nationalsecuritylaw Upcoming event: Conference in Milan, Dec. 1-2, on national security, secrecy, and constitutional law

September 28, 2011

* IACL and Bocconi University present “Secrecy, National Security, and the Vindication of Constitutional Law” (Dec. 1-2, 20110) (Milan)

Going to be in Milan in early December, or looking for a reason to go?

The International Association of Constitutional Law Research Group on Constitutional Responses to Terrorism


The Bocconi University – Angelo Sraffa Department of Law

invite you to a Conference:

Secrecy, National Security, and

the Vindication of Constitutional Law

at Bocconi University, Milan, Italy, Dec. 1-2, 2011

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. Secrecy claims have grown only more insistent in the wake of the terrorist attacks of September 11, 2001, and in many other nations since. This workshop will address in a comparative frame the ways that various constitutional systems have sought to balance this tension between transparency and fairness on the one hand, and secrecy and security on the other.

Featured speakers include scholars, judges, and lawyers from twelve countries, among which Sir Stephen Sedley, Lord Justice (Ret.) of the Court of Appeal of England and Wales; Justice Lech Garlicki of the European Court of Human Rights, Gita Gutierrez, an attorney with the Center for Constitutional Rights who has represented Guantanamo detainees; Murray Hunt, counsel to the UK Parliament Joint Committee on Human Rights; and constitutional scholars Daphne Barak-Erez, David Cole, Kent Roach, Martin Scheinin, and Stephen Schulhofer. Panels will discuss the impact of secrecy on criminal trials, administrative proceedings (such as the designation of “terrorists” for terror financing prohibitions), detention hearings, and legislative process.

Attendance at the conference is free and open to the public, but you must register at:

A full programme for the conference is available at:

Poster WS Bocconi.pdf

Program WS Bocconi.pdf

Advertisement WS Bocconi.doc

nationalsecuritylaw Regina v. Nasser et al (UK – charges in alleged suicide bomb plot)

September 27, 2011

* Regina v. Nasser et al (UK, Sep. 25, 2011) (charges in alleged suicide bomb plot)

Last Sunday police in Birmingham, England, arrested a group of suspects in connection with an alleged suicide bombing plot. Details of the allegations, along with the charges, are posted here by the West Midlands Police. I’ve also posted some commentary comparing the breadth of the charges at issue in the case to their analogues in US law, here.

nationalsecuritylaw United States v. Kassar (2d Cir. Sep. 21, 2011)

September 25, 2011

* United States v. Kassar (2d Cir. Sep. 21, 2011)

A Second Circuit panel has affirmed the conviction of three defendants who were convicted on charges stemming from a sting operation involving a faux effort by the FARC to obtain weapons for use against U.S. personnel. It’s a fascinating fact pattern. As for the issues treated in the opinion, the include the expected reviews of the sufficiency of the evidence, a rejection of a constitutional challenge to the material support statute (relying on HLP v. Holder), and rejection of the argument that 18 USC 1114 and 1117 don’t apply extraterritorially, among other things. Nothing terribly novel, I think, but all quite interesting to read.

nationalsecuritylaw al-Haramain Islamic Foundation v. Dep’t of Treasury (9th Cir. Sep. 23, 2011)

September 23, 2011

* al-Haramain Islamic Foundation v. Dep’t of Treasury (9th Cir. Sep. 23, 2011)

A 9th Circuit panel has determined that the OFAC designation process is unconstitutional in various ways, but that the designation of al-Haramain was appropriate. The opinion is here, and the conclusion follows:

In summary, we hold as follows:

1. Substantial evidence supports the redesignation of AHIF-Oregon as a specially designated global terrorist under EO 13,224, for two of the three reasons advanced by OFAC. We affirm the district court’s ruling to that effect under the Administrative Procedure Act.

2. OFAC may rely on classified information to make a designation decision. But OFAC violated AHIF-Oregon’s Fifth Amendment right to due process by failing to provide constitutionally adequate notice and a meaningful opportunity to respond, and by failing to mitigate the use of classified information by, for example, preparing and disclosing an unclassified summary. Nonetheless, because the outcome of the designation process in this instance would not have been altered by respecting those due process rights, those constitutional errors were harmless and no judicial relief is available to AHIF-Oregon. Again, we affirm the district court’s ruling.

3. OFAC violated AHIF-Oregon’s Fourth Amendment right to be free from unreasonable seizures when it froze that domestic entity’s assets without ever obtaining a warrant. Accordingly, we reverse the district court’s contrary ruling. With respect to any potential remedy, because the parties did not brief the issue and because the district court has not ruled on it, we remand for that court to consider, in the first instance, what relief, if any, may be available to AHIFOregon.

4. MCASO has a First Amendment right to engage in the forms of coordinated advocacy that it seeks, such as holding a joint press conference with AHIF-Oregon. The contentbased prohibitions on MCASO’s speech violate the First Amendment. We therefore reverse the district court’s dismissal of Plaintiffs’ First Amendment claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

nationalsecuritylaw Note: this event will be webcast live FW: event tomorrow at Case Western: “The University and National Security After 9/11”

September 22, 2011

I neglected to mention below that this event will be webcast live, for those who will not be in Cleveland tomorrow.

From: Robert Chesney
Sent: Thursday, September 22, 2011 4:45 PM
Subject: event tomorrow at Case Western: "The University and National Security After 9/11"

This looks like a really interesting event! Details are attached, and also posted here:


nationalsecuritylaw event tomorrow at Case Western: “The University and National Security After 9/11”

September 22, 2011

This looks like a really interesting event! Details are attached, and also posted here:


nationalsecuritylaw United States v. Espinosa, and a new Brookings report on cartel violence in Mexico

September 22, 2011

2 items related to Mexico and transnational criminal organizations

* “Calderon’s Cauldron: Lessons from Mexico’s Battle Against Organized Crime and Drug Trafficking in Tijuana, Ciudad Juarez, and Michoacan

Vanda Felbab-Brown (Brookings) (September 2011)

This monograph explores the effectiveness of the security and law enforcement and socio-economic approaches adopted in Mexico over the past several years to combat the drug trafficking organizations. It also analyzes the evolution of organized crime in Mexico, including in reaction to anti-crime actions taken by the Mexican government. It is based on fieldwork I undertook in Mexico in October 2009 and particularly in March 2011.

* United States v. Espinosa (W.D. Tex. Sep. 22, 2011)

There were two additional guilty pleas against members of Barrio Azteca today, involving defendants implicated in the murder of a U.S. Consulate employee in Juarez in March 2010. Details from the press release:

WASHINGTON – A member and an associate of the Barrio Azteca (BA) gang each pleaded guilty today to participating in a racketeering conspiracy involving, among other things, the March 13, 2010, murders in Juarez, Mexico, of a U.S. Consulate employee, her husband and the husband of another U.S. Consulate employee, announced Assistant Attorney General Lanny A. Breuer of the Criminal Division, U.S. Attorney John E. Murphy for the Western District of Texas, FBI Assistant Director of the Criminal Investigative Division Kevin Perkins and Administrator Michele Leonhart of the U.S. Drug Enforcement Administration (DEA).

Jesus Espino, 43, of El Paso, Texas, and Lorenzo Espino, 51, aka “Lencho,” and “Oso,” of El Paso, each pleaded guilty today before U.S. Magistrate Judge Norbert Garney in the Western District of Texas, El Paso Division, to participating in a racketeering conspiracy.

In addition, on Aug. 2, 2011, Roberto Angel Cardona, 33, aka “Little Angelillo,” of El Paso, and his wife, Desiree Gamboa Cardona, 30, of El Paso, pleaded guilty before U.S. District Judge Kathleen Cardone in El Paso. Roberto Cardona pleaded guilty to participating in a racketeering conspiracy and Desiree Cardona pleaded guilty to conspiracy to commit money laundering.

According to court documents, the defendants are members or associates of BA, which began in the late 1980s as a violent prison gang and which has since expanded into a transnational criminal organization. The BA is based primarily in west Texas, Juarez and throughout state and federal prisons in the United States and Mexico. The gang has a military-like command structure – including captains, lieutenants, sergeants and soldiers – for the purpose of maintaining power and enriching its members and associates through drug trafficking, money laundering, extortion, intimidation, violence, threats of violence and murder.

According to court documents, since Jan. 1, 2003, members and associates of the BA have engaged in a host of criminal activities, including drug trafficking, extortion, money laundering, kidnapping and murder, including the March 13, 2010, murders in Juarez of U.S. Consulate employee Leslie Ann Enriquez Catton, her husband Arthur Redelf and Jorge Alberto Salcido Ceniceros, the husband of a U.S. Consulate employee.

According to court documents, the BA profits by importing heroin, cocaine and marijuana into the United States from Mexico. BA members and associates also allegedly charge a “street tax” or “cuota” on businesses and criminals operating in their turf. These profits are used to support BA members in prison by funneling the money into prison commissary accounts of gang leaders and to pay for defense lawyers or fines. The “cuota” profits are also allegedly reinvested into the organization to purchase drugs, guns, and ammunition.

Based on the terms of the plea agreement, Jesus Espino will receive a 30 year prison term at sentencing. Lorenzo Espino and Roberto Cardono face a maximum penalty of life in prison for racketeering conspiracy, while Desiree Cardona faces a maximum prison sentence of 20 years in prison on the money laundering charge. Roberto and Desiree Cardona are scheduled to be sentenced on Dec. 16, 2011, at 9:30 a.m., before U.S. District Judge Cardone. A sentencing date for Jesus and Lorenzo Espino has not yet been set by the court.

Thirty-five members and associates of the BA gang, including the four defendants who have pleaded guilty, were charged in a third superseding indictment unsealed in March 2011 that included various counts of racketeering, murder, drug offenses, money laundering and obstruction of justice.