United States v. El-Hanafi (S.D.N.Y. Sep. 14, 2010) (superseding indictment)

September 14, 2010

* United States v. El-Hanafi (S.D.N.Y. Sept. 14, 2010) (superseding indictment)

New charges today in the prosecution of Wesam El-Hanafi and Sabirhan Hasanoff, two U.S. citizens who allegedly became involved with al Qaeda over the past two years. The charges include conspiracy to provide material support to al Qaeda in the form of “computer advice and assistance, services, currency, and physical assets” (in violation of 18 USC 2339B); actually providing and attempting to provide material support to al Qaeda in the form of “currency and physical assets…[and] financial support, equipment, and technical advice”; conspiracy to provide services to al Qaeda in the form of “money, equipment, and technological advice” (in violation of 50 USC 1705 – the International Emergency Economic Powers Act); and actually providing such services to al Qaeda. Details from the press release follow below, and the superseding indictment is attached:

NEW YORK – Additional terrorism charges were filed today in a superseding indictment against U.S. citizens Wesam El-Hanafi and Sabirhan Hasanoff for allegedly providing material support, including money and computer assistance, to al-Qaeda, announced Preet Bharara, U.S. Attorney for the Southern District of New York.

The original indictment, which was unsealed on April 30, 2010, charged El-Hanafi and Hasanoff with conspiring to provide material support to al-Qaeda. The superseding indictment contains three additional charges, including providing material support to al-Qaeda and violating the International Emergency Economic Powers Act in connection with their alleged support of al Qaeda.

According to the superseding indictment filed in Manhattan federal court, in February 2008, El-Hanafi traveled to Yemen, where he met with two members of al-Qaeda. While in Yemen, El-Hanafi swore an oath of allegiance to al-Qaeda, received instructions from al-Qaeda on operational security measures and received assignments to perform for al-Qaeda.

Three months later, in May 2008, El-Hanafi met with another individual (CC-1) in Brooklyn, N.Y., to discuss CC-1 also joining al-Qaeda. Hasanoff – who had previously received $50,000 from CC-1 – and El-Hanafi had additional discussions with CC-1 about joining al-Qaeda. During about the same time period, El-Hanafi purchased a subscription for a software program that enabled him to communicate securely with others over the internet.

In June 2008, El-Hanafi directed CC-1 to perform various tasks for al-Qaeda. And at that time, Hasanoff instructed CC-1 not to use his U.S. passport when traveling because a U.S. passport with fewer immigration stamps would be more valuable to al-Qaeda.

Additionally, in August 2008, Hasanoff traveled to New York City where he performed assignments for al-Qaeda. The following year, in April 2009, El-Hanafi purchased seven Casio digital watches over the internet on behalf of al-Qaeda and had them delivered to his residence in Brooklyn.

El-Hanafi, 33, is a U.S. citizen who was born and lived in Brooklyn. Hasanoff, 34, is a dual citizen of the United States and Australia, who also resided in Brooklyn.

The case is assigned to U.S. District Judge Kimba M. Wood and the defendants are scheduled to be arraigned on the superseding indictment on Sept. 16, 2010, at 10:30 A.M. EDT.

El-Hanafi and Hasanoff S4 Indictment.pdf

more forthcoming scholarship

September 14, 2010

* more forthcoming scholarship

Changing of the Guard: The Obama Administration, National Security, and the Ethics of Legal Transitions

Peter Margulies
Roger Williams University School of Law

Roger Williams Univ. Legal Studies Paper No. 95

Expressions of disappointment in the Obama administration’s national security policies have become a familiar trope in progressive legal discourse. This article argues that both the administration and its critics underestimate the difficulty of transitions from periods of overreaching such as the immediate aftermath of 9/11, which I have analyzed in a new book, LAW’S DETOUR: JUSTICE DISPLACED IN THE BUSH ADMINISTRATION (NYU Press 2010). Efforts at transition confront powerful narratives of foreign threats, the pull of patronage for national security consultants and facilities, and a legitimate fear that today’s transition from overreaching will subject former officials to the armchair inquisitions of hindsight bias.

Transitions from overreaching in the American context succeed with the same virtues as transitions abroad: inclusion, institutional repertoire, and redress. Inclusion requires consultation with stakeholders, both inside and outside the executive branch, as well as the provision of notice that ensures continuity and fairness. Institutional repertoire allows the lawyer to consult a range of sources of legal authority. For example, a government lawyer providing advice after September 11 should read customary international law in light of United Nations resolutions passed after the attacks. The lawyer may also cite customary national security law’s canon of presidential actions ratified by Congress, including the World War II destroyer deal with Britain authorized by then Attorney General Robert Jackson. Redress contemplates a remedial pragmatism that blends formal and informal sanctions, as in the South African truth and reconciliation commissions.

To illustrate the transitional legal ethics paradigm, the article analyzes the enduring presence of Guantanamo, the refusal to seek professional discipline for lawyers like John Yoo who supplied advice to the previous administration, and the proliferation of Predator drone attacks in Pakistan. By a narrow margin, the new administration has avoided emulating Yoo’s negative example. However, its management of the transition from overreaching is very much a work in progress.

An e-SOS for Cyberspace

Duncan B. Hollis
Temple University – James E. Beasley School of Law
September 1, 2010

Individuals, shadowy criminal organizations, and nation states all now have the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

Decisions Detained: The Courts’ Embrace of Complexity in Guantánamo-Related Litigation

Joshua Alexander Geltzer
Yale University – Law School

Berkeley Journal of International Law (BJIL), Vol. 29, No. 1, 2010

This Article explores the judicial embrace of complexity in the context of Guantánamo-related litigation. First, the Article sets out the conception of war as defined by the three factors identified above, and the conceptual challenge to each that a war against terrorism has posed. Second, the Article examines a number of key judicial decisions implicating post-9/11 detention at Guantánamo to reveal how courts have shied away from delving too deeply into the first two factors while concentrating on the third. Next, the Article suggests institutional reasons for that emphasis: in particular, the avoidance of issues potentially considered political questions, and the evasion of clear and potentially unwinnable conflict with other branches. Fourth, the Article explores the benefits of that choice to a handful of detainees by demonstrating how the choice has allowed the courts to intervene in case-specific ways and, in so doing, to secure the release of a few detainees. Finally, the Article reveals the costs of that choice by showing how uncertainty has repeatedly traveled up and down the judicial hierarchy, delaying resolution of central issues that, indeed, remain unsettled today, all the while potentially endangering the judiciary’s institutional standing in war-time. Throughout, the Article argues that courts have refused to define time or space as limiting factors in the war against terrorism, instead focusing on the means employed. Emphasizing that distinctly difficult defining factor has made the courts’ task easier, enabling them to issue narrow rulings through reinterpretable opinions. Institutional reasons explain this judicial approach: in particular, the courts have sought to avoid clear intrusion into the sphere of political questions as well as to evade clear and potentially unenforceable conflict with the political branches. While the benefits of this approach have included particularized judicial intervention, the costs have loomed far larger, including persistent uncertainty and potential institutional diminution for the judiciary.

forthcoming scholarship

September 14, 2010

* Forthcoming Scholarship

"The War on Terror, Constitutional Pathology, and United States v. Klein"

Florida International University Legal Studies Research Paper No. 10-31

HOWARD M. WASSERMAN, Florida International University – College of Law
Email: howard.wasserman

In "The Irrepressible Myth of Klein" (University of Cincinnati Law Review, 2010), I discuss the meaning, scope, and continued relevance of the Supreme Court’s historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power – the myth – of Klein as constitutional precedent.

"Nonstate Actors in Armed Conflicts: Issues of Distinction and Reciprocity"


DAPHNÉ RICHEMOND-BARAK, Radzyner School of Law, Interdisciplinary Center Herzliya
Email: barak.daphne

This chapter considers how concepts designed to regulate state-to-state interaction apply to conflicts involving nonstate actors – be they guerilla groups, terrorist organizations, or private military contractors. The “principle of distinction” holds that civilians and combatants are clearly distinguishable protagonists on or near the battlefield. “Reciprocity” in international law refers to the expectation by a belligerent state that other state parties to a conflict will respect similar legal and behavioral norms – non-use of prohibited weaponry, minimization of collateral damage, and humane treatment of prisoners of war. I focus on reciprocity and distinction because they constitute meta-issues whose resolution determines the applicability of accepted legal principles to virtually all modern conflicts. A close examination of these topics suggests that reciprocity and the principle of distinction are of central importance in conflicts involving nonstate actors. On the issue of distinction, I argue for a more expansive understanding of the notion of combatant – an understanding that allows for the greater application of international humanitarian law to nonstate actors, an easier implementation of the principle of distinction, and improved protection of civilian populations. On the issue of reciprocity, I argue that most of international humanitarian law is binding in most conflicts on most actors (whether or not the parties behave reciprocally). The only situation in which a state may not be bound by all of humanitarian law is when an opposing nonstate party repeatedly violates international humanitarian law in an international armed conflict.

"International Security and International Law in the Northwest Passage"

Vanderbilt Journal of Transnational Law, Vol. 42, pp. 1109-1132, 2009

JAMES KRASKA, U.S. Naval War College, Foreign Policy Research Institute (FPRI), Woods Hole Oceanographic Institution – Marine Policy Center, International Institute for Humanitarian Law, Loyola University of Chicago – Inter-University Seminar on Armed Forces and Society (IUS)
Email: james.kraska

Concern over the loss of sea ice has renewed discussions over the legal status of the Arctic and subarctic transcontinental maritime route connecting the Atlantic and Pacific Oceans, referred to as the “Northwest Passage.” Over the past thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation.Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of the fragile Arctic environment, Ottawa has sought to exercise greater authority over the Passage. This Article suggests that Canada can best achieve widespread global support for managing its maritime Arctic by acknowledging that the Passage constitutes an international strait and working through the International Maritime Organization to develop a comprehensive package of internationally accepted regulations.

"The Choice of Law Against Terrorism"

Journal of National Security Law, Forthcoming
Notre Dame Legal Studies Paper No. 10-20

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

"Catch and Release: A Role for Preventive Detention Without Charge in Canadian Anti-Terrorism Law"

Institute for Research on Public Policy Study, No. 7, July 2010

CRAIG FORCESE, University of Ottawa – Faculty of Law
Email: cforcese

Since 2001, preventive detention has become almost commonplace as a means of “incapacitating” terrorist networks. No other development — with the possible exception of the use of extreme interrogation techniques — has been as controversial, or as uncomfortably reconciled with conventional legal practices. But there are legitimate uses of preventive detention that respect the legal principles of protection of civil liberties.

This study proposes lessons for Canada from state practices in the United States, the United Kingdom and Australia since 9/11 that might reasonably guide the development of an appropriate system of preventive detention; specifically, one that is maximally effective within a sphere of tolerable restrictions on civil liberties. It does so in four sections. In the first section, the study compares several models that are essentially systems of preventive detention. In the second section, it examines the Canadian legal environment in which any discussion of preventive detention must be situated. The study highlights the extent to which Canadian law already empowers the state to preempt terrorist activity. The author concludes that while the gap that might reasonably be filled by a separate system of preventive detention is narrow, it does exist. In the third section, the study proposes, first, criteria for measuring the public safety effectiveness of such a system and, second, a zone of tolerable civil liberty restrictions. In the last section the author draws on these criteria and prior practice to propose a model for the Canadian system of preventive detention.

The author proposes a model that balances effectiveness and civil liberties. He identifies as a legitimate concern the narrow circumstances where the state (1) has reason to believe that a terrorist attack will occur; (2) has reason to believe that a particular group is behind the plot and that the suspect is a member of that group; but (3) has no information, other than this belief, to connect that particular individual to the plot. In these circumstances, conventional legal instruments allowing the state to disrupt that threat through detention of the individual may not be available. In that narrow space, there are arguments in favour of preventive detention.

The author suggests that section 83.3 of the the 2001 Anti-terrorism Act, the anti-terrorism provision allowing short-term detention in circumstances where conventional arrest powers could not be exercised, was a reasonable approach. He proposes a revamped section-83.3 process that adds certain other civil liberties safeguards and also permits the constrained use of secret evidence and special advocates. The net result is a system of “catch and release” (or catch and release subject to a peace bond) that focuses on disruption of a threat via the short-term detention of persons who are tied to specific threats. The author rejects approaches that detain solely on the basis of perceived inherent dangerousness.

"The Federalist and Executive Power"

APSA 2010 Annual Meeting Paper

JAMES P. PFIFFNER, George Mason University
Email: pfiffner

Occasionally, the United States is confronted with the dilemma that, in emergencies, presidents may find it necessary to take actions that ignore constitutional restraints and break the law. In such cases, a strict adherence to the law might constrain the president from acting quickly to protect national security. Some have argued that the president has the constitutional authority to take whatever actions are deemed to be necessary, regardless of the law, and that this authority is available indefinitely as long as it is exercised under the commander in chief authority conferred in Article II. After reviewing the arguments in The Federalist, this paper argues that in crises presidents may legitimately take extraordinary actions outside their constitutional authority, but their actions are legitimate only insofar as they are transparent and presidents seek congressional sanction as soon as the immediate emergency has passed.

"Peace Unkempt: How Ambiguities in Public International Law and International Humanitarian Law Contributed to the Failed U.N. Intervention in Somalia"

BJORN C. SORENSON, Skadden, Arps, Slate, Meagher & Flom LLP
Email: bjorn_sorenson

The collapse of the U.N. mission in Somalia was directly precipitated by three inter- related ambiguities in the relations between Somalia, the United Nations, and the United States. First, armed U.N. intervention in a failed state presented complex issues regarding the relation between Somalia and the United Nations, functional distinctions between international armed conflict and non-international armed conflict, and the applicability of international humanitarian law to U.N. military forces and belligerents in a failed state. Second, the Security Council’s approval of humanitarian intervention in Somalia provided U.N. forces a conflicting mandate: to establish a “caretaker” government, effectively overriding Somalia’s sovereignty, while also conducting a “peacekeeping” operation that deferred to the sovereign will of Somalia’s internal, domestic peace process. Finally, limited rules of engagement hampered UNOSOM missions that ostensibly acted under a banner of U.N. neutrality while they attempted to enforce a Security Council-issued “warrant” for the arrest of Aideed.