obaydullah v. obama (D.C. Cir. June 18, 2010)

June 18, 2010

* Obaydullah v. Obama (D.C. Cir. June 18, 2010)

A DC Circuit panel (Ginsburg, joined by Griffith and Williams) has reversed a district court determination that Obaydullah’s habeas petition should remain stayed pending military commission proceedings. The panel emphasizes that though charges were sworn against Obaydullah back in September 2008, the Convening Authority has not yet referred those charges for actual prosecution. At the end of the 10-page opinion, the panel notes that if the charges finally do get referred for prosecution, this might re-raise the question of whether the habeas court should abstain pending the outcome of that proceeding. The full opinion is posted here.

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Commission of Inquiry Report: “Air India Flight 182: A Canadian Tragedy”

June 18, 2010

* Commission of Inquiry Into the Investigation of the Bombing of Air India Flight 182, “Air India Flight 182: A Canadian Tragedy” (June 17, 2010)

The final report of Canada’s Commission of Inquiry in the bombing of Air India Flight 182 has just been published. Needless to say, this should be of interest to all of those who are interested in questions of intelligence/criminal investigative cooperation, the legal regulation of the two, and a host of other terrorism-related issues. The various components are as follows:

Remarks by Commissioner John C Major, June 17, 2010

Key Findings of the Commission

A Guide to the Report

Report Table Of Contents

  • Volume 1
    The Overview
  • Volume 2
    Part 1: Pre-Bombing
    Part 2: Post-Bombing Investigation and Response
  • Volume 3
    The Relationship between Intelligence and Evidence and the Challenges of Terrorism Prosecutions
  • Volume 4
    Aviation Security
  • Volume 5
    Terrorist Financing
  • Reader’s Guide
    Acronyms and Key Names

Research Studies
Table Of Contents

  • Volume 1
    Threat Assessment RCMP/CSIS Co-operation
  • Volume 2
    Terrorism Financing, Charities, and Aviation Security
  • Volume 3
    Terrorism Prosecutions
  • Volume 4
    The Unique Challenges of Terrorism Prosecutions

To order printed copies of the Commission’s report, please contact Government of Canada Publications.


forthcoming scholarship

June 18, 2010

* Forthcoming Scholarship

Journal of National Security Law & Policy special issue on cybersecurity

From JNSL&P:

The special issue introduces readers to some of the most compelling and complex items on the Administration’s national security agenda. In fifteen articles – including a Foreword by Michael Chertoff, former Secretary of the Department of Homeland Security – the symposium focuses on the subset of issues concerned with cybersecurity – how best to protect our critical infrastructure from cyber attacks. Authors critically evaluate the Administration’s Cyberspace Policy Review, presented back in May 2009. They examine what is known – and ascertainable – about the nature and extent of the threats, vulnerabilities, and consequences, and analyze the range of defensive options being considered by policy makers.

One set of issues concerns the proper role of the federal government in securing the nation’s critical infrastructure to include deciding which agency should play the lead role. Many claim that weak government leadership has been one reason that past cybersecurity efforts have failed to achieve their objectives. Congress is now debating a range of solutions designed to clarify responsibilities and accountability within the government and private sector, respectively. The Cybersecurity Act of 2009, as introduced, would have given the government a stronger role in setting standards and monitoring communications, while the marked up version recently reported by the Senate Committee on Commerce, Science and Transportation puts the onus on the government to identify and promote best practices developed by the private sector.

Another topic addressed is the need to improve the sharing of information critical for preventing cyber attacks. This is a good idea in theory – but problematic in practice because of privacy concerns and structural disincentives in the current system.

Cybersecurity is also a transnational problem – cyber crime, supply chain security, and offensive use of cyberpower are examples. Several articles discuss challenges and options concerning global action on cybersecurity.

Foreword
Michael Chertoff

Introduction
William C. Banks and Elizabeth Rindskopf Parker

The Past, Present, and Future of Cybersecurity
Walter Gary Sharp, Sr.

Cybersecurity Strategy: A Primer for Policy Makers and Those on the Front Line
Steven R. Chabinsky

History Repeats Itself: The 60-Day Cyberspace Policy Review in Context
Eric A. Greenwald

Offensive Cyber Operations and the Use of Force
Herbert S. Lin

Cyber Threats and the Law of War
David E. Graham

Will There Be Cybersecurity Legislation?
John Grant

Cybersecurity and Freedom on the Internet
Gregory T. Nojeim

Square Legal Pegs in Round Cyber Holes: The NSA, Lawfulness, and the Protection of Privacy Rights and Civil Liberties in Cyberspace
John N. Greer

Congress’s Role in Cyber Warfare
Stephen Dycus

National Cyber Doctrine: The Missing Link in the Application of American Cyber Power
Mark D. Young

U.S. International Policy for Cybersecurity: Five Issues That Won’t Go Away
Jeffrey Hunker

A Comparative Study of the Information Security Policies of Japan and the United States
Yasuhide Yamada, Atsuhiro Yamagishi, and Ben T. Katsumi

Foundational Questions Regarding the Federal Role in Cybersecurity
Gus P. Coldebella and Brian M. White


United States v. Shahzad (S.D.N.Y. June 17, 2010)

June 18, 2010

* United States v. Shahzad (S.D.N.Y. June 17, 2010) (indictment in Times Square case)

A ten-count indictment today in the attempted bombing of Times Square, emphasizing that Shahzad allegedly received explosives training in Pakistan and funding from persons associated with Tehrik-e-Taliban (Pakistan Taliban). The indictment is attached, details from the press release follow below. The case is assigned to Judge Cederbaum.

WASHINGTON – A federal grand jury in the Southern District of New York has returned a 10-count indictment charging Faisal Shahzad for allegedly driving a car bomb into Times Square on the evening of May 1, 201, the Justice Department announced today.

Shahzad, 30, a naturalized U.S. citizen born in Pakistan, was taken into custody at John F. Kennedy International Airport (JFK Airport) on May 3, 2010, after he was identified by the Department of Homeland Security’s U.S. Customs and Border Protection while attempting to leave the United States on a commercial flight to Dubai. Shahzad was then charged in a five-count criminal complaint. On May 18, 2010, he was presented in Manhattan federal court before U.S. Magistrate Judge James C. Francis IV.

The case has been assigned to U.S. District Judge Miriam Goldman Cedarbaum of the Southern District of New York. Shahzad is expected to be arraigned by Judge Cedarbaum on June 21, 2010, at noon.

“The facts alleged in this indictment show that the Pakistani Taliban facilitated Faisal Shahzad’s attempted attack on American soil,” said Attorney General Eric Holder. “Our nation averted serious loss of life in this attempted bombing, but it is a reminder that we face an evolving threat that we must continue to fight with every tool available to the government.”

According to the indictment filed today and the criminal complaint:

In December 2009, Shahzad received explosives training in Waziristan, Pakistan, from explosive trainers affiliated with Tehrik-e-Taliban, a militant extremist group based in Pakistan. On Feb. 25, 2010, Shahzad received approximately $5,000 in cash in Massachusetts sent from a co-conspirator (CC-1) in Pakistan whom Shahzad understood worked for Tehrik-e-Taliban. Approximately six weeks later, on April 10, 2010, Shahzad received an additional $7,000 in cash in Ronkonkoma, N.Y., which was also sent at CC-1’s direction.

On March 15, 2010, Shahzad purchased a semi-automatic 9 millimeter Kel-Tec rifle in Connecticut. This rifle was found, loaded, in Shahzad’s car on the day of his arrest.

In April 2010, Shahzad contacted the seller of a Nissan Pathfinder after seeing an advertisement posted on a website. Thereafter, on April 24, 2010, Shahzad and the seller of the Pathfinder agreed to meet in a supermarket parking lot in Connecticut, where Shahzad paid the seller $1,300 for the Pathfinder. In April 2010, Shahzad also purchased components for the improvised explosive and incendiary devices that he loaded into the Pathfinder on May 1, 2010.

On May 1, 2010, Shahzad drove the Pathfinder, loaded with the improvised explosive and incendiary devices, to Manhattan and parked the Pathfinder in Times Square in the vicinity of 45th Street and Seventh Avenue. After parking the Pathfinder, Shahzad attempted to begin the detonation process of the improvised explosive and incendiary devices. Thereafter, Shahzad abandoned the Pathfinder and returned to his residence in Connecticut.

On May 3, 2010, Shahzad drove from Connecticut to JFK Airport as he attempted to flee to Dubai. He was arrested later that same day at JFK. After his arrest, Shahzad admitted that he had recently received bomb-making training in Pakistan. He also admitted that he had brought the Pathfinder to Times Square and attempted to detonate it.

The indictment filed today charges Shahzad with 10 offenses which carry the following potential penalties:

  • Count 1 – Attempted use of a weapon of mass destruction, life in prison.
  • Count 2 – Conspiracy to use a weapon of mass destruction, life in prison.
  • Count 3 – Possession of a firearm during and in relation to a conspiracy to use a weapon of mass destruction, life in prison.*
  • Count 4 – Attempted act of terrorism transcending national boundaries, life in prison.
  • Count 5 – Conspiracy to commit an act of terrorism transcending national boundaries, life in prison.
  • Count 6 – Attempted use of a destructive device during and in relation to a conspiracy to commit an act of terrorism transcending national boundaries, life in prison.*
  • Count 7 – Transportation of an explosive, 10 years in prison.
  • Count 8 – Conspiracy to transport an explosive, 10 years in prison.
  • Count 9 – Attempted destruction of property by fire and explosive, 20 years in prison.*
  • Count 10 – Conspiracy to destroy property by fire and explosive, 20 years in prison.*

* Counts three, nine and ten each carry a mandatory minimum penalty of five years in prison. Count six carries a mandatory minimum penalty of 30 years in prison. If there are convictions for counts three and six, a sentence of life in prison is mandatory.

Shahzad Faisal Indictment.pdf