ORDER OF THE COURT ON SUBMISSION

Having Duly considered the written briefs of counsel for the parties and the Records of the Seventeenth Circuit of the United States, this court finds that the resolution of this case rests upon interpretation of Constitutional issues.

IT IS THEREFORE ORDERED that counsel appear before this court to present oral argument on the following issues:

(1) Whether a resident alien of the United States is entitled to due process protection under the Fifth and Sixth Amendments of the United States Constitution; and,

(2) Whether the President exceeded authority under the Second Article of the United States Constitution.
 

OPINION

HO, Circuit Court Judge:

Defendant Dr. Raman Aziz al-Abi ("al-Abi") claims prosecution by military commission violates provisions of the Fifth and Six Amendments to the United States Constitution, and that Executive Order issued by the President on November 13, 2001 exceeds the authority of the Second Article of the United States Constitution. We agree and order Defendant al-Abi’s immediate return to temporary detention in an appropriate Federal facility in close proximity to al-Abi’s residence and immediate access to legal counsel.

I.

A resident alien of the United States and tenured professor at the University of Northwest Central Texas at South Pantego, al-Abi was arrested on January 28, 2002. Residing continuously in the United States for twenty-seven years prior to arrest, al-Abi had been accepted for U.S. citizenship the week prior to his arrest, and a naturalization ceremony had been scheduled for February 11, 2002 at the Federal Courthouse in Dallas, Texas.

Defendant al-Abi’s arrest occurred in plain view of approximately one hundred students in a campus lecture hall, who overheard al-Abi repeated pleas for an opportunity to consult with an attorney prior to his being placed in leg and wrist shackles and physically dragged to a large van bearing U.S. Government license plates. The arresting persons declined to speak with anyone present at the scene of the arrest, according to witnesses.

Friends and family members of al-Abi retained legal counsel in his behalf, requesting information concerning al-Abi’s status, current location, and information regarding possible criminal charges. When local police authorities denied any knowledge of the arrest and detention, inquiries were made to various officials of the U.S. Attorney, the U.S. Department of Justice, and the Office of Homeland Security. When all written requests for information were ignored, counsel petitioned for a Writ of Habeas Corpus before the 344th District Court Federal District Court, Judge Lisa Godwin Presiding, on April 22, 2002.

In a motion filed on April 25, 2001, the Government asserted that Section 7 b(2) of the Military Order issued by the President of the United States on November 13, 2001, denied Defendant a hearing before this Court and requested dismissal of the Application for Writ. Section 7 b (2) of Military Order provides:
 

Judge Godwin delayed further proceedings until April 26, 2001, when an en banc panel of nine District Court judges was constituted. The Government was then ordered, under pain of an Order of Contempt of the en banc panel, to immediately disclose the nature of any allegations pertaining to al-Abi and the detention location. The Government petitioned for a thirty day delay. The Court denied this request and ordered immediate disclosure.

An Agent of the National Bureau of Investigation, Office of Homeland Security, United States Government, Mr. William DeNolf, testified that al-Abi had been charged with being a "terrorist" under provisions of various clauses of Section A of the Military Order of November 13, 2001, that Defendant al-Abi
 

Mr. DeNolf testified that on October 14, 2001, al-Abi delivered a speech at a San Antonio conference of the Middle East and Islamic Studies Association, a scholarly group, condemning "Evil U.S. military occupation of the Holy Lands of Saudi Arabia since 1990" and urging the audience to "support any and all efforts to remove these oppressors, using whatever means necessary" to rid the "most holy of all lands of Islam from infidel occupation." A video tape recording of this speech was played before the 34th District Court. The speech included references to former President George Bush’s ownership of Zapata Petroleum during the 1950s and 1960s, and referred to former President George Bush enrichment "from Kuwaiti petroleum." "In 1991," claimed al-Abi, "Bush restored to the Kuwaiti throne his former business partners, the al-Sabah family, using the might of the United States military and concealed this from the American people in a conspiracy with the media. And now they occupy the holy land and control the Saudi oil." "The real danger to freedom loving peoples are American politicians and their corporate sponsors," al-Abi asserted. Agent Gallant testified that since the purpose of this speech was to incite violence against America and American financial interests, to cause general harm, and to provide aid and comfort for terrorists, al-Abi is a terrorist.

Agent DeNolf then outlined the second allegation, that Defendant al-Abi contributed "a large" (unspecified) "sum of money" to a terrorist group, "the Islamic Children’s Relief Organization," which the Government alleges in turn transferred funds to several other persons and groups in the Middle East for the purchase of armaments and explosives. Agent Gallant testified that those who provide aid and comfort to a terrorist group are also terrorists.

The Government further asserted that al-Abi’s eighteen year old half brother, Saddam Aziz Saudairi, who briefly visited al-Abi in 1997, is a member of the "Moslem Brotherhood," a group believed responsible for several violent acts in three European countries. Saudairi is currently detained in an undisclosed location outside the United States. Agent DeNolf testified that those who associate with and those who harbor terrorists are also terrorists.

Agent DeNolf then disclosed that Al-Abi had had been transported to the Federal Detention Facility at the U.S. Naval Facility at Guantanamo Bay, Republic of Cuba, for interrogation and possible trial by a Military Commission.

II.

On November 13, 2001, the President issued a Military Order (66 F.R. 222 at 57831), pertaining to the arrest, detention, and trial of persons who have
 

Section 7 (b) of this Military Order specifies:
 

Defendant al-Abi contends that this Military Order violates Amendment V and VI of the Constitution: rights to an "indictment of a Grand Jury" and "a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Further, Defendant contends Section 7 (b) 2 of the Military Order violates the United States Constitution by denying detainees rights to pursue legal proceedings in domestic and other courts.
 

The Government urges this Court rely upon Ex Parte Quirin, 317 U.S. 1 (1942), in which trial by military commission of seven saboteur-spies was held Constitutional. On December 8, 1941, the President requested a Declaration of War upon the Empire of Japan, which was immediately approved by Joint Resolution of Congress. On December 11, 1941, the President requested a Declaration of War upon the Germany, also approved by a Joint Resolution of Congress. Seven saboteur-spies were arrested in 1942 after being secretly delivered to American shores by German submarine and ordered tried by military commission.

Although none of the seven German detainees were in military uniform at the time of their arrests in 1942, the opinion in Quirin specifies all seven buried their military uniforms after landing on American soil; all seven received specialized training in espionage and terrorism prior to departing Germany; all were carrying large sums of American currency; all were carrying instruments of terror or espionage.

In reviewing the circumstances surrounding the issuance of Military Order of November 12, 2001, this Court notes that the President has not (as of the date of this opinion) requested Congress adopt a Declaration of War, nor has Congress approved by resolution a Declaration of War. Moreover, the Government has not shown Defendant al-Abi to be an agent of a foreign power, a member of a foreign military, or even a member of a terrorist organization. No military uniforms allegedly belonging to the Defendant were presented to the District Court, or evidence of terrorist training or training in various arts of espionage.

This Court notes the father of one of the German saboteurs in the Quirin case, a American (naturalized) citizen, charged with aiding and abetting his son’s efforts to harm the United States, was tried by civil court rather than by a military tribunal. Haupt v. U.S. 330 U.S. 631 (1947).

The Government urges this court rely upon Madsen v. Kinsella, 43 U.S. 341 (1952), in which it was determined that a native born U.S. citizen and civilian dependent of a military officer was properly tried by military commission for murder of her husband in occupied Germany. The crime occurred in a military zone outside the United States in an area lacking civil courts, a clear distinction with the facts of the matter under review here.

The Government asserts secrecy in the proceeding against al-Abi is vital to the national security and to protect grand jury members, various members of the judicial bench, and trial jurors from retaliation. This Court agrees with the eloquent opinion of esteemed Justice Black, penned In Re Oliver 333 U.S. 257 (1948):
 

Ex Parte Milligan 71 U.S. 2 (1866) is controlling: a civilian resident of Indiana, tried for unspecified crimes by military commission and sentenced to death, petitioned for indictment and trial in civilian courts. Noting that martial law had not been declared in Indiana and that civil courts were open and fully functioning, the Court declared:
 

The Milligan Court held that the Government seriously erred in refusing to observe the requirement of fundamental legal process in regard to Defendant Milligan, namely indictment and trial by a jury of peers in a civil court.

In Toth v. Quarles 350 U.S. 11, the Supreme Court declared:
 

All residents, citizens or otherwise, are entitled to fundamental protections from tyrannical Government. In Plyler v. Doe 457 U.S. 202 (1982), illegal aliens were granted procedural rights in litigating the denial of fundamental services. In Shuaghnessy v. Mezei, 345 U.S. 206 (1953), this Court held that all residents, citizens and non-citizens in the United States legally or otherwise, are entitled to due process of law. See also Wong Wing v. U.S. 163 U.S. 228 (1896)and Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953).

While the order in question is limited to non-citizens, the Supreme Court reaffirmed just this summer that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas v. Davis, 121 S. Ct. 2491 (2001). Moreover, the constitutionality of trial by military commission is simply not based on the status of the offender as citizen or non-citizen. The order could easily be extended at the stroke of a pen to include United States citizens, who were tried before such commissions in the case of the saboteurs. In that case, the Supreme Court held that one saboteur's status as a United States citizen "does not relieve him" from trial before a military commission. Quirin, 317 U.S. at 38. "[T]he offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal."

All residents--citizens, about-to-be citizens, or non-citizens--are equally entitled to due process of law. We note the inferior status of military tribunals. We note that civil courts are currently open and functioning. We note the absence of a Declaration of War or declaration of martial law. We conclude Defendant al-Ali has been denied fundamental rights guaranteed under the U.S. Constitution. Section 7 b (2) violates the Fifth and Sixth Amendments to the United States Constitution.

III.

Defendant al-Abi also contends the President in issuing the Order of November 13, 2001 exceeded his authority under 2nd Article of the United States Constitution. We agree.

The issues raised here represent another episode in the never-ending tension between the President exercising executive authority and the Constitution under which we all live. The questions presented by this case touch upon the manner in which our Republic is to be governed. John Jay, Alexander Hamilton, and James Madison wrote of these tensions in The Federalist Papers at the Government's birth. Foreign observes of our system, such as Alexis de Tocqueville and James Bryce, also offered commentary on the tension between executive and the other branches.

Youngstown Co. v. Sawyer 343 U.S. 579 (1952) is controlling. An Executive Order issued by the President directed the Secretary of Commerce to seize and operate a number of American steel mills. This Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Youngstown Court determined that the Executive Order was not authorized by the Constitution or laws of the United States and therefore could not stand. (at 585-589). The Court concluded:
 

In requesting this Court support the Military Order of November 13, 2001, the Government cites the threat of violence to the nation and urges reliance upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. However, we cannot find a specific Constitutional basis supporting the issuance of the Military Order of November 13, 2002. Threats of violence are not an appropriate rational for suspension of civil law.

Further, should this sort of action be required, it is Congress, not the President who is empowered to take such action. Chief Justice John Marshall wrote plainly, "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801). This is true whether Congress authorizes "general hostilities" by declaring war, or "partial hostilities" by authorizing the use of force in an military action short of war, as it has done here.

In Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Supreme Court made clear that the President cannot, on his own, authorize detention without trial, saying only Congress had that power. While the justices were divided on when Congress could authorize military trials, even those who supported a broad view of the government's emergency detention powers agreed that when Congress put limits on those powers, the President was bound to respect them. Because Congress had expressly permitted detention without trial under certain circumstances - but not those involving Milligan's case - the President could not unilaterally expand those circumstances. That is the case here as well.

The Government is hereby ordered to immediately return Defendant to a detention facility nearest his former residence and to permit immediate access to counsel of his choosing.
 

Signed by Judges Ho and Molden
Court of Appeals
Seventeenth Circuit

 
* * *

DISSENT by Judge Sommerman

I.

The military tribunals authorized by the President on November 13, 2001 guarantee various due process rights: a right to a "a full and fair trial" {Section 4 (c) (2)} and right to counsel to anyone charged with violating the Order {Section 4 (c)5}. The Orders set forth evidentiary rules (Section 4 (c) 6}. All decisions of these military commissions must be reviewed by the President or the Secretary of Defense {Section 4 (c) 8}. Thus, these military commissions will be conducted fairly and with due process, and given the threat to jurors, judges, and their families, and to national security, these trials must be held in secret.

II.

On September 14, 2001, as the result of a devastating loss of lives and property three days earlier in an act of war upon the United States, the President issued a Proclamation declaring a "State of National Emergency" (2001 W.Comp.Pres.Doc 1320). A Joint Resolution of the Congress (SJ Res. 23) authorized the use of military forces "Against those nations, organizations or persons" responsible for attack. (P.L. 107-40, September 18, 2001). Thus, the Congress supported the President and therefore a formal Declaration of War approved by Congress is not required to buttress the President’s Military Order for trial of enemies of the United States by military commission.

Constitutional bases for such authority abound in Article II of the Constitution:
 

In the "prize" cases, The Amy Warwick, 67 U.S. 635 (1862), the Supreme Court declared:
 

Chief Justice Vinson, in a dissenting opinion in Youngstown Co. v. Sawyer 343 U.S. 579 at 685 (1952), noted,
 

In In Re Neagle 105 U.S. 1 (1890), the Supreme Court granted implicit powers to the President. Those powers have been exercised in similar contexts many times in the past and have been upheld by this court. See Korematsu v. U.S. 323 U.S. 214 (1944), upholding Presidential authority to confine American citizens in internment camps, Hirabayashi v. United States 320 U.S. 81 (1943), upholding war time curfews for certain groups of citizens, and Johnson v. Eisentrager, 339 U.S. 763 (1950), holding that nonresident alien enemies were not entitled to bring habeas corpus in a court in this country. Finally, in United States v. Curtiss-Wright 299 U.S. 304 (1936), the Supreme Court conferred upon the President the sole authority to speak on behalf of the United States in international relations.

Furthermore, Ex Parte McCardle 74 U.S. 506(1869)would seem to dispose of this matter. In that case, the Supreme Court found that it was powerless to decide on matters that had been directly removed from the Court’s authority. In McCradle’s case, Congress repealed repealed an act granting McCardle’s authority to challenge his trial before a military commission. In the case at bar, the law is clear. Section 7 b (2) of Military Order provides:
 

Accordingly, this Presidential order has removed jurisdiction from the Courts in this matter. The judiciary must defer to the President on this matter.

For the above reasons, Constitutional support for the President to pursue his effort to preserve the lives and property of Americans exists. The Application for Writ should have been denied.
 

TABLE OF CASES AND AUTHORITIES

The Amy Warwick, (The Prize cases) 67 U.S. 635; 2 Black 635 (1862).

Ex Parte McCardle, 74 U.S. 506 (1869).

Ex Parte Milligan, 71 U.S. 2; 18 L.Ed. 281; 4 Wall. 119 (1866).

Ex Parte Quirin, 317 U.S. 1 (1942).

Haupt v. U.S., 330 U.S. 631 (1947).

Hirabayashi v. United States, 320 U.S. 81 (1943).

In Re Neagle, 105 U.S. 1 (1890).

In Re Oliver, 333 U.S. 257 (1948).

Johnson v. Eisentrager, 339 U.S. 763 (1950).

Korematsu v. U.S. 323 U.S. 214 (1944).

Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953).

Madsen v. Kinsella, 43 U.S. 341 (1952).

Military Order of November 13, 2001 66 F. R. 222 at 57831-57836.

Plyler v. Doe 457 U.S. 202 (1982).

Proclamation of National Emergency 2001 W.Comp.Pres.Doc 1320 (September 14, 2001).

P.L. 107-40 September 18, 2001.

Shuaghnessy v. Mezei, 345 U.S. 206 (1953).

Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801).

Toth v. Quarles, 350 U.S. 11 (1955).

United States v. Curtiss-Wright, 299 U.S. 304 (1936).

Wong Wing v. U.S., 163 U.S. 228 (1896).

Youngstown Co. v. Sawyer, 343 U.S. 579 (1952).

Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001).
 

APPENDIX

Proclamation No. 2561. July 2, 1942

The Military Order:

By virtue of the authority vested in me as President and as Commander in Chief of the Army and Navy, under the Constitution and statutes of the United States, and more particularly the Thirty-eighth article of War (U.S.C. Title 10, Sec. 1509), I, Franklin Delano Roosevelt, do herby appoint as a Military Commission the following persons:

Major General Frank R. McCoy, President

Major General Walter S. Grant

Major General Blanton Winship

Major General Lorenzo D. Gasser

Brigadier General Guy V. Henry

Brigadier General John T. Lewis

Brigadier General John T. Kennedy

The prosecution shall be conducted by the Attorney General and the Judge Advocate General. The defense counsel shall be Colonel Cassius M. Dowell and Colonel Kenneth Royall.

The Military Commission shall meet in Washington, D.C., on July 8th 1942 or as soon thereafter as is practicable, to try for offenses against the Law of War and the Articles of War, the following persons:

Ernst Peter Burger

George John Dasch

Herbert Hans Haupt

Henry Harm Heinck

Edward John Kerling

Hermann Otto Neubauer

Richard Quirin

Werner Thiel

The Commission shall have power to and shall as occasion requires, make such rules for the conduct of the proceedings, consistent with the powers of Military Commissions under the Articles of War, as it shall deem necessary for a full and fair trial of the matters before it. Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. The concurrence of at least two-thirds of the Members of the Commission present shall be necessary for a conviction or sentence. The record of the trial including any judgment or sentence shall be transmitted directly to me for my action thereon.

The Proclamation:

WHEREAS, the safety of the United States demands that all enemies who have entered upon the territory of the United States as part of an invasion or predatory incursion, or who have entered in order to commit sabotage, espionage, or other hostile or warlike acts, should be promptly tried in accordance with the Law of War;

Now, THEREFORE, I, Franklin D. Roosevelt, President of the United States of America and Commander in Chief of the Army and Navy of the United States, by virtue of the authority vested in me by the Constitution and the statutes of the United States do hereby proclaim that all persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or war-like acts, or violations of the law or war, shall be subject to the law of war and to the jurisdiction of military tribunals; and that such persons shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on their behalf, in the courts of the United States, or of its States, territories, and possessions, except under such regulations as the Attorney General, with the approval of the Secretary of War, may from time to time prescribe.
 

Source: Roosevelt, Franklin D. The Public Papers and Addresses of Franklin D. Roosevelt, Compiled With Special Material and Explanatory Notes by Samuel I. Rosenman. Vol. 11, 1942 Humanity on the Defensive. New York: Harper and Brothers.