United States v. Kaziu (E.D.N.Y. Sep. 24, 2009)

September 24, 2009

* United States v. Kaziu (E.D.N.Y. Sep. 24, 2009)

A busy week in Brooklyn…DOJ has announced the indictment of Betim Kaziu, based on the following allegations (this is from thepress release, not the indictment):

According to the indictment and other documents filed by the government, in early January 2009, Kaziu devised a plan to travel abroad for the purpose of joining a radical foreign fighter group and to take up arms against perceived enemies of Islam. Read the rest of this entry »


United States v. Zazi (E.D.N.Y. Sep. 24, 2009)

September 24, 2009

*United States v. Zazi (E.D.N.Y. Sep. 24, 2009)

Najibullah Zazi, who was arrested earlier this week on charges of making false statements to the FBI, has now been indicted in New York on a single count of conspiracy to use weapons of mass destruction (note: the WMD statute encompasses ordinary explosives) to attack persons or property in the US, in violation of 18 USC 2332a(a)(2).  I have not seen the indictment yet, but here is the relevant content of the press release: Read the rest of this entry »


new policy regarding assertions of the state secrets privilege

September 23, 2009

* Memorandum from Attorney General Holder, “Policies and Procedures Governing Invocation of the State Secrets Privilege” (Sep. 23, 2009)

The Justice Department today is announcing a new policy governing invocations of the state secrets privilege.  The four-page memorandum detailing the policy is attached, and the press release summarizing it more briefly appears below.  In brief, the policy entails both substantive and process changes, the general thrust of which are to deter unwarranted and overbroad invocations of the privilege while still preserving the availability of the privilege for use in appropriate cases. To wit: Read the rest of this entry »


United States v. Zazi (D. Col.); legislative proposal to add new mens rea element to the 1996 material support statute

September 20, 2009

1.. United States v. Zazi (D.Col.)

In a story that has received a significant amount of media attention over the past few days, FBI agents in Colorado have arrested Najibullah Zazi (a lawful permanent resident hailing from Afghanistan) and his father, Mohammed Wali Zazi (a naturalized US citizen originally from Afghanistan), while FBI agents in New York have arrested Ahmad Wais Afzali (a lawful permanent resident hailing from Afghanistan).  The men are charged with making false statements to the FBI in violation of 18 USC 1001(a)(2). Ordinarily that offense is punishable by a maximum sentence of five years, but the maximum is eight years where, as may be the case here, the false statement relates to an offense amounting to “international terrorism” as defined in 18 USC 2331(1). Read the rest of this entry »


further information re extradition of Abu Hamza

September 19, 2009

1. Update regarding extradition request for Abu Hamza al-Masri

Several people asked for additional information regarding the effort by Abu Hamza to resist extradition from the UK to the US, which is mentioned in Thursday’s post regarding Oussame Kassir.  In particular, people asked what grounds Abu Hamza had invoked before the ECHR.  Basically, his objection is to the prospect of a life sentence in supermax custody, which in his view would constitute inhuman/degrading treatment in violation of Article 3 of the ECHR.  Here is how the Court described the matter last year in the course of asking the UK not to extradite him pending the Court’s decision on the merits:

European Court of Human Rights grants
request for interim measures by Mustafa Kamal Mustafa (Abu Hamza)

On 1 August 2008, Mustafa Kamal Mustafa (Abu Hamza) lodged an application with the European Court of Human Rights (application no. 36742/08). He complains principally under Article 3 (prohibition of torture and inhuman and degrading treatment) of the European Convention of Human Rights that if extradited he would be exposed to treatment in breach of that provision because he risks a life sentence without parole and, particularly in view of his health problems, as a result of the fact that he might be detained in a so-called “supermax” detention facility.

The Government of the United States have sought his extradition to stand trial on charges relating to hostage-taking in Yemen in 1998-1999, conspiracy to create a terrorist training camp in Oregon between October 1999 and April 2000 and assistance to acts of terrorism in Afghanistan in 1999-2001.

Mr Mustafa sought interim measures under Rule 39 of the Rules of Court to prevent his extradition to the United States of America while the Court considered his application. On 4 August 2008, the Acting President of the Chamber to which the case has been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the United Kingdom, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the United States until the Court has given due consideration to the matter.

2. United States v. Kassir (S.D.N.Y. Sep. 15, 2009)

Following up on the post earlier this week describing the denial of Kassir’s post-verdict motions, Kassir has now been sentenced to life in prison.  That in itself is interesting, given the mix of charges on which he was convicted: various material support counts, an explosives count, and conspiracy counts under 956(a) that did contemplate an agreement to commit violent acts abroad but that did not (so far as I can tell) allege a link between Kassir and any particular act of violence.  I’ve written previously about the capacity of conspiracy liability to be used in this manner.  If you are interested, see here.

Also interesting, for those who are not keeping up with the long-running saga of the Oregon training camp with which Kassir was associated: The press release for the sentencing has a brief summary of the current situation relating to co-defendants who remain in the UK fighting extradition to the US, including especially Abu Hamza:

KASSIR’s co-defendants ABU HAMZA and ASWAT are presently detained in England awaiting extradition to the United States. In addition to the charges against all three men, the Indictment charges ABU HAMZA with conspiracy and substantive offenses relating to a hostage-taking in Yemen in 1998, facilitating violent jihad in Afghanistan, and supplying goods and services to the Taliban in 2000 and 2001. ABU HAMZA was arrested in May 2004 by the Metropolitan Police at New Scotland Yard in London, England, on a warrant relating to these charges. Thereafter, ABU HAMZA was charged with terrorism offenses by the U.K. authorities, which resulted in a conviction in the U.K. on February 7, 2006. The extradition proceedings against ABU HAMZA were stayed pending completion of the U.K. criminal proceedings. After ABU HAMZA’s U.K. conviction was affirmed on appeal, the United States renewed its efforts to extradite ABU HAMZA to the United States. The extradition proceedings against ABU HAMZA are currently pending in the European Court of Human Rights.


olc opinions on cybersecurity measures

September 18, 2009

* OLC opinions regarding certain cybersecurity measures

Just posted to OLC’s website, these will be of interest to those interested in the intersection of law, privacy, technology, and security.  If that topic interests you, by the way, please note that it is the theme of this year’s Texas Law Review symposium (with the security aspect defined broadly to include intelligence collection, sharing, storage, and analysis, as well as cybersecurity and network operations).  That event will take place in Austin from February 4-6, 2010.  More info on that to follow in the near future.  For now, here are the two OLC opinions:

LEGALITY OF INTRUSION-DETECTION SYSTEM TO PROTECT UNCLASSIFIED COMPUTER NETWORKS IN THE EXECUTIVE BRANCH
(August 14, 2009) (added 09/18/09)

LEGAL ISSUES RELATING TO THE TESTING, USE, AND DEPLOYMENT OF AN INTRUSION-DETECTION SYSTEM (EINSTEIN 2.0) TO PROTECT UNCLASSIFIED COMPUTER NETWORKS IN THE EXECUTIVE BRANCH
(January 9, 2009) (added 09/18/09)


Al Rabiah v. United States; error correction: it was Camp Bucca that closed, not Cropper; DOJ letter supporting reauthorization of roving wiretap, business records, and “lone wolf” provisions

September 18, 2009

1. Al Rabiah v. United States (D.D.C. Sep. 17, 2009)

Judge Kollar-Kotelly has granted habeas relief to Al Rabiah.  No underlying opinion available to the public yet, but the short order is posted here.  I will post the opinion as soon as possible.  It is certain to be interesting…

2. Error Correction – Camp Bucca, not Camp Cropper, has already closed

Yesterday I noted the Times article on the closure of detention facilities in Iraq.  In my haste, I wrote that Cropper was closed now, but in fact it is Camp Bucca that has closed already.  Thanks for the good catch, alert readers!

3. Letter from DOJ to Senator Leahy supporting reauthorization of certain PATRIOT Act and IRTPA provisions

Click here for DOJ’s six-page letter in support of reauthorization of FISA provisions on roving wiretaps and business records (both deriving from the PATRIOT Act) and “lone wolves” (from the IRTPA of 2004).


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