Upcoming Event: “WikiLeaks — What Now?”, Monday, November 1, 2010, 3:30 pm

October 29, 2010

* Upcoming Event: "WikiLeaks — What Now?", Monday, November 1, 2010, 3:30 pm

The Georgetown Center on National Security and the Law

Invites You to Attend

WikiLeaks – What Now?

Since WikiLeaks released the Iraq War Logs, the legal implications of the controversy and the disclosure of classified information have become increasingly imperative. Implications for future classification procedures, potential First Amendment arguments, and the impact of the Internet Act on secrecy dynamics will form the nexus of this very important conversation.

This panel is part of the public discussions series sponsored by the Center entitled “Emerging Technology and National Security.”


Elizabeth Baker, Partner at Zwillinger Genetski, and former in-house counsel for Yahoo! Inc.

Dakota Rudesill, Visiting Assistant Professor and Interim Director of the Federal Legislation and Administrative Clinic, former Policy, Plans, and Requirements directorate of the Office of the Director of National Intelligence (ODNI)

Missy Ryan, Acting Bureau Chief, Mexico and Central America, Former Deputy Bureau Chief, Iraq, Thompson Reuters

Moderated by:

Professor Laura K. Donohue

Opening remarks by:

Professor David Luban

Acting Director, Center on National Security and the Law

Monday, November 1, 2010

3:30 pm – 5:30 pm

Gewirz 12th Floor

Georgetown Law Center

Reception to Follow

Please RSVP to rsvp2.

Please contact nationalsecurity with questions.

New York Times v. Dep’t of Treasury (S.D.N.Y. Oct. 13, 2010)

October 27, 2010

* New York Times v. Dep’t of Treasury (S.D.N.Y. Oct. 13, 2010) (permitting FOIA request for identity of OFAC licensees)

Well, it might be *very* interesting to see what comes of this. The New York Times and reporter Ron Nixon brought a FOIA action against the Treasury Department seeking the identity of individuals who have obtained licenses from OFAC, meaning that the licensee can transact with or in countries that otherwise are subject to sanctions under IEEPA. Treasury resisted on grounds of the “personal information” exemption (5 USC 552(b)(6)), but the magistrate judge sided with the plaintiffs. The full opinion appears below:

Slip Copy, 2010 WL 4159601 (S.D.N.Y.)
(Cite as: 2010 WL 4159601 (S.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court,

S.D. New York.

The NEW YORK TIMES COMPANY and Ron Nixon, Plaintiffs,



No. 09 Civ. 10437(FM).

Oct. 13, 2010.


FRANK MAAS, United States Magistrate Judge.

*1 In this action brought pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiffs The New York Times Company and Ron Nixon (together, the "Times") seek the identities of individuals who have been granted a license by the Office of Foreign Assets Control ("OFAC") to conduct activities in or with foreign countries that would otherwise be unlawful under United States economic sanctions programs. The Times seeks summary judgment on the ground that defendant United States Department of the Treasury ("Treasury"), of which OFAC is a part, has improperly withheld the names of these individuals. (ECF No, 9). Treasury has cross-moved for summary judgment, contending that the withholding of the names was appropriate under 5 U.S.C. § 552(b)(6), the FOIA exemption for personal information ("Exemption 6"). (ECF No. 17). For the reasons that follow, the Times’ motion for summary judgment is granted, and Treasury’s motion is denied.

I. Background

The relevant facts are undisputed. (See ECF No. 22 ("Times Reply Mem.") at 1 n.1 (accepting Treasury’s account of the only three disputed facts)). Those facts may be summarized as follows:

A. OFAC Licenses

OFAC is the unit within Treasury principally responsible for administering United States economic sanctions programs. (Decl. of Marshall H. Fields, Jr., dated Apr. 26, 2010 (ECF No. 18) ("Fields Decl."), ¶ 3). These economic sanctions programs, directed at foreign states or regimes and individuals within foreign states, aim to further United States foreign policy or national security. (Id .). Pursuant to the programs, OFAC acts to "impose controls on transactions and to freeze, or ‘block,’ certain property in which any foreign country or foreign national has any interest that is within the United States or in the possession or control of U.S. persons." (Id.). OFAC currently administers more than twenty sanctions programs, including those directed at Iran, Burma, Cuba, and Sudan, as well as "list-based" programs directed at specific regimes or individuals, such as those in Syria and Iraq and the former regime of Charles Taylor in Liberia. (Id. ¶ 4).

OFAC has the discretion to issue licenses allowing individuals, corporations, and other organizations to engage in activities, transactions, or travel that would otherwise be prohibited by the sanctions programs. These licenses permit far-ranging activities, including visits to immediate family in sanctioned countries, research and education, humanitarian activities, and a variety of corporate transactions. (See Decl. of David E. McCraw, dated Mar. 1, 2010 (ECF No. 11) ("McCraw Decl."), Ex. B (Licensing Categories & Sub-Categories)). OFAC issues some licenses pursuant to specific licensing policies set forth in the Code of Federal Regulations; others are issued on a case-by-case basis for transactions not addressed in the regulations. (Fields Decl. ¶ 10).

B. FOIA Request

*2 On December 19, 2007, Ron Nixon, a reporter assigned to the Business and Financial News Bureau of the Times submitted a FOIA request to Treasury. (See McCraw Decl. ¶ 2 & Ex. A). The request sought "access to and copies of [the OFAC] database of individuals and companies with OFAC licenses." (Id. Ex. A). While the request was pending, the Times "notified OFAC that it would limit [its r]equest by excluding information pertaining to [certain] categories of OFAC licenses," including those related to family visits, sports, education, religious activities, journalistic activity, and official government business. (Id. ¶ 4; Fields Decl. ¶ 6).

In September 2008, the Times initiated a FOIA action in this Court to "compel Treasury to release the spreadsheets of licensees." (McCraw Decl. ¶ 7; see also The New York Times Co. v. U.S. Dep’t of Treasury, No. 08 Civ. 8341(PGG) (filed Sept. 29, 2008) ("Prior Action")). In March 2009, Treasury produced to the Times a redacted version of a computer printout listing both corporate and individual OFAC licensees. (McCraw Decl. ¶ 8). In the computer printout, Treasury identified the corporate licensees, but redacted the names of more than 9,000 individual licensees. (See id.; Fields Decl. ¶¶ 7-8; Decl. of Jacob P. Goldstein, dated May 10, 2010 (ECF No. 23), ¶¶ 4-5 & Ex. A).

On June 22, 2009, the Times and Treasury entered into a stipulation to dismiss the Prior Action. (McCraw Decl. Ex. D). Pursuant to that stipulation, the Times reserved the right to challenge, through the FOIA administrative process, the denial of information about five fields from the OFAC license database, which concerned the individual licensees. [FN1] (Id.; see also Fields Decl. at 4 n.1). In July 2009, the Times brought that administrative appeal, which was denied on September 18, 2009. (McCraw Decl. ¶¶ 12-13 & Exs. E, F).


C. Procedural History

On December 23, 2009, the Times filed this lawsuit. (ECF No. 1). On March 3, 2010, the Times filed its motion for summary judgment, arguing that, as a matter of law, Treasury improperly withheld the names of individual licensees. (ECF No. 9). On April 26, 2010, Treasury filed a cross-motion for summary judgment, in which it asserts that the names of individual licensees were properly redacted pursuant to Exemption 6 of FOIA. (ECF No. 17). That same day, the parties consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 16).


Through its enactment of FOIA, Congress endorsed "a general philosophy of full agency disclosure." Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting S.Rep. No. 89-813, at 3 (1965)). "[FOIA] seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 (1973). Under the statute, agencies must disclose their records upon request unless they can show that the requested records fit within at least one of nine enumerated exemptions. See 5 U.S .C. § 552(b) (listing exemptions); Mink, 410 U.S. at 79. The exemptions are "explicitly made exclusive." Mink, 410 U.S. at 79. Citizens may file a challenge to an agency’s response to a FOIA request in a district court, which "shall determine the matter de novo [with] the burden … on the agency to sustain its action." 5 U.S.C. § 552(a)(4).

*3 Summary judgment is the preferred vehicle for resolving FOIA cases. "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994). The agency can meet the latter requirement through affidavits and declarations "giving reasonably detailed explanations why any withheld documents fall within an exemption." Id. Typically the agency will submit descriptions of the withheld or redacted documents, along with affidavits or declarations from relevant individuals. If the agency’s submissions are adequate on their face, the district court may "forgo discovery and award summary judgment," unless the plaintiff makes a showing of bad faith sufficient to impugn the agency’s declarations, provides "tangible evidence that an exemption claimed should not apply," or shows that summary judgment is otherwise inappropriate. Id. (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)).

In resolving a motion for summary judgment in a FOIA case, the Court must construe the statute broadly in favor of public disclosure and must construe the exemptions narrowly. See U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999). Similarly, in keeping with FOIA’s goal of full disclosure, all doubts must be resolved in favor of disclosure. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir.2009); Grand Cent., 166 F.3d at 478.

III. Discussion

A. Exemption 6

Exemption 6 protects "personnel and medical files and similar files" when their disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The exemption thus is intended to "protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." U.S. Dep’t of State v. The Washington Post Co., 456 U.S. 595, 599 (1982).

To determine whether information is protected by Exemption 6, the Court first must determine whether it is contained in "personnel and medical files and similar files." See Associated Press v. U.S. Dep’t of Defense, 554 F.3d 274. 291 (2d Cir.2009). The Supreme Court has read the "similar files" provision broadly, finding that "[t]he exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual." Washington Post Co., 456 U.S. at 602 (quoting H.R.Rep. No. 89-1497, at 11 (1966)) (alteration in original).

If the Court finds that the information is kept in the type of file covered by Exemption 6, it then must "balance the public need for the information against the individual’s privacy interest in order to assess whether disclosure would constitute a clearly unwarranted invasion of personal privacy." Associated Press, 554 F.3d at 291. To do so, the Court must determine first whether there is more than a de minimis privacy interest in the information. See Fed. Labor Relations Auth. v. U.S. Dep’t of Veterans Affairs, 958 F.2d 503, 510 (2d Cir.1992) (only a "measurable" privacy interest is required to trigger application of balancing test). Only if there is such a privacy interest does the Court consider the public interest that disclosure would serve. [FN2] Associated Press, 554 F.3d at 291.

FN2. Unlike all other FOIA exemptions (as to which such considerations are prohibited), Exemption 6 requires the Court to consider the proposed use of the information by the requester. See Fed. Labor Relations Auth., 958 F.2d at 509 ("Only where a privacy interest is implicated does the public interest for which the information will serve become relevant and require a balancing of the competing interests.").

*4 The Times does not dispute that the information regarding individual licensees is contained in "similar files" within the meaning of Exception 6, nor could it, as numerous courts have determined that a list of names is a "similar file" for Exemption 6 purposes. See, e.g., Wood v. FBI, 432 F.3d 78, 87 (2d Cir.2005); Lardner v. Dep’t of Justice, 638 F.Supp.2d 14, 24 (D.D.C.2009). Accordingly, the Court turns to the balancing of the individual licensees’ privacy interest in their identities against the public’s interest in disclosure.

B. Privacy Interest

The privacy interest in a list of names is not inherently substantial. Instead, "whether disclosure of a list of names is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue." U.S. Dep’t of State v. Ray, 502 U.S. 164, 177 n.12 (1991) (internal quotation marks omitted & emphasis added); see also Wood, 432 F.3d at 88 (citing Ray ).

Treasury argues that "the names of the individual OFAC licensees are exactly the kind of highly personal information that implicates a substantial privacy interest under FOIA." (ECF No. 21 ("Treasury Mem.") at 12). The agency further contends that the disclosure of names on this list will expose the individuals to possible embarrassment, scorn, and harassment. (Id. at 13-15). In particular, Treasury maintains that disclosure "would associate [the licensees] with sanctioned nations or entities and could result in unwarranted contact or harassment from members of the public or the media, or a stigmatizing effect on their personal or professional character." (Id. at 14).

The Times counters that a privacy interest is not established where stigmatization is unlikely. (Times Reply Mem. at 5, 8). It further maintains that the risk of any negative consequences here resulting from disclosure is minimized because there are several thousand similarly-situated individuals. (Id. at 6). Finally, the Times seeks to distinguish these licensees from other individuals whose identities have been shielded from disclosure under Exception 6 on the ground that the licensees affirmatively sought to interact with the federal government by seeking–and in fact receiving–a special government benefit. (ECF No. 10 ("Times Mem.") at 10-11).

It certainly is conceivable that disclosure of the individual licensees’ identities could result in unwanted contact or harassment for some of the licensees. Indeed, many of the sanctioned countries and entities are considered controversial within the United States, and it thus is possible that the licensees’ mere association with such countries or entities would generate negative responses from certain elements of American society. The licensees’ privacy interest is therefore more than de minimis.

The difficulty here, however, is that this alleged harm is entirely speculative. Treasury simply has not shown that the licensees face an imminent, or even a known, risk of harassment, nor has it shown that their physical safety is at issue. Indeed, the most likely "harm" identified by Treasury is that members of the public or the media will utilize other sources to determine how to contact the licensees and then will do so. (See Fields Decl. ¶ 9). The mere fact that someone might seek to interview a licensee does not mean, however, that the individual would be subject to opprobrium or harassment.

*5 Treasury’s arguments about the dangers of disclosure are further weakened by the lack of evidence that any of the corporate licensees–whose identities were released to the Times–have faced any negative consequences following that disclosure. [FN3] Admittedly, the reaction of the public or media to individual licensees might differ from the reaction to corporate licensees, and the corporate licensees might have the resources to deal more effectively with any harassment or stigmatization. Nonetheless, the fact that Treasury has not adduced any evidence that any corporate licensee suffered negative consequences from the disclosure of its association with a sanctioned country or entity casts additional doubt on Treasury’s suggestion that individuals would face such negative consequences.

FN3. I utilize the parties’ term of "corporate licensees," but note that the database entries regarding these entities apparently include all licensees that are not individuals. (See Fields Decl. ¶ 7) (referring to "companies or other entities").

Indeed, the only "evidence" that Treasury has proffered concerning the threat of stigmatization is a declaration from the official who oversees the processing of FOIA requests in OFAC who states that stigmatization "could" result. (Fields Decl. ¶¶ 2, 9). Treasury has failed to offer any evidence– anecdotal or otherwise–that supports this conclusory assertion.

In contrast to the speculative harm that forms the basis for its reliance on Exception 6 here, in cases in which courts have found a significant privacy interest, the government has identified far more definite harms. For example, in Washington Post, the plaintiff newspaper filed a FOIA request during the Carter administration seeking documents indicating whether two high-placed officials in Iran’s Revolutionary Government were United States passport holders, a request it said could be satisfied by indicating whether the individuals were United States citizens. 456 U.S. at 596. At the time, both men were Iranian nationals living in Iran. Id. In response to the request, the State Department provided the affidavit of an Assistant Secretary of State who alleged that any confirmation that the Iranians held United States passports "would cause a real threat of physical harm" to them. [FN4] Id. at 597.

FN4. In his affidavit, the Assistant Secretary also opined that: "An official of the Government of Iran who is reputed to be an American citizen would, in my opinion, be in physical danger from some of the revolutionary groups that are prone to violence." Id . at 597 n.2.

Similarly, in Ray, Haitian citizens who attempted to emigrate to the United States, but who had been intercepted and returned to Haiti, were interviewed as part of the State Department’s effort to monitor Haiti’s compliance with its assurance that it would not harass or prosecute such individuals upon their return to Haiti. 502 U.S. 167-68. The plaintiffs sought access to the names of those interviewed. Id. at 175. The Supreme Court held that while the danger was not quantifiable, the interview program existed solely because of the risk that these individuals would be harassed upon their return, and, thus, there clearly was some risk of such harm. Id. at 176-77.

Here, by comparison, the best Treasury can do is opine that disclosure "could" result in scorn, harassment, stigmatization, as well as efforts to contact the licensees. (Fields Decl. ¶ 9). However, to the extent that disclosure does expose the licensees to some possibility of harassment, the disclosed association is one that the licensees affirmatively and voluntarily chose. This differs from situations in which an individual has not affirmatively interacted with the government. Thus, in Associated Press, revelation of the names of family members of Guantanamo detainees would have disclosed an affiliation that those individuals had not sought. 554 F.3d at 292. Similarly, in Wood, the government employees assigned to an internal investigation presumably had not asked to be assigned to that investigation. 432 F.3d at 82.

*6 This is not to say that individuals who seek government benefits lose all expectation of privacy. Rather, it simply suggests that when focusing on the consequences of disclosure of an individual’s association with a particular list, the degree to which such an association is voluntary is relevant. Here, the individual licensees applied for–and received–a special government benefit pursuant to which they were exempted from generally applicable laws.

Moreover, the fact that there are more than 9,000 similarly-situated individuals reduces the risk of harm resulting from disclosure of the licensees’ identities. See Washington Post Co. v. U.S. Dep’t of Agric., 943 F.Supp. 31, 34 (D.D.C.1996) ("Indeed, it is precisely because the list is so large and the information so generic that the individual privacy interests are so small."). Accordingly, no individual licensee will be singled out by appearing on this list.

In sum, although the privacy interest in this case is more than de minimis, it is fairly minimal as it is based solely on the speculative argument that individuals who voluntarily applied for a government benefit will be harassed because they received such a benefit.

C. Public Interest

Because the privacy interest is more than de minimis–albeit minimal–the Court must balance the individual licensees’ privacy interest against the public interest to be served by disclosure. The only recognizable type of public interest is that served by FOIA itself–providing transparency and accountability for agency action. See Associated Press, 554 F.3d at 285 ("[T]he Supreme Court has made clear that there is only one relevant interest, namely, ‘to open agency action to the light of public scrutiny.’ ") (quoting U.S. Dep’t of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 772 (1989)).

"Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose." Ray, 502 U.S. at 177-78. Here, the names of the licensees are the direct product of agency decisionmaking. Indeed, disclosure of the licensees’ names is the only way for the public to account for OFAC’s actions. As many applications for OFAC licenses are considered on a case-by-case basis, there seemingly is no metric that would allow the public to oversee OFAC’s actions in this area other than to see the product of that decisionmaking, i.e., the names of the approved licensees.

Treasury argues that the names of the licensees in fact provides no information other than who the licensees are, which it characterizes as useless information serving no public interest. (See Fields Decl. ¶ 10). As the Times correctly notes, however, "[i]f everyone on the list were a widely known public figure with connections to the administration, that would suggest something powerfully important about the licensing process; if no one on the list were known to the general public, that would suggest something else." (Times Reply Mem. at 15). Thus, this is not a case in which the plaintiffs seek "information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct." Reporters Comm., 489 U.S. at 773. Rather, because the names on the list are the direct product of agency decisionmaking, there is an inherent public interest in their disclosure. Cf. Lardner, 638 F.Supp.2d at 28 ("Fundamentally, disclosure of the requested information shines a light on the most basic information about the executive’s exercise of his pardon power–who is and who is not granted clemency by the President.").

*7 Of course, the Times does not anticipate that all of the names on the list will be administration insiders whose connections will be self-evident. Rather, it believes that it can evaluate OFAC’s decisions for any patterns that might provide insight into–and expose any possible deficiencies in–OFAC’s decisionmaking by cross-referencing the names on the list with names of individuals available from other sources. Treasury contends that any useful information obtained as a result of the disclosure of the names therefore would be "derivative" and cannot support a finding of public interest under existing Second Circuit precedent. (See Treasury Mem. at 19-20). The public’s interest in derivative information is derived from the requester’s "ability to use redacted information to obtain additional as yet undiscovered information outside the government files." Associated Press, 554 F.3d at 290 (discussing derivative use theory but declining to decide whether it "would ever justify the release of personal information" in the Second Circuit). The cases that Treasury cites for the proposition that the information must provide "direct" rather than "derivative" information about the government’s performance, however, are not controlling here. Those cases typically address situations in which the requester hopes to use the names and contact information provided by the government so that the persons can be interviewed in an effort to determine whether the government is doing its job. See e.g., Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 88 (2d Cir.1991) (requester intending to contact individual employees of government contractors to find out if their records were accurate); Hertzberg v. Veneman, 273 F.Supp.2d 67, 88 (D.D.C.2003) (requester seeking names of witnesses interviewed in government investigation so that they could be re-interviewed).

Here, the Times does not base its public interest argument on its proposed use of the names to find other newsworthy information. Rather, the Times intends to use outside information to make sense of the list of names provided by Treasury. This is no more derivative than the use of mapping software to make sense of the addresses of individuals who received emergency benefits from the government. See News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1193-96 (11th Cir.2007) (requiring disclosure of addresses of aid recipients that plaintiff planned to "superimpose … on a street-level map" to determine whether agency was distributing benefits appropriately). Accordingly, there is a public interest in disclosure of the names of the individual licensees.

Finally, Treasury argues that many of its licensing decisions are made "pursuant to specific licensing policies set forth in OFAC regulations." (Fields Decl. ¶ 10). Although Treasury concedes that other decisions are made on a "case-by-case basis," it contends that often "the identity of the applicant will have little or no bearing on the ultimate licensing decision." (Id.). Even if Treasury is correct on both counts, it, in effect, concedes that certain OFAC decisions are made, at least in part, based on the applicant’s identity. The Times is therefore entitled to explore why such decisions are made. Equally so, the Times is entitled to explore whether OFAC truly is making decisions without considering who the applicant is and, if so, whether that makes sense.

*8 Although Treasury disputes the utility of the data that the Times seeks, the privacy interest at issue is minimal. Accordingly, the limited public interest that the Times has identified is sufficient to justify the release of the names.

IV. Conclusion

For the foregoing reasons, the Times’ motion for summary judgment, (ECF No. 9), is granted and Treasury’s cross-motion for summary judgment, (ECF No. 17), is denied. By November 2, 2010, Treasury shall provide a copy of the computer-generated spreadsheet for individual licensees, with the relevant columns unredacted. The Clerk of the Court is directed to enter judgment accordingly and to close this case.

United States v. Ahmed; United States v. Shehadeh

October 27, 2010

1. United States v. Ahmed (E.D. Va. Oct. 27, 2010) (indictment alleging attempted material support in relation to plot to bomb DC-area Metrorail stations).

From the press release (indictment attached):

WASHINGTON – Farooque Ahmed, 34, of Ashburn, Va., was arrested today for attempting to assist others whom he believed to be members of al-Qaeda in planning multiple bombings at Metrorail stations in the Washington, D.C., area.

David Kris, Assistant Attorney General for National Security; Neil H. MacBride, U.S. Attorney for the Eastern District of Virginia; and John G. Perren, Acting Assistant Director in Charge of the FBI Washington Field Office, made the announcement after Ahmed was taken into custody earlier this morning.

In announcing this arrest, officials emphasized that at no time was the public in danger during this investigation and that the FBI was aware of Ahmed’s activities from before the alleged attempt began and closely monitored his activities until his arrest. The public should be assured that there was no threat against Metrorail or the general public in the Washington, D.C., area.

Yesterday, a federal grand jury in Alexandria, Va., returned a three-count indictment against Ahmed, a naturalized U.S. citizen born in Pakistan, charging him with attempting to provide material support to a designated terrorist organization, collecting information to assist in planning a terrorist attack on a transit facility, and attempting to provide material support to help carry out multiple bombings to cause mass casualties at D.C.-area Metrorail stations. If convicted, he faces a maximum penalty of 50 years in prison.

Ahmed was arrested by the FBI early this morning and is scheduled to make his first appearance before U.S. Magistrate Judge John F. Anderson at 2:00 P.M. EDT at the federal courthouse in Alexandria.

According to the indictment, from April 2010 through Oct. 25, 2010, Ahmed attempted to assist others whom he believed to be members of al-Qaeda in planning multiple bombings to cause mass casualties at Metrorail stations. On April 18, 2010, Ahmed allegedly drove to a hotel in Dulles, Va., and met with a courier he believed to be affiliated with a terrorist organization who provided Ahmed with a document that provided potential locations at which future meetings could be arranged. On or about May 15, 2010, at a hotel in Herndon, Va., Ahmed allegedly agreed to watch and photograph another hotel in Washington, D.C., and a Metrorail station in Arlington, Va., to obtain information about their security and busiest periods.

According to the indictment, Ahmed allegedly participated in surveillance and recorded video images of Metrorail stations in Arlington, Va., on four occasions. On or about July 19, 2010, in a hotel room in Sterling, Va., Ahmed allegedly handed a memory stick containing video images of a Metrorail station in Arlington to an individual whom Ahmed believed to be affiliated with al-Qaeda. On that same day, Ahmed allegedly agreed to assess the security of two other Metrorail stations in Arlington as locations of terrorist attacks.

The indictment further alleges that, on or about Sept. 28, 2010, in a hotel room in Herndon, Ahmed handed a USB drive containing images of two Metrorail stations in Arlington to an individual whom Ahmed believed to be affiliated with al-Qaeda.

According to the indictment, on or about Sept. 28, 2010, Ahmed provided to an individual whom he believed to be affiliated with al-Qaeda diagrams that Ahmed drew of three Metrorail stations in Arlington and provided suggestions as to where explosives should be placed on trains in Metrorail stations in Arlington to kill the most people in simultaneous attacks planned for 2011.

2. United States v. Shehadeh (E.D.N.Y. Oct. 25, 2010) (complaint alleging false statements relating to investigation of international terrorism, in connection with plans to travel abroad to fight against U.S. forces)

From the press release (see here for the complaint):

A criminal complaint was unsealed yesterday in the Eastern District of New York charging Abdel Hameed Shehadeh, age 21 and a U.S. citizen and resident of Hawaii, with making false statements in a matter involving international terrorism. Shehadeh was arrested on Friday, October 22, in Honolulu, Hawaii. At his initial appearance yesterday at the United States Courthouse in Honolulu, Shehadeh was ordered detained and consented to being removed to the Eastern District of New York for further proceedings.

According to the complaint, in early 2008, Shehadeh, at the time a resident of Staten Island, New York, devised a plan to travel to Pakistan in order to join the Taliban or a similar fighting group. In furtherance of his plan, on June 13, 2008, Shehadeh flew on a one-way airline ticket from John F. Kennedy International Airport in Queens, New York, to Islamabad, Pakistan. Upon landing in Pakistan, Shehadeh was denied entry into the country by Pakistani officials, and he returned to the United States. He was questioned by FBI agents and NYPD detectives on multiple occasions about the purpose of his trip to Pakistan, and he told them that he had traveled to Pakistan in order to visit an Islamic university and to attend a friend’s wedding. The complaint alleges that Shehadeh subsequently admitted to FBI agents in Hawaii that the true purpose of his trip to Pakistan was to join a fighting group such as the Taliban. The complaint also alleges that Shehadeh attempted to recruit another individual to join him for this purpose immediately after the two discussed a sermon by the cleric Anwar al-Awlaki.

According to the complaint, several weeks after Shehadeh was denied entry to Pakistan, he attempted to enlist in the United States Army at the Times Square recruiting station in New York City. Shehadeh’s application was denied when it was discovered that he had concealed his prior trip to Pakistan. Although Shehadeh claimed that he attempted to enlist for career opportunities and benefits, the complaint alleges that his true motive was to deploy to Iraq, where he intended to desert and fight against the United States military alongside Iraqi insurgent forces.

In addition, the complaint alleges that Shehadeh created and administered multiple web sites dedicated to spreading violent jihadist ideology. The content of these web sites included, among other things, speeches from known al-Qaeda leaders such as Abu Yahya al-Libi and Ayman al-Zawahiri.

If convicted of making false statements in a matter involving international terrorism, Shehadeh faces a maximum sentence of eight years’ imprisonment.


United States v. Mirza (S.D. Tex. Oct. 22, 2010)

October 27, 2010

* United States v. Mirza (S.D. Tex. Oct. 22, 2010) (15 year sentence following jury conviction for unlawful firearm possession and conspiracy to provide material support to the Taliban)

HOUSTON – A Pakistani national who entered the United States on a student visa has been sentenced to 15 years in federal prison without parole for unlawfully possessing firearms and conspiring to provide material support to the Taliban, U.S. Attorney for the Southern District of Texas José Angel Moreno and FBI Special Agent in Charge Richard C. Powers announced today.

Adnan Mirza, 33, convicted in May 2010 following a jury trial of all nine counts charged, was sentenced today by Senior U.S. District Judge Ewing Werlein to a total of 180 months in prison without parole. Mirza has also been fined $1,000 for each of the nine counts of conviction for a total of $9,000.

As a foreign national who had entered the United States on a student visa to attend a local community college in 2005 and 2006, Mirza is not permitted by federal law to possess firearms while in the United States. An FBI undercover investigation resulted in proof that Mirza and others intended to send funds to the Taliban and had engaged in weekend camping/training and practice sessions with firearms to prepare for “jihad” on six different occasions beginning in May 2006 at a location on the north side of Houston. …

United States v. Shriver (E.D. Mich. Oct. 22, 2010)

October 27, 2010

* United States v. Shriver (E.D. Mich. Oct. 22, 2010)

A fascinating story of PRC espionage. See the attached docs, and the summary from the press release below:

WASHINGTON – Glenn Duffie Shriver, 28, of Detroit, Mich., pleaded guilty today before U.S. District Court Judge Liam O’Grady to conspiring to provide national defense information to intelligence officers of the People’s Republic of China (PRC).

Shriver pleaded guilty to a one-count criminal information charging him with conspiracy to communicate national defense information to a person not entitled to receive it. In a plea agreement, the defense and government jointly recommended a prison sentence of 48 months. Sentencing is scheduled for Jan. 21, 2011.

According to a statement of facts filed with his plea agreement, Shriver is proficient in Mandarin Chinese and lived in the PRC both as an undergraduate student and after graduation. While living in Shanghai in October 2004, Shriver developed a relationship with three individuals whom he came to learn were PRC intelligence officers. At the request of these foreign agents, Shriver agreed to return to the United States and apply for positions in U.S. intelligence agencies or law enforcement organizations.

Shriver admitted in court that he knew that his ultimate objective was to obtain a position with a federal department or agency that would afford him access to classified national defense information, which he would then transmit to the PRC officers in return for cash payments.

From 2005 to 2010, Shriver attempted to gain employment as a U.S. Foreign Service Officer with the Department of State and as a clandestine service officer with the Central Intelligence Agency. Shriver admitted that, during this time, he maintained frequent contact with the PRC intelligence officers and received more than $70,000 in three separate cash payments for what the officers called his “friendship.”

In December 2009, Shriver received notice that he was to report to Washington, D.C., in May 2010 for final employment processing activities with the CIA. Shriver admitted that he communicated with a PRC intelligence officer that he was “making some progress” in obtaining a position with the CIA and that he would not be free to travel to PRC for another meeting because it could raise suspicion with federal agents conducting his background investigation.

Shriver admitted that he made false statements on the CIA questionnaire required for employment stating that he had not had any contact with a foreign government or its representative during the last seven years, when in fact he had met in person with one or more of the officers approximately 20 times since 2004. He also deliberately omitted his travel to PRC in 2007 when he received a $40,000 cash payment from the PRC for applying to the CIA. In addition, Shriver made false statements during a series of final screening interviews at the CIA, and he admitted he made each of the false statements to conceal his illicit relationship with the PRC intelligence officers.

Shriver_statement of facts.pdf


Shriver_plea agreement.pdf

Upcoming Event: Exploring Alternative Approaches to Counter-proliferation Issues

October 27, 2010

* Upcoming Event: Alternative Approaches to Counter-Proliferation Efforts (Oct. 29, 2010)


Alternative Approaches to Counter-proliferation Efforts

Professor John Norton Moore and his coauthors from Legal Issues in the Struggle Against Terror (Carolina Press, 2010) as well as other distinguished experts in the field will discuss alternative approaches to nuclear proliferation challenges.

10:00 AM to Noon

Friday, October 29, 2010

Copley Formal Lounge

Georgetown University Main Campus

Please RSVP to lsgs

Dr. Jeffrey Addicott

Director, Center for Terrorism Law

St. Mary’s University School of Law

Mr. Fredrick Hitz

Senior Fellow

University of Virginia School of Law

Mr. Don MacDonald

Foreign Affairs Committee Staff Member

United States House of Representatives

Mr. John Norton Moore

Director, Center for National Security Law

University of Virginia School of Law


forthcoming scholarship

October 27, 2010

* Forthcoming scholarship

Human Rights, the Laws of War, and Reciprocity

Eric A. Posner (Univ. of Chicago – Law)

Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This paper argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce self-enforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The paper also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.

"Disentangling Administrative Searches"

Columbia Law Review, Vol. 111, 2011
U of Michigan Public Law Working Paper No. 215

EVE BRENSIKE PRIMUS, University of Michigan Law School
Email: ebrensik

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court’s conflation of two distinct types of searches within one doctrinal exception – namely “dragnet searches” of every person, place, or thing in a given area or involved in a particular activity and “special subpopulation searches” of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches.

"Finding Terrorists’ Intent: Aligning Civil Antiterrorism Law with National Security"

St. John’s Law Review, Vol. 83, No. 1201, 2009

CHRISTOPHER W. ROBBINS, affiliation not provided to SSRN
Email: christopher.robbins2

This Article answers a fundamental question in U.S. counter-terrorism policy: when should a victim of a terrorist attack abroad be able to sue under U.S. laws in U.S. courts? The current principles limiting the extraterritorial application of law fail to adequately reflect the interest a state may have in applying its own law to unconventional national security threats that occur abroad. The three most relevant bases under international law for the extraterritorial application of U.S. anti-terrorism law abroad – passive personality, universal jurisdiction, and protective jurisdiction – fail to tie the application of U.S. law to U.S. security interests. Passive personality, the principle that a state can regulate conduct that injures its nationals, allows victims to sue under U.S. law even if there is little connection to the terrorist act and the United States. The only connection may be that a U.S. national was an unintended victim. Another basis, universal jurisdiction, does not allow regulation of terrorist attacks because there does not exist a general anti-terrorism norm under international law. The last basis, protective jurisdiction, also cannot apply because it only allows regulation of attacks against governmental targets, while most terrorist attacks will target civilians. Instead of attempting to organize civil anti-terrorism law around passive personality, as currently done, the U.S. should propose the creation of a new basis for the extraterritorial application of law that addresses unconventional security threats.

Domestic civil anti-terrorism laws should be reformed to apply to any terrorist attack abroad where the terrorists intended to harm a U.S. national, because of their U.S. nationality. This new basis, “intent based national security jurisdiction,” derives from three principles: security, legality and practicality. The new basis furthers the goal of security because victims, even non-U.S. nationals, will be incentivized to investigate the motives of terrorists toward the U.S. and its nationals. It will further the goal of legality because it derives from the current bases under international law and will be more acceptable to other countries than the use of passive personality. It will be more practical because the element of intent acts as an easily identifiable proxy for a U.S. interest. This will discourage judges from dismissing anti-terrorism suits through various procedural mechanisms due to the lack of an identified U.S. interest in allowing the suit to proceed.

"The Effect of National Security on the Criminal Law Paradigm"

DRURY D. STEVENSON, South Texas College of Law
Email: dru

Just as the last century saw a fundamental shift in our criminal laws and available defenses due to the advent of “vice” laws (drugs, alcohol prohibition, the Mann Act, Comstock Laws) and the contemporaneous federalization of criminal law, this paper argues that we are witnessing the advent of a new phase in which the national security emphasis permeates our entire criminal law framework. The national security paradigm is affecting our underlying assumptions about the nature of culpability and the goals of law enforcement; the way in which we draft and interpret penal code sections or criminal statutes; our approach to affirmative defenses; and the strategies or techniques most favored by enforcement officers and prosecutors.

"An e-SOS for Cyberspace"

Harvard International Law Journal, Vol. 52, 2011

DUNCAN B. HOLLIS, Temple University – James E. Beasley School of Law
Email: duncan.hollis

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.

IHL student writing competition

October 25, 2010

* American University Washington College of Law Center for Human Rights and Humanitarian Law, “International Humanitarian Law Student Writing Competition”

Deadline is January 15, so there’s plenty of time to start writing! Details here: http://www.wcl.american.edu/humright/center/student_ihl_writing_competition.cfm

United States v. Khadr (Mil. Com. Oct. 25, 2010) (plea agreement)

October 25, 2010
* United States v. Khadr (Mil. Com. Oct. 25, 2010) (plea agreement)

From DoD’s press release (my understanding is that the plea agreement itself is not yet in public circulation, but will be tomorrow):

The Department of Defense announced that Omar Khadr pleaded guilty today in a military commission. In accordance with a pre-trial agreement, Khadr admitted, in open court, to committing murder in violation of the law of war, attempted murder in violation of the law of war, providing material support to terrorism, conspiracy, and spying. His sentence will be determined at a hearing that begins Oct. 26.

Khadr admitted to throwing a grenade on July 27, 2002, that killed Sgt. 1st Class Christopher Speer after the conclusion of a four-hour firefight between al Qaeda affiliated forces and U.S. military forces, and that he threw the grenade with the intent of killing American or coalition forces. Khadr also admitted that in the months prior to his murder of Speer, he converted landmines to improvised explosive devices (IEDs) and assisted in the planting of ten IEDs with the intent of killing American forces.

In all cases tried by a military commission, the military judge has the duty to ensure the guilty plea is both supported by the facts and voluntarily made before accepting the guilty plea. In this case, Military Judge Col. Patrick Parrish, questioned Khadr at length about his actions and his understanding of his plea. Parrish then indicated that he was satisfied that Khadr understood his rights, the plea was voluntary, and that Khadr did in fact commit the acts that constitute the offenses as charged. This requirement for questioning the underlying facts and voluntariness of the plea safeguards the rights of the accused and guarantees the legitimacy of the plea. Khadr was assisted by two appointed military defense counsel, at no cost to him.

In all military commissions, a panel of military officers known as "members" determines the sentence, regardless of whether the plea was guilty or not guilty. At a hearing scheduled to begin tomorrow, the defense and prosecution will each have an opportunity to present evidence and argument to the members to aid them in determining a sentence.

Under the pre-trial agreement, Khadr agreed to waive his right to trial and plead guilty to the charged offenses in exchange for a limitation on his sentence. Parrish questioned Khadr and determined that he entered into the agreement voluntarily and believed it was in his best interests. In order to preserve the integrity of the sentencing deliberations, the terms of the agreement are not disclosed to the members until after the sentence is announced.

Obaydullah v. Obama (D.D.C. Oct. 19, 2010)

October 22, 2010

* Obaydullah v. Obama (D.D.C. Oct. 19, 2010) (habeas denied)

Earlier this week, Judge Leon denied habeas relief to Obaydullah, a GTMO detainee from Afghanistan. In brief, the court concluded that the government had proved by the preponderance of the evidence that Obaydullah was part of al Qaeda, based on evidence that U.S. soldiers found a cache of landmines hidden near his home, they there was a notebook in Obaydullah’s possession that described how to create a remote-controlled IED, that Obaydullah had been seen in a car taking individuals to a hospital in the aftermath of an accident involving the creation of an IED, and that a vehicle matching that description was found at his home with bloodstains in it.