NSL-events at AALS next week in New Orleans

December 30, 2009

* NSL-related events taking place in association with or near the time of the AALS conference in New Orleans, January 6-10, 2010

For the faculty members on this list, allow me to plan your trip to AALS for you!

Wednesday January 6th

1:30 to 3:15  “Maintaining or Restoring the Rule of Law After September 11, 2001”

(The American Society of Political and Legal Philosophy annual meeting) Hilton New Orleans Riverside, Belle Chasse Room (3rd floor)

Benjamin Kleinerman (Michigan State)

Curtis Bradley (Duke)

Lionel McPherson (Tufts)

Nancy Rosenblum (Harvard) Read the rest of this entry »

United States v. Stewart

December 28, 2009

I posted a few weeks ago regarding the Second Circuit’s decision to require resentencing in the Lynne Stewart case.  A few days ago, the same panel amended that opinion.  As I understand it, the thrust of the change is to add an emphasis on the potential applicability of the terrorism sentencing enhancement.  In any event, here is the key passage regarding the impact of the court’s order:

A district court’s failure to find particular facts will in no way impede our review in some, perhaps in most, situations; this, however, is not one of them. Especially in light of the absence of a finding that Stewart did not commit perjury at trial or otherwise obstruct justice, we think it preferable not to determine whether her sentence was substantively reasonable.

We therefore remand this matter to the district court for resentencing, in the course of which we direct the court to determine the issue of perjury and if it finds such perjury, to resentence Stewart so as to reflect that finding. The district court should also consider whether Stewart’s conduct as a lawyer triggers the special-skill/abuse-of-trust enhancement under the Guidelines, see U.S.S.G. § 3B1.3, and reconsider the extent to which Stewart’s status as a lawyer affects the appropriate sentence. Finally, the district court should further consider the overall question whether the sentence to be given is appropriate in view of the magnitude of the offense, which the court itself has explicitly recognized. Although we do not preclude the district court’s election to continue to impose a non-Guidelines sentence, we do require that such a sentence, selected after the reconsideration we have directed, begin with the terrorism enhancement and take that enhancement into account. We have serious doubts that the sentence given was reasonable, but think it appropriate to hear from the district court further before deciding the issue.

We have identified actions taken or not taken by the district court in imposing sentence that we conclude constituted procedural error and thus require resentencing. Other issues are raised by Judge Walker, who finds that they resulted in procedural error and substantive unreasonableness, and addressed by Judge Calabresi in response. To the extent we did not discuss or rule on those issues in this majority opinion, our silence should not be construed by the district court, or by others relying on this opinion, to mean that the majority has adopted Judge Calabresi’s views or rejected Judge Walker’s. We have not.

Although we find no procedural or substantive error in connection with the sentencing of Sattar and Yousry, we nonetheless remand their cases, too. We conclude that, inasmuch as the interrelationship among the sentences of the co-defendants is a principal consideration as to a proper sentence of Stewart, the district court should have the ability, if not the obligation, to resentence them as well.

After the district court completes the resentencing, jurisdiction may be restored to this Court by letter from any party, and the Office of the Clerk of this Court shall set an expeditious briefing schedule and refer the matter to this pan el for further review.

2. United States v. Abdulmutallab (E.D. Mich. Dec. 26, 2009)

Click here for the DOJ press release describing initial charges in the Christmas Day attempt to destroy a Northwest Airlines jet bound for Detroit from Amsterdam.  The charges are straightforward: attempted destruction of an aircraft, and bringing a destructive device onboard an aircraft.

National security law as a legal field?

December 27, 2009

[This one is a bit of a novelty post meant for the benefit of those of may be looking for a thought-provoking distraction during the holiday break….substantive posting resumes tomorrow]

Substitute the words “national security” for “environmental” or “environment” throughout the article below, and try to come to a decision regarding the question posed in the title of the short piece that appears in full below.  You’ll have to do some additional substitutions in Part II, as you will see, but just what the appropriate substitutions in that Part might be is itself an interesting inquiry.  Perhaps there’s a symposium to be had somewhere in these questions….  In any event, I offer this to those of you who are, perhaps, discreetly checking your email while hanging with family or whomever during a holiday break, or who otherwise have need for a thought-provoking distraction! Read the rest of this entry »

Bawazir v. Obama; forthcoming scholarship

December 23, 2009

1. Bawazir v. Obama (D.D.C. Dec. 22, 2009)

Judge Kessler has dismissed (without prejudice) a GTMO habeas petition on the ground that the petitioner (Bawazir) does not wish to pursue it.

2. More GTMO transfers (Dec. 20, 2009)

Last week, the government transferred 12 detainees out of GTMO (press release here):

To Afghanistan: Abdul Hafiz, Sharifullah, Mohamed Rahim and Mohammed Hashim

To Somaliland: Mohammed Soliman Barre and Ismael Arale

To Yemen: Jamal Muhammad Alawi Mari, Farouq Ali Ahmed, Ayman Saeed Abdullah Batarfi, Muhammaed Yasir Ahmed Taher, Fayad Yahya Ahmed al Rami and Riyad Atiq Ali Abdu al Haf.

3. Judge Royce Lamberth, “Trying Terrorists in Article III Courts” (Dec. 17, 2009) — Remarks at Breakfast Event Sponsored by ABA Standing Committee on Law and National Security

Audio available here

4. Forthcoming Scholarship


Jon Sherman (WilmerHale)

11 University of Pennsylvania Journal of Constitutional Law 1475 (2009)

In a 2006 speech, former Deputy Attorney General Paul McNulty said the following: “In the wake of September 11, this aggressive, proactive, and preventative course is the only acceptable response from a department of government charged with enforcing our laws and protecting the American people. Awaiting an attack is not an option. That is why the Department of Justice is doing everything in its power to identify risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”1 Though the military’s counterterrorism tactics have dominated our post-9/11 consciousness of counterterrorism, federal criminal investigation and law enforcement directed by the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) have adapted and expanded in an attempt to prevent terrorism with “forward-leaning” strategies. Observers have advanced a few theories for the accelerating shift to preventative policing and prosecutions: constitutional difficulties with military detention, most recently in Boumediene v. Bush,2 the irrelevance of immigration law enforcement to “homegrown” terrorists; the increasing decentralization of the global jihadist movement; and the prevalence of “unaffiliated” terrorists operating without any connection to a designated foreign terrorist organization (“FTO”).3

Whatever the precise reasons, federal criminal prosecutions have played an ever-expanding role in counterterrorism. According to the New York University Law Center on Law and Security, between September 11, 2001 and September 11, 2008, 228 persons have been charged and prosecuted under a “terrorism statute,” with another 465 persons charged under other statutes but “publicly associated with terrorism by the DOJ.”4 Of the 130 “Resolved Terrorism Trials” out of 228 resolved or pending terrorism prosecutions, 93 persons have been convicted; 12 have been acquitted; and 25 have seen a mistrial or dismissal.5 The other 465 defendants have been charged with general criminal conspiracy, general fraud, immigration violations, racketeering, and other offenses.6 Some scholars have noted that pretextual charging has played a significant role in the government’s early intervention strategy.7 The Justice Department’s focus on early intervention tactics and “anticipatory prosecution,” as Professor Robert Chesney has called it, under federal conspiracy statutes (18 U.S.C. § 956(a)–(b)) and material support statutes (18 U.S.C. § 2339A and § 2339B) has made undercover investigations followed by sting operations a more attractive strategy.8 The FBI increasingly relies on confidential informants to gather intelligence, conduct surveillance of mosques, and pursue suspected terrorist plots.9 In several recent cases, including United States v. Batiste,10 United States v. Hayat,11 United States v. Lakhani,12 and United States v. Siraj,13 an undercover agent has “played a crucial catalytic role” in the criminal plot.14 Though some cases involve career agents, many informants are often enlisted as part of a brokered deal with the government to eliminate or reduce criminal penalties, drop criminal charges, approve a political asylum application, or reverse a removal order.15 This growing reliance on undercover cooperating witnesses and sting operations for counterterrorism has dramatically increased the risk of entrapment.

This Article seeks to reexamine the entrapment defense against the rise of anticipatory terrorism prosecutions, and  specifically, the charging of material support in furtherance of a predicate offense under 18 U.S.C. § 2339A. I argue that entrapment doctrine must be restructured to keep FBI counterterrorism efforts targeted and focused and to safeguard innocent First Amendment activity from the reach of highly inchoate offenses, which are aggressively pursued with undercover informants.

Intervention to Stop Genocide and Mass Atrocities: International Norms and U.S. Policy

Matthew C. Waxman (Columbia Law School & Council on Foreign Relations)

Council on Foreign Relations Special Report

Recent events in Darfur raise again the familiar question of whether the current international legal system facilitates the kind of early, decisive, and coherent action—especially with respect to military force—needed to effectively combat genocide and mass atrocities. An international legal regime that puts decisions about international intervention solely in the hands of the UN Security Council risks undermining the threat or use of intervention when it may be most potent in stopping mass atrocities. The features of the UN Charter that help resolve security crises peacefully make it difficult to generate the rapid action needed to deter or roll back mass atrocities, especially with several permanent Security Council members ideologically hostile to such interventions generally or self-interestedly hostile to specific interventions.  This report urges steps to improve responsiveness of the existing UN Security Council while preparing and signaling a willingness, if the UN Security Council fails to act in future mass atrocity crises, to take necessary action to address them.

The Blank-Prose Crime of Aggression

Michael J. Glennon (Tufts University – The Fletcher School)

35 Yale Journal of International Law 71 (2010)

A review conference to be convened in May, 2010, will consider an amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court. The proposed definition would, this article argues, constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process. Repeated efforts to define aggression foundered throughout the 20th century for good reason: no consensus existed then or now as to what the term means, at least not at the level of specificity needed to impose individual criminal liability. Prosecution under the ambiguous definition that is proposed would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The definition is, moreover, so broad in its potential reach that, had it been effect for the last several decades, every U.S. president since John F. Kennedy, hundreds of American legislators and military leaders, as well as innumerable foreign military and political leaders could have been subjected to prosecution. These difficulties would be magnified by including the roulette wheel that is the United Nations Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the treaty does not render all this academic: it is possible that U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States continues to refuse to join.

“The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice”

Case Western Reserve Journal of International Law, Forthcoming
Hofstra Univ. Legal Studies Research Paper No. 09-27

JULIAN KU, Hofstra University – School of Law
Email: lawjgk@hofstra.edu

I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrong-headed because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys’ constitutional rights under the U.S. Constitution’s First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

60-day extension for sunsetting PATRIOT Act provisions; passing the 800 member mark

December 16, 2009

1. 60 day extension on the way for expiring PATRIOT Act provisions

A quick note on the PATRIOT Act provisions that were set to expire this month.  Apparently Congress is punting the issue until after the holidays, as there is a 60-day extension for these authorities in the Defense Appropriations bill that appears set to become law in the near future.  The PATRIOT debate accordingly will resume in early 2010…

2. 800 members and counting…

I was pleased to note yesterday that this listserv now has exactly 800 members, which is its high water mark.  The list has been around since about 2003, and has grown steadily, especially this year.  Feel free to encourage others to sign up!  Who knows, maybe there will be more than a 1000 of us by this time next year…

Executive Order re Thomson Correction Center; Hatim v. Bush

December 15, 2009

1. Executive Order Directing the Attorney General to Acquire the Thomson Correction Center

Available here.  And for an interesting assessment of whether relocation of a detainee from GTMO to the TCC would require refilling that person’s habeas petition in the Northern District of Illinois, see the take provided here by Steve Vladeck (his answer: probably not).  And if you are dying for more commentary on the pros-cons of the TCC development, check out the debate underway at NYT’s Room for Debate blog, here.

2. Hatim v. Bush (D.D.C. Dec. 16, 2009) (granting habeas to GTMO petitioner)

Meanwhile, habeas review of individual GTMO detainee cases continues.  After a win for the government that I reported yesterday, today brings a defeat.  Judge Urbina has granted habeas relief to Hatim (Case No. 05-cv-1429), according to a notice placed on the docket today.  The opinion explaining the ruling at this point is classified; I’ll circulate the unclassified version if and when it becomes available.

Al-Madhwani v. Obama (GTMO habeas denied); United States v. Sadequee (sentencing)

December 15, 2009

1. Musa’ab Al-Madhwani v. Obama (D.D.C. Dec. 14, 2009) (bench ruling denying GTMO habeas petition)

The Washington Post (Del Quentin Wilber) reports that Judge Hogan has denied habeas relief to Al-Madhwani, a Guantanamo detainee.   There is as yet no written opinion, but the Post account provides the following interesting details of the oral ruling:

– The government’s evidence consisted primarily of the petitioner’s own statements, with one set of statements coming from interrogations and another coming from the petitioner’s appearances before CSRT and ARB panels.

– Judge Hogan declined to consider the interrogation-derived statements, which apparently were given early on during the petitioner’s confinement, on the ground that they were tainted by abusive interrogation techniques.

– Judge Hogan did consider, however, the statements which the petitioner gave to the CSRT and ARB panels, on the ground that the taint of the earlier abuse had worn off sufficiently by then.  These statements included admissions that petitioner received military training at an al Qaeda camp, and that he had contact with Osama bin Laden.

– Relying on such statements, Judge Hogan found that the government had proved by a preponderance of the evidence that the petitioner was a member of al Qaeda.

2. United States v. Sadequee, United States v. Ahmed (N.D. Ga. Dec. 14, 2009)

A federal judge yesterday gave Sadequee a 17 year sentence, and gave Ahmed a 13 year sentence.  DOJ’s press release offers the following account of their underlying actions:

Sadequee was born in Fairfax, Va., in 1986.  He attended school in the United States, Canada and Bangladesh. In December 2001, while living in Bangladesh, he sought to join the Taliban, to help them in their fight against U.S. and coalition forces in Afghanistan.

Ahmed, a naturalized citizen born in Pakistan in 1984, came to the United States in the mid-1990s.  He attended high school in Roswell and Dawsonville, Ga., followed by college studies at North Georgia College and Georgia Tech.

Sadequee and Ahmed began discussing their obligation to support jihad in late 2004.  By this time, both Sadequee and Ahmed had become active on several web forums known to support the cause of violent jihad.  These discussions quickly grew into an active conspiracy with others to provide material support to terrorists engaged in violent jihad. The evidence indicated that the material support consisted of (1) Sadequee, Ahmed, and other individuals who intended to provide themselves as personnel to engage in violent jihad, and (2) property, namely, video clips of symbolic and infrastructure targets for potential terrorist attacks in the Washington, D.C., area, including the U.S. Capitol, the World Bank headquarters, the Masonic Temple, and a fuel tank farm — all of which were taken by Sadequee and Ahmed to be sent to “the jihadi brothers” abroad.

At trial, the government presented evidence that Sadequee, Ahmed, and their co-conspirators used the Internet to develop relationships and maintain contact with each other and with other supporters of violent jihad in the United States, Canada, the United Kingdom, Pakistan and elsewhere. In support of the conspiracy, in March 2005 Sadequee and Ahmed traveled to Toronto to meet with other co-conspirators, including Fahim Ahmad, one of the “Toronto 18” suspects awaiting a terrorism trial in Canada.  While in Canada, Sadequee, Ahmed, and their co-conspirators discussed their plans to travel to Pakistan in an effort to attend a paramilitary training camp operated by a terrorist organization, as well as potential targets for terrorist attacks in the United States.

In April 2005, Sadequee and Ahmed drove to the Washington, D.C., area to take the casing videos, which the government’s evidence showed they made to establish their credentials with other violent jihad supporters as well as for use in violent jihad propaganda and planning.  Sadequee later sent several of the video clips to Younis Tsouli, aka “Irhabi007” (Arabic for “Terrorist 007”), a propagandist and recruiter for the terrorist organization Al Qaeda in Iraq, and to Aabid Hussein Khan, aka “Abu Umar,” a facilitator for the Pakistan-based terrorist organizations “Lashkar-e-Tayyiba” and “Jaish-e-Mohammed.”  Both Tsouli and Khan have since been convicted of terrorism-related offenses in the United Kingdom and are imprisoned there.

The government’s evidence additionally showed that Sadequee and Aabid Hussein Khan, the convicted U.K.-based terrorist, using a members-only violent jihadist web forum known as “At-Tibyan Publications,” recruited at least two individuals to participate in violent jihad.  One, a self-identified 17-year-old American convert, was praised by Sadequee for his “capacity of fulfilling [his] largest obligations in [his] native land.”

The government also presented evidence at trial that in July 2005, Ahmed traveled from Atlanta to Pakistan in an unsuccessful attempt to enter a paramilitary terrorist training camp and ultimately engage in violent jihad.  While in Pakistan, Ahmed met with Aabid Hussein Khan, and the two discussed Ahmed’s intention of joining a camp. The day before Ahmed returned to Atlanta, Sadequee departed Atlanta for Bangladesh, carrying with him, hidden in the lining of his suitcase, an encrypted CD; a map of Washington, D.C., that covered all of the areas he and Ahmed had cased; and a scrap of paper with Aabid Hussein Khan’s mobile phone number in Pakistan.

Once in Bangladesh, Sadequee began to conspire more closely with Younis Tsouli and Mirsad Bektasevic, a Swedish national of Serbian origins.  Specifically, Tsouli, Bektasevic, Sadequee and others formed a violent jihadist organization known as “Al Qaeda in Northern Europe.”  The group was to be based in Sweden.  The evidence at trial showed that in October 2005, Sadequee sought a visa that would allow him to relocate from Bangladesh to Sweden.  Bektasevic was arrested in Sarajevo, Bosnia and Herzegovina, on Oct. 19, 2005.  He and a co-conspirator were found in possession of over 20 pounds of plastic explosives, a suicide belt with detonator, a firearm with a silencer and a video recorded by Bektasevic demonstrating how to make detonators; showing an arsenal of semi-automatic weapons, grenades, explosives and other arms; and depicting Bektasevic and others placing a grenade booby-trap in a forest near Sarajevo.  Sadequee had been in electronic and telephonic contact with Bektasevic as recently as three days before Bektasevic’s arrest, discussing the silencer and explosives Bektasevic had acquired for the group.  Bektasevic has since been convicted of terrorism offenses in Bosnia and Herzegovina.

Meanwhile, after returning to Atlanta to resume his studies at Georgia Tech in August 2005, Ahmed remained in contact with Sadequee, expressed regret at his failure to join violent jihadists, conducted internet research on topics such as high explosives and defeating Special Operations troops, and discussed his intent to make another attempt to enter a violent jihad training camp.  In March 2006, Ahmed was approached by FBI agents and agreed to a series of voluntary, non-custodial interviews over the course of eight days.  Amid efforts to deny his illegal activities and mislead the agents, Ahmed made increasingly incriminating statements.  Efforts by the FBI to obtain Ahmed’s cooperation in the ongoing international terrorism investigation ended after the FBI discovered that Ahmed was surreptitiously contacting Sadequee, who was still in Bangladesh, to advise him of the FBI investigation and to warn him not to return to the United States.

Ahmed was arrested on March 23, 2006, in Atlanta, on material support of terrorism charges.  He has been in custody ever since.

Sadequee was arrested on April 20, 2006, in Bangladesh, on charges arising out of false statements he made in an August 2005 interview with the FBI in the Eastern District of New York (EDNY).  Sadequee was indicted in the Northern District of Georgia on July 19, 2006, and transferred to Atlanta in August of that year, after the charges in EDNY were dismissed at the Government’s request.