forthcoming scholarship: Odom on the “Impeccable Incident” and its implications for US and PRC perspectives on international law

June 25, 2010

* Forthcoming Scholarship

The True `Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned

Michigan State Journal of International Law, Vol.18:3, May 2010

Commander Jonathan G. Odom, JAGC, U.S. Navy, jonathan.odom

Many in the international law and foreign affairs communities are concerned about an incident which occurred on March 8, 2009, in the South China Sea, involving the United States Naval Ship Impeccable and five vessels from the People’s Republic of China (“PRC”). Only a small percentage of those communities, however, are familiar with the March 8th incident in substantial detail, both factually and legally.

Although the episode was reported by the news media, such reporting was merely the “first rough draft of history.” Therefore, much like how a courtroom trial provides a community with an opportunity to step back and dispassionately examine an alleged crime or civil wrong with deliberate consideration, so too is there value in stepping back and reflecting upon this maritime incident in greater depth on its one-year anniversary. Effective reflection on the incident can occur only when detached observers have an opportunity to weigh the actual facts of that day, apply international law to those facts, and reach a well-considered legal judgment-in essence, a “verdict”-on the incident. To reach such an informal verdict, these observers must be presented with detailed perspectives from the two nations involved. This Article provides such a detailed perspective from one of the two nations-in this case, the United States. The discussion focuses on and synthesizes with meticulous detail the official statements and comments and physical documentation (i.e., video and photographs) released by the United States and PRC governments.

Part I of this Article focuses on the facts of the March 8th incident. This includes a factual account of the incident, as provided by the U.S. government one day after the incident actually occurred. The next section introduces the official public statements made by the PRC government about the incident. Then, perhaps most importantly, the discussion of facts identifies objective evidence, which might corroborate or refute the respective factual accounts. Juxtaposing the two governments’ statements on the facts of the March 8th incident with this objective evidence proves quite telling for which side’s account is closer to the truth.

Part II of this Article focuses on the applicable law of the March 8th incident. This legal discussion will examine two bodies of international law: first the international rules of navigational safety, and second, the international law of the sea. Viewing the facts of the incident through the prism of these two distinct, but related bodies of international law will show which nation operated in accordance with its legal rights and responsibilities, and which nation disregarded international law in its actions.

Ultimately, this Article reaches several conclusions. First, the U.S. government was candid, clear, and consistent in its factual account of the March 8th incident. Washington provided detailed corroboration to the international community; in stark contrast, Beijing was cryptic at best, and possibly misleading. Second, the actions of the U.S. Nval vessel during the March 8th incident were consistent with international law; meanwhile, the collection of PRC vessels involved in the incident acted inconsistently with that same body of law. Third, the Article concludes that, since neither the facts of the incident nor the applicable law support the actions and position of the PRC in the March 8 incident, Beijing’s diplomacy and media blitz in the aftermath of the event demonstrate an effort to unilaterally transform international law.

These conclusions raise troubling questions about China’s ability to integrate successfully into the community of responsible nations.

The True Lies of the Impeccable Incident (Odom, MSUJIL, May 2010).pdf

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United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

June 23, 2010

* United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

The plea agreement letter is attached. Press release appears below:

WASHINGTON – Faisal Shahzad pleaded guilty today in Manhattan federal court before U.S. District Judge Miriam Goldman Cedarbaum to all counts of the 10-count indictment against him, for allegedly driving a car bomb into Times Square on the evening of May 1, 2010, the Justice Department announced.

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. Last week, on June 17, 2010, Shahzad was indicted in the Southern District of New York.

“Faisal Shahzad plotted and launched an attack that could have led to serious loss of life, and today the American criminal justice system ensured that he will pay the price for his actions,” Attorney General Eric Holder said. “We will not rest in bringing to justice terrorists who seek to harm the American people, and we will use every tool available to the government to do so.”

“This investigation included a combination of traditional law enforcement techniques and intelligence-based authorities, with men and women from a number of agencies working side-by-side in support of a common goal,” said FBI Director Robert S. Mueller.

“Today, less than two months after his arrest, Faisal Shahzad pleaded guilty to 10 felony charges for attempting to carry out a plot to bomb the heart of New York City,” said Preet Bharara, the U.S. Attorney for the Southern District of New York. “In admitting his guilt today, Shahzad reminded us of the uniquely serious threat that our city faces every single day. I express my gratitude and admiration for the agents and detectives of the FBI and New York Police Department (NYPD) who dedicate their lives to the daily fight to keep this city, its residents and its visitors, safe from harm.”

U.S. Attorney Bharara added that there is no plea agreement between the government and Shahzad, and that the investigation is continuing. Shahzad is scheduled to be sentenced by Judge Cedarbaum on Oct. 5, 2010, at 10 a.m.

According to the indictment to which Shahzad pleaded guilty, statements made during today’s proceeding, and the criminal complaint filed in Manhattan federal court:

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 Airport. 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 against Shahzad last week charges him with 10 offenses which carry the following potential penalties:

Count Charge Maximum Prison Term
1 Attempted use of a weapon of mass destruction Life
2 Conspiracy to use a weapon of mass destruction Life
3 Possession of a firearm during and in relation to a conspiracy to use a weapon of mass destruction Life*

4 Attempted act of terrorism transcending national boundaries Life

5 Conspiracy to commit an act of terrorism transcending national boundaries Life
6 Attempted use of a destructive device during and in relation to a conspiracy to commit an act of terrorism transcending national boundaries Life*
7 Transportation of an explosive 10 years
8 Conspiracy to transport an explosive 10 years
9 Attempted destruction of property by fire and explosive 20 years*
10 Conspiracy to destroy property by fire and explosive 20 years*

* Counts Three, Nine, and Ten each carry a mandatory minimum penalty of five years in prison. Because Shahzad pled guilty to Count Three, Count Six carries a mandatory minimum penalty of life in prison.

FBI New York Acting Assistant Director-in-Charge George Venizelos stated: “Today’s guilty plea is right on the mark. Faisal Shahzad was poised and ready to terrorize the citizens and visitors of New York City, and threaten the security of our nation. He set out to act on radical ideologies, but his evil plans were thwarted. The vigilance on behalf of ordinary citizens who alerted law enforcement of suspicious activity, and strength and swift actions taken by the FBI’s Joint Terrorism Task Force (JTTF), diverted this intended attack on our homeland. It’s the hard work of the FBI team along with our partnerships with law enforcement and the intelligence community that enables us to fight terrorism every day.”

Police Commissioner Raymond W. Kelly said, “The plea reflects outstanding and timely work by NYPD detectives and FBI agents in the immediate aftermath of the discovery of the car bomb in Times Square, as well as that of the accomplished team of prosecutors headed by United States Attorney Preet Bharara. We remain alert to and concerned by the threat of home grown terrorism aimed at New York City.”

The indictment was the result of the investigative efforts of the FBI’s Joint Terrorism Task Force (JTTF) in New York, Connecticut and Massachusetts, especially those JTTF members from the FBI and the New York City Police Department. U.S. Customs and Border Protection also made significant contributions to the case. Substantial assistance was also provided by the Justice Department’s National Security Division, as well as the U.S. Attorney’s Offices for the Districts of Connecticut and Massachusetts.

The prosecution is being handled by Assistant U.S. Attorneys Brendan R. McGuire, Randall W. Jackson, John P. Cronan and Jeffrey A. Brown of the Terrorism and International Narcotics Unit in the U.S. Attorney’s Office for the Southern District of New York.

Shahzad, Faisal – Government’s Letter Regarding Maximum Penalties.pdf


Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

June 23, 2010

* Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

A D.C. Circuit panel (Tatel, joined by Ginsburg and Kavanaugh) has affirmed denial of habeas relief to GTMO detainee Sufyian Barhoumi. The opinion is posted here. Key aspects of the opinion include:

– affirmation that hearsay is admissible in the habeas proceedings

– affirmation that the preponderance standard is constitutionally permissible

– Barhoumi on appeal did not contest the detention standard advanced by the government, nor the claim that the group in question – Abu Zubaydah’s “militia”—constituted an “associated force” within the meaning of that standard. The question was whether the district court erred in finding that the government had sufficient evidence that Barhoumi was “part of” that group.

– Whether a person’s alleged conduct is of the kind adequate to justify a showing of membership is a question of law (e.g., whether training camp attendance or guesthouse residence = proof of membership); whether the evidence suffices to prove the particular person actually engaged in that conduct is, of course, a question of fact.

– Barhoumi argued for adoption of the Hamlily standard, developed by Judge Bates in 2009, pursuant to which the government should have to show that a person was part of a command structure taking orders/directions from a group, in order to prove membership in that group. The panel responded that “this court has yet to delineate the precise contours of the ‘part of’ inquiry—a legal issue,” but also that “we need not do so here because we conclude that even under the test espoused by Barhoumi, the district court committed no error” in finding that Barhoumi was part of Zubaydah’s militia.

– The evidence showed that Barhoumi had trained at the Khaldan camp, that Khaldan was a Zubaydah-run facility, and that Barhoumi was captured alongside Zubaydah at a guesthouse in Pakistan. The panel described as particularly important a diary belonging to a member of Zubaydah’s organization that identified Barhoumi (under an alias) as a permanent member of Zubaydah’s militia, and indicated that Barhoumi was providing explosives training to others in the group with an eye toward fighting against US forces in Afghanistan.


2339B upheld by SCOTUS in Holder v. Humanitarian Law Project

June 21, 2010

* Holder v. Humanitarian Law Project (SCT June 21, 2010)

In a 6-3 decision authored by Chief Justice Roberts (joined by Justices Stevens, Scalia, Kennedy, Thomas, and Alito), the Supreme Court has overturned a Ninth Circuit ruling insofar as it had held portions of 18 USC 2339B (the 1996 material support statute) to be unconstitutional. The full opinion is posted here:

http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf

It time permits, I will circulate a summary of the analysis later today. Suffice to say for now that the majority was persuaded that the sort of activity the plaintiffs sought to engage in would facilitate the capacity of DFTOs to cause harm.


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.


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