nationalsecuritylaw training opportunity for students: IHL Student Workshop Jan 3-6, 2013

October 25, 2012

This looks like a really great opportunity for students. Please spread the word:

The Miller Institute for Global Challenges and the Law and the International Committee of the Red Cross is sponsoring a three-and-a-half day workshop on International Humanitarian Law (IHL) for students. The workshop will be held on January 3-6, 2013 at the Berkeley Law School and is FREE for students.

Application deadline: Friday, November 9, 2012

For more information and to download an application, please see the workshop’s website (mgcl).

* * *
This workshop combines lectures and hands-on exercises that guide U.S. law students through an intensive workshop on international humanitarian law (IHL), or the law of war. The workshop will be led by legal professionals from the International Committee of the Red Cross, lawyers for the U.S. Armed Forces, and law professors who specialize in IHL.

Topics will include:
• Introduction to International Humanitarian Law
• When Does IHL Apply?
• Human Rights and IHL
• Protected Persons
• Internment/Detention
• Armed Conflicts of a Non-International Character
• The IHL/Terrorism Interface
• Implementation and Enforcement of IHL

The IHL Workshop will be will be held from January 3-6, 2013 (all-day sessions on January 3-5, and a half-day session on January 6) at Boalt Hall School of Law on the UC Berkeley campus.

The workshop is FREE and open only to students matriculated at a U.S. law school. Because there is no registration or other fee, the only cost for students will be for travel, lodging, and meals.

Registration is limited and competitive. Students are encouraged to apply early, as the workshop does fill up. A maximum of 40 students may attend. Students will receive a Certificate of Completion from the ICRC.

The application deadline is Friday, November 9, 2012. Applicants will be notified before Thanksgiving break (November 22).

student ihl workshop–flyer.pdf

nationalsecuritylaw Upcoming event (the next 3 days in fact): International Law Weekend

October 25, 2012

nationalsecuritylaw United States v. Corkins (D.D.C.)

October 24, 2012

From DOJ’s press release:




WASHINGTON – A federal grand jury today returned a superseding indictment against Floyd Lee Corkins II, charging him with several new offenses, including a District of Columbia charge of committing an act of terrorism, in the shooting last summer of a security guard at the Family Research Council.

The superseding indictment was announced by U.S. Attorney Ronald C. Machen Jr., James W. McJunkin, Assistant Director of the FBI’s Washington Field Office, and Cathy L. Lanier, Chief of the Metropolitan Police Department (MPD).

Corkins, 28, of Herndon, Va., has been in custody since his arrest soon after the Aug. 15, 2012, shooting. He initially was indicted a week later, in the U.S. District Court for the District of Columbia, for the federal offense of interstate transportation of a firearm and ammunition, along with the District of Columbia offenses of assault with intent to kill while armed and possession of a firearm during a crime of violence. He has pleaded not guilty in the case.

The superseding indictment incorporates the three previously filed charges and adds seven District of Columbia offenses, including one count each of committing an act of terrorism while armed, attempted murder while armed, aggravated assault while armed and second-degree burglary while armed, and three counts of possession of a firearm during a crime of violence.

This marks the first time that a defendant has been charged with committing an act of terrorism under the District of Columbia’s Anti-Terrorism Act of 2002. The law’s definitions of terrorism include an act or actions committed with the intent to “intimidate or coerce a significant portion of the civilian population of the District of Columbia or the United States.” The charge is punishable by up to 30 years in prison.

According to the government’s evidence, on Aug. 15, 2012, at about 10:45 a.m., the defendant entered the office of the Family Research Council, at 801 G Street NW, and encountered an unarmed security guard. The defendant retrieved a firearm from his backpack, pointed it at the security guard, and opened fire, striking the guard in the arm. After being wounded, the security guard wrestled the firearm away from the defendant and subdued him.

Corkins is scheduled to appear in court on Friday, Oct. 26, 2012, before the Honorable Richard W. Roberts.

An indictment is merely a formal charge that a defendant has committed a violation of criminal laws and every defendant is presumed innocent until, and unless, proven guilty.

In announcing the charges, U.S. Attorney Machen, Assistant Director McJunkin and Chief Lanier expressed their appreciation to all those who investigated the case from the FBI’s Washington Field Office and the MPD. The case is being prosecuted by Assistant U.S. Attorneys T. Patrick Martin and Ann Petalas of the National Security Section of the U.S. Attorney’s Office.

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nationalsecuritylaw forthcoming scholarship

October 20, 2012

Computer Network Operations and U.S. Domestic Law: An Overview

Robert Chesney (University of Texas School of Law)
International Law Studies (Naval War College) (forthcoming 2013)

Computer Network Operations (“CNOs”) famously give rise to a number of international law complications, and scholars have duly taken note. But CNOs also raise important questions under the heading of U.S. domestic law, particularly when the government does not intend for its sponsoring role to be apparent or acknowledged. This brief essay, which builds on my prior work exploring the convergence of military and intelligence activities, introduces readers to four of the most important domestic law questions raised by CNOs. First, must Congress be notified of a given CNO, and if so, which committee should receive that notice? Second, must the CNO in question be authorized by the President himself, or can authority be moved down the chain to other officials—or perhaps even automated? Third, what is the affirmative source of domestic law authority for the executive branch to conduct various types of CNO? Fourth, and finally, does categorizing a CNO as covert action subject to Title 50 carry with it a green light (from a domestic law perspective) to violate international law?

The Role of Counterterrorism Law in Shaping Ad Bellum Norms for Cyber War

William Banks

Syracuse University College of Law

Most cyber-intrusions now and in the foreseeable future will take place outside the traditional consensus normative framework for uses of force supplied by international law. For the myriad, multi-layered and multi-faceted cyber-attacks that disrupt but do not destroy, whether state-sponsored or perpetrated by organized private groups or single hacktivists, much work remains to be done to build a normative architecture that will set enforceable limits on cyber intrusions and provide guidelines for responses to disruptive cyber-intrusions. In this paper, my interest is directed at a subset of those cyber-attacks – those where terrorists are responsible or attribution is not known but points in terrorists’ direction, and where the effects are very disruptive but not sufficiently destructive to cross the traditional LOAC and Charter self-defense thresholds.

For this subset of cyber attacks, counterterrorism law may offer a useful complementary normative supplement to LOAC and the Charter. Especially over the last decade, a corpus of counterterrorism law has evolved as domestic and international law in response to transnational terrorism. In contrast to the dominant pre-September 11 conception that countering terrorism involved either the use of military force or enforcement of the criminal laws, counterterrorism law now incorporates a diverse range of responses to terrorism, many of which are borrowed, sometimes in modified form, from existing international and domestic law. Based on a maturing international legal regime, this article concludes that over time and through state practice, along with legal, strategy and policy development in the international community a set of counterterrorism law norms for cyber war could emerge.

"Cyberattacks and the Covert Action Statute: Toward a Domestic Legal Framework for Offensive Cyberoperations"

111 Michigan Law Review, No. 3, Forthcoming 2012

AARON BRECHER, University of Michigan Law School – JD Candidate Author
Email: abrecher

Cyberattacks are capable of penetrating and disabling vital national infra-structure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks’ unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. The trouble is that it is unclear which domestic legal framework should govern these attacks. The military and intelligence communities have disputed which of their respective legal regimes should control. The choice between the frameworks raises important issues about the policy benefits of the executive branch keeping Congress informed regarding cyberattacks that it conducts. It also raises constitutional questions about the branches’ respective roles in warmaking when the chosen course of conduct blurs the line between an intelligence operation and an act of war. This note argues that, in the absence of an independent congressional authorization to use force against a target, the covert action statute, which demands written reports from the president to the congressional intelligence committees in advance of operations, should presumptively govern, and that the president should issue an executive order to that effect.

"Cyber Attacks: Proportionality and Precautions in Attack"

ERIC TALBOT JENSEN, Brigham Young University School of Law
Email: jensene

Malicious cyber activities are becoming more and more commonplace, including between nations. This has caused great speculation as to the rules that govern military cyber operations, particularly during armed conflict. The upcoming publication of the Tallinn Manual on the International Law Applicable to Cyber Warfare is indicative of the importance of this discussion. This article analyzes the application of the law of armed conflict principles of proportionality and precautions to cyber operations, including reference to the Tallinn Manual. In most cases, the existing law provides a clear paradigm to govern cyber activities. However, this article identifies several areas where governments and military operators might question how to apply these principles to a specific cyber operation. In these areas, greater precision is needed to provide clear guidance to those who plan, order, and conduct cyber operations.

The Paradox of Counterterrorism Sunset Provisions

Emily Berman

Brooklyn Law School

81 Fordham L. Rev. (2013 Forthcoming)

Since 9/11, legislators and commentators alike have hailed expiration dates — or “sunset provisions” — as a means to moderate the government’s tendency to curtail individual freedoms in response to security crises. Sunsets’ advocates explain that they provide Congress with an opportunity to reevaluate counterterrorism legislation after the crisis atmosphere has passed, enabling legislators to adjust any policy whose infringement on civil liberties appears, in retrospect, unjustified by its benefits.

This article demonstrates that, rather than guarding against the long-term entrenchment of overly robust security measures, sunsets have the opposite effect. The article begins by illustrating that Congress’s high expectations for counterterrorism sunsets have not been borne out by their impact. It then explains that the failure of sunsets to prompt meaningful reevaluation of post-crisis counterterrorism measures stems from two sources. First, optimism over sunsets’ potential relies on several inaccurate assumptions about how the state of the world will change between the time a statute is enacted and its sunset date. And second, it fails to account for the President’s outsized role in counterterrorism policymaking. Finally, the article identifies sunsets’ hidden cost: paradoxically, by insisting on including sunset provisions, legislators concerned about overzealous counterterrorism legislation actually facilitate the enactment of such statutes. And as sunsets do not subsequently correct overzealous policy, they enable the long-term entrenchment of the very policymaking errors they are designed to prevent. The article concludes that citizens and legislators concerned about the civil liberties costs of counterterrorism policy should reject claims that sunsets are an effective answer to those concerns.

Homeland Security and the Inmate Population: The Risk and Reality of Islamic Radicalization in Prison

Aaron J. Rappaport

University of California, Hastings College of the Law

Tinka M. Veldhuis

University of Groningen – Department of Sociology

Amos N. Guiora

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


Since 9/11, commentators and policy makers have expressed alarm about an emerging threat within the prison systems of the West — a threat of terrorist attacks carried out by radicalized inmates released into society. This chapter explores what we know about the risk of Islamic radicalization in prison and the effectiveness of policies that have been implemented in response to that risk. Although the principal focus of this study is the United States, the approaches of several European nations — the U.K., France, Spain, and the Netherlands — are considered where relevant.

Our conclusion is a largely negative one: We know very little about the degree of risk posed by radicalization in the prison system. Indeed, little is known about even the most basic details of the issue, such as the number of Muslims in the prison system or their demographics. A similar conclusion can be made about the current policy response of governments to the perceived risk. Commentators have listed a range of options for responding to the threat of radicalization, including increased screening of Muslim chaplains in prison, restrictions on religious literature available to inmates, and the segregation of radicalized offenders. Although some of these changes may seem commonsensical, and all appear well-intentioned, there remains a significant lack of careful thinking about the rationales for many widely shared prescriptions.

Our ultimate conclusion is that a broad-based commitment is needed on the part of Western governments to gather evidence about the real risks of radicalization in prison and to formulate a coordinated response after that evidence has been gathered. This will require change in orientation within the United States, in particular, which has lagged behind Britain and other nations in collecting this kind of information. In light of the powerful emotions that are provoked by the fear of prison radicalization, the failure to move ahead with this kind of research effort will mean that policy will inevitably be carried along not by reason, but by the political passions inevitably at play.

nationalsecuritylaw Upcoming event: Georgetown/ICRC Panel

October 19, 2012

The ICRC and Georgetown Law’s NSLS are Co-Hosting a Panel on Detention in a Non-International Armed Conflict

Panelists Include:

Professor Jen Daskal – Fellow for the Center on Law and National Security, Georgetown University Law Center

Daniel Cahen – Legal Advisor to the ICRC

Raha Wala – Advocacy Counsel at Human Rights First, Law and Security Program

William K. Lietzau – Defense Department, Deputy Assistant Secretary of Defense for Detainee Policy


Wednesday, October 31st, 3-5pm

Georgetown Law, Gewirz – 12th Floor

*Reception to follow

Facebook event link:


nationalsecuritylaw corrected post for al Maqaleh and Hamidullah

October 19, 2012

Well, I have no idea why my last post came through garbled. Here are the links to the two decisions:

nationalsecuritylaw Al Maqaleh v. Gates, Hamidullah v. Obama (D.D.C. Oct. 19, 2012)

October 19, 2012

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nationalsecuritylaw Note re US v. Nafis post — should be EDNY not SDNY

October 17, 2012

nationalsecuritylaw United States v. Nafis (SDNY Oct. 17, 2012)

October 17, 2012

From the DOJ press release (see also attached complaint):


United States Attorney Loretta E. Lynch

Eastern District of New York


nationalsecuritylaw United States v. Arbabsiar (S.D.N.Y. Oct. 17, 2012) (guilty plea)

October 17, 2012

From DOJ’s press release (see also the attached plea documents):

Arbabsiar, Manssor Plea Agreement.pdf
Arbabsiar Superseding Information.pdf