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

September 30, 2008

* 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; Read the rest of this entry »

briefing on proposed changes to FBI Nat Sec Invest. Guidelines

September 24, 2008

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

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


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

audio from panel discussion federal proseuction of terrorism cases

September 22, 2008

* Audio now available for “Prosecuting Terrorists: The Prosecutors’ Perspectives – A Panel Discussion 9/8/08

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

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

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


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

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

September 22, 2008

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

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

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

United States v. Yahya; forthcoming scholarship

September 17, 2008

1. United States v. Yahya (S.D. Fla. 9/11/08)

Superseding indictment returned in Miami case involving export of dual-use goods to Iran, stemming from an investigation of the use of US-made goods in IEDs in Iraq.

From the press release:

A federal grand jury in Miami, FL, has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today — that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran.

The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous “dual use” commodities. “Dual-use” commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems (“GPS”), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs).

The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan.

Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a ” Farrokh Nia Yaghmaei,” an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a “MME,” and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a “Brian Ghandi,” an Iranian national; Farshid Gillardian, a/k/a “Isaac Gillardian,” a/k/a “Isaac Gill,” an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a “Brian Kaam,” a resident of Malaysia; Djamshid Nezhad, a/k/a “Reza,” a resident of Germany; Ahmad Rahzad, a/k/a “Saeb Karim,” an Iranian national; Majid Seif, a/k/a “Mark Ong,”a/k/a “Matti Chong,” an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses.

The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

  • Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.
  • Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).
  • Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.
  • Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

2. Forthcoming Scholarship

“Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution”

The International Lawyer, Fall 2008

ERIC TALBOT JENSEN, Judge Advocate General’s Corps, U.S. Army
Email: eric.jensen@hqda.army.mil

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani.

As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed and on February 7, 2007, Mario Lozano, an U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano can be tried in absentia because the case was policial.

The trial occurred and the decision was announced on October 25th. Judge Spinaci ruled that the law of the flag, or the law of the soldier’s sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Spinaci’s decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant’s sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.

“Torture Nation, Torture Law”

Georgetown Law Journal, Vol. 97, 2008

JOHN T. PARRY, Lewis & Clark Law School
Email: parry@lclark.edu

U.S. law plainly forbids something called “torture.” Some writers even contend the ban on torture is foundational to the idea of the United States as a liberal democratic state committed to individual rights and the rule of law. The revelations of torture and other forms of mistreatment by U.S. forces at places such as Abu Ghraib thus undermine what these writers characterize as American leadership on human rights and call the nation’s identity into question.

Most readers will sympathize with these claims. This essay, by contrast, suggests that torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. Put another way, many fear that the revelations of abuses committed in the war on terror put the U.S. at risk of becoming a torture nation. This essay explores the ways in which the U.S. is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture.

To guide that exploration, I illustrate some of the ways in which past practice and mainstream legal doctrine provide a solid foundation for the abuses of the war on terror. The first part of this essay traces some of the history of torture and related forms of abuse in U.S. foreign policy, followed by a description of the law and practice of police and prison violence, and concluding with immigration. Part Two examines the interaction of U.S. and international law in the context of torture, primarily through a detailed examination of U.S. ratification of the Convention Against Torture and the International Covenant on Civil and Political Rights. Part Three concludes the essay by drawing explicit connections between these precedents and the perceived excesses of the war on terror.

My goal is not to make a normative argument about the condition of U.S. law and practice. Nor am I suggesting that they are pernicious or evil. At most, I am arguing that the U.S. is an entirely typical modern state in its use of torture. I seek primarily to fix the distorted picture sketched by rhetorical responses to the abuses of the war on terror. The examples I offer are not themselves a complete picture, of course, but no account of U.S. law and practice relating to torture can be complete without them. Grappling with a more complex representation of how violence colors U.S. law and politics is difficult, but scholarly analysis of these issues requires the effort. What, if anything, readers do with the resulting picture is a question beyond the scope of this essay.


“Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea-Ethiopia Claims Commission in the Hague”

Wisconsin International Law Journal, Vol. 25, No. 23, 2008

WON KIDANE, Seattle University School of Law
Email: kidanew@seattleu.edu

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions.

In practice, the enforcement of this important provision of international humanitarian law has remained a matter of rarity, particularly in terms of civil – rather than criminal – liability. However, a recent exception is the Eritrea-Ethiopia Claims Commission in The Hague (the Claims Commission or the Commission). The Claims Commission was established pursuant to a peace agreement signed by Eritrea and Ethiopia in Algiers, Algeria, on December 12, 2000, ending a devastating war fought between the two countries from May 1998 to December 2000.

The Commission was charged with the duty of deciding, through binding arbitration, all claims by one party or citizens of that party against the other party for loss, damage, or injury resulting from violations of international law (mainly violations of international humanitarian law that occurred during the war). The Commission commenced its work in March 2001 and decided to consider the claims of the parties in two different phases of the proceedings: a liability phase and a damages phase. The Commissions rendered the final decisions of the liability phase on December 19, 2005. The damages phase is still being conducted, although no decisions have been rendered by the Commission to date as part of that phase. Thus, this Article exclusively focuses on the Commission’s work as it relates to the completed liability phase.


“The Law on the Unilateral Termination of Occupation”

Eyal Benvenisti, THE LAW ON THE UNILATERAL TERMINATION OF OCCUPATION, (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel) Endreas Zimmermann and Thomas Giegerich, eds., 2009

EYAL BENVENISTI, Tel Aviv University – Buchmann Faculty of Law
Email: ebenve@post.tau.ac.il

This brief note discusses the legal ramifications of the unilateral termination of occupation. The note seeks to characterize the moment of termination and examines the obligations of the occupant during (and possibly after) the termination process.

War on Terrorism symposium this Friday in Houston; ABA SCOLANS mailing list

September 17, 2008

1. (THIS FRIDAY IN HOUSTON) “Law, Ethics, and the War on Terrorism” – symposium sponsored by the South Texas Law Review

Details here: http://www.stcl.edu/ethics/index.html

The program:

Continental Breakfast and Registration
7:45-8:20 a.m.

Welcome and Overview
8:20-8:30 a.m.

James J. (“Jim”) Alfini President and Dean, South Texas College of Law First Morning Panel Presentation

The Criminal Prosecution of Terrorists

The Civilian Perspective

Jeanne Baker “Terrorism” Is a Crime So Heinous That Even Innocence Is No Defense

Bobby Chesney Terrorism and the Utility of Federal Criminal Prosecution

The military perspective

Col. Lawrence J. Morris They Would Have Invented It: The Historical, Constitutional, and Practical Case for Military Commissions

Geoffrey S. Corn, Lt. Col. (ret.)
Have We Targeted the Offenses or the Defendants?

Michael Lewis The Military Costs and Benefits of a Criminal

Prosecution Model

Question & Answer session………….. Victor M. Hansen, Lt. Col. (ret.) moderator

Morning Keynote
11:00 a.m.-12:00 noon

Fred L. Borch, Col. (ret.) The Historical Role of Military Lawyers in National Security Trials
12:00 LUNCH

Afternoon Keynote
1:30 p.m.

Maj. Gen. Charles J. Dunlap, Jr. The Ethical Dimension of National Security Legal Advice

Afternoon Panel Presentation
2:30 p.m.

Has the United States Lost the Ethical High Ground in the War on Terror?

John Hutson, Vice Adm. (ret.) How America Could Actually Lose the War on Terror

Amos N. Guiora, Lt. Col. (ret.) Freedom of Religion–Freedom from Religion

Richard Jackson, Col. (ret.) Law of War in GWOT–Regaining the Moral High Ground

Christopher J. Borgen Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion

Eugene R. Fidell The High Ground and the National Narrative

question & answer session…………….Walt Huffman, Maj. Gen. (ret.) moderator

2. ABA Standing Committee on Law and National Security: Mailing list

Are you on the mailing list for The ABA Standing Committee on Law and National Security?

Signing up entitles you to free copies of The National Security Law Report, e-mails regarding job postings and events, networking opportunities, and breakfast meeting invitations.  Click here to sign up:  https://www.abanet.org/natsecurity/mailinglist.shtml

DOJ Fact Sheet on CT Efforts

September 11, 2008

* Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11

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

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

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

veto threat re Defense Authorization Act; National Security Division Progress Report

September 9, 2008

1. Statement of Administration Policy on the National Defense Authorization Act

OMB has issued an SAP setting forth the Administration’s views on S.3001, the defense authorization bill.  The SAP is here.  There are many interesting features in the SAP.  In relevant part, for example, the SAP states that if “S. 3001 were presented to the President, his senior advisers would recommend that he veto the bill, especially if the bill includes the following provisions:

  • Private Security Contractors in Combat Zones: The Administration strongly opposes section 841, which defines most security functions in a combat zone as “inherently governmental” and restricts the use of contractor personnel for those functions.  This provision would significantly increase the reliance on already stretched military forces and reduce the options for providing security for non-military personnel, which could impede the ability to provide humanitarian and reconstruction relief in combat zones.  Furthermore, the Departments of State and Defense have significantly improved the policy and guidelines governing the activities of private security contractors. These improvements ensure that private security contractors operate under strict rules for the use of force that are defensive in nature, carefully supervised, and allow the use of deadly force only as a last resort in response to imminent threats and in the exercise of the inherent individual right of self-defense.
  • Prohibition on Interrogation of Detainees by Contractor Personnel: The Administration strongly objects to requirements that would prevent the Department of Defense (DoD) from conducting lawful interrogations in the most effective manner by restricting the process solely to government personnel; in some cases, a contract interrogator maypossess the best combination of skills to obtain the needed information.  Such a provision would unduly limit the United States’ ability to obtain intelligence needed to protect Americans from attack.

  • Defense Intelligence Matters: The Administration strongly opposes sections 921, 922, and 923, which interfere with Executive Branch authorities and responsibilities. Section 921 interferes with the President’s authority to supervise and manage the Executive Branch by requiring that active duty military officers, not civilians, serve as the Deputies to the intelligence chiefs of the military departments, thus inappropriately and unnecessarily limiting the pool of individuals from which the President may select the senior military advisers in question.  Section 921 could also, if the new qualifications it imposes are applied to existing officeholders, usurp the President’s exclusive authority to remove Executive Branch officers by rendering the existing office holders unqualified for their offices and thus attempting a constitutionally improper de facto legislative removal of the existing officers. Section 922 reorganizes elements of the Secretary of Defense’s senior staff and eliminates Undersecretary of Defense for Intelligence (USD(I)) authorities to execute technology and acquisition programs or provide operational support to combatant commands.  Section 923 would intrude on the President’s constitutional authority to control and regulate access to classified national security information by requiring that the Department carry out the Advanced Sensor Applications Program, by specifying which organizations will execute and oversee the program, and by purporting legislatively to mandate that particular individuals with program authority shall have “complete access” and “current” updates on specific types of military and foreign intelligence information.  Together, these provisions interfere with staff-level Executive Branch assignments and prevent USD(I) from carrying out the activities for which it was created.

Potential Amendments:

  • Intelligence Interrogations: The Administration strongly opposes any amendment that would impose a requirement to video-record all intelligence interrogations, which is impractical, burdensome, and runs the risk of significant unintended consequences in current and future military operations.  Further, the Administration strongly opposes any amendment that would prevent the Intelligence Community from conducting lawful interrogations in the most effective manner by restricting the process solely to Government personnel; as noted above, in some cases, a contract interrogator may possess the best combination of skills to obtain the needed information.

There is much more interesting stuff in the SAP – certainly worth a read.

2. DOJ National Security Division, “Progress Report” (April 2008)

DOJ has posted the April 2008 National Security Division Progress Report to its website.  The 70-page document is here.  It provides a very handy overview for students or others who are not familiar with the organizational structure of the NSD, the Counterterrorism Section, the Counterespionage Section, or the Office of Intelligence.