nationalsecuritylaw NDAA Implementing Procedures for Section 1022

February 28, 2012

> Today at 6:30 pm, the White House issued the following Fact Sheet and a Presidential Policy Directive that sets forth procedures implementing Section 1022 of the National Defense Authorization Act for FY 2012 (which was enacted on Dec. 31, 2011). >
> This particular provision of the NDAA required military custody, pending disposition under the law of war, for a very narrow category of individuals – specifically non-U.S. citizens closely linked to Qaeda who were planning or carrying out an attack against the United States or coalition partners. Section 1022 of the NDAA also specifically authorized the President to waive the military custody requirement of Section 1022 at any time when doing so serves U.S. national security interests. Section 1022 also required the President to issue implementing procedures no later than 60 days after the law was enacted. >
> The implementing procedures are below.
NDAA Fact Sheet FINAL.pdf

nationalsecuritylaw upcoming event: “After Afghanistan: Where to from Here?” Duke Law, April 13 & 14

February 20, 2012

This is always a top-flight event. From Charlie Dunlap of Duke:

Ladies and Gentlemen,

I am writing to invite you to attend the Center on Law, Ethics and National Security conference here at Duke Law School on Friday, April 13th and Saturday, April 14th. Attendance is free, but you must register to attend,

This year’s theme is After Afghanistan: Where To From Here? The conference will be examining the state and future of national security law-related issues in the era beyond active battlefields, including dealing with persisting threats of technology-empowered terrorists and with rising peer-competitors.

To do this, we have assembled a prestigious group of scholars, policymakers and commentators who will take an interdisciplinary approach to all these issues from both a legal and a policy perspective. For example, our luncheon and dinner speakers this year are General Michael Hayden (USAF, Ret.), former director of the CIA; Mr. Will Gunn, General Counsel, Department of Veterans Affairs, and Dr. Mac Owens, Professor of National Security Affairs at the Naval War College.

We will be addressing developments and trends in homegrown terrorism, international coalition operations, international human rights, judicial deference in national security cases, and the international law of armed conflict.

Several wholly new areas will be addressed. For example, a panel will focus on The Intersection of National Security Law Issues and International Business Enterprises.Additionally, there will be a presentation on the ethical issues of national security law practice. The full conference agenda is attached.

As I say, the conference is free, but you must register to attend.

To register, fill out the attached julian. Or you can download it and drop it in the mail to

LENS, Duke University School of Law, Box 90358, Durham NC 27708-0358.

You will see on the registration form that you do have to pay for meals. The dinner (General Hayden will speak) will take place at the Washington Duke Inn which is really a spectacular location.

Hope to see you at the conference – seating is limited so please register early!!!!! Thanks, Charlie Dunlap

Charles J. Dunlap, Jr.

Major General, USAF (Ret.)

Executive Director, Center on Law, Ethics and National Security and

Visiting Professor of the Practice

Duke University School of Law

210 Science Drive

Box 90358

Durham, NC 27708-0358


LENS Conference Agenda.pdf

Registration Form.pdf

nationalsecuritylaw United States v. Khalifi (E.D. Va. Feb. 17, 2012) (DC bomb plot case)

February 17, 2012

The criminal complaint is here. What follows is the description from DOJ’s press release:

WASHINGTON – A 29 year-old man residing in Alexandria, Va., was arrested today for allegedly attempting to detonate a bomb in a suicide attack on the U.S. Capitol Building as part of what he intended to be a terrorist operation.

Amine El Khalifi, an immigrant from Morocco who is illegally present in the United States, was charged today by criminal complaint with attempting to use a weapon of mass destruction against property that is owned and used by the United States. He made his initial appearance today at 4:15 p.m. before Judge T. Rawles Jones Jr. If convicted, El Khalifi faces a maximum penalty of life in prison.

The arrest of El Khalifi was the culmination of an undercover operation during which he was closely monitored by the FBI Washington Field Office’s Joint Terrorism Task Force (JTTF). The explosives and firearm that he allegedly sought and attempted to use had been rendered inoperable by law enforcement and posed no threat to the public.

According to the criminal complaint affidavit, in January 2011, a confidential human source reported to the FBI that El Khalifi met with other individuals at a residence in Arlington, Va., on Jan. 11, 2011. During this meeting, one individual produced what appeared to be an AK-47, two revolvers and ammunition. El Khalifi allegedly expressed agreement with a statement by this individual that the “war on terrorism” was a “war on Muslims” and said that the group needed to be ready for war.

The affidavit alleges that El Khalifi sought to be associated with an armed extremist group, and on Dec 1, 2011, he was introduced by a man he knew as “Hussien” to an individual named “Yusuf,” who was, in reality, an undercover law enforcement officer. Throughout December 2011 and January 2012, El Khalifi allegedly proposed to carry out a bombing attack. His proposed targets included a building that contained U.S. military offices, as well as a synagogue, U.S. Army generals and a restaurant frequented by military officials.

During meetings with the undercover officer, El Khalifi allegedly handled an AK-47and indicated his desire to conduct an operation in which he would use a gun and kill people face-to-face. He also allegedly selected a restaurant in Washington, D.C., for a bombing attack; handled an explosive as an example of what could be used in the attack; conducted surveillance to determine the best place and time for the bombing and purchased materials as part of the planned operation.

On Jan. 7, 2012, “Hussien” informed El Khalifi that he was an al-Qaeda operative. El Khalifi allegedly discussed the possibility that his planned bombing of the restaurant would be followed by a second attack against a military installation to be conducted by others who El Khalifi believed to be associated with al-Qaeda. The affidavit alleges that El Khalifi understood that his attack on the restaurant would be part of an al-Qaeda operation that would include both his restaurant bombing and the attack against a military installation.

The affidavit alleges that on Jan. 15, 2012, El Khalifi stated that he had modified his plans for his attack. Rather than conduct an attack on a restaurant, he wanted to conduct a suicide attack at the U.S. Capitol Building. That same day at a quarry in West Virginia, as a demonstration of the effects of the proposed suicide bomb operation, El Khalifi dialed a cell phone number that he believed would detonate a bomb placed in the quarry. The test bomb detonated, and El Khalifi expressed a desire for a larger explosion in his attack. He also selected Feb. 17, 2012, as the day of the operation, according to the affidavit.

The affidavit alleges that over the next month, El Khalifi traveled to the U.S. Capitol Building on multiple occasions to conduct surveillance, choosing the spot where he would be dropped off to enter the building for the martyrdom operation, the specific time for the attack and the method he would use to avoid attracting the attention of law enforcement. El Khalifi also asked Hussien to remotely detonate the bomb he would be wearing on the day of the attack if El Khalifi encountered problems with security officers, and to provide El Khalifi with a gun that he could use during the attack to shoot any officers who might attempt to stop him.

On February 17, 2012, El Khalifi allegedly traveled to a parking garage near the U.S. Capitol Building. El Khalifi took possession of a MAC-10 automatic weapon and put on a vest containing what he believed to be a functioning bomb. Unbeknownst to El Khalifi, both the weapon and the bomb had been rendered inoperable by law enforcement. El Khalifi walked alone from the vehicle toward the United States Capitol, where he intended to shoot people and detonate the bomb. El Khalifi was arrested and taken into custody before exiting the parking garage.

nationalsecuritylaw Call for Papers for Sydney Conference on States of Surveillance December 13-14, 2012

February 15, 2012

Call for papers:

The next annual conference of the Working Group on Constitutional Responses to Terrorism will take place December 13-14, 2012 in Sydney, Australia, and will focus, broadly speaking, on comparative constitutional approaches to "states of surveillance." We already have commitments from a number of top scholars and jurists and a commitment to publish the papers in a book. If you are interested in participating, please consider submitting a proposal. The details are in the attachment. David Cole, Working Group Chair

GT IACL workshop Email.pdf

nationalsecuritylaw United States v. Khan (Mil. Com. Feb. 14, 2012)

February 14, 2012

DOD has announced that military commission charges have been sworn against Majid Shoukat Khan, as follows (from DOD’s press release):

The Defense Department announced today that military commission charges have been sworn against Majid Shoukat Khan, a Pakistani national who lived in the United States from 1996 to early 2002 before returning to Pakistan.

The charges allege that Khan joined with members of al Qaeda in Pakistan to plan and prepare attacks against diverse targets in the United States, Indonesia, and elsewhere after Sept. 11, 2001. Specifically, they allege that Khan:

  • Used a fraudulently obtained travel document to travel from his residence in Baltimore, Md., to Karachi, Pakistan, in January of 2002;
  • Conspired with Khalid Sheikh Mohammed regarding a plot to blow-up underground gasoline storage tanks at gas stations in the United States and other domestic plots;
  • At Khalid Sheikh Mohammed’s direction, recorded a "martyr video," donned an explosive vest, and sat in a mosque waiting for Pakistani President Pervez Musharraf to arrive so that Khan could assassinate him, an attempt that was foiled when Musharraf never arrived;
  • Traveled in March of 2002 from Karachi to Baltimore, where he performed tasks for al Qaeda and Khalid Sheikh Mohammed, including purchasing a laptop computer for al Qaeda and contacting a military recruiter to obtain materials regarding the United States military, which he intended to give to Khalid Sheikh Mohammed;
  • Upon returning to Pakistan in August 2002, worked directly for Khalid Sheikh Mohammed, Ali Abdul al-Aziz Ali, and other al Qaeda associates, all of whom were evading capture by United States and Pakistani authorities;
  • At the direction of Khalid Sheikh Mohammed and Ali Abdul al-Aziz Ali, traveled with his wife in December of 2002 from Pakistan to Bangkok, Thailand, where he evaded notice by posing as a tourist;
  • While in Bangkok, delivered $50,000 in al Qaeda funds to a southeast Asia-based al Qaeda affiliate, which in turn delivered the money to the allied terrorist group Jemaah Islamiyah, which used the funding to detonate a bomb in August of 2003 at the J.W. Marriott Hotel in Jakarta, Indonesia, killing eleven people, wounding at least eighty-one others, and severely damaging the hotel.

Based on these allegations and others outlined in the charge sheet, Khan is charged with conspiracy, murder and attempted murder in violation of the law of war, providing material support for terrorism, and spying.

In accordance with the Military Commissions Act of 2009, Chief Prosecutor Mark Martins has forwarded the sworn charges to Convening Authority Bruce MacDonald with a recommendation that the charges be referred to military commission for trial. By separate action, Martins today also detailed Courtney Sullivan of the Justice Department as trial counsel in the case and Army Lt. Col. Michael Hosang and Navy Lt. Nathaniel Gross as assistant trial counsel. Martins has not recommended that any of the charges be referred to a military commission empowered to adjudge the death penalty, and therefore the maximum allowable penalty for the charged offenses is life imprisonment.

The convening authority will make an independent determination as to whether to refer some, all, or none of the charges to trial by military commission. If the convening authority decides to refer the case to trial, he will designate the commission panel members who function as jurors. The chief trial judge of the Military Commissions Trial Judiciary would also detail a military judge to the case.

The charges are only allegations that the accused has committed offenses under the Military Commissions Act, and the accused is presumed innocent unless proven guilty beyond a reasonable doubt.

nationalsecuritylaw Ibrahim v. DHS (9th CIr. Feb. 8, 2012) (reinstating no-fly list litigation)

February 9, 2012

An interesting ruling from the 9th Circuit yesterday (Judge W. Fletcher, joined by Judge Nelson, dissent by visiting Judge Duffy (the latter appearing by designation)).

Rabinah Ibrahim is a Malaysian professor who obtained her PhD at Stanford. According to the complaint, she discovered in 2005 while attempting to fly from California to Malaysia that she was on a no-fly list. She eventually was allowed to take the trip, but was not permitted to return, and now has been found ineligible (on unspecified grounds relating to terrorism) to have a visa to return, separate from the no-fly list issue. She eventually brought a civil suit, which in its current form alleges violations of the First Amendment (Freedom of Association) and the Fifth Amendment (Procedural Due Process, Equal Protection). The district court found that she had standing to sue, but concluded that she was “an alien who voluntarily left the United States and thus left her constitutional rights at the water’s edge.” The Ninth Circuit’s opinion yesterday reverses on the latter point. Here are the key passages from the majority opinion:

B. Constitutional Claims

Claim 13 of the SAC alleges that the placement of Ibrahim’s name on the government’s terrorist watchlists violates her right to freedom of association under the First Amendment and her rights to equal protection and due process under the Fifth Amendment.FN21

At this point in the litigation, no court has attempted to determine the merits of Ibrahim’s claims under the First and Fifth Amendments. The parties have not briefed whether her placement on a terrorist watchlist violates her rights to freedom of association, equal protection, and due process. The only question before us is whether Ibrahim even has the right to assert such claims.

We begin with the uncontested proposition that if Ibrahim had remained in the United States, she would have been able to assert claims under the First and Fifth Amendments to challenge her placement on the government’s terrorist watchlists. It is well established that aliens legally within the United States may challenge the constitutionality of federal and state actions. See, e.g., Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 580 (1976); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Hampton v. Mow Sun Wong, 426 U.S. 88, 101–03 (1976); Sugarman v. Dougall, 413 U.S. 634, 641 (1973); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953); Torao Takahashi v.. Fish and Game Comm’n, 334 U.S. 410, 419–20 (1948). Even aliens who are in the United States illegally may bring constitutional challenges, see, e.g., Plyler v. Doe, 457 U.S. 202, 211–12 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896), including the ability to challenge the revocation of a visa, see ANA Int’l Inc. v. Way, 393 F.3d 886, 893–84 (9th Cir.2004) (allowing judicial review of INS decision to revoke temporary worker visa for purely legal questions, including constitutional challenges). The question in this case is whether Ibrahim lost the right she otherwise had because she left the United States.

The Supreme Court has held in a series of cases that the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not. For example, a resident alien who voluntarily leaves the United States on a brief trip with an intent to return is constitutionally entitled to a due process hearing if the government seeks to exclude her upon return to the United States. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) (resident alien entitled to constitutional due process hearing in exclusion proceedings upon re-entry after a “few days” abroad); Rosenberg v. Fleuti, 374 U.S. 449, 450 (1963) (entry after innocent, casual, and brief excursion abroad did not qualify as “entry” for immigration purposes); Kwong Hai Chew, 344 U.S. at 593–95 (resident alien entitled to constitutional due process hearing after exclusion following a five-month voyage abroad).See also Boumediene v. Bush, 553 U.S. 723 (2008) (aliens held as enemy combatants outside the de jure sovereign territory of the United States may petition for habeas corpus to challenge the constitutionality of their detention); Al Maqaleh v. Gates, 605 F.3d 84, 95–96 (D.C.Cir.2010) (location of alien outside the United States is only a factor in determining the extraterritorial reach of the Constitution); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C.Cir.2001) (a foreign organization with property in the United States entitled to constitutional due process hearing before Secretary of State may classify it as a “foreign terrorist organization”); Cardenas v. Smith, 733 F.2d 909, 915 (D.C.Cir.1984) (Colombian national outside the United States entitled to assert due process claim against U.S. government based on seizure of her Swiss bank account); In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1308 n.6 (9th Cir.1982) (nonresident aliens suing on same cause of action as citizens have the right to assert takings claim).

In United States v. Verdugo–Urquidez, 494 U.S. 259 (1990), the Supreme Court wrote that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271.The Court’s statement in Verdugo was an elaboration of its earlier language in United States v. Eisentrager, 339 U.S. 763 (1950), that an alien “is accorded a generous and ascending scale of rights as he increases his identity with our society.” Verdugo, 494 U.S. at 269 (quoting Eisentrager, 339 U.S. at 770) (internal quotations omitted). The Court wrote in Boumediene that the right of an alien outside the United States to assert constitutional claims is based on “objective factors and practical concerns” rather than “formalism .” 553 U.S. at 764. In determining the constitutional rights of aliens outside the United States, the Court applies a “functional approach” rather than a bright-line rule. Id.

A comparison of Ibrahim’s case with Verdugo, Eisentrager, and Boumediene is instructive.

In Verdugo, plaintiff had been arrested in Mexico and brought against his will to the Mexico–United States border, where he was turned over to United States authorities and imprisoned in the United States while awaiting trial on narcotics smuggling charges. The Court held that the plaintiff had “no previous significant voluntary connection with the United States” and therefore had no right to assert a Fourth Amendment challenge searches and seizures of his property by United States agents in Mexico. Verdugo, 494 U.S. at 271 (emphasis added).

Relying on Verdugo, the government insists that Ibrahim left the United States “voluntarily” and that she thereby forfeited any right to assert constitutional claims she might have had if she had remained in the United States. The government mistakes the nature of the Verdugo inquiry. Under Verdugo, the inquiry is whether the alien has voluntarily established a connection with the United States, not whether the alien has voluntarily left the United States. The circumstances of an alien’s departure may cast some light on whether the alien has established, and wishes to maintain, a voluntarily established connection with the United States. But the mere fact that an alien’s departure is voluntary tells us very little. In Ibrahim’s case, she left the United States to attend a Stanford-sponsored conference to present her academic research, performed in connection with her Ph.D. studies at Stanford, and she expected to return to Stanford after the conference to complete her studies. Ibrahim thus did not intend to sever her established connection to the United States by her voluntary departure, but rather to develop that connection further.

In Eisentrager, the plaintiffs were German citizens who had been arrested in China, convicted of violating the laws of war after adversary trials before a U.S. military tribunal in China, and sent to a prison in Germany to serve their sentences. The Supreme Court held that they did not have a right to seek a writ of habeas corpus under our Constitution. The Court summarized:

[To agree with plaintiffs that they are entitled to seek habeas] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

339 U.S. at 777.

Ibrahim’s case is unlike that of the plaintiffs in Eisentrager.She has not been convicted of, or even charged with, any violation of law. She is a citizen of a country with which we have never been at war. She contends that the placement of her name on the government’s terrorist watchlists is a mistake. Her contention is not implausible, given the frequent mistakes the government has made in placing names on these lists. She has established a substantial voluntary connection with the United States through her Ph. D. studies at a distinguished American university, and she wishes to maintain that connection.

In Boumediene, the plaintiffs were aliens who had been designated as enemy combatants and who were detained at the United States Naval Station in Guantanamo. Plaintiffs had not been tried or convicted of any crime. They sought federal habeas corpus. The government argued that because plaintiffs were aliens who had committed acts outside the United States and were being detained outside the United States, they were not entitled to seek habeas relief. The Court rejected the government’s proposed bright-line rule, calling it a “formal, sovereignty-based test.” 553 U.S. at 764. The Court wrote that while the United States does not have de jure sovereignty over the Naval Station at Guantanamo Bay, it “maintains de facto sovereignty.” Id. at 755.Applying a “functional approach,” id. at 764, the Court held that the plaintiffs in Boumediene, unlike the plaintiffs in Eisentrager, had a right to seek a writ of habeas corpus.

Ibrahim shares an important similarity with the plaintiffs in Boumediene.The Boumediene plaintiffs and Ibrahim both sought (or seek) the right to assert constitutional claims in a civilian court in order to correct what they contend are mistakes. In Boumediene, plaintiffs sought the right to try to establish they were not, in fact, enemy combatants. Ibrahim seeks the right to try to establish that she does not, in fact, deserve to be placed on the government’s watchlists.

The government in Boumediene proposed a brightline “formal sovereignty-based test” under which the absence of de jure jurisdiction over Guantanamo would have meant that plaintiffs had no right to seek habeas corpus under the Constitution. The Court disagreed, adopting instead a “functional approach” under which the absence of de jure jurisdiction was not determinative. Id . at 764.The government proposes a similar bright-line “formal sovereignty-based test” in Ibrahim’s case. Under the government’s proposed test in this case, any alien, no matter how great her voluntary connection with the United States, immediately loses all constitutional rights as soon as she voluntarily leaves the country, regardless of the purpose of her trip, and regardless of the length of her intended stay abroad. The government’s proposed test is not the law. The law that we are bound to follow is, instead, the “functional approach” of Boumediene and the “significant voluntary connection” test of Verdugo.

Under Boumediene and Verdugo, we hold that Ibrahim has “significant voluntary connection” with the United States. She voluntarily established a connection to the United States during her four years at Stanford University while she pursued her Ph.D. She voluntarily departed from the United States to present the results of her research at a Stanford-sponsored conference. The purpose of her trip was to further, not to sever, her connection to the United States, and she intended her stay abroad to be brief.

We do not hold that tourists, business visitors, and all student visa holders have the same connection to the United States as Ibrahim. Nor do we hold that Congress is without authority to exclude undesirable aliens from the United States and to prescribe terms and conditions for entry and re-entry of aliens. See, e.g., Hampton, 426 U.S. at 101 n.21; Galvan v. Press, 347 U.S. 522, 530–31 (1954); Shaughnessy v. United States ex rel. Mezei, 345 U . S. 206, 210–11 (1953). We hold only that Ibrahim has established “significant voluntary connection” with the United States such that she has the right to assert claims under the First and Fifth Amendments. Like the Court in Boumediene, we express no opinion on the validity of the underlying constitutional claims. Boumediene, 553 U.S. at 733.


nationalsecuritylaw United States v. Khan (N.D. Ill. Feb. 6, 2012) (guilty plea in AQ material support case)

February 6, 2012

From DOJ’s press release:

CHICAGO — A Chicago man, who personally provided hundreds of dollars to an alleged terrorist leader with whom he had met in his native Pakistan, pleaded guilty today to attempting to provide additional funds to the same individual after learning he was working with al Qaeda. The defendant, Raja Lahrasib Khan, a Chicago taxi driver and native of Pakistan who became a naturalized U.S. citizen in 1988, pleaded guilty to one count of attempting to provide material support to a foreign terrorist organization, resolving charges that have been pending since he was arrested in March 2010.

Khan, 58, of Chicago’s north side, never posed any imminent domestic danger, law enforcement officials said at the time of his arrest. He remains in federal custody while awaiting sentencing, which U.S. District Judge James Zagel scheduled for 2 p.m. on May 30, 2011.

Khan faces a maximum sentence of 15 years in prison. His plea agreement calls for an agreed sentence of between five and eight years in prison, and it requires Khan to cooperate with the government in any matter in which he is called upon to assist through the termination of his sentence and any period of supervised release.

Khan, who was born and resided in the Azad Kashmir region of Pakistan before immigrating to the United States in the late 1970s, admitted that he met with Ilyas Kashmiri, a leader of the Kashmir independence movement, in Pakistan in the early to mid-2000s and again in 2008. At the time of the second meeting, Khan knew or had reason to believe that Kashmiri was working with al Qaeda, in addition to leading attacks against the Indian government in the Kashmir region. During their 2008 meeting, Kashmiri told Khan that Osama bin Laden was alive, healthy and giving orders, and Khan gave Kashmiri approximately 20,000 Pakistani rupees (approximately $200 to $250), which he intended Kashmiri to use to support attacks against India.

On Nov. 23, 2009, Khan sent approximately 77,917 rupees (approximately $930) from Chicago to an individual in Pakistan, via Western Union, and then directed the individual by phone to give Kashmiri approximately 25,000 rupees (approximately $300). Although Khan intended the funds to be used by Kashmiri to support attacks against India, he was also aware that Kashmiri was working with al Qaeda.

In February and March 2010, Khan participated in several meetings with an undercover law enforcement agent who posed as someone interested in sending money to Kashmiri to purchase weapons and ammunition, but only if Kashmiri was working with al Qaeda, as well as sending individuals into Pakistan to receive military-style training so they could conduct attacks against U.S. forces and interests. On March 17, 2010, the undercover agent provided Khan with $1,000, which Khan agreed to provide to Kashmiri. Khan then gave the funds to his son, who was traveling from the United States to the United Kingdom (U.K.), intending to later retrieve the money from his son in the U.K. and subsequently provide it to Kashmiri in Pakistan.

On March 23, 2010, Khan’s son arrived at an airport in the U.K. and a search by U.K. law enforcement officials yielded seven of the ten $100 bills that the undercover agent had provided to Khan. After learning of his son’s detention, Khan attempted to end his involvement in the scheme to provide funds to Kashmiri by requesting an urgent meeting with another individual who was also present at Khan’s earlier meetings with the undercover agent. During their meeting, Khan demanded to return the undercover agent’s funds by providing $800 to this other individual.

The investigation was conducted by the Chicago FBI Joint Terrorism Task Force, with particular assistance from the Chicago Police Department, the Illinois State Police and the Department of Homeland Security’s U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

nationalsecuritylaw forthcoming scholarship

February 6, 2012

A new batch of forthcoming scholarship (titles link to pdfs on ssrn):

"Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts"
Yearbook of International Humanitarian Law, Forthcoming

AMICHAI COHEN, Ono Academic College – Faculty of Law, Israel Democracy Institute
Email: acohen
YUVAL SHANY, Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology, Israel Democracy Institute
Email: yshany

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.

"U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror"
Washington & Lee Legal Studies Paper No. 2011-27

RUSSELL MILLER, Washington and Lee University – School of Law
Email: millerra

The most sensational and unique contribution of Germany’s national security constitution has made to the common constitutional struggle to balance security and liberty is the theory of “militant democracy.” Andras Sajo, the best-known contemporary theorist of militant democracy, has written to advocate the implementation of militant democracy in the present struggle against terrorism. “The counter-terror state, following the logic of militant democracy intends to protect certain fundamental rights and values by denying those rights to some people who are believed to abuse the system.” Sajo’s representation of how a comparist would analyze the claims that America can borrow and transplant Germany’s militant democracy as a weapon in the struggle against global terrorism is a traditional, functionalist response.

How should a comparist analyze the claims that America might borrow and transplant Germany’s militant militant democracy as a weapon in the struggle against terrorism? The functionalism tradition “considers legal problems and their solutions in isolation” and “treats comparative law as a technique of problem solving.” The result of this problem-solving emphasis was that comparative law presented issues “generically,” “detached” from specifics, and abstracted from their relevant contexts in an effort to construct ideal law. Functionalism may not address the relevance of values to constitutional protection of democracy or the extent to which “militant democracy” raises critical tradeoffs best understood in light of the unique features of a particular legal or political culture.

The contextual method endeavors to situate various constitutional problems in their animating political circumstances. This contextualization of problems and norms greatly complicates, if it does not confound, attempts at borrowing a legal regime, like Germany’s militant democracy for use in another setting, like America’s struggle with terrorism.

The discursive comparative method focuses on the social milieu in which sociological, historical, economical, and political norms are found. In the case of Germany – economic recovery, then stability, was fundamental to peace, stability, and security because of the widespread devastation confronting the Germans after the war. The contextual comparative effort revealed the fact that economic development played a critical role in pursuing postwar Germany against the enemies of democracy.

"Private Religious Discrimination, National Security, and the First Amendment"
Harvard Law and Policy Review, Vol. 5, p. 347, 2011
U of Chicago, Public Law Working Paper No. 373

AZIZ Z. HUQ, University of Chicago Law School
Email: huq

This essay identifies a negative feedback loop between private discrimination directed at American Muslims and security against terrorism. The first part of the loop is familiar: Concerns about terrorism animate greater antipathy toward outsiders. The second part is novel: social discrimination corrodes trust in the police and makes cooperation with police less likely. Insecurity thus creates discrimination, which deepens insecurity. The Religion Clauses of the First Amendment, now greatly weakened, still provide one tool to break this negative feedback loop.

Intervention in Libya, Yes; Intervention in Syria, No: Deciphering the Obama Administration

Amos N. Guiora

University of Utah – S.J. Quinney College of Law

Deciphering an American presidential administration is truly yeoman’s work. Whether the Obama Administration is significantly distinct from previous administrations is too early to judge. Arguably, the task should be left to historians. Nevertheless, even a casual perusal of President Obama’s Middle East policy (perhaps best described as "policy") reflects a combination of naiveté, inconsistency and murkiness. While perhaps by design, the impact — on the ground — is deeply troublesome. While domestic political considerations are a reality, the implications of the Administration’s policy in an area of the world as treacherous as the Middle East are, potentially, staggering.

Precisely because international law does not articulate either normative or architectural standards as to when international humanitarian intervention is justified, national leaders arguably have a responsibility to act. The oft-cited phrase "when the cannons roar, the muses are silent" is particularly relevant to this discussion. For a variety of reasons, the international community has determined — whether actively or passively — that the massacre of the Syrian population by the Assad government does not justify international humanitarian intervention. While the human rights violations occurring on a daily basis do not compare to the horrors of Rwanda, Kosovo, or Sierra Leone they are not less compelling than the events transpiring in Libya. If, by metaphorical analogy, the international community is the cannons and the U.S. is the muse, does that mean that the Obama Administration is required to be silent? After all, if the quote were to be rigorously applied, then many of the institutions created to minimize human suffering would neither exist, much less function in wartime. While the distinction — from the perspective of international humanitarian intervention — between Libya and Syria is as unclear, as are the criteria that justify intervention, that must not serve as a misguided basis for the Obama Administration to largely turn its back on the Syrian people.

nationalsecuritylaw forthcoming scholarship: JNSLP Special Issue on “Shadow Wars”

February 3, 2012

From the Journal of National Security Law & Policy, an amazing special issue on legal issues associated with covert conflict. Not to be missed! (yes, I am biased)


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The Journal of National Security Law & Policy (JNSLP) is pleased to announce the publication of its special issue, Vol. 5:2, examining “Shadow Wars.” Louis Fisher, preeminent scholar of war and the Constitution as well as JNSLP Editorial Board Member, served as the issue’s guest editor. Articles, which discuss the law and policy regarding U.S. paramilitary operations, are by:

William C. Banks, Director, Institute for National Security and Counterterrorism; Board of Advisors Distinguished Professor of Law, Professor of Public Administration, Syracuse University; Editor-in-Chief, Journal of National Security Law & Policy. Shadow Wars.

Louis Fisher, Scholar in Residence, The Constitution Project. Basic Principles of the War Power.

Herbert Lawrence Fenster, Expert in Government Contract Law. The Great War Powers Misconception.

John Prados, Senior Fellow and Co-Director of the Iraq Documentation Project, and Director of the Vietnam Project at the National Security Archive at The George Washington University. The Continuing Quandary of Covert Operations.

Jennifer D. Kibbe, Associate Professor of Government, Franklin & Marshall College. Conducting Shadow Wars.

Jules Lobel, Professor of Law, University of Pittsburg School of Law. Covert War and the Constitution.

Robert F. Turner, Professor, Associate Director and Co-Founder, the Center for National Security Law, University of Virginia School of Law. Covert War and the Constitution: A Response.

Jules Lobel, Professor of Law, University of Pittsburg School of Law, and Robert F. Turner, Professor, Associate Director and Co-Founder, the Center for National Security Law, University of Virginia School of Law. The Constitutionality of Covert War: Rebuttals.

Afsheen John Radsan, Professor, William Mitchell College of Law; Assistant General Counsel at the Central Intelligence Agency from 2002 to 2004, and Richard Murphy, AT&T Professor of Law, Texas Tech University School of Law. The Evolution of Law and Policy for CIA Targeted Killing.

Richard M. Pious, Adolph and Effie Ochs Professor, Barnard College, Columbia University. White House Decisionmaking Involving Paramilitary Forces.

Loch K. Johnson, Regents Professor of International Affairs, University of Georgia. Intelligence Analysis and Planning for Paramilitary Operations.

Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz School of Law. Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis.

Laura A. Dickinson, Oswald Symister Colclough Research Professor of Law, The George Washington University Law School. Outsourcing Covert Activities.

Robert Chesney, Charles I. Francis Professor in Law, University of Texas School of Law. Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate.

To read articles and subscribe to the print version, visit

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