Annual Review Conference earlybird deadline ends October 30 – keynote speakers announced

* ABA Standing Committee on Law and National Security, 19th Annual Review of the Field of National Security Law Conference registration and hotel deadline extended:

The Center for National Security Law at the University of Virginia School of Law; the American Bar Association Standing Committee on Law and National Security and the Center on Law, Ethics and National Security at Duke University School of Law

proudly announce the

19^th Annual Review of the Field of National Security Law Conference

November 12 and 13, 2009

Renaissance Washington DC Hotel ** 999 Ninth Street NW,  Washington, DC

Early Bird Rate Ends FRIDAY, OCTOBER 30

Panels include: Executive and Legislative updates on developments in national security law; Emerging Issues in National Security Law: Narco-Violence Along the Border; Modern Piracy: Legal and Policy Options; Revised Military Commissions: Lingering Questions; Cyber Security and Cyber Warfare and Ethics Challenges for National Security Lawyers.

The opening reception for registered attendees, hosted by the law firm of Arnold & Porter will be on Wednesday, November 11, in their Garden Room, 555 12^th Street, NW in Washington from 6-7:30 p.m.

Conference keynote speakers include:

• DHS Secretary Janet Napolitano
• Deputy Secretary of State James Steinberg
• Jamie S. Gorelick, WilmerHale

Registration form is attached and full program information is posted on the Committee’s website –www.abanet.org/natsecurity.

Mohamed v. Jeppesen Dataplan (en banc granted); ODNI GC on congressional notification; United States v. Headley and Rana; Beard on Law and War in the Virtual Era

1. Mohamed v. Jeppesen Dataplan (9^th Cir. Oct. 27, 2009)

The Ninth Circuit has granted en banc review in this important case involving the state secrets privilege (thus delaying or potentially averting Supreme Court engagement with the issue).  The short order granting review is here.

Al Sattar v. Obama; Noori v. Obama; HPSCI hearing re notification laws; national security archive blog

1. Al Sattar v. Obama (D.D.C. Oct. 21, 2009) (GTMO habeas)

Judge Bates has granted the government’s motion to dismiss this habeas petition (without prejudice), on the ground that counsel has been unable to obtain al Sattar’s consent to the representation (al Sattar has declined on five occasion to meet with counsel, it appears, and tore up a letter from counsel asking him to reconsider and to authorize their representation).   The short opinion explaining the decision appears here.

2. Noori v. Obama (D.D.C. Oct. 22, 2009) (GTMO habeas)

Judge Urbina has given putative counsel in this GTMO habeas proceeding 30 days to make a second attempt to secure authorization for representation, and has stayed consideration of the government’s motion to dismiss in the interim.  The opinion ishere.

3. House Permanent Select Committee on Intelligence, Subcommittee on Intelligence Community Management, Hearing on Congressional Notification of Intelligence Activities (Oct. 22, 2009)

Two substantive statements for the record are here:

Mr. L. Britt Snider
Former Inspector General, Central Intelligence Agency

Mr. Fritz A.O. Schwarz
Former Chief Counsel, Church Committee

4. New blog from the National Security Archive

http://nsarchive.wordpress.com/

United States v. Amawi; symposium on religion and national security; collateral review of military commissions; forthcoming scholarship

1. United States v. Amawi (N.D. Ohio Oct. 21, 2009)

Judge James Carr has sentenced three men in connection with a conspiracy to kill people outside the United States, including U.S. military personnel in Iraq.  The government’spress release summarizes the allegations in the case as follows:

In February 2007, Amawi, El-Hindi, and Mazloum were charged in a superseding indictment with conspiring to kill or maim persons outside the United States, including U.S. military personnel serving in Iraq, and conspiring to provide material support to terrorists. Amawi and El-Hindi were also charged individually with distributing information regarding the manufacture or use of explosives, including suicide bomb vests and Improvised Explosive Devices (IEDs).

united states v. mehanna (terrorism conspiracy arrest in Massachusetts)

* United States v. Terek Mehanna (D. Mass. Oct. 21, 2009)

According to a criminal complaint and accompanying affidavit filed yesterday, Mehanna, Ahmad Abousamra, and others collaborated in an effort to go abroad to participate in jihad and to carry out attacks within the U.S. as well.  Mehanna already had been arrested, and charged earlier this year with making false statements to the FBI (in connection with questions regarding the activities of his associate Daniel Maldonado, an American who traveled to Somalia to obtain military-type training and who then became the first person prosecuted under 18 USC 2339D, which forbids the receipt of such training from a designated foreign terrorist organization).    The complaint charges a conspiracy to violate the 1994 material support law (18 USC 2339A), based on the provision of various forms of support and resources with the knowledge and intent that they would be used (presumably by Mahanna and Abousamra themselves) in furtherance of anticipated violations of 18 USC 956(a) (prohibiting conspiracies to commit unlawful violent acts outside the US) and 18 USC 2332 (prohibiting the murder of US nationals overseas).  In that respect, this looks like a good example of the use of the material support concept in coordination with conspiracy liability to enable prosecutorial intervention at a relatively early/preliminary stage, something we’ve seen many examples of in recent years.

The complaint and affidavit are available here.

Doe v. Holder; new statutory rules governing GTMO transfer/release

1. Doe v. Holder (S.D.N.Y. Oct. 20, 2009)

This long-running litigation involves an Internet Service Provider whom the FBI served with a national security letter (i.e., a type of administrative subpoena) many years ago. The legal framework governing NSLs includes an option for forbidding the recipient of an NSL from disclosing the fact that it has received such a request.  At the time this particular NSL first was issued, it was not clear that the relevant statutes permitted the recipient to challenge the nondisclosure requirement in court (or even discuss the situation with a lawyer).  As a result of multiple rounds of litigation and statutory revisions, however, it is now clear that the government must initiate judicial review of an NSL nondisclosure provision and that the government has the burden of showing (by more than a conclusory assertion) that there is good reason to believe that the gag provision is necessary to avoid a substantial risk of harm in relation to the underlying investigation.

Yesterday, the district court (Judge Marrero) applied this new standard, and ruled in the government’s favor. The opinion is posted here.

Job Opportunity: Human Rights First seeks Law and Security Program Director

* Human Rights First seeking new Law & Security Director

HRF is seeking a new director for their Law & Security program – see the details in the attached document (including contact info for those who are interested).

cert granted in Kiyemba

* Kiyemba v. Obama (08-1234) (cert. granted)

The Supreme Court today granted cert in Kiyemba v. Obama (no. 08-1234), which raises the question whether a judge may order the government to bring a detainee into the United States if the government no longer asserts detention authority over an individual and if after some period of time the government appears unable to identify an appropriate foreign country to accept custody of that person.

Binyam Mohamed v. Secretary of State; United States v. Nozette; surveillance symposium at Case (10/22-23); forthcoming scholarship

1. * Binyam Mohamed v. Secretary of State (UK High Court of Justice, Oct. 16, 2009), [2009] EWCH 2549

A court in the UK has issued the latest in a series of opinions involving a former GTMO detainee and the question of whether to publicly release certain information that the US had provided the UK (apparently concerning the treatment of  the detainee by US personnel in April 2002).  This latest round of litigation raises a number of questions, including the recurring question of whether a court can second-guess an executive official’s estimation that public disclosure of information would cause harm to national security (in this case, whether a judicial decision to disclose the information would prompt the US to respond by constricting its intelligence cooperation with the UK’s security services).  Notably, key portions of the opinion are redacted (at least for now), but the long and short of it is that the court ultimately concludes that there is insufficient evidence to believe that such harms would occur, notwithstanding the government’s claim to the contrary.

Redacted opinion (38 pages)

Summary (4 pages)

2. United States v. Nozette (D.D.C.)

A scientist previously involved in satellite-related programs at NASA and highly-classified research at the Department of Energy has been arrested and charged with attempting to transmit classified national defense information to a foreign government.  The charge stems from a sting operation in which an undercover employee of the FBI posed as a Mossad agent.  Details are available in the press release posted here.

3. Upcoming Event:  “Somebody’s Watching Me: Surveillance and Privacy in an Age of National Insecurity”

Symposium at Case Western Reserve University School of Law, Institute for Global Security Law & Policy

October 22-23, 2009

Moot Courtroom (A59)

SCHEDULE

Thursday, October 22, 2009

4:30-7:30 p.m.

The Institute for Global Security Law and Policy International Film Series

“The Lives of Others” (Das Leben der Anderen)

Winner of the Academy Award for best foreign film in 2007

Introduction by Mary Beth Stein, George Washington University, Department of German Studies

Friday, October 23, 2009

8:30 a.m. – 4:30 p.m.

8:30-9:00 a.m.

Registration

9:00-9:30 a.m.

Welcome/Introduction

Interim Dean Robert Rawson, Case Western Reserve University School of Law

Professor Robert Strassfeld, Director, Institute for Global Security Law and Policy

Case Western Reserve University School of Law

9:30-10:45 a.m.

Panel:  Surveillance in Public Places and Closed Circuit Television

Ms. Aileen Xenaxis, Senior Law and Policy Analyst, Center for Health and Homeland Security, University of Maryland School of Law

Professor Jacqueline Lipton, Associate Dean and Associate Director, Frederick K. Cox Interational Law Center, Case Western Reserve University School of Law

Ms. Micheal Vonn, Policy Director, British Columbia Civil Liberties Association

Moderator:  Professor Lewis Katz, Case Western Reserve University School of Law

10:45-11:00 a.m. Break

11:00 a.m.-12:00 p.m.

Panel: Globalization of Surveillance

Professor David Lyon, Queens University, Ottawa (Sociology)

Mr. Paul Rosenzweig, former Acting Assistant Secretary, Office of International Affairs, Department of Homeland Security

Moderator:  Professor Kenneth Ledford, Department of History, Case Western Reserve University

12:00-1:15 p.m. Lunch

1:15-2:30 p.m.

Panel: Foreign Intelligence Surveillance Act (FISA) and FISA Reform

Mr. Jameel Jaffer, Director, American Civil Liberties Union National Security Project

Professor Raymond Ku, Co-Director, Center for Law, Technology, and the Arts, Case Western Reserve University School of Law

Mr. Lee Tien, Senior Staff Attorney, Electronic Frontier Foundation

Moderator:  Visiting Professor Michael Benza, Case Western Reserve University School of Law

2:30-2:45 p.m. Break

2:45-4:00 p.m.

Panel:  Resistance to Surveillance

Professor Timothy Casey, Case Western Reserve University School of Law

Professor Laura Huey, Department of Sociology, Western Ontario University

Professor Mary Beth Stein, Department of German Studies, George Washington University

Moderator:  Professor Robert Strassfeld, Director, Institute for Global Security Law and Policy

Case Western Reserve University School of Law

4:00 p.m Reception

4. forthcoming scholarship

“Revenge of the Drones”

Peter Bergen

Katherine Tiedemann

New America Foundation

From the opening section:

As a result of the unprecedented 41 drone strikes into Pakistan authorized by the Obama administration, aimed at Taliban and al Qaeda networks based there, about a half-dozen leaders of militant organizations have been killed–including two heads of Uzbek terrorist groups allied with al Qaeda, and Baitullah Mehsud, the leader of the Pakistani Taliban–in addition to hundreds of lower-level militants and civilians, according to our analysis.[1]

The number of civilian deaths caused by the drones is an important issue because in the charged political atmosphere of today’s Pakistan, where anti-Americanism is rampant, the drone program is a particular cause of anger among those who see it as an infringement on Pakistan’s sovereignty. A Gallup poll in August found that only 9 percent of Pakistanis favored the strikes, while two-thirds opposed them.

An important factor in the controversy over the drones is the widespread perception that they kill large numbers of Pakistani civilians. Some commentators have asserted that the overwhelming majority of casualties are civilians. Amir Mir, a leading Pakistani journalist, wrote in The News in April that since January 2006, American drone attacks had killed “687 innocent Pakistani civilians.” A month later, a similar claim was made in theNew York Times by counterinsurgency experts David Kilcullen and Andrew Exum, who wrote that drone strikes had “killed some 700 civilians. This is 50 civilians for every militant killed, a hit rate of 2 percent.” In other words, in their analysis, 98 percent of those killed in drone attacks were civilians. Kilcullen and Exum advocated a moratorium on the strikes because of the “public outrage” they arouse.

A very different picture was presented earlier this month by the Long War Journal, an American blog that closely tracks terrorist groups, in particular al Qaeda and the Taliban. Bill Roggio, the editor of Long War Journal, concluded that according to his close analysis of the drone strikes, only 10 percent of those killed were civilians.

Our analysis suggests quite different conclusions than those of either Kilcullen and Exum or the Long War Journal. ….

And links to their data:

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“Filling in the Gaps of ICTY Jurisprudence: The Notion of Combatants Hors De Combat as Victims of Crimes Against Humanity”

AARON MATTHEW HINES, affiliation not provided to SSRN
Email: hines.am@gmail.com

This Comment will discuss the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) relating to the question of whether a combatant hors de combat can be considered a victim of crimes against humanity. It will focus on the Appeals Judgment in the case of Prosecutor v. Martić as well as the ongoing appeal in the case of Prosecutor v. Mrkšić. Before the trials against Mrkšić and Martić, the ICTY had not been called upon to pronounce whether the notion of crimes against humanity can apply to crimes committed against victims who are not civilians. That question was recently answered by both the Trial Chamber in Mrkšić and the Appeals Chamber in Martić.

Unfortunately, and to the detriment of the ICTY jurisprudence’s clarity and consistency, the Chambers came to different conclusions as to whether victims of crimes against humanity must be civilians. This Comment will address the confusion within ICTY jurisprudence. It will address how the Trial Chamber in Mrkšić left a gap in its analysis of this issue. It will then review the holding of the Appeals Chamber in Martić and suggest that the reasoning in the Martić Appeals Judgment should be the proper interpretation of victimhood under crimes against humanity. Finally, this Comment will suggest that even though the Martić Appeals Judgment offers the best legal reasoning for victim status under crimes against humanity, a key argument needs to be addressed so this area of ICTY jurisprudence can be more sufficiently resolved.

Before the problem and solution are presented, this Comment will present an in-depth review of the history of crimes against humanity. It will start by reviewing the introduction of crimes against humanity in international jurisprudence. In order to understand the differences between crimes against humanity and war crimes, a history of war crimes will be presented with an emphasis on the connection to an armed conflict. That emphasis on an armed conflict will be important to understand the Statute of the ICTY (the “Statute”) and its jurisdiction over crimes against humanity. From there, this Comment will review the relationship of crimes against humanity and war crimes and the subsequent split between to the two crimes. From there, the relevant articles of the Statute of the ICTY Statute will be discussed, followed by the other international texts that are important to the discussion of determining if combatants hors de combat can be victims of crimes against humanity under the ICTY Statute.

ACLU v. DoD; forthcoming scholarship

1. ACLU v. DoD (D.D.C. Oct. 16, 2009) (FOIA ruling in re detainee statements and interrogation transcripts)

Judge Lamberth has granted the government’s summary judgment motion in this FOIA action, citing FOIA exemptions 1 and 3.  Key aspects of the ruling:

Plaintiffs assert that the government’s release of the declassified OLC memoranda and the IG Report demonstrates that the information they seek is in the public domain. These documents contain general information regarding defendants’ interrogation program. (See Pls.’ Opp’n Ex. A-D, F-G.) The redacted information at issue in this case, however, is specific and particular to each detainee and would reveal far more about the CIA’s interrogation process than the previously released records. (See Hilton Decl. ¶¶ 49, 60, 62-64.) Indeed, the fact that the government disclosed general information on its interrogation program does not require full disclosure of aspects of the program that remain classified.See Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (recognizing that the fact that some information is publicly available “does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods, and operations”).

Moreover, as stated in Ms. Hilton’s declaration, the redacted information relates not just to the use of EITs, but also to the interrogation methods and procedures that are authorized in the Army Field Manual and are in use today. (Hilton Decl. ¶ 60.) Release of such information would seriously damage national security by compromising intelligence sources and methods (see id. ¶¶ 50-64, 70-72), even if the damage is not apparent to the casual observer. See Halperin, 629 F.2d at 150 (“[E]ach individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.”).

…

The Court also finds that plaintiffs’ reliance on the report authored by the International Committee of the Red Cross is misplaced. This report does not constitute an official disclosure by the government. Without official disclosure, classified information is not considered to be public.

…

Second, the Court does not see how the President’s order prohibiting the use of EITs and closing the CIA’s prisons justifies full disclosure of the records sought. Plaintiffs’ theory would require the government to fully disclose the details of every classified program that the government discontinues. This simply is not true. A government record remains classified until a government official determines that “the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”

…

Third, contrary to plaintiffs’ assertion, defendants may redact portions of the detainees’ statements that would expose “intelligence sources and methods.” It is within defendants’ broad discretion to determine “whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process.” …

According to plaintiffs, defendants only seek to withhold the information to “conceal violations of law” or “prevent embarrassment,” which is in violation of Exec. Order No. 12,958, § 1.7(a)(1)-(2). The Court finds that defendants have shown that damage to national security would reasonably result if the detainees’ statements were disclosed, and that defendants did not classify portions of the detainees’ statements to conceal violations of the law or prevent embarrassment.

As discussed above, defendants  reprocessed all documents responsive to plaintiffs’ FOIA request in light of the President’s disclosure of the OLC memoranda. The President’s disclosure released only general information about defendants’ interrogation program. The redacted information, however, relates only to specific information that has not yet been disclosed to the public because of the damage its release would cause to national security. (See Hilton Decl. ¶¶ 44, 53-72.) This Court is in no position to second-guess defendants’ determination that disclosure of detainees’ statements would result in damage to national security. See Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977) (“Few judges have the skill or experience to weigh the repercussions of disclosure of intelligence information.”).

2. Forthcoming Scholarship

“Triggering Congressional War Powers Notification: A Proposal to Reconcile Constitutional Practice with Operational Reality”

Lewis and Clark Law Review, Forthcoming

GEOFFREY S. CORN, South Texas College of Law
Email: gcorn@stcl.edu

In 1973, a supermajority of Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founder’s vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President; and the uncertainty as to what events trigger the law’s obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of statutorily mandated inter-branch war powers cooperation from the express authorization emphasis of the War Powers Resolution to notification and cooperation. While this shift in emphasis is both logical and more aligned with historical constitutional practice than the War Powers Resolution, the proposal still struggles to define an effective trigger for this notification and cooperation mandate. This article will review how the War Powers Consultation Act seeks to cure the defects of the War Powers Resolution and impose a more effective cooperative war-making relationship between the two political branches. It will then propose a critical improvement: a more effective notification and cooperation trigger to implement this purpose, one that is derived from the nature of the military operations this cooperative decision-making mandate is intended to enhance. The article will explain how linking the congressional notification mandate of the proposed law to operational rules of engagement will provide the most effective pragmatic notification trigger, mitigate the risk of interpretive avoidance of the law’s mandate, and reconcile the scope of the cooperative war-making obligation with constitutional authority.

“Administration of War”

Duke Law Journal, Vol. 58, p. 2277, 2009
UC Berkeley Public Law Research Paper No. 1479252

JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

This essay asks whether the Constitution’s implicit grant of the removal power to the President provides control over the administrative agencies by examination of civil-military relations under the administration of President George W. Bush. Control over the military is one of the most significant, but also understudied, aspects of administrative law. The U.S. Armed Services are the nation’s first administrative agencies, predating the Constitution itself. The President has greater freedom to remove and command military officers than over the personnel of any civilian agency. Yet, greater constitutional command over the military agencies has not produced greater presidential control. Since the end of the Cold War, the military has become increasingly independent from political leadership. During both the Clinton and Bush administrations, military officers publicly opposed and sought to change civilian policies. A principal-agent model of administration, built on rational choice approaches to the study of bureaucracy, suggests ways that civilian principals can increase their control. Dividing the military into different services with similar functions may reduce its ability to unify in its struggle with civilian principals. When there is an unprecedented form of external threat and disagreement on the most effective policies, decentralization may also create a healthy competition that provides principals with more varied policy options and hence more control over their agents.

“Prison Islam in the Age of Sacred Terror”

The British Journal of Criminology, Vol. 49, No. 5, pp. 667-685, 2009

MARK S. HAMM, affiliation not provided to SSRN

Research indicates that Islam is the fastest growing religion among prisoners in Western nations. In the United States, roughly 240,000 inmates have converted to the faith since the 9/11 attacks. According to federal law enforcement, Saudi-backed Wahhabi clerics have targeted these prisoners for terrorist recruitment. The present research examines this claim from several different perspectives. First, it reviews the literature on prisoner conversions to Islam and concludes that there are opposing viewpoints on the matter. One side of the debate takes an alarmist stance, arguing that prisons have become incubators for Islamic terrorism; the other side asserts that Islam plays a vital role in prisoner rehabilitation. Second, results of a two-year study of prisoner radicalization and terrorist recruitment in US prisons are reported. The motives for prisoner conversions to Islam are discussed along with the effects of conversion on inmate behaviour; the role played by gangs and charismatic leaders in radicalizing prisoners; and the social processes by which inmates move from radicalization to operational terrorism. Third, two case studies are presented. One involves a terrorist plot waged by a gang of Sunni prisoners at California’s New Folsom Prison; the other looks at the inmate-led Islamic Studies Program at Old Folsom Prison, which has adopted a de-radicalization agenda. It is argued that inmate self-help programmes may do more than the state to prevent radicalization and terrorist recruitment behind bars.

“Enforced Disappearance as a Crime Under International Law: A Neglected Origin in the Laws of War”

Yale Journal of International Law, Vol. 35, No. 1, 2009

BRIAN FINUCANE, Yale University-Law School
Email: brian.finucane@yale.edu

Enforced disappearance as a crime under international law has a long and neglected history. In this Note I argue that that the criminal prohibition of disappearance is rooted in the laws of war, rather than in late 20th century human rights law. By analyzing the judgments of the Nuremberg Tribunals, I show that the conduct underlying enforced disappearance carried individual criminal liability at the time of the Second World War, both as a war crime and as a crime against humanity. I trace the origins of the prohibition to the protection of the family by the 19th laws of war. By using the prosecution of enforced disappearance in Bosnia and Herzegovina as a case study, I show the practical relevance of enforced disappearance’s long history under international humanitarian law.