nationalsecuritylaw Al-Warafi v.

February 22, 2011

* Al-Warafi v. Obama (D.C. Cir. Feb. 22, 2011)

The D.C. Circuit has remanded in al-Warafi v. Obama, a GTMO habeas case that presents the question whether (i) al-Warafi was part of the Taliban and (ii) whether he constituted a “medic” subject to the protections of Article 25 of the First Geneva Convention. The circuit panel (Ginsburg, Garland, and Williams) affirmed the district court’s conclusion to the effect that al-Warafi was in fact a Taliban member, but remanded to the district court for further findings as to his asserted status as a Taliban medic. The short opinion is posted here. For more context, see Ben Wittes’s summary of the oral argument here.

Al Warafi DC Cir Decision.pdf

nationalsecuritylaw Alsabri v. Obama (D.D.C. Feb. 3, 2011) (GTMO habeas petition denied)

February 21, 2011

* Alsabri v. Obama (D.D.C. Feb. 3, 2011) (GTMO habeas petition denied)

In a 60-page opinion issued earlier this month but released in unclassified form last Friday, Judge Urbina has denied habeas relief to Mashour Abudllah Muqbel Alsabri, a GTMO detainee from Yemen. Highlights from the opinion:

Substantive Scope of Detention Authority – Judge Urbina cites the Circuit’s al Bihani opinion for the proposition that detention can rest either on membership or material support grounds. The opinion states that the evidence of material support is weak in this instance, but also that there is no need to address it since the government carries its burden with respect to membership (see n.12).

Facts Supporting Membership – Key facts found in the government’s favor, contributing to a showing of membership in al Qaeda, the Taliban, or associated forces, include: traveling to Afghanistan to obtain military-style training and to fight there, staying at multiple Pakistani and Afghan guesthouses operated by al Qaeda and the Taliban, actually obtaining military training from the Taliban or al Qaeda, traveling to the Taliban’s front lines, and continuing to be associated with al Qaeda or the Taliban thereafter until his capture.

nationalsecuritylaw 14-year sentence for Noor Uthman Mohammed (Mil. Com. Feb. 18, 2011)

February 19, 2011

Update: Muhammed today received a 14-year sentence.

From: Robert Chesney []
Sent: Tuesday, February 15, 2011 12:12 PM
Subject: [nationalsecuritylaw] United States v. Muhammed (Mil. Comm. Feb. 15, 2011) (guilty plea)

* United States v. Muhammed (Mil. Comm. Feb. 15, 2011) (guilty plea)

From DOD’s press release, a brief explanation:

The Department of Defense announced that Noor Uthman Muhammed pleaded guilty today in a military commission. In accordance with a pre-trial agreement, Muhammed admitted, in open court, to providing material support to terrorism and conspiring to provide material support to terrorism. His sentence will be determined at a hearing scheduled to begin Feb. 16.

nationalsecuritylaw upcoming events: “The World at War: Photography Beyond the Front Lines” ; “Next Step After New START: A Treaty on Tactical Nuclear Weapons?”

February 19, 2011

* upcoming events:

"The World at War: Photography Beyond the Front Lines" (ICRC and South Texas College of Law) (Feb. 23)

Please see the attached flyer for details for this cool event – check it out if you are in Houston!

“Next Step After New START: A Treaty on Tactical Nuclear Weapons?” (Georgetown) (March 1)

Georgetown’s Center on National Security and the Law, and the Georgetown Federal Legislation and Administrative Clinic

The U.S. Senate’s resolution approving the New START treaty calls for negotiations with Russia regarding tactical nuclear arms, and President Obama has renewed his promise to pursue discussions. However, due to the special challenges associated with extending nuclear arms control to tactical warheads and a host of complicated contextual factors – from missile defense, to NATO nuclear policy, to politics in Moscow and Washington – negotiating a treaty or other agreement will require careful thought and analysis starting now.

Please save the date for a discussion with distinguished scholars and practitioners on this important issue at the intersection of law and policy.

Tuesday, March 1, 2011

1:00 pm

Gewirz Hall, 12th Floor
Georgetown University Law Center

Additional event details to follow.

The event will be followed by a general reception

Please RSVP to rsvp2; contact nationalsecurity with questions.

inviteICRCrev2The World at War.pdf

nationalsecuritylaw forthcoming scholarship from the American Intelligence Journal

February 19, 2011

* Forthcoming Scholarship from the American Intelligence Journal

The American Intelligence Journal recently published a nifty special issue on “intelligence and the rule of law.” The article descriptions appear below, but alas the articles themselves aren’t currently online. To get the hard copy, contact the National Military Intelligence Association at admin.

“Intelligence, Law Enforcement, and International Law”

M.E. “Spike” Bowman

American Intelligence Journal (2010), available by subscription only; contact admin

All nations take as an article of faith that national borders are sacrosanct – that internal affairs are the business of the national government alone. If we were to ask ourselves why this is so, we would find the answer more than four centuries distant. However, the fundamental premise on which these rest is the ability of the sovereign to control his own lands. Today we increasingly find that internal unrest, climate change, ethnic conflict and even natural disaster stretch the original concept to the breaking point.

Then, too, the current dangers of transnational threats such as terrorism, weapons proliferation, organized crime and human trafficking belie the sanctity of international borders on which our international political system depends. The perpetrators, their actions and their harms spring from all corners of the globe and they spread thin national legal jurisdictions in a way that commonly defeats the ability of both traditional intelligence gathering and law enforcement effectively to combat the threats.

In a remarkable turnabout from history; the primary dangers today arise not from powerful nations, but from weak ones – nations that are hospitable to corruption, crime and terrorism because they do not have internal strength to withstand these forces. For the first time in human history, the primary threats to society arise out of non-state actors who have refuge in nations too weak to govern. From this arises a unique problem – neither our intelligence nor our law enforcement communities have strongly vested foci on weak nations. Both institutions must re-evaluate their needs and their capabilities.


“The Original Privatization of Intelligence: Iran-Contra Revisited”

Scott Glabe, Yale Law School


American Intelligence Journal (2010), available by subscription only; contact admin

This article revisits the Iran-Contra scandal and particularly the role of CIA Director William J. Casey, who functioned as a shadow Secretary of State for much of the early 1980s. It argues that, properly understood, the scandal was but one aspect of a failed attempt to privatize intelligence operations—rather than merely an illicit “diversion” of funds from the U.S. Treasury to the Nicaraguan Contras. It also contends that President Reagan, his senior staff, and perhaps even Director Casey did not know exactly how the Contras were being funded. Indeed, the opportunity to remain ignorant of such matters—and thus comply with the letter if not the spirit of the Boland Amendments—was the impetus for devolving operational authority to the National Security Council in the first place.

By encouraging NSC to "go operational," Director Casey sanctioned not just a secret operation but also a secret policy. As the aftermath of Iran-Contra demonstrated, the American system of government is extremely hostile to such policies. However, it is worth noting that republican democracy does not always prevent the adoption of secret policies; rather, it tends to punish their authors and force their repeal, often well after the fact.


“Leashing the Internet Watchdog: Legislative Restraints on Electronic Surveillance in the U.S. and UK”

John Heekin, Catholic University Law School


American Intelligence Journal (2010), available by subscription only; contact admin

The article examines the legislative approaches undertaken by the United States of America and the United Kingdom to regulate the surveillance and interception of electronic communications. Drawing from the recognition of individual privacy rights, the author explores the development and impact of national statutory provisions enacted to accomplish effective oversight of the respective intelligence services within each country.

In the United States, the shifting purposes and provisions of the Foreign Intelligence Surveillance Act of 1978 are tracked from the initial implementation of the legislation to its subsequent revisions following the terrorist attacks of September 11, 2001. Along that timeline, a distinct trend toward greater deference to Executive authority for electronic surveillance operations becomes apparent, though mechanisms for legislative oversight remain in force.

Contrasting the well-established system of legislative oversight in the United States, parliamentary power to regulate the security and intelligence services in the United Kingdom is significantly restricted. However, this restriction appears to be imposed, at least in part, by the legislature itself. Limited access to pertinent information and broad mandates for intelligence service operations hamstring legislative oversight efforts by Parliament, while knowledge of and control over such activities is predominantly left to the Executive office.

Threats to individual privacy from pervasive and unregulated government surveillance of electronic communications are counter-balanced by the interests of national security to regulate such transmissions as a vital component of the global war on terrorism. Although the balance is challenging, democratic societies must strive to ensure effective oversight mechanisms are in place to prevent abusive infringements of personal liberties while protecting the interests of national security.


“Fixing What Isn’t Broken: How Congressional Oversight Has Adapted to the Unique Nature of the Intelligence Community”

Sterling Marchand, House Committee on Homeland Security


American Intelligence Journal (2010), available by subscription only; contact admin

This article explores the nature of Congressional oversight over the intelligence community. Many have argued that Congressional oversight of intelligence is "broken" and has led to specific intelligence failures. A wide variety of proposals have been made to "fix" this problem – some of which have been implemented, the majority of which have been not. This article argues that while Congressional oversight of the intelligence community is unique and does not follow a "traditional" pattern of oversight, it is far from "broken" or ineffective.

It begins with an examination of the roles that Congressional oversight play generally, and the methods by which committees conduct oversight. It then contrasts the intelligence community with other Executive branch agencies – drawing distinctions that complicate the oversight process.

The article argues, however, that these distinctions do not imply that oversight of the intelligence community is "broken." Rather, the article explains how these "traditional" methods of oversight have adapted to the unique nature of the intelligence community. The article closes with an examination of the various proposals for reform and why each will not "improve" oversight of the intelligence community.


“The Intelligence Community: Resolving Conflicts Between Agencies for National Security”

Rachel Segall, Cardozo Law School


American Intelligence Journal (2010), available by subscription only; contact admin

This article explores government and public opinion of current information-sharing policies and procedures within the Intelligence Community (“IC”). In order to better understand the current state of the IC, the article initially focuses on the IC’s history, introducing deep-rooted traditions of secrecy and suspicion. The author then assesses the reform measures adopted by the IC after the September 11, 2001 attacks. While noting that these reform measures were much needed changes, the author concludes that the IC must continue modifying its processes to promote information sharing. In particular, the Fort Hood shooting and Christmas Day bomb plot in 2009 – where reports indicate that the IC was well aware of potential threats against the United States before each incident – are clear evidence that the reform measures were incomplete, or even unsuccessful.

In order to combat the potentially tragic information sharing lapses within the Intelligence Community, the article proposes a unique means of managing and reducing information-sharing obstacles: binding arbitration between the conflicting agencies. The current procedures within the IC, while improved since September 11, 2001, still permit agencies to withhold information from other IC agencies, and provide no incentives for information sharing. In turn, the author proposes that binding arbitration should be the only means of exempting information from dissemination within the Intelligence Community. A mandatory attendance policy for all Authorized IC Personnel or IC agency heads at these binding arbitrations would ultimately disincentivize secrecy, prevent information gaps, and create an atmosphere of candidness that has been missing from the Intelligence Community for many years.

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