National Security Advisors

CNSL event on the recent USN shoot-down of a falling satellite

Center for National Security Law (Virginia), "The Shoot-Down of the Failing NRO Satellite: Implications for ICBM Missile Defense" (Oct. 9, 2008)

http://www.virginia.edu/cnsl/pdf/shoot-down_of_nro_satellite_2008.pdf

The Center for National Security Law will host a Capitol Hill Forum on

the afternoon of Thursday, October 9, in room SR 385 of the Russell

Senate Office Building starting with a 4:30 PM wine and cheese reception

and concluding at 7 PM.

 

The program is entitled "The Shoot-Down of the Failing NRO Satellite:

Implications for ICBM Missile Defense."  There will be a presentation

(including video of the actual intercept) by Lt. Gen. "Trey" Obering,

Director of the Missile Defense Agency at the Pentagon, followed by a

panel of experts discussing the implications of the shoot-down for

ballistic-missile defense.  The panelist will include Professor Robert

Pfalzgraff, president of the Institute for Foreign Policy Analysis at

the Fletcher School of Law and Diplomacy; and retired Navy Vice Admiral

J. D. Williams, former Deputy Chief of Naval Operations for Naval

Warfare and Commander, U.S. Sixth Fleet.

…

 

The program is open to the public and there is no charge.  The Russell

building is Northeast of the Capitol on a site bounded by Constitution

Avenue, First Street, Delaware Avenue, and C Street, N.E. Washington,

DC.  For information on directions, parking, and the nearest Metro

station, see:

http://www.thecapitol.net/MapsAndDirections/capitolhillmap.htm .

 

RSVP (acceptances only) to:

 

cnsl@virginia.edu

(434) 924-4080

(434) 982-2622 (fax)

Shareef receives 35 year sentence in grenade plot

United States v. Shareef (N.D. Ill Oct. 1, 2008)

In November 2007, Derrick Shareef pled guilty to attempted use of a weapon of mass destruction in violation of 18 USC 2332a in connection to set off hand grenades at a shopping mall in Rockford, IL in December 2006 (recall that WMD are defined very broadly for purposes of federal criminal law, so as to include conventional explosives).  Today Shareef received a 35 year sentence on that count.  Details here: http://www.usdoj.gov/opa/pr/2008/September/08-nsd-872.html.

District Court rejects Bivens claim by citizen detained in Iraq, but warns against delay in detention screening

Kar v. Rumsfeld (D.D.C. Sep. 26, 2008)

A very interesting opinion by Judge Robertson.  Cyrus Kar is a US citizen who was arrested in Baghdad in 2005, and subsequently held by the US military for two months on suspicion of involvement with IED attacks.  He brought a Bivens claim for damages for alleged violations of his Fourth and Fifth Amendment rights:

Fourth Amendment claim: the government violated the Fourth Amendment by (i) failing to provide him with a probable cause hearing or its equivalent for almost seven weeks and (ii) continuing to detain him even after determining that he was innocent;

Fifth Amendment claim:  "Kar asserts that the "due process violation in this case derives from the totality of circumstances defining [his] indefinite, arbitrary and prolonged detention," focusing on three specific circumstances: (1) his detention without charge, and therefore, without notice of any charge; (2) his lack of opportunity to be heard in a meaningful manner at the Detainee Status Board hearing; and (3) his continued detention despite being found innocent."

The opinion dismisses Kar's suit on the ground that these rights were not sufficiently clearly established--as to this particular context—at the time of Kar's detention, and therefore that the defendants would be entitled to qualified immunity.  Notably, however, the opinion suggests that the facts alleged do suffice to make out a Fourth Amendment claim (though not necessarily a Fifth Amendment claim).

From the opinion:

Kar has alleged facts sufficient to make out a Fourth Amendment violation, but his rights were not clearly established 'in light of the specific context of the case.' . . . .

Kar concedes that his initial arrest and detention were reasonable, see Dkt. 18, at 31, but argues that his continued detention without a hearing was unreasonable because the Fourth Amendment requires a "prompt[ ]" hearing to assess the sufficiency of the evidence supporting detention… In the domestic criminal context, the Supreme Court requires that a detained individual receive a hearing within 48 hours of his seizure. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Congress insists that non-citizens detained pursuant to the USA Patriot Act receive a probable cause hearing within seven days. See 8 U.S.C. § 1226a(5). Kar claims that his detention for 48 days [FN2] without a hearing--more than 20 times longer than acceptable for domestic criminal suspects, and nearly seven times longer than permitted for aliens suspected of endangering U.S. national security--must be unreasonable.

 *4 The government urges, however, that Kar's extended detention without a hearing was reasonable when considered in its context. The 48-hour requirement in County of Riverside arose from a " 'practical compromise' between the rights of the individuals and the realities of law enforcement." County of Riverside, 500 U.S. at 53 (quoting Gerstein, 420 U.S. at 113). The Supreme Court acknowledged that "the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system." County of Riverside, 500 U.S. at 55. In the government's view, the "everyday problems of processing suspects" that arise for the military in Iraq are far more daunting than those encountered by the domestic police: "[t]he exigencies are more pressing, the stakes higher, and the pre-existing systems more rudimentary." Dkt. 13, at 25. Under similar circumstances, the government notes, the Supreme Court permitted the military to detain a suspected insurgent for two and a half months without a probable cause hearing, see Moyer v. Peabody, 212 U.S. 78, 82-86 (1909), and it submits that the military should be permitted to do so in this instance as well.

It may indeed be inconvenient to hold prompt probable cause hearings in Iraq, and military officials will be justifiably wary of releasing a suspected insurgent--particularly one thought to be involved in the manufacture of the IEDs that have claimed so many American lives. But it is startling that the government thinks it fitting to rely on a century-old Oliver Wendell Holmes opinion that asserts, flatly and without nuance, that "public danger warrants the substitution of executive power for judicial power." [FN3] Id . at 85. Granted that the "exigencies are more pressing" in Iraq, and that "the stakes are higher" there, and that "pre-existing systems are more rudimentary"--an army that is fully equipped with the latest technology can surely organize itself to convene a probable cause hearing in far less than 48 days.

Kar's problem in this suit, however, is that his right to a probable cause hearing was not clearly established with sufficient specificity to overcome the defendants' qualified immunity. As weak as the government's authority is, Kar has provided none at all--no precedent that clearly establishes the right of a U.S. citizen to a prompt probable cause hearing when detained in a war zone. Any attempt to apply the two-day requirement from City of Riverside or the seven-day requirement from the Patriot Act to Kar's circumstances ignores the differences between detention on U.S soil and detention in hostile territory. Because defendants did not violate any clearly established Fourth Amendment right, they are entitled to immunity.

This analysis suggests that the government might not have qualified immunity should the same scenario arise again.  It may be, of course, that this is a non-issue going forward given changes in the nature of the detainee processing system employed in Iraq since 2005.

It also is worth noting that the opinion rejects out of hand the government's suggestion that a Bivens remedy would be inappropriate in this setting.  The opinion does not engage with the 2d Circuit holding in Arar v. Ashcroft to the effect that Bivens should not be available in connection with rendition claims for reasons relating to national security, a decision that is now subject to en banc review. 

CTLab presents "Social Sciences in War: Defending Hamdan"

My friend Michael Innes at CTLab sends word that they are hosting an online symposium this week relating to Salim Hamdan, with a particular focus on the experience of historian Brian Glyn Williams as an expert witness for the defense at his trial. CTLab is a very interesting blog, and this promises to be a very fruitful exchange. From the sponsors description:

   

I'd like to draw your attention to a symposium entitled "Defending Hamdan", starting tomorrow and lasting until the following Friday. It is being conducted through the weblog of The Complex Terrain Laboratory, at http://www.terraplexic.org./review.

   

The symposium is CTlab's first, and is the first in a series entitled Social Sciences in War. This symposium revolves around the personal account of Dr. Brian Glyn Williams, an historian of Central Asia and Al Qaeda based at the University of Massachussetts, Dartmouth, of his experiences as an expert witness in the Guantanamo Bay trial of Salim Hamdan, "bin Laden's driver."

   

I'm pleased to announce that the following scholars, based in the US, Canada, the UK, Australia, and New Zealand, will be participating in the symposium.

   

David Betz (Insurgency Research Group, Dept. of War Studies, King's College London)

Christian Bleuer (Political Science, Australian National University)

John Matthew Barlow (History, Concordia University)

Craig Hayden (Int'l Communications, American University)

Kevin Jon Heller (Law, University of Auckland/University of Melbourne)

John Horgan (Psychology, Pennsylvania State University)

Thomas Johnson (Cultural Studies, Naval Postgraduate School)

Jason Ralph (Politics & International Studies, University of Leeds)

William Snyder (Law, University of Syracuse/Maxwell School)

Marc Tyrrell (Anthropology, Carleton University)

Tony Waters (Sociology, Chico State University)

L.L. Wynn, (Anthropology, Macquarie University)

   

The first four installments of Dr. Williams' account have already been posted to the weblog, at the following URLs:

   

The Capture and Defense of Bin Laden's Drive

http://www.terraplexic.org/review/2008/9/22/defending-hamdan-the-capture-and-defense-of-bin-ladens-drive.html#entry2203456

   

On Ruffling Establishment Feathers

http://www.terraplexic.org/review/2008/9/23/defending-hamdan-on-ruffling-establishment-feathers.html#entry2203459

   

Letter and Spirit of the Law

http://www.terraplexic.org/review/2008/9/24/defending-hamdan-letter-and-spirit-of-the-law.html#entry2203463

   

Digging Deeper for the Defense

http://www.terraplexic.org/review/2008/9/25/defending-hamdan-digging-deeper-for-the-defense.html#entry2203469

   

The fifth and final installment will be posted early tomorrow (UK/Europe time) after which the symposium will be formally launched with two introductory blog posts, one providing the background and outlines of the symposium, the other surveying coverage of the Hamdan trial in the law blogosphere.

 

We're looking forward to what promises to be an interesting conversation. Please disseminate news of this widely - we'd very much appreciate any awareness raising you might do to ensure that this project receives plenty of exposure and readership.

 

Best regards

   

Mike Innes

   

Michael A. Innes

 

Research and Practice Associate

Institute for National Security and Counter-Terrorism

College of Law/Maxwell School of Citizenship and Public Affairs

Syracuse University, Syracuse, New York, United States

http://insct.syr.edu/People/Associates/Bio_researchassociates.htm

 

Visiting Research Fellow

School of Politics and International Studies (POLIS)

University of Leeds, Leeds, LS2 9JT, United Kingdom

Phone (Dept.): +44 0113 343 6869

Fax (Dept.): +44 0113 343 4400

E-Mail: M.Innes@leeds.ac.uk

Faculty Page: http://www.leeds.ac.uk/polis/staff/academic/innes.shtml

Backgrounder on proposed revisions to AG Guidelines

* Consolidated Attorney General Guidelines – Background Briefing (9/13/08)

I don't have a copy of the draft Consolidated AG Guidelines to circulate, but those who are interested in the topic might want to review the recent background briefing posted here:

http://www.usdoj.gov/opa/pr/2008/September/08-opa-814.html

This exchange highlights the effort to permit investigators acting under the rubric of intelligence rather than criminal investigation to employ three techniques at the "threat assessment" stage: recruiting human sources (or tasking existing sources); pretextual interviewing (i.e., interview by FBI agent either without disclosing affiliation or without disclosing the real subject of interest); and ordinary physical surveillance. 

The briefing also discusses the nature of the "threat assessment" stage in intelligence investigations, emphasizing that the idea is to permit these and other basic procedures to be employed to gather intelligence for legitimate counterterrorism and counterintelligence purposes but without individualized predication.  Put another way, the briefing frames the change in terms of the ongoing effort to enable FBI agents to function as intelligence collectors, not just criminal investigators. 

The briefing also has a useful discussion of internal accountability mechanisms, including audit teams and other compliance mechanisms adopted after the National Security Letter disputes of recent years.

No habeas jurisdiction for conditions of confinement claims at GTMO, says Judge Hogan

In re Guantanamo Detainee Litigation (D.D.C. Sep. 22, 2008)

In this brief opinion, Judge Hogan denies a request for access to certain medical information relating to a GTMO detainee, and for the court to order the government to alter the conditions of confinement for that detainee.  Section 7(a)(2) of the MCA strips federal courts of jurisdiction to hear challenges to conditions of confinement, and Judge Hogan noted that nothing in the Supreme Court's Boumediene required the court not to comply with that provision.  The detainee, notably, did not directly challenge the constitutionality of section 7(a)(2). 

The opinion appears here: http://www.scotusblog.com/wp/wp-content/uploads/2008/09/hogan-order-9-22-08.pdf

Audio now available for “Prosecuting Terrorists: The Prosecutors' Perspectives - A Panel Discussion 9/8/08”

Co-sponsored by the New York City Bar International Human Rights Committee and Human Rights First

Ever since the first detainees began arriving at Guantanamo Bay in 2002, there has been debate about the proper forum in which to prosecute suspected terrorists. Now, with the conclusion of the first military commission trial at Guantanamo, the debate is more important than ever.

With James J. Benjamin, Jr., Former AUSA; Andrew McCarthy, Former AUSA; Mary Jo White, Former US Attorney; Richard B. Zabel, Former AUSA; Moderated by Hon. Benjamin Civiletti, Former U.S. Attorney General; Chaired by Mark R. Shulman.

http://www.nycbar.org/Committees/Pocasts_I.htm 

[I've not yet listened to this, but I plan to.  Given the lineup, this is a must-listen discussion for those who are following the ongoing debate regarding the capacity of the federal criminal justice system to bear more of the load with respect to counterterrorism.]

Anticipatory Self-Defence and International Law--A Re-Evaluation

View my article, Anticipatory Self-Defence and International Law - A Re-Evaluation, published by the Journal of Conflict & Security Law.

Abstract

Traditional state v. state war is largely a relic.  How then does a nation-state defend itself—preemptively—against an unseen enemy?  Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor.  This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

 

View a response written by Muge Kinacioglu, Department of International Relations, Bilkent University, Turkey,  A Response to Amos Guiora: Reassessing the Parameters of Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.

View another response written by Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam,  A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors. 

Cross-posted on AIDP Blog.

Cole on Terrorism Support and Guilt By Association

David Cole has posted "Terror Financing, Guilt by Association and the Paradigm of Prevention in the 'War on Terror'", forthcoming in COUNTERTERRORISM: DEMOCRACY'S CHALLENGE, Bianchi, Keller eds., Hart Publishing, 2008. From the abstract:

"Material support" has become the watchword of the post-9/11 era. Material support to groups that have been designated as "terrorist" has been the U.S. government's favorite charge in post-9/11 "terrorism" prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a "war crime."

This essay argues that the criminalization of "material support" to designated "terrorist organizations" is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing 'material support' for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts.

The essay concludes by explaining how the material support laws fit into the United States' broader "paradigm of prevention" in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past "wrongdoing." But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm.

[This is a strong statement of the critical view on the material support statute. For a statement of the contrary view (a bit dated now, but still responsive to the bulk of this critique), see this paper I wrote a few years back.]

DOJ summarizes its post-9/11 counterterrorism efforts

DOJ has created a new fact sheet summarizing its counterterrorism activities since 9/11 (see here: Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11).  The short documents lists major terrorism prosecutions, significant organizational developments, and a few other interesting odds-and-ends (including a brief discussion of efforts to prevent radicalization within prisons).  Also note this excerpt from the introduction, which implicitly responds to criticism that DOJ should wait longer before intervening with arrests when investigating terrorism suspects:

In each of these cases, the Department has faced critical decisions on when to bring criminal charges, given that a decision to prosecute a suspect exposes the Government's interest in that person and effectively ends covert intelligence investigation. Such determinations require the careful balancing of competing interests, including the immediate incapacitation of a suspect and disruption of terrorist activities through prosecution, on the one hand; and the continuation of intelligence collection about the suspect's plans, capabilities, and confederates, on the other; as well as the inherent risk that a suspect could carry out a violent act while investigators and prosecutors attempt to perfect their evidence.

While it might be easier to secure convictions after an attack has occurred and innocent lives are lost, in such circumstances, the Department would be failing in its fundamental mission to protect America and its citizens, despite a court victory. For these reasons, the Department continues to act against terror threats as soon as the law, evidence, and unique circumstances of each case permit, using any charge available. As Attorney General Mukasey has stated: "[W]hen it comes to deciding whether and when to bring charges against terrorists, I am comfortable knowing this: I would rather explain to the American people why we acted when we did, even if it is at a very early stage, than try to explain why we failed to act when we could have, and it is too late."