FBI Domestic Investigations and Operations Guide; GTMO transfers last week; US v. Boyd; US v. Smadi; US v. Finton; forthcoming scholarship

1. FBI, “Domestic Investigations and Operations Guide” (Dec. 16, 2008) (posted this week on FBI’s FOIA site)

The FBI has released a redacted version of its guidelines governing domestic investigations and operations, here.

The FBI today is posting its Domestic Investigations and Operations Guide (DIOG). The DIOG was approved on December 16, 2008, and sets policy and procedures to guide the Bureau in implementing the Attorney General Guidelines signed last year. At the time the Attorney General Guidelines and the DIOG were issued, the FBI committed to Congress and the public that it would make as much of the DIOG publicly available as possible, consistent with the need to confidentially maintain information deemed law enforcement sensitive.

The DIOG establishes policy that guides all of the FBI’s domestic operations, whether counterterrorism, counterintelligence, criminal or cyber crime. It is designed to ensure that all of the FBI’s investigative activities are carried out with full adherence to the Constitution and federal law. As you read this document, you will see the FBI takes very seriously its mission to protect the American public from national security threats and crime and does so while respecting and upholding Constitutional rights, civil liberties, and privacy.

Parts 1 – 4Parts 5 – 9Parts 10 – 11.11.9Parts 11.12 – 17Appendices

Note that the underlying Attorney General Guidelines for Domestic FBI Operations are quite a bit more accessible (shorter, not redacted), and are posted here.

2. Three GTMO detainees transferred (two to Ireland, one to Yemen) on September 26


3. United States v. Boyd (E.D.N.C.)

This is a bit stale now, but I realize I never circulated anything about the superseding indictment in this one.  The indictment is here, and the press release is here.  Key portions of the latter:

First, the superseding indictment charges Daniel Patrick Boyd, aka “Saifullah,” and Hysen Sherifi with conspiring to murder U.S. military personnel, in violation of Title 18, United States Code, Section 1117. The superseding indictment alleges, among other things, that in furtherance of this agreement, Boyd undertook reconnaissance of the Marine Corps Base located in Quantico, Va., and obtained maps of the base in order to plan an attack on Quantico. According to the superseding indictment, Boyd possessed armor piercing ammunition, stating it was “to attack the Americans.” A conviction for conspiring to violate Title 18, United States Code, Section 1117 has a maximum penalty of imprisonment for any term of years or life, and/or a $250,000 fine, followed by five years of supervised release.

Second, Boyd, Sherifi, and Zakariya Boyd, aka “Zak,” are also charged with possession of weapons in furtherance of a crime of violence, in violation of Title 18, United States Code, Section 924(c). These section 924(c) charges are separate from, and in addition to, the section 924(c) charges alleged in the original indictment. A violation of Title 18, United States Code, Section 924(c), carries a maximum penalty of no less than five years in prison nor more than life, a $250,000 fine or both fine and imprisonment, and up to five years of supervised release following imprisonment. If any of the defendants are convicted for more than one of the section 924(c) charges alleged by the grand jury, the minimum term of imprisonment rises to 25 years, to run consecutively to any other sentence.

Third, Daniel Boyd is also charged with the providing a Ruger mini 14 rifle and, on a separate date, .223 ammunition, to a convicted felon, each in violation of Title 18, United States Code, Section 922(d). If convicted, Boyd faces up to ten years in prison and a $250,000 fine, and three years supervised release on each of these charges.

4. United States v. Smadi (N.D. Tex.)

Also a bit stale, but also not circulated before.  The criminal complaint is here, and the press release is here.  Key portions of the latter:

Hosam Maher Husein Smadi, 19, has been arrested and charged in a federal criminal complaint with attempting to use a weapon of mass destruction.  Smadi, who was under continuous surveillance by the FBI, was arrested today near Fountain Place, a 60-story glass office tower located at 1445 Ross Avenue in downtown Dallas, after he placed an inert/inactive car bomb at the location.  Smadi, a Jordanian citizen in the U.S. illegally, lived and worked in Italy, Texas.  He has repeatedly espoused his desire to commit violent Jihad and has been the focus of an undercover FBI investigation.

…”The criminal complaint alleges that Hosam Smadi sought and attempted to bomb the Fountain Place office tower, but a coordinated undercover law enforcement action was able to thwart his efforts and ensure no one was harmed,” said David Kris, Assistant Attorney General for National Security.

5. United States v. Finton (N.D. Ill.)

And this too is a bit stale, but not circulated before.  The criminal complaint is here, the press release here.  Key portions of the latter:

Acting U.S. Attorney Jeffrey B. Lang of the Central District of Illinois and Karen E. Spangenberg, Special Agent in Charge of the FBI, Springfield Division, today announced that Michael C. Finton, aka., “Talib Islam,” has been arrested on charges of attempted murder of federal employees and attempted use of a weapon of mass destruction (explosives) in connection with a plot to detonate a vehicle bomb at the federal building in Springfield, Ill.

In his alleged efforts to carry out the plot, Finton ultimately dealt with undercover FBI agents and confidential sources who continuously monitored his activities up to the time of the arrest. Further, in his alleged efforts, Finton drove a vehicle containing inactive explosives to the Paul Findley Federal Building and Courthouse in Springfield and attempted to detonate them, according to a criminal complaint filed today in the Central District of Illinois. The arrest of Finton is not in any way related to the ongoing terror investigation in New York and Colorado.

Finton, 29, a resident of Decatur, Ill., is charged in the criminal complaint with one count of attempted murder of federal officers or employees and attempted use a weapon of mass destruction. If convicted, he faces a maximum penalty of life in prison. Finton made his initial appearance today in federal court in Springfield.

According to the affidavit filed in support of the criminal complaint, Finton came to the attention of law enforcement. As a part of the investigation, his parole officer was contacted. After his parole officer learned that Finton had committed a parole violation, he was arrested in August 2007 and his parole was revoked. Several of Finton’s writings recovered after his arrest indicate that he had written a letter to John Walker Lindh, an American who was captured fighting for the Taliban and is imprisoned on terrorism violations. After his release from prison, in a January 2008 interview with the FBI, Finton allegedly explained that he idolized Lindh. The affidavit further alleges that, in March 2008, Finton received funds from an individual in Saudi Arabia that he used to travel to Saudi Arabia in April 2008. He returned to the United States in May 2008.

According to the affidavit, over the next few months, Finton communicated with an individual who, unbeknownst to him, was a law enforcement source. The affidavit alleges that during these talks, Finton expressed his desire to receive military training and to travel to Gaza or other overseas locations to become a jihadist fighter.

In February 2009, Finton was introduced to an undercover FBI special officer posing as a low-level al-Qaeda operative. According to the affidavit, Finton expressed his desire to receive military training at a camp and to fight in Pakistan, Afghanistan, Somalia or other locations. The undercover agent told Finton several times that it was Finton’s decision and that he could walk away from the decision anytime. According to the affidavit, Finton indicated that he was excited and had no second thoughts about attending a camp.

In the ensuing months, the affidavit alleges that Finton discussed possibly targeting locations in the United States. The affidavit alleges that Finton ultimately suggested the Paul Findley Federal Building and Courthouse in downtown Springfield as a primary target. According to the affidavit, Finton conducted surveillance of the building and proposed a remotely-detonated car bomb for the attack.

Further, according to the affidavit, Finton observed that U.S. Congressman Aaron Schock’s office, located at the corner of East Monroe and 6th Streets, would be a secondary target. The affidavit alleges that on Aug. 14, 2009, Finton and the undercover officer made a video recording in which Finton provided his own political rationale for attacking the United States. Days later, Finton allegedly made two more videos in which he spoke of his belief that America is at war with Islam.

On Sept. 1, 2009, Finton met with the undercover FBI officer and was told the vehicle for the attack would be carrying close to one ton of explosives. According to the affidavit, Finton indicated an awareness that the bomb would cause civilian casualties, but expressed his view that such casualties were justified. Unbeknownst to Finton, the FBI ensured that the vehicle for the attack contained no actual explosive materials.

The affidavit alleges that yesterday, on September 23, 2009, Finton drove a van containing what he understood to be explosive material and parked it directly in front of the northwest corner of the federal building. Finton got out of the van, locked the door and got into another vehicle driven by the undercover FBI officer and drove away. Within a few blocks of the federal building, Finton made a cell phone call to remotely detonate the purported bomb in the van. FBI agents arrested Finton immediately after he attempted to detonate the device.

6. Forthcoming scholarship

Norm Internalization Through Trials for Violations of International Law: Four Conditions for Success and Their Application to Trials of Detainees at Guantanamo Bay

Vijay M. Padmanabhan
Benjamin N. Cardozo School of Law – Yeshiva University

University of Pennsylvania Journal of International Law, Forthcoming
Cardozo Legal Studies Research Paper No. 275

Abstract:   Norm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at minimum, be the primary objective of trials for those detained at Guantanamo Bay, with the goal of internalizing an anti-terrorism norm in the Islamic world. Despite the prominence of norm internalization in the literature of international criminal law, however, trials for violations of international law have generally failed to internalize norms in the community of the defendant.

This paper examines these past failures and inductively derives four necessary, but not necessarily sufficient, conditions for the success of norm internalization in the community of the defendant: consistency, selectivity, accessibility, and integration. Meeting these conditions avoids pitfalls that have prevented successful norm internalization in past trials. Application of these conditions to past and future trials at Guantanamo Bay reveals such trials are ill-suited to internalization of an anti-terrorism norm in the Islamic world. Military commissions, which did not include norm internalization as a prominent objective, failed to meet the four conditions. More importantly, future trials of this detainee population, regardless of venue, appear incapable of meeting them. Given these failures, this paper suggests that trials of Guantanamo detainees would more profitably focus on alternative, more attainable trial objectives. These failures also raise real questions about whether norm internalization through trial in the community of the defendant is possible, and if so, when and it what forum it could be successful.

Cyber-Apocalypse Now: Securing the Internet Against Cyberterrorism and Using Universal Jurisdiction as a Deterrent

Kelly Gable

Vanderbilt Journal of Transnational Law

Cyberterrorism has become one of the most significant threats to the national and international security of the modern state, and cyberattacks are occurring with increased frequency. Not only does the Internet make it easier for terrorists to communicate, organize terrorist cells, share information, plan attacks, and recruit others, but the Internet is increasingly being used to commit cyberterrorist acts. It is increasingly clear that the international community may only ignore cyberterrorism at its peril.

The primary security threat posed by the Internet is caused by an inherent weakness in the TCP/IP Protocol, which is the technology underlying the structure of the Internet and other similar networks. This underlying structure enables cyberterrorists to hack into one system and use that as a springboard for jumping onto any other network that is also based on the TCP/IP Protocol. Other threats to national and international security include direct attacks on the Internet and the use of the Internet as a free source of hacking tools. These threats will not be eradicated easily.

In the absence of feasible prevention, deterrence of cyberterrorism may be the best alternative. Without, at a minimum, a concerted effort at deterrence, cyberterrorism will continue to threaten national and international security. The most feasible way to accomplish deterrence is to prosecute cyberterrorists under the international law principle of universal jurisdiction.

The Goldstone Report

David Kaye (USC)

ASIL Insight (Oct. 1, 2009)

[From the introduction] Justice Richard Goldstone has now formally presented to the Human Rights Council his Report of the United Nations Fact Finding Mission on the Gaza Conflict, which was released on September 15th.[1] The Report, critical of both Hamas and Israel for actions related to the conflict that spanned three weeks from late December 2008 to mid-January 2009, was never likely to influence Hamas’ approach to international humanitarian law (IHL).[2] By contrast, a report by Justice Goldstone – a long-time friend of Israel and highly respected in legal circles worldwide – might have played some role in encouraging Israel to rethink how it deals with armed groups operating in civilian areas in Gaza. While Justice Goldstone’s credibility and the Report’s findings have guaranteed that the Mission’s conclusions are being heard, it is difficult to see how it will have a positive impact on Israeli thinking. Hamas has championed the Goldstone Report as vindication,[3]while Israel has issued a response that challenges the Mission’s core factual and legal conclusions.[4]

This Insight does not purport to weigh the Report’s factual findings against Israel’s objections, nor to catalog the Report’s strengths and weaknesses. Instead, it presents a general overview of its findings and some comments on what is surely a leading reason for Israel’s denunciation of the Report: the rejection of its system of military justice and the call for other states and the International Criminal Court (ICC) to investigate and prosecute alleged Israeli offenders. The United States has echoed Israel’s concern in its own reactions to the Report,[5] while, conversely, Justice Goldstone himself has identified accountability as his main objective.[6]

Criminalizing Humanitarian Intervention

Sean D. Murphy (George Washington Univ. – Law)

Case Western Reserve Journal of International Law, Vol. 41, nos. 2-3, p. 341, 2009

The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention as illegal. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders – an outcome that seems likely for incidents of true humanitarian intervention – may lend considerable credence to the view that such intervention is lawful, as well as define the conditions that characterize such intervention.

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