nationalsecuritylaw Harvard National Security Journal Calls for Responses to Paper on Cyber Threats

January 18, 2012

From our friends at the Harvard National Security Journal:

Jerry Brito & Tate Watkins have published an article in the Harvard National Security Journal asking for "a better justification for the increased resources devoted to cyber threats" (see below for a full summary and a link to the complete article). The National Security Journal would like to publish short pieces (1,000-5,000 words) providing such a justification. Please e-mail prospective pieces to hlsnsj.online.submissions.

Loving the Cyber Bomb? The Dangers of Threat Inflation in Cybersecurity Policy
By Jerry Brito & Tate Watkins

There has been no shortage of attention devoted to cybersecurity, with a wide range of experts warning of potential doomsday scenarios should the government not act to better secure the Internet. But this is not the first time we have been warned of impending dangers; indeed, there are many parallels between present portrayals of cyberthreats and the portrayal of Iraq prior to 2003, or the perceived bomber gap in the late 1950s. This Article asks for a better justification for the increased resources devoted to cyber threats. It examines the claims made by those calling for increased attention to cybersecurity, and notes the interests of a military-industrial complex in playing up fears of a “cyber Katrina.” Cybersecurity is undoubtedly an important policy issue. But with a dearth of information regarding the true nature of the threat, it is quite difficult to determine whether certain government policies are warranted—or if this merely represents the latest iteration of threat inflation benefitting private and parochial political interests.


nationalsecuritylaw upcoming event: UT Law conference on Civil Rights Litigation Since 9/11 (register by Jan. 27)

January 17, 2012

On behalf of my colleague Prof. Jennifer Laurin, I’m very happy to draw attention to an event coming up here in Austin:

Register Now for Barriers and Innovations in Civil Rights Litigation.pdf


nationalsecuritylaw updated time for event announced last week: Teleforum with Greg McNeal on Collateral Damage in Combat Operations — Now at 3:00 p.m. eastern

January 17, 2012

Note the updated time – this event now will take place at 3pm today (eastern)

Description: The Federalist Society
Collateral Damage in Combat Operations
3:00 p.m. ET — TODAY!
A Teleforum Sponsored by the International & National Security Law Practice Group
Featuring

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Professor Gregory S. McNeal*

Pepperdine University School of Law

Tuesday, January 17, 2012

at 3:00 p.m. (EST)

888-752-3232

No registration is necessary.

To participate in this practice group Teleforum, please dial 888-752-3232
on Tuesday at 3:00 p.m. (EST) via telephone.

Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery.

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.

You can read Professor McNeal’s recent paper on this topic by clicking here.

*Professor McNeal is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba. His legal scholarship has been published by The Northwestern University Law Review, The Richmond Law Review, The DePaul Law Review, and various top ranked international law and policy journals. His co-edited book Saddam On Trial: Understanding and Debating the Iraqi High Tribunal was selected as one of three finalists for L’Association Internationale de Droit Penal’s Book of the Year Award.

During law school Professor McNeal was selected as executive editor for the Harvard Journal of Law and Public Policy (Symposium Edition). His doctoral work focuses on public policy and administration and organizational theory in a global policy context. Professor McNeal has testified before Congress, consulted with Congressional committees, the Iraqi High Tribunal, and Fortune 500 companies on matters related to counterterrorism, international criminal law, and national security. Before becoming an attorney he served as an officer in the United States Army.

He is the editor in chief of The National Security Law Report, the flagship journal of the American Bar Association’s Standing Committee on Law and National Security. He also serves as a member of the Executive Committee of the AALS Section on National Security Law, and Vice President of the American National Section of the International Association of Penal Law. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun. He has appeared on Fox News Channel, NPR, BBC, C-SPAN, CNN and other national media outlets as an expert commentator on national security and international law, and is a frequent participant in academic symposia regarding national security. He has been quoted by Time Magazine, The New York Times, and other publications. He blogs at The Law and Terrorism Blog and maintains an SSRN account.

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nationalsecuritylaw Othman (Abu Qatada) v. United Kingdom (E. Ct. Hum. Rts Jan. 17, 2012)

January 17, 2012

* Othman (Abu Qatada) v. United Kingdom (E. Ct. Hum. Rts Jan. 17, 2012)

The European Court of Human Rights has issued a ruling to the effect that the UK may not deport Omar Othman (better known as Abu Qatada, an extremist preacher long linked to al Qaeda) to Jordan, where he would face criminal charges. In brief, the court reached the following conclusions:

1) The proposed deportation did not present an undue risk of torture (note that paragraphs 186 -189 provide a very interesting discussion of diplomatic assurances in this context)

2) The proposed deportation was not problematic in that the UK had relied on ex parte evidence in the course of assessing the diplomatic assurances Jordan had provided

3) The proposed deportation was not problematic in that Othman was at risk of up to 50 days of incommunicado detention

4) The proposed detention WAS problematic, in contrast, in that there was a “real risk” that evidence obtained via torture (of others) would be used and admitted against Othman. The full text of the Court’s merits ruling on this last point is reprinted below:

C. Merits

1. General principles

a. The “flagrant denial of justice” test

258. It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v. the United Kingdom, 7 July 1989, § 113, Series A no. 161 and has been subsequently confirmed by the Court in a number of cases (see, inter alia, Mamatkulov and Askarov, cited above, §§ 90 and 91; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 149, ECHR 2010-…).

259. In the Court’s case-law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein (Sejdovic v. Italy [GC], no. 56581/00, § 84, ECHR 2006-II; Stoichkov, cited above, § 56, Drozd and Janousek cited above, § 110). Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:

– conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge (Einhorn, cited above, § 33; Sejdovic, cited above, § 84; Stoichkov, cited above, § 56);

– a trial which is summary in nature and conducted with a total disregard for the rights of the defence (Bader and Kanbor, cited above, § 47);

– detention without any access to an independent and impartial tribunal to have the legality the detention reviewed (Al-Moayad, cited above, § 101);

– deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country (ibid.).

260. It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the preceding paragraph, serves to underline the Court’s view that “flagrant denial of justice” is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

261. In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it (see, mutatis mutandis, Saadi v. Italy, cited above § 129).

262. Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment.

b. Does the admission of evidence obtained by torture amount to a flagrant denial of justice?

263. The Court agrees with the Court of Appeal that the central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial. Accordingly, it is appropriate to consider at the outset whether the use at trial of evidence obtained by torture would amount to a flagrant denial of justice. In common with the Court of Appeal (see paragraph 51 above), the Court considers that it would.

264. International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.

It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.

There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture.

More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.

265. These reasons underscore the primacy given to the prohibition on torture evidence in the Convention system and international law. For the Convention system, in its recent judgment in Gäfgen v. Germany [GC], no. 22978/05, §§ 165-167, ECHR 2010-…, the Court reiterated that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. It observed:

“The use of such evidence, secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention, always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction.

Accordingly, the Court has found in respect of confessions, as such, that the admission of statements obtained as a result of torture or of other ill-treatment in breach of Article 3 as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction.

As to the use at the trial of real evidence obtained as a direct result of ill-treatment in breach of Article 3, the Court has considered that incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value (references omitted)”.

Gäfgen reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms what the Court of Appeal in the present case had already appreciated: in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental. Gäfgen also confirms the Court of Appeal’s view that there is a crucial difference between a breach of Article 6 because of the admission of torture evidence and breaches of Article 6 that are based simply on defects in the trial process or in the composition of the trial court (see paragraph 45–49 of the Court of Appeal’s judgment, quoted at paragraph 51 above).

266. Strong support for that view is found in international law. Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture. There are few international treaties which command as widespread support as UNCAT. One hundred and forty-nine States are party to its provisions, including all Member States of the Council of Europe (see paragraph 125 above). UNCAT reflects the clear will of the international community to further entrench the ius cogens prohibition on torture by taking a series of measures to eradicate torture and remove all incentive for its practice. Foremost among UNCAT’s provisions is Article 15, which prohibits, in near absolute terms, the admission of torture evidence. It imposes a clear obligation on States. As the United Nations Committee Against Torture has made clear, Article 15 is broad in scope. It has been interpreted as applying to any proceedings, including, for instance, extradition proceedings (P.E. v. France; G.K. v. Switzerland; and Irastorza Dorronsoro: see paragraphs 130 and 132 above). P.E. and G.K. also show that Article 15 applies to “any statement” which is established to have been made as a result of torture, not only those made by the accused (see also, in this respect Harutyunyan v. Armenia, no. 36549/03, § 59, ECHR 2007-VIII and Mthembu v. The State, case no. 379/2007, [2008] ZASCA 51, quoted in Gäfgen, cited above, § 74). Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person accused of torture.

267. For the foregoing reasons, the Court considers that the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial. It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial. The Court does not exclude that similar considerations may apply in respect of evidence obtained by other forms of ill-treatment which fall short of torture. However, on the facts of the present case (see paragraphs 269–271 below), it is not necessary to decide this question.

2. The applicant’s case

268. The applicant has alleged that his retrial would amount to a flagrant denial of justice because of a number of factors, including the absence of a lawyer during interrogation, his notoriety and the composition of the State Security Court (see paragraph 248 above). However, as the Court has observed, the central issue in the case is the admission of torture evidence. Accordingly, it will first examine this complaint.

a. Evidence obtained by torture

269. The incriminating statements against the applicant were made by Al-Hamasher in the Reform and Challenge Trial and Abu Hawsher in the millennium conspiracy trial (see paragraphs 9 –20 above). SIAC found that there was at least a very real risk that these incriminating statements were obtained as a result of treatment by the GID which breached Article 3; it may or may not have amounted to torture (see paragraph 420 of its determination, quoted at paragraph 45 above).

270. It is unclear from its determination why SIAC felt unable to reach a clear conclusion as to whether the ill-treatment amounted to torture. The precise allegation made by Abu Hawsher is that he was beaten on the soles of his feet to the stage where the skin fell off every time he bathed (see paragraph 103 above). The scarring on Al-Hamasher is consistent with the same form of ill-treatment (see paragraph 102 above). The purposes of that ill-treatment, if it occurred, could only have been to obtain information or confessions from them. Moreover, beating on the soles of the feet, more commonly known as bastinado, falanga or falaka, is a practice which has been considered by the Court. Its infliction causes severe pain and suffering to the victim and, when its purpose has been to punish or to obtain a confession, the Court has had no hesitation in characterising it as torture (see, among many authorities, Salman v. Turkey [GC], no. 21986/93, §§ 114 and 115, ECHR 2000-VII; Valeriu and Nicolae Roşca v. Moldova, no. 41704/02, § 64, 20 October 2009 and further references therein; Diri v. Turkey, no. 68351/01, §§ 42–46, 31 July 2007; Mammadov v. Azerbaijan, no. 34445/04, §§ 68 and 69, 11 January 2007). Consequently, there is every reason to conclude that, if Abu Hawsher and Al-Hamasher were ill-treated in the way they allege, their ill-treatment amounted to torture.

271. This conclusion means the remaining two issues which the Court must consider are: (i) whether a real risk of the admission of torture evidence is sufficient; and (ii) if so, whether a flagrant denial of justice would arise in this case.

i. Does a real risk of the admission of torture evidence suffice?

272. In determining this question, the Court would begin by noting that the evidence before it that Abu Hawsher and Al-Hamasher were tortured is even more compelling than at the time of SIAC’s determination. The report of Mr Al-Khalili and Mr Najdawi is, for the most part, balanced and objective. It frankly assesses the strengths and weaknesses of the Jordanian State Security Court system and recognises the GID’s attempts to extract confessions from suspects. However, the main weakness in the report is that its authors do not examine for themselves the allegations of torture which were made by the applicant’s co-defendants; the report merely records the conclusions of the State Security Court at each trial that the co-defendants were not tortured. Ms Refahi, on the other hand, travelled twice to Jordan to interview the lawyers and defendants at the original trials. Her two statements give detailed accounts of her interviews and record, in clear and specific terms, the allegations of torture made by the defendants. There is every reason to prefer her evidence on this point to the more generalised conclusions of Mr Al-Khalili and Mr Najdawi. Furthermore, in the millennium conspiracy trial, some corroboration for Abu Hawsher’s allegations must be found in Amnesty International’s report of 2006 which sets out its findings that four of the defendants, including Abu Hawsher were tortured. The allegations of ill-treatment of one co-defendant, Ra-ed Hijazi are particularly convincing, not least because several witnesses were reported to have seen him propped up by two guards at the crime scene reconstruction and, as recorded in Ms Peirce’s statement, his treatment appears to have been the subject of a diplomatic protest by the United States (see paragraphs 103 and 114 above). Finally, some reliance must be placed on the fact that torture is widespread and routine in Jordan. If anything, it was worse when the applicant’s co-defendants were detained and interrogated. The systemic nature of torture by the GID (both then and now) can only provide further corroboration for the specific and detailed allegations which were made by Abu Hawsher and Al-Hamasher.

273. However, even accepting that there is still only a real risk that the evidence against the applicant was obtained by torture, for the following reasons, the Court considers it would be unfair to impose any higher burden of proof on him.

274. First, the Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A. and Others (no. 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A and others (no. 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A and others (no. 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings (see, section 76(2) of the Police and Criminal Evidence Act 1984 and R. v Mushtaq, paragraph 138 above).

275. Second, the Court does not consider that the Canadian and German case-law, which has been submitted by the Government (see paragraphs 133, 135, 139 and 140, and 153 above), provides any support for their position. In Singh, the parties agreed that the allegations had to be proved on a balance of probabilities; the standard of proof was not the subject of argument in that case. Mahjoub, a national security case involving material not disclosed to the appellant, followed the approach taken by the House of Lords in A and others (no. 2), an approach which the Court has found to be inappropriate in the present case. In re El Motassadeq, the Hamburg Court of Appeal was only able to consider reports of a general nature alleging the United States authorities had tortured terrorist suspects and, in any event, drew “neither incriminating nor exonerating conclusions” from evidence in question (see El Motassadeq v. Germany, cited above). In addition, it does not appear that the issue of the standard of proof which was applied by the Hamburg Court of Appeal was pursued on appeal to the Federal Court of Justice or Constitutional Court and it did not form part of El Motassadeq’s complaints to this Court. Finally, it is clear from the Düsseldorf Court of Appeal’s reasoning that it did not apply a balance of probabilities test to the requested person’s allegations. Instead, it sufficed that there was a real risk (konkrete Gefahr) that Turkey would not respect Article 15 of UNCAT; that there was reasonable evidence (begründete Anhaltspunkte) that the statements made by the co-defendants had been obtained by torture; and that there was a risk, substantiated by concrete evidence (durch konkrete Indizien belegte Gefahr), that the statements taken from the co-accused might be used in proceedings against the requested person in Turkey.

276. Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.

277. The Jordanian State Security Court system is a case in point. Not only is torture widespread in Jordan, so too is the use of torture evidence by its courts. In its conclusions on Article 15 of UNCAT, the Committee Against Torture expressed its concern at reports that the use of forced confessions in courts was widespread (see paragraph 107 above). The Special Rapporteur has described a system where the “presumption of innocence is illusory” and “primacy is placed on obtaining confessions” (see paragraph 110 above). The reports of Amnesty International and Human Rights Watch support this view. Amnesty International has considered the State Security Court to be “largely supine” in the face of torture allegations, despite, in the ten years prior to 2005, one hundred defendants alleging before the State Security Court that they had been tortured into making confessions and similar allegations being made in fourteen such cases in 2005 alone (see paragraph 113 above). Human Rights Watch’s 2006 Report depicts a system in which detainees are shuttled back and forth between GID officials and the Public Prosecutor until confessions are obtained in an acceptable form (see paragraph 116 above). Finally, the NCHR has, in successive reports, expressed its own concerns about the manner in which statements obtained by coercion become evidence in Jordanian courts (see paragraphs 121 and 122 above).

278. The Court recognises that Jordanian law provides a number of guarantees to defendants in State Security Court cases. The use of evidence obtained by torture is prohibited. The burden is on the prosecution to establish that confessions made to the GID have not been procured by the use of torture and it is only in relation to confessions made before the Public Prosecutor that the burden of proof of torture is imposed on the defendant. However, in the light of the evidence summarised in the preceding paragraph, the Court is unconvinced that these legal guarantees have any real practical value. For instance, if a defendant fails to prove that the prosecution was implicated in obtaining an involuntary confession, that confession is admissible under Jordanian law regardless of any prior acts of ill-treatment or other misconduct by the GID. This is a troubling distinction for Jordanian law to make, given the closeness of the Public Prosecutor and the GID. Furthermore, while the State Security Court may have the power to exclude evidence obtained by torture, it has shown little readiness to use that power. Instead, the thoroughness of investigations by the State Security Court into the allegations of torture is at best questionable. The lack of independence of the State Security Court assumes considerable importance in this respect. As SIAC observed (at paragraph 447 of its determination, quoted at paragraph 46 above) the background to the judges of the State Security Court:

“[M]ay well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence.”

279. Thus, while, on any retrial of the applicant, it would undoubtedly be open to him to challenge the admissibility of Abu Hawsher and Al-Hamasher’s statements and to call evidence to support this, the difficulties confronting him in trying to do so many years after the event and before the same court which has already rejected such a claim (and routinely rejects all such claims) are very substantial indeed.

280. Therefore, the Court considers that, given the absence of clear evidence of a proper and effective examination of Abu Hawsher and Al-Hamasher’s allegations by the State Security Court, the applicant has discharged the burden that could be fairly imposed on him of establishing the evidence against him was obtained by torture.

ii. Would there be a flagrant denial of justice in this case?

281. SIAC found that there was a high probability that Abu Hawsher and Al-Hamasher’s evidence incriminating the applicant would be admitted at the retrial and that this evidence would be of considerable, perhaps decisive, importance against him (see paragraph 45 above). The Court agrees with these conclusions.

282. The Court has found that a flagrant denial of justice will arise when evidence obtained by torture is admitted in criminal proceedings. The applicant has demonstrated that there is a real risk that Abu Hawsher and Al-Hamasher were tortured into providing evidence against him and the Court has found that no higher burden of proof can fairly be imposed upon him. Having regard to these conclusions, the Court, in agreement with the Court of Appeal, finds that there is a real risk that the applicant’s retrial would amount to a flagrant denial of justice.

283. The Court would add that it is conscious that the Grand Chamber did not find that the test had been met in Mamatkulov and Askarov, a factor which was of some importance to the House of Lords’ conclusion that there would be no flagrant breach in the present case.

284. However, as the applicant has submitted, the focus of the Grand Chamber’s judgment in the Mamatkulov and Askarov case was on the binding effect of Rule 39 indications rather than on the substantive issues raised in that case under Article 6. Second, the complaint made by the applicants in that case of a violation of Article 6 was of a general and unspecific nature, the applicants alleging that at the time of their extradition they had no prospect of receiving a fair trial in Uzbekistan. Third, the Court found that, though in the light of the information available at the time of the applicants’ extradition, there may have been reasons for doubting that they would receive a fair trial in Uzbekistan, there was not sufficient evidence to show that any irregularities in the trial were liable to constitute a flagrant denial of justice; the fact that Court had been prevented from obtaining additional information to assist it in its assessment of whether there was such a real risk by Turkey ‘s failure to comply with Rule 39 was seen by the Court as a matter to be examined with respect to the complaint under Article 34 of the Convention.

285. In the present case, the situation is different. Extensive evidence was presented by the parties in respect of the applicant’s re-trial in Jordan and thoroughly examined by the domestic courts. Moreover, in the course of the proceedings before this Court, the applicant has presented further concrete and compelling evidence that his co-defendants were tortured into providing the case against him. He has also shown that the Jordanian State Security Court has proved itself to be incapable of properly investigating allegations of torture and excluding torture evidence, as Article 15 of UNCAT requires it to do. His is not the general and unspecific complaint that was made in Mamatkulov and Askarov; instead, it is a sustained and well-founded attack on a State Security Court system that will try him in breach of one of the most fundamental norms of international criminal justice, the prohibition on the use of evidence obtained by torture. In those circumstances, and contrary to the applicants in Mamatkulov and Askarov, the present applicant has met the burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan.

b. The applicant’s remaining Article 6 complaints

286. The Court considers that the foregoing conclusion makes it unnecessary (save as above) to examine the applicant’s complaints relating to the absence of a lawyer in interrogation, the prejudicial consequences of his notoriety, the composition of the State Security Court, and the aggravating nature of the length of sentence he would face if convicted.

c. Overall conclusion on Article 6

287. The Court finds that the applicant’s deportation to Jordan would be in violation of Article 6 of the Convention.


nationalsecuritylaw upcoming event: Greg McNeal on Collateral Damage in Combat Operations

January 16, 2012

Upcoming Event: Federalist Society International & National Security Law Practice Group Teleforum featuring Professor Greg McNeal, on “Collateral Damage in Combat Operations”

Note that this one takes place tomorrow at 1pm eastern:

Collateral Damage in Combat Operations
A Teleforum Sponsored by the International & National Security Law Practice Group
Featuring

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Professor Gregory S. McNeal*

Pepperdine University School of Law

Tuesday, January 17, 2012

at 1:00 p.m. (EST)

888-752-3232

No registration is necessary.

To participate in this practice group Teleforum, please dial 888-752-3232
on Tuesday at 1:00 p.m. (EST) via telephone.

Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery.

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.

You can read Professor McNeal’s recent paper on this topic by clicking here.

*Professor McNeal is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba. His legal scholarship has been published by The Northwestern University Law Review, The Richmond Law Review, The DePaul Law Review, and various top ranked international law and policy journals. His co-edited book Saddam On Trial: Understanding and Debating the Iraqi High Tribunal was selected as one of three finalists for L’Association Internationale de Droit Penal’s Book of the Year Award.

During law school Professor McNeal was selected as executive editor for the Harvard Journal of Law and Public Policy (Symposium Edition). His doctoral work focuses on public policy and administration and organizational theory in a global policy context. Professor McNeal has testified before Congress, consulted with Congressional committees, the Iraqi High Tribunal, and Fortune 500 companies on matters related to counterterrorism, international criminal law, and national security. Before becoming an attorney he served as an officer in the United States Army.

He is the editor in chief of The National Security Law Report, the flagship journal of the American Bar Association’s Standing Committee on Law and National Security. He also serves as a member of the Executive Committee of the AALS Section on National Security Law, and Vice President of the American National Section of the International Association of Penal Law. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun. He has appeared on Fox News Channel, NPR, BBC, C-SPAN, CNN and other national media outlets as an expert commentator on national security and international law, and is a frequent participant in academic symposia regarding national security. He has been quoted by Time Magazine, The New York Times, and other publications. He blogs at The Law and Terrorism Blog and maintains an SSRN account.

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nationalsecuritylaw forthcoming scholarship

January 16, 2012

"Domestic Investigation of Suspected Law of Armed Conflict Violations: United States Procedures. Policies, and Practices"

SEAN WATTS, Creighton University School of Law
Email: seanwatts

The Israeli interception of a flotilla of civilian ships bound for Gaza in May of 2010 fueled ongoing questions about the content, efficacy, and adequacy of the law of armed conflict (LOAC). Debate focused quickly on fundamental substantive legal issues such as proportionality, humanitarian assistance, treatment during detention, and even the overall legal character of the hostile relationship between Israel and Hamas. Quickly, however, debate spread beyond mere doctrinal matters of LOAC interpretation and application. Critics have begun to devote significant attention to the procedural aspects of States’ investigative responses to LOAC violations. Crucial questions include the degree of independence and neutrality required and whether domestic, internal military investigations can ever suffice to address what are alleged breaches of international legal obligations. Still deeper methodological and interpretive inquiries surely loom as well. For instance, to what extent does international law regulate the processes of investigations of potential LOAC violations? Or better yet, to what extent to do States regard investigative procedure as an issue committed to LOAC or international law more generally?

This Comment briefly outlines the investigative procedures available under current United States domestic law for suspected LOAC violations including formal and informal procedures available under both civil and military justice systems. The Comment gives special attention to evidence that U.S. investigative procedures, policies, and protocols are influenced by or are functions of perceived international legal obligations. The Comment concludes by offering a few brief observations concerning the U.S. system and the likely direction of future international law-based scrutiny of domestic LOAC investigations.

War Time: An Idea, Its History, Its Consequences

Mary Dudziak, U. Southern Cal.

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

Visit http://wartimebook.blogspot.com/ to learn more.

Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts

Amichai Cohen


Ono Academic College – Faculty of Law; Israel Democracy Institute

Yuval Shany


Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology; Israel Democracy Institute

Yearbook of International Humanitarian Law, Forthcoming

The purpose of the present article is to critically evaluate the contemporary international law obligation to investigate military conduct in times of conflict and to identify relevant normative trends. In a nutshell, we argue that the traditional focus on the Geneva grave breaches regime in the context of military investigations is misplaced. The duty to investigate is far broader – encompassing the alleged violation of many other norms of IHL and IHRL.

"Calling the Government to Account: Habeas Corpus after Boumediene"

JONATHAN HAFETZ, Seton Hall Law School
Email: jonathan.hafetz

In June 2008, the Supreme Court decided Boumediene v. Bush, holding that Guantanamo detainees have a right to habeas corpus under the Constitution’s Suspension Clause. In the more than three years since Boumediene, lower federal courts in Washington D.C., have issued nearly eighty decisions addressing the merits of Guantanamo habeas cases. In the process, they have developed an emerging body of national security detention jurisprudence, with implications that transcend the Guantánamo habeas cases. This Article surveys this post-Boumediene jurisprudence and assesses its implications. Although it is too early to draw any definitive conclusions, the growing body of habeas decisions provides a window into Boumediene’s impact and the legacy of the post-9/11 enemy combatant decisions more generally. In particular, the Article describes the significance and limitations of what Boumediene described as a critical function of habeas: calling the government to account by requiring that it provide a lawful basis for a prisoner’s detention.

"The Executive’s Authority Over Enemy Combatants: Due Process and its Limits"

Criminal Law and Procedure, p. 94, 2011
Loyola University Chicago School of Law Research Paper

BARRY SULLIVAN, Loyola University Chicago School of Law
Email: bsullivan7
MEGAN CANTY, Loyola University Chicago School of Law
Email: mcanty

For almost a decade, the U.S. judicial system has had to deal with what might be called the legal “fall-out” from the “war on terror.” In 2008, the U.S. Supreme Court resolved one basic question by holding in Boumediene v. Bush, that non-citizens held at Guantanamo Bay, Cuba, were constitutionally entitled to seek habeas corpus relief in the federal courts. That result seemed like a major victory for the Guantanamo detainees. However, on the same day it decided Boumediene, the Court also decided Munaf v. Geren, a case that received much less attention, but was far more favorable to the Government. In Munaf, the Court held that the decision to transfer a detainee from US custody to that of another nation was committed to the Executive and substantially immune from judicial review.

The upshot of the decisions in Boumediene and Munaf, taken together, is that individuals detained by the Government may petition the courts for release while in US custody, but lack legal recourse if the Executive transfers them to the custody of another State. While Boumediene may have authorized the courts to review the status of enemy combatants, Munaf effectively empowered the Executive to evade such review by turning over a detainee to another country. This article will examine the present state of the law, by examining the development of the Supreme Court’s habeas jurisprudence, beginning with the 2004 decision in Hamdi v. Rumsfeld, and ending with several petitions for review that the Court will soon consider. The Supreme Court may or may not grant one or more of the currently pending petitions. If it does, the resulting decision may have a felicitous impact on the development of the law in this area. If that is to be the case, however, it will be necessary for the Court to take a more holistic approach than that which has characterized its decisions to this point.


nationalsecuritylaw Upcoming event: 7th Annual Homeland Security Law Institute

January 16, 2012

From our friends at the ABA:

Registration is now open for the 7th Annual Homeland Security Law Institute! REGISTER FOR THIS MEETING USING THE LINKS BELOW BY FEBRUARY 25, 2012 TO TAKE ADVANTAGE OF OUR SPECIAL GOVERNMENT ATTORNEY AND SECTION MEMBER LOW RATE.

7th Annual Homeland Security Law Institute
March 22-23, 2012, Capital Hilton, Washington, DC
Tentative Agenda | Registration Form (fillable PDF) | Register Online

2 Days – 90 of the foremost experts in Homeland Security – 12+ Hours of CLE Credit! This cutting edge program is designed for attorneys in government, private practice and academia, as well as non-attorney agency personnel.

Program topics include:

  • Executive Agency General Counsel’s Panel featuring the National IntelligenceAgency Central Intelligence Agency, National Geospatial-Intelligence Agency and Federal Bureau of Investigation
  • Regulatory and Legislative Developments 2012 from the Department of Homeland Security
  • Homegrown Threats and Radicalization
  • Homeland Defense and Civil Support: The Role of the Military Within Our Own Borders
  • Cargo and Supply Chain Security; Emerging Compliance Issues for Government Contractors
  • The Law Enforcement Agenda for 2012
  • Homeland Security & Information Sharing: Perspectives from Federal, State & Local Governments and the Private Sector
  • PrivateCivil Litigation Against Alleged Terrorist Sponsors
  • Volatility Overseas and its Affect on America’s Homeland Security
  • Pressing Challenges in Immigration Law & Policy
  • National Preparedness: Have 10 Years and Billions of Dollars Made our Communities Better Prepared
  • CyberSecurity Developments in the Federal Government and Private Sector
  • Careers in Homeland Security and National Security
  • Chemical Facility Anti-Terrorism Standards
  • Dealing with Disaster
  • International Issues: FCPA and OFAC
  • CFIUS and Foreign Investments

    If your professional life includes responsibility for safety, security or emergency response, you should participate in this program. We hope to see you in Washington in March!


nationalsecuritylaw Call for papers: American Univ. National Security Law Brief

January 13, 2012

Call for papers:

The American University National Security Law Brief is currently accepting journal-length articles for its Spring 2012 Volume. Papers must be at least 30 pages in length and citations must conform to Bluebook 19th Edition. Submitted papers should be legal, academic articles focusing on a trending national security law issue.

ALL SUBMISSIONS ARE DUE BY JANUARY 18, 2012.

Please send all articles to submissions with "Spring 2012 Submission" in the subject line.

For more information on the American University National Security Law Brief, please visit nationalsecuritylawbrief.com.


nationalsecuritylaw copy of the complaint in United States v. Baxam (D. Maryland) (Jan. 9, 2012)

January 10, 2012

Further to my last email, here is the complaint in Baxam. Thanks to the nationalsecurity lister who passed it on!

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Tuesday, January 10, 2012 3:00 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] United States v. Baxam (D. Maryland) (Jan. 9, 2012)

* United States v. Baxam (D. Maryland Jan. 9, 2012)

Another new case from Monday. Details from the press release (I do not have the complaint itself):

GREENBELT, Md. – A criminal complaint was filed today charging Craig Benedict Baxam, 24, of Laurel, Md., with attempting to provide material support to Al-Shabaab, a foreign terrorist organization. Baxam was arrested on Friday, Jan. 6, 2012, upon his return to Maryland after traveling to Africa.

“The complaint alleges that Craig Baxam intended to travel to Somalia and join the terrorist organization Al-Shabaab,” said U.S. Attorney Rosenstein. “Mr. Baxam was caught in Kenya before he reached Somalia, and there is no allegation that anyone assisted him.”

“This arrest is highly illustrative of the progress the international law enforcement community has made in working together to rapidly share resources and information in order to stop terrorism,” said FBI Special Agent in Charge McFeely. “FBI Special Agents in Africa, working alongside our Kenyan police partners, worked together to stop an individual who is now alleged to have been on his way to join a major terrorist group. This spirit of cooperation in fighting terrorism continues to transcend borders around the world.”

According to the affidavit supporting the complaint, Baxam joined the U.S. Army in 2007 and completed eight months of advanced training for cryptology and intelligence. Baxam was deployed to Baghdad, and upon completion of his deployment, he reenlisted. In August 2010, he deployed for a one year assignment in Korea. One month prior to completion of his deployment in Korea, Baxam separated from the Army and returned to Maryland in July 2011.

The affidavit alleges that Baxam secretly converted to Islam days before he separated from the Army, after finding an Islamic religious website on the Internet. Baxam allegedly decided to relocate to Somalia to join Al-Shabaab and live under Sharia law. Al-Shabaab is a brutal militia group that uses intimidation and violence to undermine Somalia’s Transitional Federal Government (TFG). In February 2008, the U.S. Department of State designated Al-Shabaab, aka Harakat Shabaab al-Mujahidin, aka The Youth, as a foreign terrorist organization, stating that Al-Shabaab has committed or poses a significant risk of committing acts of terrorism that threaten the security of the United States.

Baxam cashed out his retirement savings of approximately $3,600 and purchased a plane ticket to Kenya. He set out to travel to Somalia, via Kenya, with between $600 and $700, which he planned to give to Al-Shabaab as an offering shortly after he crossed into Somalia. On Dec. 20, 2011, Baxam flew from Baltimore-Washington International Airport and arrived in Nairobi, Kenya on Dec. 22. He took a bus to Mombasa, Kenya, and hired taxis to travel through Kenya to Somalia.

On Dec. 23, 2011, Kenyan police stopped a bus in which Baxam was traveling near Mombasa, Kenya, and arrested him for attempting to travel to Somalia to join Al-Shabaab. Baxam was held at the Kenyan Anti-Terrorism Police Unit in Nairobi and interviewed by the FBI.

Baxam faces a maximum sentence of 15 years in prison followed by three years of supervised release. His initial appearance will be held at 3:00 p.m. EST today in U.S. District Court in Greenbelt.

The filing of a complaint is not a finding of guilt. An individual charged by complaint is presumed innocent unless and until proven guilty at some later criminal proceedings.

United States Attorney Rod J. Rosenstein praised the FBI’s Maryland and New York Joint Terrorism Task Forces for their work in the investigation and recognized the Department of Justice Counterterrorism Section and U.S. Attorney’s Office for the Southern District of New York for their assistance in the investigation. Mr. Rosenstein thanked Assistant U.S. Attorney Gregory Welsh, who is prosecuting the case with assistance from Robert J. Sander of the Counterterrorism Section of the Department of Justice.

.

Baxam Complaint.pdf


nationalsecuritylaw United States v. Baxam (D. Maryland) (Jan. 9, 2012)

January 10, 2012

* United States v. Baxam (D. Maryland Jan. 9, 2012)

Another new case from Monday. Details from the press release (I do not have the complaint itself):

GREENBELT, Md. – A criminal complaint was filed today charging Craig Benedict Baxam, 24, of Laurel, Md., with attempting to provide material support to Al-Shabaab, a foreign terrorist organization. Baxam was arrested on Friday, Jan. 6, 2012, upon his return to Maryland after traveling to Africa.

“The complaint alleges that Craig Baxam intended to travel to Somalia and join the terrorist organization Al-Shabaab,” said U.S. Attorney Rosenstein. “Mr. Baxam was caught in Kenya before he reached Somalia, and there is no allegation that anyone assisted him.”

“This arrest is highly illustrative of the progress the international law enforcement community has made in working together to rapidly share resources and information in order to stop terrorism,” said FBI Special Agent in Charge McFeely. “FBI Special Agents in Africa, working alongside our Kenyan police partners, worked together to stop an individual who is now alleged to have been on his way to join a major terrorist group. This spirit of cooperation in fighting terrorism continues to transcend borders around the world.”

According to the affidavit supporting the complaint, Baxam joined the U.S. Army in 2007 and completed eight months of advanced training for cryptology and intelligence. Baxam was deployed to Baghdad, and upon completion of his deployment, he reenlisted. In August 2010, he deployed for a one year assignment in Korea. One month prior to completion of his deployment in Korea, Baxam separated from the Army and returned to Maryland in July 2011.

The affidavit alleges that Baxam secretly converted to Islam days before he separated from the Army, after finding an Islamic religious website on the Internet. Baxam allegedly decided to relocate to Somalia to join Al-Shabaab and live under Sharia law. Al-Shabaab is a brutal militia group that uses intimidation and violence to undermine Somalia’s Transitional Federal Government (TFG). In February 2008, the U.S. Department of State designated Al-Shabaab, aka Harakat Shabaab al-Mujahidin, aka The Youth, as a foreign terrorist organization, stating that Al-Shabaab has committed or poses a significant risk of committing acts of terrorism that threaten the security of the United States.

Baxam cashed out his retirement savings of approximately $3,600 and purchased a plane ticket to Kenya. He set out to travel to Somalia, via Kenya, with between $600 and $700, which he planned to give to Al-Shabaab as an offering shortly after he crossed into Somalia. On Dec. 20, 2011, Baxam flew from Baltimore-Washington International Airport and arrived in Nairobi, Kenya on Dec. 22. He took a bus to Mombasa, Kenya, and hired taxis to travel through Kenya to Somalia.

On Dec. 23, 2011, Kenyan police stopped a bus in which Baxam was traveling near Mombasa, Kenya, and arrested him for attempting to travel to Somalia to join Al-Shabaab. Baxam was held at the Kenyan Anti-Terrorism Police Unit in Nairobi and interviewed by the FBI.

Baxam faces a maximum sentence of 15 years in prison followed by three years of supervised release. His initial appearance will be held at 3:00 p.m. EST today in U.S. District Court in Greenbelt.

The filing of a complaint is not a finding of guilt. An individual charged by complaint is presumed innocent unless and until proven guilty at some later criminal proceedings.

United States Attorney Rod J. Rosenstein praised the FBI’s Maryland and New York Joint Terrorism Task Forces for their work in the investigation and recognized the Department of Justice Counterterrorism Section and U.S. Attorney’s Office for the Southern District of New York for their assistance in the investigation. Mr. Rosenstein thanked Assistant U.S. Attorney Gregory Welsh, who is prosecuting the case with assistance from Robert J. Sander of the Counterterrorism Section of the Department of Justice.

.