a person who is "a part of or associated with the armed forces of the enemy" is subject to detention and trial as an enemy combatant. 317 U.S. at 45 (emphasis added); see id. at 37-38; see also Hamdi, 542 U.S. at 516-524 (plurality opin ion) (holding that an individual who is "part of or supporting forces hostile to the United States" is an enemy combatant (emphasis added)). The Court's use of the disjunctive-"or associated with"-precludes any argument based on the real ity or assertion of formal membership in the military. Accord Michael Dobbs, Saboteurs: The Nazi Raid on America 204 (2004) (noting that "only two" of the Quirin saboteurs "were formally enrolled in the German army").

Nor can Quirin be distinguished on the ground that the saboteurs were tried by a military commission while peti tioner (Pet. 18) "explicitly challenges the constitutionality of his military detention without trial." As the plurality ex plained in Hamdi, "[w]hile Haupt was tried for violations of the law of war, nothing in Quirin suggests that his [United States] citizenship would have precluded his mere detention for the duration of the relevant hostilities." 542 U.S. at 519 (emphasis added); see Pet. App. 19a (court of appeals recog nizing that this Court in Hamdi regarded "mere detention" "as a lesser imposition than" trial by military commission).

Nor does it matter that "Quirin was decided before Con gress enacted [18 U.S.C.] 4001(a)." Pet. 18. Even assuming Section 4001(a) could apply to petitioner's military detention (and it does not),4 the AUMF provides any congressional au thorization that is required, as Hamdi makes clear. In light of the events that precipitated the AUMF, it cannot plausibly be argued that it provides less authority over those who more closely resemble the attackers of September 11th in terms of their threat to domestic, rather than foreign, targets.

b. For these reasons, Quirin forecloses petitioner's reli ance (Pet. 12-13, 19) on Milligan. Milligan held that the mili tary lacked authority to subject to trial by military commis sion a citizen who was alleged to have conspired against the United States in the Civil War. In Quirin, the Court unani mously confined Milligan to its specific facts and found its holding "inapplicable" to the detention and military trial of the German saboteurs, explaining that Milligan, "not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war." 317 U.S. at 45. But petitioner, like the Quirin combatants, "associate[d] [himself] with the military arm of the enemy government, and with its aid, guidance and direction enter[ed] this country bent on hostile acts"; thus, he is an "enemy belligerent[ ] within the meaning of * * * the law of war." Id. at 37-38.

Significantly, petitioner's reliance on Milligan is also fore closed by Hamdi. The plurality in Hamdi expressly reaf firmed that Quirin is the "most apposite precedent" in the enemy-combatant context and that it "both postdates and clarifies Milligan." 542 U.S. at 523; accord id. at 593 (Thomas, J., dissenting). Indeed, the plurality expressly re jected the dissent's reliance on Milligan to the exclusion of Quirin. See ibid. (admonishing that "[b]rushing aside [Quirin] * * * is unjustified and unwise"). Because peti tioner, like Hamdi, is a classic battlefield combatant, Milligan is just as inapplicable here as it was in Hamdi.

5. Petitioner's contention (Pet. 18-19) that the court of appeals' decision conflicts with this Court's decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), is similarly mistaken. As petitioner points out (Pet. 18), Youngstown "restrict[s] the exercise of military power as an instrument of domestic policy." That decision casts no doubt, however, on the President's authority here because this case does not involve "domestic policy." The President's order in Youngstown that the Secretary of Commerce take control of private steel mills to prevent a work stoppage is different in kind from the President's order that the Secretary of Defense detain petitioner as an enemy combatant in order to prevent him from carrying out a terrorist scheme he planned and trained for, with the aid of al Qaeda operatives, in Afghani stan and Pakistan. The former represents a domestic eco nomic initiative; the latter, by contrast, represents a core exercise of the President's Commander-in-Chief power, which is at its apex when the Nation itself comes under attack. The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (when the Na tion itself is attacked, "the President is not only authorized but bound to resist force by force"); see Padilla v. Rumsfeld, 352 F.3d at 727 (Wesley, J., concurring in part and dissenting in part) (whereas in Youngstown "the President's attempt to link the [steel] seizure to prosecuting the war in Korea was * * * too attenuated," "[i]n [petitioner's] case the Presi dent's authority is directly tied to his responsibilities as Com mander in Chief").5

6. Finally, petitioner errs in arguing (Pet. 7-9) that the decision below "conflicts with this Court's precedents holding that Congress must speak clearly when it authorizes the in fringement of individual liberties." The vast majority of the cases petitioner cites on that score are wholly inapposite be cause they have nothing to say about the detention of enemy combatants. At issue in Duncan v. Kahanamoku, 327 U.S. 304 (1946), for example, was whether the Hawaiian Organic Act authorized the Governor of Hawaii to order that civilians charged with garden-variety civilian offenses be tried before military tribunals. Id. at 309-310 (noting that petitioners were charged with "embezzling stock" and "engag[ing] in a brawl"). The Court in Duncan explicitly distinguished cases involving military detentions like petitioner's: "Our question does not involve the well-established power of the military to exercise jurisdiction over * * * enemy belligerents, prison ers of war, or others charged with violating the laws of war." Id. at 313-314 (footnotes omitted). Likewise, Gregory v. Ashcroft, 501 U.S. 452 (1991), Gutknecht v. United States, 396 U.S. 295 (1970), and Green v. McElroy, 360 U.S. 474 (1959), do not remotely "involve the well-established power of the mili tary to exercise jurisdiction over * * * enemy belligerents." Rather, they involve, respectively: the applicability of the Age Discrimination in Employment Act to judges; the legality of Selective Service delinquency regulations as applied to consci entious objectors; and the government's revocation of security clearances granted to privately-employed aeronautical engi neers. Their relevance to the instant matter-at least as com pared to on-point precedent like Hamdi and Quirin-is far from obvious.

The only apposite case that petitioner cites is Hamdi it self. But there the plurality specifically rejected a clear-state ment rule by concluding that "the AUMF satisfie[s] § 4001(a)'s requirement that a detention be 'pursuant to an Act of Congress,'" even though it "does not use specific lan guage of detention." 542 U.S. at 517, 519; see id. at 587 (Thomas, J., dissenting). That result directly follows from Quirin, which declined to impose a clear-statement restriction on the President's authority and indeed suggested that any such rule runs in the opposite direction: "[T]he detention and trial of petitioners ordered by the President in the declared exercise of his powers as Commander in Chief * * * are not to be set aside by the courts without the clear conviction that they are in conflict with the * * * laws of Congress." 317 U.S. at 25; see Pet. App. 20a.

Nor does Howe v. Smith, 452 U.S. 473 (1981), aid peti tioner's assertion (Pet. 8) that any purported "constitutional 'clear statement' rule is buttressed in this case by * * * 18 U.S.C. 4001(a)." Howe involved the temporary federal civilian detention of a Vermont prisoner and did not speak to military detention of enemy combatants. 452 U.S. at 475-479. Thus, its passing statement in a footnote to the effect that Section 4001(a) "proscrib[es] detention of any kind by the United States," id. at 479 n.3, is of limited force. But, in any event, Section 4001(a) is triggered at most by the locus of detention, not capture, and so its relevance (and the relevance of Howe's footnote dictum) were fully considered in Hamdi. The AUMF, thus, fully justified petitioner's detention consistent with Section 4001(a) and this Court's precedents. Of course, on a going forward basis, petitioner's detention as a criminal defendant undoubtedly complies with Section 4001(a) and moots his petitions for habeas corpus and certiorari.

4. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
STEPHAN E. OESTREICHER, JR.
Attorney

DECEMBER 2005

 

1 Because the court concluded (Pet. App. 23a) that the AUMF provided the President "the power to detain identified and committed enemies such as [petitioner]," following this Court's lead in Hamdi, it had no occasion to address the government's additional contention that the President had inherent authority under Article II of the Consti tution to order petitioner's military detention.

2 Petitioner's suggestion (Pet. 29) that the Executive has claimed authority to designate as an enemy combatant a "little old lady" who sends money to what she believes is a "charity that helps orphans in Afghanistan" but turns out to be a front to finance al Qaeda activities is based solely on a statement taken out of context from a district court oral argument transcript in a different case. See 12/2/2004 Tr. at 119, Benchellali v. Bush, No. 04-CIV-1142 (D.D.C.) (clarifying statement).

3 Petitioner's reliance (Pet. 10) on Judge Wilkinson's concurring opinion in Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003), vacated and remanded, 542 U.S. 507 (2004)-which stated that "[t]o compare [Hamdi's] battlefield capture to the domestic arrest [of petitioner] is to compare apples and oranges," id. at 344-is misplaced for the same reasons.

4 Section 4001(a) is located in Title 18 ("Crimes and Criminal Pro- cedure") rather than Title 10 ("Armed Forces") or Title 50 ("War and National Defense"), and is part and parcel of a provision directed to the Attorney General's "control and management of Federal penal and correctional institutions, except military or naval institutions," 18 U.S.C. 4001(b)(1) (emphasis added).

5 For similar reasons, petitioner's invocation (Pet. 12) of the Sus pension Clause is unavailing. Because the Suspension Clause provides Congress the extraordinary authority to suspend the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it," U.S. Const. Art. I, § 9, Cl. 2 (emphasis added), it under scores the obvious point that domestic threats pose even greater dangers than foreign ones. Nothing in the Suspension Clause's pro vision of suspension authority in the face of domestic threats reflects an illogical intent to impose greater restraints on the President's authority to address military threats at home than abroad. In any event, nothing in the decision below implicates the Suspension Clause, as it remands for factual development of petitioner's habeas petition.

 

APPENDIX A

THE WHITE HOUSE

WASHINGTON

November 20, 2005

MEMORANDUM FOR THE SECRETARY OF DEFENSE

SUBJECT: Transfer of Detainee to Control of the Attorney General

Based on the information available to me, [REDACTED]

I hereby determine that it is in the interest of the United States that Jose Padilla be released from detention by the Secretary of Defense and transferred to the control of the Attorney General for the purpose of criminal proceedings against him.

Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States, I hereby direct you to transfer Mr. Padilla to the control of the Attorney General upon the Attorney General's request. This memorandum supersedes my directive to you of June 9, 2002, and, upon such transfer, your authority to detain Mr. Padilla provided in that order shall cease.

/s/ GEORGE W. BUSH

APPENDIX B

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 04-60001-CR-COOKE (s) (s) (s) (s) (s)

18 U.S.C. § 956(a)(1); 18 U.S.C. § 371; 18 U.S.C. § 2339A; 18 U.S.C. § 922(g)(5)(B); 18 U.S.C. § 1001(a); 18 U.S.C. § 1621(1); 18 U.S.C. § 1505; 18 U.S.C. § 924(d)(1); 18 U.S.C. § 2; 21 U.S.C. § 853

UNITED STATES OF AMERICA

v.

ADHAM AMIN HASSOUN, A/K/A "ABU SAYYAF," MOHAMED HESHAM YOUSSEF, A/K/A "ABU TURAB," KIFAH WAEL JAYYOUSI, A/K/A "ABU MOHAMED," KASSEM DAHER, A/K/A "ABU ZURR," AND JOSE PADILLA, A/K/A "IBRAHIM," A/K/A "ABU ABDULLAH THE PUERTO RICAN," A/K/A "ABU ABDULLAH AL MUJAHIR," DEFENDANTS

[Filed: Nov. 17, 2005]

SUPERSEDING INDICTMENT

The Grand Jury charges that:

INTRODUCTION

At times material to this Superseding Indictment:

1. There existed a radical Islamic fundamentalist movement dedicated to the establishment of a pure Islamic state ("Caliphate") governed by strict Islamic law ("Sharia"). Followers and supporters of this movement adhered to a radical Salafist ideology that encouraged and promoted "violent jihad" to be waged by "mujahideen" using physical force and violence to oppose governments, institutions, and individuals that did not share their view of Islam.

2. As used in this Superseding Indictment, the terms "violent jihad" or "jihad" include planning, preparing for, and engaging in, acts of physical violence, including murder, maiming, kidnapping, and hostage-taking. The term "mujahideen" means warriors engaged in violent jihad.

VIOLENT JIHAD GROUPS

3. Groups espousing this radical Salafist ideology included the Islamic Group of Egypt, a/k/a "Gama'a al-Islamiyya," a/k/a "IG," a/k/a "AGAI;" the Egyptian Islamic Jihad, a/k/a "Islamic Jihad," a/k/a "al-Jihad," a/k/a "EIJ;" al-Qaeda; and violent jihad groups in other countries, including Afghanistan, Algeria, Bosnia, Chechnya, Lebanon, Libya, and Somalia. These groups engaged in acts of physical violence, including murder, maiming, kidnapping, and hostage-taking in waging violent jihad.

VIOLENT JIHAD SUPPORT CELLS

4. The physical violence committed by these jihad groups was supported and facilitated by a network of smaller groups or cells operating within the United States and in other countries, including Canada, Austria, Denmark, Italy, and the United Kingdom. These support cells engaged in, among other things, propaganda, fund-raising, recruiting personnel, and providing other physical assets necessary to wage violent jihad.

NORTH AMERICAN SUPPORT CELL

5. The defendants, along with other individuals, operated and participated in a North American support cell that sent money, physical assets, and mujahideen recruits to overseas conflicts for the purpose of fighting violent jihad. This North American support cell supported and coordinated with other support networks and mujahideen groups waging violent jihad. The defendants followed and supported Sheikh Omar Abdel Rahman, an influential and high-ranking member of certain violent jihad groups.

6. Mohamed Zaky, a/k/a "Abu Omar" (hereinafter "Zaky"), an unindicted coconspirator, was also a follower and supporter of Sheikh Omar Abdel Rahman. In the early 1990's, Zaky founded and operated within the United States, and elsewhere, at least three Islamic organizations, the Islamic Center of the Americas, Save Bosnia Now, and the American Worldwide Relief Organization. Until his death in 1995, Zaky used these organizations to promote violent jihad.

7. KIFAH WAEL JAYYOUSI, a/k/a "Abu Mohamed" (hereinafter "JAYYOUSI"), while a resident of San Diego, California, founded the American Islamic Group, and after Zaky died, operated the American Worldwide Relief Organization. Through the American Islamic Group, JAYYOUSI published The Islam Report, a newsletter that promoted violent jihad as a religious obligation, delivered information on violence committed by mujahideen, and solicited donations to support mujahideen operations and mujahideen families. JAYYOUSI actively recruited mujahideen fighters and raised funds for violent jihad.

8. ADHAM AMIN HASSOUN a/k/a "Abu Sayyaf" (hereinafter "HASSOUN"), a resident of Broward County, Florida, was the East Coast representative of the American Islamic Group and the American Worldwide Relief Organization. HASSOUN assisted in distributing The Islam Report and fund-raising for violent jihad on behalf of the American Worldwide Relief Organization. HASSOUN also served as the North American distributor of Nida'ul Islam, an Islamic magazine promoting violent jihad. HASSOUN worked with JAYYOUSI and others in actively recruiting mujahideen fighters and raising funds for violent jihad.

9. KASSEM DAHER, a/k/a "Abu Zurr" (hereinafter "DAHER"), resided in LeDuc, Canada. DAHER was affiliated with the Canadian Islamic Association, and communicated and coordinated with mujahideen field commanders and violent jihad leaders overseas. DAHER worked with JAYYOUSI, HASSOUN, and others in actively recruiting mujahideen fighters and raising funds for violent jihad.

10. MOHAMED HESHAM YOUSSEF, a/k/a "Abu Turab" (hereinafter "YOUSSEF"), resided in Broward County, Florida, and elsewhere. YOUSSEF was recruited by the North American support cell to participate in violent jihad, and traveled overseas for that purpose.

11. JOSE PADILLA, a/k/a "Ibrahim," a/k/a "Abu Abdullah the Puerto Rican," a/k/a "Abu Abdullah Al Mujahir" (hereinafter "PADILLA"), resided in Broward County, Florida, and elsewhere. PADILLA was recruited by the North American support cell to participate in violent jihad, and traveled overseas for that purpose.

COUNT 1

(Conspiracy to Murder, Kidnap, and Maim Persons in a Foreign Country)

Paragraphs 1 through 11 of this Superseding Indictment are realleged and incorporated herein by reference.

12. Beginning at a time uncertain, but no later than in or about October 1993, and continuing until on or about November 1, 2001, in Broward County, in the Southern District of Florida, and elsewhere, the defendants,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"
MOHAMED HESHAM YOUSSEF,
a/k/a "Abu Turab,"
KIFAH WAEL JAYYOUSI,
a/k/a "Abu Mohamed,"
KASSEM DAHER,
a/k/a "Abu Zurr," and
JOSE PADILLA,
a/k/a "Ibrahim,"
a/k/a "Abu Abdullah the Puerto Rican,"
a/k/a "Abu Abdullah Al Mujahir,"

at least one of whom having been within the jurisdiction of the United States, did knowingly and willfully combine, conspire, confederate, and agree with others, known and unknown to the Grand Jury, to commit at any place outside the United States, acts that would constitute murder, that is, the unlawful killing of human beings with malice aforethought, kidnapping, and maiming if committed in the special maritime and territorial jurisdiction of the United States, and did commit one or more acts within. the jurisdiction of the United States, to effect the purpose and object of the conspiracy.

PURPOSE AND OBJECT OF THE CONSPIRACY

13. It was a purpose and object of the conspiracy to advance violent jihad, including supporting, and participating in, armed confrontations in specific locations outside the United States, and committing acts of murder, kidnapping, and maiming, for the purpose of opposing existing governments and civilian factions and establishing Islamic states under Sharia.

MANNER AND MEANS OF THE CONSPIRACY

14. The manner and means by which the defendants and their coconspirators sought to accomplish the purpose and object of the conspiracy included the following:

a. Members of the conspiracy would and did recruit, and attempt to recruit, mujahideen warriors who would engage in violent jihad.

b. Members of the conspiracy would and did solicit and raise monies to support and train mujahideen warriors who would engage in violent jihad.

c. Members of the conspiracy would and did transfer monies from places inside the United States to places outside the United States to support violent jihad.

d. Members of the conspiracy would and did provide communications equipment and other physical assets to individuals and groups engaged in violent jihad.

e. Members of the conspiracy would and did publish statements advocating violent jihad to encourage, induce, and persuade others to support and engage in violent jihad.

f. Members of the conspiracy would and did seek support and training to serve as mujahideen warriors who would engage in violent jihad.

g. Members of the conspiracy would and did use humanitarian, educational, and other non-governmental organizations to cover, conceal, and disguise their support of violent jihad.

h. Members of the conspiracy would and did utilize codes and other techniques to cover, conceal, and disguise their true identities and activities.

OVERT ACTS

In furtherance of the conspiracy and to effect its purpose and object, at least one of the coconspirators committed, or caused to be committed, at least one of the following overt acts within the United States, in the Southern District of Florida, and elsewhere:

15. In or about October 1993, JAYYOUSI opened a bank account in the name of the "Islamic Group."

16. On or about June 13, 1994, HASSOUN caused to be issued a $1,000 check to JAWOUSI with the memo line stating, "support for the person."

17. On or about February 4, 1995, JAYYOUSI and DAHER discussed setting up a for-profit business to fund jihad, "[T]his business, the profit generated from this business will be for the brothers, I mean we have to support the mujahideen brother," and DAHER then described his organization, the Canadian Islamic Association, as a "cover, I mean it's very good."

18. On or about March 21, 1995, HASSOUN participated in a coded conversation with JAWOUSI and DAHER, in which HASSOUN stressed that "we have a number of people active in the field," and then stated, "All of us are in a chain, if one link of the chain is separated, the movement will not function," and that this concept is particularly important in the field of "tourism."

19. On or about June 25, 1995, DAHER participated in a coded conversation with HASSOUN and JAYYOUSI, in which DAHER reported, "Our friend in the first region . . . Has opened up a football court over there . . . because there are matches . . . he wants only to give training for the game."

20. On or about July 25, 1995, HASSOUN caused to be issued an $8,000 check to the Canadian Islamic Association with the memo line stating, "for tourism."

21. On or about August 2, 1995, HASSOUN caused to be issued a $5,000 check to the American Worldwide Relief Organization with the memo line stating, "for brothers."

22. On or about August 31, 1995, HASSOUN caused to be issued a $3,000 check to the "Canadian I. Association" with the memo line stating, "for tourism and tourist."

23. On or about January 16, 1996, HASSOUN participated in a coded conversation with YOUSSEF, in which YOUSSEF indicated that he was looking for "work" in "an area that was a little active."

24. On or about February 16, 1996, HASSOUN caused to be issued a $600 check to JAYYOUSI with the memo line stating, "Chechnya."

25. On or about February 17, 1996, YOUSSEF departed the United States for Egypt.

26. On or about April 17, 1996, PADILLA obtained his United States passport in Miami, Florida.

27. On or about May 23, 1996, HASSOUN participated in a coded conversation with Unindicted Coconspirator #1, who was in Lebanon, in which HASSOUN asked if Unindicted Coconspirator #1 had a way to "get something over to the soccer team in Chechnya or Bosnia."

28. On or about May 30, 1996, HASSOUN and YOUSSEF, who was in Egypt, discussed their intention to "prepare" PADILLA and send him to Egypt.

29. On or about June 2, 1996, HASSOUN participated in a conversation with an individual about HASSOUN's plans to deliver a sermon on Chechnya for the purpose of raising funds for Chechnya.

30. On or about June 8, 1996, HASSOUN participated in a coded conversation with DAHER, who was in Canada, about Afghanistan, in which they discussed "the ones who want to go out and smell the air."

31. On or about June 11, 1996, HASSOUN participated in a coded conversation with JAYYOUSI about YOUSSEF being someone who wants to "get some fresh air . . . and find a route for himself."

32. On or about June 16, 1996, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, and told him the "deal" would be completed within the month, and YOUSSEF responded, "[B]y God, I am ready."

33. On or about June 30, 1996, YOUSSEF, who was in Egypt, participated in a coded conversation with HASSOUN, and told HASSOUN that while he. (YOUSSEF) was busy studying the Koran, this study was not his purpose and that he was waiting for the "trade" to take its "natural" course.

34. On or about September 1, 1996, YOUSSEF, who was in Egypt, told HASSOUN that he was "ready for the . . . uh . . . the trade immediately," and HASSOUN responded, "By Allah, there is . . . there is trade in . . . uh . . . in Somalia . . . [G]et ready, get organized, and go down there . . . to see . . . [W]e'll open up a market over there."

35. On or about September 2, 1996, HASSOUN participated in a conversation with JAYYOUSI, who asked HASSOUN to look for an "opportunity for us to come and visit . . . for Chechnya."

36. On or about September 30, 1996, HASSOUN caused to be issued a $2,000 check to DAHER with the memo line stating, "one for Bosnia one for Libya."

37. On or about October 23, 1996, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, in which he told YOUSSEF to go to Ogaden to "smell fresh air."

38. On or about October 25, 1996, HASSOUN told YOUSSEF, who was in Egypt, to "go to the area that I told you about . . . brothers have arrived there . . . and God willing, you will go uh . . . start a company with them . . . And forget about the worldly brides and the worldly home, okay?"

39. On or about November 30, 1996, Unindicted Coconspirator # 1, calling from Turkey, participated in a conversation with an individual in the United States, and told the individual to instruct HASSOUN not to talk over the phone about these matters, "not even in code . . . tourism and such."

40. On or about December 31, 1996, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, in which HASSOUN reported that "56 brothers got married" in Somalia, and asked YOUSSEF to get news about Somalia.

41. On or about January 26, 1997, HASSOUN participated in a conversation with Unindicted Coconspirator #1 about jihad in Ogaden, Ethiopia, in which HASSOUN reported that "58 brothers died . . . the attack was repelled but the Americans used their airplanes . . . and were bombarding them . . . so the situation was very harmful to the brothers, but thanks to God, they will be repaid two-fold," and that, with regard to fund-raising, "whatever, we collect we will be sending over there . . . a few emirs have called specifically concerning the subject . . . emirs of certain war fronts ask for such."

42. On or about January 26, 1997, HASSOUN participated in a coded conversation with DAHER and another individual, in which HASSOUN reported, "Because they are playing football in Somalia. . . . it's heating up a lot, so we're sending . . . uh . . . uniforms . . . and . . . uh . . . sneakers for football over there."

43. On or about January 31, 1997, HASSOUN caused to be issued a $2,000 check to DAHER with the memo line stating, "Somalia."

44. On or about April 6, 1997, YOUSSEF, who was in Egypt, left a coded message for HASSOUN, indicating that YOUSSEF needed to confirm things before "we go on the picnic, God willing."

45. On or about April 6, 1997, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, and discussed another "brother" who was "going on a picnic," and when HASSOUN asked if YOUSSEF would be going with this "brother," YOUSSEF responded that he planned to join a group of possibly ten others who were going "to smell fresh air and to eat cheese."

46. On or about June 7, 1997, HASSOUN participated in a coded conversation with DAHER regarding the "brothers" in Lebanon, in which DAHER confirmed that they had bought "the zucchini and such," and that after the "wedding" there would be "very good things."

47. On or about July 9, 1997, HASSOUN participated in a coded conversation with DAHER and another individual regarding Lebanon, in which DAHER advised HASSOUN that "green goods" were "needed urgently."

48. On or about July 28, 1997, HASSOUN participated in a conversation with PADILLA and asked PADILLA if he was "ready," and PADILLA replied that "it's gonna happen soon."

49. On or about February 10, 1998, HASSOUN participated in a coded conversation with DAHER, in which they discussed that the $3,500 that they had sent to Lebanon was used to buy "zucchini."

50. On or about June 17, 1998, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, about HASSOUN sending $5,000 to fund the travel for five "partners."

51. On or about June 21, 1998, HASSOUN participated in a coded conversation with YOUSSEF, who was in Egypt, about 20 "other partners" and HASSOUN wiring YOUSSEF money via the Thomas Cooke wire transfer company in Cairo.

52. On or about June 22, 1998, HASSOUN caused to be issued a $5,000 check to cash with YOUSSEF's name on the memo line, and then used the funds to purchase an official check from Barnett Bank payable to YOUSSEF.

53. On or about June 24, 1998, HASSOUN caused to be sent a $5,000 Western Union wire transfer to YOUSSEF in Cairo, Egypt.

54. On or about June 24, 1998, YOUSSEF, who was in Egypt, called HASSOUN, who reported that the funds were available.

55. On or about July 7, 1998, YOUSSEF called HASSOUN from Albania en route "to the inside," and HASSOUN promised to wire $5,000 to him.

56. On or about July 18, 1998, YOUSSEF called HASSOUN on a satellite telephone, and reported that he had entered Kosovo under bombing from the Serbs, and HASSOUN told YOUSSEF that he was sending $5,000 with PADILLA.

57. On or about July 18, 1998, HASSOUN participated in a coded conversation with an individual, in which he reported that YOUSSEF was "playing football yesterday and they had casualties," and HASSOUN asked the individual, "[A]re you ready?"

58. On or about July 28, 1998, HASSOUN participated in a coded conversation with an individual, and described YOUSSEF's activities in Kosovo as "tourism completely."

59. On or about July 29, 1998, HASSOUN participated in a coded conversation with an individual, in which HASSOUN reported that he was "concentrating on the matter of this new area which has opened up" and had "some loved ones that have gone there."

60. On or about August 3, 1998, HASSOUN caused to be issued a $1,300 check to cash with the memo line stating, "Kosovo."

61. On or about August 10, 1998, YOUSSEF, who was in Egypt, called HASSOUN, and participated in a coded conversation about "the joint venture that they had formed," including the fact that "seventy got completely married," that they all "ran into ambushes, well- organized and well-prepared ambushes," and that "[s]ports equipment" was used "to launch an attack on the other team."

62. On or about August 17, 1998, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, in which HASSOUN agreed to send PADILLA to him.

63. On or about August 18, 1998, HASSOUN caused to be issued a $5,000 check to Global Relief Foundation (hereinafter "GRF") with the memo line stating, "Kosovo."

64. On or about August 28, 1998, HASSOUN participated in a conversation with an individual, and attempted to solicit a donation for PADILLA's travel, to which the individual agreed, and stated that he had already contributed "to his cause" in the past.

65. On or about September 5, 1998, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, and advised him that PADILLA would be arriving on Sunday, and that YOUSSEF should meet PADILLA at the airport.

66. On or about September 5, 1998, PADILLA flew from the Southern District of Florida to Cairo, Egypt.

67. On or about October 20, 1998, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, and inquired about the welfare of PADILLA.

68. On or about February 8, 1999, HASSOUN participated in a conversation with an individual, and stated that he provides financial support to YOUSSEF and PADILLA, and expressed the importance of YOUSSEF "[having] cash . . . So he is always comfortable, and [keeping] it on the side until further notice" for the purpose of supporting PADILLA and "some brothers who would like . . . to follow Ibrahim's [PADILLA's] example as well."

69. On or about February 8, 1999, HASSOUN participated in a three-way conversation with YOUSSEF and PADILLA, who were in Egypt, in which HASSOUN asked PADILLA about the progress of his studies and if he still had money.

70. On or about April 5, 1999, HASSOUN caused to be issued a $3,000 check to GRF with the memo line stating, "Kosovo."

71. On or about April 15, 1999, HASSOUN caused to be issued a $600 check to GRF with the memo line stating, "to support Kosovo."

72. On or about July 25, 1999, HASSOUN participated in a coded conversation with PADILLA, who was in Egypt, in which PADILLA reported that he had requested "an army jacket, a book bag, and a sleeping bag" because there "was a rumor here that the door was open somewhere."

73. On or about July 25, 1999, HASSOUN participated in a coded conversation with an individual, in which HASSOUN discussed a plan to give money to the individual so that the individual's wife can withdraw the money in Egypt to give to PADILLA

74. On or about August 1, 1999, HASSOUN caused to be issued a $1,000 check to an individual with PADILLA's name on the memo line.

75. On or about August 13, 1999, HASSOUN caused to be issued a $4,400 check to an individual with the memo line stating, "50 Dagastan."

76. On or about October 1, 1999, HASSOUN caused to be issued a $2,500 check to GRF with the memo line stating, "Tourism, Propaganda, Chechnya."

77. On or about October 17, 1999, HASSOUN participated in a coded conversation with PADILLA, who was in Egypt, in which HASSOUN told PADILLA that he must "prepare [himself] financially" so that PADILLA can "move . . . to some close area."

78. On or about October 20, 1999, HASSOUN caused to be issued a $2,500 check to GRF with the memo line stating, "from Al Iman in Chechnya."

79. On or about November 15, 1999, JAYYOUSI participated in a conversation with Unindicted Coconspirator #2 regarding raising funds for "the brothers," to which JAYYOUSI stated that they were transferring some funds through GRF.

80. On or about January 20, 2000, HASSOUN caused to be issued a $2,000 check to GRF with the memo line stating, "Chechnya."

81. On or about April 10, 2000, HASSOUN participated in a conversation with PADILLA, who was in Egypt, in which they discussed the possibility of PADILLA traveling to Yemen, but PADILLA indicated that he needed "a recommendation to connect [him] with the good brothers, with the right faith."

82. On or about May 6, 2000, JAYYOUSI participated in a conversation with Unindicted Coconspirator #2, in which JAYYOUSI said that he would try to wire Unindicted Coconspirator #2 more money, and that Unindicted Coconspirator #2 should use $3,000 for travel.

83. On or about July 24, 2000, PADILLA filled out a "Mujahideen Data Form" in preparation for violent jihad training in Afghanistan.

84. On or about September 3, 2000, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, who indicated that he would be traveling "there at Usama's and . . . Khattab's company," and that PADILLA "is a little farther south by . . . he is supposed to be at Usama's . . . to go to Kh . . . to go a little farther north."

85. On or about September 3, 2000, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, and YOUSSEF stated that PADILLA "entered into the area of Usama."

86. On or about September 3, 2000, HASSOUN participated in a conversation with YOUSSEF, who was in Egypt, about sending people to Baku, Azerbaijan.

87. On or about September 12, 2000, JAYYOUSI participated in a conversation with Unindicted Coconspirator #3 about finding a new domain name on the Internet for the purpose of reestablishing The Islam Report.

88. On or about October 9, 2000, YOUSSEF, who was in Saudi Arabia, called HASSOUN, and gave him a telephone number in the Republic of Georgia, at which YOUSSEF could be reached in a few days.

89. On or about October 15, 2000, HASSOUN participated in a conversation with unknown coconspirators in the Republic of Georgia, who told HASSOUN that YOUSSEF is still in "Baku," and that PADILLA is "currently in Afghanistan," and HASSOUN responded, "I would like to come over by you to smell some fresh air."

90. On or about October 15, 2000, HASSOUN participated in a conversation with YOUSSEF, who was in Baku, Azerbaijan, in which HASSOUN told YOUSSEF to join PADILLA, and YOUSSEF responded, "I have already reached the front line, why should I return? And also, considering I have previous experience, you see? Should I go there to get the experience I've already acquired?"

91. On or about May 16, 2001, HASSOUN caused to be issued a $700 check to GRF with the memo line stating, "tourism and travel."

92. On or about November 1, 2001, HASSOUN caused to be issued a $2,000 check for GRF with the memo line stating, "Afghan relief."

All in violation of Title 18, United States Code, Sections 956(a)(1) and 2.

COUNT 2

(Conspiracy to Provide Material Support for Terrorists)

Paragraphs 1 through 11 and 13 through 92 of this Superseding Indictment are realleged and incorporated herein by reference.

Beginning at a time uncertain, but no later than in or about October 1993, and continuing until on or about November 1, 2001, in Broward County, in the Southern District of Florida, and elsewhere, the defendants,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"
MOHAMED HESHAM YOUSSEF,
a/k/a "Abu Turab,"
KIFAH WAEL JAYYOUSI,
a/k/a "Abu Mohamed,"
KASSEM DAHER,
a/k/a "Abu Zurr," and
JOSE PADILLA,
a/k/a "Ibrahim,"
a/k/a "Abu Abdullah the Puerto Rican,"
a/k/a "Abu Abduliah Al Mujahir,"

within the United States, did knowingly and willfully combine, conspire, confederate, and agree with others, known and unknown to the Grand Jury, to commit offenses against the United States, that is, providing material support and resources, as defined in Title 18, United States Code, Section 2339A(b), and concealing and disguising the nature, location, source, and ownership of material support and resources, knowing and intending that they be used in preparation for and carrying out a violation of Title 18, United States Code, Section 956(a)(l), that is, a conspiracy to murder, kidnap, and maim persons in a foreign country; and did commit one or more acts to effect the purpose and object of the conspiracy; all in violation of Title 18, United States Code, Sections 371 and 2339A(a).

COUNT 3

(Material Support for Terrorists)

Paragraphs 1 through 11 and 15 through 92 of this Superseding Indictment are realleged and incorporated herein by reference. Beginning in or about October 1993, and continuing until on or about November 1, 2001, in Broward County, in the Southern District of Florida, and elsewhere, the defendants,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"
MOHAMED HESHAM YOUSSEF,
a/k/a "Abu Turab,"
KIFAH WAEL JAYYOUSI,
a/k/a "Abu Mohamed,"
KASSEM DAHER,
a/k/a "Abu Zurr," and
JOSE PADILLA,
a/k/a "Ibrahim,"
a/k/a "Abu Abdullah the Puerto Rican,"
a/k/a "Abu Abduliah Al Mujahir,"

within the United States, did provide material support and resources, as defined in Title 18, United States Code, Section 2339A(b), and did conceal and disguise the nature, location, source, and ownership of material support and resources, knowing and intending that they be used in preparation for, and in carrying out, a violation of Title 18, United States Code, Section 956(a)(1), that is, a conspiracy to murder, kidnap, and maim persons in a foreign country; all in violation of Title 18, United States Code, Sections 2339A(a) and 2.

COUNT 4

(Unlawful Possession of Firearm)

On or about June 12, 2002, in Broward County, in the Southern District of Florida, the defendant,

ADHAM AMlN HASSOUN,
a/k/a "Abu Sayyaf,"

being an alien admitted to the United States under a nonimmigrant visa, did knowingly possess a firearm in and affecting interstate and foreign commerce, that is, a Smith & Wesson 9 millimeter pistol, in violation of Title 18, United States Code, Section 922(g)(5)(B).

COUNT 5

(False Statement)

On or about June 12, 2002, in Broward County, in the Southern District of Florida, the defendant,

ADHAM AMlN HASSOUN,
a/k/a "Abu Sayyaf,"

in a matter within the jurisdiction of the executive branch of the Government of the United States, that is, the DHS and the FBI, did knowingly and willfully make a materially false, fraudulent, and fictitious statement and representation, in that HASSOUN stated to a Special Agent of the DHS and to a Special Agent of the FBI that:

(1) he neither encouraged nor assisted an individual named Mohamed Youssef regarding travel to any foreign country, when in truth and in fact, and as the defendant then and there well knew, he encouraged and assisted Youssef regarding travel to a foreign country for the purpose of fighting in a violent jihad; and

(2) he was not aware of Mohamed Youssef visiting a foreign country other than Egypt, when in truth and in fact, and as the defendant then and there well knew, Youssef had traveled to a foreign country other than Egypt for the purpose of fighting in a violent jihad.

All in violation of Title 18, United States Code, Section 1001(a).

COUNT 6

(Perjury)

On or about July 22, 2002, in Miami-Dade County, in the Southern District of Florida, the defendant,

ADHAM AMlN HASSOUN,
a/k/a "Abu Sayyaf,"

having taken an oath before a competent tribunal, officer, and person, that is, an Immigration Judge, in a case in which a law of the United States authorizes an oath to be administered, that is, an Immigration Court proceeding, that he will testify, declare, depose, and certify truly, did knowingly, willfully, and contrary to such oath, state and subscribe material matters which he did not believe to be true, concerning his recruitment of Mohamed Youssef to fight in a violent jihad and discussions about violent jihad over the telephone with Mohamed Youssef, as herein set forth below:

Q. And was he one of your recruits as has been said in the affidavit?

A. I never recruited him.

Q. And how-what's your phone contacts with Mr. Yousef?

A. At that time after he left to Egypt?

Q. Yes.

A. When he left to Egypt he kept in touch and he used to call to ask about how the community is doing over here and how the family is doing and that was it.

The aforementioned testimony by HASSOUN as he then and there believed, was a false material statement, in that HASSOUN did recruit Mohamed Youssef to fight in a violent jihad and did discuss violent jihad over the telephone with Mohamed Youssef.

All in violation of Title 18, United States Code, Section 1621(1).

COUNT 7

(Perjury)

On or about July 22, 2002, in Miami-Dade County, in the Southern District of Florida, the defendant,

ADHAM AMlN HASSOUN,
a/k/a "Abu Sayyaf,"

having taken an oath before a competent tribunal, officer, and person, that is, an Immigration Judge, in a case in which a law of the United States authorizes an oath to be administered, that is, an Immigration Court proceeding, that he will testify, declare, depose, and certify truly, did knowingly, willfully, and contrary to such oath, state and subscribe material matters which he did not believe to be true, concerning his purpose for providing financial assistance to Mohamed Youssef, as herein set forth below:

Q. And did you ever provide anything-any monetary financial assistance to him?

A. At one point he wanted money to prepare a land that he has, this is what he said, and that land, I believe, is close to the Suez canal, somewhere like that. And he asked if the community can help him to fix the land and the community responded and we helped him.

Q. Okay. And was there any other purpose other than the land that you owned there?

A. This is what he asked and this is what we respond.

* * * *

Q. Right. And you said the money was for what?

A. To fix his land, fix his house.

The aforementioned testimony by HASSOUN, as he then and there believed, was a false material statement, in that HASSOUN did provide financial assistance to Mohamed Youssef for the purpose of fighting in a violent jihad.

All in violation of Title 18, United States Code, Section 1621(1).

COUNT 8

(Perjury)

On or about July 22, 2002, in Miami-Dade County, in the Southern District of Floriday, the defendant,

ADHAM AMlN HASSOUN,
a/k/a "Abu Sayyaf,"

having taken an oath before a competent tribunal, officer, and person, that is, an Immigration Judge, in a case in which a law of the United States authorizes an oath to be administered, that is, an Immigration Court proceeding, that he will testify, declare, depose, and certify truly, did knowingly, willfully, and contrary to such oath, state and subscribe material matters which he did not believe to be true, concerning his use of coded language with other individuals, including Mohamed Youssef, when discussing violent jihad activities, as herein set forth below:

Q. Did you speak with him in code language?

A. Never.

Q. Do you have any code languages with any-

A. No, I don't.

* * * *

Q. And in 1998 it's alleged that you have a conversation, you talk about you have soccer equipment. Did you recall any conversation like that?

A. No. I know he wanted-he wanted to open a business, you know, and he wants to get something from here, buy equipment and stuff like that.

Q. Do you recall what equipment he was talking about?

A. Soccer maybe, or football, something like that. But I asked him to come over here and pick up whatever he wants.

* * * *

Q. Sir, in your-you talked about this in direct examination, but in your-one of your telephone conversations in 1998 with Mr. Yousef you discussed soccer equipment?

A. He discussed, yes.

Q. Okay. Well-

A. Yes, go ahead.

Q. -he discussed it with you?

A. Uh-huh.

Q. Right. And your assertion is that he was directly speaking just of soccer equipment?

A. Yes, he gave me the impression that he wants to open a business and he wants to do some trade. In my-you want to hear my (unintelligible).

Q. No. Sir, isn't it true that during that conversation you also asked, even though you were speaking about soccer equipment, you asked him if he had enough to launch an attack on the enemy?

A. What enemy?

Q. Did you say those words or something close to those words?

A. Not that I recall.

Q. Do you recall discussing with him an attack?

A. Where was he, in Egypt?

Q. Yes.

A. What enemy?

Q. Well I'm asking you, sir.

A. No.

Q. Did you discuss with him having enough equipment to engage an enemy?

A. I don't recall that.

Q. But you may have?

A. I don't recall that.

Q. Well-

A. I'm trying to put where you're going. If I may-

Q. Well, it's a very specific question, sir.

A. Go ahead.

Q. The question is: In your conversation in 1998 with Mr. Yousef in which he discussed soccer equipment did you or did you not talk to him about having enough equipment to engage an enemy?

A. No.

Q. You did not?

Q. Did you discuss with him anti-armor tools?

A. I don't recall.

Q. But you might have?

A. What is that again?

Q. Anti-armor tools. Did you discuss tools with him?

A. I don't recall what we spoke. I know that we spoke that he wants to trade and he wants to have a soccer team and stuff like that. Other than that, I don't recall. I know that part.

The aforementioned testimony by HASSOUN, as he then and there believed, was a false material statement, in that HASSOUN did speak in coded language with other individuals, including Mohamed Youssef, when discussing violent jihad activities.

All in violation of Title 18, United States Code, Section 1621(1).

COUNT 9

(Perjury)

On or about July 22, 2002, in Miami-Dade County, in the Southern District of Florida, the defendant,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"

having taken an oath before a competent tribunal, officer, and person, that is, an Immigration Judge, in a case in which a law of the United States authorizes an oath to be administered, that is, an Immigration Court proceeding, that he will testify, declare, depose, and certify truly, did knowingly, willfully, and contrary to such oath, state and subscribe material matters which he did not believe to be true, concerning his conversations with Mohamed Youssef about the experience of fighting in a violent jihad conflict, as herein set forth below:

Q. Sir, have you ever discussed with Yousef in any phone call his experiences on the front lines?

A. What front lines?

Q. Front lines of any battle.

A. What battle?

Q. Any battle, any armed conflict.

A. He never spoke to me about any armed conflict.

Q. So you've never discussed with him his activities on the front lines in any armed struggle or conflict?

A. I don't recall any of that happening.

Q. But it could have?

A. Not really. No.

The aforementioned testimony by HASSOUN, as he then and there believed, was a false material statement, in that HASSOUN did participate in conversations with Mohamed Youssef about the experience of fighting in a violent jihad conflict.

All in violation of Title 18, United States Code, Section 1621(1).

COUNT 10

(Perjury)

Beginning on or about July 22, 2002, and continuing until on or about August 1, 2002, in Miami-Dade County, in the Southern District of Florida, the defendant,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"

having taken an oath before a competent tribunal, officer, and person, that is, an Immigration Judge, in a case in which a law of the United States authorizes an oath to be administered, that is, an Immigration Court proceeding, that he will testify, declare, depose, and certify truly, did knowingly, willfully, and contrary to such oath, state and subscribe material matters which he did not believe to be true, concerning his participation in conversations about killing a woman in Lebanon, as herein set forth below:

Q. Now you have read the allegations in the affidavit provided by the Government written by Officer Arena-

A. Yes, I did.

Q. -FBI Agent. I'm going to direct your attention to that affidavit. First, we're going to go to Paragraph 17 where it has the allegation that sometime in August, 1997, you had a conversation with someone identified as an associate concerning a female, the way I understood, was stuck in Lebanon, and the Government, in cooperation with CIA and State Department, was trying to bring her here. And you made some comments. Do you recall any of those comments?

A. No.

Q. Do you recall any female stuck in Lebanon -

A. No, I don't.

Q. -In 1997?

A. No.

Q. Do you recall you ordering the assassination of that female?

A. Never.

Q. I remind you are under oath.

A. I am under oath.

Q. And I want you to-five, six, years ago, which incident has been explained here, and do you recall saying that "I have to speak with brothers in Lebanon to take care of her."

A. Never.

Q. Do you recall any conversation?

A. Never. Never happened.

* * * *

Q. Do you recall any of this, which is said in paragraph 17, if it ever happened?

A. Never happened. I read it many times through the weekend, through the whole week since I had this, none of that happened.

* * * *

Q. And, sir, do you still claim that at no time you had a conversation about a female who had traveled from the United States to the Middle East, that conversation discussing the issue of having her killed?

A. Do I what?

Q. Did you ever have a conversation with somebody about killing a woman?

A. No, no, never.

* * * *

Q. Hassoun, you know that there's a-someone named "associate" mentioned in-in paragraph 17 of Agent Arena's declaration. Do you know who that person is?

A. No.

Q. Have you ever spoken to anyone who can say I overheard you saying that you want to kill someone, plot to kill someone?

A. No.

Q. Did you ever have in your mind ill-will against anyone?

A. Never.

Q. Do you know this female mentioned in paragraph 17?

A. I have no idea.

Q. So it's an absolute denial?

A. Absolute denial.

Q. You under oath.

A. I am under oath.

The aforementioned testimony by HASSOUN, as he then and there believed, was a false material statement, in that HASSOUN did participate in conversations about killing a woman in Lebanon.

All in violation of Title 18, United States Code, Section 1621(1).

 

COUNT 11

(Obstruction of Proceedings)

Beginning on or about June 12, 2002, and continuing until on or about September 30, 2002, in Broward and Miami-Dade Counties, in the Southern District of Florida, the defendant,

ADHAM AMIN HASSOUN,
a/k/a "Abu Sayyaf,"

did knowingly and willfully corruptly endeavor to influence, obstruct, and impede the due and proper administration of law under which a pending proceeding, that is, an Immigration Court proceeding, was being had before a department and agency of the United States, in violation of Title 18, United States Code, Section 1505.

FORFEITURE

1 The allegations in Count 4 of this Superseding Indictment are re-alleged and by this reference fully incorporated herein for the purpose of alleging forfeitures to the United States of America of property in which the defendant has an interest, pursuant to the provisions of Title 18, United States Code, Section 924(d)(1), as incorporated by Title 28, United States Code, Section 2461(c), and the procedures outlined in Title 21, United States Code, Section 853.

2. Upon the conviction of any knowing violation of Title 18, United States Code, Section 922(g)(5)(B), the defendant shall forfeit to the United States any firearm involved in or used in the commission of said violation.

3. The property subject to forfeiture includes, but is not limited to, a Smith & Wesson 9 millimeter pistol seized from the defendant on June 12,2002.

All pursuant to Title 18, United States Code, Section 924(d)(1), as incorporated by Title 28, United States Code, Section 2461(c), and the procedures outlined in Title 21, United States Code, Section 853.

A TRUE BILL

/s/ ILLEGIBLE
FOREPERSON

/s/ R. ALEXANDER ACOSTA
R. ALEXANDER ACOSTA
UNITED STATES ATTORNEY

/s/ RUSSELL R. KILLINGER
RUSSELL R. KILLINGER
ASSISTANT UNITED STATES ATTORNEY

/s/ STEPHANIE K. PELL
STEPHANIE K. PELL., TRIAL ATTORNEY
COUNTERTERRORISM SECTION
UNITED STATES DEPARTMENT OF JUSTICE

/s/ ILLEGIBLE
JULIA A. PAYLOR
ASSISTANT UNITED STATES ATTORNEY

/s/ BRIAN F. FRAZIER
BRIAN K. FRAZIER
ASSISTANT UNITED STATES ATTORNEY