Rumsfeld v. Padilla - Oral Argument

Argument of Paul D. Clement

Chief Justice Rehnquist: We'll hear argument next in Number 03-1027, Donald Rumsfeld versus Jose Padilla.

Mr. Clement?

Mr. Clement: Mr. Chief Justice, and may it please the Court:

Unlike the Hamdi case, which raised not only the question of the President's and the military's authority to detain, but also questions the process and access to counsel.

This case raises only two relatively discrete questions, first, whether the habeas petition in this case, challenging Hamdi's present physical confinement in South Carolina, was properly filed in Manhattan, rather than against the immediate custodian in South Carolina, and second, whether the President has the authority to detain a citizen who travels abroad, affiliates and associates with the enemy abroad, receives training in enemy camps in wiring and explosives and then returns to the United States at the direction of the enemy to commit hostile and warlike acts.

Now, there are many aspects of this case that raise issues that are really extraordinary, but the habeas petition that was filed in this case was a standard, indeed ordinary, use of the writ to challenge the prisoner's present physical confinement and the habeas rules are settled that when the writ is used to challenge the present physical confinement, the proper custodian, the proper respondent, is the immediate custodian and the suit should be filed in the district where that custodian is present.

In other words, in a case to your present physical confinement, the case should be filed in the district of confinement.

Justice Breyer: May I ask you on that point, Mr. Clement, supposing this petition had been filed while he was still in New York, and then he was removed to South Carolina.

Would the petition be okay, then?

Mr. Clement: There would be jurisdiction in that case, Justice Stevens, under the Endo decision.

Now, I think in that case, there would still be a question, especially if there was the, the habeas petition was filed and he was immediately removed, there would still be the question of venue at that point and there is a Seventh Circuit case hat's not in the briefs but Ross against Menday that you may want to look at that says that in a case like that presumptively...

Justice Breyer: I'm not quite sure what your answer is to my question.

Mr. Clement: Oh, my answer is jurisdiction yes, under this Court's decision in Endo.

Justice Breyer: All right.

Mr. Clement: But then there would still be a subsidiary question that's not raised here about venue.

Justice Breyer: Which the government would presumably would be free to raise.

Mr. Clement: Exactly, and we would raise in the case where there was in fact jurisdiction.

Justice Breyer: Yes.

Mr. Clement: But in this case our position is there is no jurisdiction whatsoever, and I think that...

Justice Breyer: Jurisdiction under the Habeas Statutes has been a bit of a confusion because, for instance, on behalf of aliens, I think we have allowed jurisdiction to be obtained in the manner it was here, have we not?

Mr. Clement: I don't think so, Justice O'Connor.

I don't know which case have you in mind, but I'm aware of no case of this Court that takes the unprecedented step that the court below took, which is basically to allow a habeas petition to go forward in a case where neither the prisoner nor the custodian is in the jurisdiction where the habeas petition is filed.

Justice Breyer: What do you do with ex parte Endo?

Mr. Clement: Well, Mr. Chief Justice, as I was suggesting to Justice Stevens, that case involves a kind of unique situation where a habeas petition is filed, challenging a certain kind of confinement, and then after the petition is filed, and after jurisdiction attaches, the prisoner is moved.

In that case, it was an individual moved from California to...

Justice Breyer: They never, they never named any custodian in that case, did they?

Mr. Clement: Well, I don't know for sure, Mr. Chief Justice, but I would say a couple of things.

One is on the immediate custodian rule, I think that is a rule that perhaps the government could waive in a case, and so if you have a situation...

In a way Hamdi is that case where when the habeas petition in Hamdi was filed, he was being detained in Norfolk, which was in the Eastern District of Virginia.

It did not matter in that case whether the immediate custodian was Paulette, who is the brig, the commander of the brig, or Rumsfeld because in the government's view, they are both territorially present in the Eastern District of Virginia.

So the immediate custodian rule I think is something that government can waive.

I don't think that the territorial jurisdiction limit on the courts, though, is something that the government is in a position to waive.

I think that is a restriction on the power of the court to issue the writ of habeas, and again, as I was indicating...

Justice Breyer: Well, is there a circuit split on whether aliens can name the attorney general?

Mr. Clement: Yes, Justice O'Connor.

There is a circuit split on that issue, and I think in some ways that issue is sort of tied up with this case, though even there as I understand most of those cases, there is a case from the Ninth Circuit called Armantero, which in the government's view goes the wrong way.

There is favorable precedent in the Sixth Circuit, the First Circuit, and the Seventh Circuit, but even the Ninth Circuit, I think, envisions a case where they view the attorney general as the proper custodian, but they, you know, it's not clear where they think that individual can be served.

Now, I suppose that the Ninth Circuit applying that rule might also take the unprecedented step here.

It's also true if you want a sort of sense of the potential for abuse in these cases, I think could you point to the Ninth Circuit case where the Ninth Circuit held that the Central District of California had habeas jurisdiction over a claim filed by a petitioner in Guantanamo.

I mean, obviously there is the issue that this Court has, but there is a question of if there were jurisdiction, I wouldn't have thought that it lay in the Central District of California.

And I think that happens when you relax these traditional rules.

And I think particularly in a case like...

Justice Breyer: Where does jurisdiction lie for someone in Guantanamo, do you suppose?

Mr. Clement: Well, if, let me answer the question this way, which is if you had a citizen in Guantanamo.

Justice Breyer: Yes.

Mr. Clement: And under this Court's cases like Toth against Quarles and Burns against Wilson, that citizen is unable to file a habeas petition.

Our view is that the proper place to file that would be either in the Eastern District of Virginia, if you were naming the Secretary of Defense or if were you naming some official present in the district, you would sue in the District of Columbia.

But the important thing is even in that case, the court where you filed the petition would have jurisdiction, territorial jurisdiction over the Respondent and what is so anomalous here is in a sense, it doesn't, I mean it matters to us in the sense that we think the proper Respondent is Commander Marr, but even if you assume the proper Respondent here is secretary Rumsfeld, the case still shouldn't be brought in the Southern District of New York.

It should be brought in the Eastern District of Virginia.

Justice Breyer: But why?

Why, what difference does it make to the government where they defend?

Mr. Clement: Well, I think there are a number of...

Justice Breyer: I mean, there are offices all over the country.

Mr. Clement: I think that's right, Justice Stevens.

I think it only makes sense to have the defense mounted in the place where the detention is taking place.

And I think that's particularly true in this case, because this isn't a petition that only challenges the fact of confinement.

If you look at the, the petition in this case, the amended petition, joint appendix page 56, the relief that's sought here also goes to the conditions of confinement in Commander Marr's brig.

Now, in a case like that, it seems...

Justice Breyer: Yes, but I'm not sure that's, that's appropriate relief in a habeas petition, anyway.

Mr. Clement: Well, I think you can file a mixed petition and seek that kind of relief, but in any event, I think that what they are looking for is not just release from detention, but the stopping of the interrogations.

Justice Breyer: how this particular case was pleaded, which it wasn't, because we don't have any flushing out of this, but you keep talking about jurisdiction and it seems to me, this is essentially a venue question.

There is no question that Federal courts have habeas jurisdiction.

They have that authority.

And you are talking about not the large question, what kind of case can a Federal court hear, you are talking about a where question, not a what question.

So it's essentially a venue question.

Mr. Clement: I mean, unless the word essentially is going to bear a tremendous amount of weight, I disagree because I think that what you have here is not general venue principles.

You have a situation where the relevant statute that gives courts habeas jurisdiction restricts their ability to issue the writ to their territorial jurisdiction.

And this Court has been clear in cases like Carbo and this is even consistent in Justice Rutledge's dissent in the Ahrens case, that for that provision to have any meaning at an irreducible minimum, it has to mean that a writ that goes to the proper custodian has to be filed within the territorial jurisdiction of the District Court.

Justice Breyer: Although, if the prisoner is moved, so prisoner goes someplace else, they still have jurisdiction over the case, although the original custodian no longer has the prisoner in his or her care.

Mr. Clement: That's right, Justice Ginsburg.

And this Court decided that in Endo long before Ahrens when it reaffirmed an even stricter rule and there is nothing in the post-Ahrens cases that suggests that this Court has ever deviated from this understanding.

And indeed I would point the Court to the decision in Schlanger against Seamans, because I think in some ways, it shows how, that that case really decided this issue, because what the court there had was an individual who was trying to get ROTC scholarship in Arizona, but he was assigned to a unit in Alabama, and he filed his habeas petition in Arizona, and he named as Respondents an individual in Arizona who had no custody over him whatsoever, so that individual was out.

He also named the Secretary of the Air Force.

The court did not rely on that, and the court said that his true custodian is his commanding officer in Georgia, and what this Court said is there was no jurisdiction in Arizona over that custodian in Georgia, and just to be clear about it, the Court noted and rejected an argument based on 28 U.S.C. 1391(e), which among other things provides nationwide service of process against Federal officials.

Now, if that statute had applied, then it would have been perfectly appropriate to bring the case in Arizona against a Georgia Respondent who was a Federal officer.

But the Court said no. 1391(e) does not trump the habeas statute.

Now, if that is true of a Federal statute that provides for nationwide service of process, it seems like it would be true a fortiori for Federal Rule of Civil Procedure 4.

But that's the theory under which the courts below exercised jurisdiction in this case.

Justice Breyer: Well, Mr. Clement, is Schlanger still good law after Strait and Braden?

Mr. Clement: Absolutely, Your Honor.

And I think the best evidence of that, there is two things I'd like to point to.

But maybe the simplest way is that both Strait and Braden cite Schlanger favorably and, indeed, if you look at the very end of the Braden opinion, when the court says that the proper Respondent there is within the court's service of process, it sites Schlanger for that proposition, which makes sense because in that case the petition was properly filed, challenging a Kentucky detainer in Kentucky, so the proper Respondent was within the territorial jurisdiction of the court in that case.

The second reason I would say that Schlanger is very much good law as we pointed out in our reply brief, is that the court in Schlanger went out of its way, because at that point, Ahrens was sort of already teetering on the verge of obsolescence, to state that the rule would be exactly the same even under Justice Rutledge's view in Ahrens, so I think for those two reasons, Schlanger continues to be good law, and clearly would trump any service of process that would be provided by Rule 4.

And I think, and this is consistent with what the unanimous three-judge court in the Fourth Circuit said in the Hamdi case, that particularly in cases that raise such sensitive issues as the cases that are involved on the merits in this case, it is particularly important that the court try to avoid unnecessarily reaching Constitutional issues by first ascertaining that it has jurisdiction.

Now, if I...

Justice Breyer: You recognize that it isn't a jurisdiction question like, can the Federal courts entertain this kind of suit.

Can they entertain a fender bender between people from the same state?

No.

Can they entertain Federal habeas cases.

So we have one Federal system, and there are classes of cases that can go into that system and then we have an allocation of where, so this isn't jurisdiction writ large, it is where in this Federal system do you bring this case?

Mr. Clement: Justice Ginsburg, its statutory jurisdiction, but I agree.

It is at some level it is a which District Court question, not whether District Courts are open to these claims at all.

Justice Breyer: All right.

If it's a which District Court question, I mean, I don't know how long you want to spend on the procedural issue, but I take it if we follow your thing, never can you entertain a habeas petition unless the body is in this district, then immigration cases, military cases are going to be a nightmare.

If we follow a venue principle, you are going to get just the right result, which is we bring the case where it's most convenient.

Mr. Clement: With respect, Justice Breyer, I would disagree.

I think that this Court, it is true, in situations where it has relaxed the notion of custody, and has allowed habeas petitions to be brought in circumstances where they previously weren't available, Strait against Laird is an example.

This Court's decision in Braden, basically is an example because it was accommodating the overruling of McNally against Hill and Payton against Rowe.

So in those contexts, where there is more than one custody or some kind of metaphysical custody, this Court has relaxed the rules in a way to accommodate those, but it has never deviated.

Never, from the rule that you have to file the habeas petition where the custodian is, and equally important, it has never, there is no need to expand the notion of custody, because you have a classic habeas case where you are challenging your present physical confinement.

The courts never relax the rules.

Justice Breyer: Let me ask you a question to get you to the merits, if I can.

Mr. Clement: That would be fine.

Justice Breyer: Suppose, suppose that you're right about your basic claim that the uniform, what is it called, the Use of Force Act is in fact a statute of the kind contemplated in 4001.

Still, the words in that act are, they can use necessary and appropriate force.

So why would it be necessary and appropriate in a country that has its courts open, that has regular criminal proceedings, that has all the possibility of adjudicating a claim that I'm the wrong person?

Why is it a necessary and appropriate thing to do once you have such a person who is a citizen in this country to proceed by other than a normal court procedure?

Mr. Clement: Justice Breyer, I will answer the question.

I would preface it by saying that I certainly wouldn't read the authorization of force's use of the term necessary and appropriate as an invitation for sort of judicial management of the executive's war-making power.

I would have viewed it as a delegation to the executive to use its traditional authority to make discretionary judgments in finding what is the necessary appropriate force.

And the Prize cases, I think, stand for that proposition.

Now, if I can address the specifics, though, why it might be necessary and appropriate and, indeed, why is this Government asserting this authority?

It is precisely because, in this war on terrorism, the Government can confront an individual who is not only guilty of past war crimes, but also...

Justice Breyer: Can I ask you just one last question on the jurisdictional issue?

If you assume it's a question of venue rather than jurisdiction... I know you're arguing in the alternative, but if you assume it was venue rather than jurisdiction, would New York not have been the proper venue since he was held there as a material witness and he had a lawyer appointed in that case?

Mr. Clement: Even if, contrary to our position, it was a venue question, we would still say no.

And I think that you have to understand... I mean, the fact that he was in New York in the first place is a bit of a happenstance.

He tries to fly to Chicago.

He is seized in Chicago...

Justice Breyer: No, but the Government is responsible for him being in New York, which it seems to me, that they should not be complaining about litigating there.

Mr. Clement: Well, with respect, Justice Stevens, I don't think anybody would think that if you filed a habeas petition to challenge Padilla's detention as a material witness while he was being detained in New York, that that should be filed in Chicago.

And I think by the same logic, it doesn't make any sense from what the gravamen of the... the gravamen of the challenge is to the conditions and legality of the detention in South Carolina, why that ought to be filed in New York just because he was there under a different authority.

Justice Breyer: He had a lawyer appointed, didn't he, there?

Mr. Clement: He did have a lawyer appointed there.

But again, I don't think... I mean, I think Mr. Dunham or his equivalent in South Carolina would be available to provide whatever role is necessary and appropriate under the circumstances.

I don't think there are only lawyers in New York.

Justice Breyer: I suppose it's a little easier for the Government to find a lawyer wherever it needs it than it would be for a prisoner being moved from district to district.

Mr. Clement: In none of these cases have we seen a problem with the detainees finding legal representation.

Justice Breyer: Getting back to the merits, merits part...

Could I hear his answer to the previous question?

You were in the middle of an answer and I was waiting for the end of it.

Mr. Clement: Well, I hate to disappoint you.

I'm not sure that I had anything in particular left other than to say that we would still... I mean, I think all I would say, and maybe I can reference that there are Court of Appeals cases, the Seventh Circuit has decided this Ross against Menday case that basically say that even if you're in a venue situation, even if you're within the rule of Ex parte Endo, there is still a strong, strong presumption that a habeas petition belongs in the district court where the individual is being detained.

Now, maybe if you had a situation where the habeas petition was up and running and close to a final judgment or whatever.

And then the individual is detained, it makes sense to keep the proceeding in the first venue.

But in a case like... if you had a case where the day after the first petition is filed, he's moved for independent and good reasons, I think you would also say that the case belongs in the place of detention.

Justice Breyer: What rights does Padilla have, if any, in your view, that a belligerent who is apprehended on the battlefield does not have?

Is Padilla just the same as somebody you catch in Afghanistan?

Mr. Clement: I think for purposes of the question before this Court, the authority question, he is just the same.

It may be that in an appropriate juncture when the Court has before it the question of what procedure should be applied, that you would want to apply different procedures in a case like this.

Justice Breyer: Can we punish him?

Mr. Clement: Could we punish him?

Certainly we could punish him if we decided to change the nature of our processing of him.

As this Court made clear in Quirin...

Justice Breyer: Would you shoot him when he got off the plane?

Mr. Clement: No, I don't think we could for good and sufficient reasons...

Justice Breyer: I assume that you could shoot someone that you had captured on the field of battle.

Mr. Clement: Not after we captured them and brought them to safety.

And I think in every case, there are rules of engagement, there are rules for the appropriate force that should be used.

And I don't know that there are any...

Justice Breyer: If they're an unlawful belligerent?

Mr. Clement: Yes, even if they're an unlawful belligerent.

Once they're... I mean, we couldn't take somebody like Hamdi, for example, now that he's been removed from the battlefield and is completely... poses no threat unless he's released and use that kind of force on him.

Justice Breyer: But if the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment, as the resolution you gave us that Congress passed, and it leads you up to the executive, unchecked by the judiciary.

So what is it that would be a check against torture?

Mr. Clement: Well, first of all, there are treaty obligations.

But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime.

And we'll put that U.S. military officer on trial in a court marshal.

So I think there are plenty of internal reasons...

Justice Breyer: Suppose the executive says mild torture we think will help get this information.

It's not a soldier who does something against the Code of Military Justice, but it's an executive command.

Some systems do that to get information.

Mr. Clement: Well, our executive doesn't and I think... I mean...

Justice Breyer: What's constraining?

That's the point.

Is it just up to the good will of the executive?

Is there any judicial check?

Mr. Clement: This is a situation where there is jurisdiction in the habeas courts.

So if necessary, they remain open.

But I think it's very important... I mean, the court in Ludecke against Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority.

You have to recognize that in situations where there is a war... where the Government is on a war footing, that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that.

Justice Breyer: So what is it that military... go back to Justice Kennedy's question.

I'm trying to push you down the road a bit.

And maybe we don't have to decide this now.

But I want to understand your vision of it.

I mean, a person has come to the United States.

He has, according to the Government, committed a serious crime and is dangerous.

Well, those are people we deal with all the time in the criminal process.

So if you're even assuming this resolution authorizes some kind of force, why isn't the appropriate force, where he's in the United States and the courts are open, what we would call ordinary criminal process?

I mean, that harmonizes everything.

Now, maybe there is an answer to that in your vision.

I want to find out your vision of what's supposed to happen here and why.

Mr. Clement: Well, Justice Breyer, let me give you a practical reason answer and the legal reason.

You may prefer the former.

But I think that the practical reason is if you capture somebody who is not just somebody who is guilty of a war crime or a violation of some provision of Title 18, but also has a wealth of information that could be used to prevent future terrorist attacks, then it seems to me that the military ought to have the option of proceeding with him in a way that allows him to get actionable intelligence to prevent future terrorist attacks, and should not be forced into a choice where the only way they can proceed is to proceed retrospectively to try to punish him for past acts.

In doing so, whether it's a military commission or an Article III, requires you to give him a counsel who likely is going to say that you shouldn't talk to the Government about any of these things.

Justice Breyer: Would you have that authority in the absence of the authorizing resolution?

Would the President have that authority?

Mr. Clement: I think he might well, Justice Souter, and you in fact suggested that yourself, which is if there was actionable information...

Justice Breyer: No, I suggested that he might have on September 12th.

I don't think my suggestion went much further.

But I'll grant you that's an argument, but do you believe he would have that authority today in the absence of the authorizing resolution?

Mr. Clement: Well, I think he would certainly today, which is to say September 12th or April 28th.

Justice Breyer: Two and a half months later.

But I mean, based on the rationale that there is a need to bar him from what would be the normal process that Justice Breyer is describing because of the need to interrogate effectively.

Your answer, I take it, is he would have that authority even without the authorizing resolution?

Mr. Clement: That would be my answer.

I would say the President had that authority on September 10th, but I guess I would...

Justice Breyer: How does he get that from just being commander-in-chief?

I mean, I understand the commander-in-chief power to be a power over the military forces, when they're being used as military forces, the General Washington power, you know, to command the forces tactically and everything else.

It doesn't mean that he has power to do whatever it takes to win the war.

I mean, the Steel Seizure case demonstrates that well enough.

How does this come within George Washington's commander-in-chief power, which is what I read this congressional resolution to be directed at?

It doesn't say you can do whatever it takes to win the war.

Mr. Clement: No, but Justice Scalia, presumably the authorization of force is read against prior history and this Court's precedents.

And those precedents include the Quirin case where it is absolutely clear that in fighting a war, you have the authority to detain individuals, even if they're not formal military officers who are affiliated with the enemy and come into the United States intent on committing hostile and warlike acts.

Justice Breyer: But Quirin rested on the fact that there was congressional authorization for a military commission to try on such charges.

Mr. Clement: Well, two things, Justice Souter.

First of all, I mean, you asked me a hypothetical but we do have the authorization of force here.

Second of all, I don't think Quirin can stand for the kind of clear statement rule that others want to attribute to it for two reasons.

One, to the extent it applied any clear statement rule, it runs in the opposite direction.

The Court said they would not strike down the detention and try the individuals there absent a clear conviction that it violated an act of Congress.

Justice Breyer: I guess I would settle, as a rhetorical point, for the fact that it's not a clear statement for you either.

Mr. Clement: Well, it actually... it purported to be.

It said absent a clear conviction, it wouldn't strike down the authority.

But what I would... just to be clear, I think as we point out in our reply brief, if you applied a clear statement rule to Quirin, it would have to come out the other way because Article II of the articles of war that were in force at the time were restricted to members of the United States military.

Article 15, which the Court relied on, didn't expressly authorize military commissions expressly.

It did so by negative implication.

So it's simply not the case that you need an express statutory authorization.

If I could reserve my time for rebuttal.

Justice Breyer: Very well, Mr. Clement.

Ms. Martinez, we'll hear from you.

Argument of Jennifer Martinez

Mr. Martinez: Mr. Chief Justice, and may it please the Court:

Even in wartime, America has always been a nation governed by the rule of law.

Today the Government asks this Court for a broad ruling that would allow the President unlimited power to imprison any American anywhere at any time without trial simply by labeling him an enemy combatant.

We ask this Court for a narrow ruling that leaves for another day the grave constitutional question of whether our system would permit the indefinite imprisonment without trial of American citizens on American soil based on suspicion that they have associated with terrorists.

We simply ask this Court to hold that at a minimum Congress would have to clearly and unequivocally authorize such a departure from our nation's traditions.

And since Congress has not done so, Mr. Padilla is entitled to be charged with a crime and to have his day in court.

The detention at issue in this case is exactly the type of detention that our Founding Fathers were concerned about based on their experience with the British Crown, where the king had locked up citizens based on...

Justice Breyer: Ms. Martinez, the authorization passed by Congress is quite broad and it talks about force against individuals.

Mr. Martinez: Yes, Your Honor, but there is no reference in the text of that authorization to any power to detain American citizens on American soil based on suspicion.

And there is no indication whatsoever in the debates that Congress contemplated that it might be used in such a way.

Justice Breyer: Well, you surely don't think that it excluded American citizens.

I mean, certainly it gave the President authority to wage war against American citizens if they're on the other side, didn't it?

Mr. Martinez: Certainly, Your Honor, as...

Justice Breyer: So whatever authority it gave him, there is no indication that it's limited to non-citizens.

Mr. Martinez: No, but what is limited to citizens is Section 4001 in which Congress specifically provided that no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

Justice Breyer: And you would say that 4001 prevents the President from detaining on the battlefield?

Mr. Martinez: No, Your Honor.

Justice Breyer: Well, then it doesn't mean what you just said it meant.

Mr. Martinez: What we are talking about... first of all, there is a general presumption against extraterritorial application of statutes.

And so in the absence of an indication that Congress intended 4001 to apply overseas, that general presumption would limit it to this country.

Moreover, the history of 4001...

Justice Breyer: So the clear statement rule doesn't apply to 4001?

Mr. Martinez: Which clear statement rule, Your Honor?

Justice Breyer: Well, I thought you were arguing for the clear statement rule.

Mr. Martinez: Yes, Your Honor, we are and our argument is limited to detentions within this country...

Justice Breyer: But your qualification is only implied from the statute.

Mr. Martinez: Our argument is that what there needs to be a clear statement of is of the authority to detain an American citizen on American soil.

And the reason for that is given, one, by the history of section 4001 in which Congress looked at the Emergency Detention Act that had been passed during the Cold War which would have allowed the President, in case of an internal security emergency or war, to imprison individuals based on suspicion that they were associated with a foreign power and were going to engage in acts of terrorism.

Justice Breyer: What about hijackers?

The resolution has to do with 9/11.

And the people were hijackers and a lot of the hijackers are up in the airplane and then they land.

Do you think that the resolution wasn't aimed at them in part?

Mr. Martinez: Your Honor, our position is that certainly the President would have inherent authority with or without this resolution to seize an individual who is engaged in an act like that that took place on 9/11.

But after that individual had been seized, in order to for that person to be held in detention in this country, if they are a citizen, in particular, there must be some express statutory authorization that provides a framework for that ongoing detention.

And that comes not only from 4001, but also from the Due Process Clause, and...

Justice Breyer: And if they are captured on the battlefield and then brought here, 4001 clicks into operation, in your view?

Mr. Martinez: Our position is that 4001 applies within the United States and its text means what it says, that no, no person...

Justice Breyer: Well, then your answer to my question is yes?

Mr. Martinez: Yes, Your Honor.

Justice Breyer: So if you were...

So if we found American citizens in Iraq who were firing on our forces and brought them back here, they would have to be given an Article III trial?

Mr. Martinez: Your Honor, our position is that Congress could provide for some alternative legislative scheme for dealing with such individuals.

Justice Breyer: What about my question on Iraq?

Mr. Martinez: At this time, our position would be that such persons would have to be given an Article III trial, unless Congress came in with some other provision.

Yes, Your Honor.

Justice Breyer: What distinguishes citizen?

If we are talking about someone like Padilla, who is in the United States, the Due Process Clause refers to person, not citizen.

So I can see a distinction between brought into the United States, but within the United States, if it's someone who is, is an alien, but is here with permission, a resident alien, say...

Mr. Martinez: Yes, Your Honor.

We would agree that such persons are protected by the Due Process Clause.

4001 refers only to citizens.

But we would agree that aliens within this country might certainly be protected as well.

This case simply does not present that question, but we would not disagree with that.

I think what is important...

Justice Breyer: Well, let's get to that question.

Let's assume that we disagree with you about 4001, and we think the authorization for use of military force supersedes that.

Then what, then what is your position with respect to the rights of your client?

Mr. Martinez: If Your Honors believe that 4000... that the authorization was meant to specifically authorize the detention of American citizens on American soil, we would contend first that there is no limiting principle within that authorization for who may be detained.

The Government claims that anyone who is associated with Al Qaeda falls within this definition.

Justice Breyer: So the principle would be that if somebody is like a missile sent over here, you know, he is actually one of the hijackers or the equivalent thereof, that's an obvious limiting principle, that people who are sent offshore, sent right over here and we catch them in mid-air.

Mr. Martinez: I think when you start trying to draw those lines on a case-by-case basis where this individual because they are actually in the midst of a hijacking is close enough whereas some other individual who is merely in the early stages of a plot might not be enough, the difficulty of drawing those lines shows the need for clear Congressional action here.

This is primarily a job for Congress to create, if there is a need in this country for preventive detention of terrorists, that's a legislative job for our legislature to undertake.

Justice Breyer: Declarations of war are just not written this way.

The Iraq declaration is not.

The recent declarations of war, formal declarations are not, and AMUF is not.

Mr. Martinez: That's correct.

Justice Breyer: That's just not the tradition.

The President is given the authority.

Mr. Martinez: That's correct, Your Honor.

But broad authorizations for use of force in wartime have also not traditionally be interpreted to allow the executive unlimited power over citizens.

So in cases like Duncan and Endo, this Court has said that a wartime authorization for action by the executive should not be construed broadly, but should be construed narrowly to give only the power that it clearly and unequivocally indicates.

Justice Breyer: Well, Endo was concededly loyal, and Duncan were civil crimes, a stockbroker who was embezzling, right?

Mr. Martinez: That's correct, Your Honor.

But what 4001 was intended to prevent was a claim by the executive that his broad inherent powers in wartime, which was specifically what 4001 addressed, would be enough to allow the detention of American citizens.

Justice Breyer: Right.

Can you give me a minute or so on the, or as long as you want or short, but suppose you get to the similar place by saying that this resolution, suppose hypothetically, I'm not saying what my view is, but hypothetically, suppose you get to the same place by saying, yes, that wartime resolution still doesn't authorize departing from use of the criminal system, the ordinary criminal system for somebody in the United States, but for an unusually good reason.

Now, we have two possible reasons advanced, one orally that we need to question him, and one in the briefs, a suggestion that this man is a ticking time bomb, and we can't reveal the evidence without destroying intelligence.

Now, I'd like your vision of how this is supposed to play out under an ordinary criminal system in response perhaps to what those claims are.

Mr. Martinez: Our view would be that because of the difficulty of the question of determining, for example, as I believe Justice Kennedy asked earlier, how long would such interrogation be necessary?

Would the district court be required to take evidence on those sorts of issues?

In the event that there were no other alternatives, we believe that would be appropriate, but we also believe that's quintessentially a question for Congress, which could hold legislative hearings.

And after due deliberation, come to some conclusion about what was required in this context.

And that is in fact what our democratic allies, United Kingdom and Israel, have done in passing specific legislation about the preventive detention of suspected terrorists based on a legislative finding about what periods of time...

Justice Breyer: Well, that would be, of course, perhaps, desirable, but we are faced with a situation of the here and now, and what do we do?

Mr. Martinez: Your Honor...

Justice Breyer: We just turn loose a ticking time bomb?

Mr. Martinez: No, Your Honor.

I believe that, first of all, were this Court to rule that it was... that Congressional action was required, I have no doubt that Congress would step into the breach very quickly to provide whatever authorization the executive branch deemed necessary.

And so I think there is no doubt that Congress would fill that measure.

Here in this particular case, the Government has already said that Mr. Padilla no longer possesses any intelligence value, and so his interrogation is at an end.

And at this point, after two years in detention, without any sort of hearing, without any access to counsel, it's more than appropriate that he be charged with a crime unless Congress comes forward with some alternative scheme.

Now, if I may turn for a moment to the issue of jurisdiction.

Contrary to Mr. Clement's suggestions, this case does primarily involve issues of venue and not jurisdiction.

This Court has never held that there is a hard and fast rule requiring an immediate custodian, and this Court has also not applied rigid territorial requirements about the location of a suit.

And in particular, in the Strait case, this Court made clear that the type of jurisdiction that was necessary was jurisdiction making the Respondent amenable to service of process under the long arm provisions by citing International Shoe and McGee, which are provisions applying normal rules of personal jurisdiction.

Given the particular circumstances of this case, the extensive personal involvement of Secretary Rumsfeld in this matter, makes him an appropriate Respondent and New York is an appropriate venue for this suit.

The Government brought Mr. Padilla to New York.

They placed him in court proceedings there.

Counsel was appointed and litigation had begun.

It was the Government's choice to remove him from that forum, but that does not change the fundamental fact that jurisdiction was proper in New York.

Justice Breyer: Are you... are you suggesting then that this case might be an exception to some more general rule because of the peculiar facts that you have just recited?

Mr. Martinez: Yes, Your Honor.

I think that... I think there is no hard and fast general rule as the Government states it.

There are numerous exceptions already to the rule that the Government articulates that can be found in prior cases.

Justice Breyer: Well, maybe there should be some more definite rule.

Supposing we were to say that generally it's the Secretary of Defense and his venue is in the Eastern District of Virginia.

Mr. Martinez: This Court might very well decide to make such a venue rule, but I would note that the Government at this point in the case has waived their objection to venue by not pursuing it on appeal.

They challenged venue in the district court, and they did not appeal that.

Justice Breyer: Well, but they have certainly challenged the proper custodian here.

Mr. Martinez: Yes, Your Honor.

They have the challenged the proper custodian, but as this court's decisions in cases like Endo, like Eisentrager make clear, that the identity of the proper Respondent is not a hard and fast or absolute jurisdictional rule.

Justice Breyer: That doesn't change it from jurisdiction to venue.

I mean, venue is venue and jurisdiction is jurisdiction.

You may say that the jurisdictional rule has been so haphazard that effectively it amounts to the same thing.

And that argument will stand and fall on the basis of the cases that you and Mr. Clement have discussed.

But to say that this is, this is venue is simply wrong.

I mean, it is a matter of the jurisdiction of the Court, and it's always been treated by that way in our opinions.

We have not discussed it as a venue rule.

Well, Your Honor, I do agree that there is a jurisdictional question, and we agreed that... we argued that jurisdiction is proper.

But what Braden says is that the rule that Ahrens had announced as a hard and fast jurisdictional rule reflected nothing more than traditional venue concerns.

And so Braden specifically says that that... that which was discussed in Ahrens went to venue and not to jurisdiction.

Returning...

Where you had conceivably proper jurisdiction in several places.

Mr. Martinez: Yes, Your Honor.

And we would argue that jurisdiction was proper in New York in this case because...

Justice Breyer: We are talking if we are using the jurisdictional label, it's personal jurisdiction, and not subject matter jurisdiction.

Mr. Martinez: That's correct, Your Honor, and under this Court's decision in Strait, there was personal jurisdiction over Secretary Rumsfeld in New York because of his contacts with that forum.

Returning to the merits of this case, what I think is important for this Court to realize is that the war on terror presents many difficult questions about the proper balance between civil liberties and national security.

Congress is the body of our government that has been... that was entrusted by the Founders for making law to deal with new situations.

And Congress is fully capable of considering the various parameters of any sort of scheme of detention that might be necessary.

And certainly this Court would have the power to review, to determine whether that system established by Congress were constitutional, but what we have here is a claim by the executive to a virtually unlimited system, where any person that the President deems an enemy combatant...

Justice Breyer: But on the basis of the, of the Congressional authorization.

He is not claiming it just by virtue of executive power.

Mr. Martinez: Well, he claims them both on the basis of inherent executive power and on the basis of the authorization.

Justice Breyer: Well, but since they are, since they are both the weakest... weakest claim is probably solely the executive.

But I think you have to deal with the claim that it's Congressional authorization.

Mr. Martinez: Yes, Your Honor.

There is simply no indication that when Congress passed the authorization for use of military force which enabled us to deploy our troops overseas, the Congress also thought that they were authorizing the indefinite military detention without trial of American citizens on American soil.

There was no debate of such a dramatic departure from our constitutional traditions.

And just a few weeks later when Congress passed the Patriot Act, it extensively debated a provision that allowed the detention of aliens for seven days.

Justice Breyer: The trouble is, I don't see how you can... I mean, I think I can understand your saying it doesn't give him any power except a battlefield power.

I can understand that.

You might read it that way.

But I can't understand reading it to say it applies to everybody, but not to United States citizens.

That line is just not there in the resolution.

Mr. Martinez: We would say it does not apply off the battlefield, certainly to U.S. citizens on U.S. soil.

And this Court...

Justice Breyer: But it does apply to aliens.

We... the President could use force against aliens under that resolution.

Mr. Martinez: This Court need not decide that in this case, and I certainly don't...

Justice Breyer: I understand, but you are proposing to us an interpretation of the resolution, which I suggest makes no sense, unless you are willing to say that it also doesn't apply to aliens that are being brought... that are committing these acts within the country.

Mr. Martinez: I would agree that it does not... the authorization does not clearly indicate that it's applicable to aliens either.

Justice Breyer: He might have the power to take up the aliens and arrest them any way because 4001 doesn't prohibit it?

Mr. Martinez: Correct, Your Honor.

Justice Breyer: Is that your point?

Mr. Martinez: Correct, Your Honor.

That is our point, which is that the degree of specificity that would need to be required to authorize this kind of extraordinary detention of citizens would be greater, and in particular with aliens, there has always been a greater power of the executive because they have no right to be here.

Justice Breyer: Then I take it then you have no, assuming... assuming that 4001 has been superseded by the authorization.

I assume you have no principal basis for distinguishing between citizens and aliens insofar as detaining an enemy belligerent?

Mr. Martinez: No, Your Honor.

As to individuals within the United States, if 4001 is not at issue because of its specific reference to citizens, we would say aliens within the United States would have the same, would be in exactly the same position.

Correct.

Justice Breyer: So you would make no distinction between the two.

Mr. Martinez: Correct, Your Honor, were it not for 4001.

But we think 4001 calls for not just for broad authorization of executive power, but specific authorization, because 4001 was concerned with the situation where there was a general declaration of war, or where there was some type of internal emergency.

And the concern was that the executive should not be able to rely on that general declaration of war or that general situation to lock up citizens.

That was precisely the situation with the Japanese internment camps, the President... President Roosevelt having authorized the broadest possible force you can have to fight a war.

There was a declaration of complete war against Germany and Japan.

Congress looked back on that and did not want a future President to be able to find in such a declaration of war the power to imprison American citizens.

They wanted it to come from specific legislation.

Justice Breyer: So you say that has no application on the battlefield because of the principle of no extraterritorial effect of United States statutes?

Mr. Martinez: Your Honor, certainly as to an overseas battlefield, 4001, because of the presumption against extraterritoriality, would not apply.

Justice Breyer: Now, what if you capture an American combatant and bring him back to the United States, then 4001...

Mr. Martinez: 4001 would apply upon his return.

Justice Breyer: It would apply?

Mr. Martinez: Correct.

And let me say also, in respect to the Japanese internment camps, Congress was very specific in passing 4001 that what it wanted was democratic deliberation by our lawmakers about the necessity of this kind of extreme measure, where American citizens might be detained without trial.

It didn't want that to slip under the radar, under the umbrella of a general declaration of war or general use of force.

It wanted to ensure that there was specific debate by Congress on those very different constitutional questions presented in those situations by the power of detaining citizens.

Justice Breyer: Did Congress at the time of 4001 consider other systems that do allow for preventative detention, but then require the person periodically to be brought before a judge to make certain that the conditions still exist, like, as is alleged in this case, to need to get evidence?

Mr. Martinez: Your Honor, there certainly are many other systems that provide for that sort of judicial review.

In the United Kingdom and Israel, for example, people detained under preventive detention schemes are entitled to access to counsel, they are entitled to prompt and periodic judicial review under legislative standards to determine whether those detentions can be continued.

And certainly there are many comparative examples out there where legislatures have made those kind of fact-findings about what's appropriate.

And there is no reason why our legislature could not undertake such...

Justice Breyer: The reason... and this is why I've been harping on this thing of necessary and appropriate.

It seems to me if you take into account the traditions of the United States ordinary criminal processes, and you say, well, the forces act, the use of force act, doesn't apply at all, then there is no way to take care of the real emergency, the real emergency, the real ticking time bomb, et cetera, except to go back to Congress, which may or may not act.

But if you get to the same result by reading the necessary and appropriate thing to take into account our traditions, you do leave the opening there for the possibility of a real emergency which would warrant an extraordinary proceeding.

I'm just exposing my thought on this so that I can get your reaction.

Mr. Martinez: Yes, Your Honor.

I think that's absolutely correct.

You could certainly read the necessary and appropriate language that way.

And let me also make clear that we are not arguing that the President would have no power either under the AUMF or under his inherent powers to seize an individual in the case of imminent violent activity.

We are simply talking about his power to continue to detain that individual over many months prior to that initial seizure.

And so regardless of how you read the AUMF, that's simply not what they're arguing about.

We're arguing about, once the individual has been prevented from carrying out the harmful attack, and once they're in Government custody, can they simply be held forever without trial until the end of the war on terror, or instead, once they're taken into custody, must they be treated in accordance with our positive laws.

Justice Breyer: So I take it you would say that the resolution was inadequate to continue to hold your client in the manner in which he is being held, even on the day in which it was passed?

This is not a two and a half years later argument, it would be an argument on the day it was passed?

Mr. Martinez: Yes, Your Honor, particularly...

Justice Breyer: I just want to make sure I understand you.

But you would not necessarily have objected, let's say, a week after September 11th, even though there was no resolution?

Mr. Martinez: If there were a situation where an individual, not like my client, but an individual that were on the verge of engaging in imminent violent conduct, certainly the President would have the power, even under the Fourth Amendment, to seize that individual without a warrant and bring him into custody on the basis that they were about to engage in a violent act.

But that's a far different situation from seizing someone like my client who is not alleged to be on the verge of imminent lawless activity, was not in the process of hijacking an aircraft but was simply alleged to be part of a plot...

Justice Breyer: Let me interrupt.

When you say it is clear he could do it if the defendant was about to engage in that kind of conduct, by what standard would you decide that he was about to?

Probable cause, proof beyond a reasonable doubt or just suspicion?

Mr. Martinez: For the initial seizure, we would say probable cause.

Justice Breyer: Reasonable suspicion based on confidential intelligence would not be sufficient?

Mr. Martinez: We would submit no, but it's possible that when that question came up, the quantum of evidence might be weighed against the danger that the executive perceived.

If the executive had some amount of suspicion that there was about to be a very violent activity, it could be possible that some lesser amount might be required for the initial seizure.

But we're not talking...

Justice Breyer: That's really a reasonable suspicion standard, then, isn't it?

Mr. Martinez: Yes, Your Honor.

But we're not talking about that question of initial seizure here.

In this case we're talking about the ongoing detention for two years of someone after there has been...

Justice Breyer: You wouldn't just say two years.

You would certainly say that as soon as the President prevented the act that he feared by taking the person into custody, he immediately had no more authority to detain him, wouldn't you?

I mean...

Mr. Martinez: Yes.

Justice Breyer: That's the way the statute you're relying on reads, that he shall not be detained.

So two years has nothing to do with it.

Mr. Martinez: Yes, Your Honor.

Justice Breyer: The next day he should, I suppose, you know, hand him over to civil prosecution authorities.

Mr. Martinez: Yes, Your Honor, we would say at 48 hours under this Court's decisions.

If Congress thinks that a longer period of time is appropriate in terrorism cases, it can do as other countries have done and provide for a longer period of time.

In the United Kingdom, there is a 48 hours plus a maximum of 7 days without charge for suspected terrorists.

In the United Kingdom, up to 14 days.

Congress might come in and provide some legislative extension.

But in the absence of that, a normal rule of 48 hours under County of Riverside would be appropriate.

Justice Breyer: But we are not just talking about terrorists here.

We're talking about terrorists associated with foreign forces.

Mr. Martinez: Yes, Your Honor.

And let me say that those are exactly the sort of individuals that the passage of 4001 was designed to address.

The Emergency Detention Act, which 4001 repealed, specifically talked about the possibility of saboteurs in this country who are under the direction and control of the communist empire.

And so there was a specific concern with individuals who might be under that kind of power in 4001.

And Congress wanted to make very clear that such individuals could not simply be detained at executive discretion, but could only be detained pursuant to positive law.

Positive law that is simply nonexistent in this case.

The type of association with a terrorist organization is also unclear based on the Government's allegations in this case.

Surely the Government cannot claim that anyone who associated with any member of Al Qaeda at any time would be subject to indefinite military detention without trial.

Mr. Padilla's mother, because she is associated with her son, may be argued to have associated with Al Qaeda, and clearly that's not what Congress had in mind, to allow that person to be locked up with no right to a lawyer, no right to a hearing for as long as the war on terror lasts.

That's simply not consistent with our nation's constitutional traditions, it's a limitless power and there is no call for it in this case.

Justice Breyer: So you say that Judge Mukasey's solution for this case was not adequate, then?

Mr. Martinez: Yes, Your Honor.

We do not believe that Judge Mukasey's solution was adequate.

We believe that in the first sentence, clear authorization and parameters for such detention must come from Congress, defining who ought to be detained and what procedures ought to accompany those detentions.

And at that point, this Court could review them for consistency with the Constitution.

But no, while certainly Judge Mukasey's order was better than what the Government offered, which was no process at all, no opportunity to be heard and no access to counsel, certainly Judge Mukasey's order was better than that.

But when the indefinite deprivation of a citizen's liberty is at stake, we would argue that the Government must come forward with more than some evidence consisting of any evidence in the record that might support the Government's position that he's associated with terrorists.

When this type of extreme deprivation of liberty is at issue, something more than that is required by the Due Process Clause and by our Constitution.

So certainly what we would say is that this Court needs not to decide those issues today, of what precise standard of proof ought to be given, exactly when an individual ought to be allowed access to counsel and what the limits are on how long such an individual could be held, et cetera, because those are primarily questions for Congress.

And this Court ought to wait until Congress has come in and provided that kind of guidance before it passes on these grave constitutional questions, which really go to the core of what our democracy is about, which is that the Government cannot take citizens in this country off the street and lock them up in jail forever without a trial.

That's never the way our country has operated and it's fundamentally inconsistent with our traditions.

And so I would submit today is not the day for this Court to decide whether that's permissible.

The Government asks in this case for basically limitless power and however grave the circumstances of the war on terror may be, this nation has faced other grave threats.

We've had war on our soil before and never before in our nation's history has this Court granted the President a blank check to do whatever he wants to American citizens.

So the fact that we're at war does not mean that our normal constitutional rules do not apply.

Even in wartime, especially in wartime, the Founders wanted to place limits on the ability of the executive to deprive citizens of liberty.

And they were concerned, based on the history of the British Crown, of the possibility that an unchecked executive using excuses based on national security, using the military power to render that superior to civilian authorities, could exercise the exact type of power that's at issue in this case.

Thank you, Your Honor.

Justice Breyer: Thank you, Ms. Martinez.

And Mr. Clement, you have four minutes remaining.

Rebuttal of Paul D. Clement

Mr. Clement: Thank you, Mr. Chief Justice.

I would like to make just three points.

First, on jurisdiction, it is true that the immediate custodian rule is not a hard and fast rule and it has been... exceptions have been made.

But the territorial jurisdiction rule, as statutorily prescribed, limits the Court's jurisdiction and is a hard and fast rule.

And the best evidence of the relationship between the two is in those cases where you had to relax one or the other, when you had a citizen detained abroad where the immediate custodian was abroad outside the territorial jurisdiction of any district court, rather than relax the rule of territorial jurisdiction, the Court said you could sue the Secretary of Defense in a district where there is territorial jurisdiction over the individual.

It is true there are situations like Strait against Laird that don't involve normal physical confinement, where the Court has had to come up with some rule to deal with the fact that you only have a metaphysical custodian.

But in the case of a physical detention of an individual, the Court has never relaxed the rule that you file it in the district where the immediate custodian is located.

And if you look at this Court's decision in Carbo and Justice Rutledge's dissent in Ahrens, you'll see that if you don't respect the rule in a situation like this, there is nothing left to the statutory language and nothing left of the intent of the Congress that passed it.

The second point I would like to make is that in looking at this case and the authority that's asserted and the role of 4001(a), it's important to recognize that there is a significant difference between civilian authority and the military authority over enemy combatants.

This Court, when it decided Endo and addressed the situation of the detention of the Japanese, specifically carved out the situation of the military detention of enemy combatants and said that that is not involved here.

It stands to reason that if Congress, in passing 4001(a) to effectively prevent another Japanese internment camp of concededly loyal citizens also probably wanted to put to one side the issue of military detention of enemy combatants.

In any event, the Court need not ultimately decide whether 4001(a) has any application because the authorization of force clearly provides the necessary act of Congress.

It authorizes not Article III courts for these individuals.

It authorizes military force.

And the relevant line here is provided this Court's case in Quirin, when somebody goes abroad, associates with the enemy, takes weapons training or explosives training with the enemy, and then returns to the United States with the intent to commit hostile and warlike acts at the direction of the enemy, that classically falls within the Quirin side of the line.

It's much different than a Landon Milligan who never left the State of Indiana.

And the military has authority over that individual.

Lastly, let me just address the argument that somehow you can constrain the authorization of force and read it only to apply in a battlefield setting.

With respect, I think that ignores the context in which it was passed.

It was passed seven days after September 11th.

The resolution itself recognizes that we face continuing threats at home and abroad.

It was not passed as a matter of retribution for those attacks, but to prevent future attacks.

To read it to deny the Government the authority to detain a latter day citizen version of Mohammed Atta is to simply ignore the will of Congress.

Thank you, Your Honor.

Unidentified Justice: Thank you, Mr. Clement.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o'clock.