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 2nd 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).

Brief summaries of the opinions follow:

* The “Fourth Amendment Challenges” Opinion (30 pages) holds that:

(i) the Fourth Amendment reasonableness requirement (but not the warrant requirement) applied to government searches of Wadi El-Hege’s residence in Kenya, and surveillance of his phone line there;

(ii) those searches were reasonable; and

(iii) it was appropriate for the district judge to review evidence on an ex parte, in camera basis in connection with the government’s opposition to El-Hege’s suppression motion.

* The “Fifth Amendment Challenges” Opinion (57 pages) holds that:

(i) inculpatory statements US agents obtained from two defendants overseas were voluntary and hence admissible (oral warnings given to them by a federal prosecutor, combined with a written advice-of-rights form) sufficed to satisfy any Miranda requirements that might apply;

(ii) the district court did not violate one defendant’s right to counsel when it permitted him to withdraw his initial suppression motion on religious grounds; and

(iii) the district court did not abuse its discretion by granting a government motion to reopen a suppression hearing to offer evidence not offered previously, rejecting the claim that the government must offer a reasonable justification for not offering that evidence previously.

* The “Evidence, Sentencing, etc.” Opinion (91 pages; this is my title, since unlike the other two this opinion came without a court-given shorthand) holds that:

(i) the indictment against defendant Al-‘Owhali sufficiently alleged death penalty “gateway factors”;

(ii) the evidence at trial supported El-Hege’s conspiracy convictions and Odeh’s conspiracy and substantive offense convictions;

(iii) the court’s CIPA decision restricting access to classified information to defendant’s cleared counsel did not violate El-Hege’s right to counsel (6th), right to present a defense (5th and 6th), or right to be present during crucial stages of the trial (5th and 6th);

(iv) the court did not err in declining to sever El-Hege’s trial from that of his co-defendants;

(v) various co-conspirator and other statements were properly admitted;

(vi) no prejudice to defendants in the government’s failure to produce (until after trial) transcirpts of taped video-conferences of a key government witness speaking with members of the prosecution team;

(vii) because there was not error at trial, cumulative error did not deprive El-Hege of a fair trial;

(viii) certain sentencing enhancements used with El-Hege were proper; and

(ix) El-Hege is entitled to be resentenced insofar as the guidelines were applied in mandatory fashion in his case.

2.  Recent and forthcoming scholarship concerning the pros and cons of prosecuting terrorism-related cases

A good starting point for discussion in this area is the report Richard Zabel & James Benjamin did for Human Rights First: In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, which I circulated previously.  I tend to agree with most of what Rich and Jim have to say in that paper (including the view that criminal prosecution should not be the primary mode of proceeding in connection with actual combat operations).  My own thoughts appear, at least in rough form, in this essay that I’ve just posted to SSRN (please note that this essay does not yet account for the insights that may be gleaned from today’s 2nd Circuit rulings)

Robert Chesney, Terrorism, Criminal Prosecution, and the Preventive Detention Debate, available at

(note that this is a very rough draft that I’ve just posted to ssrn; comments and criticisms are very much welcome)

ABSTRACT: In the aftermath of the 2008 election, change is in the air with respect to counterterrorism law and policy. The Obama administration almost certainly will terminate the military commission system, and it likely will take steps at least to reduce reliance on the underlying practice of long-term military detention.  Against this backdrop, the debate regarding how best to reform detention policy has sharpened.  Some contend that federal criminal prosecution should supply whatever long-term detention capacity may be required, while others contend that it would be better to design a detention system (such as a “national security court”) specifically tailored to the problem of terrorism prevention.

I do not propose to resolve this debate here.  Rather, my aim is to enrich the debate with a candid and precise assessment of the capacities and limitations of the federal criminal justice system as it relates to terrorism, with a particular focus on the prevention scenario.

Part I examines a variety of charges available to prosecutors in that scenario.  I conclude that these charges are far more prevention-oriented than critics often admit, though I also note a handful of limitations on their scope.  Most significantly, perhaps, I draw attention to limits on the extraterritorial scope of the two “material support” laws as they stood prior to amendment in 2001 and 2004, respectively.  That caveat aside, the scope of the charges available to prosecutors today compares well to the grounds for detention in the military detention system, and very favorably to the charges available in the military commissions system.

Part II surveys several of the procedural and evidentiary considerations that critics have cited as grounds to doubt the ability of the criminal justice system to provide an adequate capacity to incapacitate suspected terrorists.  By and large, my analysis concurs with the much-cited “white paper” that Richard Zabel and James Benjamin recently produced for Human Rights First, which is to say that I agree with them that many of the leading concerns in this area are overstated.  I differ from them to some extent, however, insofar as I emphasize three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives.  Each is a familiar and much-lauded component of the fairness that characterizes our criminal justice system, and none should be set aside lightly.  Specifically, I refer to (i) mandatory disclosure concepts (e.g., Brady­ and Giglio); (ii) Confrontation Clause (and hearsay) concerns (a topic which subtly imports the troubled question of interrogation methods); and (iii) the burden of proof itself.  These are the features that do the most work in accounting for the difference in reach among the criminal justice system and its competitors, and I suggest that they should be the focus of the debate going forward.

Because no one seriously doubts that criminal prosecution will continue to be an important tool of counterterrorism policy going forward—whatever becomes of military detention and proposals for alternative detention systems—I conclude in Part III with a discussion of modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.  Criticisms and comments are welcome at

3. Georgetown’s Security Law Brief Online Symposium on Judge Leon’s recent decision in Boumediene v. Bush

If you’ve not checked out this blog before, you might want to bookmark it.  It’s main page runs constant news updates.  Why, I just learned from it that the administration appears to be on the verge of repatriating Salim Hamdan to Yemen upon completion of his sentence next month!

4. Opinio Juris Online Symposium (in conjunction with Yale Int’l L. J.) on Monica Hakimi’s recent article discussing preventive detention

Monica Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

Matthew Waxman, Response by Professor Matthew Waxman, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

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