ABA Standing Committee Conference Report on Counterterrorism Detention Alternatives

September 30, 2009

* ABA Standing Committee on Law and National Security,  Conference Report on Counterterrorism Detention Alternatives

Available here.

From the Committee’s description of the project:

In June of this year, a group of thirty-two legal professionals, scholars, and practitioners in the field of national security law gathered for a day-long workshop titled Exploring Counterterrorism Detention Alternatives. The workshop explored current U.S. detention powers under the criminal and military models and considered potential alternative models for the administrative detention of future terrorist suspects. Read the rest of this entry »

cert granted in challenge to the 1996 material support statute (and in two other cases highlighted earlier this week)

September 30, 2009

* Supreme Court grants cert in several of the cases noted in the round-up post from earlier this week

Earlier this week I posted a list of pending (or soon-to-be pending) cert petitions that related in varying ways to national security.  The Court today has announced its decision on a few of these petitions, granting cert in three of them:

First, the Court granted both the petition and the cross petition in Holder v. Humanitarian Law Project, which puts in issue the constitutionality of including terms like service, training, expert advice or assistance, scientific or technical knowledge, and personnel in the definition of “material support or resources.”  This is, in my judgment, an extraordinarily important case.  The material support statute is an important tool in the DOJ counterterrorism arsenal (it presumably would play a major role in enabling DOJ to bring prosecutions against GTMO detainees, for example).   Read the rest of this entry »

Omar v. Geren; DOJ announces leadership team for National Security Division

September 29, 2009

1. Omar v. Geren (D.D.C. Sep. 28, 2009) (dismissing habeas petition brought by American held in US military custody in Iraq)

Judge Urbina has dismissed the habeas petition brought by Shawqi Ahmed Omar, an American citizen held in military custody in Iraq.  The 14-page opinion is posted here.  Highlights:

In his amended petition, the petitioner principally contends that he is entitled to such relief because his transfer would violate the Foreign Affairs Reform and Restructuring Act (“the FARR Act”), which implements domestically the Convention Against Torture (“CAT”) and prohibits the government from transferring an individual to a country in which he or she will be subject to torture.

The court concludes that because the FARR Act limits judicial review to claims challenging a final order of removal by immigration authorities – which is not the case here – the statute does not provide the petitioner a grounds for habeas relief. In addition, the court concludes that the other bases for relief asserted in the amended petition are foreclosed by the Supreme Court’s ruling in Munaf v. Geren, 128 S. Ct. 2207 (2008).

The petitioner notes that as in St. Cyr, several circuit courts have held that because 28 U.S.C. § 2242(d) does not contain a sufficiently clear and unambiguous expression of congressional intent to limit judicial review of habeas petitions brought under the FARR Act, that provision does not strip district courts of habeas jurisdiction over FARR Act claims. See Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir. 2004) (holding that because the FARR Act does not expressly mention “habeas corpus” or “28 U.S.C. § 2241,” it does not eliminate habeas jurisdiction); Singh v. Ashcroft, 351 F.3d 435, 441 (9th Cir. 2003); Ogbudimpka v. Ashcroft, 342 F.3d 207, 215-18 (3d Cir. 2003); Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir. 2003). As the respondents correctly point out, however, the REAL ID Act of 2005 supersedes the holdings in these cases. Respts’ Mot. at 10-11. The Act provides, in pertinent part, that [n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture. 8 U.S.C. § 1252(a)(4). This Circuit has expressly held that the above provision of the REAL ID Act eliminates habeas jurisdiction over FARR Act claims. Kiyemba v. Obama, 561 F.3d 509, 511 (D.C. Cir. 2009), reh’g denied (July 27, 2009), reh’g en banc denied (July 27, 2009).

The petitioner also contends that his transfer to Iraqi authorities would violate his Eighth Amendment right to be free from cruel or unusual punishment because, under Iraqi law, he could be subjected to the death penalty despite the fact that his alleged crimes did not result in any

fatalities. Am. Pet. ¶¶ 43-45. The respondents assert that this line of argument is foreclosed by the Supreme Court’s ruling in Munaf. Respts’ Mot. at 15-16.

As the Munaf Court explained,

[t]he jurisdiction of a nation within its own territory is necessarily exclusive and absolute. This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.[9]Munaf, 128 S. Ct. at 2222 (quoting Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812); Neely, 180 U.S. at 123) (internal citations and quotation marks omitted).

The petitioner in the instant case traveled to Iraq of his own volition, and Iraq plainly has the authority to prosecute him for any crimes he committed within its sovereign territory. Id. At 2223. Munaf therefore bars this court from issuing a writ of habeas corpus to protect the petitioner from the Iraqi criminal justice system based on the Eighth Amendment. See id. (noting that “habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them”).

2. Leadership team announced for DOJ National Security Division

From the press release:

David Kris, the Assistant Attorney General for National Security, today announced the National Security Division’s (NSD) leadership team.

Brad Wiegmann is the Principal Deputy Assistant Attorney General and is currently serving as Co-Chair of the President’s Detention Policy Task Force. When he completes his work with the Task Force, he will return full-time to the Division to help oversee and manage the full spectrum of the NSD’s work. Mr. Wiegmann joins the NSD from the Department of State, where he served as an Assistant Legal Advisor in the Office of the Legal Advisor. Previously, he worked at the National Security Council as a Deputy Legal Advisor and Acting Legal Advisor, at the Department of Defense as Special Counsel, and in private practice.

Donald Vieira is the Chief of Staff. Mr. Vieira previously served in the NSD as an attorney in the Counterespionage Section and as a member of the Division’s staff for the Committee on Foreign Investment in the United States. He returned to the NSD from the House Permanent Select Committee on Intelligence, where he served as Deputy Chief Counsel and as Subcommittee Staff Director of the Subcommittee on Oversight and Investigations. Prior to entering government service, Mr. Vieira began his legal career as an associate at the law firm of Williams & Connolly LLP.

Todd Hinnen is the Deputy Assistant Attorney General for Law and Policy. Mr. Hinnen joins the Division from the U.S. Senate, where he served as Chief Counsel to then-Senator Joe Biden. Previously, Mr. Hinnen was a Director at the National Security Council’s Combating Terrorism Directorate and a Trial Attorney in the Justice Department’s Criminal Division.

Tashina Gauhar is the Deputy Assistant Attorney General for Intelligence. Ms. Gauhar has extensive experience working with the U.S. Intelligence Community and has held a variety of national security positions within the Department since 2001, including serving as an Assistant Counsel in the Office of Intelligence Policy and Review and later as the Deputy Chief of Operations in the Office of Intelligence, and recently the Chief of Operations. Prior to joining the Justice Department, Ms. Gauhar was an associate at the law firm of DLA Piper (then Piper Marbury Rudnick and Wolfe, LLP).

George Toscas is currently serving as the Acting Deputy Assistant Attorney General for Counterterrorism and Counterespionage. Having entered the Department through the Attorney General’s Honors Program, Mr. Toscas is a career prosecutor with 16 years of prosecutorial experience. During his tenure, he has worked on some of the most sensitive and significant national security matters in the Department. Mr. Toscas previously served in the Counterterrorism Section and its predecessor, the Terrorism and Violent Crime Section, at the Justice Department.

This leadership team is assisted by Sheryl L. Walter, who will remain the Division’s Executive Officer. Ms. Walter previously served in the Justice Department as Chief of Staff in the former Office of Intelligence Policy and Review, as Acting Assistant Attorney General for Legislative Affairs, and as an attorney-advisor in the Office of Legislative Affairs. Prior to joining the Department she worked at the United States Senate. Ms. Walter also has worked in the private sector as general counsel for a nonprofit research institute and as an associate at the law firm formerly known as Mayer, Brown and Platt. She clerked for the Honorable Donald P. Lay, Chief Judge for the U.S. Court of Appeals for the Eighth Circuit.

The work of the Division’s leadership team is also aided by experienced counsels and counselors:

Leonard Bailey is Senior Counselor to the Assistant Attorney General. Mr. Bailey and is spearheading the NSD’s new cyber efforts. Mr. Bailey comes to the NSD from the Criminal Division’s Computer Crimes and Intellectual Property Section. He has been with the Justice Department since 1991 and is widely respected within the Justice Department and the Intelligence Community for his knowledge of cyber issues.

Carrie Cordero is Counsel to the Assistant Attorney General. Ms. Cordero recently returned to the NSD from a joint duty assignment at the Office of the Director of National Intelligence, where she served as a senior associate general counsel in the General Counsel’s office. Previously, Ms. Cordero was an attorney in the Justice Department’s Office of Intelligence and its predecessor, the Office of Intelligence Policy and Review, having joined DOJ through the Honor Program. She has also been a Special Assistant United States Attorney.

Brian Nelson is Special Counsel to the Assistant Attorney General. Mr. Nelson recently served in private practice as an associate with the law firm of Sidley Austin LLP in Washington, D.C. Earlier in his career, Mr. Nelson served as a Law Clerk to Judge Louis H. Pollak on the U.S. District Court for the Eastern District of Pennsylvania and to William A. Fletcher on the U.S. Court of Appeals for the Ninth Circuit.

TRAC study of terrorism prosecution data; Abdullah v. Bush (GTMO discovery order)

September 28, 2009

1. Transactional Records Access Clearinghouse, “Who Is A Terrorist? Government Failure to Define Terrorism Undermines Enforcement, Puts Civil Liberties at Risk”

TRAC’s latest report based on government data provided under FOIA is posted here (and useful commentary from Greg McNeal (VAP, Penn State) is here).  My own sense of this one, briefly stated, is that TRAC has again drawn useful attention to the data-collection problems associated with case-coding practices for federal prosecutors and to the larger dilemma of identifying which cases ought to count as “terrorism-related,” but also that TRAC has again overstated the conclusions to be drawn from these problems.  In any event, it is worth reading the document, which prints out to about 10 pages.

2. Abdullah v. Bush (D.D.C. Sep. 28, 2009) (GTMO habeas discovery order)

Judge Roberts has granted a discovery request by a GTMO detainee who sought all recordings, original notes, and other memoranda of interrogation sessions that produced statements upon which the government now seeks to rely, rejecting the government’s argument that it was sufficient to produce copies of the statements in question as part of the factual return (and also rejecting the argument that the searches involved in obtaining these other iterations of the statement would be unduly burdensome).

national security law in the Supreme Court’s upcoming term: Round-Up (I)

September 28, 2009

* National Security Law in the Upcoming Supreme Court Term

It remains to be seen whether the Court will take any major national security law cases for the upcoming term.  I list a few candidates below based on what already has been considered or is about to be considered by the Court during its cert. conferences. Please let me know if you have in mind some additional cases that have a reasonable chance of being heard this term, and I will circulate an updated roster. Read the rest of this entry »

al Rabiah v. United States (D.D.C.)

September 26, 2009

* Al Rabiah v. United States (D.D.C. Sep. 17, 2009) (released in unclassified format Friday September 26th)

Judge Kollar-Kotelly has granted habeas relief to GTMO detainee Fouad Mahmoud Al Rabiah.  The 65-page opinion is posted here.  Some key excerpts follow (please note that I’ve not corrected the formatting errors that occur when copying text from a pdf to Microsoft Outlook): Read the rest of this entry »

Barhoumi v. Obama (D.D.C. Sep. 3, 2009)

September 24, 2009

* Barhoumi v. Obama (D.D.C. Sep. 3, 2009)

This one is three weeks old, but I did not learn of it till today and am not aware of any media coverage of it.  In any event, in the attached order Judge Collyer grants judgment on the record against a GTMO detainee, denying Barhoumi’s habeas petition. There is no discussion in the order of why the petitioner lost, and I don’t have the underlying motion papers that would shed light on what apparently was a strong government case.  It may be that the government’s submissions were sealed, of course.

United States v. Kaziu (E.D.N.Y. Sep. 24, 2009)

September 24, 2009

* United States v. Kaziu (E.D.N.Y. Sep. 24, 2009)

A busy week in Brooklyn…DOJ has announced the indictment of Betim Kaziu, based on the following allegations (this is from thepress release, not the indictment):

According to the indictment and other documents filed by the government, in early January 2009, Kaziu devised a plan to travel abroad for the purpose of joining a radical foreign fighter group and to take up arms against perceived enemies of Islam. Read the rest of this entry »

United States v. Zazi (E.D.N.Y. Sep. 24, 2009)

September 24, 2009

*United States v. Zazi (E.D.N.Y. Sep. 24, 2009)

Najibullah Zazi, who was arrested earlier this week on charges of making false statements to the FBI, has now been indicted in New York on a single count of conspiracy to use weapons of mass destruction (note: the WMD statute encompasses ordinary explosives) to attack persons or property in the US, in violation of 18 USC 2332a(a)(2).  I have not seen the indictment yet, but here is the relevant content of the press release: Read the rest of this entry »

new policy regarding assertions of the state secrets privilege

September 23, 2009

* Memorandum from Attorney General Holder, “Policies and Procedures Governing Invocation of the State Secrets Privilege” (Sep. 23, 2009)

The Justice Department today is announcing a new policy governing invocations of the state secrets privilege.  The four-page memorandum detailing the policy is attached, and the press release summarizing it more briefly appears below.  In brief, the policy entails both substantive and process changes, the general thrust of which are to deter unwarranted and overbroad invocations of the privilege while still preserving the availability of the privilege for use in appropriate cases. To wit: Read the rest of this entry »