National Security Advisors

Forthcoming scholarship: Profiling, Prevention, Insurgents, Terrorism Financing, Technology and More

The latest from SSRN…

 

"Terrorism and Profiling: Shifting the Focus from Criteria to Effects" 

Cardozo Law Review, Vol. 29, No. 1-9, 2007

DAPHNE BARAK-EREZ, Tel Aviv University - Buchmann Faculty of Law
Email: barakerz@post.tau.ac.il

The article evaluates the proposal made by Heymann and Kayyem in their book Protecting Liberty in an Age of Terror to replace the practice of ethnic profiling by nationality-based profiling. It argues that in many circumstances this proposed alternative is not less offensive than ethnic profiling, especially when there is high correlation between ethnicity and nationality, and that at the same time it is does not prove to be an effective alternative in many other circumstances, especially in the context of immigration countries. Ultimately, the article proposes a shift in the focus of the debate on profiling from the controversy around the legitimate criteria for profiling to the context in which profiling is used and the kind of decisions to which it applies. The argument in this regard is that profiling is criticized also because it was used in the context of decisions with long-lasting effects on people's lives - for the purpose of completely denying people an entrance to a country or for detaining them (in the Korematsu example). Therefore, rather than focusing only on the question of the criteria used for profiling, it would be better also to ensure that profiling is used only with regard to enforcement decisions that do not have long-lasting effects on the lives of innocent people.

"The Institutional Logic of Preventive Crime" 

Stanford Public Law Working Paper No. 1272235

MARIANO-FLORENTINO CUELLAR, Stanford Law School
Email: tcuellar@stanford.edu

Criminal justice plays a major role in regulating undesirable conduct. As part of that role, the system relies on deterrence, incapacitation, and the shaping of social norms and preferences in an effort to prevent conduct considered harmful. But that preventive role is routinely misunderstood. This paper rethinks preventive enforcement by training attention on the relationship between criminal law and the institutional realities affecting risk regulation in environmental, health, and national security regulation. First, while not denying a host of problems with the expansive reach of criminal enforcement, the article describes how the structure of criminal enforcement does not draw particularly stable or convincing lines excluding risk regulation from its domain. Distinctions between administrative regulation and criminal enforcement therefore blur on the issue of whether preventing harm and regulating risks are crucial goals, but remain important with respect to matters such as type of sanction available (a commonly appreciated distinction) and type of agency used for enforcement (a less-commonly appreciated distinction).

Second, the analysis trains attention on preventive enforcement in a world where social regulation faces a variety of institutional constraints and where multiple political dynamics drive expansive criminal liability. In such a world, a coercive and costly darker side of criminal justice coexists with the socially-valuable institutional characteristics of law enforcement organizations. As examples from food and drug regulation, environmental policy, and national security demonstrate, the mix of unique sanctions and procedural constraints associated with criminal enforcement have distinct institutional effects on public agencies. Specifically, the criminal justice system is capable of fostering a measure of autonomy that often eludes conventional regulatory agencies, provides incentives for investigative competence, and creates contextual effects in the choice of sanctioning regime, allowing politicians to signal the national state's competence to a potentially skeptical public.

This perspective does not necessarily legitimize all preventive criminal enforcement. Instead, three major implications follow from the analysis. (1) Policymakers should rethink the unfavorable comparisons of law enforcement to intelligence agencies in the national security context. (2) Society should recognize that circumscribing preventive criminal liability has subtle and underappreciated costs for regulatory policy. (3) Scholars should better appreciate the interdependence between legal mandates and the evolution of organizations. By ignoring or minimizing the importance of criminal enforcement's distinctive institutional structure, however, scholars and policymakers have often misconceived the central role of criminal enforcement agencies in advanced industrialized states, providing policy prescriptions that are at best incomplete and at worse perverse and highly problematic.

"Legitimacy of Insurgents in International Law" 

Belgian Review of International Law, 2009

JEAN D'ASPREMONT, University of Leiden - Faculty of Law, University of Louvain
Email: j.daspremont@law.leidenuniv.nl

At first glance, the question of the legitimacy of rebels in international law may sound a bit awkward if not utterly absurd. Indeed, rebels are classically identified by opposition to the legitimate governments. This means that their illegitimacy is a constitute element of their status of insurgent. In other words, they are deemed rebels because they violently oppose the legitimate government. Moreover, it is not entirely certain the question of legitimacy, as a whole, is an issue to be taken up by international legal scholars. However, there still are a few hypotheses where a test of the legitimacy of the rebels is carried out in practice, the result of which impinges on the application of international law. It is the aim of this paper to grapple with these few exceptional situations where the legitimacy of the rebels is examined. To that end, a distinction is drawn between separatist rebellions, political rebellions and the situation of failed States.

"East Meets West in Anti-Money Laundering and Anti-Terrorist Finance: Policy Dialogue and Differentiation on Security, the Timber Trade and Alternative Banking" 

Asian Journal of Criminology, Vol. 3, No. 1, pp. 91-110, November 2007

NICHOLAS DORN, Erasmus University Rotterdam - School of Law, School of Social Sciences, Cardiff University
Email: dorn@law.eur.nl
MICHAEL LEVI, University of Wales System - Cardiff University
Email: Levi@cardiff.ac.uk

This paper compares and contrasts South East Asian and European Union countries' perceptions of the priorities for anti money laundering (AML) and anti terrorist finance (ATF) in relation to three industries: security goods and services; the timber trade; and 'informal' value transfer and banking services. It might be expected that all countries would equally support each of these aspects of AML/ATF policies, without differentiating between the industries generating the proceeds. As this paper will show, however, historical experiences, contemporary political relations and patterns of trade shape countries' approaches, resulting in distinctive enthusiasms and reservations. In a nutshell, the EU points most strongly to products and services originating in Asia as posing AML/CTF risks, and locates primary responsibility for monitoring and control as falling within Asia - a projection of risk and responsibility that is reciprocated by Asian countries. Asian countries perceive a need for tighter control of dangerous products exported by the west, for example, small arms and light weapons, and of related money laundering circuits. Asian and European policy makers increasingly articulate concerns over illegal logging and related laundering, however European importers and their governments see responsibilities for this as falling primarily within Asia. Finally, the EU (like the US) perceives high levels of laundering risk in 'informal' value transfer/banking services, in which Asian-run businesses have a global competitive advantage. For the future, as the international balance of trade shifts, and as Asia increases its influence in international fora including those concerned with AML/CTF, so the region's policy preferences may be expected to carry more weight.

"Power to the Edge? New Threats, New Responses" 

2008 Global Strategic Assessment, Institute for National Strategic Studies, National Defense University

K. A. TAIPALE, Center for Advanced Studies in Science and Technology Policy
Email: ssrn@advancedstudies.org

Enabled by modern network technologies, power is "shifting to the edge", allowing decentralized networked groups to compete with traditional hierarchical organization forms. The globalization of communications and computing infrastructure (together with new collaborative software) is allowing hostile non-state groups - including terrorists, criminal organizations, rogue corporations, anti-globalization movements, pernicious hackers, and proxy groups acting on behalf of or "encouraged" by other nation states or these other entities - to directly threaten national security and international stability. Increasingly, existing security arrangements and practices based on rigid geographic borders, exclusive sovereign control of physical territory, and unilateral response to global threats by individual nation states are inadequate to counter these groups effectively.

This essay provides a brief overview of these technology-enabled trends and their implications for current international and domestic security arrangements, and suggests how counter-forces might themselves adopt new strategies to meet these threats. In particular, this essay suggests that future national defense strategies should increasingly incorporate a decentralized, multilateral "public health model" for security against unknown threats based on local monitoring for emerging global threats, swarming global response resources to counter manifest threats, and developing robust resilience and shared recovery capabilities to withstand and recover from unexpected or spontaneous attacks.

 

Forthcoming scholarship: Sealing on FSIA and Due Process; Reich on SCR 1267 and Due Process; Michaels on Private Sector Checks on the Intelligence Community

State Sponsors of Terrorism are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act is Unconstitutional

Keith Sealing (University of Louisville Brandeis School of Law)

In 1996, Congress, as part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the list of noncommercial tort exceptions to sovereign immunity in the Foreign Sovereign Immunities Act ("FSIA") in response to a federal court's determination that it lacked subject matter jurisdiction over Libya and alleged Libyan terrorists in Smith v. Socialist People's Libyan Arab Jamahiriya, one of many cases resulting from the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. The ambiguously worded amendment appears to give federal courts both subject matter jurisdiction, which Congress clearly intended, and personal jurisdiction over the seven nations currently listed by the Executive Branch as "state sponsors of terrorism." The United States District Court for the Southern District of New York, the only court to address the amended FSIA, unconstitutionally interpreted it as according the court personal jurisdiction over Libya in the re-filed suit by the survivors, executors, administrators, and personal representatives of those killed over Lockerbie. This Article demonstrates that giving the court personal jurisdiction over a foreign sovereign simply because the Executive Branch has concluded that it is a "state sponsor of terrorism" or because an offshore terrorist act had some "effect" in the United States would violate the Due Process Clause of the Fifth Amendment absent the performance of traditional "minimum contacts" analysis under both the specific and general personal jurisdiction tests.

Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999) - With an Added Note on European Court of Justice, Judgment in Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, September 3, 2008

Yale Journal of International Law, forthcoming

Johannes Reich (Univ. of Basel - Law)

This paper assesses the legal consequences of the framework established pursuant to Resolution 1267 (1999) and subsequent decisions by the United Nations Security Council imposing sanctions on individuals not necessarily associated with states or state actors. This shift in focus piercing the veil of statehood raises pressing issues of both international and domestic constitutional law, human rights law, and administrative law (including the emerging field of international administrative law) as the current system lacks basic guarantees of fair trial and effective remedy. After analyzing the current framework, this paper critically reviews two decisions evaluating this new generation of "targeted" sanctions imposed by the United Nations, namely the case regarding Youssef Mustapha Nada v. State Secretariat for Economic Affairs of the Swiss Confederation (SECO) ["Nada-case"] by the Swiss Federal Supreme Court and - in an added note - the case regarding Yassin Abdullah Kadi et al. v. Council and Commission ["Kadi-decision"] by the European Court of Justice. Based on this analysis, this paper argues for installing an independent administrative mechanism to review both the listing and de-listing decisions made by the Security Council as only a mechanism at the level of the United Nations can, at the same time, preserve the crucial framework of international implementation of collective measures and also validate the core principles of the rule of law.

All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror

California Law Review, Vol. 96, p. 901, 2008

Jon D. Michaels (University of California, Los Angeles - School of Law)

Commentators who have examined the Executive's post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.

This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article's fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.

To mitigate these harms and enhance the legitimacy of domestic intelligence-gathering practices, the Article proposes to flip the private-public partnerships on their heads, converting the privatization schemes from the handmaidens of inscrutable intelligence policy into the guarantors of a new counterterrorism regime built on legality, integrity, and accountability. Whereas the Executive has shown itself willing (and able) to disregard legal requirements, the corporations lack the incentive and institutional capacity to act with similar abandon.

Thus, the Article recommends that Congress consider using these unlikely-but more pliable-corporate allies as gatekeepers, strengthening the currently incomplete and oft-bypassed legal framework for intelligence operations by obligating the firms to condition their intelligence-gathering cooperation on the Executive's compliance with legal formalities. Ultimately, the Article seeks not only to provide practical insights into the instant problems with unaccountable intelligence operations, but also to spark normative thinking both about how to manage a counterterrorism policy that is rapidly outgrowing the traditional boundaries of private versus public governance and, more generally, about how to involve private actors (and harness their self-interests) in efforts to boost compliance in other failing or failed public-law-enforcement paradigms.

Links to the Stay Motion and Release Order in the GTMO Uighur Detention Litigation

The government has filed an emergency motion seeking a stay of Judge Urbina's order directing the government to release the 17 Uighur detainees at GTMO into the United States.  The stay application is posted here.  The transcript of Judge Urbina's oral ruling is here, at pp. 31-43.

Two Detainees Transferred from GTMO

Two more GTMO detainees have been repatriated, one to Algeria and one to Sudan.  This leaves about 255 detainees still at GTMO (counting the Uighur detainees).

DOJ promulgates new AG Guidelines consolidating the rules regarding FBI operations in the US

DOJ has released the new Attorney General Guidelines for FBI domestic operations.  They are posted here.

 

2d Circuit reverses material support convictions, citing improper admission of hearsay evidence and immaterial/inflammatory evidence

United States v. Al-Moayad (2d Cir. Oct. 2, 2008)

The 2^nd Circuit has reversed and vacated the material support convictions of Mohammed Ali Al-Moayad and Mohammed Mohsen Zayed (involving fundraising for HAMAS), on the ground that the district court erroneously admitted into evidence a variety of evidence.  Specifically, the Court held that the trial judge should have excluded under Rule 403 testimony from a victim of a HAMAS bus bombing concerning the details of what happened during that bombing and likewise should have excluded the testimony of Yahya Goba (one of the Lackawanna Six) regarding the details of operations at the al Farooq training camp in Afghanistan (including supporting video involving bin Laden and Zawahiri).  In addition, the Court held that the trial judge should have excluded as hearsay various other items of evidence. 

The full opinion is posted here. 

Key excerpts summarizing these various rulings appear below:

The defendants contend that the testimony of Gideon Black about the Tel Aviv bus

5 bombing and of Yahya Goba about the Al-Qaeda training camp was irrelevant, prejudicial, and

6 highly inflammatory. They also contend that the district court permitted the government to elicit

7 testimony from both witnesses that strayed far beyond the government's proffered purpose in

8 offering the evidence – as to Black, establishing the defendants' knowledge that Hamas engaged

9 in terrorist acts, and as to Goba, authenticating the mujahidin form. We agree that the district

10 court should have excluded the challenged testimony under Rule 403, and that its failure to do so

11 deprived the defendants of a fair trial.

…

The defendants were not charged with planning or carrying out the Tel Aviv bus

2 bombing. Indeed, the government did not introduce any evidence connecting Al-Moayad or

3 Zayed to that or any other terrorist act, other than the fact that Siyam mentioned the Tel Aviv

4 incident during his speech at the group wedding. Nevertheless, Black was permitted to testify at

5 length about the suicide bombing. Black spoke about his cousin Yoni, their shared experience

6 studying in Jerusalem, their plans to visit family on the day of the bombing, the catastrophic

7 explosion and subsequent chaotic scene aboard the bus, and Yoni's death. Black also repeated

8 certain parts of his narrative multiple times, such as when he viewed photos of the destroyed bus

9 and described them for the jury, and when he commented on a video of a news story about the

10 bombing.

11 The government argued that the testimony was necessary to establish the defendants'

12 knowledge that Hamas engaged in terrorist activity, and was relevant to the issue of

13 predisposition. However, neither Al-Moayad nor Zayed ever denied knowing about Hamas's

14 involvement in violent acts and they both offered to stipulate as to that knowledge, essentially

15 eliminating the government's burden of proof on that element. In light of these concessions, as

16 well as the considerable testimony during other parts of the trial about notorious terrorist attacks

17 carried out by Hamas, any probative value to be gained from Black's testimony was significantly

18 diminished.

…

Even if the district court properly admitted Black's testimony for the proffered purpose –

2 to show that a bombing actually occurred, just as Siyam said it had – the court erred in allowing

3 the testimony to continue after that fact was established. After Black stated that a "huge

4 explosion" occurred at the front of the bus, defense counsel repeatedly objected to any further

5 testimony. The subsequent details about and images of the wreckage and the death of Black's

6 cousin were even less probative as to the issues at trial, and much more prejudicial. Nor can we

7 find, as we typically have done in rejecting Rule 403 challenges to the admission of evidence,

8 that a limiting instruction mitigated the prejudicial effect of the testimony. See, e.g., United

9 States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir. 2008); Paulino, 445 F.3d at 223; United States v.

10 Downing, 297 F.3d 52, 59 (2d Cir. 2002); Livoti, 196 F.3d at 326. The district court rejected the

11 instruction proposed by Al-Moayad's counsel, which would have informed the jury that "there is

12 no evidence nor allegation that either defendant had anything to do with the bus bombing [of]

13 which Mr. Black and his cousin were victims." Instead, the district court proposed the following

14 vague, tendentious instruction: "You have heard the testimony of a bus bombing, you will

15 determine based on the evidence or lack of evidence who was responsible for that incident. You

16 will also determine what that incident has to do or not to do with the allegations in the

17 indictment."

…

The district court also erred in allowing Yahya Goba to testify about his experiences at

8 the Al-Qaeda training camp in Afghanistan. With regard to Goba, the district court seems simply

9 to have failed to make the required "conscientious assessment" of the testimony's prejudicial

10 effect in comparison with its probative value, without which we have no adequate basis for

11 deferring to the district court's judgment. This omission stemmed, at least in part, from the

12 government's misleading proffer as to what Goba would say. In addition, the court repeatedly

13 and over objection allowed Goba to continue testifying far beyond the proffer, without providing

14 any indication of how (or whether) it had performed the Rule 403 assessment.

15 In theory, the government offered Goba's testimony to provide additional authentication

16 of the mujahidin form, although the form had already been authenticated and admitted into

17 evidence during Agent Hale Keenan's testimony.

…

Goba did testify about filling out a form identical to the mujahidin form, and about listing as his

5 reference the individual who sent him to the camp.

6 However, as described above, Goba's testimony continued well beyond the government's

7 proffer. Al-Moayad's counsel interposed numerous objections throughout. While several of

8 these were sustained, the court never appears to have assessed the probative value of the

9 continuing narrative, or required the government to constrain the testimony to the scope of its

10 proffer. For example, early in the examination but well after Goba discussed the application

11 form, defense counsel stated, "we're learning about this gentleman's experience in the camp that

12 is unrelated to anything involving the defendant in this case." The court received that objection

13 without comment, and the testimony continued. As to the Al Jazeera video of Bin Laden's visit,

14 defense counsel objected, "[t]his is further evidence offered in support of testimony which was

15 irrelevant to start with and much of which was already excluded." The court responded that

16 "[i]t's only three minutes. I am going to allow it." The court also summarily and without

17 comment denied defense counsel's Rule 403 objection.

18 Goba's testimony about the camp, and particularly the government's presentation of

19 images of Bin Laden and Al-Zawahiri, was highly inflammatory and irrelevant, and should not

20 have been permitted by the district court.

…

Al-Anssi's handwritten notes purportedly memorialize the content of his initial meeting

3 with Agent Murphy in Washington and his conversations with Al-Moayad in Yemen. See supra

4 Part I.C.1. The government argued, over the defendants' objections, that the notes were

5 admissible as prior consistent statements and to rebut a misleading impression created during Al-

6 Anssi's testimony that no document supported his claims about the defendants' predisposition.

7 The district court admitted the notes without limitation as substantive evidence.23 Because the

8 court did not explain the basis for its ruling, we cannot be sure whether it admitted the notes as

9 prior consistent statements or to rebut a false impression. In either case, the court clearly erred.

…

If the district court admitted Al-Anssi's notes for their substance as prior consistent

16 statements, it erred in doing so, as the notes do not satisfy the temporal requirement of the Rule.

17 Al-Anssi created the notes after a significant motive to fabricate arose, namely the large amount

18 of money he expected and was paid to furnish information to the FBI.

…

The government argues that even though the mujahidin form was hearsay, it was

9 nevertheless admissible as "a statement by a coconspirator of a party during the course and in

10 furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). According to the government, "there

11 existed an Al-Qaeda conspiracy to recruit and train Mujahidin and . . . Al-Moayad directly

12 participated in that conspiracy by, among other things, sponsoring Mujahidin for training with

13 Al-Qaeda." We disagree that the form could be admitted as a co-conspirator statement.

…

In this case, the district court did not satisfy the requirements of Rule 801(d)(2)(E). The

10 court made no findings, by a preponderance of the evidence or otherwise, about the existence of a

11 conspiracy including Al-Moayad and the individual who filled out the mujahidin form ("Abu

12 Jihad"), nor do we think the court could have done so based on the record before us. Contrary to

13 the government's contention, the record fails to demonstrate Al-Moayad's "longstanding

14 participation in a conspiracy to provide material support to Al-Qaeda," other than some

15 indication that Al-Moayad had a relationship with Bin Laden sometime in the past.

…

For many of the same reasons we discussed with regard to the mujahidin form, the

20 wedding video was not properly admitted under the co-conspirator statement exception…

…

The last will and testament is another matter. The document was hearsay, and the

14 government used the will for its substance. During its rebuttal summation, the government

15 argued, "[I]f you look through the translations of these materials, one of these men has a will. In

16 his will he basically says he's going to die as a martyr. That's what he's there for. These guys

17 are Mujahidin . . . ." The will would not have been admissible for its truth as a co-conspirator

18 statement. The government's evidence, including the will itself, was insufficient to establish that

19 Al-Moayad and the individual from whom the will was seized were engaged in a shared criminal

activity, even a general conspiracy to support Al-Qaeda. The district court therefore clearly erred

2 in admitting the will as substantive evidence.

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