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).


Bensayah v. Obama; Al Maqaleh v. Gates (govt brief with attached Bagram Review Procedures); Camp Cropper facility closed; Oussama Kassir sentenced to life

September 14, 2009

1. Bensayah v. Obama (D.C. Cir.) (argument preview)

Heads-up: The DC Circuit will hear oral argument inBensayah next Thursday, in a hearing that is closed to the public.  This is an appeal of Judge Leon’s ruling denying habeas relief on the merits to one of the several GTMO detainees taken into custody in Bosnia (including Boumediene).  It is the first occasion for the Circuit to address the substantive scope of the government’s detention authority (the case also raises some procedural issues) in connection with habeas proceedings, though it should be noted that the Circuit previously had the opportunity to say a few things on this topic in Parhat v. Gates via the Detainee Treatment Act direct review system (i.e., the system of direct judicial review of CSRT determinations that the Supreme Court held inBoumediene did not provide an adequate substitute for habeas review).

2. Al Maqaleh v. Gates (D.C. Cir.) (government’s brief, including an attached copy of the Bagram

The government’s brief challenging the decision by Judge Bates to extend habeas review to Bagram detainees who are not Afghans and who were not captured in Afghanistan is posted here.  Of particular interest, the brief includes as an addendum (at pp. 78-85 of the pdf file) policy guidance setting forth the new procedures to be used in reviewing detainee status at the Bagram Theater Internment Facility.

3. Closure of Camp Cropper in Iraq (and the coming end of long-term military detention by the US in Iraq)

I normally don’t post news articles.  But after writing up the Al Maqaleh entry above, I wanted to draw attention to this article in the Times noting the recent closure of the US detention facility at Camp Cropper in Iraq and the anticipated shutdown in the months ahead of the remaining US long-term military detention facilities in Iraq.

4. 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.


Canada (Prime Minister) v. Khadr (Fed. Ct. App. (Can.) Aug. 14, 2009); useful BBC video on the airline plot conviction; forthcoming scholarship

September 9, 2009

1. Canada (Prime Minister) v. Omar Khadr (Federal Court of Appeal (Canada) August 14, 2009) (directing administration to seek repatriation of Khadr from GTMO)

A few weeks ago, Canada’s Federal Court of Appeal rejected the Canadian government’s appeal of Khadr v. Canada (Prime Minister), 2009 FC 405, in which a lower court judge had determined (i) that Canada violated Khadr’s rights under section 7 of the Canadian Charter of Rights and Freedoms (“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) when Canadian officials interviewed Khadr at GTMO and then shared the resulting information with U.S. authorities and (ii) that the Canadian government as a result was obliged to request Khadr’s repatriation immediately.  The government had appealed on the ground that the remedial order infringed the government’s exclusive control over foreign affairs (an argument that we in the United States of course would expect to see under the heading of Curtiss-Wright).  By a 2-1 majority, the Federal Court of Appeals rejected this argument.  The full opinion is posted here.

Note that the Supreme Court of Canada recently decided to hear the government’s appeal of this decision (arguments are set for November 13).

2. Handy teaching tool:  BBC videoclip on the UK Airline Bomb Plot Trial

This ten-minute videoclip from the BBC provides a very handy overview of the investigation, trials, and verdict in the UK airline bomb plot, which resulted in a series of convictions this week.  Most notably, it discusses the decision by the United States to permit the use of certain sensitive intelligence during the retrial (but not the original trial).  I used it today in class as a case study in the tensions that can arise between permitting the use of intelligence as evidence at trial (facilitating conviction, but risking exposure of the intel capacity) and withholding inculpatory intel (undermining trial prospects, but preserving the flow of intel).  It worked quite well.

3. Forthcoming scholarship

Apropos of the al-Kidd decision, note the following timely new book:

Counterterrorism and the Comparative Law of Investigative Detention


MAJ Dan Stigall

Chief, Rule of Law & Stability Operations OTJAG, International Law Division

Cambria Press

The years since the devastating attacks of September 11, 2001, have seen dramatic developments in the recognized challenges to U.S. national security and in the ways the United States reacts to terrorist threats. Those reactions have demonstrated both the flexibility and limitations of U.S. criminal law in its ability to adapt to terrorism. In response to the ongoing threat of domestic and international terrorism, governments across the globe have enacted counterterrorism legislation designed to facilitate the capture and interrogationof terrorist suspects. A focus on the perceived limitations of U.S. criminal law in this regard has led to calls from key players within the U.S. national security apparatus for an improved regime of investigative detention, such as those currently in place in the United Kingdom and France.

This book provides the first focused look at the concept of investigative detention and counterterrorism. It is also the first book to analyze in detail the comparative law of investigative detention in the United States, the United Kingdom, and France––laying out exactly how each investigative detention regime works, what the extent of each country’s powers are, and examining their use in counterterrorism. As such, it is one of only a handful of “practical comparative law” books on the market––a book which not only illuminates the legal landscape of various countries, but also seeks to inform counterterrorism policy through a comparative analysis.


al-Kidd v. Ashcroft; forthcoming scholarships

September 7, 2009

1. al-Kidd v. Ashcroft (9th Cir. Friday Sep. 4th)

A Ninth Circuit panel last Friday concluded (per Judge Smith) that (i) pretextual use of the material witness statute violates the 4th Amendment and (ii) this was sufficiently clear in 2003 so as to preclude a qualified immunity claim by former Attorney General John Ashcroft. The panel also rejected an absolute immunity claim, and rejected certain other causes of action.

The opinion obviously is quite significant, and almost certainly headed for further review.  Combined with a partial dissent from Judge Bea, the opinions in the case run to 91 pages.  Fortunately Orin Kerr (GW) has posted a thorough and insightful analysis here.  I agree with his take across the board, and so will not try to reinvent the wheel here.  I will, however, provide a key portion of his analysis just to make sure that the point is conveyed to those of you who don’t have time to click through and read Orin’s full assessment.  On the Fourth Amendment issue (and, by extension, the qualified immunity claim): Read the rest of this entry »


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