nationalsecuritylaw DOJ will conduct full criminal investigations into the deaths of two detainees in relation to CIA interrogations

nationalsecuritylaw forthcoming scholarship

"Libya, ‘Hostilities,’ the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation"

TREVOR W. MORRISON, Columbia University – Law School
Email: trevor.morrison

The Obama Administration has faced substantial criticism for both the substance of, and the process leading to, its conclusion that U.S. military involvement in Libya does not constitute “hostilities” for purposes of the War Powers Resolution. This short essay focuses on the process question. Although press reports depict a highly anomalous decision-making process – especially as relates to the Justice Department’s Office of Legal Counsel (OLC) – it is not yet clear that those reports offer a completely accurate picture of what happened. Here I discuss what an appropriate process would have been, and underscore the short- and long-run institutional costs to the White House of departing from that process. In the course of doing so I also say a few things about my ongoing exchange with Bruce Ackerman over legal interpretation in the executive branch.

“What’s in a Name? How Nations Define Terrorism Ten Years after 9/11”

Sudha Setty

Western New England University – School of Law
University of Pennsylvania Journal of International Law, Forthcoming

Almost ten years after the attacks of September 11, 2001, it almost goes without saying that the acts of grotesque violence committed on that day have had enormous effects on national security law and policy in all parts of the world. To be labeled a terrorist, or to be accused of being involved in an act of terrorism, carries far more severe repercussions now than it did ten years ago. This is true under both international law and domestic law in nations which have dealt with serious national security concerns for many years.

Given the U.N.’s global mandate to combat terrorism and that being defined as a terrorist can have widespread legal implications, this paper seeks to address how legal definitions are shaped and analyzes the lack of a globally accepted definition of terrorism in the context of domestic counterterrorism obligations. This article addresses a significant historical gap in examining the interplay between international obligations and domestic definitions, the previously overlooked history and evolution of those definitions, and the potential rule of law issues arising from the definitions in their current form.

In examining counterterrorism law and in the United States, the United Kingdom and India, it is clear that definitions of terrorism under various domestic laws have been repurposed from one legislative context to another and broadened in application, particularly since September 11. This has led to the arguably unintended consequences of disparate impact on outsider groups and the unmooring from rule of law principles. Since neither international norms nor domestic courts provide a significant check against creeping definitions, legislatures must take proactive steps to combat potential overreaching in applying the label of terrorism.

“Caught in a Preventive Dragnet Ten Years Later: Selective Counterterrorism Against Muslims, Arabs, and South Asians”

Sahar F. Aziz

Georgetown Law Center; Texas Wesleyan University School of Law
Gonzaga Law Review, Forthcoming

The United States government’s preventive counterterrorism strategy is no secret. Weeks after the 9/11 terrorist attacks, former Attorney General John Ashcroft declared, “Our single objective is to prevent terrorist attacks by taking suspected terrorists off the street. Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.”

As the U.S. government adopted a no-tolerance policy to apprehending the terrorists, a fear-stricken public watched as images of nefarious dark-skinned, bearded Muslims flashed across millions of television screens. The message was, if there had ever been any doubt, that the 9/11 attacks confirmed Muslims and Arabs are inherently violent and intent on destroying the American way of life. Heightened scrutiny of these communities was thus perceived as not only warranted, but a rational response to an existential threat to the country.

Ten years later, the 9/11 terrorist attacks appear to have succeeded in transforming the American way of life for the worse. In our hasty passage of the expansive PATRIOT Act, our fears gave way to the government’s demand for unfettered discretion to preserve national security at the expense of civil liberties for all Americans. As a consequence, America has come to resemble a police state where government surveillance extends into almost every aspect of life.

Body scans at every airport strip us of our privacy. Fusion centers have sprung up in states across the country gathering intelligence on average Americans to deposit into massive databases monitored by the government. Warrantless National Security Letters are used to obtain information about our financial and political lives absent evidence of criminal activity. Police departments have shifted resources from necessary crime fighting to mapping communities based on their religious faith and ethnic origins under the auspices of protecting national security. Overreaching enforcement of broad material support to terrorism laws has chilled religiously mandated charitable giving and humanitarian aid operations, eroding the independence of the American nonprofit sector and unduly politicizing humanitarian assistance. And fears of pervasive “homegrown terrorism,” fueled by irresponsible Congressional rhetoric, have legitimized bigoted discourse on Muslims in America to the extent that some Americans challenge the status of Islam as a bona fide religion deserving of constitutional protection.

At first blush the preventive paradigm appears facially legitimate. Few would contest the collective public safety interests in stopping terrorism before it occurs. Even so, at what point should the government be permitted to investigate individuals? Does mere political dissent, even if virulently anti-American, or unpopular orthodox religious practices suffice to subject individuals to heightened scrutiny or worse, loss of liberty? At what point does legitimate counterterrorism become political and religious persecution? The answers determine the type of country we want to live in – a free and just society consistent with the Founding Fathers’ vision or a paranoid society dislodged from fundamental principles of fairness and the rule of law.

While post-9/11 preventive counterterrorism policies have adversely impacted various groups of Americans, no group has been as deeply affected as the Muslim, Arab, and South Asian communities. Mosque infiltration has become so rampant that congregants assume they are under surveillance as they fulfill their spiritual and religious obligations. Government informants have ensnared numerous seemingly hapless and unsophisticated young men such that Muslims no longer know whom they can trust among each other. Aggressive prosecutions of Muslim charities and individuals across the country have embittered communities that feel under siege by their government and despised by their non-Muslim compatriots. As most clearly evinced in the vitriolic discourse surrounding the Park 51 Community Center in lower Manhattan in 2010, selective counterterrorism enforcement has fueled public bias against Muslims. As a consequence, the vibrancy and development of civil society within these communities has been significantly stunted.

This article focuses on three of the most damaging components of the counterterrorism preventive paradigm and the significant risks they pose to the civil rights and civil liberties of the communities most targeted by the policies. First, the current preventative paradigm for countering terrorism risks seriously infringing on First Amendment protected activities and misdirects limited law enforcement resources away from criminal activity. Second, the wide-reaching and devastating effects of broadly interpreted material support laws on American Muslim charities and Muslim donors, as well as the broader American nonprofit sector, effectively criminalize otherwise legitimate charitable giving, peacebuilding, and human rights advocacy. Finally, the current debate about “homegrown terrorism” facilitates selective and arbitrary enforcement of counterterrorism laws against Muslims, while many non-Muslims commit acts of terror undetected.

To the extent that Muslims, Arabs, and South Asians are the “miner’s canary” in forecasting the post-9/11 loss of civil rights and liberties for all Americans, their experiences demonstrate America’s downward progression away from the Founding Fathers’ vision of a society where individuals can speak, assemble, and practice their faith free of government intervention or persecution.

"Prosecuting Terrorism: The Material Support Statute and Muslim Charities"

Hastings Constitutional Law Quarterly, Vol. 38, No. 4, pp. 1113-1147, 2011

MICHAEL G. FREEDMAN, affiliation not provided to SSRN
Email: mfreedman283

The federal law prohibiting the provision of material support to terrorist organizations has been no stranger to controversy. From its politically charged origins through its repeated amendment after September 11, 2001, it has remained an important, but often critiqued, weapon in the government’s legal response to terrorism. The most prominent legal challenge to the law lasted over a decade. It culminated in June 2010, when the United States Supreme Court upheld the constitutionality of the law in Holder v. Humanitarian Law Project. The Court’s opinion, however, correctly recognized that important questions remain unresolved.

One such question, which this note addresses, is the application of the law to Muslim charities. Muslim charities are a complex, often misunderstood phenomenon. The use of the law against groups such as the Holy Land Foundation has achieved limited success, but has also alienated significant numbers of Muslim Americans. Civil actions against the group based on the material support law have been particularly ineffective. Likewise, criminal prosecutions have met considerable difficulty. This note explores applications of the material support statute to Muslim charities and concludes by proposing several recommendations for reform in this important area.

“Non-State Actor Participation in International Law and the Pretense of Exclusion”

Jordan J. Paust

University of Houston Law Center
Virginia International Journal of Law, Vol. 51, No. 4, 2011

For centuries, there have been vast numbers of formally recognized actors in the international legal process other than the state, although far too many assume incorrectly that traditional or classical international law had been merely state-to-state and that under traditional international law individuals and various other non-state actors did not have rights or duties based directly in international agreements or customary international law. Even today, invidious consequences occur when judges cling to manifestly a historical assumptions about international law and rule erroneously that “customary international law consists of only those norms that are… obligatory in the relations of States inter se.” [2d Cir. panel, Kiobel case, 2010] This article seeks to explode such a false and inhibiting myth by identifying a large number of such actors from each inhabited region of the globe and a number of specific forms of formal participation from the 1700s through the early 20th Century when, according to myth, state-oriented positivism allegedly achieved complete and universal acceptance and denied the existence of any status, role, right, or duty of any non-state actor.

nationalsecuritylaw ABA SCOLANS panel on July 26: Careers in National Security LaW

From the ABA Standing Committee on Law and National Security:

Careers in National Security Law Program – Tuesday, July 26 – 5:30 – 7:30 p.m. – Law Offices of WilmerHale, Washington, DC (see attached flyer)

A panel discussion including lawyers from the private sector, legislative and executive branches, and the intelligence community for law students, those considering law school and young lawyers to explore how to turn their interest in national security into actual practice. Summer associates encouraged! Free and complimentary copies of the Committee’s book “Careers in National Security Law” will be available.

Careers in National Security Law 2011 program.pdf

nationalsecuritylaw Lisa Monaco confirmed as AAG for the National Security Division

Congratulations as well to Lisa Monaco, who has been confirmed as the new AAG for the National Security Division!

nationalsecuritylaw McRaven and Allen Testify About Options for Detention for Persons Captured Outside Afghanistan

In a hearing before SASC yesterday, Admiral McRaven and General Allen offered interesting testimony regarding what would happen with respect to persons captured outside Afghanistan. The key parts of the transcript, and my commentary, are here.

nationalsecuritylaw Virginia Seitz Confirmed as AAG-OLC; Beth Hillman becomes President of NIMJ, Victor Hansen Vice-President

Congratulations to Virginia Seitz, who has been confirmed as the head of the Office of Legal Counsel, ending an extraordinarily long period in which OLC has lacked a confirmed AAG at its head.

Congratulations to Beth Hillman (Hastings), who is taking the reins at the National Institute for Military Justice now that Gene Fidell has stepped down as NIMJ’s President. Congrats also to Victor Hansen (New England) who becomes NIMJ’s Vice-President.

nationalsecuritylaw overview of Koh testimony on the WPR at Senate Foreign Relations Committee this morning

I’ve posted a summary of Harold Koh’s testimony on the WPR at the Senate Foreign Relations Committee this morning, here.

nationalsecuritylaw Testimony from Koh, Fisher, and Spiro on WPR Issues

The Senate Foreign Relations Committee had a hearing today on the WPR and Libya.

Testimony from Harold Koh is here. Testimony from Lou Fisher is here. Testimony from Peter Spiro is here.

nationalsecuritylaw Mike Schmitt named as the new Chairman of the International Law Department at the Naval War College

* Mike Schmitt named as the new Chairman of the International Law Department at the Naval War College

Congratulations to Mike, as well as to Dennis Mandsager who is stepping down as the Chair. Here is the announcement from Dennis:

The following message is from Professor Dennis Mandsager, Chairman,

International Law Department, US Naval War College:

Please join me in welcoming Professor Mike Schmitt as the new Chairman of

the

International Law Department (ILD) effective 1 October 2011.

Professor Schmitt, who is currently Chair of Public International Law at

Durham University in the UK, is well-known to many of you. He is a retired

USAF judge advocate, who graduated first in class from the Senior Course in

1996 and stayed on at the War College for two years as an instructor in the

International Law (formerly Oceans Law & Policy) Department. He was also

the visiting Stockton Professor in 2007-2008, has edited six volumes of the

International Law Studies ("Blue Books"), and has contributed to numerous

editions of the Naval War College Review.

Following his retirement in 1999, Professor Schmitt moved to the Marshall

Center in Germany as Professor of International Law. He went on to direct

the Program in Advanced Security Studies, and served as Dean from 2008-2010. A

noted international authority on the law of war, he is the General Editor of

the Yearbook of International Humanitarian Law, serves on many advisory and

editorial boards in the field, and is the author of over 100 articles and

books which have been published around the world. He has also been an

invited Visiting Scholar at Yale, the Australian National University and the

University of Melbourne.

Over the years Professor Schmitt has participated in many international

projects designed to clarify international law as it applies to armed

conflict, including the Harvard Manual on International Law Applicable to

Air and Missile Warfare, the Chatham House Project on Categorizing Conflict, and

the International Committee of the Red Cross’ study on the participation of

civilians in conflict. He is presently directing a major multi-year project

on Cyber War and International Law sponsored by the NATO affiliated

Cooperative Cyber Defence Center of Excellence.

I will step down as ILD Chair on 1 October and remain on the College

faculty.

Cheers, Dennis

nationalsecuritylaw United States v. Cannon (E.D.Va. June 27, 2011) (2.5 year sentence in case of contractor who killed an Afghan national in Kabul)

* United States v. Cannon (E.D.Va. June 27, 2011) (2.5 year sentence in case of contractor who killed an Afghan national in Kabul)

A thirty-month sentence today for Justin Cannon, a Blackwater contractor who was convicted in March of involuntary manslaughter in relation to the shooting of an Afghan national in Kabul in 2009. From the DOJ press release:

WASHINGTON – Justin Cannon, 29, of Corpus Christi, Texas, was sentenced today to 30 months in prison for his role in shooting and killing an Afghan national while on an unauthorized convoy in Kabul, Afghanistan, on May 5, 2009, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division, U.S. Attorney Neil H. MacBride of the Eastern District of Virginia and James W. McJunkin, Assistant Director in Charge of the FBI’s Washington Field Office. U.S. District Judge Robert G. Doumar also ordered Cannon to serve two years of supervised release following his prison term.

On March 11, 2011, Cannon and Christopher Drotleff, 31, of Virginia Beach, Va., were convicted of involuntary manslaughter while working as contractors for the U.S. Department of Defense in Afghanistan. Cannon and Drotleff were acquitted of other charges, including second-degree murder, assault resulting in serious bodily injury and firearms offenses. On June 14, 2011, Drotleff was sentenced to 37 months in prison.

“Justin Cannon was hired to support the Defense Department mission in Afghanistan,” said Assistant Attorney General Breuer. “Instead, he recklessly fired on a civilian car, killing an Afghan national. He dishonored the American military, the Afghan people, and the many men and women in uniform who serve this country honorably. Today’s sentence brings some measure of justice to an otherwise tragic situation.”

“Justin Cannon opened fire with an AK-47 at the rear of a retreating vehicle and took the life of an innocent Afghan,” said U.S. Attorney MacBride. “While Mr. Cannon was in Afghanistan to support to U.S. troops, his incredibly reckless behavior instead undermined our military mission and weakened the bond of trust with the Afghans. Those serving overseas – even in dangerous places like Afghanistan – must follow the law and not make up their own rules. Today’s sentence makes clear that those who break the law will be held accountable, regardless of where their crimes occur.”

Cannon and Drotleff were charged under the Military Extraterritorial Jurisdiction Act (MEJA) in a superseding indictment filed on Aug. 5, 2010. Cannon and Drotleff were Department of Defense contractors employed by a subsidiary of Xe (formerly known as Blackwater Worldwide).

According to evidence presented at trial, on May 5, 2009, both men left their military base without authorization to transport local interpreters. The evidence at trial established that, after the lead vehicle in the convoy crashed and was overturned on the side of the road, Cannon and Drotleff fired multiple shots into the back of a civilian car that had attempted to pass the accident scene. The passenger of the car was fatally shot and the driver was seriously injured. An individual who happened to be walking his dog in the area was also killed in the shooting. The jury found the defendants guilty of involuntary manslaughter for the death of Romal Mohammad Naiem, the front-seat passenger. They were acquitted of charges relating to the death of the person walking his dog and injuries to the driver.

According to court records, as contractors, Cannon and Drotleff provided training to the Afghan National Army for the Islamic Republic of Afghanistan in the use and maintenance of weapons and weapons systems.

…