nationalsecuritylaw United States v. Jayyousi, Hassoun, and Padilla (11th Cir. Sep. 19, 2011) (affirming convictions, granting government cross-appeal on Padilla’s sentence)

September 19, 2011

* United States v. Jayyousi, Hassoun, and Padilla (11th Cir. Sep. 19, 2011) (affirming convictions, granting government cross-appeal on Padilla’s sentence)

An across-the-board win for the government in the long-awaited appeal of the conviction and sentencing of Jose Padilla and his co-defendants. Nothing too novel about it from the point of view of the larger questions of counterterrorism law and policy, though I would note the ruling that the outrageous-government-conduct defense does not apply to conduct unrelated to the underlying crime nor to the evidence presented at trial.

I have posted a link to the opinion, and a short account of the panel’s conclusions on the 10 issues presented, here.

nationalsecuritylaw text of John Brennan’s speech tonight at the HLS-Brookings event

September 17, 2011

This evening at Harvard Law School, John Brennan (the Assistant to the President for Homeland Security and Counterterrorism) delivered an important speech concerning the legal and policy aspects of counterterrorism policy, including some remarkably detailed comments on targeting standards. The full text is posted here. The following passages struck me as particularly important:

An area in which there is some disagreement is the geographic scope of the conflict. The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields. As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume. This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces. Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties. Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

nationalsecuritylaw forthcoming scholarship

September 16, 2011

* forthcoming scholarship

The Soldier, the State and the Separation of Powers (email dpearlst for copy of the paper)

Deborah N. Pearlstein (Cardozo)

(forthcoming Texas L. Rev. 2012)

As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting and the use of force, recent legal scholarship has painted a grim picture of the vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably under-theorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social and political theory literature of civil-military affairs view the Constitution’s separation of powers – in particular, the allocation of authority over the military to more than one branch of government – as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.

Detention Debates ((email dpearlst for copy of the paper)

Deborah N. Pearlstein (Cardozo)

(forthcoming Michigan L. Rev. 2012 – Annual Survey of Books Related to the Law)

Ten years after the attacks of September 11, 2001, what progress has the United States made in resolving how to handle the detention of wartime combatants and terrorist suspects? According to Brookings scholar Ben Wittes’ latest book, Detention and Denial, little more than what had been made when the United States began transporting detainees to Guantanamo Bay in early 2002. He urges that it is time to redesign and rationalize the current system of rules the United States has for detaining terrorist suspects – whether captured by our military, intelligence, or law enforcement agents. Further, drawing on U.S. detention experiences of the past decade, he seeks to shed light on which among the branches in our federal government are institutionally suited to resolving the thorny questions of law and policy underlying the determinations of who may be detained and why. Wittes particularly targets both political branches for their irrationality and cowardice in failing to address such issues before now. It thus seems especially unfortunate that Wittes vests least hope in the capacities of the courts, one of the few institutional actors that has been regularly compelled in recent years to provide specific answers to complex questions of substantive detention powers and procedures. This review evaluates Wittes’ case, as a matter of both detention policy and structure, and explores which institutional characteristics might lead us to prefer the involvement of one branch or another in resolving detention-related questions. While concluding that the book fails to shed much new light on the great national debate over detention, the review recognizes that the book does a service nonetheless in highlighting the ongoing importance of the questions.

"Centers of Concatenation: Fusing Data in Post-9/11 Security Organizations"

TORIN MONAHAN, Vanderbilt University
Email: torin.monahan
PRISCILLA M. REGAN, affiliation not provided to SSRN
Email: pregan

In this paper, we draw upon empirical research on fusion centers to theorize contemporary state surveillance. Instead of viewing fusion centers as central repositories for the stockpiling and sharing of personal data, we introduce the concept of “centers of concatenation” to describe the ways in which disparate data are drawn together as needed, invested with meaning, communicated to others, and then discarded such that no records exist of such surveillance activities. In these ways, fusion centers perform an erasure, or a selective non-generation, of data about their own practices, thereby creating zones of opacity that shield them from accountability. This is concerning particularly because fusion centers are rapidly becoming primary portals for law-enforcement investigations and the model for information sharing by security agencies more broadly.

"Spies Without Borders: International Law and Intelligence Collection"

Journal of National Security Law and Policy, Vol. 5, 2011

CRAIG FORCESE, University of Ottawa – Faculty of Law
Email: cforcese

This article examines the status of peacetime spying in international law. Part I defines “spying” as the term is used in the article, focusing on collection of intelligence from human and electronic sources. The article then divides spying into geographic zones: territorial; extraterritorial; and transnational. In Part II, it examines doctrines of international law applicable to spying in each of these three geographic areas, focusing on sovereignty rules, international immunities and human rights principles. The article concludes that the question of international law and intelligence-gathering is not easily reduced to a simple question of legality or not. Instead, an assessment of legality depends on a careful assessment of the location and technique of spying in question.

"A ‘Watch Dog’ of Australia’s Counter-Terrorism Laws – The Coming of the National Security Legislation Monitor"

Flinders Journal of Law Reform, No. 12, pp. 83-118, 2010
UNSW Law Research Paper No. 26

ANDREW LYNCH, University of New South Wales
Email: a.lynch
NICOLA MCGARRITY, University of New South Wales (UNSW)
Email: n.mcgarrity

The Independent Reviewer of Terrorism Legislation in the United Kingdom has been an influential model for Australia, with the general consensus amongst bodies reviewing Australia’s anti-terrorism laws being that an Australian office should be created along similar lines. In this paper, we consider the history and recent performance of the United Kingdom Independent Reviewer in order to better understand the strengths and deficiencies of this model. These insights contribute to our discussion about the merits of two Bills introduced into the Commonwealth Parliament in 2008 and 2009, which proposed the establishment of an Independent Reviewer of Terrorism Legislation or National Security Legislation Monitor in Australia. The second of these Bills, the National Security Legislation Monitor Bill 2009 (renamed the Independent National Security Legislation Monitor Bill 2010 by the Senate) was passed by the Commonwealth Parliament in March 2010. In examining the 2008 and 2009 Bills, the article examines the final reports of two separate Senate Committee reports into the two Bills, and draws upon and critiques the arguments raised by the various stakeholders who made submissions to those Committees.

nationalsecuritylaw United States v. Hasbrajami (E.D.N.Y. Sep. 9, 2011) (another material support indictment)

September 16, 2011

* United States v. Hasbrajami (E.D.N.Y. Sep. 9, 2011) (another material support indictment)

The indictment and detention memo in this case are attached. In this one, the government alleges that an Albanian citizen/legal US resident living in New York planned to travel to the FATA in hopes of joining a group engaged in military operations there (one that claimed to have attacked Americans in the past). It is not clear at this point what group that might have been. I note that the indictment for the moment charges actual provision of material support in connection with a section 956(a) murder conspiracy, as well as attempted provision of support. There is no charge under 2339B or 2339D relating to specifically designated groups, suggesting either that in this instance the group is not a designated one or, perhaps more likely, it’s just too hard to say for sure which group(s) might be involved. In any event, from the press release:

NEW YORK – An indictment was unsealed in federal court in Brooklyn N.Y., this morning charging Agron Hasbajrami, 27, a legal U.S. resident and Albanian citizen living in New York City, with providing material support to terrorists.Hasbajrami is scheduled to be arraigned later today before U.S. Magistrate Judge Lois Bloom, at the U.S. Courthouse, 225 Cadman Plaza East, Brooklyn. The case has been assigned to U.S. District Judge John Gleeson.

According to the indictment and a detention motion filed by the government, Hasbajrami devised a plan to travel to the Federally Administered Tribal Areas of Pakistan (the FATA) for the purpose of joining a radical jihadist fighting group in Pakistan. In pursuing this goal, Hasbajrami exchanged email messages with a contact in Pakistan who advised Hasbajrami that the contact’s fighting group was engaged in violent military operations and had killed American troops. Hasbajrami told his contact that he wished to travel abroad to “marry with the girls in paradise,” using jihadist rhetoric to describe his desire to die as a martyr.

According to the government’s court filings, Hasbajrami sent more than $1,000 to Pakistan to support his contact’s terrorist efforts. When asked to collect money from fellow Muslims for the terrorist cause, Hasbajrami reported that fundraising was difficult in New York because his fellow Muslims became apprehensive “when they hear it is for jihad.”

In August 2011, Hasbajrami purchased an airline ticket to travel to Turkey en route to Pakistan, but cancelled it. Hasbajrami then purchased another airline ticket to travel to Turkey on Sept. 6, 2011. He was arrested at John F. Kennedy International Airport in Queens, N.Y., when he arrived to board his flight to Turkey carrying a tent, boots and cold-weather gear. A search of Hasbajrami’s residence revealed, among other items, a note reading “Do not wait for invasion, the time is martyrdom time.”

If convicted of providing material support to terrorists, Hasbajrami faces a maximum sentence of 15 years in prison.

Hasbrajami Indictment.pdf

Hasbarjami Detention Memo.pdf

nationalsecuritylaw United States v. Jubair Ahmad (E.D.Va. Sep. 2, 2011) (material support charges in re Lashkar-e-Taiba)

September 16, 2011

* United States v. Jubair Ahmad (E.D.Va. Sep. 2, 2011) (material support charges in re Lashkar-e-Taiba)

This one is from two weeks ago (sorry for the delay), and it involves a criminal complaint against a Pakistani citizen living in Virginia who allegedly has received training at an L-e-T camp in the past and more recently created and distributed an L-e-T propaganda video. The underlying arrest affidavit is attached, and details from the press release follow:

ALEXANDRIA, Va. – Jubair Ahmad, 24, a native of Pakistan and resident of Woodbridge, Va., has been arrested on charges in the Eastern District of Virginia of providing material support to Lashkar-e-Tayyiba (LeT), a designated foreign terrorist organization, and making false statements in a terrorism investigation.

According to the affidavit in support of the criminal complaint, Jubair received religious training from LeT as a teenager in Pakistan and later attended LeT’s basic training camp. Jubair entered the United States in 2007 along with other family members, and in 2009 the FBI launched an investigation after receiving information that Jubair may be associated with LeT.

The affidavit alleges that in September 2010, Jubair produced and uploaded a propaganda video to YouTube on behalf of LeT, after communications with a person named “Talha.” In a subsequent conversation with another person, Jubair identified Talha as Talha Saeed, the son of LeT leader Hafiz Mohammed Saeed. Talha and Jubair allegedly communicated about the images, music and audio that Jubair was to use to make the video. The final video contained images of LeT leader Hafiz Saeed, so-called jihadi martyrs and armored trucks exploding after having been hit by improvised explosive devices.

In October 2010, Talha allegedly contacted Jubair and requested that he revise the LeT propaganda video, giving Jubair specific instructions. Jubair allegedly revised the video and posted it on Oct. 16, 2010. In August 2011, FBI agents interviewed Jubair, where he falsely denied any involvement with the October 2010 video.

If convicted, Jubair faces a maximum potential sentence of 15 years in prison on the material support charge and eight years in prison on the charge of making false statements in a terrorism investigation.


nationalsecuritylaw United States v. Boyd (E.D.N.C. Sep. 14, 2011) (yes, another guilty plea)

September 14, 2011

* United States v. Boyd (E.D.N.C. Sep. 14, 2011) (yes, another guilty plea)

Well, I spoke to soon. Another DOJ win in a terrorism case. You have to admire the concatenation of inchoateness in this particular charge: aiding-and-abetting a conspiracy to provide material support to terrorists, where that underlying material support offense in turn is predicated on support being provided to persons involved in a conspiracy to commit murder abroad in violation of 18 USC 956(a). Restated, that’s (i) aiding and abetting (ii) a conspiracy to provide (iii) material support to (iv) a conspiracy to (v) commit murder abroad). Whew! From the press release:

RALEIGH, N.C. – Dylan Boyd, aka “Mohammed,” pleaded guilty today in federal court in New Bern, N.C., to one count of aiding and abetting a conspiracy to provide material support to terrorists, announced Lisa Monaco, Assistant Attorney General for National Security; Thomas G. Walker, U.S. Attorney for the Eastern District of North Carolina; M. Chris Briese, Special Agent-in-Charge of the FBI Charlotte Division; and John F. Khin, Special Agent-in-Charge, Southeast Field Office, Defense Criminal Investigative Service (DCIS).

Boyd, 24, a U.S. citizen and resident of North Carolina, was first charged along with seven other defendants in a federal indictment returned on July 22, 2009. He was arrested on July 29, 2009, and the indictment was unsealed. On Sept. 24, 2009, a federal grand jury returned a superseding indictment in the case.

According to the superseding indictment, from before November 2006 through at least July 2009, Boyd aided and abetted other named defendants and others who conspired to provide material support and resources to terrorists, including currency, training, transportation and personnel. The object of the conspiracy, according to the indictment, was to advance violent jihad, including supporting and participating in terrorist activities abroad and committing acts of murder, kidnapping or maiming persons abroad.

The indictment alleges that, as part of the conspiracy, Boyd assisted other defendants as they prepared themselves to engage in violent jihad and were willing to die as martyrs. They also allegedly offered training in weapons and financing, and helped arrange overseas travel and contacts so others could wage violent jihad overseas. In addition, as part of the conspiracy, the defendants raised money to support training efforts, disguised the destination of such monies from the donors and obtained assault weapons to develop skills with the weapons. Some defendants also allegedly radicalized others to believe that violent jihad was a personal religious obligation.

At sentencing, Boyd faces a potential 15 years in prison followed by three years of supervised release for aiding and abetting a conspiracy to provide material support to terrorists.

Boyd’s father and co-defendant, Daniel Patrick Boyd, pleaded guilty on Feb. 9, 2011, to one count of conspiracy to provide material support to terrorists and one count of conspiracy to murder kidnap, maim and injure persons in a foreign country. Boyd’s brother and co-defendant, Zakariya Boyd, pleaded guilty on June 7, 2011, to one count of conspiracy to provide material support to terrorists. Trial for the remaining co-defendants in custody is scheduled for September 2011.

nationalsecuritylaw United States v. Harpham (E.D. Wash. Sep. 7, 2011)

September 14, 2011

* United States v. Harpham (E.D. Wash. Sep. 7, 2011) (guilty plea)

Ok, this should be it for today. Last week was a busy one for DOJ in terrorism cases!

In this case, Kevin Harhpham has pled guilty to placing an IED along the planned route for the MLK Day parade in Spokane last January. The details from the press release below.

SPOKANE, Wash. – Kevin William Harpham, 37, of Colville, Wash., pleaded guilty today to the placement of the improvised explosive device alongside the planned Martin Luther King Jr. Day Unity March on Jan. 17, 2011, in Spokane, Wash., announced the Department of Justice.

On March 9, 2011, Harpham was arrested and charged by complaint with the crimes of attempted use of a weapon of mass destruction and possession of an unregistered explosive device. Today, Harpham pleaded guilty to two counts of a superseding indictment, charging Harpham with attempted use of a weapon of mass destruction and attempt to commit a federal hate crime. The Martin Luther King Jr. Day Unity March was attended by hundreds of individuals, including racial minorities. The explosive device placed by Harpham was capable of inflicting serious injury or death, according to laboratory analysis conducted by the FBI.

The plea agreement calls for a sentence of between 27 and 32 years in prison. The plea agreement is subject to the district court’s review acceptance and determination of the final sentence. The plea agreement also calls for a lifetime term of court supervision after Harpham is released from prison.