Almerfedi v. Obama (D.D.C. July 23, 2010)

July 26, 2010

* Almerfedi v. Obama (D.D.C. July 23, 2010) (granting GTMO habeas petition)

In a 28-page opinion posted here, Judge Friedman has granted habeas relief to Hussain Salem Mohammad Almerfedi. This appears to be another decision involving a Yemeni detainee whom the Obama Administration already had approved for transfer from GTMO but had not yet released (presumably as a result of the policy decision not to carry out transfers to Yemen for the time being).

Redactions in the opinion make it impossible to identify the full range of arguments offered by the government in favor of his detention, but the unredacted portions emphasize claims that Almerfedi assisted al Qaeda while in Iran by helping foreign fighters enter Afghanistan, and also that Almerfedi was associated with Jama’at al Tbalighi (a proselytization organization which at times has been used as a front to provide support to various terrorist groups). Key points in the court’s analysis follow:

The Iranian Guesthouse

– Judge Friedman noted that the DC Circuit in al-Bihani had indicated that merely visiting an al Qaeda guesthouse might be sufficient evidence to justify a detention, but he distinguished Almerfedi’s situation by pointing out the ambiguity of the term “guesthouse” and by noting that a “guesthouse” might have different connotations or significance in Iran than in Afghanistan/Pakistan. (p. 9 n.2)

– Judge Friedman ultimately reserved decision on the significance of staying at an AQ guesthouse in Iran, however, on the ground that the evidence failed to prove that Almerfedi had in fact stayed at such a place. It appears the government’s case on this point rested on series of interrogation reports from another GTMO detainee, who referred not specifically to petitioner but rather to “Hussain al-Adeni” (i.e., Hussain from Aden). Judge Friedman noted that this might or might not refer to Hussain Almerfedi. But his more significant objection is that he finds the interrogation-derived statements to be unreliable:

“The Court finds these four intelligence documents inherently unreliable. The only source identified for ISN 230’s information about petitioner is an unnamed group of detainees who arrived in Guantanamo in 2004. Not only does ISN 230 not identify who they are, but there is no information provided about the source or sources of the group’s information. It could be based on personal knowledge, hearsay, multiple hearsay, or rumor. Although hearsay evidence is admissible in these proceedings, the Court still must determine whether the hearsay statements are accurate, reliable and credible. Information that came from an unnamed group of detainees, for which the original source cannot be pinpointed, amounts to no more than jailhouse gossip, if that, and cannot serve as the basis for petitioner’s detention.” (pp. 13-14)

– Judge Friedman rejected other interrogation-derived statements on the ground that they contained factual assertions that were in conflict with other known facts.

Acting as an AQ facilitator in Iran

– Judge Friedman rejected this claim as well:

“As for the government’s contention that petitioner was an al Qaeda facilitator in Iran helping fighters infiltrate Afghanistan, the government has provided no direct or persuasive circumstantial evidence other than petitioner’s alleged association with Iranian guesthouses and the description of petitioner as a "facilitator" in the unreliable documents discussed in Part IJl.B.l. If petitioner had been a "facilitator" for al Qaeda, other witnesses likely would have known about it and would have been able to testify about his work for al Qaeda. The government has presented no such evidence, no evidence of petitioner’s motive, no evidence that he had any history of anti-western or pro-al Qaeda beliefs, and no evidence that he associated with those who advocated such beliefs. Nor is there any evidence that petitioner, who is uneducated, is a sophisticated traveler or document forger -skills that likely would be necessary for al Qaeda facilitators. Furthermore, it is implausible that al Qaeda would post petitioner to a guesthouse in Tehran, because it is undisputed that he does not speak Farsi.’ Most importantly, having failed to prove that petitioner stayed at al Qaeda guesthouses in Iran in 2000 and early 200 I, the argument that he facilitated the movement of foreign fighters into Afghanistan while residing in such guesthouses during that period falls of its own weight.9

Involvement with Jama-at al-Tbalighi

– “while it certainly appears more likely than not that some elements of JT, including some at the JT Center in Lahore, provide financial and other support to Islamic terrorist groups, this premise does not lead to the conclusion that petitioner did so. Petitioner has not provided a convincing explanation for why he stayed in the JT Center for two and one half months without pursuing his stated goal of going to Europe, what he was doing during that period of time, or even why he did not seek out other Arabic speakers aside from Mohammad Ali. See Almerfedi Decl. ~ 18, 21. Nevertheless, the strange and unexplained circumstance of these two and one half months does not lead to the conclusion that petitioner worked as an al Qaeda facilitator while at the JT Center or thereafter at al Qaeda guesthouses. See Bensayah v. Obama, No. 08-5537, slip op. at 17 (D.C. Cir. June 28, 2010) (questions about a petitioner’s whereabouts or explanations may undermine his credibility but do not by themselves "tiell him to al Qaeda or suggestll he facilitated anyone’s travel during that time”). While the government has cast suspicion on petitioner’s explanation and raised doubts about parts of petitioner’s story -a story which he has told consistently since the time of his capture -the government simply has not shown by a preponderance of the evidence that petitioner had any ties to al Qaeda or to the Taliban” (pp. 26-27)


Kuman v. Obama (D.D.C. July 23, 2010)

July 26, 2010

* Kuman v. Obama (D.D.C. July 23, 2010)

In an 8-page order posted here, Judge Bates has granted a motion to dismiss a GTMO habeas petition based on counsel’s inability obtain authorization from the detainee to proceed with the petition. In this instance, counsel had traveled to GTMO on seven occasions in an effort to get the authorization. The detainee was willing to meet on only two of those occasions. Judge Bates notes the possibility that in this circumstance the outcome might be different if there is evidence of mental incompetence, but there was no such evidence in this instance.

Such cases pose an interesting question for those who are keeping track of the “scorecard” in the GTMO cases. They are not merits decisions, but the number of such instances still seems worth knowing if you want to have a handle on how many cases remain pending overall. I know there have been other petitions dismissed for lack of authorization, but am not sure how often this has happened.


two more GTMO transfers

July 22, 2010

* two more GTMO detainees transferred out

DoD reports that it has transferred two more detainees from GTMO, one to Spain and one to Latvia. That brings the current population to 176.


United States v. Chesser (E.D. Va.)

July 22, 2010

* United States v. Chesser (E.D. Va.)

Zachary Chesser was arrested yesterday based on a criminal complaint alleging that he attempted to provide material support to Al-Shabaab, in violation of 18 USC 2339B (Al-Shabaab was designated an FTO in February 2008). The underlying FBI affidavit, which is attached, describes various attempts to travel to Somalia in order to join and receive training from Al-Shabaab as well as a variety of internet-related activities.

Note in case you are wondering why there is no charge under 18 USC 2339D, which forbids the receipt of military-style training from a DFTO:

18 USC 2339D prohibits the receipt of training, but for good or ill, it does not also cover attempts or conspiracies to receive training.

From the press release:

ALEXANDRIA, Va. – Zachary Adam Chesser, 20, of Fairfax County, Va., was arrested today on charges that he provided material support to Al-Shabaab, a designated foreign terrorist organization.

On Feb. 29, 2008, the U.S. Department of State designated Al-Shabaab as a foreign terrorist organization, describing it as a violent and brutal extremist group based in Somalia with a number of individuals affiliated with Al-Qa’ida. This designation prohibits providing material support or resources to Al-Shabaab.

According to an affidavit filed in court, Chesser, aka Abu Talhah Al-Amrikee, volunteered to federal agents that he attempted on two occasions to travel to Somalia to join Al-Shabaab as a foreign fighter. After he was prevented from boarding a flight from New York to Uganda on July 10, 2010, Chesser allegedly admitted to agents that he intended to travel from Uganda to Somalia. Chesser had attempted to board the plane with his infant son, and court records allege that he brought his son with him as part of his “cover” to avoid detection of his intention to join Al-Shabaab in Somalia.

The court affidavit indicates that in a series of interviews with federal law enforcement, Chesser allegedly discussed in detail how he has maintained several online profiles dedicated to extremist jihad propaganda. These profiles were allegedly used by Chesser to post pro-jihad messages and videos online. These postings allegedly included an article detailing the prerequisites involved in leaving for jihad, which closely follows the steps Chesser took before his July 10 attempt to leave the United States in order to go fight in Somalia.

Chesser_affidavit.pdf


United States v. Rockwood (D. Alaska)

July 22, 2010

* United States v. Rockwood (D. Alaska)

Two “investigative offense” convictions, following plea agreements, in relation to a terrorism investigation in Alaska. Details from the press release appear below, and the plea agreements are attached:

ANCHORAGE, Alaska – U.S. Attorney Karen L. Loeffler and FBI Special Agent in Charge Kevin Fryslie announced that Paul Gene Rockwood Jr., a former King Salmon, Alaska, resident, pleaded guilty today in U.S. District Court to making false statements to the FBI in a domestic terrorism investigation. Rockwood’s spouse, Nadia Piroska Maria Rockwood, also pleaded guilty today to making false statements to the FBI in connection to the investigation of her husband.

At a hearing today before Chief U.S. District Court Judge Ralph R. Beistline in U.S. District Court for the District of Alaska, Paul Rockwood, 35, pleaded guilty to one count of willfully making false statements to the FBI involving domestic terrorism. Under the terms of his plea agreement, Rockwood has agreed to a sentence of eight years in prison followed by three years of supervised released, the maximum penalty that can be imposed for this violation.

Nadia Rockwood, 36, pleaded guilty to one count of willfully making false statements to the FBI. Under the terms of her plea agreement, she has agreed to a sentence of five years of probation.

According to the plea agreements and other documents filed with the court, Paul Rockwood converted to Islam in late 2001, or early 2002, while living in Virginia, and later became a strict adherent to the violent jihad-promoting ideology of cleric Anwar Al-Awlaki. Paul Rockwood held a personal conviction that it was his religious responsibility to exact revenge by death on anyone who desecrated Islam and, while residing in Virginia, he began researching possible targets for execution.

According to the filed documents, after he moved to King Salmon in 2006, Paul Rockwood continued his adherence to Al-Awlaki’s ideology and began researching the method and means to exact revenge on his intended targets, which included U.S. service members. Among other topics, he researched explosives and remote triggering devices. In 2009, he began sharing his ideas about committing acts of domestic terrorism with others, including the possibility of using mail bombs or killing targets by gunshot to the head. By early 2010, he formalized his list to include 15 specific targets all outside the state of Alaska.

In April 2010, Paul Rockwood gave his written target list to his wife, Nadia, who, knowing of its purpose, carried the list with her on a trip to Anchorage. The FBI’s Joint Terrorism Task Force (JTTF) subsequently obtained the target list. On May 19, 2010, JTTF agents questioned Paul Rockwood and provided him a copy of the target list. In response to agents’ questions, Rockwood made false statements, denying he had created such a list, denying the purpose of the list and denying ever having such a list.

JTTF agents also questioned Nadia Rockwood on May 19, 2010, about transporting the target list authored by her husband to another person. In response, Nadia Rockwood made false statements, including deceptively claiming that she had delivered a book or a common letter to another person, among other deceptive explanations.

Final P Rockwood Plea Agreement.pdf

Final Nadia Plea Agreement.pdf


JNSLP call for papers

July 21, 2010

* Call for papers – Journal of National Security Law & Policy

The Journal of National Security Law & Policy (JNSLP) is soliciting articles for its winter 2011 issue. Since its founding in 2003, the JNSLP has quickly become one of the most frequently cited peer reviewed journals and the only one devoted exclusively to national security law and policy.

We accept article submissions on a rolling basis, but to be considered for the winter 2011 issue, submissions must be received by September 30, 2010. Please send submissions to info.

There is no page limit; however, our preferred article length is 5,000-10,000 words. Please include resumes with submissions. For past issues and information about the JNSLP, visit jnslp.com.


forthcoming scholarship

July 21, 2010

* Forthcoming Scholarship

"Searching for Terrorists: Why Public Safety is Not a Special Need"

Duke Law Journal, Vol. 59, No. 844, 2010

RIC SIMMONS, Ohio State University (OSU) – Michael E. Moritz College of Law
Email: simmons.239

This Article critically examines the courts’ application of the “special needs” exception to Fourth Amendment searches that are designed to prevent terrorist attacks. It concludes that the special needs doctrine cannot justify these search regimes, and offers a proposal to ensure that these searches comport with the Constitution.

In the wake of the terrorist attacks of September 11th, local police across the country instituted blanket searches devoid of individualized suspicion at various venues – political protests, sporting events, subway platforms, and public ferries – all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts have relied upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these anti-terrorism searches, and their struggles have produced inconsistent results.

The Article first reviews the history of anti-terrorism searches, which can be roughly divided into three different time periods. In the early 1970’s, in response to an epidemic of hijackings and bombings of public buildings, the government instituted a regime of suspicionless searches at airports and public buildings – earches which are still with us today. During the second period, as the imminent danger of these terrorist actions abated, courts continued to uphold the searches, and suspicionless searches spread to other contexts far removed from the terrorist threat. Finally, in the third era, which began in 2001 and continues to the present day, the government aggressively expanded its use of anti-terrorism searches, creating a new set of challenges for courts attempting to evaluate their constitutionality.

The Article then explains why anti-terrorism searches cannot be justified under the special needs doctrine, and indeed why – in their current form – these searches cannot be justified under any Fourth Amendment doctrine. It then proposes a solution: suspicionless searches to prevent terrorism should be permitted, but only if the fruits of the search cannot be used in a subsequent criminal prosecution. Although the solution at first seems controversial, it represents a reasonable balance between the need to protect the country from terrorist attacks and the need to draw a principled distinction between special needs searches and general searches.

Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing

Afsheen John Radsan
William Mitchell College of Law
Richard W. Murphy
Texas Tech University – School of Law
William Mitchell Legal Studies Research Paper No. 2010-14

Killer drones are the future of warfare. Their use, viewed from one angle, generates few legal problems insofar as drones merely provide another tool for the longstanding military practice of killing enemies from the air. Yet, since the drone’s extraordinary capabilities have greatly expanded the government’s range for finding, tracking, and killing human targets in Afghanistan, Pakistan, and other places, commentators debate whether it is legal to kill suspected terrorists in self-defense or as part of an armed conflict – or whether America’s targeted killing is murder.

Assuming international humanitarian law (IHL) applies, we develop specific regulations for the CIA’s targeted killing of active members of al Qaeda and the Taliban. Our analysis complements a prior article that applied the enemy-combatant cases from the United States Supreme Court (Hamdi and Boumediene) as a parallel path toward internal due process. Whether through IHL or by American due process, we argue for heightened review from the CIA’s Inspector General.

To honor IHL’s principles of distinction and military necessity, we explain why the drone operator must be sure beyond a reasonable doubt that the trigger is being pulled on a functional enemy combatant. To honor IHL’s principle of precaution, we also explain why the CIA’s Inspector General must review every CIA drone strike, including the agency’s compliance with a checklist of standards and procedures for the drone program. To reach these conclusions, we adopt guidance from the International Committee of the Red Cross on who falls within the category of people “directly participating in hostilities,” subjecting them to targeting, and we apply techniques from American administrative law.

We also consider targeting American citizens. A program that establishes a very high certainty for targeting as well as a “hard-look” after each strike helps ensure fairness and accuracy regardless of the citizenship of the people in the cross-hairs. In today’s language of IHL, these are “feasible precautions” for the remote-control weapons of the new century.

The 2009 Naval War College Bluebook (aka International Law Studies Volume 85) “The War in Afghanistan: A Legal Analysis”

Michael N. Schmitt, ed. (Durham)

PART I: THEWAR IN AFGHANISTAN IN CONTEXT

I Afghanistan and International Security

Adam Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II Terrorism and Afghanistan

Yoram Dinstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

III International Legal Dynamics and the Design of Feasible Missions:

The Case of Afghanistan

W. Michael Reisman . . . . . . . . . . . . . . . . . . . . . . . . . 59

PART II: THE LEGAL BASIS FORMILITARY OPERATIONS

IV Afghanistan: Hard Choices and the Future of International Law

John F. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

V The International Legality of US Military Cross-Border Operations

from Afghanistan into Pakistan

Sean D. Murphy . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

VI Legal Issues in Forming the Coalition

Alan Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

PART III: THE CONDUCT OF HOSTILITIES

VII Afghanistan and the Nature of Conflict

Charles Garraway . . . . . . . . . . . . . . . . . . . . . . . . . . 157

VIII Making the Case for Conflict Bifurcation in Afghanistan:

Transnational Armed Conflict, al Qaida and the Limits of the

Associated Militia Concept

Geoffrey S. Corn . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

IX Law ofWar Issues in Ground Hostilities in Afghanistan

Gary D. Solis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

X Combatants

W. Hays Parks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

XI Targeting and International Humanitarian Law in Afghanistan

MichaelN. Schmitt. . . . . . . . . . . . . . . . . . . . . . . . . . 307

PART IV: DETENTION OPERATIONS

XII The Law of Armed Conflict and Detention Operations

in Afghanistan

Matthew C. Waxman . . . . . . . . . . . . . . . . . . . . . . . . 343

XIII US Detention of Taliban Fighters: Some Legal Considerations

Stephane Ojeda . . . . . . . . . . . . . . . . . . . . . . . . . . . 357

XIV Rationales for Detention: Security Threats and Intelligence Value

Ryan Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . 371

PART V: STABILITY OPERATIONS

XV Jus ad Pacem in Bello? Afghanistan, Stability Operations and the

International Laws Relating to Armed Conflict

David Turns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

XVI Stability Operations: A Guiding Framework for “Small Wars” and

Other Conflicts of the Twenty-First Century?

Kenneth Watkin . . . . . . . . . . . . . . . . . . . . . . . . . . . 411

viii

XVII The International Legal Framework for Stability Operations:

When May International Forces Attack or Detain Someone in

Afghanistan?

Marco Sassòli. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

XVIII Afghanistan Legal Lessons Learned: Army Rule of Law Operations

Eric Talbot Jensen and Amy M. Pomeroy . . . . . . . . . . . . . . 465

PART VI: HUMAN RIGHTS ISSUES

XIX Is Human Rights Law of Any Relevance to Military Operations in

Afghanistan?

Françoise J.Hampson . . . . . . . . . . . . . . . . . . . . . . . . 485

XX Human Rights Obligations, Armed Conflict and Afghanistan:

Looking Back Before Looking Ahead

Stephen Pomper . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

Appendix—Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553

"Privileging Asymmetric Warfare?: Defender Duties Under International Law"

NYU School of Law, Public Law Research Paper No. 10-28

SAMUEL ESTREICHER, New York University Law School
Email: samuel.estreicher

Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties.

There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations.

Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.

"Guantanamo by Some Other Name: Qualified Immunity, Constitutional Stagnation and the ‘War on Terror’"

Northwestern University Law Review, Forthcoming

SARAH LYNN LOCHNER, Northwestern University – School of Law
Email: s-lochner2011

In recent years, several people detained by the United States during the “war on terror” have brought Bivens actions seeking compensation from executive officials for alleged constitutional torts. These suits are “inevitable” and will become increasingly common. Opponents and victims of the “war on terror” view a Bivens right of action as an appropriate safeguard for human rights and the rule of law, and have focused on securing the availability such suits. While “war on terror” Bivens plaintiffs face challenges inherent in the “nearly dead” Bivens right of action, the Bivens obstacles to relief are not insurmountable.

The qualified immunity defense which the defendant officials in detainees’ Bivens have claimed nearly universally, on the other hand, has received less attention but likely presents the more formidable barrier to compensatory relief. In January 2009, in Pearson v. Callahan, the Supreme Court overturned the qualified immunity test that had been mandatory since 2001. The old test, from Saucier v. Katz, required courts to consider the constitutional merits of the plaintiff’s claim before determining whether the constitutional right involved was “clearly established” when the defendant official acted. The Pearson Court asserted that courts can decide most cases effectively based solely on the “clearly established” question. It recognized, however, that the Saucier test served important notice-giving and rights-development functions. Therefore, for claims that are unlikely to arise in other law-developing suits where qualified immunity is unavailable, the Saucier sequence remains “especially valuable”.

The Bivens claims brought by “war on terror” detainees fit this “especially valuable” category, but the lower courts already have begun to show disagreement as to whether they should apply Saucier sequencing to these claims. This Comment shows that, indeed, “war on terror” detainees’ constitutional rights and the constitutionality of executive detention policies will not develop through alternative legal procedures. The lower courts therefore should address the constitutional merits of these claims before proceeding to the question of whether any constitutional rights that may have been violated were “clearly established” when the defendant official acted. Additionally, the Supreme Court should make explicit the continued value of the Saucier sequence for assessing qualified immunity in “war on terror” Bivens claims.

Part II of this Comment introduces Bivens actions and the defense of qualified immunity, and reviews the recent Pearson decision recasting the Saucier sequence as discretionary. Part III explains why “war on terror” detainees are precisely the type of plaintiffs in whose suits qualified immunity determinations should continue to require a merits-first test. By analyzing “war on terror” cases seeking injunctive and declaratory relief, habeas corpus petitions, and motions to suppress evidence. Part III shows that detainee rights are unlikely to develop through alternative rights of action. Part IV examines discrepant decisions in the D.C. Circuit and the Ninth Circuit and shows that the lower courts have begun to apply Saucier sequencing inconsistently to the qualified immunity defense in detainees’ Bivens actions. Part IV then predicts the effects of this lower court confusion on the judiciary’s notice-giving and rights-development functions in the U.S. anti-terrorism efforts. Part V.A. addresses common criticisms leveled against Saucier sequencing and demonstrates why they are misconceived in the context of “war on terror” detainee Bivens actions. Finally, Part V.B explains why the judiciary should assume any role at all, rather than defer to the executive and legislative branches, in shaping war-time detainee rights and parameters for future executive war-time action. It argues that judicial involvement is important because of the infrequency of opportunities to clarify and update constitutional laws related to war-time activities and the judiciary’s quintessential task of protecting the rights of unpopular minorities.