United States v. Shnewer; United States v. Al-Dellemy

1. United States v. Shnewer (D.N.J.)

A jury has convicted five men on charges that they conspired to kill servicemembers at Fort Dix.    DOJ’s press release is posted here: http://www.usdoj.gov/opa/pr/2008/December/08-nsd-1142.html.  Excerpts follow:

…After 5½ days of deliberations, which began Dec. 17, 2008, the jury convicted Mohamad Ibrahim Shnewer, brothers Dritan Duka, Shain Duka and Eljvir Duka and Serdar Tatar on count one of the seven-count superseding indictment that charged them with conspiracy to murder members of the U.S. military.  The jury acquitted each of defendants of count two, which charged attempt to murder members of the U.S. military.

R (Al-Saadoon & Mufdhi) v. Secretary of State for Defence

* R (Al-Saadoon & Mufdhi v. Secretary of State for Defence (UK) (High Court of Justice, Dec. 19, 2008)

Last Friday, a British court issued an opinion addressing the extent to which Iraqi citizens held by the British military in Iraq may invoke the protections of the European Convention on Human Rights  and the Human Rights Act 1998, and in particular whether such detainees may resist transfer to Iraqi custody based on concerns relating to fear of torture, unfair trial, or execution.  Jacob Cogan provides a nice summary on his blog, which appears below.

R (Al-Saadoon & Mufdhi) v. Secretary of State for Defence

On Friday, a two-judge panel of the High Court of Justice decided R (Saadoon & Mufdhi) v. Secretary of State for Defence. (Judgment here; Guardian story here.) The question was the lawfulness of the proposed transfer of two Iraqi nationals, who are accused of the murder of two British soldiers, from British custody in Iraq to Iraqi custody for trial by the Iraqi High Tribunal. The claimants argued (para. 2) that “(i) they are within the jurisdiction of the United Kingdom for the purposes of article 1 of the European Convention on Human Rights (“the Convention”) and the Human Rights Act 1998 (“the HRA 1998″), so that they enjoy the full range of Convention rights; (ii) transfer to the IHT would violate their Convention rights, and therefore be in breach of s.6 of the HRA 1998, because there are substantial grounds for believing that they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody pending trial and while serving any custodial sentence, contrary to articles 2, 3 and 6 of the Convention and article 1 of protocol no. 13; (iii) the transfer would be in breach of rules of customary international law, in particular the prohibition on torture; and (iv) the transfer would also be in breach of a legitimate expectation created by what is said to be the settled policy of Her Majesty’s Government not to expose individuals to a real risk of the death penalty.” The court concluded (para. 95): “(1) the claimants are within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention and therefore of the HRA 1998; (2) in accordance with the approach in R (B) v Secretary of State for Foreign and Commonwealth Affairs, the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; (3) if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention, and the claimants can invoke the Convention and in particular the Soering principle in the normal way to resist their transfer.” With regard to the third point, the court went on to find that a transfer would not violated any British obligations under international law, and so the proposed transfer would be lawful. Having reached this conclusion, though, the court noted that the outcome would have been different if the European Convention had applied (given the risk of the death penalty being imposed and carried out), and in this regard, the court indicated (para. 204) that it would look favorably at a request for permission to appeal (presumably so that the Court of Appeal would have the opportunity to reconsider R (B) v. Secretary of State for Foreign and Commonwealth Affairs in the context of this case).

Link: http://ilreports.blogspot.com/2008/12/r-al-saadoon-mufdhi-v-secretary-of.html
Author: Jacob Katz Cogan
Publication Date: 12/20/2008 11:15:00 PM

United States v. Mohamed (M.D. Fla.)

* United States v. Mohamed (M.D. Fla. Dec. 19, 2008)

Ahmed Abdellatif Sherif Mohamed was given a fifteen-year sentence today, following his guilty plea (in June 08) on one count of providing material support in violation of 18 USC 2339A.  This is the 1994 version of the material support statute, then one that requires proof that the defendant knew or intended that the support would assist any of several dozen predicate criminal acts (in contrast to 18 USC 2339B, which requires no link to any anticipated crime, but which attaches only to aid rendered to specifically-designated groups).

This is a rather important case as an illustration of the substantive scope of federal criminal law relating to terrorism (particularly its preventive aspect), though the case has received little attention nationally.  Mohamed and another defendant were arrested when police found all sorts of bombmaking material in the vehicle during a traffic stop.  Mohamed, it turned out, had posted a videoclip on youtube providing instruction regarding remote-controlled detonation.  According to the plea agreement, posted here, Mohamed admitted to investigators that his purpose in creating the video was to “support attempts by terrorists to murder employees of the United States, including members of the uniformed services, while such persons were engaged in or on account of the performance of their official duties” (agreement at 10).  Such attempts would constitute violations of 18 USC 1114, and that statute in turn is one of the predicate offenses for a 2339A material support charge.

Here is the key thing to appreciate about the scope of this 2339A charge: there was no claim that Mohamed knew or could have known the identity of the persons who might download and make use of his video, let alone the specifics of any particular plan of attack that the video might facilitate.  His intentions and actions were enough, without this, to establish liability.

The press release is here: http://www.usdoj.gov/opa/pr/2008/December/08-nsd-1127.html

John Doe, Inc. v. Mukasey (2d Cir) (NSLs)

* John Doe, Inc. v. Mukasey (2^nd Cir. Dec. 15, 2008)

A very interesting decision today by the 2^nd Circuit in the long-running litigation involving the FBI’s ability to issue “national security letters” to communication service providers and to direct recipients of such letters not to go public with that information.  The panel (Newman, Calabresi, and Sotomayor), in an opinion by Judge Newman, has reinstated the government’s capacity to issue such letters, subject to a novel procedural requirement in which the government must initiate judicial review of the non-disclosure order in the event that the letter recipient wishes to contest the order.

forthcoming scholarship

* Forthcoming scholarship

Foreign Affairs Originalism in Youngstown’s Shadow

St. Louis University Law Journal (Vol. 53, 2008)

Stephen I. Vladeck

American University Washington College of Law

In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation.

Margulies on the Arar argument; PNSR report; CTLab on urban warfare theory; forthcoming scholarship

1. Peter Margulies, Summary of the en banc argument before the 2^nd Circuit in Arar v. Ashcroft

For those of you who are interested in how the 2^nd Circuit might rule after en banc review in the Arar litigation (i.e., the civil litigation brought by Maher Arar based on his treatment upon seizure at JFK Airport and his subsequent transfer to Syria), I am forwarding a summary of the oral argument produced by Prof. Peter Margulies of Roger Williams.  C-Span broadcast the oral argument by the way, and though the video is not yet posted on their website I am told that they might be replaying it this Saturday evening.

2. Project on National Security Reform, “Forging a New Shield”

This multi-year project recommends substantial reforms to the national security establishment.  An overview, with links to the full document (weighing in at more than 800 pages) and the executive summary (just 33 pages), is here:

United States v. Slough (Blackwater guards indictment); forthcoming scholarship

1. United States v. Slough (D.D.C.  No. cr-08-360)

The indictment in this case, charging five Blackwater security guards with killing 14 unarmed civilians during an incident at Nisur Square in Baghdad in September 2007, is posted here: http://www.usdoj.gov/opa/documents/grandjury.pdf

An information filed against a sixth Blackwater guard, Jeremy Ridgeway, is posted here: http://www.usdoj.gov/opa/documents/us-v-ridgeway2.pdf

Ridgeway has pled guilty to certain charges.  His factual proffer is here: http://www.usdoj.gov/opa/documents/us-v-ridgeway.pdf

Details from DOJ’s press release appear below.  I have highlighted the passages describing DOJ’s jurisdictional theory.  In brief, the claim is that the contractors are subject to the Military Extraterritorial Jurisdiction Act (MEJA) because they were providing services in support of DOD’s mission, though their contract was with the State Department.  Whether MEJA applies in this circumstance no doubt will be the focus of considerable litigation going forward.

Boim v. Holy Land; OSI fellowship; forthcoming scholarship

1. Boim v. Holy Land Foundation for Relief & Development (7^th Cir. Dec. 3, 2008) (en banc)

Available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1815_083.pdf

The Boim litigation arises out of the murder by Hamas of David Boim, a dual Israeli-American citizen, near Jerusalem in 1996.  Boim’s family brought suit against Muhammad Salah and a series of organizations, arguing that they raised money for Hamas and thereby were subject to civil liability under 18 USC 2333.

The en banc 7^th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that:

SCT grants cert in Al-Marri

* Al Marri v. Pucciarelli (08-368) – cert granted

The Supreme Court has granted cert in connection with the Fourth Circuit’s splintered en banc decision in Al-Marri, and thus is set to engage the questions whether the 9/18/01 AUMF authorizes—and if so whether the Constitution allows—military detention of a noncitizen seized in the U.S. in connection with allegations of being an al Qaeda agent.

One wonders whether the Court will reach the merits, however.  It is not difficult to imagine the Obama administration deciding to shift Al-Marri back to the civilian criminal justice system to face material support or other charges (to be followed by deportation upon completion of any sentence).  That assumes, of course, that there is sufficient admissible evidence to support that course, which may or may not be the case.