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).

On June 13, 2008, a jury convicted the defendants on all counts. Amawi, a citizen of Jordan and the United States, and El Hindi, a naturalized U.S. citizen born in Jordan, were each convicted of one count of conspiring to kill or maim persons outside the United States, one count of conspiring to provide material support to terrorists, and two counts of distributing information on explosives. Mazloum, a U.S. legal permanent resident from Lebanon, was convicted of one count of conspiring to kill or maim persons outside the United States and one count of conspiring to provide material support to terrorists. The convictions represented the nation’s first successful trial of a “homegrown terror cell” for terrorism related crimes.

At trial, the government proved that all three defendants engaged in a conspiracy, beginning sometime prior to June 2004, to kill or maim persons outside the United States, including U.S. armed forces personnel in Iraq. As part of the conspiracy, the defendants conducted firearms training and accessed and copied instructions in the construction and use of explosives – including IEDs and suicide bomb vests. In addition, the defendants conspired to recruit others to participate in jihad training; researched and solicited funding sources for such training; and proposed sites for training in firearms, explosives and hand-to-hand combat to prospective recruits.

The government also proved that all defendants conspired to provide material support and resources, including personnel, money, explosives and laptop computers, to terrorists, including a co-conspirator in the Middle East, who had requested such materials for use against U.S. and coalition forces in Iraq. For example, among other activities, Amawi communicated with a contact in the Middle East on chemical explosives and traveled to Jordan in August 2005 with laptop computers intended for delivery to mujahideen “brothers.”

The government also proved that Amawi knowingly distributed a guide describing the step-by-step process for manufacturing chemical explosive compounds, as well as a video entitled, “Martyrdom Operation Vest Preparation,” which described the step-by-step construction and use of a suicide bomb vest. Amawi distributed these materials with the intent that they be used for training others to commit a crime of violence, including the killing of U.S. nationals overseas.

The government further proved that El-Hindi knowingly distributed a slide show demonstrating the preparation and use of IEDs against apparent U.S. military vehicles and personnel, as well as the video entitled “Martyrdom Operation Vest Preparation.” El-Hindi distributed these materials with the intent that they be used for training others to commit a crime of violence, including the killing of U.S. nationals overseas.

Carr sentenced Amawi to 20 years; El-Hindi received 13 years; Mazloum received 100 months (8.3 years).

2. Symposium based on Amos Guiora’s new book “Freedom from Religion: Rights and National Security” (University of Utah) (TODAY)

This event will explore Amos Guiora’s new book, “Freedom from Religion: Rights and National Security” (Oxford University Press 2009).  The general idea is to explore religious extremism and tolerance in five countries, with an eye toward how these matters impact the threat of terrorism.  Commentators will approach the issue from various perspectives, including religion, cognitive science, history, philosophy, and law.    The book is here.  To watch this event live, click here.

8:30 AM – 8:45 AM Welcoming Remarks: Professor Terry Kogan, Moderator
8:45 AM – 9:15 AM Presentation of Book: Professor Amos Guiora
9:15 AM – 9:40 AM First Amendment Response: Professor Scott Matheson
9:40 AM – 10:05 AM Religious Studies Response: Professor William Deal
10:05 AM – 10:30 AM Religious Practitioner’s Response: Pastor John Lentz
10:30 AM – 11:00 AM Audience Written Questions/E-mails/Tweets Posed by Moderator to Panelists

3. Will the Military Commissions Act of 2009 make pre-trial collateral review in federal court possible?

My friend Steve Vladeck (American U. Washington College of Law) has an insightful analysis of a potentially-unintended consequence of certain changes to the MCA 2006 that will be wrought by the MCA 2009.  See here.

4. Forthcoming Scholarship

Putting Guantanamo in the Rear-View Mirror: Conflicting Values and Crossed Signals in Detention Policy

Peter Margulies
Roger Williams University School of Law

National security policy often emerges in the signals presidents send. The Bush administration’s establishment of a detention camp at Guantanamo signaled a unilateralist bent and an impatience with the processes undergirding American law. President Obama’s announcement that he would close Guantanamo within a year underlined a contrast with the predilections of his predecessor. However, the new administration was not prepared for the resulting backlash in Congress. Ironically, the Bush administration’s travails and the Obama administration’s early stumble had something in common: in each case, officials failed to signal that they understood the interaction of three factors: efficiency, equity, and accuracy.

Efficiency and accuracy present the most telling trade-off. Bush officials valued Guantanamo as a convenient site where they could detain and interrogate suspected terrorists with minimal interference. However, they unduly discounted the risk of false positives – detainees who actually posed no danger. Obama reframed efficiency to encompass the global good will that Bush had disdained. However, despite Obama’s fine intentions, many in Congress read his one-year deadline as a signal that he had not reckoned with the risk of false negatives released detainees who posed a real danger to the United States.

President Obama has since adjusted his course, outlining a three-pronged strategy for promoting accuracy including federal criminal trials, military commissions, and detention under the laws of war. Congress has signaled greater inclination to work with the President. However, congressional restrictions on the transfer of detainees to the United States reflect lingering anxiety.

This Article discusses the virtues of the President’s approach, while arguing that aspects of the approach such as allowance of hearsay evidence echo the Bush administration’s neglect of false positives. In addition, the Article analyzes solutions for the equity issues raised by detainee stateside transfers, including creating a bipartisan Commission that could recommend dispersion rules limiting any one state’s share of detainees. It concludes that courts should uphold much of the President’s program, while limiting hearsay evidence and charges before military commissions. Courts should also broaden access to habeas corpus to include detainees at other sites such as Bagram air base. Moreover, a congressionally established Commission implementing dispersion rules could address equity issues while defusing political influences such as the “Not in My Backyard” (NIMBY) syndrome.

“Judging National Security Post-9/11: An Empirical Investigation”

Harvard Law School Program on Risk Regulation Research Paper
Harvard Public Law Working No. 08-53
U of Chicago Law & Economics, Olin Working Paper No. 441
U of Chicago, Public Law Working Paper No. 245

CASS R. SUNSTEIN, Harvard University – Harvard Law School

Email: csunstei@law.harvard.edu

Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of “panic” that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent – low, but not so low as to suggest that federal courts have applied a broad rule of deference to government action. Second, the division between Republican and Democratic appointees is comparable to what is found in other areas of the law; contrary to reasonable expectations, there is no significant “compression” of ideological divisions in this domain. Third, and perhaps most strikingly, no panel effects are apparent here. Unlike in the vast majority of other areas, Republican and Democratic appointees do not appear to vote differently if they are sitting with Republican or Democratic appointees. Finally, judicial behavior cannot be shown to have changed over time. The invalidation rate is not higher in recent years than it was in the years immediately following the 9/11 attacks. Explanations are ventured for these various findings, with particular reference to the absence of discernible panel effects.

“Detention as Seizure: Deriving a Constitutional Infrastruture for U.S. Detention Policy”

IAN S. SPEIR, Georgetown University Law Center
Email: iss23@law.georgetown.edu

It is perhaps surprising that, nearly eight years after the events of September 11, 2001, the United States has yet to craft a comprehensive, cohesive legal framework for dealing with the detention of suspected terrorists. Only in 2008, with the Supreme Court’s decision in Boumediene v. Bush, did detention decisions by the Executive branch become susceptible to judicial review as a constitutional matter. Still, the substantive content of detention law remains largely undefined. Though much scholarly ink has been spilled on the subject, there are no definitive answers yet. One things does seem likely, however: terrorist detention law will blend aspects of criminal, military, and even “administrative” models.

This essay does not attempt a comprehensive proposal to the problem of terrorist detention. Instead, using analogies to Fourth Amendment seizure law, it sketches a useful “constitutional infrastructure” that should undergird and guide detention decisions in the war on terrorism. To that end, the broad outlines of seizure law are reviewed, revealing three pillars of this constitutional infrastructure: reasonableness, proportionality, and judicial review. These pillars are then examined in light of the challenge of terrorist detention, and some general suggestions are offered.

“Incitement to Terrorist Acts Under International Law”

Hebrew University International Law Research Paper No. 15-09

YAEL RONEN, Minerva Center, Faculty of Law, Hebrew University of Jerusalem
Email: yael.ronen@cantab.net

This article considers the initiative of UN Security Council Resolution 1624(2005) to criminalize incitement to terrorist acts, in light of criminal and international human rights law. The analysis is informed by the specific type of terrorism with which Resolution 1624(2005) is concerned, namely ‘modern’ terrorism. The article argues that the rationales for a prohibition on incitement to terrorist acts call for a relatively wide definition of potentially-proscribed speech. This can be achieved without excessively infringing on freedom of speech. However, the present interpretation of the proposed prohibition is so restrictive that the prohibition may fail to counter the phenomenon with which it grapples. The article also considers whether incitement to terrorist acts can be regarded as an international crime. It concludes that in some instances there may be an overlap between incitement to terrorist acts and certain international crimes, but classification of incitement to terrorist acts as an international crime requires a fragmented approach to terrorism, which is contrary to current trends.

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