nationalsecuritylaw addiitional job opportunity at DOJ NSD OLP

August 23, 2011

In addition to the Appellate Attorney position I noted earlier tonight, note to that there is a “counsel” position opened at DOJ-NSD’s Office of Legal Policy:

Job Title: Counsel

Division: National Security Division

Section/Office: Office of Law and Policy

Opens: August 5, 2011

Closes: September 6, 2011

Salary: GS-15: $123,758- $155,500 (Per annum)


nationalsecuritylaw forthcoming scholarship

August 23, 2011

Leveling the Deference Playing Field

Kathryn E. Kovacs (Rutgers)

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different agencies, and specifically a “super-deference” standard to the military. This article demonstrates that the APA’s exception for “military authority exercised in the field in time of war,” interpreted correctly, insulates core military functions from judicial review, thus removing any basis for giving the military heightened deference as a matter of course. That exception accommodates separation of powers concerns raised by judicial interference with the President’s authority as Commander in Chief, and it removes concern about courts second-guessing military expertise in particular by making actions that directly implicate that expertise unreviewable.

"Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts" Description: Free Download

EMILY CRAWFORD, University of Sydney – Faculty of Law

In the more than thirty years that have passed since the adoption of the Additional Protocols to the Geneva Conventions of 1949, there has been no revisiting of the Geneva laws, to see whether they still effectively regulate their subject-matter. Indeed, even if the Geneva Conventions were debated for revision, it seems highly unlikely that such revision would go ahead. There are so many parties that have a stake in the conduct of armed conflict that it seems doubtful that any kind of consensus could be reached. A graphic example of the difficulties of achieving consensus was seen during the Expert Process convened to discuss the concept of Direct Participation in Hostilities. Disagreements over the final text, known as the Interpretive Guidance on Direct Participation in Hostilities, resulted in almost a third of the fifty experts involving withdrawing their names from the document. Given this background, this paper will look at the history of international humanitarian law relating to regulating irregular participation in armed conflict, as a case study to demonstrate the increasingly difficult task of achieving consensus on the international plane. From the first provisions in the Hague Regulations regarding levee en masse, to the Geneva Conventions and the Additional Protocols, this paper will look at how non-conventional combatancy has been regulated, and examine the debates surrounding the expansion of the category of combatant. This paper will culminate in an analysis of the ICRC Expert Process on Direct Participation in Hostilities; and argue that both the final Interpretive Guidance, and the controversy leading up to and surrounding its publication, is demonstrative of the obvious stumbling blocks facing any new treaties regarding participation in armed conflict.

Homeland Security: What Is It and Where Are We Going?”

Amos N. Guiora (Utah)

CRC Press (2011)

As the ten-year anniversary of 9/11 approaches, one critical question persists. Have policies enacted to protect us from terrorist attacks actually made us safer, or have they merely mollified the concerned public with a false sense of security? Homeland Security: What Is It and Where We Are Going combines professional experiences, personal reflections, and academic scholarship to provide a realistic assessment of current policy effectiveness.

Determining a Legitimate Target: The Dilemma of the Decision Maker

Amos N. Guiora (Utah)

Texas International Law Journal, Forthcoming

Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.

This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.

While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin – “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” – were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.

Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable.

Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in maximum use of force; needless to say, operational results will be uncertain.

A comparative survey of operational counter terrorism is telling for it highlights how distinct approaches color the legitimate target discussion: The Russian experience in Chechnya presents a particularly stark example of maximum force with questionable results. Conversely, Spain’s experience in the aftermath of the Madrid train bombing reflects a different paradigm, one implementing minimum force and maximum restraint. Seven years after 204 Spaniards found their deaths at the hands of Islamic extremists, Spain – as these lines are written – has not experienced a second attack. China’s policy regarding Uyghur’s in Xinxiang Province is best captured in its name: “Strike Hard” campaigns; India, largely in the face of Pakistani supported and facilitated terrorism, has adopted a policy of restraint predicated, largely, on mutual assured deterrence. Colombia’s policy, in the face of twin threats posed by drug cartels and terrorists is aggressive, not dissimilar from China’s. Israel and the US have largely, but certainly not consistently, sought to implement person-specific counterterrorism policies. Policies implemented by the US and Israel include targeted killing/drone attacks, Operation Cast Lead, and detainment of thousands of individuals in Afghanistan and Iraq, often for what can best be described as little, if any, cause.

With the primary focus on who is a legitimate target and when is the target legitimate, the article will be organized as follows: Section I offers a ‘word of caution’ in an age of uncertainty; Section II discusses operational counter terrorism; Section III offers a survey of how the term legitimate target has historically been defined and applied in the battlefield; Section IV focuses on the non-state actor and international law; Section V discusses defining the legitimate target; Section VI focuses on the practical application of the legitimate target discussion from the commander’s perspective; the conclusion proposes a road map moving forward regarding both definition and application of legitimate target.

Seductive Drones: Learning from a Decade of Lethal Operations

Mary Ellen O’Connell (Notre Dame)


The world’s fleets of unmanned combat vehicles (UCVs) are growing exponentially. This contribution aims to raise awareness that the very existence of UCV technology may well be lowering the inhibitions to kill. At least two sets of data indicate a problem: First, we have evidence from psychological studies that killing at a distance using unmanned launch vehicles may lower the inhibition to kill on the part of operators. Second, we have a decade of evidence of US presidents deploying military force where such force was unlikely to be used prior to the development of UCVs. This evidence indicates that the availability of UCVs lowers political and psychological barriers to killing. At the same time, an increasing number of international law specialists are arguing that it is lawful to kill terrorism suspects wherever they are found or to kill them if they are found in ‘weak states.’ These arguments seem intended to support policy decisions already taken, rather than providing rigorous analysis of the relevant international law.

International law establishes a high bar to lawful resort to lethal force. That high bar is derived from the Just War Doctrine and so reflects not just a legal norm, but a moral norm as well. Much policy on resort to lethal force, by contrast, appears to be related to Realist power politics ideology rather than international legal authority. Within Realism, resort to lethal force, killing, is acceptable to send a message of strength or to promote the perception of power in the form of military power. Even among policy makers not committed to Realist power projection there may be a belief in the utility of lethal military force to suppress terrorism that is not warranted by the record.

nationalsecuritylaw job opportunity: DOJ National Security Division, Office of Legal Policy, Appellate Attorney

August 23, 2011

Job Title: Appellate Attorney

Division: National Security Division

Section/Office: Office of Law and Policy

Opens: August 5, 2011

Closes: September 6, 2011

Salary: GS-15: $123,758- $155,500 (Per annum)


nationalsecuritylaw United States v. Younis (S.D.N.Y. Aug. 18, 2011)

August 18, 2011

* United States v. Mohammad Younis (S.D.N.Y. Aug. 18, 2011)

A guilty plea today in a case involving a man who unknowingly provided financial support (via an illegal hawala arrangement) to Faisal Shahzad, the would-be Times Square bomber. Details from the press release appear below, and the plea agreement is attached.

NEW YORK – Mohammad Younis pleaded guilty today in Manhattan federal court to operating an unlicensed money transfer business between the United States and Pakistan. One of the money transfers was used to fund the May 1, 2010, attempted car bombing in New York City’s Times Square by Faisal Shahzad who is serving a life sentence in federal prison, announced Preet Bharara, U.S. Attorney for the Southern District of New York. Younis pleaded guilty before U.S. District Judge John F. Keenan.

U.S. Attorney Bharara stated: “This case should send a clear message that we will not leave a stone unturned in our investigations of terrorists and how they get the money to finance their plots. Mohammed Younis engaged in illegal activity that, although unbeknownst to him, facilitated the funding of a potentially lethal attack in New York City. He was apprehended by law enforcement and as a result, a possible funding stream for terror attacks is now a dry well.”

According to the indictment previously filed in this case, other court filings and statements made during today’s guilty plea proceeding:

From January to May 2010, Younis provided money transmitting services to individuals in the New York City area by assisting in the operation of a “hawala,” a type of informal value transfer system in which money does not physically cross international boundaries through the banking system. In the hawala system, funds are transferred by customers to a hawala operator, or “hawaladar,” in one country, and corresponding funds, less any fees, are disbursed to recipients in another country by hawaladar associates on that end.

On April 10, 2010, Younis engaged in two separate hawala transactions with customers who traveled from Connecticut and New Jersey to meet with him in Long Island. In each of the transactions, Younis provided thousands of dollars in cash to the individuals at the direction of a co-conspirator in Pakistan, but without knowledge of how the customers were planning to use the funds. At no time did Younis have the license to operate a money transmitting business from either state or federal authorities.

One of the individuals to whom Younis provided money was Shahzad, who, on June 21, 2010, pleaded guilty to a 10-count indictment charging him with crimes relating to his attempt to detonate a car bomb in Times Square. During the course of his plea allocution, Shahzad acknowledged receiving a cash payment in April 2010 in the United States to fund his preparations for the attempted bombing. According to Shahzad, the April cash payment was arranged in Pakistan by associates of the Tehrik-e-Taliban, the militant extremist group based in Pakistan that trained him to make and use explosive devices.

On Sept. 15, 2010, Younis was arrested at his Long Island, N.Y., residence by agents of the New York Joint Terrorism Task Force (JTTF).

Younis, 45, pleaded guilty to one count of conducting an unlicensed money transmitting business. He faces a maximum term of five years in prison and a maximum fine of $250,000 or double the gain or loss arising from his conduct. In addition, he agreed to forfeit $12,000 to the United States. He is scheduled to be sentenced by Judge Keenan on Nov. 30, 2011, at 3:15 p.m.


Younis, Mohammad Plea Agreement and Consent Order of Forfeiture.pdf

nationalsecuritylaw United States v. Omar (D. Minn. Aug. 2011) (material support & murder conspiracy indictment in al-Shabaab case)

August 15, 2011

* United States v. Omar (D. Minn. Aug. 2011) (material support & murder conspiracy indictment in al-Shabaab case)

A Somali man (with lawful permanent resident status in the US) has been extradited from the Netherlands to the United States to face charges including conspiracy to commit murder abroad (18 USC 956(a)) and conspiracy to provide material support (money, personnel) in furtherance of a conspiracy to commit murder abroad. At bottom, the allegation is that Omar recruited and provided funds for weapons to young Somali-American men in Minnesota in connection with recruitment for al-Shabaab. The contents of the press release appear below.

Note that this is at least the second time in the post-9/11 period in which a terrorism-related defendant has been extradited from the Netherlands to the United States. The earlier case, United States v. Delaema, included relative strict conditions from the Dutch, including a requirement that he be repatriated to serve his sentence (including the prospect that a Dutch judge might reduce his sentence, which did in fact happen). Since Omar unlike Delaema is not a Dutch citizen, one has to assume that nothing similar will be required in this instance. Omar thus faces the prospect of a life sentence.

MINNEAPOLIS—Earlier today in federal court in Minneapolis, Mahamud Said Omar made his initial appearance on charges related to supporting al-Shabaab, a U.S.-designated foreign terrorist organization with ties to al-Qaeda. He appeared before U.S. District Court Chief Judge Michael J. Davis.

On Aug. 20, 2009, Omar, age 45, formerly of Minneapolis, was indicted in federal court in the District of Minnesota with conspiracy to provide material support to terrorists and foreign terrorist organizations as well as conspiracy to kill, kidnap, maim and injure persons abroad. Omar, also known as Mohamud Said Omar and Sharif Omar, was arrested in the Netherlands in November of 2009. He was extradited from the Netherlands to the United States earlier this week.

The 2009 indictment states that from September of 2007 through August of 2009, Omar, a Somali citizen who is a lawful permanent resident of the United States, conspired with others to provide financial assistance as well as personnel to al-Shabaab. Court documents allege that Omar gave money to young men so they could travel from Minneapolis to Somalia to train with and fight for al-Shabaab. Omar also allegedly visited an al-Shabaab safe-house in Marka, south of Mogadishu, where he provided the Minneapolis men with hundreds of dollars for the purchase of AK-47 assault rifles to use in their efforts.

This case arose out of “Operation Rhino,” an investigation that focused on the disappearance of young ethnic Somali men who lived in the Minneapolis area and were ultimately found to have been recruited to fight with al-Shabaab back in Somalia. The earliest groups of identified “travelers” departed the United States in October and December 2007, while others left in February 2008, August 2008, November 2008, and October 2009. Upon arriving in Somalia, the men resided in al-Shabaab safe-houses in Southern Somalia until constructing an al-Shabaab training camp, where they were trained by senior members of al-Shabaab along with a senior member of al-Qaeda.

nationalsecuritylaw upcoming event: “Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan” (BU School of Law, Oct. 14, 2011)

August 11, 2011

* upcoming event: "Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan" (BU School of Law, Oct. 14, 2011)

Please see the attached pdf for the details for this terrific upcoming conference at Boston University School of Law. See also the information below:

Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan

Friday, October 14, 2011

October 2011 will mark the 10-year anniversary of the U.S. conflict in Afghanistan, the longest war in U.S. history. This conference, cosponsored by Boston University School of Law, the U.S. Naval War College, and the American Society of International Law’s Francis Lieber Society, will examine current controversies in the law of armed conflict, the law governing recourse to force, and international human rights law arising out of the continuing U.S. military operations in Afghanistan and related operations in Pakistan. Panelists will address, among other issues, counterinsurgency doctrine, the increasing individuation of warfare, the tactical directive, rules of engagement, the concept of “direct participation in hostilities,” unmanned systems, targeted killings, and cross-border operations. The keynote address will be delivered by Dr. David Kilcullen, founding CEO and President of Caerus Associates. During his distinguished career, Dr. Kilcullen has served as counterinsurgency adviser to NATO International Security Assistance Force, special adviser for counterinsurgency to former Secretary of State Condoleezza Rice, senior counterinsurgency adviser to General David Petraeus, and chief strategist in the Office of the Coordinator for Counterterrorism. The Boston University International Law Journal will publish selected portions of the proceedings.

Conference sessions will take place on Friday, October 14 from 1:00 – 6:00 p.m, and will be held at BU’s School of Law, 765 Commonwealth Avenue, Boston, MA. Please arrive by 12:30 p.m., to register and join us for coffee and light refreshments before the proceedings begin. This event is free and interested members of the public are cordially invited to attend. For academic questions, please contact Robert Sloane, Associate Professor of Law. To RSVP, please contact <a href="mailto:eaa, Events & Public Relations Manager.

afghanistan conference postcard 2011.pdf

nationalsecuritylaw United States v. Abdo (W.D. Tex. Aug. 9, 2011) (indictment in Fort Hood bomb plot case)

August 10, 2011

* United States v. Abdo (W.D. Tex. Aug. 9, 2011) (indictment in Fort Hood bomb plot case)

A grand jury yesterday returned an indictment in the case of Naser Abdo, the guy recently arrested in connection with an alleged bomb plot in relation to Killeen (the same guy who shouted “Major Nidal Hassan 2009!” in the courtroom after his arrest). I assume there will be a superseding indictment at some point, as this first iteration merely charges possession of an unregistered destructive device and posession by a fugitive (remember, he was AWOL from Fort Campbell) of a firearm & ammo. That is, there is no charge as yet specific to plotting to bomb Fort Hood personnel or otherwise. Of course, that’s the tricky thing about the lone wolf scenario: no option to charge conspiracy and hence a bit more trouble in finding the right inchoate offense charge where the arrest occurs early on the spectrum of planning. Assuming it remains a lone wolf scenario, I suppose the question is whether prosecutors are having trouble convincing themselves, or the grand jury, to attach on attempt charge in relation to this particular fact pattern. In that regard, compare this fact pattern to United States v. Aldawsari, which involved another lone wolf bomb plot (a former student at Texas Tech who allegedly was planning to set off a bomb), in that case charged as an attempt under 18 USC 2332a (see here for more).

If prosecutors cannot add additional charges, note that these charges expose Abdo to a mere ten years in prison. In any event, here is the press release in Abdo’s case:

WACO, Texas — U.S. Attorney John E. Murphy and FBI Special Agent in Charge Cory B. Nelson announced that a federal grand jury seated in Waco returned an indictment this afternoon charging 21-year-old Naser Jason Abdo with possession of an unregistered destructive device as well as possession of a firearm and ammunition by a fugitive from justice.

The three-count indictment specifically alleges that on July 27, 2011, Abdo was in possession of a destructive device not registered to him in the National Firearms Registration and Transfer Record as well as a .40 caliber semi-automatic pistol and 20-gauge shot shells while being a fugitive from justice.

According to court records, officers with the Killeen, Texas, Police Department arrested Abdo on July 27, 2011. At the time of his arrest, the defendant, an AWOL soldier from Fort Campbell, Kentucky, was in possession of the handgun plus instructions on how to build a bomb as well as bomb making components, including six bottles of smokeless gunpowder, shotgun shells, shotgun pellets, two clocks, two spools of auto wire, an electric drill and two pressure cookers. Court documents also allege that Abdo intended to use the materials to assemble two destructive devices with the intention of detonating them inside an unspecified restaurant frequented by soldiers from Fort Hood.

Abdo remains in federal custody. If convicted, he faces up to ten years in federal prison and a maximum $250,000 fine per count.

nationalsecuritylaw forthcoming scholarship

August 10, 2011

Proportionality in Counterinsurgency: A Relational Theory

Evan J. Criddle (Syracuse University College of Law)

87 Notre Dame Law Review (2011)

At a time when the United States has undertaken high-stakes counterinsurgency campaigns in three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use of force. The central insight is that a state’s authority to use force under international law is derived from, and constrained by, the fiduciary character of its relationship with its people. This relational conception of state sovereignty offers an attractive normative framework for addressing conflicts between human rights and humanitarian law. When states engage in internal armed conflict and belligerent occupation, their assertion of control over an affected population entails a concomitant fiduciary obligation to satisfy the strict proportionality standard of international human rights law. Conversely, when states defend their people in traditional international armed conflict and transnational armed conflict against non-state actors, international humanitarian law ordinarily supplies the applicable proportionality standard. Examples from conflicts in Afghanistan, Argentina, Israel, Libya, and Russia illustrate how the relational approach to choice-of-law analysis could lay a more coherent and principled foundation for counterinsurgency regulation under international law.

"The Habeas Corpus Suspension Clause and the Right of Natural Liberty"

JOHN C. HARRISON, University of Virginia School of Law

Important recent scholarship shows that the Habeas Corpus Suspension Clause is aimed mainly at substantive legislation that authorizes confinement by the executive that otherwise would be unlawful. Thus a grant of detention authority that leaves the judicial habeas corpus remedy intact can constitute a suspension subject to the clause. This article emphasizes that at the time of the framing the central example of a suspension of the writ was a grant of extremely broad discretion to the executive to confine people the executive believed to be dangerous. It maintains that broad executive discretion to confine is a necessary condition for a grant of detention authority to qualify as a suspension. Therefore legislative authorization of executive detention for reasons of national security is not a suspension as long as the executive’s discretion is substantially bounded; for example, the confinement of enemy aliens during war does not require suspension of the writ. That is true whether the persons to be detained are citizens or aliens. Congressional grants of legally determinate national security detention authority are thus not limited to cases of rebellion and invasion by the Suspension Clause, because they are not suspensions, and may be applied to citizens and aliens alike.

"Civil Litigation and International Terrorism: An UK-Israeli Reflection on the Role and Impact of US Styled Anti-Terrorism Litigation for the Prevention of Terrorism and the Protection of Human Rights"

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

Global terrorism relies directly on financial economic support from a multitude of donors, both individual and corporate. Terrorist financing is a global problem which is closely linked to international crimes such as money laundering and organized crime. Consequently, possible responses have to be coordinated, multilateral and multi-faceted under the umbrella of a wide range of international stakeholders such as the United Nations Security Council and the Financial Action Task Force (FATF). Apart from “kinetic” lethal security responses and measures of criminal deterrence another response could be the use of transnational civil litigation by victims of terrorism against both terrorist groups and their sponsors. Corporations, both profit and non profit, such as banks (cf. the US Arab Bank cases and the In re Terrorist Attacks on September 11, 2001 case) and other entities (cf. the Boim litigation cases), as well as individuals, collude as aiders and abettors by providing financial assistance to the perpetrators (cf. UN Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida et al). Such collusion in acts of terrorism gains additional importance against the background of so called “Hybrid Threats” reflecting on new threats arising from multi-polar threat scenarios. This article reflects on the evolving notion of corporate responsibility for colluding in acts of terrorism and human rights violations as an additional legal form of redress for the individual victim of terrorism from a UK-Israeli perspective. This article acknowledges the interdependence of the different responses to terrorism and argues for the adoption of a holistic approach to combat terrorism.

Rules of Engagement: Law, Strategy and Leadership

Laurie R. Blank

Emory University School of Law


This collection of scholarly works from both academia and uniformed service personnel provides PME institutions, the operating forces, and civilian academics a resource of thought-provoking material on the challenging ethical and legal considerations facing Marine leaders and encourage discussion of these issues in an open forum. The project stems directly from the Commandant of the Marine Corps’ most recent planning guidance, directing the forces to focus on "better educat[ing] and train[ing] our Marines to succeed in distributed operations and increasingly complex environments."

This article will examine and refocus the debate about ROE to analyze the critical intersection of law, strategy and leadership that Rules of engagement (“ROE”) represent in during armed conflict. ROE are a key leadership tool. At the same time, leadership plays a critical role in communicating the direct relationship between the overall mission, the law of armed conflict, and the tactical needs on the ground. The top brass and senior commanders see the value of the ROE in their every day operations and relationships with local military and government officials, but many officers and enlisted soldiers complain about what they view as unreasonable restrictions on their ability to use force. When strategic counterinsurgency goals of minimizing civilian casualties are mistaken for legal rules that do not allow for civilian deaths in wartime, the differences between law and policy, between legal parameters governing the use of force and the targeting of persons and tactical considerations driven by strategic policy are being differentiated appropriately.

"The U.S. Supreme Court, the War on Terror, and the Need for Thick Constitutional Review"

Mississippi Law Journal, Vol. 80, No. 4, 2011

MARK KENDE, Drake University Law School
Email: mark.kende

Commentators have praised the U.S. Supreme Court’s three famous “war on terror” cases (Hamdi, Hamdan, and Boumediene) for showing the Court’s courage in rejecting broad wartime claims of executive power. By contrast, this symposium essay criticizes the Court for failing to provide essential legal criteria to govern how the lower courts should handle enemy combatants and the military commission system. Justice O’Connor’s position in Hamdi that the detainees could be held for the duration of the conflict, in a war that could last indefinitely, is just one example. Due to its omissions, the Court effectively allowed many of the Bush Administration’s questionable detention policies to continue with only minor legal adjustments. Indeed the D.C. Circuit was given license to develop the law to problematic effect.

This essay argues that the only viable solution left, to preserve the rule of law and the international stature of the U.S., would be for Article III judges to adjudicate any Guantanamo prosecutions. The commission’s procedural rules should also be as court-like as possible. Unfortunately, the Obama Administration has failed to alter certain key Bush policies on the commissions, even conceding Congressional obstacles. In addition, the essay poses the question of whether the U.S. Supreme Court should remain deferential to the other branches during wartime, given the consistent recent history of government deception on war related issues (as shown by Korematsu, the Gulf of Tonkin incident, the Pentagon Papers, the supposed weapons of mass destruction in Iraq, and Yaser Hamdi’s purported dangerousness).

Israel’s National Security Law: Political Dynamics and Historical Developments

Amichai Cohen (Ono Academic College, Israel)


Terror attacks on western civilian targets have stimulated interest in the dilemmas faced by liberal societies when combating threats to national security. Combining the perspectives of political science and law, this book addresses that discourse, asking how democracies seek to harmonize the protection of individual liberties with the defence of state interests.

The book focuses on the experience of Israel, a country whose commitment to democratic values has continuously been challenged by multiple threats to national survival. It examines the legal, legislative and institutional methods employed to resolve the dilemmas generated by that situation, and thus provides a unique interpretation of Israeli national security behaviour. Policy-making and policy-implementation in this sphere, it shows, have reflected not just external constraints but also shifts in the domestic balance of power between the executive, the legislature and the judiciary. The book concludes with an agenda of the measures that each branch of government needs to implement in order to repair the flaws that have developed in this system over time.

Based on a close reading of legislative and court readings, the book proposes a new taxonomy for the analysis of national security legal frameworks, both in Israel and elsewhere in the democratic world. As such it will be of great interest to students and scholars of political science, national security law, Israeli history and civil-military relations.

nationalsecuritylaw United States v. Begolly (W.D. Pa. Aug. 9, 2011) (guilty plea)

August 9, 2011

* United States v. Begolly (W.D. Pa. Aug. 9, 2011) (guilty plea)

Well, for better or worse this ends what would otherwise likely have been a very interesting First Amendment case involving the constitutionality of charging solicitation based on online incitement to terrorism (as well as the constitutionality of prosecuting for the publication of bomb-making instructions). In any event, Emerson Begolly today pled to the solicitation count, and it would appear the other charges have been dropped in exchange. From the press release:

WASHINGTON – Emerson Winfield Begolly, 22, of New Bethlehem, Pa., pleaded guilty today in Pittsburgh to soliciting others to engage in acts of terrorism within the United States and to using a firearm during and in relation to an assault on FBI agents.

According to information presented by the government in court, Begolly was an active administrator on the Ansar al-Mujahideen English Forum (AMEF), which is an internationally used Islamic extremist Internet forum. Using the pseudonym of Abu Nancy, Begolly systematically solicited jihadists to use firearms, explosives and propane tanks against targets such as police stations, post offices, Jewish schools and daycare centers, military facilities, train lines, bridges, cell phone towers and water plants.

In the summer of 2010, Begolly urged jihadists on the AMEF to “write their legacy in blood.” Begolly promised a special place in the afterlife for violent action in the name of Allah. Following the reported shootings in Northern Virginia at the Pentagon and the Marine Corps Museum in October 2010, Begolly posted a comment online that praised the shootings and hoped the shooter had followed his previous postings encouraging similar acts of violence. On Dec. 28, 2010, Begolly further solicited his AMEF audience to violence by posting a manual on how to manufacture a bomb.

Days later, on Jan. 4, 2011, FBI agents were assaulted by Begolly as they attempted to prevent him from reaching a loaded 9 mm semi-automatic handgun, which he had concealed on his body. While violently struggling with the agents, Begolly bit the agents on their fingers in an attempt to free himself to reach his firearm. His actions are consistent with a posting in which he urged his audience not to be taken alive by law enforcement, to always carry a loaded firearm, and to aggressively resist any law enforcement encounter including biting fingers if necessary.

Senior U.S. District Court Judge Maurice B. Cohill scheduled sentencing for Nov. 29, 2011.