United States v. Mohamud (D. Or. Nov. 26, 2010)

November 27, 2010

* United States v. Mohamud (D. Or. Nov. 26, 2010)

FBI agents and police in Oregon yesterday arrested Mohamed Osman Mohamud, a naturalized citizen originally from Somalia, after Mohamud attempted to set off explosives at a Christmas tree lighting in Portland. The affidavit supporting the criminal complaint in yesterday’s arrest is attached. A summary from DOJ’s press release follows:

PORTLAND – Mohamed Osman Mohamud, 19, a naturalized U.S. citizen from Somalia and resident of Corvallis, Ore., has been arrested on charges of attempting to use a weapon of mass destruction (explosives) in connection with a plot to detonate a vehicle bomb at an annual Christmas tree lighting ceremony earlier this evening in Portland, Ore., the Justice Department announced.

According to a criminal complaint signed in the District of Oregon, Mohamud was arrested by the FBI and Portland Police Bureau at approximately 5:40 p.m. (PST) Nov. 26, 2010 after he attempted to detonate what he believed to be an explosives-laden van that was parked near the tree lighting ceremony in Portland’s Pioneer Courthouse Square. The arrest was the culmination of a long-term undercover operation, during which Mohamud had been monitored closely for months as his alleged bomb plot developed. The device was in fact inert; and the public was never in danger from the device.

According to the affidavit filed in support of the criminal complaint, in August 2009, Mohamud was in email contact with an unindicted associate (UA1) overseas who is believed to be involved in terrorist activities. In December 2009, while UA1 was located in the northwest frontier province of Pakistan, Mohamud and UA1 discussed the possibility of Mohamud traveling to Pakistan to engage in violent jihad. UAI allegedly referred Mohamud to a second unindicted associate (UA2) overseas and provided Mohamud with a name and email address to facilitate the process.

In the months that followed, Mohamud allegedly made several unsuccessful attempts to contact UA2. Ultimately, an FBI undercover operative contacted Mohamud via email in June 2010 under the guise of being an associate of UA1. Mohamud and the FBI undercover operative then agreed to meet in Portland in July 2010. At this meeting, Mohamud allegedly told the FBI undercover operative that he had written articles that were published in Jihad Recollections, an online magazine that advocated violent jihad. Mohamud also indicated that he wanted to become “operational.” Asked what he meant by “operational,” Mohamud stated that he wanted to put an “explosion” together, but needed help.

At a second meeting in August 2010, Mohamud allegedly told undercover FBI operatives he had been thinking of committing violent jihad since the age of 15. According to the affidavit, Mohamud then told the undercover FBI operatives that he had identified a potential target for a bomb: the annual Christmas tree lighting ceremony in Portland’s Pioneer Courthouse Square on Nov. 26, 2010.

According to the affidavit, the undercover FBI operatives cautioned Mohamud several times about the seriousness of this plan, noting there would be many people at the event, including many children, and emphasized that Mohamud could abandon his attack plans at any time with no shame. “You know there’s gonna be a lot of children there?” an undercover FBI operative asked Mohamud. According to the affidavit, Mohamud responded that he was looking for a “huge mass that will . . . be attacked in their own element with their families celebrating the holidays.” Further discussing the attack, Mohamud allegedly stated, “…it’s in Oregon; and Oregon like you know, nobody ever thinks about it.”

The affidavit alleges that in subsequent months, Mohamud continued to express his interest in carrying out the attack and worked on logistics. He allegedly identified a location to place the bomb and mailed bomb components to the undercover FBI operatives, who he believed were assembling the device. He also mailed them passport photos, as part of a plan to help him sneak out of the country after the attack. In addition, Mohamud provided the undercover FBI operatives with a thumb drive that contained detailed directions to the bomb location and operational instructions for the attack.

According to the affidavit, on November 4, 2010, Mohamud and the undercover FBI operatives traveled to a remote location in Lincoln County, Ore., where they detonated a bomb concealed in a backpack as a trial run for the upcoming attack. Afterwards, on the drive back to Corvallis, undercover FBI operatives questioned Mohamud as to whether he was capable of looking at the bodies of those who would be killed in the upcoming attack in Portland. According to the affidavit, Mohamud responded, “I want whoever is attending that event to leave, to leave either dead or injured.”

Upon returning to Corvallis that same day, the affidavit alleges that Mohamud recorded a video of himself with the undercover FBI operatives in which he read a written statement that offered a rationale for his bomb attack. On Nov. 18, 2010, undercover FBI operatives picked up Mohamud to travel to Portland in order to finalize the details of the attack.

Earlier this evening, Mohamud was arrested after he attempted to remotely detonate what he believed to be explosives in a van that was parked near the Christmas tree lighting ceremony in Portland, the affidavit alleges.

1 Affidavit COMPLAINT 11 26.pdf

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United States v. Kashmiri (N.D. Ill. Nov. 10, 2010) (denying motion to suppress FISA-derived evidence)

November 24, 2010

* United States v. Kashmiri (N.D. Ill. Nov. 10, 2010) (denying motion to suppress FISA-derived evidence)

Tahawwur Hussain Rana has been indicted (along with other defendants, including the more well-known David Headley) on several counts involving the provision of material support to Lashkar e-Taiba, to the Mumbia attacks, and to a plot to carry out an attack in Denmark. Among other pre-trial maneuvers, Rana moved to suppress FISA-derived evidence. In an opinion two weeks ago, Judge Leinenweber denied these motions. The full opinion appears below. Highlights:

– The court refused Rana’s request for access to the underlying FISA materials, observing:

In 2003, the Seventh Circuit wrote that it could not locate one case in which a court conducted a review of FISA materials other than through an in camera and ex parte process. Grand Jury Proceedings, 347 F.3d at 203. The appellant in the 2003 case argued that his was the one-in-a-million case in which such an exception should occur, and that the court should allow him to review the materials. Id. The court disagreed. Id. Subsequently, since 2003, as Defendant acknowledges, this one-in-a-million case has yet to occur. A court has never permitted defense counsel to review FISA materials. Likewise, in this case, because disclosure of the materials is unnecessary for the Court to determine the legality of the collection, Defendant’s Motion for Disclosure is denied. See 50 U.S.C. § 1806(f).

– The court refused to follow the vacated Mayfield decision (in which a district judge in Oregon had held that post-PATRIOT Act FISA violates the 4th Amendment); rather, it accepted the “significant purpose” test as constitutionally sufficient, and based on an ex parte, in camera review (see above) concluded that it was satisfied in this instance.

– The court agreed that a defendant in theory could obtain a Franks hearing to test, post hoc, the veracity of the statements in the affidavit(s) supporting a FISA application, but concluded that Rana had not made the case that such a hearing was warranted in this instance:

Nevertheless, to challenge the veracity of the FISA application, Defendant must offer substantial proof that the FISC relied on an intentional or reckless misrepresentation by the government to grant the FISA order. The quest to satisfy the Franks requirements might feel like a wild-goose chase, as Defendant lacks access to the materials that would provide this proof. This perceived practical impossibility to obtain a hearing, however, does not constitute a legal impossibility. If Defendant obtains substantial proof that the FISC relied upon an intentional or recklessly false statement to approve the FISA order, he could obtain a hearing. In addition, the Court has already undertaken a process akin to a Franks hearing through its ex parte, in camera review of the FISA materials. 50 U.S.C. § 1806(f). Through this review, the Court finds that Defendant is not entitled to a Franks hearing. Therefore, his request is denied.

The full opinion follows below.

United States District Court,

N.D. Illinois,

Eastern Division.

UNITED STATES of America, Plaintiff,

v.

Ilyas KASHMIRI, et al., (Tahawwur Hussain Rana), Defendants.

No. 09 CR 830-4.

Nov. 10, 2010.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

I. BACKGROUND

*1 The November 2008 terrorist attacks in Mumbai, India, by Lashkar e Tayyiba, which targeted hotels, restaurants, train stations, and other public locations in the city, took the lives of more than 160 people, including six United States nationals. The United States Secretary of State has designated the Pakistan-based Lashkar, which has a primary objective to separate portions of the States of Jammu and Kashmir from India, as a foreign terrorist organization under Section 219 of the Immigration and Nationality Act. See 8 U.S.C. § 1189 (2006).

On October 18, 2009, the United States Government (the "Government") arrested Defendant Tahawwur Hussain Rana (the "Defendant"). He allegedly owned the immigration services business First World Immigration Services, which was based out of Chicago and also had offices in New York and Toronto. The Pakistan-born Canadian citizen, who primarily lives in Chicago, has been charged with three counts. The first count is for conspiring with others to provide material support to the Mumbai attacks. Second, the government has charged Rana with providing material support to an allegedly planned terrorist attack in Denmark. This planned attack targeted the facilities of a Danish newspaper and at least two of its employees, in response to a series of cartoons published in September 2005 that depicted the Muslim prophet Mohammed. Third, Defendant has been charged with providing material support to Lashkar. All three counts are brought pursuant to 18 U.S.C. § 2339(A) for providing material support to terrorists.

On October 18, 2009, the United States Attorney General filed notice indicating that in its case against Defendant it intended to use evidence obtained through both physical searches and electronic surveillance pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801 et seq. On May 10, 2010, Defendant moved, under FISA, the due process provisions of the Fifth Amendment, the assistance of counsel provision of the Sixth Amendment, and Brady v. Maryland, 372 U.S. 83 (1963), that the Court order the Government to provide Defendant with all FISA applications, orders, and related documents where Defendant has been a target of electronic surveillance or a physical search. On August 27, 2010, Defendant moved, pursuant to the Fourth and Fifth Amendments to the Constitution, and 50 U.S.C. § 1806(e), to suppress FISA electronic surveillance evidence, as well as to request a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Government subsequently indicated that it would not use FISA evidence obtained by physical search in its case, and on September 22, 2010, the Court granted Defendant’s Motion to Withdraw its motion to suppress evidence obtained by physical search. The Court addresses the still pending motions in this Opinion.

II. REVIEW STANDARD FOR FISA MATERIALS

As later described in more detail, specific procedures exist for a district court to conduct an in camera, ex parte review of FISA material when it considers a motion to disclose or a motion to suppress evidence. See 50 U.S.C. § 1806(f). The court reviews FISA electronic surveillance materials in the same manner as the Foreign Intelligence Surveillance Court ("FISC") reviews the materials, in that it does not second-guess the Executive Branch’s certification that the surveillance has a foreign intelligence objective. In re Grand Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197, 204-05 (7th Cir.2003). The court conducts a de novo review of the FISA materials to determine if the electronic surveillance authorization was based upon appropriate probable cause. United States v. Hammond, 381 F.3d 316, 332 (4th Cir.2004), vacated on other grounds, 543 U.S. 1097 (2005).

III. ANALYSIS

A. Motion for Disclosure of FISA Materials

*2 Under 50 U.S.C. § 1806(e), Defendant has standing to move to suppress evidence obtained through electronic surveillance under FISA on the grounds that it was unlawfully obtained or not made in conformity with the FISA order of authorization or approval. This provision also gives standing to an "aggrieved person" against whom FISA evidence has been obtained or derived to move to disclose this evidence. See, United States v. Warsame, 547 F.Supp.2d 982, 986 (D.Minn.2008).

Defendant requests disclosure of FISA materials to assess whether to move for suppression of any evidence or information obtained under FISA. As the Second Circuit has explained, the procedure the district court follows in such a situation is an ex parte and in camera review:

Section 1806(f) of FISA provides for in camera, ex parte review of the documents where the Attorney General has filed an affidavit stating that disclosure of the FISA applications and orders would harm the national security of the United States. The judge has the discretion to disclose portions of the documents, under appropriate protective procedures, only if he decides that such disclosure is "necessary to make an accurate determination of the legality of the surveillance." 50 U.S.C. § 1806(f). Such a need might arise if the judge’s initial review revealed potential irregularities such as "possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which include[ ] a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order." Senate Report 95-604, at 58, reprinted in 1978 U.S.Code Cong. & Ad. News 3904, 3960. In general, however, "ex parte, in camera determination is to be the rule."

United States v. Duggan, 743 F.2d 59, 78 (2d Cir.1984).

If disclosure of the FISA materials is not necessary for the district court to make an accurate determination of the legality the collection, disclosure may not be ordered. See 50 U.S.C. § 1806(f). In reviewing a FISA application, a FISA judge, whose orders the district court must review, must (1) find probable cause to believe that the target of the requested surveillance is an agent of a foreign power; (2) find that the application is complete and in proper form; and (3) when the target is a United States person, find that the certifications are not "clearly erroneous." See Duggan, 743 F.2d at 77. Again, this Court conducts the same review of the evidence as the FISA court undertook.

The Court has therefore conducted an in camera and ex parte review of the FISA materials related to this case. The Court finds that all of the FISA orders and applications concerning Defendant meet the standards set forth in 50 U.S.C. § 1801 et seq. and that the Government made a "good faith" effort in minimizing information concerning United States persons that may have been acquired through such electronic surveillance. Therefore, the FISA electronic surveillance at issue was lawfully authorized and legally conducted.

*3 In 2003, the Seventh Circuit wrote that it could not locate one case in which a court conducted a review of FISA materials other than through an in camera and ex parte process. Grand Jury Proceedings, 347 F.3d at 203. The appellant in the 2003 case argued that his was the one-in-a-million case in which such an exception should occur, and that the court should allow him to review the materials. Id. The court disagreed. Id. Subsequently, since 2003, as Defendant acknowledges, this one-in-a-million case has yet to occur. A court has never permitted defense counsel to review FISA materials. Likewise, in this case, because disclosure of the materials is unnecessary for the Court to determine the legality of the collection, Defendant’s Motion for Disclosure is denied. See 50 U.S.C. § 1806(f).

B. Motion to Suppress FISA Materials

In his Motion to Suppress the FISA materials, Defendant argues that FISA, as it exists after the passage of the Patriot Act in 2001, violates the Fourth Amendment. This argument has been made before several other courts, which have almost unanimously rejected it. See United States v. Ning Wen, 477 F.3d 896, 897 (7th Cir.2007); United States v. Damrah, 412 F.3d 618, 625 (6th Cir.2005); United States v. Abu-Jihaad, 531 F.Supp.2d 299, 309 (D.Conn.2008); Warsame, 547 F.Supp.2d at 993; United States v. Mubayyid, 521 F.Supp.2d 125, 139-40 (D. Mass 2007); United States v. Holy Land Found. for Relief and Dev., No. 04-CR-240-G, 2007 WL 2011319, at *6 (N.D.Tex. July 11, 2007).

The Court is not persuaded by the one outlier district court case which held that FISA, as it currently exists, violates the Fourth Amendment. Mayfield v. United States, 504 F.Supp.2d 1023, 1042-43 (D.Or.2007), vacated, 588 F.3d 1252 (9th Cir.2009), vacated and superseded, 599 F.3d 964 (9th Cir.2010) (holding that plaintiff lacked standing to seek declaratory relief against the United States and declining to address the Fourth Amendment issue). Plus, this Court must follow the Seventh Circuit’s Ning Wen decision in analyzing FISA’s constitutionality.

The primary issue Defendant raises concerning the constitutionality of FISA is that after the terrorist attacks of September 11, 2001, law enforcement has used FISA as a tool to gather evidence for criminal prosecutions, rather than to obtain foreign intelligence information. The probable cause necessary to obtain a FISA order differs from that of a traditional search warrant. To obtain a FISA order, the government must show facts that "the target of the electronic surveillance is a foreign power or an agent of a foreign power" and that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." 50 U.S.C. § 1804(a)(4). No requirement exists to show probable cause of presently occurring or past criminal activity, which is necessary for a search warrant. See Brinegar v.. United States, 338 U.S. 160, 175-76 (1949) ("Probable cause exists where the facts and circumstances within … [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.") (internal quotation omitted).

*4 The Foreign Intelligence Surveillance Court of Review ("FISCR") addressed the issue of FISA’s post-Patriot Act constitutionality in In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev.2002). As originally passed in 1978, FISA provided a tool to gather foreign intelligence information through electronic surveillance of a foreign power or an agent of a foreign power. Id. at 722-23. Congress amended FISA in 1994 to also cover physical searches. Id. at 722 n. 7. In the 1980s, the Justice Department interpreted FISA "as limiting the Department’s ability to obtain FISA orders if it intended to prosecute the targeted agents–even for foreign intelligence crimes" such as international terrorism or sabotage. Id. at 723. The FISCR found this interpretation "puzzling." Id. The court interpreted the statute as reading that while "the purpose" of the FISA order–as certified by a national security official in the Executive Branch–had to be to obtain foreign intelligence information, "FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use or foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution." Id. at 727 (emphasis in original).

Nevertheless, in 1995 the U.S. Attorney General adopted "Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigation." Id. These procedures, instituted to comply with the "primary purpose" test that some courts had used in ruling on the admissibility of FISA evidence, in practice created a "wall" that prevented FBI intelligence officials from communicating with the Criminal Division in cases that involved FISA surveillance. Id. at 727-28.

The Patriot Act attempted to break down this wall. In particular, it changed the language of 50 U.S.C. § 1804(a)(7)(B)–part of the rules governing the certification process for a FISA order–from "the purpose of the surveillance is to obtain foreign intelligence information" to "a significant purpose of the surveillance is to obtain foreign intelligence information." Id. at 729-29 (emphasis added). Through this seemingly minor amendment to FISA, "Congress was keenly aware that [it] relaxed a requirement that the government show that its primary purpose was other than criminal prosecution." Id. at 732. Significantly, the government could obtain a FISA order even if the purpose of the surveillance was to obtain information concerning criminal activity, as long as the government also presented as part of its FISA application a significant foreign intelligence purpose for the surveillance. As the Sealed Case decision explained:

[T]he Patriot Act amendment, by using the word "significant," eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses. If the certification of the application’s purpose articulates a broader objective than criminal prosecution–such as stopping an ongoing conspiracy–and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct–even foreign intelligence crimes–to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.

*5 Id. at 735.

In addressing Sealed Case, the Seventh Circuit wrote that it "concluded that the amended statute allows domestic use of intercepted evidence as long as a ‘significant’ international objective is in view at the intercept’s inception" Ning Wen, 477 F.3d at 897. Defendant is correct in that the facts before the court in Ning Wen did not involve the specific issue currently before this Court. In Ning Wen, the defendant argued that evidence obtained under FISA–pursuant to an international investigation for espionage–could not be used in domestic criminal investigations or prosecutions against him once the international investigation ended. Id. at 897. The court affirmed the denial of his motion to suppress, however, because after it conducted its own in camera, ex parte review of the FISA application affidavits, it found that a significant purpose of the FISA order was to obtain international intelligence. Id. The basis behind this denial is relevant to the motions currently before this Court, as it clearly shows that this Court must use the "significant purpose" test in determining the admissibility of the FISA material.

Through the aforementioned in camera and ex parte review of the FISA electronic surveillance material as it pertains to Defendant, the Court finds that a "significant purpose" of the FISA surveillance was to gather foreign intelligence information. This "measurable foreign intelligence purpose" complies with the requirements of 50 U.S.C. § 1804(a)(7)(B). Sealed Case, 310 F.3d at 735.

Defendant argues that because one of the enumerated offenses for which the Government could obtain a Title III electronic surveillance order is providing material support to terrorists, Congress intended that Title III should govern criminal investigations. Defendant does not cite any persuasive authority, however, which holds that Title III precludes the government from seeking to obtain criminal investigation or prosecution evidence through a FISA order. FISA and Title III can and do co-exist. In addition, several requirements exist to obtain a FISA order that do not exist to obtain a Title III order. These include FISA’s requirement that the certification come from an upper-level Executive Branch official, the FISA Court’s continuing oversight of the minimization procedures during the surveillance period, and more extensive reporting requirements. Sealed Case, 310 F.3d at 740-41. These requirements "bear[ ] on [FISA’s] reasonableness under the Fourth Amendment." Id. at 742. Because FISA, both on its face and as applied to Defendant, does not violate the Fourth Amendment, Defendant’s Motion to Suppress Electronic Surveillance Evidence Collected Pursuant to FISA is denied.

C. Request for a Franks Hearing

The Court finally turns to Defendant’s Request for a Hearing to Challenge the Veracity of Factual Statements in the Government’s FISA Application. In Franks v. Delaware, the Supreme Court set forth the now well-established rule that the Fourth Amendment permits criminal defendants to challenge the veracity of affidavits that establish probable cause for a warrant. An electronic surveillance order is characterized as a warrant for purposes of Fourth Amendment review. See Ning Wen, 477 F.3d at 897-98. The due process underpinnings of Franks, therefore, apply to the government’s process of obtaining a FISA order. See Duggan, 743 F.2d at 77 n. 6. A defendant in a case that involves a FISA order, however, does not automatically receive a Franks hearing. Rather, the FISA order challenger must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included" in the FISA application, as well as establish that the allegedly false statement was "necessary" for the FISC to approve the application. See Franks, 438 U.S. at 155-56; see also Duggan, 743 F.2d at 77 n. 6. Failure to satisfy either of these prongs proves fatal to a Franks hearing request. See Mubayyid, 521 F.Supp.2d at 130-31.

*6 Defendant has failed to satisfy the requirements to obtain a Franks hearing. He has not made any showing–let alone a substantial one–that an Executive Branch officer knowingly and intentionally, or recklessly, included a false statement in the FISA application. Without such a showing, he is foreclosed from obtaining a hearing. Defendant argues that by denying him a Franks hearing, the Court gives the FISA evidence "an easier path to admissibility." Under Seal Mem. of Law in Supp. of Def. Rana’s Mot. to Suppress Electronic Evidence Collected Pursuant to FISA and Req. for a Franks Hr’g 11, Aug. 27, 2010, ECF No. 117. Without producing the requisite offer of proof of impropriety in the FISA application, however, this argument is merely conclusory, and equates to an improper direct attack on the FISA procedures. See Franks, 438 U.S. at 171; see also Damrah, 412 F.3d at 624-25 ("Franks does not apply to a challenge of the underlying procedures themselves, but rather to the attempt to sidestep the underlying procedures.").

The Court recognizes the frustrating position from which Defendant must argue for a Franks hearing. Franks provides an important Fourth Amendment safeguard to scrutinize the underlying basis for probable cause in a search warrant. The requirements to obtain a hearing, however, are seemingly unattainable by Defendant. He does not have access to any of the materials concerning the FISA application or surveillance; all he has is notice that the government plans to use this evidence against him.

Nevertheless, to challenge the veracity of the FISA application, Defendant must offer substantial proof that the FISC relied on an intentional or reckless misrepresentation by the government to grant the FISA order. The quest to satisfy the Franks requirements might feel like a wild-goose chase, as Defendant lacks access to the materials that would provide this proof. This perceived practical impossibility to obtain a hearing, however, does not constitute a legal impossibility. If Defendant obtains substantial proof that the FISC relied upon an intentional or recklessly false statement to approve the FISA order, he could obtain a hearing. In addition, the Court has already undertaken a process akin to a Franks hearing through its ex parte, in camera review of the FISA materials. 50 U.S.C. § 1806(f). Through this review, the Court finds that Defendant is not entitled to a Franks hearing. Therefore, his request is denied.

IV. CONCLUSION

For the reasons stated herein, the Court rules as follows:

1. Defendant’s Motion to Disclose FISA Applications, Orders, and Related Documents is denied.

2. Defendant’s Motion to Suppress Electronic Surveillance Evidence Collected Pursuant to FISA is denied.

3. Defendant’s Request for a Franks Hearing is denied.

IT IS SO ORDERED.

Slip Copy, 2010 WL 4705159 (N.D.Ill.)

END OF DOCUMENT

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4th Annual National Security Law Junior Faculty Workshop/IHL Training

November 23, 2010

* 4th Annual National Security Law Junior Faculty Workshop/IHL Training

For the past three years, Geoff Corn and I have had the great pleasure of putting on a unique workshop event loosely directed toward junior scholars working on national security law issues as well as JAGs. The basic idea is a two day event involving both the workshopping of draft articles and presentations and discussions in the nature of IHL training. Both JAGs and civilian law faculty (and sometimes would-be law faculty) attend, with the instruction provided by a mix of Army JAG faculty from the International and Operational Law Department at the Judge Advocate General’s School and the International Committee of the Red Cross. The first event occurred at Wake Forest School of Law, and the most recent two have been here in Austin at UT. This year, however, we’ll be heading out to Charlottesville, where the Army JAG School has graciously agreed to host. We continue to have the good fortune, too, of ICRC support, for which we are quite grateful. Our core aim to build bridges between civilian academia and military lawyers, and over the past three years we think we’ve had a lot of success in that regard. This year promises to be the best yet.

All of which is a long way of telling you to save the dates: Thursday May 19th and Friday May 20th (you’ll want to get there by the evening of the 18th, and we’ll have an icebreaker that night). Note that space for the event may be limited depending on the volume of expressions of interest. As in the past, moreover, we’ll be selecting no more than a handful of papers for presentation at the workshop. I’ll have more details soon about when drafts or abstracts should be submitted for consideration.


forthcoming scholarship, and crossing the 1000-subscriber threshold

November 22, 2010

1. The National Security Law Listserv crosses the 1000 subscriber threshold

A handful of you will recall that this list began with just a dozen or so members back in 2003. It has grown steadily since then, and I’m pleased to report that last week we crossed the 1000-subscriber threshold. The most noticeable change over the past seven years? The volume of forthcoming scholarship. Speaking of which…

2. Forthcoming Scholarship

All Human Rights are Equal, But Some are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO Sofa, and Human Rights

Harvard National Security Journal, Vol. 1, p. 171, 2010

Chris Jenks <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1190695>

Government of the United States of America – Judge Advocate General’s Corps

Eric Talbot Jensen <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=812464>

Fordham University School of Law

On November 4, 2009, an Italian court found a group of Italian military intelligence agents, operatives from the Central Intelligence Agency and a U.S. Air Force (USAF) officer guilty of the 2003 kidnapping of terror suspect Abu Omar. Thrown in a van on the streets of Milan, the abduction took Abu Omar from Italy to Egypt, where he was allegedly tortured and interrogated about his role in recruiting fighters for extremist Islamic causes, including the insurgency in Iraq.

This essay posits that lost amidst politically charged rhetoric about Bush administration impunity and the “war on terror” is that the Italian Court did not have jurisdiction over the USAF officer and violated the human rights of the other U.S. defendants. None of the U.S. defendants were at the proceedings. Although the Italian government refused to forward extradition requests from the Italian prosecutor to the U.S. government, Italian law allows for in absentia trials. Two Americans secured private counsel, the remaining U.S. defendants were solely represented by court-appointed Italian attorneys, none of whom ever spoke with their clients. Regardless of whether what happened to Abu Omar is considered an extraordinary rendition or state enabled kidnapping, the Italian proceedings should provide little comfort to those truly interested in the rule of law and human rights. Rather than supporting the rule of law, the Italian trial blatantly disregarded international law and treaty and the conduct of the in absentia proceedings simply followed one alleged human rights abuse with another.

This essay explains how the trial constituted a precedent setting breach by Italy of its international treaty obligations under the North Atlantic Treaty Organization Status of Forces Agreement. The essay then details the flawed in absentia trials, flaws which amount to a violation of the European Convention on Human Rights. Ultimately this essay concludes that while Italy may have spoken out against extraordinary rendition, the price for doing so was Italy’s own commitment to the rule of law and human rights.

"Permissible Self-Defense Targeting"

Denver Journal of International Law and Policy, Vol. 40, 2011
U of Houston Law Center No. 2010-A-35

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust

This essay addresses several points made during a presentation at the Sutton Colloquium at the University of Denver College of Law on November 6, 2010 concerning the permissibility of use of responsive force in self-defense either in the context of war or outside of a relevant armed conflict when non-state actors such as members of al Qaeda engage in continual armed attacks on the United States, its embassies abroad, and its nationals abroad (especially continual attacks for several years on U.S. military personnel in Afghanistan). The essay refers to and quotes from my article in FSU’s Journal of Transnational Law & Policy, Vol. 19 (2010), also available at SSRN. The essay notes that lawful measures of self-defense can occur outside the context of war and without foreign state consent against non-state actors who are directly participating in the armed attacks (DPAA) and, in the context of war, against persons who are directly participating in hostilities (DPH). In either context, general principles of distinction among persons, reasonable necessity, and proportionality will condition lawful uses of force. Indiscriminate uses of force either in self-defense or during war are impermissible.

"Pulling Back the Covers: Saleh v. Titan Corporation and (Near-) Blanket Immunity for Military Contractors in War Zones"

IAN S. SPEIR, Georgetown University Law Center
Email: iss23

Taking a cue from dicta in the Supreme Court’s most recent pronouncement on foreign affairs preemption, I suggest in this paper that courts faced with thorny questions about the liability of military contractors in war zones should be more straightforward in assessing the balance of interests at stake. In applying its tort law, a state has strong, legitimate interests in punishing and deterring wrongdoing by resident corporations and providing compensation to resident victims (whether they be employees of the contractor, U.S. soldiers, or otherwise). By the same token, the federal government has a paramount and exclusive interest in the conduct of war, although in some circumstances it may see state tort law as useful – as an off-the-shelf mechanism for helping regulate contractor misconduct.

Finally, in weighing these interests, the culpability of a contractor or its employees should be considered. Applying tort principles to mere negligence by contractors may frustrate the federal interest in prosecuting a successful war (which generally necessitates significant risk-taking). However, the more reckless or deliberate the wrongdoing is, the greater role state tort law has to play; similarly, the more attenuated the federal interest because egregious misconduct may itself violate federal law or policy.

"No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After" Description: Free Download

Oregon Law Review, Vol. 88, No. 3, pp. 745-775, 2009
University of Baltimore School of Law Legal Studies Research Paper No. 2010-11

CHARLES TIEFER, University of Baltimore School of Law
Email: ctiefer

As a Commissioner on the federal Commission on Wartime Contracting in Iraq and Afghanistan established by Congress in 2008, I have been immersed in the issue of how to control the abuses and injuries of private security contractors. The key incident epitomizing this issue occurred in late 2007, when members of the Blackwater Worldwide (Blackwater) private security firm were escorting a convoy of State Department personnel through Baghdad. At Nisour Square, the Blackwater guards, some of whom claim they faced a threat, opened fire on civilians, killing seventeen Iraqis. Public attention continued as five Blackwater employees were indicted in December 2008, and the case continued in 2009 until the court dismissed the charges due to improper prosecutorial use of the guards’ statements. Negative Iraqi public perceptions of private security contractors continued from 2009 to 2010.

This Article analyzes and builds upon the somewhat successful steps taken by the Department of Defense and the Department of State in 2008–2009 to manage the problem. Analyzing those steps shows a key strand consisting of what may be called the “contract law” approach. In the much expanded form proposed in this Article, the “contract law” approach would use government contract requirements, contracting tools and sanctions, contract-related claims, and distinctive contract-related suits to both control and remedy private security abuses and injuries. This Article continues my prior studies as a professor of government contracting law with a specific interest in the Iraq war.

"Attorney Advice and the First Amendment"

Washington and Lee Law Review, Forthcoming
MSU Legal Studies Research Paper No. 08-19

RENEE NEWMAN KNAKE, Michigan State University College of Law
Email: reneeknake

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence.

This article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice.

Part I of the article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application to advice rendered by attorneys, though both offer helpful illustrations of the important concerns at stake when the government legislatively constricts access to legal advice. Part II of the article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part III reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice.

"Cooperation in Foreign Terrorism Prosecutions"

Georgetown Journal of International Law, Vol. 42

ERIN CREEGAN, affiliation not provided to SSRN
Email: ecreegan

There are two basic models for criminal justice systems: the adversarial model, which exists in the United States, and the inquisitorial model, which is far more common. This article explains the most important features of the inquisitorial model, and shows how these legal differences can sometimes create an impediment when Americans attempt to assist in foreign terrorism prosecutions. Looking at some common problems: a lack of pre-trial coordination between investigator and prosecutor, multiple retrials, long appeals processes, shorter sentences, and early release; this article explains differences and attempts to find collaborative solutions so that other countries can utilize U.S. experiences to successfully disrupt and incapacitate terrorists on their soil.


upcoming event: LexisNexis “Open Source Intelligence Roundtable” Dec. 15, 2010 (1 to 3 at Nat’l Press Club)

November 21, 2010

* upcoming event: LexisNexis "Open Source Intelligence Roundtable" Dec. 15, 2010 (1 to 3 at Nat’l Press Club)

Open Source Intelligence (OSINT) Round table hosted by LexisNexis

Wednesday, December 15, 2010
1:00 – 3:00 P.M. (Doors open at noon)
National Press Club, Washington, D.C.

LexisNexis will host its next Open Source Intelligence (OSINT) Round Table at the National Press Club on December 15, 2010. Doors open at noon, program to begin at 1:00pm. The focus of this event will continue our exploration of "OSINT 2020: The Future of Open Source Intelligence."

The program will include keynote remarks by Mr. Doug Naquin, Director of the DNI Open Source Center, followed by a "perspectives" discussion with leading experts among our group of distinguished attendees. The discussion will be based on the future of OSINT as a recognized discipline in strategic and tactical national security decision-making.

The OSINT Round Table was created to make a public space for discussion about the government’s needs for Open Source Intelligence and to facilitate relationships between government officials and private sector leaders. We seek to foster an increasingly responsive open source intelligence infrastructure that meets the needs of national security decision makers.

Register to attend at www.lexisnexis.com/osint


Hays Parks on the Forthcoming DOD Law of War Manual

November 19, 2010

* Hays Parks on the Forthcoming DOD Law of War Manual

Many of us have been eagerly anticipating the revised edition of DOD’s Law of War Manual. Yesterday, Hays Parks delivered an address to the ABA Standing Committee on Law and National Security breakfast series in which he gave a fascinating overview of the process through which that revision has gone, along with a sense of what will be different about the new manual and when we can expect it.

It appears the new volume will exceed 1000 pages, and will be rich in detail relating to state practice rather than mere treaty quotations. Examples from the speech:

In contrast to FM 27-10’s single page, the DoD Manual weapons chapter is ninety-six single-spaced pages. This is a representative contrast between the DoD Manual and its immediate predecessor. Authors of the DoD Manual benefited from almost four decades of international discussions on the legality of weapons.

The new manual contains chapters on new topics. Non-international armed conflict, relatively unknown in 1956, evolved from a single article in the 1949 Geneva Conventions to the 1977 Additional Protocol II. Since the end of World War II, the United States military has fought three conventional armed conflicts for a cumulative time of less than four years. In the same time, they have engaged in counterinsurgency operations in three major armed conflicts lasting a cumulative 23 years. Therefore, non-international armed conflict merited a chapter. Technological developments have played a similar role, resulting in a 17-page chapter on information and cyberspace operations.

The written version of the speech is here. The audio, which includes lengthy Q&A, is here.

ABA speech 11082010 FINAL (AS GIVEN).pdf


update FW: Ghailani convicted on one conspiracy charge but acquitted on all other charges

November 17, 2010

Update: Ghailani was convicted of violating 18 USC 844(f)(3) and (n).

844(f) provides:

(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

(2) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct, directly or proximately causes personal injury or creates a substantial risk of injury to any person, including any public safety officer performing duties, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both.

(3) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct directly or proximately causes the death of any person, including any public safety officer performing duties, shall be subject to the death penalty, or imprisoned for not less than 20 years or for life, fined under this title, or both.

844(n) applies conspiracy liability to this provision, but takes the death penalty off the table:

(n) Except as otherwise provided in this section, a person who conspires to commit any offense defined in this chapter shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense the commission of which was the object of the conspiracy.

It is exceedingly hard to understand how a jury could conclude that Ghailani did conspire to bomb the embassy in question yet not also to kill the inevitable victims of the bombing. The situation smacks of a compromise verdict, unless of course one thinks the jury concluded that Ghailani new that the plan was to bomb the embassy yet though the scale would small and somehow not lethal.

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Wednesday, November 17, 2010 5:24 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] Ghailani convicted on one conspiracy charge but acquitted on all other charges

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

Ahmed Ghailani has been acquitted on all charges except for one of the six conspiracy counts; it is not clear which count this was, though the Post suggests that it is not a murder conspiracy count. In any event, depending on which count this was, the maximum sentence could be anything from 10 years to life or even the death penalty. See here for a chart detailing the many charges and the max sentences. Please let me know if you have more detailed information about which precise charge was the count of conviction.