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No. 10-1111 IN THE SUPREME COURT OF THE UNITED STATES _____________ Chester Comerford, Petitioner-Appellant v.

United States of American, Respondent-Appellee _____________ On Writ of Certiorari to the Court of Appeals for the Fourteenth Circuit Court of Appeals _____________ BRIEF FOR RESPONDANT _____________

QUESTIONS PRESENTED FOR REVIEW 1. Whether the warrantless tracking of the defendants location through a cell phone violated the Fourth Amendment to the United States Constitution? 2. Whether the President exceeded his authority when he ordered the indefinite detention of an American citizen?

TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW...i TABLE OF CONTENTSii TABLE OF AUTHORITIES..iii Cases on Record.....iii Supreme Court Cases..iii CONSTITIONAL AMENDMENTS......iv CONGESSIONAL LEGISLATION........v STATEMENT OF THE CASE...vi SUMMARY OF THE ARGUMENT..x ARGUMENT...1 I. THE PRESIDENT ACTED WITHIN HIS RELM OF AUHTORITY WHEN HE ORDERED THE INDEFINITE DETENTION OF CHESTER COMERFORD.1 A. The President acted pursuant to the Authorization for Use of Military Force, AUMF, National Defense Authorization Act, NDAA, and Article II of the Constitution.1 II. THE PRESIDENT CORRECTLY CLASSIFIED MR.COMERFORD AS AN UNPRIVILEGED ENEMY BELLIGERENT..3 A. According to 10 U.S.C 948 (a)(7) Chester Comerford fits the criteria for an unprivileged enemy belligerent.3 CONCLUSION6

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TABLE OF AUTHORITIES Cases on Record Supreme Court Cases: Katz v. United States, 389 U.S. 347 (1967)......... Smith v. Maryland, 442 U.S. 735 (1979). United States v. Knotts, 460 U.S. 270 (1983). U.S v. Oliver, 466 U.S. 170 (1984).. U.S. v. Karo, 468 U.S. 705 (1984)... California v. Ciraolo, 476 U.S. 207 (1986). Kyllo v. United States, 533 U.S. 27 (2001)....... United States v. Jones, 132 S. Ct. 945 (2012).. Florida v. Jardines, U.S. (2013).. The Prize Cases, 67 U.S. 635 (1863)x,4 Ex Parte Milligan, 71 U.S. (4 Wall) 2 (1866).... Constanzo v. Tillinghast, 287 U.S. 341 (1932).3,4 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).......xi,1 Ex Parte Quirin, 317 U.S. 1 (1942)..4 Youngstown Sheet & Tube, Co. v. Sawyer, 343 U.S. 579, (1952)....2 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).5 Boumediene v. Bush, 553 US. 723 (2008)....5

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CONSTITUTIONAL AMENDMENTS U.S. Constitution, Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution, Article II, Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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CONGRESSIONAL LEGISLATION Authorization for Use of Military Force, Public Law 112-81 (2012) 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against United States by such nations, organizations or persons. 10 U.S.C 948 (a)(7) (7) Unprivileged enemy belligerent.The term unprivileged enemy belligerent means an individualwho (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; (C) was a part of al Qaeda at the time of the alleged offense under this chapter; or (D) has previously been defined as enemy combatant.

STATEMENT OF THE CASE AND FACTS Both parties agreed to the following facts. Chester Comerford, a U.S citizen, living in Olympus, purchased a smart phone knowing that it could be tracked through the phones GPS tracking capabilities. He went online and learned how to disable the GPS tracking. Chester Comerford, however, did not know that his phones IMSI (international mobile subscriber identity) revealed his location even when the GPS is disabled. The manual for Chester Comerfords phone did not disclose that the product included IMSI. The phones manufacturer website reports the existence of the IMSI and the manual provided the link to the manufacturer. The Federal Bureau of Investigation (FBI) received an anonymous tip that Chester Comerford had people arriving at his home at odd hours, and he would come and go in the middle of the night and thought he was involved with the selling of drugs. The FBI used the Chum, a recently purchased surveillance technology, which captures the IMSI of cellphones. The FBI purchased the Chum from a private retailer for $85,000. This device is chiefly used by the military or law enforcement, but IMSI catchers such as the Chum are available to the general public. There are reports in the media that criminals have acquired and even built their own IMSI-catchers. The Chum enables users to obtain a phones location through a cell phone tower. Cell phones, as long as they are powered on, constantly search for signals and send signals to cell towers. The Chum cell phone tower receives signals form all cell phones on the same network and responds every 7-15 seconds. The Chum cannot record or intercept the data or content from the device, but some IMSI-trackers available do have that capability. Each cell phone has a unique IMSI which are used by the by the cellular networks to determine if a cell phone user is a subscriber to its given network. Tracking an IMSI makes it possible to covertly

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determine, capture, and record a phones location. As long as the cell phone device is on, the Chum can track all cell phone and wireless devices on a given network in a given area with remarkable specificity. Law enforcement agencies and departments do not reveal much about the use of IMSI catchers, but it is known that the FBI has used the technology since 1990s. The media reports that these devices have been used in routine investigations and extraordinary investigations as well as can be purchased from private vendors (E-bay) and manufacturers. IMSI catchers have been mentioned in articles on the Internet and referred to in shows such as The Closer and Leverage. In this case, The FBI set up a single fake cell tower without a warrant in an open field near Comfords home. The Chum enables the FBI to narrow their surveillance to Comerfords specific IMSI through his cell phone number. The Chum could determine if and when Comerford left his home and where he went provided he carried his cell phone and it was powered on. The FBI, however, was unable to track Comerfords location or movements inside his home. The data discovered that Comerford traveled from his home at 18 Wheeler Road to a downtown warehouse district at 89 New Road every evening at 11:30 pm for a period of twentythree days. On the last day, the FBI physically followed Comerfod to the warehouse district with the aid of the Chum where officer saw Comerford meeting with William DeNolf and Matthew Costello. DeNolf and Costello are individuals who have a documented history of participating in the illegal sale of military grade arms, both have been suspected by federal agents to have ties to international terrorist organizations, and have been questioned twice about the suspicious ties. After witnesses the meeting, the FBI obtained a warrant to search Comerfords warehouse, automobile, and home. The police found documents indicting that Comeford had arranged to
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purchase a dirty bomb from DeNolf and cocaine, razor blades, scales, zip-lock bags, and a lot of drugs were discovered in his home. The three men were apprehended and a grand jury indicted Comerford for the possession of cocaine with intent to distribute. It did not indict the men in connected with the discovered documents pertaining to the dirty bomb. Before trial, Comerford moved to suppress the data from the Chum because Comerford alleged the use of the Chum and the collection of the data was a warrantless search in violation of the Fourth Amendment, however, the judge determined that the cell phone evidence was admissible. He agreed to plea guilty to a reduce charge of drug possession and reserved his right to appeal the denial of his suppressed motion. On July6, 2012, the President ordered that Comerford be transferred into military custody outside of the United States under 1021 (c)(1) and that he be held indefinitely under 1021 as well as under Article II of the United States Constitution. The Presidents order declared Comerford an unprivileged enemy belligerent and military transported Comerford to Guantanamo Bay, Cuba. While in custody, Comerford was permitted administrative review by a review tribunal of his detention. This new tribunal under the Obama Administration allows the accused to be represented by counsel, to have access to evidence against them, and to receive disclosures of relevant exculpatory evidence. Comerfords tribunal stated if Comerford found evidence to proved his innocence he would be able to present it to a court. This tribunal affirmed the constitutionality of the process afforded to Comerford and this affirmation is not before us because Comerford has not challenged this determination. He has not challenged any issues relating to speedy trial, right to bail, or ability to introduce evidence. His sole challenges are the denial of habeas corpus, and to the power of the President to have detained him pursuant to the presidents powers under the AUMF, NDAA, and constitutional powers in Article II.
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Comerfords counsel unsuccessfully sought a writ of habeas corpus from the district court. When that failed, counsel sought a writ from the U.S Court of Appeals from the Fourteenth Circuit. Both sides stipulated that this body has jurisdiction because civilian authorities in its jurisdiction apprehended Comerford. Comerford argued in the hearing that his indefinite detainment exceeded the Presidents authority and that the United States violated his Fourth Amendment right when it track his location through his cell phone without a warrant.

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SUMMARY OF THE ARGUMENT The President did not exceed his authority granted to him when he ordered the indefinite detention if Chester Comerford. The President was acting pursuant to Article II constitutional powers as well as those powers granted to him from Congress through The Authorization for Use of Military Force Act, AUMF, and National Defense Authorization Act, NDAA. The AUMF was explicit authorization from Congress to prevent any future acts of international terrorism against the United States. Through Chester Comerford dealings with William DeNolf and Matthew Costello, illegal military grade arms dealers with suspected ties to international terrorist organizations such as Al Queda, the President fulfilled those orders from Congress. Chester Comerford was correctly classified as an unprivileged enemy belligerent when the FBI found documents in the warehouse that Mr. Comerford had arranged to purchase a dirty bomb from Mr. DeNolf. The act of purchasing a dirty bomb is inherently a hostile act and one that would put the American people in danger and fits the criteria as outlined in 10 U.S.C 948 (a)(7). Chester Comerford meets both (a) has engaged in hostilities against the United States or its coalition partners; as well as (b) has purposefully and materially supported hostilities against United States or its coalition partners. Even though he has yet to fully commit the belligerent acts it is the Presidents duty to step in and prevent these dangerous acts from occurring. The President, as the Commander in Chief, must protect his citizens against any acts of imminent danger as stated in The Prize Cases and should not under any circumstances have to wait until Mr. Comerford carries out the use of the dirty bomb to detain him indefinitely.

The mere fact that the two men that Mr. Comerford was dealing with had suspected ties to international terrorist organization is enough to raise this issue to that as an international affair. As the sole organ of our nation in international affairs, as outlined in Curtiss-Wright, it is the Presidents duty to take action in the situation at bar. He is most knowledgeable and our representation when dealing with foreign nations and this is no exception. The President did not need to show deference to another branch of government because Congress, the legislative branch of government, delegated their powers to the President through the passing of the Authorization for Use of Military Force Act in 2001.

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ARGUMENT Issue two regarding Article II I. THE PRESIDENT ACTED WITHIN HIS RELM OF AUHTORITY WHEN HE ORDERED THE INDEFINITE DETENTION OF CHESTER COMERFORD. A. The President acted pursuant to the Authorization for Use of Military Force, AUMF, National Defense Authorization Act, NDAA, and Article II of the Constitution. 1. The AUMF explicitly grants the President the power in order to prevent any future acts of international terrorism. The Act was passed after the tragedy of September 11th, 2001 to give the President the power to stop catastrophes like that one from happening again. The legislative intent of Congress is clear and the Presidents indefinite detention of Chester Comerford prevented any dangerous act from occurring. The AUMF is particular in saying to prevent giving the President broad powers to deal with instances in which in some cases the hostility has not been carried out like the one in the case at bar today. 2. When passing the AUMF, Congress was specific in stating international terrorism in the final clause. The case presented is an international affair and the Presidents actions remain constitutional. According to page 5 of he record, the men Chester Comerford was meeting with have a documented history of participating in the illegal sale of military grade arms and have been questioned on two separate occasions by the FBI about their suspected ties to international terrorist organizations including al-Qaeda. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the case in which a weapons manufacturer
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violated an Executive Order issued by President Roosevelt, pursuant to a Joint Resolution issued by Congress. The court found that the President has the power to conduct foreign affairs in a way that Congress in unable to. This case delineated presidential powers of the President in regards to international and domestic affairs. Justice Sutherland states, The President is the sole organ of our nation in foreign affairs. This court has continuously ruled that in terms of international affairs Congress is not the appropriate representative for country and the President is the best decision maker when dealing with foreign entities. This case presents two men who have suspicious ties to international terrorist organization, well known arms dealers, who are selling a dirty bomb, referred to on page 10 of the record as a radiological weapon, to Chester Comerford, who has a past of questioning the government. Those facts make this squarely an international issue. 3. In Youngstown Sheet & Tube, Co. v. Sawyer 343 U.S. 579 (1952) Justice Jacksons famous concurrence allow this court to recognize that the powers of the President were at its maximum. It states when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that congress can delegate. Therefore, through the passing of the AUMF, the President no longer only possesses those powers granted to him in Article II of the constitution, but also all those powers that Congress possesses. 4. Whether the President explicitly had the power to indefinitely detain an American citizen is a question our legislative branch could not come to an agreement upon

in the past. Two occasions Congress failed to pass it any legislation that gives the President these powers. In Fawcus Machine Company v. United States cited in Constanzo v. Tillinghast, 287 U.S. 341 (1932) found that such legislative failure or in action, creates a presumption in favor of the administrative interpretation, to which we should give great weight. The mere fact that it is not stated within a statute does not mean that the powers do not exist. The intent of Congress is clear and through the passing of the AUMF to give these powers to the President during a time of international affairs. Additionally, the fact that Chester Comerford is a citizen by birth, according to page 3 of the record, is irrelevant because of his hostile acts as seen in Ex Parte Quirin, 317 U.S. 1 (1942) in which citizenship in the United States does not relieve an enemy belligerent of his consequences of belligerency which is unlawful. II. THE PRESIDENT CORRECTLY CLASSIFIED MR.COMERFORD AS AN UNPRIVILEGED ENEMY BELLIGERENT. A. According to 10 U.S.C 948 (a)(7) Chester Comerford fits the criteria for an unprivileged enemy belligerent. 1. Chester Comerford only has to fit one of the four categories to be considered an unprivileged enemy belligerent. Those four narrow categories are: (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; (C) was a part of al Qaeda at the time of the alleged offense under this chapter; or (D) has previously has been defined as enemy combatant. Part C and D do not apply in the case at bar, but Chester Comerford fits A and B
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of the criteria listed. The act of purchasing a dirty bomb is in it of itself a hostile act. That fact that we do not know if it is in his possession or that he has not used the weapon does not mean that he has not already engaged in hostilities. In the case of Ex Parte Quirin, 317 U.S. 1 (1942) this court found that Nor are petitioners any less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military combat. Chester Comerford purposefull y and materially supported hostilities when he met with well-known arms dealers (R-9) and in purchasing this dirty bomb will be supporting. The documents found in the search of the warehouse are material support of hostilities because the inevitable result of the purchase of a dirty bomb is poses great danger to our nation. Meeting with this individuals and drawing up a contract for the sale of a radiological weapon is substantial steps to determine that Chester Comerford is in fact an unprivileged enemy belligerent. 2. To put emphasis on the use of past tense words used in the statute would be misconstruing the legislative intent of Congress and going against what this court found in the case of Constanzo v. Tillinghast, 287 U.S. 341 (1932). We must look at the statue in its entirety and not put undue effect on one particular one used in a sentence. To wait until a dangerous act has fully been carried out to give the President the power to respond is unreasonable for this court to assume. 3. Since the civil war in The Prize Cases, 67 U.S. 635 (1863) a case in which the President declared a blockade on the southern ports and found that it was constitutional because it was within his presidential powers to act in the best

interest of our country without waiting for the clear approval from Congress. The Supreme Court decided that the character of a belligerent is question to be decided by the President. The court found the executive branch is the political department in which this power has been entrusted and that its in the Presidents power to determine what degree a crisis demands. The order of the indefinite detention is the appropriate measure that is in the power of the President to take action upon. 4. The military tribunal that Chester Comerford was afforded was an appropriate substitute for the denial of habeas corpus by the court. In the case of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) this court decided that an American citizen seeking to challenge his classification as en enemy combatant must receive a fair opportunity to rebut the Governments factual assertions for his clarification. The military tribunal provided under the Bush administration differs for the one that President Obama provided for Chester Comerford. In the case at bar as stated in Moot Court Problem on page 6 that Chester Comerford access to counsel, access to evidence, and disclosure of relevant exculpatory evidence. It also states, If Comerford found evidence to prove his innocence he would be able to present it to a court. This tribunal was approved to the nature of constitutionality and the lower courts properly denied the writ of habeas corpus. These new tribunals also differ from those in Boumediene v. Bush, 553 US. 723 (2008).

Conclusion The Presidents order for the indefinite detention of a homegrown terrorist, Chester Comerford, was constitutional. Congress passing of the Authorization for Use of Military Force Act was the explicit delegation of power to prevent future acts of international terrorism in the United States. Chester Comerfords attempt to purchase a dirty bomb from well-known arms dealers and suspected members of international organizations raises this case to an international affair in which the President serves as the sole organ and best-fit representative to handle the situation. The hostile acts of Chester Comerford allow the President to deem him as an unprivileged enemy belligerent and therefore legally sentence him to indefinite detention. If the court decides in favor of the Petitioner this will set a dangerous precedent that would strip the President of his constitutional powers of serving as the countrys Commander in Chief of our nation. Additionally, this would show the President that we do not trust him to make decisions in the best interest of the safety of the citizens of our country. The Founders of the constitution set the foundation to the separation of powers and in the case taking these powers away from the President would be in blatant disregard of equilibrium. Chester Comerford was acting against our nation and was a dangerous threat to our country. His past reveals that he was dissatisfied with our government and allows this court to reasonably assume that he was going to use that weapon against the United States or its people. The President acted well within his constitutional Article II powers coupled with that of the AUMF and NDAA to order the indefinite detain an American citizen, Chester Comerford.

For these aforementioned reasons, we respectfully request this court to AFFIRM the ruling from the Fourteenth Circuit Court of Appeals and find that the President did not exceed his authority when he ordered the indefinite detention of the PETITIONER, Chester Comerford. Respectfully Submitted, Counsel for United States of America