nationalsecuritylaw job openings

May 28, 2012

From a listmember:

Durham University in northeast England has just posted seven academic positions at the professor/reader level in areas relating to national and regional security, land and maritime boundaries, and defense, peace and conflict studies.

The University, and especially its International Boundaries Research Unit, has a long history of practice and scholarship in boundary and security issues. Durham is one of Britain’s great universities and is in one of England’s most beautiful cities. I am told that they are looking for both established scholars and rising young stars. This appears to me to be a huge investment by the university in a field where it already had a significant presence.

For details, go to this website — http://www.joindurham.com/

Click on the dropdown menu under Search Vacancies. Then, under Social Sciences and Health, select the Global Conflict line. This will take you to the seven postings.

Note that the application period closes on the eighth of June, not on August 6.


nationalsecuritylaw United States v. Abdo (W.D. Tex. May 24, 2012) (conviction in bomb plot)

May 25, 2012

A conviction today on all counts in another case arising in Texas, this one involving a bomb plot. Details from the DOJ press release:

WACO, Texas – A jury this afternoon in Waco convicted 22-year-old Naser Jason Abdo on federal charges in connection with a July 2011 bomb plot in Killeen, Texas. The conviction was announced by U.S. Attorney Robert Pitman and FBI Special Agent in Charge Armando Fernandez.

The jury convicted Abdo of one count of attempted use of a weapon of mass destruction; one count of attempted murder of officers or employees of the United States, two counts of possession of a firearm in furtherance of a federal crime of violence; and, two counts of possession of a destructive device in furtherance of a federal crime of violence.

Testimony presented at trial revealed that on July 27, 2011, Abdo unlawfully attempted to create and detonate a bomb in an attempt to kill, with pre-meditation and malice aforethought, members of the uniformed services of the United States and to shoot survivors of said detonation with a firearm. Evidence further revealed that Abdo did knowingly possess a .40 caliber semi­automatic pistol while carrying out his plot.

“It’s important to note that this plot was interrupted and a potential tragedy prevented because an alert citizen notified law enforcement of suspicious activity, triggering prompt investigation and intervention. While we in law enforcement will be aggressive in investigating and prosecuting people like Mr. Abdo, we depend on the vigilance of the public in helping ensure the safety of the community,” said U.S. Attorney Robert Pitman.

Officers with the Killeen Police Department arrested Abdo on July 27, 2011. At the time of his arrest, the defendant, an absent without leave (AWOL) soldier from Fort Campbell, Ky., was in possession of the handgun, plus instructions on how to build a bomb as well as bomb making components. Testimony during the trial revealed that Abdo intended to detonate the destructive device inside an unspecified restaurant frequented by soldiers from Fort Hood.

“This verdict confirms the collective efforts by all of our partners on the FBI’s Joint Terrorism Task Force (JTTF) to address terrorism in any shape or form, whether it be by one or by many,” said FBI Special Agent in Charge Armando Fernandez.

Abdo remains in federal custody. He faces up to life in federal prison for the attempted use of a weapon of mass destruction charge; up to 20 years in federal prison for the attempted murder charge; a mandatory 30 years in prison for each possession of a destructive device in furtherance of a federal crime of violence charge; and a mandatory five years in federal prison for each possession of a firearm in furtherance of a federal crime of violence charge. Sentencing is scheduled for 9:00am on July 20, 2012, before U.S. District Judge Walter S. Smith.

This case is being investigated by agents with the FBI together with U.S. Army Criminal Investigation Command; Bureau of Alcohol, Tobacco, Firearms and Explosives; Killeen Police Department; and the Texas Department of Public Safety.

Assistant U.S. Attorneys Mark Frazier and Gregg Sofer of the Western District of Texas and Trial Attorney Larry Schneider of the Justice Department’s Counterterrorism Section are prosecuting this case on behalf of the government.

# # #

DO NOT REPLY TO THIS MESSAGE. IF YOU HAVE QUESTIONS, PLEASE USE THE CONTACTS IN THE MESSAGE OR CALL THE OFFICE OF PUBLIC AFFAIRS AT 202-514-2007.


nationalsecuritylaw United States v. Bujol (S.D.Tex. May 24, 2012) (20 year sentence in AQAP material support case)

May 24, 2012

From DOJ’s press release:

HOUSTON – Barry Walter Bujol Jr., a 30-year-old Hempstead, Texas, resident and former student at Prairie View A&M University, has been sentenced to serve 20 years in federal prison, U.S. Attorney for the Southern District of Texas Kenneth Magidson announced today, along with Lisa Monaco, Assistant Attorney General for National Security. Bujol was convicted Nov. 14, 2011, of attempting to provide material support to Al Qaeda in the Arabian Peninsula (AQAP), a designated foreign terrorist organization.

Just moments ago, U.S. District Judge David Hittner handed Bujol the statutory maximum sentence, ordering him to serve 180 months in prison for attempting to provide material support to AQAP and 60 months in prison for aggravated identity theft, which will be served consecutively, for a total sentence of 240 months in prison.

“We do not take matters of potential national security lightly,” said U.S. Attorney Magidson. “This case and its successful resolution represents our commitment to making our communities a safer place to live.”

Bujol requested a bench trial before Judge Hittner which lasted nearly four days, during which he acted as his own attorney. The United States presented a total of 325 trial exhibits and 12 witnesses which resulted in Bujol’s convictions for both attempt to provide material support or resources to a designated foreign terrorist organization as well as aggravated identity theft.

Evidence revealed Bujol had asked Anwar Al-Aulaqi, a now-deceased Yemeni-American AQAP associate, for advice on raising money for the “mujahideen” without attracting police attention and on his duty as a Muslim to make “violent jihad.” Al-Aulaqi replied by sending Bujol a document entitled “42 Ways of Supporting Jihad,” which asserted that “‘jihad’ is the greatest deed in Islam…[and] obligatory on every Muslim.” Court records indicated the “jihad” Al-Aulaqi advocated involved violence and killing.

In 2009, Bujol made three attempts to depart the United States for the Middle East, but law enforcement, believing these were Bujol’s efforts to make “violent jihad,” thwarted him each time he tried to leave. Bujol eventually told a confidential source he desired to fight with the “mujahideen.” The source testified at trial, explaining that each time he told Bujol he would be joining AQAP, Bujol replied by saying “God willing” in Arabic.

To prove his worth to the source and AQAP, Bujol performed numerous purported “training exercises” often involving surveillance detection and covert means of communication. Moreover, Bujol repeatedly told the source that AQAP should attack the human beings essential to operate military unmanned aerial vehicles (UAVs) instead of attacking the UAVs themselves. Bujol suggested multiple targets, including one in the Southern District of Texas.

Bujol was arrested on May 30, 2010, after boarding a ship docked at the Port of Houston. He believed the ship was bound for Algeria where he would stay at an Al Qaeda safe house before continuing on to Yemen. Bujol intended to stow away to join AQAP and to deliver items to AQAP that a confidential source had given him. The items included two public access restricted military manuals, global position system receivers, pre-paid international calling cards, SIM cards and approximately 2,000 in Euros, among other items. Bujol secured these items in his baggage and quickly boarded the ship. Minutes after stowing away in a room on board the ship, agents took him into custody without incident.

Simultaneously, agents executed a search warrant on his apartment and his laptop computer. On the computer, agents found a home-made video montage of still photographs, including images of Osama bin Laden, Najibullah Zazi and multiple armed “mujahideen” fighters, which Bujol narrated. On the video, which was offered into evidence at trial, he addressed his words to his wife, explaining that he had left her suddenly and without forewarning to pursue “jihad.” Bujol told her he would likely not see her until the afterlife.

The aggravated identity theft charge, of which he was also convicted, stemmed from a false transportation worker identity card (purporting to be a card issued by the Transportation Security Administration) that Bujol possessed to access the Port of Houston. Bujol supplied the confidential source with a passport photo and a false name and the source used these materials to acquire the false card for use in the sting operation. On the night of the operation, Bujol used the false card to gain access to the port.

Bujol has been in federal custody since his May 30, 2010, where he will remain pending transfer to a U.S. Bureau of Prisons facility to be determined in the near future.

This multi-agency investigation was conducted by the U.S. Attorney’s Office for the Southern District of Texas, the Department of Justice’s Counterterrorism Section, the FBI’s Joint Terrorism Task Force in Bryan, Texas – comprised of the Brazos County, Texas, Sheriff’s Office, the Texas A&M University Police Department, the Bryan Police Department, the U.S. Secret Service, the Waller County, Texas, Sheriff’s Office and the College, Texas, Station Police Department. Other investigating agencies were the Houston FBI Joint Terrorism Task Force, the Prairie View A&M University Department of Public Safety, the New Jersey State Police, the Coast Guard Investigative Service, Homeland Security Investigations, Houston Police Department and the Canada Border Services Agency.

The case was prosecuted by Assistant U.S. Attorneys Mark McIntyre and Craig Feazel, as well as Garrett Heenan, Trial Attorney from the Counterterrorism Section of the Justice Department’s National Security Division, and former Assistant U.S. Attorney Mark W. White III.


nationalsecuritylaw forthcoming scholarship

May 23, 2012

The Extraordinary Restrictions on the Constitutional Rights of Central Intelligence Agency Employees: How National Security Concerns Legally Trump Individual Rights

Daniel L. Pines

Central Intelligence Agency
Florida State Journal of Transnational Law & Policy, Vol. 21, 2011

Employees of the Central Intelligence Agency (CIA or “the Agency”) engage in activities designed to protect the nation’s security and, at heart, its Constitution. Ironically, however, CIA employees, by dint of their employment with the Agency, are required to forego many of the very constitutional protections they fight so hard to protect. U.S. law and Agency regulations restrict the ability of CIA employees to engage in political activity, take outside employment, or travel internationally. The CIA significantly invades the privacy of its employees by requiring extensive and intrusive background checks of its employees including blood tests and polygraph examinations. The Agency even goes so far as to limit who its employees can befriend, date, and marry. To top it all off, CIA employees are greatly precluded from contesting these limitations as Congress has prohibited them from forming unions or going on strike, and the Judiciary has greatly limited the ability of Agency employees to bring claims in U.S. courts. Failure to comply with any of the above restrictions can result in disciplinary action and even termination of employment. CIA employees recognize, upon voluntarily joining the Agency, that their constitutional freedoms will be restricted to protect national security; yet few Americans realize the breadth and depth of those restrictions. This article examines the legality of the various restrictions imposed on CIA employees. It concludes that virtually all pass constitutional muster but that one – prohibiting employees from maintaining a substantial and personal relationship with any citizen from certain designated nations – could raise legal concerns.

History, Hamdan, and Happenstance: "Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy."

Haridimos V. Thravalos

Harvard National Security Journal

The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.

This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.

The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.

A Functional Approach to Targeting and Detention

Monica Hakimi

University of Michigan Law School
Michigan Law Review, Vol. 110, 2012

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the “domain method” is practically unworkable and theoretically dubious. Practically, the method breeds uncertainty and subverts the discursive process by which international law adapts to new circumstances and holds decisionmakers accountable. Theoretically, it presupposes that the domain choice, rather than shared substantive considerations embedded in the domains, drives legal outcomes. This Article argues, to the contrary, that all targeting and detention law is and ought to be rooted in a common set of core principles. Decisionmakers should look to those principles to assess when states may target or detain nonstate actors. Doing so would address the practical problems of the domain method. It would narrow the uncertainty about when targeting and detention are lawful, lead to a more coherent legal discourse, and equip decisionmakers to develop the law and hold one another accountable.


nationalsecuritylaw Hedges v. Obama (S.D.N.Y. May 17, 2012) (enjoining enforcement of NDAA section 1021)

May 17, 2012

The opinion is posted here. Short version: a group of activists, journalists, and others argued that section 1021 of the NDAA FY’12 (which purports to clarify the scope of detention authority) violates the 1st and 5th Amendments as applied to them. They have now obtained a preliminary injunction on those grounds, supported by an opinion that determines that (beware: I’m really generalizing here for brevity’s sake)

(i) they have standing (in that they already are experiencing a chilling effect from the prospect of detention, and that the government at argument declined to say that they were not in fact potentially subject to detention),

(ii) the NDAA is not simply coextensive with the 9/18/01 AUMF (on the theory that the AUMF applies only to persons linked to 9/11 whereas the NDAA encompasses “associated forces”), and

(iii) the AUMF’s “support” and “associated forces” elements are too vague and too likely to encompass protected activities.


nationalsecuritylaw re-sent for those who could not open attachment opportunity for students: Fall-Spring 2012-13 Internship at DOJ/NSD’s Office of Law & Policy

May 14, 2012

My apologies that the attached document for the DOJ internship would not open for some. Here is the content:

NATIONAL SECURITY DIVISION, OFFICE OF LAW AND POLICY

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

ATTN: Intern Program Coordinator (Office of Law and Policy)

The National Security Division’s (NSD) Office of Law and Policy, United States Department of Justice, seeks fall and spring interns for positions located in Washington, D.C.

The mission of the National Security Division is to coordinate the Department’s efforts in carrying out its top priority of preventing and combating terrorism and protecting the national security. The NSD provides legal and policy advice on national security matters, litigates counterterrorism, counterespionage and foreign intelligence surveillance matters, represents the Government before the Foreign Intelligence Surveillance Court and other federal trial and appellate courts, and conducts oversight over Federal Bureau of Investigation national security investigations and foreign intelligence collection.

The Office of Law and Policy is responsible for, among other things, resolving novel and complex legal issues relating to national security that arise from the work of the Division and other parts of the Department, including the Federal Bureau of Investigation; providing advice and guidance to Department leadership, the Intelligence Community, and other Executive Branch agencies on matters of national security law and policy; overseeing the development of legislation, guidelines, and other policies in the area of national security; working with foreign governments on a variety of national security issues; and handling appeals that arise in national security cases. The Office works with a variety of other Department components, including the Federal Bureau of Investigation, the Office of Legal Counsel, and the Office of Legal Policy, as well as other departments and agencies, such as the National Security Agency, the Central Intelligence Agency, the Department of Defense, and the Department of State.

Projected No.

of Volunteers:

Fall: 2-3

Spring: 2-3

Internship

Location(s):

Washington, D.C.
Application

Materials:

Cover letter, resume with two references, transcript (official or unofficial), and a writing sample (not to exceed ten pages). Please submit these materials AS ONE PDF via email to

office.of.law.and.policy-internship@usdoj.gov. Paper or faxed applications will not be considered.

Qualifications: Applicants must be able to obtain and maintain a security clearance. Applicants must be enrolled in an accredited U.S. law school at the time of application and throughout their internship. Strong research and writing skills are required. Prior interest or experience in the area of national security would be useful, but is not required. By the time of the internship, all applicants must have taken one or more of the following courses: Criminal Law, Criminal Procedure, or Constitutional Law. Additional courses addressing criminal law and litigation or national security or intelligence law, would also be helpful.
Application

Deadline:

Please send all applications to the email address office.of.law.and.policy-internship@usdoj.gov by COB

on the date below to be accepted, approved, and on-time for the internship:

Fall: June 1

Spring: October 1

Minimum Weeks Required: Fall Internship: September – December (minimum ten weeks)

Spring Internship: January – April (minimum ten weeks)

Salary: Internships are unpaid. If your school offers interns academic or work study, we will work with you to meet school requirements whenever possible.
Assignments: Intern projects include: researching legal questions, drafting memoranda or other legal and policy analysis, factual research, and assisting with presentations and supporting materials.
Web Site: http://www.justice.gov/nsd/

nationalsecuritylaw opportunity for students: Fall-Spring 2012-13 Internship at DOJ/NSD’s Office of Law & Policy

May 14, 2012

Please see attached.


nationalsecuritylaw United States v. Khalid (D. Maryland May 4, 2012) (guilty plea)

May 7, 2012

From DOJ’s press release (see also attached change-of-plea memo):

WASHINGTON – Mohammad Hassan Khalid, 18, a Pakistani citizen and U.S. lawful permanent resident who resided in Maryland, pleaded guilty today to conspiracy to provide material support to terrorists, stemming from his participation in a scheme to support, recruit and coordinate members of a conspiracy in their plan to wage violent jihad in and around Europe.

The guilty plea before U.S. District Judge Petrese B. Tucker in the Eastern District of Pennsylvania was announced by Lisa Monaco, Assistant Attorney General for National Security; Zane David Memeger, U.S. Attorney for the Eastern District of Pennsylvania; and George C. Venizelos, Special Agent in Charge of the Philadelphia Division of the FBI.

Khalid, aka “Abdul Ba’aree ‘Abd Al-Rahman Al-Hassan Al-Afghani Al-Junoobi W’at-Emiratee,” was charged with one count of conspiracy to provide material support to terrorists in a superseding indictment returned on Oct. 20, 2011. Khalid faces a potential sentence of 15 years in prison and a $250,000 fine at sentencing.

Khalid’s co-defendant, Ali Charaf Damache, aka “Theblackflag,” 46, an Algerian man who resided in Ireland, was charged with one count of conspiracy to provide material support to terrorists and one count of attempted identity theft to facilitate an act of international terrorism. Damache is in custody in Ireland and is being prosecuted there on an unrelated criminal charge.

“Today’s plea, which involved a radicalized teen in Maryland who connected with like-minded individuals around the globe via the Internet, underscores the evolving nature of violent extremism today,” said Assistant Attorney General Monaco. “I thank the many agents, analysts and prosecutors who helped bring about this case.”

“This case has demonstrated that age is not a limiter to threats to our nation’s security,” said U.S. Attorney Memeger. “Regardless of a defendant’s age or background, we are committed to keeping our communities and our country safe through the investigation and prosecution of violent extremist activity.”

This investigation and the guilty plea announced today underscores the continuing threat we face from violent extremism and radicalism, both from within our country and from across the world,” said FBI Special Agent in Charge Venizelos. “These threats can emerge from anywhere and from anyone, from individuals and groups in the farthest reaches of the globe or from those in the United States sitting in the perceived safety of their own homes.”

According to the plea memorandum, indictment and other court documents filed in the case, from about 2008 through July 2011, Khalid and Damache conspired with Colleen R. LaRose, Jamie Paulin Ramirez and others to provide material support and resources, including logistical support, recruitment services, financial support, identification documents and personnel, to a conspiracy to kill overseas.

LaRose, aka “Fatima LaRose,” aka “JihadJane,” pleaded guilty in February 2011 in the Eastern District of Pennsylvania to conspiracy to provide material support to terrorists, conspiracy to kill in a foreign country, false statements and attempted identity theft. Ramirez pleaded guilty in the Eastern District of Pennsylvania in March 2011 to conspiracy to provide material support to terrorists.

Khalid, Damache and others devised and coordinated a violent jihad organization consisting of men and women from Europe and the United States divided into a planning team, a research team, an action team, a recruitment team and a finance team; some of whom would travel to South Asia for explosives training and return to Europe to wage violent jihad.

As part of the conspiracy, Khalid, Damache, LaRose and others recruited men online to wage violent jihad in South Asia and Europe. In addition, Khalid, Damache, LaRose and others allegedly recruited women who had passports and the ability to travel to and around Europe in support of violent jihad. LaRose, Paulin-Ramirez and others traveled to and around Europe to participate in and support violent jihad. In addition, Khalid, LaRose and others also solicited funds online for terrorists.

For example, in July 2009, Khalid posted or caused to be posted an online solicitation for funds to support terrorism on behalf of LaRose and later sent electronic communications to multiple online forums requesting the deletion of all posts by LaRose after she was questioned by the FBI. In August 2009, Khalid sent a questionnaire to LaRose in which he asked another potential female recruit about her beliefs and intentions with regard to violent jihad. In addition, Khalid received from LaRose and concealed the location of a U.S. passport that she had stolen from another individual.

The Khalid case was investigated by the FBI Field Division in Baltimore, in conjunction with the FBI’s Joint Terrorism Task Force in Philadelphia and the FBI Field Divisions in New York and Washington, D.C. Authorities in Ireland also provided assistance in this matter.

The case is being prosecuted by Assistant U.S. Attorney Jennifer Arbittier Williams, in the Eastern District of Pennsylvania, and Matthew F. Blue, Trial Attorney from the Counterterrorism Section of the Justice Department’s National Security Division. The Office of International Affairs in the Justice Department’s Criminal Division also provided assistance.

Khalid Change of Plea Memo.pdf


nationalsecuritylaw upcoming event: CYBER WAR AND INTERNATIONAL LAW CONFERENCE, NAVAL WAR COLLEGE 25-27 JUNE 2012

May 5, 2012

From the US Naval War College:

Ladies & Gentlemen:

The United States Naval War College International Law Department and United States Cyber Command are pleased to announce the “Cyber War and International Law” conference scheduled for 25-27 June 2012. The conference will be held in the McCarty-Little Hall auditorium at the Naval War College in Newport, Rhode Island. The following information is provided for those who wish to attend.

ELIGIBILITY: Conference attendance is open to U.S. and international military members, government officials, civilians filling teaching or research positions at academic institutions, and representatives of nongovernmental organizations active in the field of conflict studies. Interested participants who do not fall within these categories may email me to be placed on a waiting list.

WEBSITE: The conference website may be found by navigating to http://www.usnwc.edu/ILDJune2012.

REGISTRATION: On-line registration is available via the above website. **Seating is limited** Please register only if you are sure you can attend. In the event your plans change, please let me know as soon as possible so we can make your seat available to another interested party. [Conference speakers, panelists, and moderators do not need to register]

AGENDA: The website contains the draft agenda. Please be advised that speakers, topics, and times in the agenda are subject to change.

TRAVEL & LODGING: It is very important that you arrange your lodging in advance. Newport is a popular summer vacation destination. As such, lodging will fill quickly. Department of Defense ID card holders and those travelling on U.S. Government orders are eligible for on-base lodging at the Naval Gateway Inns and Suites (formally the CBQ) and the Navy Lodge. However, these rooms are difficult to obtain given the increased population of resident military students aboard Naval Station Newport. If you are eligible for on-base quarters and wish to reside aboard the installation, I recommend you call early and call often. We have blocked hotel rooms at a number of off-base hotels. These hotels will provide rooms for conference participants at or near the U.S. Government rate. The conference information sheet on the website provides lodging options and travel information.

CONFERENCE EXPENSES: There is no conference fee. However, meals, refreshments, travel, and lodging are the responsibility of individual participants. Coffee, water, and other refreshments will be made available for sale during the conference. Dining venues are in walking distance of the auditorium.

BASE ACCESS: Naval Station Newport and the Naval War College are secure military facilities. Participants should be aware that they may be to security screening as a condition of entry.

CONTINUING LEGAL EDUCATION (CLE) CREDIT: The Naval War College does not coordinate CLE credit for lawyers attending the conference.

Further administrative information will be provided to registered participants via electronic mail as we get closer to the conference dates. In the meantime, do not hesitate to contact me or Ms. Jayne Van Petten at jayne.vanpetten@usnwc.edu if you have any questions.

Very respectfully,
/s/
LtCol George Cadwalader, Jr., USMC
International Law Department
Center for Naval Warfare Studies
Naval War College
686 Cushing Rd.
Newport, RI 02841
401-841-6567
Fax: 401-841-3579
Conference Advertisement 25-27 June 2012.pdf


nationalsecuritylaw forthcoming scholarship

May 4, 2012

Can the States Keep Secrets from the Federal Government?

Robert A. Mikos

Vanderbilt Law School
University of Pennsylvania Law Review, Vol. 161, Forthcoming

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information from the states. This Article provides the first in-depth analysis of the commandeering of states’ secrets. It identifies the distinct ways the federal government demands information from the states, illuminates the harms such demands cause, and challenges the prevailing wisdom that states may not keep secrets from the federal government. Perhaps most importantly, the Article argues that federal demands for information should be considered prohibited commandeering. It suggests that the commandeering of state information-gathering services is indistinguishable in all relevant respects from the commandeering of other state executive services. The Article discusses the implications such a ruling would have in our federal system, including its potential to bolster the states’ roles as sources of autonomous political power and vehicles of passive resistance to federal authority.

Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?

Amos N. Guiora

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

Ten years after the 9/11 terrorist attacks, questions remain regarding the relationship between human rights and counterterrorism. The historical track record of the Executive Branch, Supreme Court, and Congress in this vein is troubling. While the contradiction suggested in this Essay’s title need not be the case it is, nevertheless, the persistent reality in American history.

This Essay assesses the current relationship between human rights and counterterrorism. In doing so, it reflects on wartime measures implemented by presidents throughout U.S. history and recommends a way forward that facilitates more effective protection of human rights without impinging on legitimate national security considerations. Many counterterrorism measures adopted in the aftermath of 9/11, including torture, rendition, indefinite detention, and denial of habeas corpus, reflect a fundamental denial of human rights. Furthermore, evidence that the circumstances do not justify such extraordinary measures illustrate that the tension between human rights and counterterrorism requires constant vigilance. This was recently highlighted when Attorney General Eric Holder suggested that individuals suspected of involvement in terrorism be denied Miranda rights. In recommending “ways forward” this Essay analyzes how operational counterterrorism measures can meet the recommended two-part test of respect for human rights and enhancing national security without unduly minimizing one at the expense of the other. It concludes that crisis points involving national security concerns are precisely when the Judiciary must engage in active judicial review in safeguarding basic rights.

Foreign Relations, Strategic Doctrine and Presidential Power

David Gartner

Arizona State University – Sandra Day O’Connor College of Law
Alabama Law Review, Vol. 63, No. 3, p. 499, 2012

There is a central debate in foreign relations law between scholars who argue that the President inherited great power from the founding and those who contend that only after World War II was there a significant shift in the balance of powers over foreign relations. This Article highlights a third perspective by focusing on the significance of presidential assertions of power during the decade after the Spanish-American War. In this period, presidents asserted unprecedented power to dispatch the armed forces of the United States into foreign conflicts and to independently enter into binding international agreements without the participation of Congress. The Article concludes that shifting international relations, shaped by strategic foreign policy doctrine, have been central drivers of presidential assertions of authority over foreign relations.

International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law

Dan E. Stigall

U.S. Department of Justice, Office of International Affairs
Hastings International and Comparative Law Review, Vol. 35, No. 2, p. 323, 2012

With the dramatic rise in the frequency and scope of transnational criminal activity and the modern phenomenon of globalization, the interrelationship between international law and U.S. domestic law has come into sharper focus. From issues relating to international terrorism to more banal matters with distinct international dimensions, national courts in the modern era find themselves deciding cases with significant international elements and which have the potential to impact relations between sovereigns on the international plane. One area which is implicated across a broad range of legal topics and which has a natural propensity to affect international relations is the assertion of extraterritorial jurisdiction. This is due to the inherently conflict-generative nature of extraterritoriality.

In grappling with the need to address transnational issues in the context of a national legal system, domestic courts have increasingly looked to international legal principles, resulting in a level of penetration of international law in the national legal order. This Article explores the degree to which international law has permeated U.S. jurisprudence governing the exercise of extraterritorial jurisdiction over transnational criminal activity and the degree to which international law has been used by U.S. courts to limit or empower extraterritorial jurisdiction. Specific focus is given to the interrelationship between the limits imposed by international law, such as the “rule of reasonableness,” and due process limitations imposed by U.S. courts.

In reviewing a broad spectrum of U.S. judicial decisions, this Article demonstrates that the justifications for and against the exercise of extraterritorial jurisdiction in U.S jurisprudence are multifarious, revealing distinct analytical strata that are dependent upon the nature of the law being applied extraterritorially and the conduct regulated. For instance, regulatory laws impacting commercial markets have been made the subject of an analysis that is distinct from analysis applied to other forms of transnational criminal activity. Moreover, due to a split in U.S. jurisprudence, the analysis applied to that latter group of transnational crimes (those that do not impact international commercial markets), will further depend upon the judicial district.

This Article posits that the different approaches to these different sorts of legislation are entirely justifiable (and even logically necessary) due to the very obvious differences between civil actions involving U.S. antitrust law and criminal statutes that take on a transnational focus. Moreover, by understanding the role international law plays in each of these analyses, the similarities of the undergirding rationales, as well as the differences and potential dangers, policymakers and legal actors can work to clarify this otherwise discordant and fractured legal landscape and articulate a unified view of international law and limitations on the exercise of extraterritorial jurisdiction in U.S. domestic law.

Protecting Rights from Within? Inspectors General and National Security Oversight

Shirin Sinnar

Stanford University
Stanford Law Review, Forthcoming

Courts and Congress are often reluctant to constrain the executive branch when it limits individual rights in the pursuit of national security. Many scholars have argued that mechanisms within the executive branch can supply an alternative constraint on executive power – whether as a preferred alternative due to the comparative advantages of such institutions or as a second-best option necessitated by congressional and judicial abdication. Despite this interest in the “internal separation of powers,” there is very little attention to what such internal mechanisms are actually doing to protect individual rights.

I argue that Inspectors General (IGs), little noticed oversight institutions in federal agencies, are now playing a significant role in monitoring national security practices curtailing individual rights. IGs have investigated the post-9/11 detentions of immigrants, the use of National Security Letters to obtain personal records, coercive interrogations of terrorist suspects, extraordinary rendition, military monitoring of political protests, and many other controversial counterterrorism practices. Analyzing five reviews at the Departments of Justice, Homeland Security, and Defense, and the Central Intelligence Agency, I argue that these investigations varied significantly in independence and rigor. At their strongest, IG reviews provided remarkable transparency on national security practices, identified violations of the law that had escaped judicial review, and even challenged government conduct where existing law was ambiguous or undeveloped. Such reviews protected rights where courts had failed and significantly reinforced other forms of oversight. At the same time, even stronger reviews largely did not result in remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion. These case studies illuminate the potential strengths and limitations of IG rights oversight: IGs are well-suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they may avoid constitutional questions, and they rely on political actors to implement reforms. IGs can help protect individual rights against national security abuses and should be modestly strengthened, but do not displace the need for robust external oversight of the national security executive.