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