nationalsecuritylaw more upcoming events: HPCR on Libya, CIAJ on Recent Developments in Anti-Terrorism

* More upcoming events:

1. Harvard University Program on Humanitarian Policy and Conflict Research, “Crisis in Libya: Planning the International Response”

On April 5 at 9:30 (EDT – Boston) we’ll be presenting our next Live Web Seminar on the “Crisis in Libya: Planning the International Response.” The presenters include Luis Moreno-Ocampo, Prosecutor, ICC; R. Nicholas Burns, The Sultan of Oman Professor of the Practice of International Relations, Harvard KSG; Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, HRW; Dirk Vandewalle, Associate Professor of Government, Dartmouth College; and Philippa Thomas, Nieman Fellow, Harvard University & Foreign Correspondent, BBC.

As always, registration to the Live Web Seminar is free, and we’ve posted a few background materials on the IHL Research Initiative Portal (where a registration link is available, too): http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewPage&pageID=2130.

2. Canadian Institute for the Administration of Justice, “Terrorism, Law and Democracy: 10 Years after 9/11”

This is a very impressive event. I can’t copy over the details into the text of this email because of my own formatting issues, but please click through to see the schedule and the registration details: http://ccct-cctj.ca/terrorism-law-democracy-10-years-after-911/

nationalsecuritylaw (today – right now in fact) teleconference discussion on Miranda Warnings & Terror Suspects

* (today – right now in fact) teleconference discussion on Miranda Warnings & Terror Suspects

With apologies for the last minute notice, please note that a teleconference discussion on Miranda and terrorism is just about to begin. Details below; anyone may call in.

nationalsecuritylaw call for paper: ABA SCOLANS student writing competition (national security and the First Amendment)

* call for paper: ABA SCOLANS student writing competition (national security and the First Amendment)

See the attached flyer for the details, and note both the $500 prize and the August 15th deadline.

YOUNG LAWYERS Writing Competition 2011.pdf

nationalsecuritylaw Al Haramain 9th Cir. oral argument

* Al Haramain Islamic Foundation v. Geithner (9th Cir. 2011) (oral argument)

C-SPAN has posted the video from the oral argument in al-Haramain v. Geithner, which involves two constitutional challenges: one to the OFAC terrorist designation process and the other to prohibitions on coordinated advocacy. Watch the video here: http://www.c-spanvideo.org/program/AlHa

nationalsecuritylaw corrected Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

An error in my description below. Judge Koetle granted summary judgment to the defendants, of course, not the plaintiffs, in the original district court ruling.

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Monday, March 21, 2011 4:54 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

* Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

The plaintiffs in this suit are a mix of individuals and groups relating to law, media, human rights, and labor. They argued that FISA section 702 (50 USC 1881a), added to FISA by the FISA Amendments Act of 2008, is unconstitutional. Section 702 involves electronic surveillance for non-US persons located outside the United States, though the plaintiffs claim it impacts US citizens and residents in a manner that violates the First and Fourth Amendments as well as Article III and the separation of powers principle. Previously, Judge Koetle (SDNY) granted summary judgment to the plaintiffs, holding that they failed to establish standing. Today, in a 63-page opinion (Lynch, joined by Sack and Calabresi) posted here, the Second Circuit reversed. The bottom line:

“Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.” (p. 5)

nationalsecuritylaw Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

* Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

The plaintiffs in this suit are a mix of individuals and groups relating to law, media, human rights, and labor. They argued that FISA section 702 (50 USC 1881a), added to FISA by the FISA Amendments Act of 2008, is unconstitutional. Section 702 involves electronic surveillance for non-US persons located outside the United States, though the plaintiffs claim it impacts US citizens and residents in a manner that violates the First and Fourth Amendments as well as Article III and the separation of powers principle. Previously, Judge Koetle (SDNY) granted summary judgment to the plaintiffs, holding that they failed to establish standing. Today, in a 63-page opinion (Lynch, joined by Sack and Calabresi) posted here, the Second Circuit reversed. The bottom line:

“Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.” (p. 5)

nationalsecuritylaw newly released OLC memoranda regarding NSA surveillance

* newly released OLC memoranda regarding NSA surveillance

In response to FOIA litigation brought by the ACLU, the government has released a pair of heavily-redacted memoranda from OLC relating to warrantless surveillance. One is from John Yoo, the other from Jack Goldsmith. Both are available here. Please note the following observations, posted by Jack this evening at www.lawfareblog.com in response to the release:

…. To protect classified information, the released version of the memorandum I wrote is heavily redacted. It discloses only portions of a legal analysis, and very little of the context in which the legal principles were applied. (The unclassified Inspector General Report on this topic provides more context.) To cite but one fact that remains unexplained, the memorandum states that “[t]he scope of the authorization for electronic surveillance . . . has changed over time [and the changes] are most easily understood as being divided into two phases: (i) those that occurred before March 2004, and (ii) those that occurred in March [] 2004,” two months before the memorandum was completed. An understanding of my views and actions requires reading the memorandum and other classified documents in their entirely, which is not possible today. I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context.

nationalsecuritylaw UNSCR 1973: A No-Fly Zone and More for Libya

* UNSCR 1973 (no-fly zone and other forms of force authorized as to Libya)

The full text of UNSCR 1973 (imposing a no-fly zone and then some for Libya) is available by link here, along with a bit of commentary. Summing up, paragraph 8 authorizes a no-fly zone throughout all Libyan territory, while paragraph 4 authorizes all necessary means to protect civilian populations, excluding only occupation forces (but not ground force of a non-occupation nature). In short, air-to-ground force is permissible to protect Benghazi and to otherwise intervene where Gaddafi’s forces can be depicted as threatening civilians.

nationalsecuritylaw United States v. Imam (E.D.N.Y. Mar. 15, 2011) (superseding indictment in Najibullah Zazi case)

* United States v. Imam (E.D.N.Y. Mar. 15, 2011) (superseding indictment in case involving Najibullah Zazi)

A superseding indictment today relating to the Najibullah Zazi conspiracy case (Zazi himself pled guilty back in February 2010, and one co-defendant also pled in 2010). The new indictment charged a Canadian citizen, Ferid Imam, with a variety of offenses related to the plot. The indictment is attached, and excerpts from the press release appear below:

BROOKLYN, N.Y. – A superseding indictment was unsealed in Brooklyn federal court yesterday charging Ferid Imam, 30, aka “Yousef,” with providing and conspiring to provide material support to al-Qaeda; aiding and abetting the terrorist training of Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin; and using a destructive device in furtherance of crimes of violence.

The indictment was unsealed in coordination with Canadian authorities, who earlier today announced terrorism charges against Imam, who is a Canadian citizen.

According to the indictment in the Eastern District of New York, Imam aided and abetted Zazi, Ahmedzay and Medunjanin’s receipt of military-type training from al-Qaeda when the three men traveled to Pakistan in 2008. Zazi, Ahmedzay and Medunjanin subsequently returned to the United States to carry out a plot to detonate improvised explosive devices on behalf of al-Qaeda.

This plot was uncovered and disrupted by law enforcement authorities in September 2009. Zazi pleaded guilty to his role in the plot on Feb. 22, 2010, while Ahmedzay similarly pleaded guilty on April 23, 2010.

If convicted of the crimes in the indictment, Imam faces between 30 years in prison and life in prison.

…

Ferid Imam et al Unsealed Indictment EDNY.pdf

nationalsecuritylaw United States v. Alessa (D.N.J. Mar. 3, 2011) (guilty pleas in al-Shabaab conspiracy case)

* United States v. Alessa, United States v. Almonte (D.N.J. March 3, 2011) (guilty pleas in al-Shabaab conspiracy case)

This case is very interesting from the perspective of the substantive scope of federal criminal law, particularly the capacity to use conspiracy charges in circumstances where the anticipated unlawful objective is relatively distant in time and unspecific in detail. The case involves two men from New Jersey who were arrested at JFK airport last year en route to Somalia, where they had intended to join al-Shabaab. Both men pled under 18 USC 956(a), which criminalizes conspiracies to kill outside the United States. As stated in the press release below, the idea is that the men knew of and intended to partake in al-Shabaab’s activities, including in particular its use of unlawful lethal force against the Somali transitional government and African Union soldiers. From this perspective, I would say the case looks much like the civilian prosecution of Jose Padilla. In any event, the information in each case is attached, and excerpts from the press release appear below:

NEWARK, N.J. – Two New Jersey men arrested at John F. Kennedy (JFK) International Airport last summer pleaded guilty today to conspiring to murder individuals overseas on behalf of a foreign terrorist group operating in Somalia, U.S. Attorney Paul J. Fishman announced.

Mohamed Hamoud Alessa, 21, of North Bergen, and Carlos Eduardo Almonte, aka “Omar,” 24, of Elmwood Park, each pleaded guilty to one count of conspiring to murder persons outside the United States on behalf of designated Foreign Terrorist Organization Al-Shabaab. The defendants entered their guilty pleas before U.S. District Judge Dickinson R. Debevoise in Newark federal court.

On June 5, 2010, Alessa and Almonte were taken into custody by pre-staged arrest teams as they attempted to board separate international flights at JFK International Airport. They have been held in continuous custody since their arrest by order of U.S. Magistrate Judge Madeline Cox Arleo.

…

According to documents filed in this case and statements made in court:

It was Alessa and Almonte’s aim to travel to a place outside of the United States and murder individuals whose beliefs and practices did not align with their extremist ideology. The defendants admitted that they planned to join Al-Shabaab, an international terrorist group based in Somalia, knowing the group was engaged in carrying out violent attacks against individuals in that country, including members of the Transitional Federal Government of Somalia and African Union soldiers. As part of this campaign, Al-Shabaab has conducted military assaults, bombings, and other violent acts, and has attempted through its media operations to recruit foreigners – including Americans and other Westerners – to join its ranks.

In October 2006, the FBI received a tip concerning the defendants’ activities. As the investigation continued, a New York Police Department (NYPD) Intelligence Division undercover officer recorded numerous meetings and conversations with them, during which the defendants discussed and prepared to carry out their plan.

The defendants admitted that those preparations included: saving and pooling thousands of dollars; physically conditioning themselves by, among other things, lifting weights and running; engaging in combat simulations using paintball guns, computer software, and other items; acquiring tactical clothing, hydration systems, knives, night-vision optics, and other equipment; and purchasing airline tickets to Egypt with the intent to then travel to Somalia. They also admitted that as part of their plan, Alessa and Almonte had traveled to Jordan in February 2007 and while there, inquired about opportunities to meet with groups committed to establishing Islamic law through violence.

Additionally, Alessa and Almonte admitted that they acquired, viewed, and displayed for others audio, video, and written materials – produced by and relating to Al-Qaeda, Al-Shabaab, and other extremist groups – which advocated, depicted, and/or sought to justify the killing of individuals who opposed them, including civilians.

The charge to which Alessa and Almonte pleaded guilty carries a statutory maximum sentence of life in prison and a $250,000 fine. Under the terms of their plea agreements, the defendants agreed not to request a sentence of less than 15 years in prison, while the government agreed not to request a sentence of more than 30 years. The defendants are scheduled to be sentenced on June 20, 2011.

…

Alessa, Mohamed Information.pdf

Almonte, Carlos Information.pdf