ABA Standing Committee on Law and National Security Seminar on Teaching National Security Law (Oct. 1-2)

August 25, 2010

* ABA Standing Committee on Law and National Security: Seminar on Teaching National Security

This is going to be a fascinating event, not to be missed. From ABA SCOLANS (see the attached documents):

On behalf of the ABA Standing Committee on Law and National Security, we invite you to a Seminar on Teaching National Security Law on Saturday, October 2 to be held at the L’Enfant Plaza Hotel, 480 L’Enfant Plaza, SW, in Washington, DC, featuring State Department Legal Advisor Harold Koh as the keynote luncheon speaker. The opening dinner will be held on Friday, October 1 at the Army and Navy Club featuring John Rizzo as the keynote dinner speaker. A letter of invitation, program and registration form is attached. You can also register online at www.abanet.org/natsecurity.

NOTE: GUESTS STAYING AT THE L’ENFANT PLAZA HOTEL MUST REGISTER BY SEPTEMBER 6 TO RECEIVE THE NEGOTIATED RATE OF $139.00; REFERENCE THE “ABA STANDING COMMITTEE ON LAW AND NATIONAL SECURITY TEACHING NATIONAL SECURITY LAW CONFERENCE” WHEN MAKING YOUR RESERVATION.

If you teach national security law or are involved with the process of teaching national security law, this seminar is for you! We hope to see you there.

Holly McMahon

Staff Director

Standing Committee on Law and National Security

740 15th Street, NW

Washington, DC 20005

(202) 662-1035

(202) 638-3844 fax

www.abanet.org/natsecurity

October 2 2010 registration form.doc

Oct 2nd Program.doc

Lawyer Jurga letter of invitation (2).pdf


Hakeemy v. Obama (D.D.C. Aug. 24, 2010)

August 25, 2010

* Hakeemy v. Obama (D.D.C. Aug. 24, 2010)

Citing multiple failed attempts to obtain authorization from GTMO detainee Adel Al Hakeemy, Judge Leon has denied a motion by Hakeemy’s would-be habeas attorneys for an indefinite stay and instead has granted a motion to dismiss the habeas petition (without prejudice, in the event Hakeemy ever does want to pursue habeas relief). The short order to this effect is here.


ABA SCOLANS fall speaker series announcement

August 20, 2010

* Fall Speaker Series, ABA Standing Committee on Law and National Security

This is a flat-out impressive lineup of events. Note that the topic of the Hays Parks presentation on November 18 is the DOD Law of War Manual…which seems to imply that we are likely to actually see the long-awaited revision by that date, which is itself an interesting bit of news.

From SCOLANS:

The ABA Standing Committee on Law and National Security is proud to announce its Fall Speaker Series.

September 15 – 8:00 a.m. breakfast – University Club – Congresswoman Jane Harman on "The Authorization for Use of Military Force"

October 22 – 12:00 Noon luncheon – Army Navy Club – Richard Clarke, on "Cyber Security"

November 18 – 8:00 a.m. breakfast – University Club – W. Hays Parks on "National Security Law in Practice: The Department of Defense Law of War Manual"

Details and registration form attached.

Holly McMahon

Staff Director

Standing Committee on Law and National Security

740 15th Street, NW

Washington, DC 20005

202-662-1035

FAX: 202-638-3844

www.abanet.org/natsecurity

SAVE THE DATES — 20th Annual Review of the Field of National Security Law – November 4 and 5, 2010 – Washington, DC

Fall Speaker Series Flyer 2010.pdf


Executive Order – Classified National Security Information Programs for State, Local, Tribal, and Private Sector Entities

August 20, 2010

* Executive Order – Classified National Security Information Programs for State, Local, Tribal, and Private Sector Entities (Aug. 18, 2010)

See here: http://www.whitehouse.gov/the-press-office/2010/08/18/executive-order-classified-national-security-information-programs-state-


al-Qurashi v. Obama (D.D.C. AUg. 3, 2010) (GTMO suppression hearing decision)

August 19, 2010

* al-Qurashi v. Obama (D.D.C. Aug. 3, 2010) (GTMO suppression hearing decision)

In a 50-page opinion made public today (but issued on August 3), Judge Huvelle denies a motion to suppress certain evidence in connection with Sabry Mohammad Ebrahim al-Qurashi’s habeas petition. The opinion is posted here. In brief, the motion presented a factual dispute as to whether al-Qurashi was abused while in Pakistani custody after being arrested in Karachi in February 2002, prior to his interrogation by an FBI agent the next day.

Among other interesting aspects, the opinion:

– holds that a statement must be suppressed if “involuntary,” with the voluntariness standard from criminal law providing the relevant measure. To wit:

“This requires the Court to ask whether "the confession is the product of all essentially free and unconstrained choice by its maker," or whether "his will has been overborne and his capacity for self-determination [has been] critically impaired …." Id. The answer to this question is detcl1uined by considering "the totality of all of the surrounding circumstances -both the characteristics of the accused and the details of thee interrogation." (slip op. at 19)

– holds that the burden is on the government to prove by the preponderance of the evidence that the voluntariness test is satisfied (slip op. at 19)

– holds that the government met its burden in this instance:

“the Court is persuaded that Agent****** testimony is to be credited and that this testimony, as elaborated upon herein, in conjunction with other evidence, sustains the government’s burden of establishing voluntariness. The Court also finds, as Judge Kennedy did in Esmail, that petitioner’s "descriptions of abuse, particularly the ones made to his attorneys Sh0l11y before the merits hearing, are exaggerated:’ see 2010 WL 1798989, at *5, and therefore, they cannot be credited.” (slip op. at 22)


forthcoming scholarship

August 19, 2010

* Forthcoming Scholarship

"Characterization of Conflict: The Case of Iraq"

Chatham House Project on Categorization of Conflict Discussion Paper

MICHAEL N. SCHMITT, Durham University Law School, UK
Email: schmitt

The draft piece looks at the changing characterization of the conflict in Iraq from inception of hostilities: international armed conflict, belligerent occupation, and non-international armed conflict.

Legality of Lethality: Paradigm Choice and Targeted Killings in Counterterrorism Operations

Adam Ross Pearlman
March 23, 2010

Since 9/11, academics and government officials alike have debated whether counterterrorism efforts fit into the laws of war, or are instead criminal law enforcement endeavors. Each legal paradigm, in addition to the authorities granted to the intelligence community, brings with it specific powers and limitations. This paper briefly surveys the legal authorities and implications for the targeted killings of terror suspects within each paradigm: the law of armed conflict, criminal law, and covert action, and argues for the justification of the practice within each. It is not meant to be an exhaustive analysis, but rather serves to raise the key legal issues involved, and concludes by pointing out the policy aspects that ultimately drive whether and how we continue the practice.

Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict[ed. note: previously only the abstract was available for this one, but now the paper itself is posted as well]

Geoffrey S. Corn
South Texas College of Law
Journal of International Humanitarian Legal Studies, Forthcoming

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.

This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct

Adam M. Gershowitz
University of Houston Law Center
Geoffrey S. Corn
South Texas College of Law

Berkeley Journal of Criminal Law, Forthcoming

Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.


Abdah v. Obama (D.D.C. July 21, 2010) (granting habeas to GTMO detainee Latif)

August 16, 2010

* Abdah v. Obama (D.D.C. July 21, 2010) (granting habeas relief to GTMO detainee Adnan Farhan Abd al Latif)

In a 28-page opinion posted here, Judge Kennedy has granted the habeas petition of a Yemeni detainee named Adnan Farhan Abd al Latif (ISN 156). Unfortunately, this one is very heavily redacted, to the point where it is hard to assess.The long and short of it appears to be that Judge Kennedy did not find reliable some particular item or items of evidence upon which the government sought to rely, and as a result he concluded that the government failed to prove by a preponderance of the evidence that Latif had been part of al Qaeda or the Taliban.

One interesting aspect also worth mention: Judge Kennedy notes that the DC Circuit recently has suggested in dicta on multiple occasions that the preponderance standard might not actually be required as a constitutional matter, but he does not address whether he would have reached a different conclusion had he employed some lower standard in this instance.