United States v. Conde Rubio (D.D.C. June 15, 2010)

June 29, 2010

* United States v. Conde Rubio (D.D.C. June 15, 2010)

From an FBI (Washington Field Office) press release:

A former high-ranking FARC 1st Front member and logistical network commander, Nancy Conde Rubio, who had pleaded guilty to providing material support to the FARC on March 17, 2010, was sentenced today to 138 months’ incarceration by the Honorable Royce C. Lamberth, Chief Judge of the U.S. District Court for the District of Columbia, … Rubio, a 37-year-old Colombian national, was extradited from the Republic of Colombia in September 2009.

Rubio was sentenced for the crime of conspiracy to provide material support to a designated foreign terrorist organization, the Revolutionary Armed Forces of Colombia (in Spanish, the “Fuerzas Armadas Revolucionarias de Colombia,” commonly known as the “FARC”). FARC members obtained cash and weapons from drug dealers in exchange for FARC controlled cocaine, and then transferred funds to FARC collaborators who were members of the conspiracy so that they could purchase the materials and supplies needed to operate the 1st Front. Materials and supplies were transported to the FARC in airplanes via clandestine airstrips located in Colombia and elsewhere, in trucks, and in river boats navigating remote jungle rivers that traverse rural areas of Colombia and neighboring countries.

According to evidence introduced during the plea and sentencing hearings, Conde Rubio was the leader of the 1st Front’s logistical supply and communications network. To supply itself, the FARC’s 1st Front relied on a network of individuals with access to Colombia’s metropolitan and commercial centers, as well as to product markets in other countries. It also relied on individuals involved in the trafficking of narcotics, who had access to weapons, foreign currency, and other supplies, such as high technology communications equipment. The 1st Front commander and Conde Rubio directed other members of the logistical support network to obtain and transport materials and supplies. One primary method of communication used to operate the network was by satellite telephones obtained by Conde Rubio from the United States. Radio call centers also were used to patch through high frequency radio calls from FARC leaders operating in the jungle to co-conspirators using conventional telephones in urban areas, who were responsible for obtaining materials and supplies for the FARC guerillas. Because neither land line nor cell phone service was available in the jungle areas controlled by the 1st Front, satellite telephones and high frequency radios were the only methods of electronic communication available. The 1St Front’s communications network was dismantled when Rubio and other members of the logistical and material supply network charged in the Government’s 2007 Indictment were arrested in January and February 2008.

The FARC held three Americans hostage from February 13, 2003, until they were rescued in a dramatic Colombian military operation on July 2, 2008. Beginning in September 2006, the three Americans were held hostage by the FARC’s 1st Front. As alleged in the Indictment, the logistical supply and communications network established by Conde Rubio was used by other FARC leaders to maintain control of and to transport the American hostages while they were being held in captivity by the 1st Front. Because the Colombian law enforcement and military rescue operation was based on a ruse—convincing 1st Front leaders that they had been ordered to release the hostages to a humanitarian group—it was imperative that the 1st Front leaders not be able to utilize their communications network to verify that these orders were indeed issued by the FARC high command, rather than through the Colombian government’s military operation. After Conde Rubio’s arrest became known, the 1st Front leaders no longer had a reliable communications network with which to communicate with other FARC fronts and blocs, or their executive leadership and high command.

Other alleged 1st Front leaders were charged in the Indictment with hostage taking and related offenses, while other alleged members of the network—including narcotics traffickers and weapons dealers—were charged with providing material support or resources to the FARC….

United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

June 28, 2010

* United States v. Chapman, United States v. Metsos (S.D.N.Y. June 27, 2010) (espionage arrests)

A number of individuals were arrested this past weekend on charges of serving as undeclared Russian agents. The press release appears below, and the two criminal complaints (forwarded by DOJ along with the press release) are attached.

Complaint # 2.pdf
Complaint # 1.pdf

Stigall on DPH in the context of the Civilian Response Corps

June 28, 2010

* forthcoming scholarship

The Thickest Grey: Assessing the Status of the Civilian Response Corps Under the Law of International Armed Conflict and the U.S. Approach to Targeting Civilians

Dan E. Stigall (DOJ – Office of International Affairs)
American University International Law Review, Vol. 25, pp. 101-130, 2010

The U.S. approach to armed conflict has recently undergone a profound shift as policymakers and military commanders have been forced to seek solutions to the seemingly intractable problems associated with developing countries and their relative instability. This focus on reconstruction and stabilization has led to the rise of “stability operations” – a relatively new addition to the military lexicon. Moreover, what is now called “stability operations” is a hybrid area that fuses a core military mission with a field of knowledge and experience that is dominated, at least in theory, by civilians. In that regard, there is another grey area surrounding the question of what conduct disqualifies a civilian from the protections and immunity traditionally given to civilians during armed conflict. The resultant lack of clarity can translate into significant legal consequences – both for civilians who are mobilized pursuant to such an effort and for U.S. policymakers who seek to criminalize the conduct of terrorists and insurgents.

This article explores the phenomenon of U.S. government civilians who engage in stability and reconstruction operations in conflict zones and their legal status under the law of armed conflict, paying specific attention to the corps of federal civilians being developed for this specific purpose: the Civilian Response Corps. Because the field of stability operations is a hybrid area that requires both civilian and military resources to attain a common objective, the objectives of each are conflated and, thus, necessarily colors the civilians engaging in such work with a belligerent hue. Ultimately, this article posits that the complex nature of civilian operations is such that neither the military nor civilians can be extricated from it and, as such, U.S. interests are best served by articulating a single, formal, and more restrictive interpretation of what it means to “directly participate in hostilities”.

forthcoming scholarship: Blum and Heymann on Targeted Killings

June 28, 2010

Law and Policy of Targeted Killings

Gabriella Blum and Philip Heymann (Harvard Law)

Harvard National Security Journal

From the conclusion:

Targeted killing operations display more clearly than any other counterterrorism tactic the tension between labeling terrorism a crime and labeling it an act of war. If a terror attack is simply a crime, counterterrorism forces would follow the same laws and rules as the Chicago or Miami police department do in fighting crime, where intentional killing could rarely if ever be lawful, other than where necessary in a situation immediately requiring the defense of self or others, or in making an arrest of an obviously dangerous felon. From the perspective of international peacetime relations, targeted killings face even greater legal constraints when targeting a terrorist outside the state’s jurisdiction.

If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.

Known or anticipated collateral damage to the innocent is generally prohibited in law enforcement, but is legitimate within the boundaries of proportionality in fighting wars. In fighting crime, the government’s obligation to protect its citizens applies to all citizens—criminals and innocents. In fighting wars, the government’s primary obligation is to its own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves against acts of terrorism, targeted killings cannot be always illegal and immoral. But because terrorism is not a traditional war, nor a traditional crime, its non-traditional nature must affect the ethical and strategic considerations that inform targeted killings, the legal justification behind them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without declaring an all-out “war” on terrorism. A war paradigm is overbroad in the sense that it allows the targeting of any member of a terrorist organization. For the United States, it has had no geographical limits. When any suspected member of a hostile terrorist organization—regardless of function, role, or degree of contribution to the terrorist effort—might be targeted anywhere around the world without any due process guarantees or monitoring procedures, targeted killings run grave risks of doing both short-term and lasting harm. In contrast, a peacetime paradigm that enumerates specific exceptions for the use of force in self-defense is more legitimate, more narrowly tailored to the situation, offers potentially greater guarantees for the rule of law. It is, however, harder to justify targeted killing operations under a law enforcement paradigm when the tactic is used as a continuous and systematic practice rather than as an exceptional measure. Justifying targeted killings under a law enforcement paradigm also threatens to erode the international rules that govern peacetime international relations as well as the human rights guarantees that governments owe their own citizens.

Whichever paradigm we choose as out starting point, greater limitations than those offered by the Parks memorandum or that are currently operating in the American targeted killings program should be adopted. The limits set by the Israeli Supreme Court—ironically, within the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered state if the host country of the terrorists is willing and able to act on its own to arrest or disable in a timely manner the source of the threat. Host country cooperation in capture and extradition must be the first alternative considered. That is, targeted killings must only be carried out as an extraordinary measure, where the alternative of capture or arrest is unfeasible.

Second, only those who are actively and directly involved in terrorist activities are legitimate targets; not every member of a terrorist organization is or should be.

Third, the fact that terrorists do not wear uniforms should not give them an unfair legal advantage over soldiers in uniform in the sense of immunity from deliberate attack. But their lack of uniform does raise legitimate concerns about the ability to ensure the correct identification of the target, in terms of personal identity as well as specific culpability. Any targeted killing operation must therefore include mechanisms in its planning and execution phases that would ensure an accurate identification. Such mechanisms need not involve external judicial review; judges are neither well situated nor do they have the requisite expertise to authorize or reject an operation on the basis of intelligence reports. Rather, the system should be based on verified and verifiable intelligence data from different and independent sources, careful monitoring, and safety mechanisms that would allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention. Unlike ordinary battlefield strikes, the fact that the targeting forces have control over the time, means, and methods of strike mandates that a heightened degree of care should be exercised to choose an occasion and means that will minimize collateral harm to uninvolved individuals, especially where the operations are carried out outside an immediate conflict zone. In those cases, we believe that where innocent civilians suffer collateral damage, those injured should generally be compensated.

Finally, the aggression of the targeted killing tactic mandates its measured use in only the most urgent and necessary of cases. The government’s interest should be to tame violence, not exacerbate it. Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.

This article appears as a chapter in Gabriella Blum & Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press, forthcoming Sept. 2010).

forthcoming scholarship: Daly on Deep Packet Inspection

June 25, 2010

The Legality of Deep Packet Inspection

Angela Daly (European University Institute)

Deep packet inspection is a technology which enables the examination of the content of information packets being sent over the Internet. The Internet was originally set up using “end-to-end connectivity” as part of its design, allowing nodes of the network to send packets to all other nodes of the network, without requiring intermediate network elements to maintain status information about the transmission. In this way, the Internet was created as a “dumb” network, with “intelligent” devices (such as personal computers) at the end or “last mile” of the network. The dumb network does not interfere with an application’s operation, nor is it sensitive to the needs of an application, and as such it treats all information sent over it as (more or less) equal. Yet, deep packet inspection allows the examination of packets at places on the network which are not endpoints, In practice, this permits entities such as Internet service providers (ISPs) or governments to observe the content of the information being sent, and perhaps even manipulate it. Indeed, the existence and implementation of deep packet inspection may challenge profoundly the egalitarian and open character of the Internet.

This paper will firstly elaborate on what deep packet inspection is and how it works from a technological perspective, before going on to examine how it is being used in practice by governments and corporations. Legal problems have already been created by the use of deep packet inspection, which involve fundamental rights (especially of Internet users), such as freedom of expression and privacy, as well as more economic concerns, such as competition and copyright. These issues will be considered, and an assessment of the conformity of the use of deep packet inspection with law will be made. There will be a concentration on the use of deep packet inspection in European and North American jurisdictions, where it has already provoked debate, particularly in the context of discussions on net neutrality. This paper will also incorporate a more fundamental assessment of the values that are desirable for the Internet to respect and exhibit (such as openness, equality and neutrality), before concluding with the formulation of a legal and regulatory response to the use of this technology, in accordance with these values.

forthcoming scholarship: Nachbar on “Rule of Law” in military doctrine and operations

June 25, 2010

“Defining the Rule of Law Problem”

The Green Bag, Vol. 6, No. 2D, p. 303, 2009
University of Virginia Public Law and Legal Theory Working Paper Series Working Paper No. 125

THOMAS B. NACHBAR, University of Virginia School of Law
Email: tnachbar

This article is based on a chapter written for The Rule of Law Handbook: A Practitioner’s Guide, a handbook used as a text at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, and as a reference for judge advocates worldwide.

The paper considers the recent explosion in legal development activity undertaken by the U.S. government in the context of the military interventions in Afghanistan and Iraq. Those programs, frequently lumped together under the title ‘rule of law,’ have in turn led to a flurry of activity to define the ‘rule of law’ in order to provide some guidance to those programs.

The paper highlights the need to define the purpose of the definition before seeking a definition and discusses how recently adopted definitions of the rule of law in U.S. military doctrine necessarily affect not only ‘rule of law’ programs but also the full spectrum of operations undertaken by U.S. forces.

forthcoming scholarship: Newton on reprisals

June 25, 2010

Reconsidering Reprisals

Michael A. Newton (Vanderbilt)

Duke J. Comp. & Int’l L. (forthcoming)

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital “bulwark against barbarity.” In the words of the International Committee of the Red Cross, the prohibition is “absolute”, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of state practice, though conducted under varying legal rubrics and shifting rationales. Reasonable reprisals grounded on an empirical assessment of their deterrent value or framed as appropriate punishment for prior acts of terror may be the most morally acceptable and humane strategy for serving a strategic imperative of civilized society. Limited reprisals may in practice be essential to counteract the growing threat of transnational terrorists. Reasonable reprisals may represent the best long term way to erode support for those who would mobilize terrorist actors to willfully ignore the rules protecting innocent civilians thereby violating the most basic human rights of their victims. This is especially true if nations create clear lines of agreed legal authorities supported by independent adjudication of the motives and methods employed in such reprisals. Peace-loving states should seek common ground to enhance efforts to protect innocent citizens from the effects of terrorist violence. Thoughtful and multilateral reassessment of the lawful scope and rationale for reasonable reprisals is overdue.