nationalsecuritylaw United States v. Defreitas (E.D.N.Y. Feb. 17, 2011) (life sentence)

February 17, 2011

* United States v. Defreitas (E.D.N.Y. Feb. 17, 2011) (life sentence)

From DOJ’s press release:

BROOKLYN, NY – Russell Defreitas, 67, was sentenced earlier today to life in prison by U.S. District Judge Dora L. Irizarry for conspiring to commit a terrorist attack at John F. Kennedy International Airport in Queens, N.Y., by exploding fuel tanks and the fuel pipeline under the airport. Defreitas and his co-conspirators believed their attack would cause extensive damage to the airport and to the New York economy, as well as the loss of numerous lives.

The sentence was announced by Loretta E. Lynch, U.S. Attorney for the Eastern District of New York. The case was investigated by the FBI Joint Terrorism Task Force (JTTF) in New York.

A federal jury convicted Russell Defreitas and co-conspirator Abdul Kadir in July 2010 after a 9-week trial. The evidence at trial established that Russell Defreitas, a naturalized U.S. citizen from Guyana, originated the idea to attack JFK Airport, and its fuel tanks and pipelines by drawing on his prior experience working at the airport as a cargo handler.

In 2006 and 2007, Defreitas recruited Kadir and others to join the plot during multiple trips to Guyana and Trinidad. Between trips, Defreitas engaged in video surveillance of JFK Airport and transported the footage back to Guyana to show Kadir and their co-conspirators. Kadir, a trained engineer with connections to militant groups in Iran and Venezuela, provided the conspirators with links to individuals with terrorist experience, advice on explosive materials and a bank account through which to finance the terrorist attack.

On Dec. 15, 2010, Judge Irizarry sentenced Abdul Kadir to life in prison. A third defendant, Abdel Nur, pleaded guilty before trial to supporting the plot and was sentenced to 15 years on Jan. 13, 2011. A fourth member of the plot, Kareem Ibrahim, faces trial on the same charges as Defreitas and Kadir.

According to the trial evidence, Defreitas and his fellow plot members attempted to enlist support from prominent international terrorist groups and leaders, including Abu Bakr, leader of the Trinidadian militant group Jamaat Al Muslimeen, and Adnan El Shukrijumah, an al-Qaeda leader, as well as the Iranian revolutionary leadership. During cross examination at trial, Kadir, a former member of the Guyanese parliament, admitted that he regularly passed information to Iranian authorities about sensitive topics, including the Guyanese military, and believed himself bound to follow fatwas from Iranian religious leaders.

On June 1, 2007, Defreitas was arrested in New York, and Kadir was arrested in Trinidad aboard a plane headed to Venezuela, en route to Iran. He was subsequently extradited to the United States.

Defreitas was convicted of the following specific charges: conspiracy to attack a public transportation system, conspiracy to destroy a building by fire or explosive, conspiracy to attack aircraft and aircraft materials, conspiracy to destroy international airport facilities and conspiracy to attack a mass transportation facility.


nationalsecuritylaw Estela Lebron (Jose Padilla) v. Rumsfeld (D.S.C. Feb. 17, 2011)

February 17, 2011

* Estela Lebron and Jose Padilla v. Rumsfeld (D.S.C. Feb. 17, 2011) (dismissing suit) (note: Lebron is Padilla’s mother)

Judge Richard Gergel has granted a motion to dismiss on behalf of all defendants in the civil suit brought by former military detainee Jose Padilla against a host of former government officials and military officers. Judge Gergel concluded (i) no Bivens cause of action should be recognized in this context, (ii) defendants in any event are entitled to qualified immunity as to all of Padilla’s claims, and (iii) Padilla failed to allege facts sufficient to establish standing to seek declaratory and injunctive relief precluding the possibility of a transfer back to military custody upon completion of his 17-year criminal sentence (on the theory that any such prospect was, as yet, too remote).

Note that a district court in California in 2009 reached a contrary conclusion in a suit by Padilla and his mother against John Yoo.

Today’s full opinion is attached. Here are some key excerpts:

“The designation of Padilla as an enemy combatant and his detention incommunicado were made in light of the most profound and sensitive issues of national security, foreign affairs and military affairs. It is not for this Court, sitting comfortably in a federal courthouse nearly nine years after these events, to assess whether the policy was wise or the intelligence was accurate. The question is whether the Court should recognize a cause of action for money damages that by necessity entangles the Court in issues normally reserved for the Executive Branch, such as those issues related to national security and intelligence. This is particularly true where Congress, fully aware of the body of litigation arising out of the detention of persons following September 11, 2001, has not seen fit to fashion a statutory cause of action to provide for a remedy of money damages under these circumstances.”

“Should Padilla’s claims survive the Defendants’ motions to dismiss, one could easily imagine a massive discovery assault on the intelligence agencies of the United States Government, to include dozens of subpoenas, numerous requests to produce, 30(b)(6) depositions of document custodians at various intelligence and defense agencies, and lengthy and probing depositions of high ranking government officials with national security clearances and personal knowledge of some of the Nation’s most sensitive information. The management and conduct of such pre-trial litigation would require the devotion of massive governmental resources, which by necessity would then distract the affected officials from their normal security and intelligence related duties. In an effort to assess the quality and veracity of the President’s designation and the declarations by various government officials, Padilla’s counsel would likely seek information on intelligence methods and interrogations of other Al Qaeda operatives. All of this would likely raise numerous complicated state secret issues. A trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America’s present and former leaders to a federal courthouse to answer his charges. This massive litigation would have been authorized not by a Congressionally established statutory cause of action, but by a court implying an action from the face of the American Constitution.”

“In light of this quite extraordinary litigation history, the remarkable circumstances regarding the President’s direct written order designating Padilla an enemy combatant, and the President’s direction to subordinate officials to detain Padilla, it is hard for the Court to imagine a credible argument that the alleged unlawfulness of Padilla’s designation as an enemy combatant and detention were "clearly established" at that time. The strikingly varying judicial decisions appear to be the very definition of unsettled law, and the Fourth Circuit’s order, which is the law of the case, actually finds the detention and designation lawful. Indeed, an argument could be made that the Fourth Circuit’s holding constitutes collateral estoppel on the issue of the lawfulness of Padilla’s designation and detention. The Court finds it unnecessary to reach the collateral estoppel issue here, but suffice it to say that if a credible argument for collateral estoppel could be made then it would be difficult to argue that the contrary position of the Fourth Circuit was the then "clearly established" law. Therefore, to the extent that a viable cause of action were found to exist under the Constitution, the Court finds that all defendants are entitled to qualified immunity on all issues relating to Padilla’s designation and detention as an enemy combatant.”

“It is not necessary for the Court to address the lawfulness of Padilla’s treatment while detained as an enemy combatant to resolve the defendants’ assertion of a qualified immunity defense, and the Court specifically declines to do SO. At the time of the Padilla’s detention by the Department of Defense, there were few "bright lines" establishing controlling law on the rights of enemy combatants. Maciarello v. Sumner, 973 F.2d at 298. No court had specifically and definitively addressed the rights of enemy combatants, and the Department of Justice had officially sanctioned the use of the techniques in question. While it is true there was vigorous intragovernmental debate on this issue during Padilla’s detention, the qualified immunity case law makes clear that government officials are not charged with predicting the outcome of legal challenges or to resolve open questions of law. Francis v. Giacomelli, 588 F.3d at 196; McIvey v. Stacey, 157 F.3d at 277. Moreover, a final judicial resolution of the legal rights of enemy combatants would require a "sophisticated balancing of interests" of the detainee’s asserted rights and the government’s profound interests in national security and avoiding future terrorist attacks. Engaging in such ”particularized balancing" of interests precludes a finding of clearly established law, except in the most egregious circumstances. McIvey v. Stacey at 277; DiMeglio v. Haines, 45 F.3d at 806; Medina v. City & County o/Denver, 960 F.2d at 1498.Taking the allegations of the Plaintiffs’ Complaint as true for purposes of this motion, theCourt finds that it was not clearly established at the time of his designation and detention that Padilla’s treatment as an enemy combatant, including his interrogations, was a violation of law. Therefore, to the extent a viable claim under the Constitution were found to exist, the Court finds that the defendants are entitled to qualified immunity regarding all claims of alleged constitutional violations arising out of Padilla’s detention as an enemy combatant.”

Motion to Dismiss Order – Padilla v. Rumsfeld (2.17.11).pdf


nationalsecuritylaw upcoming event:

February 17, 2011

* Upcoming event: “DOJ’s Ex-Detainee Lawyers: The Ethics Issue” (Feb. 23, 2011)

The Federalist Society is sponsoring a conference call presentation by Hon. Edwin D. Williamson and Prof. Richard W. Painter concerning questions they have raised about the role at the Justice Department of attorneys who previously represented GTMO detainees or filed briefs on their behalf. The call takes place at 2:30 pm eastern time. The dial-in number is 1-888-632-4541. The talk apparently will be based on this piece, published in volume 11 of Engage.


nationalsecuritylaw Wiley-Blackwell Publishing seeks author for article on Geneva Conventions

February 17, 2011

* Wiley –Blackwell Publishing seeks author for article on the Geneva Conventions

An editor at Wiley-Blackwell Publishing writes with the following request. Please see his contact information below if you are interested:

I am editing a 5 volume Encyclopedia of Globalization for Wiley-Blackwell. I am in need of an entry on Geneva Conventions, ideally about 5,000 words (although flexible on that). I need the entry by March 15, 2011.

Please Contact: George Ritzer, Distinguished University Professor, University of Maryland, ritzer