US v. Odeh (2d Cir.);new scholarship on prosecuting terrorism cases; online symposia on Boumediene & preventive detention

1. In re Terrorist Bombings of U.S. Embassies in East Africa (United States v. Odeh, et al) (2d Cir. 2008)

The 2^nd Circuit (Feinberg, Newman, and Cabranes) today issued three separate opinions largely rejecting appeals from defendants convicted several years ago for their roles in al Qaeda’s 1998 East African Embassy attacks.  The first two of them are must-read opinions for those who are interested in the capacity of the federal criminal justice system to handle terrorism-related cases, a topic of considerable current interest, as they deal at length with Fourth and Fifth Amendment questions that arise in connection with overseas investigations (including search, surveillance, and interviewing).

symposium: terrorism & the legal impact on business; forthcoming scholarship

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person.

written opinion in Boumediene v. Bush

* Judge Leon’s written opinion in Boumediene v. Bush (D.D.C. Nov. 20, 2008)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276

Here is a brief overview of the opinion:

Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who “directly supported” hostilities).

The government argued that all 6 men planned to go to Afghanistan to fight against the US.  It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a “facilitator” function (i.e., that he recruited fighters and assisted their transit to Afghanistan).  The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a “facilitator”.

Judge Leon orders release of 5 of 6 detainees in Boumediene

* Boumediene v. Bush (D.D.C. Nov. 20, 2008)

In the first habeas rulings on the merits in connection with GTMO, Judge Leon has ordered the release of 5 of the Boumediene petitioners on the grounds of insufficient evidence, while confirming the detainability of a 6th detainee.

Lyle Denniston (SCOTUSblog) has the details below:

Judge orders five detainees freed

Thursday, November 20th, 2008 12:21 pm | Lyle Denniston

U.S. District Judge Richard J. Leon, in the first ruling to carry out the Supreme Court’s June decision on detainees’ rights, ordered the federal government to release five Guantanamo Bay detainees “forthwith.” The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem ben Sayah.

update on GTMO habeas litigation

* GTMO habeas litigation update

Lyle Denniston at SCOTUSblog provides a valuable summary (along with links to the underlying documents) of the government’s effort to modify the case management order issued by Judge Hogan in connection with some 200 GTMO habeas petitions.  Note that one of the critical issues concerns the scope of the government’s disclosure obligations: must the government review all information in possession of all government agencies in order to identify potentially relevant information to be disclosed to the detainee, or is the obligation limited to the subset of that information that was reviewed by the attorneys working on responses to the habeas petitions?  This issues parallels the “prosecution team” question that complicates Brady and related disclosure requirements in the context of criminal prosecution.  The scope of the obligation is not entirely certain in that more familiar setting, and still less so in the GTMO habeas context.

video from STCL Conference on Law, Ethics,and the War on Terror

* South Texas College of Law, “Law, Ethics, and the War on Terror”

Chris Borgen at Opinio Juris notes that the proceedings from STCL’s September conference “Law, Ethics, and the War on Terror” are now available on the school’s website.  Chris and I both participated, and I agree with his assessment that this was an unusually substantive and informative event.  Kudos to Geoff Corn, Vic Hanson, and the STCL students for putting on a great event (in the immediate aftermath of the hurricane in Houston, no less).  Details of who spoke, and links to the video appear in the post by Chris, below:

Law, Ethics, and the War on Terror

This past September, I was a speaker at a conference on Law, Ethics and the War on Terror that was organized by Geoff Corn at the South Texas College of Law. The conference is now available as a video-stream. Part one is here and part two is here. The other panelists were incredibly impressive including senior military officials, prominent defense attorneys, and academics whom I admire. Their bios are available here. (This is the first conference I have attended where one of the other panelists is a graduate of Top Gun.) I learned a great deal at this symposium and, although (as far as I can tell) you cannot fast forward through the videos, I highly recommend watching them if you have the time.

DOJ-IG report on FBI’s Guardian database; forthcoming scholarship

1. DOJ Inspector General’s Report: The FBI’s Terrorist Threat and Suspicious Incident Tracking System (Audit Report 09-02) (Nov. 2008)

The DOJ IG’s Audit Division has released a report describing ways to improve management and performance in relation to FBI’s Guardian Threat Tracking System, the primary database for processing information stemming from initial information potentially related to terrorist threats.  Nothing too dramatic to report here, but the 70-page report may be of interest to those who wish to get a better sense of the logistics of FBI information management and the managerial difficulties it entails.

Bahlul sentenced to life; forthcoming scholarship

1.  al Bahlul sentenced to life

From DoD’s press release:

Detainee Sentenced To Life In Prison

A military commission sentenced today Ali Hamza Ahmad Suliman al Bahlul of Yemen to confinement for life for conspiracy, solicitation and providing material support to terrorism in violation of the Military Commissions Act of 2006. Bahlul will immediately begin serving his sentence of confinement at Naval Station Guantanamo Bay, Cuba.

gtmo detainee database; forthcoming scholarship

1. GTMO detainee database

The New York Times has posted a database identifying Guantanamo detainees and providing links to the summaries of their CSRT proceedings:

http://int-shared1.ec2.nytimes.com/guantanamo/detainees/page/38

2. Forthcoming scholarship

“Legislating Clear-Statement Regimes in National-Security Law”

George Mason Law & Economics Research Paper No. 08-56

JONATHAN F. MITCHELL, University of Chicago Law Paper Requests – Public Law and Legal Theory, George Mason University – School of Law
Email: jmitchell@law.uchicago.edu

al Bahlul convicted by military commission

* United States v. Al-Bahlul (Mil. Com. Nov. 3, 2008)

From DoD’s press release:

Detainee Convicted of Terrorism Charge At Military Commission Trial

A military commission today found Ali Hamza Ahmad Suliman al Bahlul of Yemen guilty of conspiracy with Usama Bin Laden and others to commit murder of protected persons, attacking civilians and other crimes. He was also found guilty of solicitation to commit murder of protected persons, to attack civilian objects, and to commit acts of terrorism.