nationalsecuritylaw Doe v. United States (Ct. of Fed. Claims Nov. 10, 2010) (rejecting 5th Am takings claim by Iraqi citizen in re Fallujah)

December 2, 2010

* Doe v. United States (Ct. Fed. Claims Nov. 10, 2010) (rejecting 5th Am takings claim by Iraqi citizen in re Fallujah)

A very interesting opinion from the Court of Federal Claims three weeks ago. In brief, the plaintiff is an Iraqi resident of Fallujah whose home was occupied by Marines in the summer of 2004. It seems the Marines razed a wall surrounding the property, and that after the Marines departed unknown persons ransacked the house itself. Coalition forces offered a settlement payment as compensation for the fence and for displacing the plaintiff, but the plaintiff elected instead to sue, invoking the 5th Amendment Takings Clause.

In this opinion, the Court of Federal Claims relies on Eisentrager (and distinguishes Boumediene) en route to determining that a non-citizen with no substantial connections to the United States lacks standing to invoke 5th Amendment protections, and also concludes that the Takings Clause in any event does not require the government to pay compensation where, as here, its property-related actions stem from military necessity (rejecting the plaintiff’s argument that necessity should be construed in this context as requiring temporal imminence). The 55-page opinion explores these and other matters in considerable detail, and is well worth a read.

United States v. DeFelice (D. Conn. Dec. 1, 2010); forthcoming scholarship

December 2, 2010

1. United States v. DeFelice (D. Conn. Dec. 1, 2010) (guilty verdict)

A jury has found Alexander DeFelice guilty on several conspiracy and firearm counts relating to a sting in which he thought he was selling guns and grenades to white supremacist group. Details from the press release follow:

BRIDGEPORT, Conn. – A federal jury in Bridgeport, Conn., today found Alexander DeFelice, 33, of Milford, Conn., guilty of conspiracy and firearms offenses stemming from an alleged attempt to sell firearms and explosive grenades to what he thought was a white supremacist group located outside of Connecticut, announced David B. Fein, U.S. Attorney for the District of Connecticut. The jury found DeFelice’s co-defendants Kenneth Zrallack, 29, of Ansonia, Conn., and David Sutton, 46, of Milford, not guilty of conspiring with DeFelice and others in the same conspiracy. The trial began on Nov. 15, 2010, and the jury returned the verdicts this morning.

…According to the evidence at trial, in late 2008 and early 2009, DeFelice associated with a cooperating witness working under FBI supervision. DeFelice and the witness attended meetings of a white supremacist group known as the Connecticut White Wolves, and drove to and from meetings of another such group known as North East White Pride. The cooperating witness had identified himself to DeFelice as a member of a large, out-of-state white supremacist group known as the Imperial Klans of America (IKA). Also, the witness let it be known that he was a convicted felon. Over the course of a series of discussions about firearms, DeFelice offered to sell the cooperating witness semi-automatic weapons and ammunition.

On March 9, 2009, DeFelice advised the cooperating witness that he had a deal arranged and, later that evening, the witness went to meet DeFelice in the garage of his home in Milford. Also in the garage were William Bolton of Milford, Conn., and Edwin Westmoreland of Stratford, Conn. After some discussion, DeFelice and the other defendants sawed off the barrel of a shotgun and sold it to the cooperating witness for $300.

The evidence also showed that on March 23, 2009, DeFelice arranged a meeting with the cooperating witness in the parking lot of a Hamden, Conn., shopping plaza, and told the witness he could arrange to provide the witness’ “people,” referring to the IKA, with grenades and other live explosive devices. Eventually, DeFelice requested, and the cooperating witness provided, three empty grenade shells that DeFelice advised would be converted into live grenades.

On Nov. 11, 2009, DeFelice and Westmoreland sold a rifle and a shotgun to the cooperating witness.

On Jan. 23, 2010, DeFelice, with Westmoreland’s assistance, completed making the explosive grenades and sold and delivered them to the cooperating witness for $3,000.

On Jan. 28, 2010, five days after the grenades sale, the FBI conducted a court-authorized search of DeFelice’s residence, where they found and seized a 12-gauge shotgun, live rounds of ammunition of various calibers, and several items used to make the explosive grenades. DeFelice was arrested at that time.

Today, the jury found DeFelice guilty of one count of conspiracy, two counts of transferring a firearm to a convicted felon, one count of making explosive grenades and one count of transferring explosive grenades. Following the jury’s verdicts, DeFelice also pleaded guilty to two counts of possession of a firearm by a previously convicted felon.

Sentencing has been scheduled for Feb. 18, 2011, at which time DeFelice faces a total maximum term of 65 years in prison.

DeFelice has been detained in federal custody since his arrest on Jan. 28, 2010.

On June 29, 2010, Edwin Westmoreland pleaded guilty to one count of sale of a firearm to a convicted felon, and one count of conspiracy to sell firearms to a convicted felon and to make and transfer unregistered firearms consisting of explosive grenades. On Aug. 18, 2010, William Bolton pleaded guilty to one count of Hobbs Act robbery conspiracy, and one count of sale of a firearm to a convicted felon. Westmoreland and Bolton await sentencing.

2. Forthcoming Scholarship

The End of Al Qaeda? Rethinking the Legal End of the War on Terror

Columbia Law Review

Adam Klein (Columbia)

As the war on terrorism approaches its second decade, the open-ended nature of the 2001 Authorization for the Use of Military Force (AUMF) has given rise to the legal question of when, and how, the conflict will end. The indeterminate nature of the conflict has raised fears that the war powers will continue to be exercised indefinitely–a prospect noted with concern by the Supreme Court in Boumediene v. Bush. The prevailing view among legal scholars is that under existing precedents, the AUMF and the concomitant war powers will continue indefinitely in force until the political branches officially declare the conflict to have ended. This Note argues that this binary, "on/off" model of conflict termination is ill-adapted to a war against a rapidly evolving, amorphous terrorist threat. Contrary to the monolithic conception of "terrorism" relied upon by many legal scholars, the nature and structure of the terrorist threat are disputed within the counterterrorism community. Some analysts argue that the primary terrorist threat to the United States emanates from the hierarchically organized "core" al Qaeda based in the Pakistani tribal areas; others, from a decentralized "leaderless jihad" conducted by self-directed homegrown terrorists. This Note uses this debate, together with recent historical studies analyzing how terrorist groups end, as a lens through which to demonstrate how the amorphous, evolving nature of the al Qaeda threat undermines the prevailing on/off model of the legal end of the war on terrorism. It concludes by suggesting principles for constructing a more apt legal model of how and when the war on terrorism, and the legal authorities for fighting it, will come to an end.

"Communications Privacy in the Military"

Berkeley Technology Law Journal, Vol. 25, 2010
Widener Law School Legal Studies Research Paper No. 10-27

JUSTIN G. HOLBROOK, Widener University School of Law
Email: holbrook7

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose – including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.

Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.

With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

Counterterrorism, the Constitution, and the Civil-Criminal Divide: Evaluating the Designation of U.S. Persons Under the International Emergency Economic Powers Act

Eric Sandberg-Zakian
Covington & Burling LLP

Harvard Journal on Legislation, Vol. 48, p. 301, 2010

The International Emergency Economic Powers Act empowers the executive branch to designate organizations and individuals “Specially Designated Global Terrorists.” Though IEEPA designation is used against both domestic and foreign entities, its consequences are most severe within the United States. The designee’s assets are frozen and transacting with the designee becomes a federal felony. For an American organization, IEEPA designation is a death sentence. For an American individual, it amounts to house arrest. This Article analyzes IEEPA using the Mendoza-Martinez test for determining whether a purportedly civil statute imposes criminal punishment and concludes that IEEPA designation of U.S. persons violates the Fifth and Sixth Amendments by imposing criminal punishment without providing the required procedural protections. This Article offers a new framework for evaluating preventive counterterrorism policies and provides clarity to a notoriously unclear area of constitutional law – the jurisprudence of the civil-criminal divide.