nationalsecuritylaw further clarification re New York v. Jose Pimentel (Criminal Court of the City of New York)

November 22, 2011

With apologies: I was in a rush when typing out the update below, and just added to the confusion. Here’s the bottom line, as more than a few listmembers have written in to clarify (thanks folks!):

New York follows the unilateral approach to conspiracy liability. You do have to have more than one person involved on this model; it’s just that it is possible for liability to attach even if the other “party” to the agreement turns out to be a confidential informant, as seems likely to be the situation in this case based on the charging document. My apologies for muddying the water on this earlier!

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Monday, November 21, 2011 5:17 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] update: New York v. Jose Pimentel (Criminal Court of the City of New York)

Strike my comments on conspiracy law – turns out that in New York state law, you need not have multiple participants to have a conspiracy, as you would in federal law. My bad, sorry for the confusion.

From: Robert Chesney [mailto:rchesney
Sent: Monday, November 21, 2011 4:16 PM
To: nationalsecuritylaw
Subject: [nationalsecuritylaw] New York v. Jose Pimentel (Criminal Court of the City of New York)

* New York v. Jose Pimentel (Criminal Court of the City of New York)

The criminal complaint laying out the charges is here, along with an affidavit summarizing the basis for the arrest. I’ve posted a brief summary of the charges and a few comments here. The most interesting thing about the charges themselves is the fact that there are two conspiracy counts, though the case has been talked about in lone wolf terms. There also is a very interesting count in the nature of self-provision of material support.

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nationalsecuritylaw update: New York v. Jose Pimentel (Criminal Court of the City of New York)

November 21, 2011

Strike my comments on conspiracy law – turns out that in New York state law, you need not have multiple participants to have a conspiracy, as you would in federal law. My bad, sorry for the confusion.

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Monday, November 21, 2011 4:16 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] New York v. Jose Pimentel (Criminal Court of the City of New York)

* New York v. Jose Pimentel (Criminal Court of the City of New York)

The criminal complaint laying out the charges is here, along with an affidavit summarizing the basis for the arrest. I’ve posted a brief summary of the charges and a few comments here. The most interesting thing about the charges themselves is the fact that there are two conspiracy counts, though the case has been talked about in lone wolf terms. There also is a very interesting count in the nature of self-provision of material support.


nationalsecuritylaw New York v. Jose Pimentel (Criminal Court of the City of New York)

November 21, 2011

* New York v. Jose Pimentel (Criminal Court of the City of New York)

The criminal complaint laying out the charges is here, along with an affidavit summarizing the basis for the arrest. I’ve posted a brief summary of the charges and a few comments here. The most interesting thing about the charges themselves is the fact that there are two conspiracy counts, though the case has been talked about in lone wolf terms. There also is a very interesting count in the nature of self-provision of material support.


nationalsecuritylaw ICRC Database of State Practice and Customary IHL

November 21, 2011

The International Committee of the Red Cross has just updated its online database of state practice in relation to customary IHL, with new material for 27 countries including the United States. The country-by-country portal is here, and the ICRC press release describing the project appears below.

ICRC News Release No. 11/233
18 November 2011

ICRC database on customary international humanitarian law: new update
of State practice

Geneva (ICRC) – On 21 November the International Committee of the Red Cross (ICRC) will make available its updated collection and analysis of practice from 27 countries – Armenia, Australia, Azerbaijan, Bahrain, Cameroon, the Democratic Republic of the Congo, Fiji, Finland, France, Hungary, Israel, Italy, Jordan, Libya, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Rwanda, South Korea, Sri Lanka, Syria, Thailand, Uganda, Ukraine and the United States of America – relating to armed conflicts and such issues of humanitarian concern as the distinction between combatants and civilians, the use of certain weapons, the protection of internally displaced persons, the legal framework for internment and detention in armed conflict, recruitment of child soldiers, and serious violations of international humanitarian law that amount to war crimes.

It will be the second time this year the ICRC has issued an update on national practice on its online database on customary international humanitarian law. The practice of a first set of 30 countries was updated last March. The organization set up the database in 2010 to complement the study on customary international humanitarian law it published in 2005 and to help ensure that the rules of that body of law, and the practice underlying them, are easily accessible to practitioners and researchers alike.

"In the current phase of the project, we are providing a basis for monitoring the development of this body of law by documenting and analysing State practice up to the end of 2007. We do this with materials from various sources, including national legislation and case law, official statements and reports and military manuals," said Els Debuf, the ICRC’s head of project for customary international humanitarian law. "The formation of customary law is an ongoing process, as practice keeps evolving. That practice – both national and international – has to be updated regularly to identify the rules of customary law and assess the extent to which they enhance protection for victims of armed conflict by confirming or filling in gaps in treaty-based law."

Customary international humanitarian law is a set of rules that come from a general practice accepted as law. It is not necessary for a State to formally accept a rule of custom in order to be bound by it, as long as the overall State practice on which the rule is based is widespread, representative and virtually uniform. In non-international armed conflict – covered by relatively few provisions of treaty-based law – customary law is especially important.

The ICRC’s online database builds on the study of customary international humanitarian law published by the organization in 2005, in which it identified 161 rules by which all parties to armed conflict must abide. The study is used by many institutions and entities dealing with the implementation of international humanitarian law or with alleged violations thereof, such as international and mixed criminal courts and tribunals, national courts and non-governmental organizations, but also United Nations treaty monitoring bodies, commissions of inquiry and special rapporteurs.

The development of the database and the regular updates of practice underlying the rules identified in 2005 are being carried out through a partnership between the ICRC and the British Red Cross. The source materials used for the updates are gathered by a network of ICRC delegations around the world and a number of National Red Cross Societies. These materials are then analysed and processed by a research team based at the Lauterpacht Centre for International Law, University of Cambridge, under the supervision of the ICRC head of project. The information stored in the database is easily accessible by means of three search parameters: subject matter, type of practice and country.

The next update, set to be issued in the first half of 2012, will bring to around 90 the number of countries whose practice up to the end of 2007 has been included in the database. Further updates of both national and international practice covering the period 2008-2010 will be issued throughout 2012 and 2013. The aim thereafter is to update the database on an annual basis.

For further information, please contact:
Dorothea Krimitsas, ICRC Geneva, tel: +41 22 730 25 90 or +41 79 251 93 18
or visit our website: www.icrc.org

To preview and download the latest ICRC video footage in broadcast quality, go to
www.icrcvideonewsroom.org

Follow the ICRC on facebook.com/icrcfans and twitter.com/icrc english


nationalsecuritylaw save the date/call for papers: The 5th Annual National Security Law Faculty Workshop

November 17, 2011

Please pass this along to anyone whom you think would be interested! I hope to see many of you in Texas in the spring in connection with this event….

THE 5th ANNUAL

NATIONAL SECURITY LAW FACULTY WORKSHOP

May 17-18, 2012

Houston, TX

Hosted by:

The University of Texas School of Law (Prof. Robert Chesney, co-host)

The South Texas College of Law (Prof. Geoff Corn, co-host)

The Judge Advocate General’s Legal Center and School (U.S. Army)

The International Committee of the Red Cross

Announcement for 5th annual workshop 2012.doc


nationalsecuritylaw White House issues veto threat in relation to detainee provisions of NDAA

November 17, 2011

The White House has issued a statement of administration policy threatening a veto in relation to the detainee provisions in the NDAA bill, which has just moved out of the SASC and will soon be voted on in the Senate (a different version already has passed the House, so a conference looms in the near future).


nationalsecuritylaw United States v. Issa (SDNY Nov. 15, 2011) (guilty plea)

November 16, 2011

From DOJ’s press release:

NEW YORK, N.Y. – Oumar Issa, a citizen of Mali, pleaded guilty today to one count of conspiring to provide material support to a foreign terrorist organization, Preet Bharara, U.S. Attorney for the Southern District of New York, announced today.

In December 2009, Issa and two other men – Harouna Touré and Idriss Abelrahman – were charged in connection with their agreement to transport cocaine through West and North Africa with the intent to support the drug trafficking activities of Al Qaeda, Al Qaeda in the Islamic Magreb (AQIM), and the Fuerza Armadas Revolucionarias de Colombia (FARC). Each of these organizations has been designated by the U.S. Department of State as a Foreign Terrorist Organization.

Issa was arrested in Ghana on Dec. 16, 2009, at the request of the United States, and subsequently transported to the Southern District of New York. He pleaded guilty today before U.S. Magistrate Judge Debra Freeman.

U.S. Attorney Bharara said: “Narcotics trafficking provides a vital revenue stream to terrorist organizations. We are committed to using all the resources at our disposal to cut this revenue stream off and to punish those responsible for helping to facilitate the trafficking. Today’s guilty plea of Oumar Issa underscores that commitment.”

According to the complaint and indictment filed in Manhattan federal court:

The principal goal of Al Qaeda, a terrorist organization founded in 1989, is to attack the United States. Al Qaeda functions on its own and through various terrorist organizations that function as subsidiaries. The group known as AQIM – formerly the Salafist Group for Preaching and Combat – was founded in the late 1990s with the assistance of Usama Bin Laden. The FARC is a highly structured international terrorist group dedicated to the violent overthrow of the democratically elected government of Colombia. Organized as a military group, the FARC actively engages in narcotics trafficking as a financing mechanism, and has evolved into the world’s largest supplier of cocaine. For at least the past five years, the FARC has been responsible for violent acts committed against U.S. persons and commercial and property interests in foreign jurisdictions – including in Colombia – in order to dissuade the United States from continuing its efforts to disrupt the FARC’s cocaine manufacturing and trafficking activities.

From September 2009 through December 2009, Issa, Touré and Abelrahman, who are all from Mali, agreed to provide the FARC with services, including logistical assistance and secure transportation for a shipment of cocaine across Africa, false identification documents, and other material support and resources, knowing that the FARC was engaged in terrorist activity. The defendants also agreed to provide material support and resources, including property, and currency and monetary instruments to Al Qaeda and AQIM, knowing that these groups were engaged in terrorist activities.

Issa faces a maximum sentence of 15 years in prison. He is scheduled to be sentenced by U.S. District Judge Richard J. Holwell on Feb. 15, 2012.

The charges against Touré and Abelrahman are merely accusations, and they are presumed innocent unless and until proven guilty.

The charges against Issa, Touré and Abelrahman were the result of the coordinated efforts of the U.S. Attorney’s Office for the Southern District of New York and the Drug Enforcement Administration’s (DEA) Special Operations Division and Ghana Office. Mr. Bharara praised the outstanding investigative work of the DEA and thanked the Department of Justice’s Office of International Affairs, its National Security Division and the Department of State for their assistance. Mr. Bharara also thanked the government of Ghana for its cooperation.

The case is being handled by the Office’s Terrorism and International Narcotics Unit. Assistant U.S. Attorneys Jeffrey A. Brown, Christian R. Everdell and Edward Kim are in charge of the prosecution.