forthcoming scholarship

November 27, 2009

The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction

Matthew C. Waxman (Columbia)

Michigan Journal of International Law (forthcoming)

The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Colliding with this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.

Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses

Matthew C. Waxman (Columbia)

Case Western Reserve Journal of International Law (forthcoming)

Read the rest of this entry »


2010 Lieber Society Military Prize Call for Papers

November 27, 2009

The Lieber Society, an Interest Group of the American Society of International Law, bestows each year, without regard to nationality, a prize for an exceptional writing that enhances understanding of the law of war by a person serving in the regular or reserve armed forces of any nation.

The Prize. The winner will receive a certificate confirming that he or she has won the 2010 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select two additional persons to receive Lieber Society Certificates of Merit.

Request for Assistance. Any person receiving this Call for Papers who is aware of an exceptional writing that meets the qualifications of this competition is requested to nominate the paper directly to the Lieber Society and forward this Call to the author of that paper.

Definition of the Law of War. For this competition, the Law of War is that part of international law that regulates the conduct of armed hostilities. Papers may address any aspect of the law of war, including, but not limited to: the use of force in international law, the conduct of hostilities during international and non-international armed conflicts, protected persons and protected objects, the law of weapons, rules of engagement, treatment of detainees, to include interrogation procedures, and occupation law. Papers addressing practical problems confronting members of armed forces are preferred.

Qualifications for entering the competition. Persons submitting papers do not have to be ASIL members. They may be citizens of any nation, but they must be a member of their nation’s regular or reserve armed forces.

Papers that may be entered. Papers submitted in this competition must be in English (or translated into English if written in another language) and not more than 35 pages long if printed with single line spacing or 70 pages if written with double line spacing. Both papers that have been published and papers that have not been published will be considered for the Prize.

Required Contact Data. All submissions must contain the following data on the author of the paper: full name and rank or rating, current postal and e-mail addresses, current telephone and fax numbers. If a person other than the author is making the submission, it must also contain the above data for the person submitting the paper.

Deadline for submitting papers. Papers for the 2010 competition must be received no later than Friday, January 2, 2010.

Use of email to submit papers. Electronic submissions in Adobe format (.pdf) or Microsoft Word (.doc) will be accepted. They should be sent to ejensen3@law.fordham.edu

Use of the postal system to submit papers. Submissions by postal mail must be sent to:

Eric Talbot Jensen
6322 Hillsborough Drive
Falls Church, VA 22044

If the postal system is used, two copies of the paper must be submitted.

Acknowledgement of submissions. All submissions will be acknowledged by e-mail.

Announcement of winner. The winner and any persons receiving Certificates of Merit will be announced at the 2010 Annual Meeting of the American Society of International Law in Washington, DC, March 2010.


news from the ABA Standing Committee: breakfast event with Judge Lamberth re Article III terrorism trials; GTMO/BTIF habeas database; audio of al panels and speakers from the recent Review of the Field Conference

November 24, 2009

A lot of interesting material emerging out of the ABA Standing Committee on Law and National Security

1)     Next Standing Committee Breakfast Program – “Trying Terrorists in Article III Courts” — December 17, 2009 – 8:00 a.m. – University Club – keynote speaker will be Chief Judge Royce C. Lamberth, United States District Court for the District of Columbia. Letter of invitation and registration form attached.

2)     Searchable database created by Standing Committee containing every Guantanamo and Bagram detainee habeas petition brought before the DC courts since the Supreme Court decision – details below

3)     Nineteenth Annual Review Conference audio recording of every panel and keynote speaker now posted on website – www.abanet.org/natsecurity

On June 12, 2008, the Supreme Court held in Boumediene v. Bush that: “[T]he costs of delay can no longer be borne by those who are held in custody [at Guantanamo Bay]…The detainees in these cases are entitled to a prompt habeas corpus hearing.” While this ruling established definitively the right of habeas corpus for detainees at Guantanamo, it also left unresolved many important questions about how these habeas petitions would be adjudicated. As a consequence, the DC District Court and Court of Appeals have been charged with deciding such issues as: the substantive scope of the Executive’s detention authority; the reach of the suspension clause to Bagram; whether conditions of confinement are open to habeas challenge; standards for admitting hearsay into evidence; and procedures for handling classified intelligence reports.

In one of his first acts as chair of the Standing Committee, Harvey Rishikof organized a project to document this habeas litigation. The end product of this effort is a searchable database, created by the Standing Committee, containing every Guantanamo and Bagram detainee habeas petition brought before the DC courts since the Supreme Court decision. We hope the database will prove useful to legal scholars, practitioners, and journalists studying this issue, and we encourage you to send along suggestions for improving its functionality to our program assistant, Matt Owens, at owensm@staff.abanet.org.

To begin using the database, click HERE.


indictments and other developments in Minneapolis/Somalia investigation; United States v. Tarraf

November 24, 2009

1. Various developments in the Minneapolis/Somalia investigation

Several new developments in the ongoing investigation into the recruitment of young men in the Minneapolis area to travel to Somalia to join al-Shabaab, according to this DOJ National Security Division announcement.  Unfortunately the announcement does not link to the underlying documents (hint, hint), but in any event here is the gist of the announcement:

Terrorism charges have been unsealed today in the District of Minnesota against eight defendants. According to the charging documents, the offenses include providing financial support to those who traveled to Somalia to fight on behalf of al-Shabaab, a designated foreign terrorist organization; attending terrorist training camps operated by al-Shabaab; and fighting on behalf of al-Shabaab.

Thus far, 14 defendants have been charged in the District of Minnesota through indictments or criminal complaints that have been unsealed and brought in connection with an ongoing investigation into the recruitment of persons from U.S. communities to train with or fight on behalf of extremist groups in Somalia. Four of these defendants have previously pleaded guilty and await sentencing. Read the rest of this entry »


ali v. obama; bin Mohammed v. Obama; al Hajji v. Obama

November 23, 2009

1. Abdal Razak Ali v. Obama (D.D.C. Sep. 24/Nov. 23) (denying GTMO habeas petitioner’s motion for expedited judgment)

This opinion by Judge Lamberth was issued on September 24, but appears to have just been posted publicly in redacted form.  Because of the procedural posture, the court accepted as true all the allegations in the government’s factual return, and on that basis found that Ali is detainable as a functional member of “enemy forces” within the scope of the AUMF.  Whether the government will be able to prove these factual allegations at the merits hearing remains to be determined, of course, but in the meantime the opinion is another useful opportunity to understand what past conduct suffices in the eyes of the judges to merit detention (assuming that conduct can be proven).

Here, the discussion is partially redacted, but it appears the court found significant a range of factors including the receipt of military style training (on at least two occasions in this instance), the use of a kunya (alias), the fact that other members of the enemy force knew this person by that kunya, the possible use of other aliases suggesting the petitioner was from Libya, claims by others that they saw petitioner in Afghanistan acting as a “driver” (presumably for al Qaeda), and the fact that petitioner was in Afghanistan in fall 2001 and then later was captured in Pakistan at the “Zubaydah house.”  Judge Lamberth specifically rejected the claim that reliance on his presence at the Zubaydah house amounted to guilt by association.

2. Farhi Saeed bin Mohammed v. Obama (D.D.C. Nov. 19) (granting habeas relief to a GTMO detainee) (order only)

Judge Kessler in this order grants habeas relief to bin Mohammed, indicating that the underlying opinion remains classified for the moment.

3. Abdullah bin Omar al Hajji v. Obama (D.D.C. Nov. 23) (dismissing habeas petitions by former GTMO detainees) (same order issued in three other cases)

In these orders Judge Leon dismisses habeas petitions sought to be maintained by former GTMO detainees who allege that they remain in constructive US custody despite being transferred to Libya, Tunisia, and Afghanistan and that they continue to suffer consequences because of their earlier detention (specifically, detention by their own governments).  Judge Leon dismissed the first ground for continued jurisdiction as “rank speculation,” citing Munaf v. Geren and the DC Circuit opinion in Kiyemba as authority for not second-guessing the executive branch assertion that the continuing detention is not “on behalf of the United States.”  Judge Leon dismissed the second ground for similar reasons, and also because the court lacks authority to order a foreign government to release these individuals.


United States v. Sattar; State Secrets Privilege event at American U tomorrow; forthcoming scholarship

November 17, 2009

1. United States v. Sattar (2d Cir. Nov. 17, 2009)

A substantial victory for the Justice Department this morning: in aset of opinions totaling 191 pages (!), a Second Circuit panel (Sack, Calabresi, and Walker) has affirmed the convictions of Lynne Stewart, Mohammed Yousry, and Ahmed Abdel Sattar, and has remanded for resentencing on grounds that could result in a heftier sentence.   From the introductory section:

In particular, we affirm the judgments as to each defendant’s conviction of conspiring to defraud the United States, in violation of 18 U.S.C. § 371, by violating SAMs imposed upon Abdel Rahman. Contrary to the defendants’ arguments, the evidence is sufficient to sustain these convictions. Moreover, we reject both Stewart’s argument that, as a lawyer, she was not bound by the SAMs, and her belated argument collaterally attacking their constitutionality. We affirm as to Sattar’s conviction of conspiring to murder persons in a foreign country in violation of 18 U.S.C. § 956, and his conviction of soliciting persons to commit crimes of violence — viz., murder and conspiracy to commit murder – in violation of 18 U.S.C. § 373. We conclude that the evidence is sufficient to sustain these convictions, especially in light of testimony establishing that Sattar attempted to undermine a unilateral cease-fire by an Egyptian terrorist organization and to draft a fatwa calling for, inter alia, the killing of “Jews and Crusaders.” Read the rest of this entry »


SDNY and EDVA to “co-manage” the prosecution of the 9/11 defendants, with the case to be tried in SDNY

November 13, 2009

KSM, Bin Attash, Bin al Shibh, Ali Abdul Aziz Ali, and al Hawsawi to be prosecuted in SDNY

DOD and DOJ today jointly announced that these five individuals will be tried in the Southern District of New York, with prosecutors from both SDNY and the Eastern District of Virginia will “co-manage” the case (an interesting resolution of the reported inter-office tug-of-war to get this case).  The press release is here.  It appears the men will be held pending trial at the Metropolitan Correctional Center in Foley Square (adjacent to the courthouse and SDNY offices), just as Ramzi Yousef and other terrorism-related defendants have been held in the past.   It will be interesting to see which SDNY judge draws the case.