nationalsecuritylaw apologies for confusion

May 31, 2011

My apologies that my attempt to correct the date on the last email (about the charges against KSM) presented a formatting issue for the listserv system. I merely changed the date from “Mar. 31” to “May 31”.

nationalsecuritylaw corrected date United States v. Khalid Sheikh Mohammed, et al.

May 31, 2011

=?ISO-8859-1?Q?=20?=(Mil. Com. May 31, 2011)
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DOD Announces Charges Sworn Against Five Detaine= es Allegedly Responsible for 9/11 Attacks

nationalsecuritylaw United States v. Khalid Sheikh Mohammed, et al. (Mil. Com. Mar. 31, 2011)

May 31, 2011

* United States v. Khalid Sheikh Mohammed, et al. (Mil. Com. Mar. 31, 2011)

From DOD’s press release:

nationalsecuritylaw al-Kidd v. Ashcroft (S.Ct. Mar. 31, 2011) (reversing 9th Circuit on material witness statute and immunity)

May 31, 2011

* al-Kidd v. Ashcroft (S.Ct. Mar. 31, 2011) (reversing 9th Circuit on material witness statute and immunity)

The Supreme Court has reversed the Ninth Circuit in al-Kidd v. Ashcroft, a Bivens action in which the plaintiff alleges (among other things) that then-Attorney General John Ashcroft violated the Fourth Amendment by directing prosecutors to use the material witness detention statute pretextually in order to incarcerate terrorism-related suspects. I’ve posted details and commentary here.

nationalsecuritylaw United States v. Hammadi (W.D. Kentucky Mar. 31, 2011) (arrests involving insurgency in Iraq)

May 31, 2011

* United States v. Hammadi (W.D. Kentucky Mar. 31, 2011) (arrests involving insurgency in Iraq)

The DOJ press release providing the details is here; the indictment of Mohanad Shareef Hammadi and Waad Ramadan Alwan is here; the complaint and accompanying affidavit againt Hammadi is here; and the complaint and affidavit against Alwan is here. As you will see, the cases involve extensive allegations of activity not just while in Iraq but also later after arrival in the United States (both men entered the United States in 2009, applying for and receiving refugee status).

nationalsecuritylaw forthcoming scholarship

May 31, 2011

* Forthcoming Scholarship (reminder – click on title to go to article)

History and Tradition in American Military Justice

University of Pennsylvania Journal of International Law, Vol. 33, 2011

Samuel T. Morison (DOD, Office of Military Commissions-Appellate Defense)

At present, there are two military commission cases involving terrorism defendants incarcerated at Guantánamo Bay making their way through the appellate courts. In both cases, the defendants are challenging their convictions for “providing material support for terrorism.” While this is a federal offense that could be prosecuted in an Article III court, the legal issue in these appeals is whether providing material support is also a war crime subject to the jurisdiction of a military tribunal. Congress incorporated the offense into the Military Commissions Act, but that is not dispositive, since it is arguably beyond Congress’ legislative competence to create war crimes out of whole cloth and then impose them on foreign nationals having no jurisdictional nexus to the United States.

As a result, the Government has not disputed that there must be at least some historical evidence that the conduct now styled “providing material support” to an enemy previously has been treated as a war crime, where the defendant was a non-resident alien who owed no duty of allegiance to the injured State. In what might be fairly described as a desperate attempt to discharge its burden of persuasion, the Government has now embraced the only “precedent” that comes close to fitting this description. This is problematic, however, because it is also one of the most notorious episodes in the history of American military justice.

In 1818, then Major General Andrew Jackson led an armed invasion of Spanish Florida, thereby instigating the First Seminole War. In the course of the conflict, his troops captured two British citizens who had been living in Florida among the Seminole Indians. In his inimitable style, Jackson impetuously ordered the summary trial and execution of these men, allegedly for “inciting” the Seminoles to engage in “savage warfare” against the United States. Worse yet, Jackson’s immediate motivation for the invasion was to recapture fugitive slaves, who had escaped from the adjacent States and found refuge among the Seminoles. In addition to territorial expansion, his mission was to return this “property” to their “rightful” owners and prevent Florida from serving as a safe haven for runaway slaves.

Remarkably, the legal basis of the Government’s assertion of military jurisdiction over material support charges therefore rests on Jackson’s decision to execute two men, who were almost certainly innocent, in the context of a war of aggression waged to vindicate the property rights of antebellum Southern slaveholders. The purpose of this essay is to reintroduce the episode to a wider audience, and to reflect on the implications of the Government’s decision to rely on it as a precedent for a modern war crimes prosecution.

"Control Orders Post 9-11 and Human Rights in the United Kingdom, Australia and Canada – A Kafkaesque Dilemma?"

Deakin Law Review, Vol. 15, No. 2, 2010

SASCHA-DOMINIK OLIVER VLADIMIR BACHMANN, University of Portsmouth – School of Law
Email: sascha.bachmann

This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK’s present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures that have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit scope and impact of Anti Terrorism Legislation.

nationalsecuritylaw Call for Papers: Royal United Services Institute

May 30, 2011

* Call for papers, Royal United Services Institute

To mark the tenth anniversary of 9/11, the August/September 2011 RUSI Journal will review the lessons learned – and not learned – of the past ten years. We invite unpublished manuscripts and papers on all issues relating to global terrorism and insurgency, the wars in Afghanistan and Iraq, and homeland security.

In particular, we welcome articles that seek to add to our understanding of the following questions:

§ Did 9/11 ‘change everything’?

§ Will the ‘phenomenon’ of global jihadism last into the next decade and beyond?

§ What have been the key developments of the international system in the last ten years?

§ Did 9/11 re-write the long-term challenges to defence and security?

§ Will today’s counter-insurgency doctrine stand the test of time?

The submissions deadline is Friday 10 June 2011.

Articles should be between 3,000 and 4,500 words, including endnotes. Electronic submissions should be sent for the attention of the editor to publications. Please follow the guidelines for contributors available at

The RUSI Journal is published six times a year, and welcomes rigorous and analytical articles on a rolling submission basis. Articles should be relevant to RUSI’s intellectual ambit, and be original, thoroughly researched and succinct. For more information, please contact the editor at the above email address or in writing to Editor, RUSI Journal, Royal United Services Institute, Whitehall, London, SW1A 2ET.

nationalsecuritylaw forthcoming scholarship

May 30, 2011

* forthcoming scholarship (and greetings to all on Memorial Day)

"Terrorism Prosecutions in Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions"

Email: Abrams

The issue of where to prosecute Guantanamo detainees, as well as future terrorism defendants has been a topic of spirited public debate. Generally, the choice has been seen primarily as between three options, civilian federal courts, military commissions, or a new national security court, not-yet created. A fourth alternative (perhaps some would characterize it as a variation on the civilian court option) would involve utilization of some special rules in federal court criminal terrorism trials, that is, exceptions to usually-applicable constitutional rules of evidence based on terrorism-related elements in the case. To illustrate the approach, a series of such exceptions, some already recognized under existing law and some proposed herein, are addressed in this paper.

In the first part, four existing "exceptions" to constitutional rules of evidentiary admissibility are examined – relating to fourth amendment protections, compulsory process, confrontation and Miranda. The first two of these exceptions were originally developed in connection with terrorism investigations; the second two were first formulated in situations involving exigent circumstances-public safety concerns. The paper proposes that the latter two public safety exceptions be extended to apply in terrorism investigations. (Recently-made-public FBI guidelines have been promulgated which adapt the New York v. Quarles/Miranda public safety exception for use in interrogating suspected terrorists.) The paper identifies elements common to all four exceptions and identifies how these common elements are applied differently in connection with each of the exceptions, because of differences in the applicable constitutional doctrines.

The second part of the paper, building on the first part and the existing and proposed terrorism investigation exceptions, examines a proposal for creating an entirely new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure – coerced confessions. A cabined exception is proposed, that is, one which, in exigent circumstances involving terrorism, would apply an exception and allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing supreme court precedents, would ordinarily have been ruled to violate the Constitution. Arguments and issues suggested by this proposal are examined in depth. A preliminary summary of the terms in which this exception might be cast is also included. Finally, whether the exception should be created by legislation or judicial interpretation is addressed.

Adoption of the several proposals discussed here would, of course, affect the conduct of future terrorism trials in the federal courts as well as the interrogation practices of the FBI and other government agencies. Adding to civilian court criminal trial process, specific exceptions, with the goal of making it somewhat easier to obtain intelligence in serious terrorism cases and introduce into evidence statements obtained from such interrogations, would reduce some of the perceived process advantages that the options of military commission trials and a national security court, as proposed, have over the federal civilian court alternative. It could thus significantly influence the terms of the debate over what is the best way to proceed in prosecuting terrorists.

Obama’s Military Commitment in Libya

Lou Fisher, Constitution Project

Presidents have some discretion to use military force without advance congressional authorization, including repelling sudden attacks and rescuing American citizens. None of those justifications apply to Libya. America was not threatened or attacked by Libya. President Obama has called the military operation a humanitarian intervention that serves the national interest. Launching hundreds of Tomahawk missiles and ordering air strikes against Libyan ground forces, for the purpose of helping rebels overthrow Col. Qaddafi, constitutes war. Under the U.S. Constitution, there is only one source for authorizing war. It is not the Security Council or NATO. It is Congress.

To restore constitutional government, Congress and the public must confront Presidents who commit troops to foreign wars without seeking legislative authority. No action by a President would more warrant impeachment and removal than usurping the war power from Congress and undermining representative government and the system of checks and balances. Members of Congress need to understand their institutional duties and discharge them. They take an oath to support and defend the Constitution, not the President.

"Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown"

Goettingen Journal of International Law, Vol. 3, No. 1, p. 373, 2011

LUCIAN E. DERVAN, Southern Illinois University School of Law
Email: LucianDervan

Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the same true if we are unsure of the collateral consequences of the computer network attack on a large civilian population that also relies on this communications system? For instance, because civilians use the same communications system to gather critical information, disabling the system might result in rioting, civil disorder, serious injuries, and deaths. Further, civilians may be unable to call for help, seek out medical assistance, or locate emergency response centers. Given these unknown yet potentially severe collateral consequences to civilians, it becomes less clear that a proportionality analysis under the law of war would favor the computer network attack over the traditional kinetic operation. In this article, Professor Lucian E. Dervan examines the application of the law of war to information operations and analyses the role of the Geneva Convention’s utilitarian goals in determining the validity of computer network attacks against dual-use civilian objectives.

"Levée En Masse – A Nineteenth Century Concept in a Twenty-First Century World"

Sydney Law School Research Paper No. 11/31

EMILY CRAWFORD, University of Sydney – Faculty of Law
Email: emily.crawford

Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the French Revolution, and was internationalized with its inclusion in the rules of armed conflict adopted by the Union Army during the American Civil War. Levée en masse continued to be included in the major international law of armed conflict documents from that time on, including The Hague Regulations of 1907 and the Geneva Conventions of 1949. However, since that time, there have been few, if any, instances of levée en masse. This article examines the historical and legal development of the concept of levée en masse, charting its evolution from a general and sustained call to arms to the civilian population to the more strict 19th and 20th century legal categorization of civilians attempting to fend off an invading force. This article also examines the few instances of levee en masse in State practice, and, in doing so, assesses whether the concept retains any utility in 21st century armed conflict.

nationalsecuritylaw Madhwani v. Obama (D.C. Cir. May 27, 2011) (affirming denial of habeas relief)

May 28, 2011

* Madhwani v. Obama (D.C. Cir. May 27, 2011) (affirming denial of habeas relief)

The 12-page opinion (Henderson, joined by Ginsburg and Tatel) affirms the denial of habeas relief to GTMO detainee Madhwani. For the most part it is focused on reviewing the evidence, with only a short discussion of legal issues at the end.

nationalsecuritylaw White House Statement of Administration Policy regarding NDAA FY 12

May 24, 2011

* White House Statement of Administration Policy regarding NDAA FY 12

The White House has issued a veto threat in relation to the pending Defense Authorization bill, among other things singling out the language in the bill that would provide a fresh authorization for use of military force in relation to al Qaeda and others, and in relation to language restricting detainee transfers and decisions to prosecute. The statement appears here, and my further comments on the AUMF provision in particular are here.