forthcoming scholarship – Wittes, Goldsmith, and Chesney blogging on national security law and related topics

September 3, 2010

* forthcoming scholarship – Wittes, Goldsmith, and Chesney blogging on national security law and related topics

Perhaps this one doesn’t quite qualify as “scholarship.” It certainly qualifies as shameless self-promotion.

Ben Wittes, Jack Goldsmith, and I have launched a blog ( We’re calling it Lawfare: Hard National Security Choices (note that we’re putting our own spin on the word “lawfare”). Here’s the description that Ben put in the opening post:

Welcome to Lawfare, a new blog by Robert Chesney, Jack Goldsmith, and myself. For those readers familiar with our prior writings, our subject will come as no surprise: We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters.

We have all written extensively in this space, both individually and collectively. Our purpose in creating this blog is to create a collective outlet for shorter writing that is more responsive to the ongoing events.

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

I hope you find this interesting, and that you’ll pass the link around to anyone you think might be interested. The preliminary posts cover a range of issues including commentary of detention, al Bihani, US v. Ghailani, targeted killing and the al-Aulaki civil suit.

As for the relationship of the blog to the listserv: while some items I post to this list will also show up on the new blog, most will not – and those that do will show up with editorial context rather than just the largely descriptive accounts posted through the listserv. The listserv, for its part, will not ordinarily carry the posts that Ben, Jack, and I put up on the blog (though I may occasionally draw some of them to your attention). In short, I encourage you to stay involved with the listserv, but also to add the blog to your RSS feed or to your daily list of online readings.

United States v. Ghailani (S.D.N.Y. Aug. 17, 2010)

September 3, 2010

* United States v. Ghailani (S.D.N.Y. Aug. 17, 2010)

In a 36-page, partially-redacted opinion that recently became available to the public, Judge Kaplan addressed a motion by Ahmed Ghailani (charged with involvement in the 1998 East African embassy bombings) to suppress testimony from a government witness. In brief, Ghailani argues that this person’s testimony would be fruit of the poisonous tree, apparently on the theory that the government only learned of this person by interrogating Ghailani in a coercive manner and without counsel.

The government responded first that it would inevitably have discovered this individual in any event. Judge Kaplan concluded that the government did not make the case that it would have. (p.22)

The government responded next that the exclusionary rule ought not to be applied in this setting (interrogation for purposes of obtaining national security-related intelligence), as this is beyond the “core application” of the exclusionary rule. Judge Kaplan concluded, however, that the “rationale of the core application doctrine does not apply to this motion as it does in search and seizure cases.” (p.26)

Finally, the government responded that in any event that the relationship between the interrogation of Ghailani and the proposed witness testimony in question is too attenuated to warrant exclusion on taint grounds. Judge Kaplan agreed that attenuation analysis can be applied in this setting, and reviewed the various factors pertinent to that analysis:

Willingness of the witness to testify voluntarily: Judge Kaplan describes the evidence on this point as mixed

Extent to which witness cooperation was induced by use of illegally-obtained evidence: mostly redacted

Proximity of the coercion, the witness’s decision to cooperate, and trial: again, mostly redacted

Government motivation for interrogation: partially redacted, but it is clear that the court found this factor to favor the government.

The opinion concludes by calling for an evidentiary hearing to resolve the uncertainty regarding factors 1-3, and scheduling that hearing for 9/14/10.