Also from DOJ’s press release:
nationalsecuritylaw forthcoming scholarship – my article on legal consequences of al Qaeda’s fragmentationAugust 30, 2012
With apologies for the shameless self-promotion: I’m happy to report that I’ve recently completed drafting an article that has been much on my mind for the past few years. Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN. In it, I argue that (i) there is a widespread perception that the legal framework for detention and targeting has reached a point of relative stability thanks to a remarkable wave of interbranch and inter-party consensus since 2008; (ii) this facade depends almost entirely on the existence of a large-scale combat deployment to Afghanistan and a presumption that there exists some degree of clarity as to identity and organizational boundaries of the opponents against whom detention and force may be used; (iii) this facade is crumbling in the face of long-term strategic trends including the fragmentation of al Qaeda and the U.S. government shift toward shadow war; and (iv) all of this will have a profoundly disruptive effect on the status quo legal architecture. I mean the paper to be something of a wake-up call for policy-makers and legislators, and am happy to hear from readers with their criticisms or suggestions. In any event, the complete abstract is here (and the paper itself is available by clicking on the link above):
By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan as to which the law of armed conflict clearly applies, and the existence of a relatively-identifiable enemy in the form of the original al Qaeda organization.
Several long-term trends contribute to the erosion of these stabilizing factors. Most obviously, the overt phase of the war in Afghanistan is ending. At the same time, the U.S. government for a host of reasons places ever more emphasis on what we might call the “shadow war” model (i.e., the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world). The original Al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation, one upshot of which has been the proliferation of loosely-related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership.
These shifts in the strategic posture of both the United States and al Qaeda profoundly disrupt the stability of the current legal architecture upon which military detention and lethal force rest. Specifically, they make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding just whom these activities lawfully may be directed against. Critically, they also all but guarantee that a new wave of judicial intervention to consider just those questions will occur. Bearing that in mind, I conclude the paper by outlining steps that could be taken now to better align the legal architecture with the trends described above.
nationalsecuritylaw United States v. Hammadi (W.D. Kentucky) (Aug. 21, 2012) (guilty plea in insurgent support case relating to Iraq)August 22, 2012
From DOJ’s press release:
LOUISVILLE, Ky. – Iraqi citizen Mohanad Shareef Hammadi pleaded guilty to federal terrorism charges today in U.S. District Court for the Western District of Kentucky before Senior Judge Thomas B. Russell, announced Lisa Monaco, Assistant Attorney General for National Security; David J. Hale, U.S. Attorney for the Western District of Kentucky; and Perrye K. Turner, Special Agent in Charge of the FBI Louisville Division.
Hammadi, 24, a former resident of Iraq, pleaded guilty to all counts of a 12-count superseding indictment. The superseding indictment charged him with five counts of attempting to provide material support to terrorists and four counts of attempting to provide material support to al-Qaeda in Iraq (AQI), a designated foreign terrorist organization. The superseding indictment also charged him with one count of conspiracy to transfer, possess and export Stinger missiles and with two counts of making false statements in immigration matters. Hammadi was first indicted on May 26, 2011 and was subsequently charged in a superseding indictment returned on Feb. 15, 2012 by a federal grand jury meeting in Bowling Green, Ky.
Hammadi faces a maximum sentence of life in prison under the sentencing guidelines and a mandatory minimum of 25 years in prison. Hammadi’s sentencing is scheduled for Dec. 5, 2012, in U.S. District Court in Bowling Green before Senior Judge Russell at 11:30 am.
Hammadi’s co-defendant, Waad Ramadan Alwan, pleaded guilty to all counts of the 23-count indictment on Dec. 16, 2011, before Senior Judge Russell in Bowling Green. Alwan was charged with conspiracy to kill U.S. nationals abroad; conspiracy to use a weapon of mass destruction (explosives) against U.S. nationals abroad; distributing information on the manufacture and use of Improvised Explosive Devices (IEDs); attempting to provide material support to terrorists and to AQI; as well as conspiracy to transfer, possess and export Stinger missiles.
Hammadi and Alwan were both arrested on May 25, 2011, in Bowling Green on criminal complaints. Both defendants were closely monitored by federal law enforcement authorities in the months leading up to their arrests. Neither was charged with plotting attacks within the United States.
“Today’s guilty plea is another testament to the effectiveness of the intelligence and law enforcement communities in bringing terrorists to justice and preventing them from harming the American people,” said Lisa Monaco, Assistant Attorney General for National Security. “I applaud all those responsible for this successful outcome.”
“In open court today, Mohanad Hammadi admitted to engaging in terrorist activities here in the United States. He admitted that he tried to send numerous weapons from Kentucky to Iraq to be used against American soldiers,” said U.S. Attorney Hale. “Bringing Hammadi to justice is the result of a comprehensive law enforcement effort. The FBI agents of the Louisville Division, along with the federal and local law enforcement members of the Joint Terrorism Task Forces here in Kentucky, including the Bowling Green Police Department, and our many other partners, are to be commended. Their collaborative law enforcement effort successfully thwarted the ongoing intentions of an experienced terrorist. The guilty plea today sends a strong message to anyone who would attempt similar crimes that they will face the same determined law enforcement and prosecution efforts.”
“Protecting the United States from terrorist attacks remains the FBI’s top priority,” said Perrye K. Turner, Special Agent in Charge of the FBI in Kentucky. “Using our growing suite of investigative and intelligence capabilities, FBI Agents and Analysts assigned to our Bowling Green office were able to neutralize a potential threat. Our local Joint Terrorism Task Force, comprised of FBI Agents and other local, state and federal agencies from across the Commonwealth, remains committed to dismantling extremist networks and cutting off financing and other forms of support provided by terrorist sympathizers, whether they are operating in Kentucky or worldwide.”
According to the charging documents, Hammadi entered the United States in July 2009, and after first residing in Las Vegas, moved to Bowling Green. Alwan entered the United States in April 2009, and has lived in Bowling Green since his arrival.
According to court documents in this case, the Bowling Green office of the FBI’s Louisville Division initiated an investigation of Waad Ramadan Alwan, which, beginning in 2010, utilized a confidential human source (CHS). The CHS met with Alwan and recorded their meetings and conversations beginning in August 2010. The CHS represented to Alwan that he was working with a group to ship money and weapons to Mujahadeen in Iraq. Mujahadeen generally refers to Muslim fighters or warriors engaged in jihad. From September 2010 to January 2011, Alwan participated in deliveries of weapons and money that he believed were destined for terrorists in Iraq.
In January 2011, Alwan recruited Hammadi, a fellow Iraqi national living in Bowling Green, to assist in these material support operations. Beginning in January 2011, and continuing until his arrest in late May 2011, Hammadi participated with Alwan in money and weapons deliveries that he believed were destined for terrorists in Iraq, including AQI. Hammadi also detailed to the CHS his prior activities as an insurgent in Iraq, including his prior participation in IED attacks against U.S. troops in Iraq. After his arrest on May 25, 2011, Hammadi admitted to his participation in the purported material support operations involving weapons and money that occurred between January and May, 2011. Hammadi also admitted his involvement in insurgent activities while living in Iraq, including his membership in an insurgent group and his participation in various attacks on U.S. troops in Iraq.
None of the weapons, including Stinger missiles, nor any of the money delivered by Alwan or Hammadi in connection with the CHS in the United States were provided to AQI, but instead were carefully controlled by law enforcement as part of the undercover operation.
This case is being investigated by the Louisville Division of the FBI. Assisting in the investigation were members of the Louisville and Lexington Joint Terrorism Task Forces, U.S. Immigration and Customs Enforcement, U.S. Marshals Service, U.S. Department of Defense, U.S. Citizenship and Immigration Services and the Bowling Green Police Department.
The prosecution is being handled by Trial Attorney Larry Schneider from the Counterterrorism Section of the Justice Department’s National Security Division, and Assistant U.S. Attorneys Michael Bennett and Bryan Calhoun from the U.S. Attorney’s Office for the Western District of Kentucky.
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nationalsecuritylaw new edition of Kris & Wilson’s National Security Investigations and ProsecutionsAugust 20, 2012
Please see attached.
nationalsecuritylaw reading recommendations for courses on drone surveillance and terrorism sentencingAugust 15, 2012
Longtime listservers know I don’t normally permit use of the list for member queries, but this one is very interesting, so here goes:
Professor Steven Morrison writes to solicit your collective thoughts on what readings to assign with respect to two very innovative seminars he is planning. If you have thoughts, please don’t write back to me or to the list, but rather write directly to him at steven.r.morrison. Steve writes:
This semester I will be running two seminars–one on (domestic) drone surveillance and the Fourth Amendment, and one on the sentencing of terrorism defendants. I’m wondering if you would be willing to facilitate a bit of crowdsourcing. I have a good idea of what sources I’d like to use, but might you be able to put a shout out on the national security listserv for suggested readings? These two seminars are outgrowths of my work in these areas for NACDL. If this isn’t appropriate for the listserv, I perfectly understand, but I’d still like to hear your thoughts on good readings.
nationalsecuritylaw Obaydullah v. Obama (D.C. Cir. Aug. 3, 2012) (affirming denial of GTMO habeas petition)August 13, 2012
A divided panel of the DC Circuit has affirmed dismissal of the habeas petition brought be GTMO detainee Obaydullah. The opinion is posted here. The majority and dissent on the panel divided over a question of jurisdiction and timing (i.e., whether Obaydullah’s appeal was timely—the majority concluded that it was, and therefore went on to reach the merits and rule against Obaydullah).
nationalsecuritylaw United States v. Brehm (4th Cir. Aug. 10, 2012) (affirming application of MEJA to non-citizens abroad)August 12, 2012
Click here for the 12-page opinion affirming that the Military Extraterritorial Jurisdiction Act properly was applied to a South African citizen charged with assaulting a British man at Kandahar Airfield (both men were NATO contractors at the time).