al-haramain v. obama (N.D. Cal. Mar. 31, 2010)

March 31, 2010

* Al-Haramain Islamic Foundation v. Obama (N.D. Cal. Mar. 31, 2010)

Judge Walker today granted summary judgment to the plaintiffs in this much-discussed civil suit arising out of alleged NSA warrantless surveillance. As you may recall, Judge Walker previously had made two critical determinations. First, he determined that FISA’s provisions for civil suits by “aggrieved persons” had the effect of preempting application of the state secrets privilege, thus negating the government’s primary line of defense. Second, he determined that Al-Haramain was in a position, at least in theory, to invoke “aggrieved person” status under FISA. If I recall correctly, the government sought interlocutory review of these rulings, but did not get it.

And so the case proceeded to a determination of whether Al-Haramain actually could establish standing. Judge Walker today concluded that Al-Haramain had collected enough unclassified evidence indicating that it had been surveilled without a FISA warrant—including various public statements by government officials–so as to defeat the government’s objection. The question then became whether Al-Haramain’s FISA claim should prevail on the merits, and Judge Walker again sided with Al-Haramain.

The opinion does not address other claims in Al-Haramain’s complaint, such as Fourth Amendment arguments. Judge Walker asks Al-Haramain to decide soon whether it intends to pursue those claims, or if instead it will seek entry of judgment on the FISA issue.

al-haramain sj decision.pdf

forthcoming scholarship

March 30, 2010

* Forthcoming scholarship



The Integration of Unmanned Aerial Vehicles into the National Airspace
Timothy M. Ravich
597 Abstract
Unmanned Aerial Exposure: Civil Liability Concerns Arising from Domestic Law Enforcement Employment of Unmanned Aerial Systems
Geoffrey Christopher Rapp
623 Abstract
Law from Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict
Chris Jenks
649 Abstract
Big Brother Will Soon Be Watching—Or Will He? Constitutional, Regulatory, and Operational Issues Surrounding the Use of Unmanned Aerial Vehicles in Law Enforcement
Joseph J. Vacek
673 Abstract
Unmanned Aerial Systems and International Civil Aviation Organization Regulations
Douglas Marshall
693 Abstract

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law

Peter Margulies
Roger Williams University School of Law

Roger Williams Univ. Legal Studies Paper No. 88

Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Iqbal and Arar display a categorical deference that rewards officials’ myopia. The Arar court painted officials as choosing between two stark scenarios: rendering a suspected terrorist to Syria or letting him board a plane to complete his supposed plot. On the other hand, courts in Padilla v. Yoo and al-Kidd v. Ashcroft manifested an equally categorical interventionism. Yoo and al-Kidd mangled the doctrine of qualified immunity, which the Supreme Court crafted to insulate officials from judges’ hindsight bias.

To break with the categorical cast of both deferential and interventionist decisions, this Article proposes an innovation-eliciting approach. Inspired by remedies for cognitive bias and regulatory failure, it gives officials a stake in developing alternatives to both overreaching and abdication. Officials who can demonstrate they have implemented alternatives in other contexts that are both proportional and proximate in time to the instant case buy flexibility and dismissal of the lawsuit before the qualified immunity phase. By leveraging officials’ experience and expertise, the innovation-eliciting approach tames the “pendular swings” in policy that Justice Kennedy in Boumediene viewed as undermining both liberty and security.

"Typology of Conflict: Terrorism and the Ambiguation of the Laws of War"

GNLU Law Review, Vol. 2, No. 1, 2010

JACKSON NYAMUYA MAOGOTO, University of Manchester
Email: jacksonmaogoto
GYWNN MACCARRICK, affiliation not provided to SSRN

One of the reasons that terrorism is unconventional and viewed as beyond the pale is because it adopts an arbitrary stance. War is the predictable and directed waging of armed conflict against an enemy, where as terrorism can not be anticipated or calculated because it’s ominous and malevolent actions do not discriminate between the enemy and civilians. In deed the greater the number of civilian casualties the greater the prominence they bring to their political cause. The distinction here is that we can seek to place limits on war because both sides agree to the terms under which they fight and both stand to gain from the benefits of limitation. But acts of terror rely upon the absence of limitation (including the absence distinction, proportionality, military necessity) for psychological impact such that there is no mutual benefit of placing constraints or confines on actions taken. Thus terrorism has passed over the parameters of warfare and into the realm of criminal conduct or alternatively it is employing the methods of warfare with a criminal intent. It seems therefore that terrorists should either be thought of as criminal behavior, in which case they might be accused of violating criminal law, or they should be thought of as acting within the scope of war and peace, in which case they might be accused of violating either the law of war or the law of peace. However, they do not seem to fall clearly in either scenario thus despite being law violators, they have situated themselves in an impossible place, located somewhere outside of the law.

"It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism"

Texas Law Review, Forthcoming
Minnesota Legal Studies Research Paper No. 10-12

HEIDI KITROSSER, University of Minnesota – Twin Cities – School of Law
Email: hdk

This Article was written for the 2010 Texas Law Review Symposium: National Security, Privacy, and Technological Change. Using the example of federal government wiretapping, the Article examines “exclusivist” invocations of evolving U.S. history. Exclusivity is the view that the President has a constitutional power to circumvent statutory restrictions that interfere with his judgment as to how best to protect national security. In addition to arguing from text, structure, and founding era history, exclusivists sometimes invoke post-founding, or evolving history to defend their position. In the case of the Bush Administration’s warrantless wiretapping program, for example, the administration and its supporters argued that presidents since FDR had wiretapped in the absence of, or even contrary to, statutory authority. This Article first describes the logic of such arguments. It finds that exclusivists, often by implication though sometimes explicitly, discern a historical trend toward congressional acquiescence and presidential initiative, and deem this trend to reflect the natural capacities and hence respective legal prerogatives of the political branches. Alternatively or in addition, exclusivists deem this trend to reflect longstanding support by Congress and Presidents for an exclusivist reading of the Constitution. Second, the Article critiques these exclusivist arguments. The Article deems the former argument to rest on a fundamental mistake that runs throughout much exclusivist reasoning. That is, the argument conflates the President’s structural capacities with a legal prerogative to exercise those capacities in the face of statutory limits. The Article deems the latter argument historically inaccurate in the context of wiretapping. Congressional hearings and other legislative records indicate that exclusivity was virtually absent from political debates over wiretapping, even during wartime, until relatively late in the 20th Century. This second error, too, stems from an exclusivist tendency to conflate structural capacity with legal prerogative. Congress’ structurally driven inertia lends itself to inaction while the President’s structural capacities lend themselves to self-initiation. Exclusivists wrongly interpret this pattern as reflecting an affirmative embrace of exclusivity by the political branches. Finally, this Article makes the descriptive point that exclusivity has made remarkable strides in attaining public, political, and legal respectability over the past few decades. By increasingly influencing legislation, legislative history, and executive branch arguments in the past few decades, exclusivists have themselves become part of the story of the imperial presidency.

Studies in Intelligence Volume 54, Number 1 (March 2010)

The Post 9/11 Intelligence Community: Intelligence Reform, 2001–2009: Requiescat in Pace?

Patrick C. Neary

United States v. Stone

March 30, 2010

* United States v. Stone (E.D. Mich. Mar. 29, 2010) (seditious conspiracy indictment involving “Hutaree,” a militia-type group in Michigan)

The indictment, a copy of which is attached, is a fascinating read. The charges include one count of seditious conspiracy (18 USC 2384), one attempted violation of the WMD statute (18 USC 2332a), one violation of the statute prohibiting the provision of instruction relating to explosives (18 USC 842(p)(2)), and two counts of carrying a firearm in connection with a crime of violence (18 USC 924). The press release provides the following account:

WASHINGTON – Six Michigan residents, along with two residents of Ohio and a resident of Indiana, were indicted by a federal grand jury in Detroit on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials, and possessing a firearm during a crime of violence, Attorney General Eric Holder, U.S. Attorney for the Eastern District of Michigan Barbara L. McQuade and FBI Special Agent in Charge Andrew Arena announced today.

The five count indictment, which was unsealed today, charges that between August 2008 and the present, the defendants, David Brian Stone, 45; his wife, Tina Stone, 44; his son, Joshua Matthew Stone, 21, of Clayton, Mich.; and his other son, David Brian Stone, Jr., 19, of Adrian, Mich.; Joshua Clough, 28, of Blissfield, Mich.; Michael Meeks, 40 of Manchester, Mich.; Thomas Piatek, 46, of Whiting, Ind.; Kristopher Sickles, 27, of Sandusky, Ohio; and Jacob Ward, 33, of Huron, Ohio, acting as a Lenawee County, Mich., militia group called the Hutaree, conspired to oppose by force the authority of the U.S. government. According to the indictment, Hutaree members view local, state, and federal law enforcement as the “brotherhood”, their enemy, and have been preparing to engage them in armed conflict.

The indictment also alleges that the Hutaree planned to kill an unidentified member of local law enforcement and then attack the law enforcement officers who would gather in Michigan for the funeral. According to the plan, the Hutaree would attack law enforcement vehicles during the funeral procession with improvised explosive devices with explosively formed projectiles, which, according to the indictment, constitute weapons of mass destruction. Subsequently, and in furtherance of this plan, David Brian Stone, the Hutaree’s leader, obtained information about such devices over the Internet and e-mailed diagrams of such devices to a person he believed capable of manufacturing the devices. He then had his son, Joshua Matthew Stone, and others gather materials necessary for the manufacturing of such devices. Read the rest of this entry »

forthcoming scholarship

March 29, 2010

* more forthcoming scholarship

State Secrets & Executive Accountability

Christina E. Wells (University of Missouri School of Law)

Constitutional Commentary, pp. 1-22, March 2010

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration’s approach to the state secrets privilege through the lens of “explanatory accountability” – i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.

Although President Obama entered office criticizing the Bush administration’s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration’s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and individualized decision-making regarding assertions of the state secrets privilege. In other words, the Obama administration embraced the notion of explanatory accountability by adopting the new policy.

While the Obama policy shows promise and moves toward greater accountability regarding assertions of the privilege – at least on paper – it is simply too vague to serve as an adequate mechanism of explanatory accountability. Furthermore, nothing in the policy requires Obama officials to justify their actions outside of the executive branch, thus allowing them to continue the Bush administration’s trend of broadly asserting the state secrets privilege with little or no justification. Such actions will continue unless the state secrets privilege is substantially altered to give courts the tools to serve as adequate accountability mechanisms. Pending congressional legislation may provide courts with such tools. Read the rest of this entry »

United States v. Khan; United States v. Rubio

March 28, 2010

1. United States v. Khan (N.D. Ill. Mar. 25, 2010)

A man in Chicago has been arrested and charged with two counts of attempting to provide material support to al Qaeda, in violation of 18 USC 2339B (the 1996 material support statute). The complaint and underlying affidavit are attached, and the press release summary of the alleged facts appears below:

CHICAGO — A Chicago man who claims to be acquainted with an alleged terrorist leader in Pakistan was arrested today on federal charges of providing material support to a foreign terrorist organization for allegedly attempting to provide funds overseas to al Qaeda, federal law enforcement officials announced. Although the defendant, Raja Lahrasib Khan, a Chicago taxi driver and native of Pakistan who became a naturalized U.S. citizen in 1988, allegedly discussed attacking a stadium in the United States this summer, there was no imminent domestic danger, officials said.

The investigation leading to Khan’s arrest is unrelated to a separate investigation that resulted in federal terrorism charges against Chicagoans Tahawwur Hussain Rana and David Coleman Headley in connection with the 2008 terror attacks in Mumbai and a plot to attack targets in Denmark, the officials added.

Khan, 56, of the city’s north side, was charged with two counts of providing material support to terrorism in a criminal complaint that was filed yesterday in U.S. District Court in Chicago and unsealed today following his arrest, announced Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, and Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the Federal Bureau of Investigation. The investigation is continuing, they said.

Khan was arrested this morning while working in downtown Chicago without incident by the Chicago FBI’s Joint Terrorism Task Force. He was scheduled to appear at 3:30 p.m. today before U.S. Magistrate Judge Geraldine Soat Brown in Federal Court in Chicago.

“While there was no imminent danger in the Chicago area or elsewhere, these charges, once again, affirm that law enforcement must remain constantly vigilant to guard against domestic support of foreign terrorist organizations. I am deeply grateful to the FBI agents and other members of the Joint Terrorism Task Force for their extremely hard work on this matter,” said Mr. Fitzgerald. Read the rest of this entry »

DOJ International Terrorism & Terrorism-Related Statistics 2001-2010

March 26, 2010

* DOJ National Security Division statistical report on terrorism-related convictions, 9/11/01 – 3/18/10

The Justice Department, responded to a congressional request for data on terrorism-related prosecutions and convictions, recently provided the most-recent iteration of an internal National Security Division report containing such statistics. That report, and the cover letter explaining it, are attached. Lots and lots of interesting and useful information here!

Leahy Sessions 032610.pdf

March 26, 2010 NSD Final Statistics.pdf

full text of Koh speech

March 26, 2010

State Department Legal Advisor statement on legal justification for drone strikes

March 26, 2010

* State Department Legal Advisor Harold Koh addressing the legal justification for UAV strikes (American Society of International Law annual meeting, Mar. 25, 2010)

A seven-minute video of his speech appears here:

There does not yet appear to be an official written text from the State Department, but it seems that quotes from the text regarding the targeting question were given to ASIL for inclusion in a press release. Here are the quotes from that document:

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

– First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

– Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum. …

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law….

[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’”

In addition to the quotes above, I offer you my rough notes from watching the speech excerpt at the link above. I think in combination, the quotes and these notes give you just about everything he said about targeting law and policy:

– Asserts the continuing existence of an armed conflict involving al Qaeda, the Taliban, and associated forces.

– U.S. use of force is justified in jus ad bellum terms as an exercise of the inherent right of national self-defense and, in domestic law terms, under the AUMF.

– Whether to target a person in a particular location depends on multiple factors that will be specific to each case, including the imminence of the threat, sovereignty of other states involved, and willingness/ability of those states to suppress the threat in question themselves.

– In response to the claim that personalized targeting is unlawful, Koh gives the example of the killing of Admiral Yamamoto in World War II as illustration that it is permissible in war to target particular individuals with lethal force, if their status otherwise permits them to be killed.

If anyone has the full text of his speech (which I gather also addressed detention and conditions of confinement), or at least a more complete video, please do forward it to me.

next week: 3rd Annual National Security Law Faculty Workshop/IHL Training (Austin, April 1-2)

March 25, 2010

* Third Annual National Security Law Faculty Workshop/IHL Training – University of Texas, Austin (Thursday April 1 and Friday April 2)

My thanks to Geoff Corn at South Texas, Paul Kong at the ICRC, and Trevor Rush at the Army JAG School for helping assemble what promises to be a very fun event. While we have almost no space for additional guests on Thursday April 1st, we do have ample room for drop-ins on Friday April 2nd. Do join us on the latter day if you can!


Wednesday March 31

7:00-9:30 Welcome dinner (at the AT&T Conference Center – Gabriel’s)

Thursday April 1 (The Eidmann Jury Room (room 2.310 on the map here) at the UT School of Law)

8:45-9:00 Introductions

9:00-10:00 Paper Presentation 1

Laura Donohue (Georgetown), The Long Shadow of State Secrets

Discussant: Bobby Chesney (Texas)

10:10-11:10 Instruction Block 1

LTC Jeff Bovarnick (TJAGLCS), Detention Operations and Detainee Review Boards in Afghanistan

11:20-12:20 Paper Presentation 2

Vijay M. Padmanabhan (Cardozo), Four Challenges to the Geneva Conventions Posed by Contemporary Conflicts (with John B. Bellinger, III)

Discussant: Scott Sullivan (LSU)

12:20-1:20 Lunch (including roundtable discussion of other attendees’ works-in-progress)

1:20-2:20 Instruction Block 2

Jamie Williamson (ICRC), IHL Hot Topics: Direct Participation in Hostilities, Air/Missile Warfare

2:30-3:30 Paper Presentation 3

Eric Jensen (Fordham) & Chris Jenks (Army), Detention and the Law of War

Discussant: Julian Davis Mortensen (Michigan)

3:40-4:40 Instruction Block 3

Discussion (led by Jamie Williamson, ICRC), IHL and the Future Battlefield

4:40-7:00 Free Time

7:00-9:30 Dinner (Garrido’s, downtown Austin (bus will pick up the group at the AT&T Center at 7:15, will return around 9:45)

Friday April 2 (The Brown Room, LBJ Presidential Library – map here)

9:00-10:00 Instruction Block 4

Roundtable: Military Commissions

10:10-11:10 Paper Presentation 4

Sudha Setty (Western New England), Comparative Perspectives on Specialized Courts for Terrorism Trials

Discussant: John Ip (Auckland)

11:20-12:20 Instruction Block 5

Maj Jeremy Marsh (TJAGLCS), MAJ Greg Musselman (TJAGLCS), Military Operations at the intersection of International Criminal and International Human Rights Law

12:20-1:20 Lunch (including roundtable discussion of other attendees’ works-in-progress)

1:20-2:20 Paper Presentation 5

Kathleen Clark (Washington University), Congress’ Right to Counsel in Intelligence Oversight

Discussant: Tung Yin (Lewis & Clark)

2:30-3:30 Instruction Block 6

MAJ Rob Barnsby (TJAGLCS), Intelligence Law

3:40-4:40 Paper Presentation 6

Paul A. Walker (Navy), Rethinking Computer Network “Attack”: Implications for Law and U.S. Doctrine

Discussant: Eric Jensen (Fordham)

4:40 – Event concludes; no formal dinner plans

a GTMO habeas petition denied on the merits, and another dismissed without prejudice

March 25, 2010

1. Makhtar Yahia Naji Al Warafi v. Obama (D.D.C. Mar. 24, 2010)

Judge Lamberth yesterday denied habeas relief, on the merits, to GTMO detainee Makhtar Al Warafi. There is a short order to that effect here, and that order indicates that there is a classified opinion explaining the outcome. No word on whether a redacted, unclassified opinion will be forthcoming.

2. Zahar Omar Khamis Bin Hamdoun v. Obama (D.D.C. Mar. 24, 2010)

Judge Kessler has dismissed without prejudice the habeas petition filed on behalf of GTMO detainee Zahar Bin Hamdoun. The short order to that effect is here. Based on some of the underlying filings in the public record, this appears to be another example of the scenario in which the petitioner does not wish to pursue habeas relief. It appears in this instance that Hamdoun’s attorneys asked the court to delay action in order to give them time to meet with their client and brief him regarding certain evidentiary developments relating to his case, presumably in order to persuade him to authorize continued pursuit of the matter. In any event, the petition has now been dismissed, albeit without prejudice to refilling should Hamdoun change his mind.