nationalsecuritylaw forthcoming scholarship

April 30, 2012

Maritime Piracy: Changes in U.S. Law Needed to Combat this Critical National Security Concern

Daniel L. Pines

Central Intelligence Agency
Seattle University Law Review, Forthcoming

Many articles have recently been written on maritime piracy. Most of these articles focus on the problem through the prism of the international community and international law. The few articles that view the matter through U.S. eyes tend to examine it as a distant economic or geo-political concern. Yet, for the United States, the true threat posed by piracy is not to our economy or geo-politics; it is to our national security. Just as terrorists exploited aviation hijacking in the 9/11 attacks, a similar terrorist threat looms via piracy. This article therefore seeks to explore the parameters offered by U.S. law to permit the United States to combat this national security problem. It concludes that international and U.S. law offer numerous, wide-ranging authorities for the U.S. government to attack pirates, seize their vessels, and prosecute the offenders under a plethora of charges both in the United States and abroad. Yet much more should to be done if we are to seriously stave off this threat. Changes to U.S. statutes and regulations are desperately needed to allow U.S. vessels to defend themselves from maritime pirates, the U.S. military to capture such marauders, and the U.S. justice system to prosecute such criminals.

Convergence of Norms Across the Spectrum of Armed Conflicts – International Humanitarian and Human Rights Law

Emily Crawford

University of Sydney – Faculty of Law

International armed conflicts are by far the most highly regulated types of conflict, with a raft of treaties and comprehensive customary international law regulating permissible state conduct. By comparison, non-international armed conflicts have comparatively few laws regulating their conduct. However, despite the apparent lack of comprehensive treaty rules regulating non-international armed conflict, and the seemingly entrenched legal division between the types of armed conflicts, an examination of the history of IHL actually demonstrates a growing willingness among states to accept the introduction of more rules – and more detailed rules at that – on permissible conduct in non-international armed conflicts. The progressive development of the law of armed conflict over the past century has evidenced a growing acceptance of the need for comprehensive guidelines on the conduct of hostilities, whether they are international or non-international. This confluence of norms has been influenced significantly by the emergence in the post-World War II era of international human rights law. The wealth of treaties, declarations and customary law protecting human rights has seen states began to accept limits on their sovereign power in the name of protecting the rights of their citizens. In turn, the belief that states’ rights could only extend so far in their conduct towards their citizens necessarily influenced the conduct of states in non-international armed conflicts. With this background in mind, this chapter will examine how, over the past 60 years, we have seen a convergence in the laws relating to armed conflict, to the point that it is possible to speak of a large body of law applicable in all armed conflicts.

Offensive Lawfare and the Current Conflict

Colonel Mark W. Holzer (Deputy Chief, Int’l and Operational Law Div., OTJAG, US Army)

Harvard National Security Journal

The term "lawfare" has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

The United States Army’s operational concept provides a framework to conceptualize "offensive lawfare" which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters.

From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality

Sahar F. Aziz

Texas Wesleyan University School of Law
Hastings Race & Poverty Law Journal, Vol 8, No. 1, Spring 2012

In the post-9/11 era, Muslim women donning a headscarf in America find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties advocates.

The paper argues that the Muslim woman is a casualty of the post-9/11 “war on terror” in ways different from Muslim men. Not only are her religious freedoms under attack in ways different from men because the headscarf is unique to women, but she is objectified in ideological and corporal domestic conflicts that profoundly affect her life. Perhaps worse than the gender rights debates of the 1990s when Muslim women were talked about rather than talked to, their experiences post-9/11 are completely neglected by Western feminists or used by Muslim male spokespersons to implement a civil rights agenda tailored to the Muslim male experience. Consequently, Muslim women are trapped in the crosshairs of national security conflicts that profoundly affect their lives but not yet adequately addressed by advocacy groups focused solely on defending Muslims, women’s rights, or civil liberties post-9/11.

Section I of this paper prefaces the paper’s thesis by highlighting Islam’s transition from obscurity to notoriety in the American public’s psyche as a result of the September 11th attacks. Section II highlights how the recasting of Islam from a bona fide religion to a political ideology is a necessary precursor for accepting otherwise discriminatory acts as legitimate national security practices. The reclassification is most glaring in the nationwide campaigns opposing mosque constructions because of the public’s fixation on mosques as hotbeds of extremism. Likewise, as Islam becomes defined as an expression of politics instead of religion, demands for religious accommodation by Muslims are deemed stealth Islamic imperialism not protected by law. Against this backdrop, Section III demonstrates how the meaning of the Muslim headscarf has transformed from a symbol of female subjugation to a symbol of terror(ism). Through an analysis of employment discrimination, racial violence, political marginalization, and exclusion from the courthouse, this article demonstrates how the transition in meaning of the headscarf has resulted in palpable and widespread discrimination against Muslim women donning the headscarf. Yet, discourse on civil liberties in the national security context are woefully lacking due to the glaring absence of the Muslim woman’s voice. Section IV calls for a prescriptive rethinking of strategies aimed at redressing anti-Muslim bias and civil liberties infringements that take into account the gender component of post-9/11 discrimination.

By developing a more accurate and in-depth analysis of their complicated circumstances post-9/11, this article aims to include “headscarved Muslim women” in the relevant debates among legal theorists.

nationalsecuritylaw text of John Brennan’s speech at the Wilson Center (on the use of lethal force)

April 30, 2012

Posted here. Video of the talk here.

nationalsecuritylaw upcoming IHL course sponsored by US Institute of Peace

April 28, 2012

From the US Institute of Peace and Professor Laurie Blank:

The United States Institute of Peace is offering a new course on International Humanitarian Law and Human Rights as part of its highly regarded Academy for International Conflict Management and Peacebuilding. The Academy provides practitioner-oriented education, training, and resources via facilities at USIP’s Washington headquarters, mobile training in conflict zones abroad, and online distance education and training.

This pilot course on IHL and HR runs May 15-17 and will focus on key questions: Why do we have these bodies of law? How do they apply? What is the practical impact of human rights and humanitarian law in conflict-affected states? How do these two bodies of law interact? How are human rights and international humanitarian law relevant to practitioner’s work in the field? The three-day course will be delivered through a variety of methodologies that seek to maximize the learning experience, with an emphasis on problem-based learning.

Additional course and registration information is available at

Note in particular that because this is a pilot course, the registration fee is discounted significantly and is only $195.

nationalsecuritylaw IACL Workshop – States of Surveillance: Counter-Terrorism and Comparative Constitutionalism – Reminder

April 27, 2012

A message from the organizers of the upcoming IACL Workshop:

Dear friends and colleagues,

We have had tremendous interest in the forthcoming IACL Workshop on States of Surveillance: Counter-Terrorism and Comparative Constitutionalism.

The closing date for the submission of abstracts is just two weeks away – 9 May 2011. We strongly encourage those with an interest in attending the Workshop to submit their abstracts in time to Fergal Davis (f.davis).

Those who wish to apply to the workshop travel fund for assistance should make this clear when submitting their abstracts.

We look forward to receiving your abstracts and seeing you in Sydney in December.


Fergal Davis

States of Surveillance: Counter-Terrorism and Comparative Constitutionalism

IACL Research Group on Constitutional Responses to Terrorism Workshop 13-14 December 2012

At the Gilbert + Tobin Centre of Public Law, University of New South Wales, Sydney Australia.

The decade after 11 September 2001 saw the enactment of anti-terror laws around the world that challenged understandings and assumptions about public institutions, human rights and constitutional law. Many of those laws remain on the statute books and continue to have a profound impact on constitutionalism and the rule of law.

One of the most striking and rapid areas of development has been the conferral of increased powers of surveillance on law enforcement and intelligence agencies. The 2012 Workshop will examine the nature of these powers, and their impact on constitutionalism at the domestic and international levels. Some of the issues that the Workshop may cover are:

• the changing (and expanding) design of surveillance powers;

• the ‘new’ purposes for which surveillance material is used, in particular, as evidence in criminal trials and in the making of preventative orders;

• the implications of the increasing use of surveillance materials for human rights, such as on the freedom of movement, principle of non-discrimination, freedoms of speech and association, and privacy rights;

• the possibilities and limitations of constitutional review, and other oversight mechanisms (whether administrative or judicial);

• the challenges of surveillance in a changing technological environment; and,

• the comparative national experience of surveillance and other intelligence-gathering strategies in responding to the threat of terrorism.


The Workshop will feature leading international and domestic researchers and practitioners on anti-terror law and constitutional law including: David Cole (Professor of Law at Georgetown University, USA); Conor Gearty (Professor of Human Rights Law at London School of Economics, UK); Ujjwal Kumar Singh (Professor of Political Science at Delhi University, India); Clive Walker (Professor of Criminal Justice Studies at University of Leeds, UK); the Honourable Justice Anthony Whealy (New South Wales Supreme Court) and George Williams (Anthony Mason Professor at University of New South Wales, Australia).


The organisers invite abstracts to be sent to Dr Fergal Davis at f.davis by 9 May 2012. A decision regarding papers will be communicated to participants by 9 June 2012. Further inquiries about the event can be directed to this email address.

The organisers will waive any registration fee and will cover accommodation costs (at the Coogee Sands Hotel on Sydney’s Coogee Beach) for speakers whose abstracts are accepted for participation in the Workshop.

Speakers should seek to have their flights and incidental travel costs covered by their home institution. However, the organisers recognise that this may not always be possible. Accordingly, a limited travel fund is available to support speakers in the event that they require financial assistance. Requests for such assistance should be made when submitting abstracts to Dr Davis.

Publication of Workshop Papers

The organisers have secured the in principle agreement of Routledge to publish a selection of original papers presented at the Workshop. Speakers whose abstracts are accepted will need to submit draft papers for circulation in mid-October 2012. Final papers of up to 8000 words (including footnotes) will need to be submitted for publication in the edited book approximately two months after the Workshop.

Workshop Host

The Workshop will be hosted by the Gilbert + Tobin Centre of Public Law at the University of New South Wales in Sydney, Australia. Located in the eastern suburbs of Sydney, the University is close to Coogee Beach, the city centre and Sydney Airport.

The University of New South Wales is a leading Australian and international university. The Law School is highly regarded for its commitment to outstanding research and teaching in the field of constitutional law through its Gilbert + Tobin Centre of Public Law.

The Centre is running a five-year project on Anti-Terror Laws and the Democratic Challenge led by Professor George Williams and supported by the Australian Research Council. The overarching aim of the project is to determine how democratic nations can best reconcile traditional democratic processes, institutions, principles and individual freedoms with the likelihood that anti-terror laws granting war-time powers will remain in place for the foreseeable future.


All queries regarding the Workshop should be directed to:

Dr Fergal Davis

Gilbert + Tobin Centre of Public Law

The Law Building University of New South Wales Sydney NSW 2052 Australia

Email: f.davis

International Association of Constitutional Law Research Group

The research group addresses a range of issues related to constitutional law, international human rights law, terrorism and counter-terrorism legislation in a comparative, global perspective. Topics of interest include: separation of powers and the role of the judiciary; secrecy and the vindication of constitutional rights; terrorist financing; and, the control of States’ anti-terrorism activities. The research group convenes a workshop every year and runs a mailing list to which more than 150 scholars from seven different continents are registered.

The Chair of the research group is Professor David Cole, Professor of Law at Georgetown University. The co-ordinator of the research group is Federico Fabbrini, PhD Researcher at European University Institute, federico.fabbrini.

FERGAL DAVIS • Senior Lecturer • ARC Laureate Fellowship: Anti-Terror Laws and the Democratic Challenge Project • Gilbert + Tobin Centre of Public Law • Law • The University of New South Wales • UNSW Sydney NSW 2052, Australia • Phone: +61 (2) 9385 9656 • Fax: +61 (2) 9385 1175 • Website:

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GT IACL workshop Email.pdf

nationalsecuritylaw United States v. Hassoun (N.D. Ill. Apr.23, 2012)

April 23, 2012

From DOJ’s press release:

CHICAGO — A Chicago man pleaded guilty today to federal charges for placing a backpack that he thought contained a powerful explosive device into a curbside trash container on a crowded north side street near Wrigley Field in September 2010.

The defendant, Sami Samir Hassoun, pleaded guilty to one count each of attempted use of a weapon of mass destruction and attempted use of an explosive device, resolving charges that have been pending since he was arrested during the very early morning on Sept. 19, 2010. The purported bomb was actually an inert device that was provided by undercover FBI agents, who were investigating and monitoring Hassoun’s proclaimed determination to commit acts of violence in Chicago for monetary gain and to cause local political instability.

As a result of the undercover investigation, Hassoun never posed any actual imminent danger, but his plea agreement makes clear that he intended to cause mass casualties and had rejected opportunities to walk away from the plot. He chose the particular location, in the 3500 block of North Clark Street, because it presented the opportunity to inflict a greater number of casualties than other locations he considered. There was a concert at Wrigley Field on Saturday night, Sept. 18, 2010, just before he was arrested.

Hassoun, 24, formerly of the city’s north side, remains in federal custody while awaiting sentencing, which U.S. District Judge Robert Gettleman scheduled for 10 a.m. on Aug. 15, 2012. Hassoun is a Lebanese citizen and permanent resident alien. Under the plea agreement, the government will recommend a sentence of 30 years in prison, and the court must impose a sentence of at least 20 years and no more than 30 years, or reject the plea agreement. The agreement also requires Hassoun to cooperate with the government in any matter in which he is called upon to assist.

The guilty plea was announced by Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, and Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the FBI. The investigation was conducted by the Chicago FBI’s Joint Terrorism Task Force, which consists of FBI special agents, Chicago police officers and representatives from 20 federal, state and local law enforcement agencies.

According to the plea agreement, Hassoun told a law enforcement cooperating source (CS) in early June 2010 that he wanted to commit acts of violence in Chicago and suggested bombing the commercial area surrounding Wrigley Field as one option. Hassoun said that an attack against such an entertainment center could “paralyze” Chicago commerce. The CS told Hassoun that he/she had friends who might be willing to pay Hassoun to perpetrate such an attack. Hassoun and the CS continued to discuss Hassoun’s terrorist attack ideas during the following weeks, and Hassoun indicated that he wanted to meet the CS’s contacts and was anxious to act against Chicago.

On July 8, 2010, the CS introduced Hassoun to an undercover FBI task force officer posing as one of the CS’s purported contacts, and Hassoun said that he believed that a series of escalating violent acts could be used to undermine the city’s political establishment. When asked what he was personally willing to do, Hassoun indicated that he was willing to facilitate a car bombing or the assassination of Chicago police officers. When asked if he was concerned about the victims of such violence, Hassoun said that casualties were the inevitable result of what he termed “revolution.”

On July 21, 2010, an undercover FBI agent was introduced to Hassoun as a “good friend” and “brother,” and Hassoun discussed his idea of a series of escalating violent attacks to damage Chicago’s sense of security, its economy and trust in leadership. He identified Chicago entertainment establishments, civic buildings, commercial high-rises and transportation infrastructure as potential targets, the plea agreement states.

During this meeting, the undercover agents gave Hassoun a digital camcorder to videotape potential targets. Hassoun traveled to the area around Wrigley Field and filmed potential targets on Aug. 8, 12 and 14, 2010, focusing on the bars, restaurants and potential security in the area. As he filmed, Hassoun commented on the potential tactical advantages and risks of perpetrating at attack at the various locations he observed. Also during the July 21 meeting, Hassoun asked the undercover agents effectively to employ him planning the bombing, and from July 21 to Sept. 18, 2010, they paid Hassoun $2,700.

On Aug. 16, 2010, Hassoun met with the agents and debriefed them on his reconnaissance efforts. He gave them the camcorder and after reviewing the videos, they all discussed the areas that could be targeted to cause maximum casualties with minimum operational difficulty and risk. On Aug. 31, 2010, Hassoun and the undercover agents traveled to Hassoun’s chosen location, which Hassoun said would be crowded with bar patrons.

At a prearranged meeting on the night of Sept. 18, 2010, at a hotel in Rosemont, Ill., the undercover agents provided Hassoun with a shopping bag and a backpack that contained the purported bomb. While driving together to the target area, one of the agents explained to Hassoun that the bomb was surrounded by ball-bearings and that its blast could destroy up to half a city block. As they approached the area, an agent told Hassoun that he was setting the bomb’s timer for 30 minutes, but Hassoun said that was too long. The agent then set the timer for approximately 20 minutes and activated the purported bomb’s arming mechanism in Hassoun’s presence. They arrived near the target location at approximately 12:10 a.m. on Sunday Sept. 19 and parked about a block away. As planned, Hassoun exited the vehicle with the shopping bag containing the backpack and purported explosive device, walked a short distance, and deposited what he thought was the armed bomb into the trash container on the crowded sidewalk.

The government is being represented by Assistant U.S. Attorneys Joel Hammerman and Tinos Diamantatos.

hassoun plea final.pdf

nationalsecuritylaw correction – 3 Uighurs remain at GTMO FW: uighurs transferred GTMO to…

April 19, 2012

Sorry for the confusion – I was under the impression that there were only 2 Uighurs still at GTMO, but am told that this is wrong, and that three more remain.

From: Robert Chesney []
Sent: Thursday, April 19, 2012 2:25 PM
Subject: [nationalsecuritylaw] uighurs transferred GTMO to…

…El Salvador. It has been quite a while since I’ve circulated one of these notices, which were once a staple of this listserv. In this case, the transfer marks the end of a very long saga involving the famous Uighur detainees at GTMO. From DOD’s press release:

nationalsecuritylaw uighurs transferred GTMO to…

April 19, 2012
…El Salvador. It has been quite a while since I’ve circulated one of these notices, which were once a staple of this listserv. In this case, the transfer marks the end of a very long saga involving the famous Uighur detainees at GTMO. From DOD’s press release: