nationalsecuritylaw job opp: Staff Jobs for Constitution Project Task Force on Detainee Treatment

January 27, 2011

* Job opp: Constitution Project’s new “Task Force on Detainee Treatment” seeks staff

See the attached document for the details – there are several positions at issue. As to the Task Force itself, this is what the Constitution Project says on its website:

Task Force on Detainee Treatment Launched

WASHINGTON – The Constitution Project (TCP) announced the formation of a bipartisan Task Force

on Detainee Treatment. The goal of the Task Force is to bring to the American people a comprehensive

understanding of what is known and what may still be unknown about the past and current treatment

of detainees by the U.S. government, as part of the counterterrorism policies of the Obama, Bush and

Clinton administrations.

The Task Force will help policymakers and the public confront alleged past abuses—including torture

and cruel treatment—by following the facts. As an ideologically diverse, objective, third party the Task

Force is uniquely positioned to make sense of the vast quantity of information in the public domain. It

will review this information, determine where the holes are and then pass the baton to the

administration, Congress and ultimately—to the American people—who will determine what steps

should be taken next.

According to TCP President Virginia Sloan, “The Task Force is an idea that took shape over a period of

nearly two years, with support and input from a broad coalition of organizations and individuals with an

interest in protecting America’s civil liberties and strengthening the rule of law.”

Asa Hutchinson, a Task Force Chair and the former Undersecretary of the Department of Homeland

Security during the George W. Bush administration remarked, “This is a national security issue. We are

still facing a real threat from terrorists and others who don’t trust or like us. It is in all of our interests to

discover the truth, so that we can deal with the accusations, make whatever reforms may be needed,

and strengthen America’s credibility on the world stage.”

The Task Force chairpersons and members are:

 Eleanor J. Hill ‐ Task Force Chairperson; Partner, King & Spalding; Staff Director, Joint

Congressional Inquiry on the September 11th attacks; Inspector General, Department of

Defense, 1995‐1999

 Asa Hutchinson ‐ Task Force Chairperson; Senior Partner, Asa Hutchinson Law Group;

Undersecretary, Department of Homeland Security during the George W. Bush administration,

2003‐2005; Administrator, Drug Enforcement Administration, 2001‐2003; Member of Congress,

(R‐AR), 1997‐2001; U.S. Attorney, Western District of Arkansas, 1982‐1985

 Ambassador James R. Jones ‐ Task Force Chairperson; Partner, Manatt, Phelps & Phillips, LLP;

Member of Congress (D‐OK), 1973‐1987; Ambassador to Mexico, 1993‐1997

 Talbot “Sandy” D’Alemberte – Past President of the American Bar Association and Co‐Founder

of the ABA’s Central European and Eurasian Law Institute; President Emeritus of The Florida

State University


 Richard A. Epstein ‐ Laurence A. Tisch Professor of Law, New York University Law School; Peter

and Kristen Bedford Senior Fellow, The Hoover Institution; Senior Lecturer, University of Chicago

Law School

 Dr. David P. Gushee ‐ Distinguished University Professor of Christian Ethics and Director, Center

for Theology and Public Life, Mercer University

 Azizah al‐Hibri ‐ Professor, The T.C. Williams School of Law, University of Richmond; President,

Karamah (Muslim Women Lawyers for Human Rights)

 Brigadier General David Irvine, USA (Ret.) ‐ in the private practice of law’ in Salt Lake City, Utah;

Retired Army Reserve strategic intelligence officer; taught prisoner interrogation and military

law for 18 years with the Sixth Army Intelligence School; served 4 terms as a Republican

legislator in the Utah House of Representatives

 Judge William S. Sessions ‐ Partner, Holland & Knight; Director of the FBI, 1987‐1993; Chief

Judge, 1980‐1987, and Judge, 1974‐1987, U.S. District Court for the Western District of Texas;

U.S. Attorney, Western District of Texas, 1971‐1974

 Gerald E. Thomson, MD – Lambert and Sonneborn Professor of Medicine Emeritus at Columbia

University; Chair, Board of the Institute on Medicine as a Profession; Board Member, Physicians for

Human Rights, 2005‐10; President, American College of Physicians, 1995‐96

 Judge Patricia M. Wald ‐ Member, President’s Commission on the Intelligence Capabilities of the

United States Regarding Weapons of Mass Destruction, 2004‐2005; Judge, 1979‐1999, and Chief

Judge, 1986‐1991, U.S. Court of Appeals for D.C. Circuit; Judge, International Criminal Tribunal

for the Former Yugoslavia, 1999‐2001

The following endorsers have also agreed to lend support to the TF members, staff, and the project:

 Wayne Budd ‐ Senior Counsel at Goodwin Procter LLP; Associate Attorney General of the United

States, 1992; United States Attorney for the District of Massachusetts, 1989‐1992

 Lee H. Hamilton – Director & Founder, The Center on Congress at Indiana University; Member,

Homeland Security Advisory Council; President and Director of the Woodrow Wilson

International Center for Scholars, 1999‐2010; Vice‐Chair, 9/11 Commission, 2002‐2004; Member

of Congress, (D‐IN), 1965‐1999

 Alberto Mora ‐ General Counsel of the Navy, 2001‐2006

 William H. Taft IV ‐ Legal Adviser to the U.S. Department of State, 2001‐2005

TCP will oversee this initiative under the leadership of President Virginia Sloan and with the support of

its staff. TCP is in the process of hiring a team dedicated solely to the work of the Task Force and

expects the research and investigation phases of the project to begin in January, 2011. It is estimated

that the Task Force will release its final report in 12‐18 months.

Task force jobs – official logo[1].pdf


nationalsecuritylaw forthcoming scholarship

January 27, 2011

* Forthcoming Scholarship

[note: Ben’s book Detention and Denial, the second one below, would be especially good for those of you who teach seminars or even survey courses touching on detention law and policy.]

Preventive Detention in American Theory and Practice

Harvard National Security Journal (vol. 2, issue 1)

Adam Klein (Columbia)

Benjamin Wittes (Brookings)

In Preventive Detention in American Theory and Practice, Adam Klein and Benjamin Wittes show that contrary to civic mythology, the extra-criminal detention of terrorism suspects is not “an extraordinary aberration from a strong American constitutional norm.” The authors argue that a survey of American wartime, emergency, criminal justice, immigration, and health authorities illustrate that American law has not traditionally eschewed preventative detention where legislatures and courts deem it necessary to prevent grave public harms.” Therefore, “if counterterrorism detention is necessary and tailored to encompass only the truly dangerous it fits relatively comfortably in conceptual terms alongside the many powers state and federal legislatures have given governments to detain citizens and non-citizens alike.”

Detention and Denial (Brooking Institution Press 2010)

Benjamin Wittes (Brookings)

“Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas. . . . It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody.”
—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law “eschews it except when legislatures and courts deem it necessary to prevent grave public harm.” But the habeas corpus legal cases that have come out of the Guantánamo Bay detention facility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America’s current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to “devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing.”

nationalsecuritylaw ACLU v. Dep’t of Defense (D.C. Cir. Jan. 18, 2011)

January 27, 2011

* ACLU v. DOD (D.C. Circ. Jan. 18, 2011) (affirming grant of summary judgment dismissing FOIA challenge relating to detention and interrogation docs)

The opinion (issued early last week, actually) is posted here. Larkin Reynolds has a great summary here.

nationalsecuritylaw job opportunity – OSCE training program re human rights and counterterrorism

January 27, 2011

* job opportunity – OSCE training program re human rights and counterterrorism

An unusual and interesting opportunity. If you are curious about the “best practices” manual that appears to be the foundation for this program, see here:

Vacancy roster of experts HRAT_1.pdf

nationalsecuritylaw The Encyclopedia of Transnational Crime and Justice seeks authors

January 25, 2011

* The Encyclopedia of Transnational Crime and Justice seeks contributors

CALL FOR AUTHORS: Encyclopedia of Transnational Crime and Justice

We are inviting academic editorial contributors to a new 1-volume reference work on the causes, consequences, and other facets of transnational crime and justice.

Transnational crimes are not only crimes that happen to cross nations’ borders but that involve border crossings as an integral part of the criminal activity. Transnational crimes also include crimes that take place in one country with consequences that significantly affect other countries. Examples of transnational crimes include human trafficking, smuggling (arms, drugs, currency, etc.), sex slavery, non-domestic terrorism, and financial crimes. It is this proposed encyclopedia’s emphasis on transnational justice, as well, that differentiates it from the current reference literature. Not only do we define, describe, and chart the crimes and criminal activity, we also include significant coverage of policing those crimes and prosecuting them within domestic and international court systems. The work contains approximately 150 signed entries with Cross-References (“see-also”) and suggestions for Further Readings.

We are now making assignments for new authors due February 25, 2011.

This comprehensive project will be published by SAGE Reference and will be marketed to academic and public libraries as a print and digital product available to students via the library’s online services. The General Editor, who will be reviewing each submission to the project, is Dr. Margaret Beare at York University’s Osgoode Hall Law School.

If you are interested in contributing to this outstanding reference, it is a unique opportunity to contribute to the contemporary literature. Moreover, it can be a notable publication addition to your CV/resume and broaden your publishing credits. SAGE Publications offers an honorarium ranging from SAGE book credits for smaller articles up to a free set of the printed product for contributions totaling 10,000 words or more.

The list of available articles is already prepared, and as a next step we will e-mail you the Article List (Excel file) from which you can select topics that best fit your expertise and interests. Additionally, Style and Submission Guidelines will be provided that detail article specifications.

If you would like to contribute to building a truly outstanding reference with the Encyclopedia of Transnational Crime and Justice, please contact me by the e-mail information below. Please provide a brief summary of your academic/publishing credentials in related issues.

Thanks very much.
Joseph K. Golson

nationalsecuritylaw United States v. Ghailani (S.D.N.Y. Jan. 25, 2011) (life sentence)

January 25, 2011

* United States v. Ghailani (S.D.N.Y. Jan. 25, 2011)

Life sentence for Ghailani today.

nationalsecuritylaw United States v. Ghailani (S.D.N.Y. Jan. 21, 2011)

January 24, 2011

* United States v. Ghailani (S.D.N.Y. Jan. 21, 2011)

Judge Kaplan has denied Ghailani’s motion for judgment of acquittal or, in the alternative, for a new trial. The opinion is posted here. Among the other interesting aspects of the opinion, here is the section dealing with the critical “conscious avoidance” charge:

The theory of Ghailani’s defense was that he was an innocent dupe. This contention permeated his defense. Nonetheless, Ghailani argues that the evidence did not justify the giving of a conscious avoidance charge and that he therefore is entitled to a new trial.

In our Circuit,

“A conscious avoidance instruction is properly given (i) when a defendant asserts the lack of some specific aspect of knowledge required for conviction, and (ii) the appropriate factual predicate for the charge exists, i.e., the evidence is such that a rational juror may reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.”225

The first condition clearly was satisfied here because (1) knowledge of one or more of the objects of the conspiracy alleged in Count 5 was required in order to convict Ghailani on that count, and (2) Ghailani argued to the jury that he “didn’t know the objective of the conspiracy.”226 The second condition was satisfied also. For the same reasons that a jury was entitled to infer Ghailani’s actual knowledge of at least one object of the conspiracy,227 a reasonable jury could have found also that Ghailani, assuming he lacked actual knowledge, was aware of a high probability that the object of the conspiracy was to bomb the embassies and that he consciously avoided confirming that fact.

Ghailani and his associates bought a truck that he could not drive and gas cylinders for which neither he nor they had any known use save as bomb components. He possessed a large quantity of detonators or blasting caps of the sort used in making the truck bombs. That a plot was afoot to bomb something was obvious, and the jury was entitled to find that Ghailani knew at least that much. In addition, there was ample evidence that Al Qaeda effectively had declared war on the United States and Americans generally, civilian as well as military. It regarded U.S. embassies as attractive targets. Ghailani was well acquainted and associated closely with Al Qaeda members and operatives whom the jury reasonably could have found to have known of these objectives and shared them with Ghailani. In these circumstances, the evidence was more than sufficient to warrant a rational jury in concluding that Ghailani, even if ignorant of the specific bombing targets, was aware of a high probability that they included U.S. embassies and consciously avoided learning that fact.

The conscious avoidance charge was proper.