nationalsecuritylaw forthcoming scholarship

July 15, 2011

* forthcoming scholarship

The latest issue of the Journal of National Security Law and Policy is out, and as usual it has lots of great stuff in it. I’ve previously posted the lead article from David Kris, but below you’ll see all the rest as well.

The Journal of National Security Law & Policy (JNSLP) is pleased to announce the publication of its latest issue, Vol. 5:1, with articles by:

David S. Kris, Assistant Attorney General for National Security at the U.S. Department of Justice from March 2009 to March 2011. Law Enforcement as a Counterterrorism Tool.

Geoffrey R. Stone, Edward H. Levi Distinguished Professor, University of Chicago Law School. WikiLeaks, the Proposed SHIELD Act, and the First Amendment.

Mary-Rose Papandrea, Associate Professor, Boston College Law School. The Publication of National Security Information in the Digital Age.

Douglas Cox, Associate Law Library Professor, City University of New York School of Law. Burn After Viewing: The CIA’s Destruction of the Abu Zubaydah Tapes and the Law of Federal Records.

Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, Canada. Spies Without Borders: International Law and Intelligence Collection.

Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law. Constitutional Pathology, the War on Terror, and United States v. Klein.

Louis Fisher, Scholar in Residence, The Constitution Project. United States v. Klein: Judging Its Clarity and Application.

Stephen I. Vladeck, Professor of Law, American University Washington College of Law. Why Klein (Still) Matters: Congressional Deception and the War on Terrorism.

Jeffrey Kahn, Assistant Professor of Law, Southern Methodist University. The Case of Colonel Abel.

Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz Lecturer in Law, Yale Law School. The Next Judge.

To read articles and subscribe to the print version, visit jnslp.com.

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nationalsecuritylaw United States v. Begolly (E.D.Va. July 14, 2011)

July 14, 2011

* United States v. Begolly (E.D. Va. July 14, 2011) (indictment alleging solicitation to carry out terrorist attacks and distribution of explosives knowledge)

A fascinating case. Details from the press release below, and the indictment is attached:

WASHINGTON – Emerson Winfield Begolly, 22, of New Bethlehem, Pa., was indicted by a federal grand jury in Alexandria, Va., today for allegedly soliciting Islamic extremists to engage in acts of terrorism within the United States and posting bomb-making instruction materials online.

According to the two-count indictment, Begolly has been an active moderator of a popular, internationally known Islamic extremist web forum, the Ansar al-Mujahideen English Forum (AMEF), used by its members to promote and distribute jihadist propaganda. The indictment alleges that since July 2010, Begolly has placed a number of postings encouraging attacks within the United States, including the use of firearms, explosives and propane tanks against targets such as police stations, post offices, synagogues military facilities, train lines, bridges, cell phone towers and water plants.

Following the reported shootings in Northern Virginia at the Pentagon and the Marine Corps Museum in October 2010, Begolly allegedly posted a comment online that praised the shootings and hoped the shooter had followed his previous postings encouraging similar acts of violence that might “seem small but cause big damage.”

On Dec. 28, 2010, Begolly allegedly posted links to a 101-page document that contains information on how to set up a laboratory, conduct basic chemistry and manufacture explosives.

The indictment charges Begolly with solicitation to commit a crime of violence, which carries a maximum penalty of 10 years in prison, and distribution of information relating to explosives, destructive devices and weapons of mass destruction, which carries a maximum penalty of 20 years in prison.

On Feb. 2, 2011, Begolly was indicted for allegedly assaulting federal agents and firearms-related charges in the Western District of Pennsylvania. He faces a maximum sentence of life in prison if convicted of the charges filed in that district.

Begolly Indictment.pdf


nationalsecuritylaw Call for Papers: 2012 LIEBER SOCIETY RICHARD R. BAXTER MILITARY WRITING PRIZE

July 13, 2011

Call for Papers: Lieber Society Richard Baxter Military Writing Prize (see attachments)

Professor Eric Jensen (BYU) writes with the following call for papers:

Attached you will find the announcement for the 2012 LIEBER SOCIETY RICHARD R. BAXTER MILITARY WRITING PRIZE. We have also included an announcement of the change of the award to honor Richard R. Baxter and his exemplary contribution to the law of armed conflict. Please distribute the announcement liberally. The past papers that have been submitted have been excellent and we look forward to another great year for the Prize. Note that my new email is jensene. Please send all submissions to that email address. Eric.

2012 Call for Papers – final.doc

Richard R. Baxter.doc


nationalsecuritylaw job opportunity for law students: DOJ National Security Division

July 11, 2011

DOJ NSD has released info for student internships in the Office of Law & Policy, for spring, summer, and fall 2012 (and such info also is available for NSD’s Counterterrorism Section for spring ’12). Details are here.


nationalsecuritylaw United States v. Kaziu (E.D.N.Y. July 7, 2011) (guilty verdict)

July 8, 2011

* United States v. Kaziu (E.D.N.Y. July 7, 2011) (guilty verdict)

A jury in Brooklyn today returned a guilty verdict in the case of Betim Kaziu, convicting on counts including conspiracy to kill overseas (18 USC 956(a)), conspiracy to provide material support to terrorism (18 USC 2339A), attempted provision of material support to al Shabab (18 USC 2339B), and conspiracy to use a firearm in connection with those offenses (18 USC 924). The latter two, of course, are akin to the ones lodged this week against Ahmed Warsame. Note too that Kaziu was captured abroad (in Kosovo, by Kosovar police), and then transferred to U.S. custody and brought to the United States.

BROOKLYN, NY – Following a two-week trial in the Eastern District of New York, a federal jury convicted Betim Kaziu today of conspiring to commit murder overseas, conspiring to provide material support to terrorism, attempting to provide material support to a foreign terrorist organization and conspiring to use a machine gun in furtherance of those crimes.

The evidence at trial established that the defendant traveled from Brooklyn to Cairo in February 2009 in order to wage violent jihad against U.S. troops in the Middle East and the Balkans. While in Cairo, the defendant also attempted to acquire automatic weapons and to travel to Somalia to join al-Shabaab, a Somali terrorist organization allied with al-Qaeda. Ultimately, the defendant traveled to Kosovo in an effort to target American troops stationed there, or to travel onward to Pakistan to join al-Qaeda.

While in the Balkans, the defendant recorded a martyrdom video on the Albanian coast of his “last few moments” before he expected to depart for jannah, or paradise reserved for martyrs. Shortly thereafter, on Aug. 27, 2009, the defendant was arrested in Kosovo by the Kosovo Police Service. He was then transferred to the custody of agents and detectives of the New York Joint Terrorism Task Force to face terrorism charges filed in the Eastern District of New York. At the time of his arrest, the defendant had already purchased a ticket to travel to Pakistan on Sept. 15, 2009.

Testimony at trial established that the defendant had been radicalized, in part, by Internet speeches by Anwar al-Awlaki and propaganda videos produced by al-Qaeda and al-Shabaab. The government also introduced at trial evidence from the defendant’s social networking website, including quotes by Osama Bin Laden.

The defendant faces a sentence of up to life in prison. Sentencing has been scheduled for Nov. 4, 2011.


nationalsecuritylaw David Kris on Criminal Prosecution as a Counterterrorism Tool

July 7, 2011

Well, this is timely. The Journal of National Security Law & Policy has just published this 104-page article from David Kris (who recently stepped down as the AAG for the National Security Division at DOJ) titled “Criminal Prosecution as a Counterterrorism Tool”. Here’s an excerpt from the introduction:

This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.

Part I reviews the recent history of our national counterterrorism strategy, focusing in particular on the origins and evolution of the Justice Department’s National Security Division (NSD), which I led from March 2009 until March 2011.6 Knowing a little about NSD is important because NSD is a key part of how the country came to a consensus, at least until recently, about the appropriate role of law enforcement as a counterterrorism tool.

Part II sketches a conceptual framework for thinking about the role of law enforcement in the current conflict, and more generally as a counterterrorism tool. The idea here is to identify the right questions, and the right way of approaching the policy debate in which we are now engaged as a country. Identifying the right questions is difficult but important.

Part III answers the questions posed in Part II. It briefly describes some of the empirical evidence about how law enforcement has been used to combat terrorism, and, in particular, how it has been used to disrupt plots, incapacitate terrorists, and gather intelligence. This serves as the basic, affirmative case for retaining law enforcement as one of our counterterrorism tools. Part III also explores some of the arguments against using law enforcement for counterterrorism, and explains why (in my view) those arguments are wrong. Part III closes with a discussion of pragmatism and perception, and the role of values in counterterrorism.

Part IV offers a comparison between civilian law enforcement, detention under the law of war,7 and prosecution in a military commission. We need such a comparison to make smart decisions about public policy as well as decisions about the disposition of individual cases. The chief goal of Part IV is to explain the major pros and cons of each system.8

Finally, Part V discusses how law enforcement can be made more flexible and more effective as a counterterrorism tool. In particular, it addresses how the public-safety exception to Miranda should apply in the context of terrorism investigations.9


nationalsecuritylaw important new case involving military capture, extended interrogation, and (today) civilian prosecution in the US

July 5, 2011

The case is US v. Warsame, and I’ve posted an indictment, along with commentary, here.