nationalsecuritylaw forthcoming scholarship

February 28, 2011

* Forthcoming Scholarship

From the Michigan State Journal of International Law (note that these are just the abstracts; the papers themselves are not posted on the journal’s site yet, but instead should be accessed via Westlaw, Lexis, or in hard copy):

The Michigan State Journal of International Law is proud to announce that its latest publication is now in print, as well as being available on Lexis-Nexis and Westlaw. Volume 19, Issue 1 of the Journal is entitled "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention."

"The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?"
-John Ip (Citation: 19 Mich. St. J. Int’l L. 1 (2010-2011))

“This Article is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the War on Terror in the historical context of judicial behavior in times of war or crisis. The conventional account of judicial behavior during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts reassert themselves, resulting in a cyclical pattern of contraction and expansion of liberty. How do the relevant post–9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This Article considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behavior.”

"A Lost War on Terror: Forgotten Lessons of the Russian Empire"
-Alexander N. Domrin (Citation: 19 Mich. St. J. Int’l L. 63 (2010-2011))

“Emergency powers, including introduction of a state of exception, cannot and should not be exercised ‘beyond constitutional control.’ It is true that, in many countries of the world, even constitutional provisions cannot always firmly and effectively contain the dictatorial instincts of authorities; but that is not a justification to lift ‘constitutional control’ altogether. On the contrary, it is quite easy to imagine what would happen if this last obstacle, the Constitution, were to be removed from the way of some politicians and social forces thirsting for unlimited power. Yet, a question remains: what happens if a constitution and the whole legal order of a nation ‘fails to provide for whatever emergency action may become necessary to defend the state?’ What happens if, using a modern term, a nation loses a “War on Terror?” The catastrophe of the Russian Empire gives an answer to such questions and offers one of the most vivid lessons and graphic illustrations in the history of the world.”

"Halting Military Trials at Guantanamo Bay: Can the President Call a Time-Out?"
-Kyndra Rotunda (Citation: 19 Mich. St. J. Int’l L. 95 (2010-2011))

“This Article examines President Obama’s decision to unilaterally halt military trials and analyzes that decision in the context of applicable law, including the Military Commissions Act of 2006 and the Manual for Military Commissions. It also discusses and analyzes the law prohibiting unlawful command influence and ultimately concludes that President Obama’s decision to halt Guantanamo trials, over the objection of the presiding military judge (Colonel Pohl), may have violated governing law and may have amounted to unlawful command influence.”

"Taking Human Rights Higher in the Fight Against Terrorism in South Africa"
-Mtendeweka Owen Mhango (Citation: 19 Mich. St. J. Int’l L. 105 (2010-2011))

“[Mohamed v. President of the RSA] is the starting point of any discussion about South Africa’s involvement in the global War on Terror because it illustrates the weak legal framework that existed prior to the adoption of the [Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004]. The second is to demonstrate that in the subsequent years following Mohamed, South Africa adopted a broad piece of anti–terrorism legislation, which has made South Africa a good partner for the United States in the War on Terror. The Article argues that the judgment in Mohamed, which is progressive and should be welcomed, follows a line of cases recognising the importance of the right to life and human dignity under the Constitution. The article further argues that while the constitutionality of the [2004] Act has not been tested by the courts, Mohamed provides a definitive statement of South African law about the lawful treatment of terror suspects and will likely influence future interpretation of the [2004] Act.”

"A War, Yes; Against Terror, No"
-John S. Baker, Jr. (Citation: 19 Mich. St. J. Int’l L. 119 (2010-2011))

“[T]he Court’s treatment of due process, as well as habeas corpus, both in Hamdi [v. Rumsfeld] and Rasul v. Bush confused the realms of war and domestic law enforcement. Prior to, and since those decisions, disagreements about fighting foreign terrorism have turned on whether the appropriate response involves “war” or “law enforcement.” In this author’s view, the Bush Administration was correct to treat the attacks as acts of war, rather than crimes; but wrong to label the U.S. response a “War on Terror.” This rhetorical confusion seems to indicate that within the Bush Administration there were conflicting understandings concerning the Constitution’s allocation of powers in war as distinguished from law enforcement.”

"The T-Team"
-Michael P. Scharf (Citation: 19 Mich. St. J. Int’l L. 129 (2010-2011))

This is the Keynote Address delivered by Michael P. Scharf at the Michigan State Journal of International Law’s 2010 Symposium, "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention.” Scharf’s remarks were focused on “the extraordinary story of how, in the months following the attacks of 9/11, the legal policy of the U.S. government with respect to the War on Terror was hijacked and dictated by a cabal of four government lawyers who called themselves the ‘War Council.’ They could just as easily have been called the ‘Torture Team,’ or ‘T-Team’ for short because together, this team of highly–placed government lawyers produced a series of legal memoranda—which deliberately ignored adverse precedent, misrepresented legal authority, and were written to support a pre–ordained result [in the ‘War on Terror’].”


nationalsecuritylaw call for papers – “Secrecy, National Security, and the Vindication of Constitutional Law” (Milan, Italy, Dec. 1-2, 2011)

February 28, 2011

* call for papers – "Secrecy, National Security, and the Vindication of Constitutional Law" (Milan, Italy, Dec. 1-2, 2011)

The International Association of Constitutional Law, Research Group on Constitutional Responses to Terrorism, has announced a very tempting call for papers, both in terms of subject-matter and location. Here are the details:

On behalf of the IACL Research Group on Constitutional Responses to Terrorism, we

hereby invite proposals in the form of abstracts for papers to be delivered at an international

conference on “Secrecy, National Security, and the Vindication of Constitutional Law” hosted by

Bocconi University in Milan, Italy, on December 1-2, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism

policy and practice have created tensions with efforts to ensure transparency, accountability and

procedural fairness. We are open to proposals that seek to bring comparative analysis to bear on

how best to mediate these tensions. Issues that authors might want to address could include, for

example:

- the challenge of secrecy to democratic lawmaking on counterterrorism policy;

- the use of “secrecy” privileges to block litigation challenging allegedly illegal government

programs;

- the use of classified evidence against individuals or organizations to freeze their assets,

designate them as terrorist, or justify other restraints on their liberty;

- the use of “anonymous” witnesses who testify without revealing their identity;

- the closure of criminal trials and other proceedings to the public;

- and the adoption of secret coercive programs without transparent legal justification, such as

the US’s coercive interrogation practices or targeted killing program.

Scholars are invited to address in a comparative frame the ways that various constitutional

systems have sought to balance the tension between accountability, transparency, and fairness on

the one hand, and secrecy and security on the other.

The conference will last a day and a half and will also feature the participation of Lord

Justice Stephen Sedley (Court of Appeal of England and Wales) as well as professors Daphne

Barak-Erez (University of Tel Aviv), David Cole (Georgetown University), Kent Roach

(University of Toronto), Martin Scheinin (European University Institute) and Arianna Vedaschi

(Bocconi University).

Abstract proposals for papers of max. 500 words should be emailed, along

with the author’s cv, to Federico.fabbrini by April 24, 2011. Once abstracts are accepted,

papers will be due November 1, 2011 to permit exchange of drafts prior to the conference.

Convenors

Prof. David Cole, Georgetown University, Research Group Chair

Prof. Arianna Vedaschi, Bocconi University, Host

Federico Fabbrini, European University Institute, Research Group Coordinator


nationalsecuritylaw United States v. Hamdan (E.D. Pa.) (extradition to face material support charges)

February 28, 2011

No, not that Hamdan…

* United States v. Hamdan (E.D. Pa.) (extradition to face material support charges)

From DOJ’s press release:

PHILADELPHIA – Moussa Ali Hamdan, 38, a dual citizen of the United States and Lebanon and a former resident of Brooklyn, N.Y., made an initial appearance in U.S. District Court in Philadelphia today after being extradited from Paraguay. He is being held pending a detention hearing.

Hamdan is among several defendants charged in a conspiracy to provide material support to Hizballah, a designated foreign terrorist organization. He was indicted Nov. 24, 2009, along with nine co-defendants. Hamdan was taken into U.S. custody in Asuncion, Paraguay, on Thursday, by U.S. Marshals who escorted him to Washington, D.C., where members of the FBI’s Joint Terrorism Task Force took him into custody.

At the time of the indictment, Hamdan had left the United States. On June 15, 2010, Paraguayan authorities arrested him in the Tri-Border Area of Paraguay for the crime of material support of terrorism.

Hamdan is charged in 28 of the 31 counts in the indictment, including conspiring to provide material support to Hizballah in the form of proceeds from the sale of counterfeit money, stolen (genuine) money and fraudulent passports. According to the indictment, Hamdan and several other defendants were also charged with several counts of transporting stolen goods, trafficking in counterfeit goods and making false statements to government officials.

According to a related criminal complaint, Hamdan began purchasing purportedly stolen cellular telephones from a cooperating witness acting as an agent of the government and participated in the purchase and transportation of purportedly stolen goods on numerous occasions. These stolen goods included cellular telephones, laptop computers, Sony Play Station 2 systems and automobiles, which the conspirators caused to be transported to destinations outside Pennsylvania, including overseas destinations such as Lebanon and Benin (Africa). Hamdan also allegedly bought counterfeit goods — namely, counterfeit Nike® shoes and Mitchell & Ness® sports jerseys — from the cooperating witness.

The complaint details efforts by defendants Moussa Ali Hamdan and his co-defendants to sell the cooperating witness counterfeit U.S. currency for the purpose of raising funds for Hizballah. In total, the conspirators provided the cooperating witness with approximately $10,000 in counterfeit U.S. currency. The complaint also alleges that certain of Hamdan’s co-defendants generated additional funds for Hizballah by selling fraudulent passports. The cooperating witness and the defendants participated in the purchase of two fake passports — one from the United Kingdom and one from Canada — for the benefit of Hizballah. Hamdan allegedly agreed to pay $10,000 towards the purchase of these passports, in order to satisfy a debt he owed to the cooperating witness.

If convicted of all charges, Hamdan faces a statutory maximum sentence of 260 years in prison.


nationalsecuritylaw upcoming event: Cyberseucrity: Law, Privacy, and Warfare in a Digital World (Harvard March 4)

February 28, 2011

* upcoming event: Cyberseucrity: Law, Privacy, and Warfare in a Digital World (Harvard March 4)


The Harvard National Security Journal and the Harvard National Security & Law Association present their Second Annual Symposium:

Cybersecurity: Law, Privacy, and Warfare in a Digital World

Friday, March 4th
12:00pm – 6:30pm
Harvard Law School, Hauser 104
Live Webcast at http://harvardnsj.com/live/
Event Website: http://harvardnsj.com/symposium/
Lunch Provided

12:00-1:00: The Future of the Internet: A Lunchtime Debate
Jonathan Zittrain – Professor, Harvard Law School
Stewart Baker – Former General Counsel, National Security Agency

1:15-2:45: Privacy Concerns in Cybersecurity
Kevin Bankston – Senior Staff Attorney, Electronic Frontier Foundation
Dr. Joel Brenner – Former National Counterintelligence Executive
Richard A. Falkenrath – Former Deputy Homeland Security Advisor and Deputy Assistant to the President
David Hoffman – Director of Security and Privacy Policy, Intel Corporation
Susan Landau – Elizabeth S. and Richard M. Cashin Fellow, Radcliffe Institute, Harvard University, Moderator

3:00-4:30: Defense and Deterrence in Cybersecurity and Cyberwarfare
Steven Chabinsky – Deputy Assistant Director, Cyber Division, FBI
Duncan Hollis – Associate Professor of Law, Temple University Beasley School of Law
Martin Libicki – Senior Management Scientist, RAND Corporation
Noah Shachtman – Editor, "Danger Room," Wired
Eric Rosenbach – Faculty Affiliate, Belfer Center for Science and International Affairs, Harvard University, Moderator

5:00-6:30: Keynote Address by Steven G. Bradbury
Former Principal Deputy Assistant Attorney General for the Department of Justice Office of Legal Counsel

Sponsored by the Milbank, Tweed, Hadley & McCloy Fund


nationalsecuritylaw event tomorrow at Fordham law: cybersecurity

February 25, 2011

* Event Tomorrow at Fordham Law (NYC), Cyber Attacks: International Cybersecurity in the 21st Century

FILJ Symposium Agenda

Cyber Attacks: International Cybersecurity in the 21st Century

0900 – 1000 Registration

0930 – 1000 Welcome

1000 – 1145 Panel 1: Cyber Attacks and the Law of Armed Conflict

Moderator:

Prof. Eric Talbot Jensen, Visiting Assistant Professor of Law, Fordham University School of Law

Panelists:

Shane Harris, Senior Writer, Washingtonian

Matthew Schaefer, Professor of Law and Director of Space and Telecom Law Program, University of Nebraska College of Law

Paul A. Walker, Operations Law Attorney, U.S. Cyber Command

1200 – 1300 Lunch

1300 – 1445 Panel 2: Public-Private Partnerships in Cybersecurity

Moderator:

[TBD]

Panelists:

Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

Michael Vatis, Partner, Steptoe & Johnson LLP

Timothy A. Williams, Director, U.S. National Central Bureau of INTERPOL

1500 – 1645 Panel 3: The Wikileaks Releases: Security and Transparency

Moderator:

Prof. Joel Reidenberg, Stanley D. and Nikki Waxberg Chair and Professor of Law; Founding Academic Director, Center on Law and Information PolicyFordham University School of Law

Panelists:

Ashley Deeks, Academic Fellow, Columbia Law School

Marcia Hofmann, Senior Staff Attorney, Electronic Frontier Foundation

David E. McCraw, VP and Assistant General Counsel, New York Times Company

1645 – 1700 Closing Remarks

FordhamLaw_ILJSymposium.pdf

FILJ Symposium Agenda v 2-17.pdf


nationalsecuritylaw United States v. Aldawsari (N.D. Tex. Feb. 24, 2011)

February 24, 2011

* United States v. Aldawsari (N.D. Tex. Feb. 24, 2011) (arrest of would-be bomber)

The complaint underlying the arrest is here, and details from the press release follow.

Note that this does not appear to be a “sting” case, but rather a conventional investigation stemming from tips. Also note that this is not, at least for now, framed as a conspiracy. This could be consequential, for absent a conspiracy the prosecutors are instead relying on attempt as the inchoate charge (under 18 USC 2332a, the WMD statute; recall that “WMD” is defined very loosely to encompass more or less all bombs). The interesting question is whether the facts alleged below suffice to trigger “attempt” liability. It does not sound as if he had yet assembled a bomb, which would have made for a much easier case. On the other hand, the many substantial steps that he had actually taken, if one credits the allegations below, leave no room for doubt as to what was going on. In any event, we can expect some interesting and important debate about the anticipatory scope of the attempt concept. If this proves problematic, and if this turns out to be a truly solo operation, it will serve to highlight a critical point about inchoate criminal law: criminal liability attaches far earlier in the planning process for groups than for individuals.

In any event, here is the press release:

Khalid Ali-M Aldawsari, 20, a citizen of Saudi Arabia and resident of Lubbock, Texas, was arrested late yesterday by FBI agents in Texas on a federal charge of attempted use of a weapon of mass destruction in connection with his alleged purchase of chemicals and equipment necessary to make an improvised explosive device (IED) and his research of potential U.S. targets.

Aldawsari is expected to make his initial appearance in federal court in Lubbock at 9:00 a.m. on Friday morning. Aldawsari, who was lawfully admitted into the United States in 2008 on a student visa and is enrolled at South Plains College near Lubbock, faces a maximum sentence of life in prison and a $250,000 fine if convicted of attempted use of a weapon of mass destruction.

According to the affidavit filed in support of the complaint, Aldawsari has been researching online how to construct an IED using several chemicals as ingredients. He has also acquired or taken a substantial step toward acquiring most of the ingredients and equipment necessary to construct an IED and he has conducted online research of several potential U.S. targets, the affidavit alleges. In addition, he has allegedly described his desire for violent jihad and martyrdomin blog postings and a personal journal.

Purchases of Chemical Ingredients and Other Equipment

The affidavit alleges that on Feb. 1, 2011, a chemical supplier reported to the FBI a suspicious attempted purchase of concentrated phenol by a man identifying himself as Khalid Aldawsari. According to the affidavit, phenol is a toxic chemical with legitimate uses, but can also be used to make the explosive trinitrophenol, also known as T.N.P., or picric acid. The affidavit alleges that other ingredients typically used with phenol to make picric acid, or T.N.P., are concentrated sulfuric and nitric acids.

Aldawsari allegedly attempted to have the phenol order shipped to a freight company so it could be held for him there, but the freight company returned the order to the supplier and called the police. Later, Aldawsari falsely told the supplier he was associated with a university and wanted the phenol for “off-campus, personal research.” Frustrated by questions being asked over his phenol order, Aldawsari cancelled his order and later e-mailed himself instructions for producing phenol. The affidavit alleges that in December 2010, he successfully purchased concentrated nitric and sulfuric acids.

According to the affidavit, legally authorized electronic surveillance revealed that Aldawsari used various e-mail accounts in researching explosives and targets, and often sent emails to himself as part of this process. On Feb. 11, 2011, for instance, he allegedly e-mailed himself a recipe for picric acid, which the e-mail describes as a “military explosive.” He also allegedly sent himself an e-mail on Oct. 19, 2010 that contained information on the material required for Nitro Urea, how to prepare it, and the advantages of using it.

The affidavit alleges that Aldawsari also e-mailed himself instructions on how to convert a cellular phone into a remote detonator and how to prepare a booby-trapped vehicle using items available in every home. One e-mail allegedly contained a message stating that “one operation in the land of the infidels is equal to ten operations against occupying forces in the land of the Muslims.” During December 2010 and January 2011, Aldawsari allegedly purchased many other items, including a gas mask, a Hazmat suit, a soldering iron kit, glass beakers and flasks, wiring, a stun gun, clocks and a battery tester.

Searches of Aldawsari’s Residence

Two legally authorized searches of Aldawsari’s apartment conducted by the FBI in February 2011 indicated that the concentrated sulfuric and nitric acids; the beakers and flasks; wiring; Hazmat suit; and clocks were present in Aldawsari’s residence.

FBI agents also found a notebook at Aldawsari’s residence that appeared to be a diary or journal. According to the affidavit, excerpts from the journal indicate that Aldawsari had been planning to commit a terrorist attack in the United States for years. One entry describes how Aldawsari sought and obtained a particular scholarship because it allowed him to come directly to the United State and helped him financially, which he said “will help tremendously in providing me with the support I need for Jihad.” The entry continues: “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for Jihad.”

In another entry, Aldawsari allegedly wrote that he was near to reaching his goal and near to getting weapons to use against infidels and their helpers. He also listed a “synopsis of important steps” that included obtaining a forged U.S. birth certificate; renting a car; using different driver’s licenses for each car rented; putting bombs in cars and taking them to different places during rush hour; and leaving the city for a safe place.

Research on Potential Targets

According to the affidavit, Aldawsari conducted research on various targets and e-mailed himself information on these locations and people. One of the documents he sent himself, with the subject line listed as “Targets,” allegedly contained the names and home addresses of three American citizens who had previously served in the U.S. military and had been stationed for a time at Abu Ghraib prison in Iraq.

In another e-mail titled “NICE TARGETS 01,” Aldawsari allegedly sent himself the names of 12 reservoir dams in Colorado and California. In another e-mail to himself, titled “NICE TARGETS,” he listed two categories of targets: hydroelectric dams and nuclear power plants. On Feb. 6, 2011, the affidavit alleges, Aldawsari sent himself an e-mail titled “Tyrant’s House,” in which he listed the Dallas address for former President George W. Bush. The affidavit also alleges that Aldawsari conducted research that could indicate his consideration of the use of infant dolls to conceal explosives and possible targeting of a nightclub with an explosive concealed in a backpack.

The affidavit also alleges that Aldawsari created a blog in which he posted extremist messages. In one posting, he expressed dissatisfaction with current conditions of Muslims and vowed jihad and martyrdom. “You who created mankind….grant me martyrdom for Your sake and make jihad easy for me only in Your path,” he wrote.

Complaint Affidavit.pdf


nationalsecuritylaw forthcoming scholarship

February 23, 2011

* Forthcoming Scholarship

Drone Warfare and the Law of Armed Conflict

Ryan J. Vogel
Government of the United States of America – Department of Defense
Denver Journal of International Law and Policy, Vol. 39, No. 1, 2011

The United States has increasingly relied upon unmanned aerial vehicles (UAVs), or "drones," to target and kill enemies in its current armed conflicts. Drone strikes have proven to be spectacularly successful – both in terms of finding and killing targeted enemies and in avoiding most of the challenges and controversies that accompany using traditional forces. However, critics have begun to challenge on a number of grounds the legality and morality of using drones to kill belligerents in the non-traditional conflicts in which the United States continues to fight. As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict. In this article I identify the legal framework and sources of law applicable to the current conflicts in which drones are employed; examine whether, and if so in what circumstances, using drones for targeting operations violates the jus in bello principles of proportionality, military necessity, distinction, and humanity; and determine what legal boundaries or limitations apply to the seemingly limitless capabilities of drone warfare. I then evaluate whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this nontraditional armed conflict and ascertain whether new rules or laws are needed to govern their use. I conclude by proposing legal and policy guidelines for the lawful use of drones in armed conflict.

Working Toward a Legally Enforceable Nuclear Non-Proliferation Regime

Ronald J. Sievert

34 Fordham Int’l L. J. 93 (2010)

The article notes that the current Nuclear Non Proliferation Treaty is not legally enforceable in part because the US cannot ever completely disarm in compliance with its part of the treaty “bargain” with the non-nuclear states. It proposes an enforceable treaty that recognizes existing nuclear powers, creates International Criminal violations for proliferation of nuclear weapons materials and first use of WMD absent an existential threat to the nation, and employs the ICJ and PCA to insure that non-nuclear states will receive the long promised benefits of peaceful nuclear energy.

The National Security Enterprise: Navigating the Labyrinth

Harvey Rishikof and Roger Z. George, eds.

(Georgetown University Press)

Recent breakdowns in American national security have exposed the weaknesses of the nation’s vast overlapping security and foreign policy bureaucracy and the often dysfunctional interagency process. In the literature of national security studies, however, surprisingly little attention is given to the specific dynamics or underlying organizational cultures that often drive the bureaucratic politics of U.S. security policy.

The National Security Enterprise offers a broad overview and analysis of the many government agencies involved in national security issues, the interagency process, Congressional checks and balances, and the influence of private sector organizations. The chapters cover the National Security Council, the Departments of Defense and State, the Office of the Director of National Intelligence, the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security, and the Office of Management and Budget. The book also focuses on the roles of Congress, the Supreme Court, and outside players in the national security process like the media, think tanks, and lobbyists. Each chapter details the organizational culture and personality of these institutions so that readers can better understand the mindsets that drive these organizations and their roles in the policy process.

Many of the contributors to this volume are long-time practitioners who have spent most of their careers working for these organizations. As such, they offer unique insights into how diplomats, military officers, civilian analysts, spies, and law enforcement officials are distinct breeds of policymakers and political actors. To illustrate how different agencies can behave in the face of a common challenge, contributors reflect in detail on their respective agency’s behavior during the Iraq War.

This impressive volume is suitable for academic studies at both the undergraduate and graduate level; ideal for U.S. government, military, and national security training programs; and useful for practitioners and specialists in national security studies.


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