Lynne Stewart resentenced to 10 years; new EO on biological select agents; forthcoming scholarship

July 16, 2010

1. Lynne Stewart resentenced, receives 10 years instead of the original 28 months (S.D.N.Y. July 15, 2010)

From DOJ’s press release:

NEW YORK – Lynne Stewart, 70, was sentenced today to 10 years in prison for aiding convicted terrorist Sheik Omar Abdel Rahman’s communication from prison to his terrorist group, the Islamic Group, announced Preet Bharara, U.S. Attorney for the Southern District of New York; George Venizelos, the FBI’s New York Office Special Agent-in-Charge and Raymond W. Kelly, Police Commissioner of the City of New York.

In February 2005, following a nine-month jury trial in federal court in Manhattan before U.S. District Judge John G. Koeltl, Stewart and co-defendants Ahmed Abdel Sattar and Mohammed Yousry were found guilty of all seven counts against them – including, as to Stewart, providing material support to a conspiracy to kill and kidnap individuals in a foreign country, conspiracy to defraud the United States and making false statements. Judge Koeltl previously sentenced Stewart to 28 months in prison. In November 2009, the U.S. Court of Appeals for the Second Circuit affirmed all three defendants’ convictions, but directed that they be re-sentenced.

According to the superseding indictment and the evidence at trial, for more than two years, Stewart, Sattar and Yousry acted as the hub of a communications network that enabled convicted and imprisoned terrorist Sheikh Omar Abdel Rahman to perpetuate his position as the leader of a terrorist organization, the Islamic Group, despite his conviction for seditious conspiracy to wage a war of urban terrorism against the United States. Abdel Rahman was incarcerated and subject to restrictions on his communications with the outside world known as “Special Administrative Measures,” or SAMs. Stewart worked with Sattar and Yousry to circumvent those restrictions, allowing Abdel Rahman to continue to provide leadership to the Islamic Group.

Stewart was fully familiar with the Islamic Group and Abdel Rahman’s role in it, based on her representation of him during and after the trial at which he was convicted of planning to blow up buildings and tunnels in New York City. Notwithstanding her knowledge, Stewart, along with Sattar and Yousry, facilitated Abdel Rahman’s efforts to continue to lead the Islamic Group, from his jail cell.

Stewart and her co-defendants smuggled messages between leaders of the Islamic Group around the world and Abdel Rahman in prison. In the case of Abdel Rahman’s withdrawal of support for the Islamic Group’s cease-fire, his message was broadcast to the news media for dissemination around the world.

2. Executive Order, “Optimizing the Security of Biological Select Agents and Toxins in the United States”

Posted here.

3. Forthcoming Scholarship

The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict

Naz K. Modirzadeh (Harvard University – Program on Humanitarian Policy and Conflict Research)
U.S. Naval War College International Law Studies (Blue Book) Series, Vol. 86, pp. 349-410, 2010

The idea of co-application of international humanitarian law and human rights law has drawn a tremendous amount of academic attention and a huge amount of innovation in international and domestic jurisprudence. Yet in the current headlong approach into convergence, rights and rights institutions may carry risks to the very goals many humanitarian-minded international lawyers seek to achieve. This article takes a bird’s-eye view of the debate and questions whether it is a good thing to insist on the extraterritorial applicability of human rights to armed conflict situations. In doing so, the article argues that parallel application is equally as bad for the Iraqi civilian as it is for the American soldier. As we pull back the layers of legalistic argumentation, the real role of rights discourse and the real function of human rights law on the battlefield seem much less thought-out than leading scholars suggest, and the implications for this new approach to international law seem much more problematic than the current debate on the issue presents.

"The Fourth Quadrant"

Fordham Law Review, Vol. 78, No. 6

JONATHAN ZITTRAIN, Harvard Law School and Kennedy School, Harvard School of Engineering and Applied Sciences, Berkman Center for Internet & Society
Email: zittrain

This essay makes the case that Internet-based platforms can be evaluated along two dimensions: the first between generative and sterile, indicating openness to further contribution and development from outsiders, and the second between hierarchy and polyarchy, indicating the ease with which those affected by the platform can escape its umbrella.

The quadrants formed by these two dimensions can help us to understand patterns in the development of new technologies and platforms, and to brainstorm the widest array of solutions to problems arising under them, particularly problems involving enforcement of regulations against bad actors. Using cybersecurity as a principal example, the essay explains why current national security approaches to Internet vulnerabilities are unduly narrow, and how focusing attention on the "fourth quadrant" can broaden the range of options.

"State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem"

Proceedings of the NATO CCD COE Conference on Cyber Conflict held in Tallinn, Estonia July 15-18, 2010

SCOTT SHACKELFORD, University of Cambridge – Department of Politics and International Studies, Stanford Law School
Email: sjshacke

This Article reviews both the applicability and desirability of the two vying regimes for state responsibility under international law as applied to cyber attacks: the effective and overall control standards. Due to the technical difficulties with proving attribution for cyber attacks, along with the unreasonably high burden of proof required by the ICJ’s interpretation of the effective control standard, this Article argues for the adoption of the overall control standard as being both within the best interests of NATO as well as the international community.

"The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law"

Minnesota Law Review, Forthcoming
Minnesota Legal Studies Research Paper No. 10-31

DAVID WEISSBRODT, University of Minnesota Law School
Email: weiss001
NATHANIEL H. NESBITT, University of Minnesota Law School
Email: nesb0046

In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to play a meaningful role in the development of humanitarian law?

This article assesses the historical, current, and potential role of the Court in interpreting and developing humanitarian law. Through a comprehensive examination of the Court’s humanitarian law jurisprudence, the article argues that while the Court has offered useful and precedential interpretations of humanitarian law, its analysis suffers from a relatively superficial engagement with the Geneva Conventions. In short, the Court is reluctant to probe too deeply into this complex body of law; its reliance on humanitarian law is often minimal and sometimes haphazard. Despite these shortcomings, the Court has an important role to play. Throughout its history, but most notably in the years after September 11, 2001, the Court has unearthed numerous substantive propositions of humanitarian law and offered novel interpretations of at least one of them. As national and international courts grapple with the implications of international terrorism, the Court will remain an important voice.