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 []
Sent: Monday, November 21, 2011 5:17 PM
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.

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 []
Sent: Monday, November 21, 2011 4:16 PM
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:

To preview and download the latest ICRC video footage in broadcast quality, go to

Follow the ICRC on and 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….



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.

nationalsecuritylaw forthcoming scholarship: McNeal on Collateral Damage Estimation in US Practice

November 16, 2011

(note: you may have seen the abstract for this paper previously, but now the underlying paper itself is posted on SSRN)

The U.S. Practice of Collateral Damage Estimation and Mitigation

Gregory S. McNeal

Pepperdine University School of Law

This paper explains how the U.S. military estimates and mitigates the impact of conventional weapons on collateral persons and objects in most military operations involving air-to-surface weapons and artillery. It is the descriptive part of a larger work discussing the normative implications of U.S. targeting practices.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account (based on public documents and field interviews) that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

Key Findings: In pre-planned operations the U.S. military follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. military operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed; The U.S. military’s collateral damage estimation process is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants; Less than 1% of pre-planned operations which followed the collateral damage estimation process resulted in collateral damage; When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing – e.g. a conscious decision that anticipated military advantage outweighed collateral damage; According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.

nationalsecuritylaw new SASC detention bill

November 16, 2011

The Senate Armed Services Committee has passed a new version of the detainee language for the NDAA FY ’12. The version keeps the same fundamental structure in relations to its provisions expressly authorizing military detention and actually affirmatively requiring its use in certain cases, but also introduces a number of important and interesting changes. The bill is posted here, and I’ve posted extensive commentary here. A letter from SecDef Panetta objecting to the revised bill in certain respects is here.

nationalsecuritylaw forthcoming scholarship

November 15, 2011

"Taking Humans Out of the Loop: Implications for International Humanitarian Law"

Journal of Law Information and Science, Vol. 21, 2011
University of Miami Legal Studies Research Paper No. 2011-21

MARKUS WAGNER, University of Miami – School of Law
Email: mwagner

Written as a comment to Brendan Gogarty’s and Meredith Hagger’s 2008 article entitled The Laws of Man over Vehicles Unmanned: The Legal Response to Robotic Revolution on Sea, Land and Air, this brief article explores the international humanitarian law implications of the growing trend toward the deployment of autonomous weapon systems. It argues that while technological development has been impressive and continues to advance at a rapid pace, computer technology’s ability to make qualitative determinations is structurally difficult, if not impossible. In light of this, the deployment of fully autonomous weapon systems is illegal, quite apart from the ethical and political challenges that this development presents.

"Material Witness Detentions After al-Kidd"

Kentucky Law Journal, Forthcoming
Widener Law School Legal Studies Research Paper No. 11-26

WES OLIVER, Widener University – School of Law
Email: wmoliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.

Taking Distinction to the Next Level: Accountability for Fighters’ Failure to Distinguish Themselves from Civilians

Laurie R. Blank

Emory University School of Law

Valparaiso University Law Review, 2011-2012

The nature of recent conflicts and the “civilianization” of the battlefield has led many to question the effectiveness of distinction going forward, in essence challenging the very foundations of the law of armed conflict. But is distinction truly on the defensive, or do we simply need to rethink how we approach this most fundamental protective principle? The nature of contemporary conflicts demands that we take distinction to the next level and hold non-state actors and others accountable for the failure to distinguish themselves from innocent civilians. Trumpeting the obligation to distinguish between combatants and civilians and then bemoaning the blurred and complex nature of the zone of combat, in which fighters purposely blend into the civilian population and fight from within the civilian infrastructure, simply falls short of the mark. The next step therefore is to reinforce this distinction not only in the conduct of hostilities but also in the post-conflict accountability phase. International criminal tribunals have issued numerous convictions and sentences for deliberate targeting of civilians, indiscriminate attacks on civilians and disproportionate attacks on civilians – all violations of the principle of distinction. Accountability for violations in this second part of distinction, however, lags far behind. This article will explore how the failure to hold persons accountable for perfidy and other violations of the obligation to distinguish will continue to undermine the ability of the law to provide maximum protection to innocent civilians during armed conflict. These violations pose an equal danger to civilians when soldiers cannot tell who is an innocent civilian and who is a fighter simply disguised in civilian clothes. When militants benefit both tactically and strategically from the use of the civilian population as a shield and as a disguise, the international community must take distinction to the next level and demand accountability for such violations as a critical step in the protection of civilians during armed conflict.

"Conspiracy Law’s Threat to Free Speech"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

"The New Conspiracy to Support an Idea"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

This article sets forth the argument that conspiracy law in the United States may be entering a new stage, thanks to the efforts of government prosecutors in the terrorism context. The new stage is characterized by the criminalization of conspiracies to support an (unpopular) idea.

This new conspiracy paradigm confronts the intertwined relationship between conspiracy law and speech rights. Its foundational argument is that speech rights are limited in the context of a conspiracy trial because speech is used as evidence against a defendant. This is not a bad thing per se. The conflict between conspiracy law’s interests and speech rights is questioned, however, when defendants’ anti-American and pro-“jihad” speech is used when it could indicate support for terrorism, a fundamentalist (but nonviolent) religiosity, or mere protest against the U.S. military’s involvement in the Middle East.

I show that the government’s current targeting of Muslims is a continuation of our historic struggle to secure speech rights in light of criminal charges against other unpopular groups, namely anarchists and communists. I also show how contemporary criminal statutes and the evidentiary rules in conspiracy trials enable the targeting of an unpopular group.

I then offer an approach to solving the problem of abusive conspiracy charges (those charges involving defendants who were not engaged in crime, but were simply exercising their speech rights). This approach rejects the zero sum notion that an increase in speech rights means reduced effectiveness of conspiracy law to secure public safety. Rather, I believe we live in a system of non-zero-sumness, in which we can both maximize speech rights and protect society from truly dangerous conspiracies.

To illustrate my rejection of the zero sum approach, I introduce the concept of “interest brinkmanship.” In the speech-conspiracy context, this means that with every increase in speech rights, application of conspiracy law also increases. The zero sum approach logically would result in vast direct speech protections, but also a universally applied conspiracy law that ultimately restricts speech by proxy. We need to engage a non-zero-sum approach if we are to secure our right to speech and maintain a legitimate conspiracy law system that actually protects society.