nationalsecuritylaw Events this week in DC

November 25, 2012

Many readers already know this, but just in case: the ABA Standing Committee on Law and National Security will be hosting its annual Review of the Field Conference this week in Washington, marking the Committee’s 50th Anniversary. The full details are posted here:

http://www.americanbar.org/content/dam/aba/events/law_national_security/22nd_annual_review_registrationform.authcheckdam.pdf

In addition, please see the attached announcement for a related event (regarding the law of national security leaks) taking place at the office of Cadwalader, Wickersham, and Taft (700 Sixth NW), from 6 to 8 pm this Wednesday night.

Practitioners’ Guide to National Security Leaks.pdf


nationalsecuritylaw United States v. Wright (N.D. Ohio Nov. 20, 2012) (sentencing)

November 21, 2012

From DOJ’s press release:

THREE MEN SENTENCED TO PRISON FOR ROLES IN PLOT

TO BOMB OHIO BRIDGE

CLEVELAND – Three men were sentenced to prison for their roles in a conspiracy to use explosives to destroy a bridge near Cleveland, said Steven M. Dettelbach, U.S. Attorney for the Northern District of Ohio, and Stephen D. Anthony, Special Agent in Charge of the Cleveland Division of the FBI.

Douglas L. Wright, 27, of Indianapolis, was sentenced to 11 ½ years in prison followed by a lifetime of supervised release.

Brandon L. Baxter, 20, of Lakewood, Ohio, was sentenced to nine years and nine months in prison followed by a lifetime of supervised release.

Connor C. Stevens, 20, of Berea, Ohio, was sentenced to eight years and one month in prison followed by a lifetime of supervised release.

All three men pleaded guilty earlier this year to conspiracy to use weapons of mass destruction, attempted use of weapons of mass destruction and malicious use of an explosive device to destroy property used in interstate commerce before U.S. District Judge David Dowd.

Anthony M. Hayne, 35, of Cleveland pleaded guilty in July to the same charges. He is scheduled to be sentenced Wednesday.

“These defendants were found to have engaged in terrorist activities and will spend nearly a decade in prison,” U.S. Attorney Dettelbach said. “These sentences should send a message that when individuals decide to endanger the safety of our community, they will be held to account.”

“In a calculated fashion, these three defendants identified a viable target, purchased what they believed to be military grade explosives and attached those explosives to that target,” FBI Special Agent in Charge Anthony said. “Not until they were safely miles away enjoying a meal did they casually attempt to remotely detonate the device believing they were causing significant damage to the bridge, all in the hopes of furthering their ideological views.

“The FBI Joint Terrorism Task Force is committed to using all lawful techniques to confront and stop any would-be terrorists from committing violent acts against our fellow citizens,” Anthony said.

Hayne, Wright, Baxter, Stevens and Joshua S. Stafford were arrested on April 30, 2012.

According to court documents, Wright, Baxter, Hayne, Stevens and Stafford are self-proclaimed anarchists who formed into a small group and considered a series of evolving plots over several months.

The initial plot involved the use of smoke grenades to distract law enforcement in order for the co-conspirators to topple financial institution signs atop high rise buildings in downtown Cleveland, according to the complaint.

The plot later developed to the utilization of explosive materials. The defendants conspired to obtain C-4 explosives contained in two improvised explosive devices to be placed and remotely detonated, according to the complaint.

The defendants discussed various bridges and physical targets in and around the Cleveland, Ohio metropolitan area over the course of several months. The final plan resulted in the Route 82 Brecksville-Northfield High Level Bridge being the designated target. This bridge crosses from Brecksville, Ohio, to Sagamore Hills, Ohio, over the Cuyahoga Valley National Park, according to the complaint.

The public was never in danger from the explosive devices, which were controlled by an undercover FBI employee. The defendants were closely monitored by law enforcement. The explosives that the defendants allegedly purchased and attempted to use were inoperable and posed no threat to the public.

Stafford’s case is pending while he undergoes an examination and competency hearing.

This case is being prosecuted by Assistant U.S. Attorneys Duncan T. Brown, Justin E. Herdman and Thomas E. Getz following an investigation by the FBI and the FBI’s Joint Terrorism Task Force.

Agencies represented on the FBI’s Joint Terrorism Task Force include: Cuyahoga County Sheriff’s Office, Federal Air Marshal Service, Cleveland Police Department, Cleveland Heights Police Department, U.S. Secret Service, U.S. Coast Guard Investigative Service, Ohio Bureau of Criminal Investigation and Intelligence, Westlake Police Department, U.S. Diplomatic Security Service, Immigration and Customs Enforcement, Customs and Border Protection, RTA Police, Ohio State Highway Patrol, Transportation Security Administration, Alcohol, Tobacco and Firearms, Shaker Heights Police Department, North Olmstead Police Department, US Postal Inspectors, and the Defense Criminal Investigative Service. Assistance in this case was also provided by the U.S. National Park Service Park Rangers, Sagamore Hills Police Department and Brecksville Police Department, and the Summit County Sheriff’s Office.

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nationalsecuritylaw Call for Papers: Journal for Terrorism and Security Analysis

November 19, 2012

CALL FOR PAPERS

9TH Annual conference on National and International

Security at the Maxwell School for Citizenship and

Public Affairs at Syracuse University

DEADLINE FOR SUBMISSIONS: JANUARY 5TH, 2013

Beyond Terror: Security in the Post-Bin Laden World

The Journal on Terrorism and Security Analysis (JTSA) is pleased to announce its 2012 call for papers for our upcoming journal publication, entitledBeyond Terror: Security in the Post-Bin Laden World. The JTSA invites paper submission to be considered for publication in this year’s journal regarding a variety of security topics, such as national or international security, intelligence, counterterrorism, and cyber security. Emphasis relating the political, legal, ethical, economic, or strategic concerns of the above topics and their relation to modern security issues, such as the post Bin-Laden dynamic and its implications, will be given serious consideration for submission.

The JTSA is a subsidiary organization of the Student Association on Terrorism and Security Analysis (SATSA) at Syracuse University and participates in the annual SATSA conference, hosted by SATSA and held at the Maxwell School of Citizenship and Public Affairs at Syracuse University. Selected authors will be invited to share their research at this year’s upcoming conference (travel expenses and hotel included) and have their papers published. Papers previously submitted to other publications are acceptable but previously published papers are not eligible for consideration. Please send only near-completed or finished drafts. Paper length should be between 2,000-10,000 words. Please send all documents as attachments preferably in Microsoft Word.

For detailed guidelines regarding submission and style requirements, please follow the link below: http://satsa.us/wp-content/uploads/2011/11/SATSA_Journal_Submission_Guidelines.pdf

Please direct all submissions to:

satsa

Direct Any Questions to:

Cory M Cali

JTSA Editor-in-Chief

cmcali

Our website may be found at:

http://jtsa.syr.edu/

The Journal on Terrorism and Security Analysis (JTSA) is the official journal of the Student Association on Terrorism and Security Analysis (SATSA) at Syracuse University. The JTSA is comprised of graduate students strongly interested in security issues. Our editorial staff consists of master’s candidates, JDs, and PhDs, that analyze, edit, and ultimately publish our final product, the annual JTSA journal. Through our association with SATSA, we are affiliated with the Maxwell School of Citizenship and Public Affairs at Syracuse University, and are supported by the Institute for National Security and Counterterrorism (INSCT), the Moynihan Institute of Global Affairs, and the Syracuse University College of Law.

Beyond Terror-Security in the Post-Bin Laden World-CALL FOR PAPERS.docx


nationalsecuritylaw forthcoming scholarship

November 18, 2012

"The Civilianization of Military Jurisdiction"

THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW IN AMERICA, John T. Parry, Song Richardson, eds., Cambridge University Press, 2013
American University WCL Research Paper No. 2012-42

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck

Most discussions of current and future issues in American criminal law and procedure tend to ignore completely the role of the military in shaping that body of jurisprudence. Perhaps this lacuna reflects widespread – if tacit – acceptance of the maxim that ‘military law is to law as military music is to music.’ Or it may represent generations of lawyers inculcated with Justice Black’s oft-quoted characterization of the U.S. court-martial system as a ‘rough form of justice.’ Regardless, the assumption appears to be that there is little for true criminal law scholars to learn from judicial proceedings presided over by jurists – and juries – in uniform.

This chapter, part of a collection of essays on the future of criminal law in America, suggests that students and scholars of criminal law would do well to pay increasing attention to the military justice system, if for no other reason than to understand and appreciate the subtle but significant expansions of military jurisdiction over the past quarter-century to encompass a growing range of offenses or offenders previously subject to the exclusive jurisdiction of the civilian courts. To that end, Part I summarizes the evolution of court-martial jurisdiction, including the Supreme Court’s 1987 decision in Solorio v. United States, holding that service members may be tried for any offense committed while in the military no matter its connection (or lack thereof) to their ‘service,’ and the recent decision by the Court of Appeals for the Armed Forces upholding the expansion of court-martial jurisdiction to also encompass at least some civilian contractors serving with or accompanying the armed forces in the field during ‘contingency operations,’ such as the U.S. deployments in Iraq and Afghanistan. Part II offers an analogous account of military commissions, documenting in detail the important expansion in the scope of their authority enmeshed within the Military Commissions Acts of 2006 and 2009, which largely untethered such tribunals’ jurisdictional limits from the international laws of war. Indeed, although the D.C. Circuit recently held that such an expansion of military jurisdiction could not be applied retroactively, at least one judge expressly endorsed Congress’s power to so provide going forward.

Part III steps back to consider the implications of these developments. Inasmuch as the civilianization of substantive military law has been seen largely as a positive development by courts and commentators, I do not think we can so quickly say the same thing about the civilianization of military jurisdiction. Although it might appear at first blush that the civilianization of substantive military law reduces the risks that might otherwise have followed from unduly expansive military jurisdiction, the chapter concludes by offering a structural defense of a principle first expressed by Justice Johnson almost 200 years ago – that, where military jurisdiction is concerned, Congress should be confined to ‘the least possible power adequate to the end proposed.’ Whether or not the civilianization of substantive military law has been a normatively desirable result, my thesis is that, in the long-term, the civilianization of military jurisdiction would be to the detriment of American constitutional law in general, and the constitutional rights of criminal defendants, in particular.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers

Paul Rosenzweig, Timothy McNulty, Ellen Shearer (eds.) (ABA Standing Committee on Law and National Security and the Medill School of Journalism, Northwestern University)

Much in America changed on September 11, 2001. One of those changes was the language of discourse in our public dialog about war and terrorism. But few realize that a robust and detailed body of law and policy lies behind that dialog. This new guide will demystify that law and policy by providing the necessary legal background and context for journalists and others who want to understand ongoing policy debates.

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:

Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.

Part II turns the focus to the military and explores questions about military organization and operations.

Part III looks at the world of domestic law enforcement and counterterrorism.

Part IV covers homeland security issues.

An added bonus: a list of experts to contact for additional background information is included in each chapter.

Bouncing the Executive’s Blank Check: Judicial Review and the Targeting of Citizens

Harvard Law & Policy Review

Samuel S. Adelsberg

The U.S. government has afforded more judicial protection to those whom it seeks to wiretap than to those whom it seeks to kill—at least in the case of Anwar al-Awlaki. After analyzing the case law relevant to the process afforded to U.S. citizens in targeting operations, the article argues that even in wartime, the President does not have a “blank check” when it comes to the rights of citizens. Despite this, the decision to target a citizen is currently made, in its entirety, within the executive branch, which has been less than forthcoming about the procedures used or the criteria considered in these determinations. The article makes the case that this targeting regime is problematic as both a constitutional and policy matter.

The normative crux of the article calls for the creation of a circumscribed court to adjudicate, ex ante, the legality of targeting operations in specific cases where there is prior knowledge that the target is a U.S. citizen. An emergency procedure would allow the government to bypass this court in certain controlled situations, but would prescribe a robust post hoc review. After responding to potential criticisms to this proposal from both civil libertarians and the military/intelligence establishment alike, the article concludes by emphasizing that only through a flexible judicial solution—a solution that is sensitive to both due process and national security concerns—can the practice of targeting citizens remain a lawful and effective tool in the ongoing confrontation with global terrorism.

The Green Arms Race: Reorienting the Discussions on Climate Change, Energy Policy, and National Security

Siddhartha M. Velandy (US Marine Corps)

Harvard National Security Journal

In the midst of a shifting international order, the U.S. Department of Defense stands uniquely positioned to intensify global innovation in the energy arena. This Article describes the mechanics by which DoD can ignite a mutually-beneficial green energy “arms race.” In this role, the military reprises a historical function of driving technological advancement, combining its operational requirements and legislative prerogatives to grow investment and create consistent demand. The Article also discusses the legal and regulatory regimes that may be enlisted and exported through transgovernmental networks to spread the benefits of the use of alternative fuels and increased energy efficiency, the potential impact of the Green Arms Race on global climate change efforts, and the limits on the impact of greening the force in bringing about positive change. The Green Arms Race has the potential to succeed where existing international and unilateral efforts to encourage efficient energy innovation and address climate change have failed.


nationalsecuritylaw United States v. Medunjanin (E.D.N.Y. Nov. 16, 2012) (life sentence)

November 17, 2012

From DOJ’s press release:

WASHINGTON – Earlier today, Adis Medunjanin, age 34, a Queens, N.Y., resident who joined al-Qaeda, then plotted and attempted to commit suicide terrorist attacks, was sentenced in the Eastern District of New York to life in prison for multiple federal terrorism offenses.

The defendant and his accomplices came within days of executing a plot to conduct coordinated suicide bombings in the New York City subway system in September 2009, as directed by senior al-Qaeda leaders in Pakistan. When the plot was foiled, the defendant attempted to commit a terrorist attack by crashing his car on the Whitestone Expressway in an effort to kill himself and others.

The sentence was announced by Loretta E. Lynch, U.S. Attorney for the Eastern District of New York, and Lisa Monaco, Assistant Attorney General for National Security.

The government’s evidence at trial in this and related cases established that in 2008, Medunjanin and his co-plotters, Najibullah Zazi and Zarein Ahmedzay, agreed to travel to Afghanistan to join the Taliban and kill United States military personnel abroad. They arrived in Peshawar, Pakistan, in late August 2008, but Medunjanin and Ahmedzay were turned back at the Afghanistan border. Within days, Medunjanin, Zazi and Ahmedzay met with an al-Qaeda facilitator in Peshawar and agreed to travel to Waziristan for terrorist training. There, they met with al-Qaeda leaders Saleh al-Somali, then the head of al-Qaeda external operations, and Rashid Rauf, a high-ranking al-Qaeda operative, who explained that the three would be more useful to al-Qaeda and the jihad by returning to New York and conducting terrorist attacks.

In Waziristan, Medunjanin, Zazi and Ahmedzay received al-Qaeda training on how to use various types of high-powered weapons, including the AK-47, PK machine gun, and rocket-propelled grenade launcher. During the training, al-Qaeda leaders, including Adnan El Shukrijumah, continued to encourage Medunjanin and his fellow plotters to return to the United States to conduct a “martyrdom” operation, and emphasized the need to hit well-known targets and maximize the number of casualties. Medunjanin, Zazi and Ahmedzay agreed and discussed the timing of the attacks and possible target locations in Manhattan, including the subway system, Grand Central Terminal, the New York Stock Exchange, Times Square and movie theaters.

Upon their return to the United States, Medunjanin, Zazi and Ahmedzay met and agreed to carry out suicide bombings during the Muslim holiday of Ramadan, which fell in late August and September 2009. Zazi agreed to prepare the explosives, and all three agreed to conduct coordinated suicide bombings. In July and August 2009, Zazi purchased large quantities of the component chemicals necessary to produce the explosive TATP (Triacetone Triperoxide) and twice checked into a hotel room near Denver to mix the chemicals. Federal investigators later found bomb-making residue in the hotel room.

On Sept. 8, 2009, Zazi drove from Denver to New York, carrying operational detonator explosives and other materials necessary to build the suicide bombs. However, shortly after arriving in New York, he learned that law enforcement was closing in on the plotters. In an unsuccessful effort to avoid detection, the men discarded the explosives and other bomb-making materials, and Zazi traveled back to Denver, where he was arrested on Sept. 19, 2009.

On Jan. 7, 2010, law enforcement agents executed a search warrant at Medunjanin’s residence. Shortly thereafter, Medunjanin left his apartment and attempted to turn his car into a weapon of terror by crashing it into another car at high speed on the Whitestone Expressway. Moments before impact, Medunjanin called 9-1-1, identified himself, and left his message of martyrdom, shouting the al-Qaeda slogan: “We love death more than you love your life.”

On May 1, 2012, a jury convicted Medunjanin of:

• conspiring to use weapons of mass destruction,

• conspiring to commit murder of U.S. military personnel abroad,

• providing and conspiring to provide material support to al-Qaeda,

• receiving military training from al-Qaeda,

• conspiring and attempting to commit an act of terrorism transcending national boundaries, and

• using explosives in relation to these offenses.

To date, seven defendants, including Medunjanin, Zazi and Ahmedzay, have been convicted in connection with the al-Qaeda New York City bombing plot and related charges.

“Adis Medunjanin sought martyrdom for himself and death for innocent New Yorkers as part of al-Qaeda’s plan to spread terror within our shores. Instead, he will now spend the rest of his life where he belongs, behind bars,” stated U.S. Attorney Lynch. “Justice demanded a sentence of life for this al-Qaeda operative, who was dedicated to mass murder and destruction in the New York City subways. Scores of innocent New Yorkers would have been killed or maimed had Medunjanin succeeded in his plot. The combined efforts of dedicated law enforcement stood as a bulwark against al-Qaeda’s reach.” Ms. Lynch expressed her gratitude and appreciation to the FBI Joint Terrorism Task Force in New York and each of the federal, state and local law enforcement personnel who took part in the investigation, as well as to the law enforcement authorities in the United Kingdom and Norwaywho assisted with the case.

“Adis Medunjanin was today held accountable for his role in one of the most serious terrorist plots against the homeland since 9/11. Were it not for the combined efforts of the law enforcement and intelligence communities, the suicide bomb attacks that he and others planned would have been devastating,” said Assistant Attorney General Monaco. “I thank the many agents, analysts and prosecutors who helped bring about today’s result.”

The government’s case was prosecuted by Assistant U.S. Attorneys David Bitkower, James P. Loonam and Berit W. Berger of the U.S. Attorney’s Office for the Eastern District of New York, and Jeffrey H. Knox, formerly of the U.S. Attorney’s Office, with assistance provided by the Counterterrorism Section of the Justice Department’s National Security Division.

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nationalsecuritylaw Amanatullah v. Obama (D.D.C. Nov. 15, 2012) (rejecting Bagram habeas petition)

November 17, 2012

Chief Judge Lamberth has granted the government’s motion to dismiss a first amended habeas petition filed by a Pakistani citizen held at Bagram, following the Circuit’s decision in al Maqaleh. (The petitioner is identified as Amanatullah…I do not know if this is the same person as the Amanatullah Ali who was the subject of recent habeas litigation in the UK (the British had captured Amanatullah Ali in Iraq and had turned him over to the US; the US later removed him to Afghanistan; there was an attempt via habeas in the UK to compel the British government to seek his release). In any event, the opinion from Judge Lamberth is posted here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv0536-27. The full text appears below:

United States District Court,

District of Columbia.

AMANATULLAH, et al., Petitioners,

v.

Barack OBAMA, et al., Respondents.

No. 10–cv–536 (RCL).

Nov. 15, 2012.

Tina M. Foster, Erin Valentine, International Justice Network, New York, NY, Anne Katherine Toomey, Eric Leslie Lewis, Lewis Baach PLLC, Washington, DC, for Petitioners.

Jean Lin, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

Before the Court is the government’s Motion to Dismiss Petitioner Amanatullah’s First Amended Petition for Habeas Corpus for Lack of Subject Matter Jurisdiction. [ECF No. 10]. For reasons given below, the Court will GRANT the government’s motion and dismiss Amanatullah’s petition.

II. BACKGROUND

Amanatullah, a citizen of Pakistan, has been detained by the United States at Bagram Airfield in Afghanistan (“Bagram”) for several years. See First Am. Pet. for Writ of Habeas Corpus (“Habeas Pet.”) [ECF No. 9] ¶¶ 1, 11. In 2010, Amanatullah filed a habeas petition in this Court FN1 through his brother Abdul Razaq as his “Next Friend,” and filed an amended petition in 2011. See generally Habeas Pet. Amanatullah claims that his detention violates his constitutional right to the Writ of Habeas Corpus as protected by the Suspension Clause of the United States Constitution. Habeas Pet. ¶¶ 121–23 (citing U.S. Const. Art. I § 9, cl. 2).FN2 He seeks release from custody or, in the alternative, access to certain procedures, a cessation of all interrogation and torture and transfer to another facility, as well as other relief. See id. ¶¶ 38–39.

FN1. The case was before Judge Kennedy until his retirement from the bench. [ECF No. 13].

FN2. Petitioner also raises a host of other legal theories. He alleges that his detention constitutes an action beyond the constitutional authority of the Executive under Article II of the Constitution, Habeas Pet. ¶¶ 124–28; a violation of Common Law and Statutory Habeas, Habeas Pet. ¶¶ 129–30 (citing 28 U.S.C. § 2241(c)(1) & (c)(3)); a violation of his Due Process rights, Habeas Pet. ¶¶ 131–34 (citing U.S. Const. amend. V); a violation of his right to counsel and access to courts, Habeas Pet. ¶ ¶ 135–37 (citing U.S. Const. amends. V & VI); a violation of Army Regulation 190–8 which he suggests this court is authorized to review under the Administrative Procedures Act, Habeas Pet. ¶¶ 138–41; and several violations of International Humanitarian and Human Rights Law, Habeas Pet. ¶¶ 142–47. This Court finds these theories fail and will not address them.

The government moved to dismiss the amended petition, relying heavily on the D.C. Circuit’s opinion in Al Maqaleh v. Gates (“Al Maqaleh II”), 605 F.3d 84 (D.C.Cir.2010), which held that the Suspension Clause did not cover non-U.S. citizen detainees held at Bagram. Resp’ts’ Mot. To Dismiss (“Resp’t’s Br.”) [ECF No. 10].

Amanatullah’s opposition points to several categories of purportedly “new” evidence—i.e. evidence that was not part of the record on appeal in Al Maqaleh II—which he argues should alter the jurisdictional analysis from what the Court of Appeals concluded in Al Maqaleh II.Pet’rs’ Opp’n at 3 [ECF No. 11]. First, he argues that the commencement of “full-blown civilian trials of Afghan detainees at Bagram”“belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable.”Pet’rs’ Opp’n at 7–8. Second, he argues that the government intends to detain him at Bagram “indefinitely.” Pet’rs’ Opp’n at 8–9. Third he points out that after Al Maqaleh II, the government replaced the Unlawful Enemy Combatant Review Board (“UECRB”) procedures, which the Court of Appeals reviewed, with new Detainee Review Board (“DRB”) procedures now in place and, though he apparently concedes that these “recent modifications make the DRB slightly less defective than the UECRB,” he nonetheless insists that these new procedures are “fundamentally flawed” and “woefully inadequate.” Pet’rs’ Opp’n at 9–10; 15–16. Fourth, he claims that that his own DRB at Bagram found him eligible for release. Pet’rs’ Opp’n at 9–10.

Fifth, Amanatullah suggests that the government has purposefully used Bagram to evade judicial review—an attempted manipulation which, he argues, should influence the jurisdictional analysis. Pet’rs’ Opp’n at 32–38. He cites a variety of documents in support of this assertion, and requests the opportunity to conduct jurisdictional discovery. Pet’rs’ Opp’n at 34–38.

The government filed a Reply insisting that all of Amanatullah’s “new evidence” either lacks any “factual basis or is otherwise irrelevant to the constitutional calculus involved in the jurisdictional question.”Resp’ts’ Reply at 2 [ECF No. 12].

After the briefing on the motion to dismiss was complete, both parties filed notices of supplemental authority.FN3The government filed notices regarding a Memorandum of Understanding (“MOU”) entered between the United States and Afghanistan addressing the transfer of the Bagram detention center to Afghan control, See Resp’ts’ Notice to Court Regarding the March 9, 2012 MOU [ECF No. 19], and the President’s signing of an agreement with Afghanistan stating, in part, that it did not “seek permanent military facilities in Afghanistan,”See Resp’ts’ Supplemental Material [ECF No. 20], as support for its position that the United States did not intend to occupy Bagram permanently.

FN3. Several of these are not relevant here. Amanatullah filed a notice to bring to this court’s attention a British case issuing a writ of habeas corpus to another detainee at Bagram. Pet’rs’ Notice of Supplemental Authority [ECF No. 14]. The government filed a notice regarding the National Defense Authorization Act for Fiscal Year 2012, Pub.L. No. 112–81, which they argued provided statutory support for Amanatullah’s detention, and mandated certain new procedures that mitigated those concerns. Resp’ts’ Notice to the Court Regarding a New Statute [ECF. No. 15]. Amanatullah responded, arguing that the NDAA did nothing to alter the status quo. Pet’rs’ Resp. to Resp’ts’ Notice [ECF No. 18]. The Court will not discuss these further, as they do not pertain to the resolution of the question at issue in this case.

Amanatullah responded with a memorandum that reinterpreted these documents, insisting that they actually “confirm[ed] the United States’ exclusive and continuing control over Bagram and its detainees, including Petitioner Amanatullah, and the U.S.’s intention and ability to exercise such control indefinitely.” Pet’rs’ Resp. to Resp’ts’ Notice [ECF No. 21]; Errata Sheet [ECF No. 22].

Amanatullah subsequently filed an additional notice, attaching (1) a letter addressed to the Al Maqaleh counsel signed by the Chief of Staff to the President of Afghanistan favoring “fair judicial process” for all foreign detainees held at Bagram; (2) a declaration by a Col. Lawrence B. Wilkerson (Ret.) purporting to support Amanatullah’s theory that the United States used Bagram to purposefully evade judicial review; (3) a similar declaration from Gelnn Carle, a retired high-ranking CIA officer; and (4) a declaration from petitioner’s counsel, Tina Foster, detailing her attempts to meet with another detainee-client and his personal representative and her unsuccessful attempt to participate in a Detainee Review Board proceeding. Pet’rs’ Notice [ECF No. 23].

The government responded, arguing that the Wilkerson and Carle declarations are merely speculative, couched in probabilistic language; that they are based on “what is widely known” about the evolution of U.S. detention policy over the last decade, including the history of litigation over the limits of the Suspension Clause, rather than any “actual knowledge from his prior government position,”See Resp’ts’ Resp. to Pet’rs’ Supplemental Materials at 4–5 [ECF No. 24–1]; and that Amanatullah’s jurisdictional theory lacks a limiting principle and would “permit world-wide application of the Suspension Clause.”Id. at 7. As to the letter from the Afghan President’s Chief of Staff, the government notes that this is a private letter from an official without authority to speak on behalf of the Afghan government, and that other top Afghan officials had made contradictory statements. Id. at 9–10.And, with respect to the Foster declaration, the government challenges the factual accuracy of the account therein, and denies that there are any “new facts” that directly bear on the pending motion. Id. at 12–13.

Finally, Amanatullah filed a response to the government’s response, defending the relevance of the supplemental evidence they offered. Pet’rs’ Resp. [ECF No. 25] With respect to the letter from the chief of staff, petitioner insists this is an official policy statement because it is on official letterhead, bears the seal of the President of the Islamic Republic of Afghanistan and conveys a “confirmation of the Afghan Government position.”Id. at 2–4.With respect to the Foster declaration, he insists that the episode she chronicles shows that her client was “arbitrarily denied reasonably available in-person witnesses at their DRBs.”Id. at 4–7.As to the Wilkerson and Carle declarations, Amanatullah concedes that their disclosures were limited to public information about the United States’ purportedly deliberate evasion of judicial review, but argues that this is only because both are subject to binding non-disclosure obligations. Id. at 7.

III. LEGAL STANDARD

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1).“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). A motion to dismiss for lack of subject matter jurisdiction in habeas cases, like jurisdictional motions in other civil cases, is subject to review under the standards of the Federal Rules of Civil Procedure. See Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C.2002), aff’d, Al Odah v. United States, 321 F.3d 1134 (D.C.Cir.2003), rev’d on other grounds, Rasul v. Bush, 542 U.S. 466 (2004) (applying Fed.R.Civ.P. 12(b)(1) to the government’s motion to dismiss a pending habeas petition on jurisdictional grounds).

Pursuant Rule 12(b)(1), the petitioner bears the burden of establishing that the court has jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, (1936); Bernard v. U.S. Dept. of Def., 362 F.Supp.2d 272, 277 (D.D.C.2005).“Because subject matter jurisdiction focuses on the Court’s power to hear a claim, however, the Court must give the plaintiff’s factual assertions closer scrutiny when reviewing a motion to dismiss for lack of subject matter jurisdiction than reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).”Id.; see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C.2001).

B. Boumediene Factors

This case turns on whether the writ of habeas corpus extends to a noncitizen held by the United States beyond its sovereign territory. The evolution of the doctrine on the reach of the Suspension Clause has been reviewed extensively elsewhere and need not be repeated here. See, e.g., Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). The leading case is Boumediene v. Bush, where the Supreme Court adopted a three-factor test to determine whether an alien held abroad will have access to federal courts to file a habeas petition:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

553 U.S. 723, 766 (2008) (holding that federal courts had jurisdiction over habeas petitions filed by noncitizen detainees held at Guantanamo Bay).

C. Bagram Detainee Habeas Litigation

In 2010, the D.C. Circuit applied the Boumediene test and held that the suspension clause does not extend to alien detainees held at Bagram. Al Maqaleh II, 605 F.3d at 99. In three subsequent cases, two judges of this Court have rejected efforts by Bagram detainees to alter this jurisdictional analysis by introducing “new” jurisdictional evidence. See Al Maqaleh v. Gates, (“Al Maqaleh III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012); Hamidullah v. Obama, (D.D.C. Oct. 19, 2012); Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). Because these cases bear directly on the matter at hand, and because this Court finds their analyses of the issues particularly compelling, this opinion will next review those cases in some detail.

1. Al Maqaleh

Between 2006 and 2008, four detainees held at Bagram Air Force Base in Afghanistan—Fadi Al Maqaleh, Haji Wazir, Amin Al Bakri, and Redha Al–Najar—filed habeas petitions in the United States District Court for the District of Columbia. See Al Maqaleh v. Gates, (“Al Maqaleh I”) 604 F.Supp.2d 205, 208 (D.D.C.2009). One was an Afghan citizen and the other three were citizens of other non-U.S. countries. In 2009, Judge Bates applied the Boumediene factors and found that jurisdiction over the three habeas petitions filed by non-Afghan detainees was constitutionally mandated.FN4 Id. at 214–35.

FN4. Judge Bates dismissed the fourth petition, by Afghan citizen Haji Wazir, and this petition was not part of subsequent litigation. Al Maqaleh v. Gates (“Al Maqaleh I”), 604 F.Supp.2d 205, 209 (D.D.C.2009).

The United States appealed to the D.C. Circuit. See Al Maqaleh II 605 F.3d at 99. The Circuit reversed Judge Bates and held that Federal Courts lacked subject matter jurisdiction over habeas petitions filed by alien detainees held at Bagram. Id.FN5

FN5. In brief, the Circuit reasoned as follows: As to the “citizenship and status” factor, the Circuit found that this favored petitioners who, like the successful detainee petitioners in Boumediene, were alien citizens classified as enemy aliens. Al Maqaleh II, 605 F.3d at 95–96. As to “adequacy of process” available to petitioners at Bagram, the Circuit found that petitioners had a stronger case than the Boumediene detainees because the process they were afforded under the UECRB system was less robust than what was available to Guantanamo detainees. Id. at 96.As to the site of apprehension and detention, the Circuit contrasted the site of Boumediene petitioners’ detention, Guantanamo, which was “under the complete and total control of our Government,” with Bagram, where the court found “no indication of any intent to occupy the base with permanence,” and concluded that this factor strongly favored the government. Id. at 96–97.Finally, as to “practical obstacles inherent in resolving the petitioner’s entitlement to the writ,” the court again distinguished Bagram, located in an “active theater of war” in Afghanistan and thus “exposed to the vagaries of war,” with Guantanamo, where no such conditions existed, and concluded that this factor “weigh[ed] overwhelmingly” in favor of the government. Id. at 97–98.In sum, the court concluded that petitioners had a slightly stronger case than the Boumediene detainees with respect to the “process” factor, the same case with respect to “citizenship and status,” and a much weaker case on the “nature of the site” and “practical obstacles” factors.

The three remaining Al Maqaleh petitioners sought rehearing en banc based, in part, on additional evidence that was not in the record considered by the D.C. Circuit. The Circuit denied the petition for rehearing, but noted that the denial was without prejudice to petitioners’ “ability to present this evidence to the district court in the first instance.”Al Maqaleh v. Gates, No. 09–5265 (D.C.Cir. July 23, 2010). On remand, Judge Bates granted the petitioners’ motion to amend their petitions to incorporate this “new” evidence. Al Maqaleh v. Gates, 2011 WL 666883 (D.D.C. Feb. 15, 2011).

After the new evidence was fully briefed, and a hearing conducted, Judge Bates granted the United States’ motion to dismiss the amended petitions. Al Maqaleh v. Gates, (“Al Maqaleh III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012).

In his opinion, Judge Bates considered four categories of purportedly “new evidence”, and found no justification for departing from the Circuit’s jurisdictional analysis in Al Maqaleh II. Id. Because it addresses issues that are virtually identical to those in the present matter, it is instructive to discuss Judge Bates’ opinion in some detail.

First, Judge Bates considered evidence presented by the petitioners purporting to show that the United States intended to remain indefinitely at Bagram. See Al Maqaleh III, 2012 WL 5077483 at *5–7. His opinion summarized this evidence:

Since late 2001 or early 2002, the United States has held both Afghan and non-Afghan detainees at Bagram. The United States has recently begun transferring custody of Afghan detainees to the Afghan government. Although respondents aver that they intend eventually to transfer custody of non-Afghan detainees to … the Afghan government, the detainee’s home country, or a third country, they have no specific plans in place to do so. Petitioners conclude that the lack of specific plans to transfer non-Afghan detainees shows that the United States has the same sort of permanent control over non-Afghan detainees at Bagram that it has over detainees at Guantanamo Bay.

Id. at *5 (citations omitted). Judge Bates concluded that this evidence did not upset the conclusion reached by the Circuit that the United States did not intend to remain in Bagram indefinitely. He noted that the Circuit’s determination on this point rested on information that was “in fact, quite limited,” largely comprised of “vague assertions” by the United States of their intention to leave. Id. at *6. Judge Bates found that petitioners’ weak “new evidence” could not disrupt that conclusion. Id. The court also noted that the fact that the United States had begun transferring detainees to the Afghan government lent credence to the government’s representations about their intention to leave Bagram. Id. Finally, the court found it significant that there had been no change to the terms of the lease that obligates the United States to leave Bagram “when it determines that the facility is no longer needed for military purposes.”Id .

Second, Judge Bates considered petitioners’ evidence regarding criminal trials run by the Afghan government at Bagram for Afghan detainees, and suggesting that the Afghan government desires foreign detainees to be removed and provided fair judicial process elsewhere. Petitioners argued that this evidence showed that the “practical obstacles” to conducting habeas litigation for detainees at Bagram were far less serious than the Court of Appeals had believed. Id. at *7–8.The opinion summarizes this evidence:

After the D.C. Circuit’s decision, the Afghan government began conducting criminal trials of detainees at Bagram. The parties dispute how involved the United States is in these trials. The United States describes them as “purely Afghan-run,” but petitioners disagree. In their habeas petitions, they state that “the U.S. Military … allowed thirty-six full-blown trials of Afghan prisoners in its custody.”Quoting a Boston Globe article, petitioners explain that courts are composed of Afghan “judges, prosecutors, and forensic experts,” but that Americans “mentor[ ]” them. In their briefing, petitioners adopt the formulation that the United States “facilitat[es]” trials run by the Afghan government. Given the evidence petitioners have offered, the Court concludes that “facilitating” the trials—by allowing detainees to appear for trial and mentoring the Afghan participants—is an appropriate characterization of the United States’ role.

Id. at *7 (citations omitted). Judge Bates found that this evidence did not upset the Circuit’s conclusion regarding the “practical obstacles” factor. The Circuit had cited concerns that “ordering military commanders to participate in habeas adjudications would ‘divert … efforts and attention’ from the battlefield to the courtroom.”Id. (quoting Al Maqaleh II, 605 F.3d at 98). The petitioners’ new evidence did nothing to alleviate such concerns because “[a] trial system run primarily by the Afghan government obviously requires many fewer U.S. military resources than would habeas adjudications conducted solely by the United State.”Id. at *8. The Court of Appeals also found “difficulties” inherent in litigating in a “theater of war,” Id.(citing Al Maqaleh II, 605 F.3d at 98) and Judge Bates concluded that petitioner’s evidence did not signal any reduction as to this concern, finding it “quite plausible … that trials run by the Afghan government would produce less hostility and fewer security issues than litigation in Afghanistan orchestrated by the United States.”Id. Finally, the Court of Appeals also rested its finding of practical obstacles on concerns about producing “a conflict between judicial and military opinion highly comforting to enemies of the United States,”Id.(quoting Al Maqaleh II, 605 F.3d at 98)—a concern that Judge Bates found was “not present … when the Afghan government tries its own citizens with United States consent.”Id.

Also under the “practical obstacles” factor, petitioners introduced a letter from the Chief of Staff to the President of Afghanistan FN6 supporting “access to a fair judicial process” for non-Afghan detainees held at Bagram. Judge Bates held that petitioners’ reliance on this letter was misplaced because it was just “a private letter to petitioners’ counsel” not a statement of official Afghan policy. Id. at *8. Moreover, even if it were official policy, Judge Bates held that this would not “require a lesser diversion of military resources, change the fact that Afghanistan ‘remains a theater of war,’ or avert a potential conflict between the U.S. military and our courts.”See Al Maqaleh II, 605 F.3d at 97–98.

FN6. The same letter was submitted by Amanatullah here.

Third, Judge Bates considered “newspaper articles, government memoranda, two declarations from former government officials, and other materials”FN7 purporting to show that the United States had deliberately chosen the Bagram site for these detainees to avoid habeas jurisdiction. Id. at *9. The opinion summarizes this evidence:

FN7. The same declarations were submitted by Amanatullah here.

[Petitioners] explain, citing government memoranda, that Bagram was initially a “collection site” where U.S. officials decided which detainees should be sent to Guantanamo, but that the “linkage between” Bagram and Guantanamo was “severed over time.” They then cite newspaper articles stating that transfers from Bagram to Guantanamo dropped sharply after the Supreme Court found in June 2004 in Rasul v. Bush, 542 U.S. 466 (2004), that detainees at Guantanamo could bring habeas petitions. In addition, they cite two articles stating directly that detainees were transferred to Bagram “in part” to avoid habeas jurisdiction; one quotes anonymous “military figures” and another appears simply to be drawing an inference from transfer statistics. Finally, petitioners argue that there was in fact a “reverse” flow of detainees from Guantanamo in the wake of Rasul.They cite a 2010 newspaper article stating that four high-value detainees were transferred away from Guantanamo (but not to Bagram) in the months before Rasul was issued, because U.S. officials predicted the outcome of Rasul and wanted to ensure that those detainees could not bring habeas petitions. They also state (in a point vigorously contested by respondents) that more than 30 detainees were transferred from Guantanamo to Bagram and other sites between 2007 and 2009. Finally, petitioners have submitted the declarations of Colonel Lawrence B. Wilkerson (Ret.), former Chief of Staff to Secretary of State Colin Powell, and Glenn Carle, a former CIA employee, stating that petitioners “likely” were transferred to and/or kept at Bagram to “evade judicial review of their detention.”From this evidence, petitioners conclude that the Executive chose to house detainees at Bagram to ensure that they would not be able to file habeas petitions.

Id. (citations omitted).

Judge Bates concluded that this evidence did not justify a departure from the Court of Appeals’ conclusion. First, he expressed doubt as to whether “purposeful evasion,” even if found, would affect the jurisdictional analysis under Boumediene. Id. Second, he suggested that petitioners had likely waived this line of argument because most of their “new” evidence had been publicly available when they presented their case to the Court of Appeals, bur petitioners failed to press the issue there. Id. Third, he noted that the facts were “not as one-sided as petitioners represent,” noting that detainees (including high-value ones) were transferred to Guantanamo after Rasul. Id. at 10.Fourth, he proposed plausible alternative logistical and political explanations for why the United States might want to house detainees in Bagram rather than Guantanamo. Id. Fifth, he noted that the Court of Appeals had already been familiar with the risk of executive manipulation and had before it evidence that was “really no different than” the “new” evidence when it decided Al Maqaleh II in favor of the government. Id. And finally, he found that petitioners’ theory lacked a limiting principle and would “create universal habeas jurisdiction” because holding detainees in any location (other than Guantanamo) would be equally suspect. Id.

Judge Bates also considered and rejected petitioners’ request for jurisdictional discovery to investigate the purposeful evasion theory. Id. at *11.He concluded that petitioners would need “essentially a smoking gun” to prevail on this theory and declined to authorize a “fishing expedition into … sensitive areas” that would be required to uncover such evidence. Id.

Fourth, and finally, Judge Bates considered petitioners’ evidence regarding the revised procedures used to determine the status of detainees at Bagram.Id. Because the Court of Appeals in Al Maqaleh II had already concluded that this Boumediene factor weighed in favor of petitioners, and because petitioners conceded that the new procedures were “at least marginally better” than the previous ones, Judge Bates ruled that this evidence did not alter the Court of Appeals’ decision. Id. He also rejected petitioners’ argument based on the fact that some of them had been cleared for release by these procedures, noting that the D.C. Circuit had explicitly held that “whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained lawfully.”Id. at *12 (quoting Almerfedi v. Obama, 654 F.3d 1, 4 n. 3 (D.C.Cir.2011)).

2. Hamidullah v. Obama

On the same day he decided Al Maqaleh III, Judge Bates also dismissed the amended petition of Hamidullah, a Pakistani citizen detained at Bagram. See Hamidullah v. Obama, 2012 WL 5077127 (D.D.C. Oct. 19, 2012). Hamidullah relied on the same “new evidence” as the Al Maqaleh III petitioners with the exception of one additional argument—that he was captured as a juvenile.Id. at *1, 3. In dismissing Hamidullah’s petition, Judge Bates incorporated his reasoning from Al Maqaleh III, found that the “new” evidence did not call for a departure from the result in Al Maqaleh II, and resolved the outstanding “age” issue in favor of the United States. Id. at *3.

3. Wahid v. Gates

Finally, after the Court of Appeals had ruled on Maqaleh II, but before Judge Bates had decided Al Maqaleh III, Judge Gwin, sitting by designation, dismissed the habeas petition of Ziaur–Rahman, an Afghan citizen held at Bagram. Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). Judge Gwin applied the Boumediene factors, and concluded that “newly presented facts, even when taken in the light most favorable to him, are too similar to warrant a different conclusion than that of Al Maqaleh [II ].”Id. at *3.

As to the “adequacy of process” factor, Judge Gwin embraced the logic that was subsequently adopted by Judge Bates in Al Maqaleh III: because the Circuit had already found that this factor weighed in favor of the petitioner, and Zia–ur–Rahman conceded that the new DRB procedures marked a “marginal improvement” over the UECRB procedures in Al Maqaleh II, he found no reason to depart from the Circuit’s analysis of this factor. Id. at *3–4.

As to the “nature of the site” factor, Zia–ur–Rahman introduced various evidence purporting to show that the United States intended to occupy Bagram indefinitely. Judge Gwin found that Zia–ur–Rahman had misconstrued this evidence, that he acknowledged the uncertainty of the future of Untied States’ control over Bagram, and that the lack of a definite end date to the occupation was not sufficient grounds upon which to extend the writ of habeas corpus to detainees. Id. at *4. He concluded that “in the two years since the Al Maqaleh [II ] holding, the relevant inquires for the ‘nature of the site’ prong remain nearly unchanged.”Id. at *4–5.

As to the “practical obstacles” factor, Judge Gwin found that under the Court of Appeals’ reasoning, because Zia–ur–Rahman was an Afghan citizen, this factor would be even more skewed in favor of the government than it was in Al Maqaleh.He also held that Bagram is still located in “a highly active war-zone,” and that the initiation of Afghan criminal proceedings supports the government’s position that they are trying to transfer control to Afghanistan.Id. at *5. Thus, there was no new evidence that mandated departing from the Court of Appeals’ analysis of this factor in Al Maqaleh II.

Finally, Judge Gwin also rejected Zia–ur–Rahman’s request for jurisdictional discovery, finding that such discovery “would not alter this Court’s jurisdictional analysis.”Id. at *6.

IV. ANALYSIS

The D.C. Circuit’s holding in Al Maqaleh II is binding on this court. Petitioner may only succeed by showing new evidence, not part of the record before the Court of Appeals in that case, that would mandate a departure from the Circuit’s application of the Boumediene factors and produce a different outcome. Because he has failed to do so, this Court will dismiss the petition.

A. Citizenship and Status

Amanatullah’s sole “new” evidence under this factor is his evidence that the Detainee Review Board at Bagram found him eligible for release. Pet’rs’ Opp’n at 9–10. But this is irrelevant to the Boumediene analysis. As Judge Bates noted, “whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained lawfully.”Al Maqaleh III, 2012 WL 5077483 at *12 (quoting Almerfedi v. Obama, 654 F.3d 1, 4 n. 3 (D.C.Cir.2011)).

B. Adequacy of Process

Amanatullah’s opposition brief suggests that the DRB procedures are “fundamentally flawed” and “woefully inadequate.” Pet’rs’ Opp’n at 9–10. The subsequently filed Foster Declaration purports to provide a demonstration of the arbitrariness of these procedures. See Pet’rs’ Notice of Filing [ECF No. 23]; see also Pet’rs’ Resp. at 4–7 [ECF No. 25].

This evidence does not affect the jurisdictional analysis, and will not lead this Court to depart from the conclusion of the Court of Appeals in Al Maqaleh II.As Judge Bates noted, Al Maqaleh II already held that this factor weighed in favor of petitioners because the procedures afforded were less robust than those available at Guantanamo. See Al Maqaleh III, 2012 WL 5077483 at *11. Moreover, Amanatullah concedes, as did petitioners in both Al Maqaleh III and Wahid v. Gates that the DRV procedures are “slightly less defective” than the UECRB ones they replaced. See Pet’rs’ Opp’n at 15–16; see also Al Maqaleh III, 2012 WL 5077483 at *11 (noting that the petitioners conceded that the DRB procedures were “at least marginally better” than the UECRB ones); Wahid, 2012 WL 2389984 at *3–4 (noting that the petitioner conceded the new procedures amounted to a “marginal improvement” over those at issue in Al Maqaleh II ). Thus, the only change to the jurisdictional analysis produced by the evidence introduced here leads this Court to find that this factor weighs slightly less in favor of the petitioners than it did in Al Maqaleh II.

C. Nature of the Site of Detention

Amanatullah arguest that the government intends to detain him at Bagram “indefinitely,” Pet’rs’ Opp’n at 8–9, and argues that the government has not shown any specific plan for withdrawal. Pet’rs’ Resp. [ECF No. 21]; Errata Sheet [ECF No. 22]. Thus, he argues, Bagram should be treated the same as Guantanamo for purposes of this Boumediene factor.

This argument also fails. As Judge Bates noted, the D.C. Circuit had before it nothing but “vague assertions” from the government of their intent not to remain indefinitely in Afghanistan when it decided Al Maqaleh II. Al Maqaleh III, 2012 WL 5077483 at *6;see also Wahid, 2012 WL 2389984 at *4–5. The government repeats those assertions here, and even bolsters them with new evidence of their intent to transfer control to Afghanistan. See Resp’ts’ Notice Regarding the March 9, 2012 MOU [ECF No. 19]; Resp’ts’ Supplemental Material [ECF No. 20]. Moreover, as Judge Bates also noted, that the government has encouraged the Afghan government to take custody of Afghan detainees lends some further credence to the government’s argument that it intends not to remain indefinitely. Al Maqaleh III, 2012 WL 5077483 at *6. Because the government’s “vague assertions” were sufficient to satisfy the Circuit that Bagram was distinct from Guantanamo in this respect, because the government has bolstered these thin statements somewhat with additional evidence in this case, and because Amanatullah has not offered anything that would undermine this analysis, this Court will not depart from the Court of Appeals’ analysis with respect to this factor. Id. at *6.

D. Practical Obstacles

Amanatullah argues that the commencement of “full-blown civilian trials of Afghan detainees at Bagram”“belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable.”Pet’rs’ Opp’n at 7–8. He also points to a letter addressed to the Al Maqaleh counsel signed by the Chief of Staff to the President of Afghanistan favoring “fair judicial process” for all foreign detainees held at Bagram. Pet’rs’ Notice [ECF No. 23].

This argument also fails. This Court agrees with both Judges Bates and Gwin that the commencement of civil trials does not change the fact that Afghanistan remains an active warzone. See Wahid, 2012 WL 2389984 at *5 (finding Bagram was situated in a “highly active warzone”); Al Maqaleh III, 2012 WL 5077483 at *8 (“remains a theater of war”). With respect to the letter, this Court agrees with Judge Bates that this is “a private letter to petitioners’ counsel” not a statement of official Afghan policy. Id. Further, as Judge Bates noted, even if it were official policy, it would not “require a lesser diversion of military resources, change the fact that Afghanistan ‘remains a theater of war,’ or avert a potential conflict between the U.S. military and our courts.”Id. (citations omitted). Thus, Amanatullah has not introduced any evidence that would allow this Court to depart from the Court of Appeals’ evaluation of this factor.

E. Purposeful Evasion of Judicial Review

Amanatullah also suggests that the government was employing Bagram as a detention site to deliberately evade judicial review, which, he argues, should influence the court’s jurisdictional analysis. Pet’rs’ Opp’n at 32–38. In support of this theory, he relies on several news articles, government documents obtained under FOIA, and several “Wikileaks documents.” Pet’rs’ Opp’n at 32–34. He also points to declarations by Col. Lawrence B. Wilkerson (Ret.) and Gelnn Carle, a retired high-ranking CIA officer. Pet’rs’ Notice [ECF No. 23].

This argument fails for several reasons. First, this Court agrees with Judge Bates’ skepticism regarding the petitioner’s assumption that the question of “purposeful evasion” is or should be part of the Boumediene jurisdictional analysis. Such a theory of jurisdiction seems to lack any limiting principle and would threaten to “create universal habeas jurisdiction”—something plainly at odds with the careful balancing of the Boumediene test. See Al Maqaleh III, 2012 WL 5077483 at *10. Moreover, even if “purposeful evasion” were a factor in the jurisdictional analysis, Amanatullah has not offered sufficient “new” evidence that would allow this Court to depart from the conclusion of the Court of Appeals in Al Maqaleh II.Most (if not all) of Amanatullah’s “new” evidence purporting to support this theory had been publicly available when they presented their case to the Court of Appeals in Al Maqaleh II and thus may not lead this court to depart from the conclusion that court reached. Finally, this Court also notes, as did Judge Bates, that the facts are “not as one-sided as petitioners represent,” since some detainees (including high-value ones) were transferred to Guantanamo after Rasul v. Bush, 542 U.S. 466 (2004) (the 2004 case that petitioner argues triggered the purposeful evasion).See Al Maqaleh III, 2012 WL 5077483 at *10. Thus, again, Amanatullah has failed to introduce evidence that would lead this Court to depart from the analysis of Al Maqaleh II.

F. Jurisdictional Discovery

Finally, Amanatullah requests the opportunity to conduct jurisdictional discovery to further pursue his “purposeful evasion” theory. Pet’rs’ Opp’n at 34–38. However, habeas petitioners are “not entitled to jurisdictional discovery as of right.”Al Maqaleh III, 2012 WL 5077483 at *11;see also Harris v. Nelson, 394 U.S. 286, 295 (1969) (”[T]he broad discovery provisions of the Federal Rules of Civil Procedure do not apply in habeas cases.). Because the Court agrees with Judges Bates and Gwin that such discovery would not lead to any evidence that might affect the jurisdictional analysis, this Court denies petitioners’ request. See Al Maqaleh III, 2012 WL 5077483 at *11 (rejecting petitioners’ request for jurisdictional discovery as an attempt to engage in a “fishing expedition into … sensitive areas”); Wahid, 2012 WL 2389984 at *6 (rejecting petitioner’s request for jurisdictional discovery, finding that such discovery “would not alter this Court’s jurisdictional analysis”).

V. CONCLUSION

For the foregoing reasons, the government’s motion to dismiss is GRANTED, and Amanatullah’s request for jurisdictional discovery is DENIED.

A separate order consistent with this Opinion shall issue on this date.


nationalsecuritylaw upcoming event: “Defending Terrorism Charges: A Lawyer’s Perspective on U.S. v. Mehannna” (Boston College 11/19)

November 11, 2012

More details here: http://bc.edu/content/dam/files/centers/clough/email/defending-panel/defending-email.html


nationalsecuritylaw forthcoming scholarship

November 11, 2012

Regulating Tactical Nuclear Weapons

Dakota Rudesill (Georgetown)

101 Geo. L.J. ___ (2013)

In 2013, U.S. and Russian negotiators are expected to enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework article will be the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (i.e., long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assertion, the legal regime has regulated a small number of tactical systems – tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance – providing a regulatory precedent; (3) the nuclear tactical/strategic distinction in Cold War policy and the legal architecture is eroding and should be abolished, and (4) with all nuclear weapons considered “strategic,” and in view of the enduring “loose nuke” threat and other risks, the arms control legal regime should be expanded to regulate and reduce what we now consider tactical nuclear arms, ideally via the new treaty I outline.

Extension of the legal regime to regulate all tactical delivery vehicles and (especially) warheads would be revolutionary. Warheads are much smaller than nuclear delivery vehicles, which can be readily observed from space. Warheads are therefore easier to conceal or steal, and present unique verification challenges.

Resolution of the verification problem in a new treaty will be tough. But it also presents an opportunity: creation of what I term Nuclear Information Stability (NIS) between the United States and Russia, a condition characterized by continual communication and common understanding of the number, location, and operational status of nuclear delivery vehicles and warheads. Ultimately, I argue, NIS could allow the United States and Russia – and other nuclear states to which the concept could be exported – to see a realistic path from Mutually Assured Destruction (MAD) to a day-to-day state of Mutually Assured Stability.

Five new pieces from Charlie Dunlap (Duke):

The Intersection of Law and Ethics in Cyberwar: Some Reflections, 24 Air & Space Journal 1-17 (2012)

Do We Need New Regulations in International Humanitarian Law? One American’s Perspective, 25 Journal of International Law of Peace and Armed Conflict 121-128 (2012)

Ethical Issues of the Practice of National Security Law: Some Observations, 38 Ohio Northern University Law Review 1057-1095 (2012).

Responses to Five Questions, 38 William Mitchell Law Review 1564-1586 (2012).

A Whole Lot of Substance or a Whole Lot of Rhetoric? A Perspective on a Whole-of-Government Approach to Security Challenges, in Conflict Management and "Whole of Government": Useful Tools for U.S. National Security Strategy? 185-215 (Volker D. Franke & Robin Dorff eds., U.S. Army Strategic Studies Institute 2012)

"Not Even Wrong: The Use of British Constitutional History to Defend the Vesting Clause Thesis"

RYAN PATRICK ALFORD, Ave Maria School of Law

The article discusses the Vesting Clause Theorists’ claim that the British constitution of 1787 can be considered the baseline against which the Framers defined the "executive power" granted by Article II of the Constitution of the United States. While this is the best argument still remaining for the conception of broad presidential powers that they advance, it is profoundly misguided, as it necessarily relies upon a fatal misunderstanding of seventeenth and eighteenth century English (and British) constitutional history.

It details that the monarchy had lost the powers the vesting clause theorists posit to be the model for the president’s long before the framing, owing to the movement towards parliamentary supremacy and the creation of a cabinet responsible to Parliament. As the article shows, this was clear to the revolutionary generation, who accordingly could not have believed that royal powers could serve as a useful baseline for those of a president. More importantly, it demonstrates how this process of constitutional change in eighteenth century Britain destabilized the notion of executive power, such that there was no undisputed, commonsensical definition: executive power was an essentially contested concept by 1787.

The article posits further that to understand the original scope of presidential powers, one must grasp that the key feature of American political thought during the American Revolution was that it was a reaction against developments in eighteenth century British constitutional theory. The Founding Fathers drew deeply from seventeenth century constitutionalism, inheriting a deep distrust of strong executive powers. The article’s historical analysis demonstrates that the arguments of Vesting Clause Theorists (such as John Yoo) resemble the defenders of absolutism that the Framers’ abhorred, and are therefore in many significant respects antithetical to the fundamental political ideals that defined the intellectual context

"Military Commissions and the Paradigm of Prevention"

Military Commissions and the Paradigm of Prevention, in GUANTANAMO AND BEYOND: EXCEPTIONAL COURTS AND MILITARY COMMISSIONS IN AND POLICY PERSPECTIVES (Oren Gross and Fionnuala Ni Aolain, eds., Cambridge: Cambridge Univ. Press, 2013, Forthcoming)

DAVID COLE, Georgetown University Law Center

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Do these justifications warrant the use of military commissions? In this essay, I maintain that they do not. In the end, the impetus behind the military commissions is the hope – in my view, unsupported – that the commissions may permit easier convictions of individuals, and may allow prosecutors to avoid confronting the consequences of the United States’ systemic reliance on torture and cruel, inhuman, and degrading tactics in its interrogations of detainees. In this respect, the commissions are best understood not as a legitimate forum for trying war crimes, but as an avenue for short-circuiting legal processes that might hold us accountable for our wrongs.

The military commissions are a by-product of the “paradigm of prevention,” a term coined by then Attorney General John Ashcroft for the post-9/11 emphasis on aggressively preventing future terrorism, rather than responding to crime after the fact. That approach stressed early intervention and aggressive gathering of intelligence about future threats, and therefore led government officials to sweep broadly, presume guilt without substantial evidence, detain innocents, and adopt “enhanced interrogation techniques” to coerce detainees into talking. Those choices, in turn, have greatly complicated and compromised the task of holding terrorists accountable, because such illegal shortcuts on investigatory rules taint any evidence obtained therefrom, and make it inadmissible in a criminal trial.

The military commissions reflect an ill-advised effort to avoid paying the price for the “paradigm of prevention.” That goal is an illegitimate one, and will in the end leave the commissions – and any convictions obtained in them – fundamentally tainted. Absent a willingness both to reckon candidly with the United States’ own past wrongs, and to proceed in the future under fundamentally fair trial procedures, the military commissions are likely to disserve our security interests and undermine our constitutional principles.

Liber Amicorum Augusto Sinagra – State Criminal Prosecution of a Former United States President in United States Domestic State Courts: A Thought-Experiment on Limits to the United States President’s Constitutional Powers Regarding Armed Conflict

Benjamin Davis (U. of Toledo Law)

This article does a thought experiment to suggest the limits of the United States President’s Constitutional Powers regarding Armed Conflict. It then examines how state criminal prosecution (as opposed to federal criminal prosecution or impeachment) might be an avenue in United States separation of powers and federalism to seek accountability for Presidents who act outside the limits of the powers available constitutionally and even with a Congressional grant of powers.


nationalsecuritylaw United States v. Siddiqui (2d Cir. Nov. 5, 2012) (affirming conviction)

November 7, 2012

The opinion appears in full below, and is also posted here.

United States Court of Appeals,

Second Circuit.

UNITED STATES of America, Appellee,

v.

Aafia SIDDIQUI, Defendant–Appellant.FN*

FN* The Clerk of the Court is respectfully directed to amend the caption to conform with the above.

Docket No. 10–3916–cr.

Argued: Feb. 10, 2012.

Decided: Nov. 5, 2012.

Defendant–Appellant Aafia Siddiqui appeals her criminal convictions, entered after a jury trial in the United States District Court for the Southern District of New York (Berman, J.), for attempted murder of United States nationals, attempted murder of United States officers and employees, armed assault of United States officers and employees, assault of United States officers and employees, and use of a firearm during a crime of violence. She also challenges her sentence of eighty-six years’ imprisonment. Siddiqui contends that the district court erred in a number of ways. We address five of Siddiqui’s arguments here:(1) that Count One of the indictment was deficient because the Attorney General failed to timely issue a required certification for prosecution under 18 U.S.C. § 2332, and because the statutes underlying Counts Two through Seven do not apply extraterritorially in an active theater of war; (2) that the district court committed reversible error by admitting, under Federal Rule of Evidence 404(b), documents allegedly found in her possession at the time Afghan officials took her into custody; (3) that the district court erred in allowing her to testify in her own defense despite a request from defense counsel to preclude her from doing so because of her alleged mental illness; (4) that the district court erred in allowing the government to rebut her testimony with un-Mirandized statements she gave to FBI agents while hospitalized at Bagram Airfield because those statements allegedly were not voluntary; and (5) that the district court erred in applying the terrorism enhancement under section 3A1.4 of the United States Sentencing Guidelines. We address Siddiqui’s remaining arguments in an accompanying summary order.

AFFIRMED.

Dawn M. Cardi (Chad L. Edgar, on the brief), Dawn M. Cardi & Associates, New York, NY, for Defendant–Appellant.

Jenna M. Dabbs, Assistant United States Attorney (Christopher L. Lavigne, Jesse M. Furman, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before WESLEY, CARNEY, Circuit Judges, MAUSKOPF, District Judge. FN**

FN** The Honorable Roslynn R. Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation.

WESLEY, Circuit Judge:

Defendant–Appellant Aafia Siddiqui appeals from a judgment of the United States District Court for the Southern District of New York (Berman, J.) entered on September 23, 2010, convicting her after a jury trial of one count of attempted murder of United States nationals in violation of 18 U.S.C. § 2332(b)(1); one count of attempted murder of United States officers and employees in violation of 18 U.S.C. § 1114(3); one count of armed assault of United States officers and employees in violation of 18 U.S.C. §§ 111(a)(1) and (b); one count of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and three counts of assault of United States officers and employees in violation of 18 U .S.C. § 111(a)(1). The district court sentenced her principally to 86 years’ imprisonment. Siddiqui urges this Court to reverse her convictions and, failing that, to vacate her sentence. We address five of the arguments that Siddiqui raises on appeal here and the remaining issues in an accompanying summary order.

I. BACKGROUND

A. Offense Conduct

Around dusk on July 17, 2008, Afghan National Police (“ANP”) detained Aafia Siddiqui, a United States-educated Pakistani national, in Ghazni City, Afghanistan, on suspicion of attempting to attack the Governor of Ghazni. When police took her into custody, Siddiqui possessed, among other things, various documents that discussed the construction of weapons, referenced a “mass casualty attack,” and listed a number of New York City landmarks. Afghan authorities brought Siddiqui to an ANP facility for questioning. Later that evening, the Governor of Ghazni delivered the materials found in Siddiqui’s possession to the United States Army.

The following morning, the United States dispatched a team to the ANP facility with the objective of interviewing Siddiqui and ultimately taking her into American custody. The team-most dressed in military fatigues-consisted of two FBI agents and members of a military special forces unit. Afghan officials brought the team to a poorly lit room partitioned by a yellow curtain. The room was crowded with Afghan officials, and unbeknownst to the Americans, Siddiqui was sequestered unrestrained behind the curtain.

The presence of a large number of Afghan officials led members of the American team to believe that they had been brought to the room to discuss the terms of their access to Siddiqui. One of the team members, a Chief Warrant Officer, moved to a chair near the curtain dividing the room. After quickly glancing behind the curtain and seeing nothing, he set down his M–4 rifle and turned to engage the Afghan officials in conversation. Moments later, Siddiqui gained control of the rifle, aimed it at members of the American team, shouted, and fired. The team’s interpreter lunged at and struggled with Siddiqui. As the interpreter wrestled with her, the Chief Warrant Officer drew his sidearm and shot Siddiqui in the stomach.

Team members then attempted to restrain Siddiqui, who was fiercely resisting and screaming anti-American statements. One witness recalled Siddiqui stating, “I am going to kill all you Americans. You are going to die by my blood.”Another recounted that Siddiqui yelled “death to America” and “I will kill all you motherfuckers.”

Eventually, the Americans were able to subdue Siddiqui enough to begin to render emergency medical aid to her. After providing preliminary treatment at the scene, the Americans transported her to a number of military bases in Afghanistan to undergo surgery and receive further care. On July 19, 2008, American forces moved Siddiqui to Bagram Airfield to recuperate.

While recovering at Bagram, Siddiqui was guarded by an FBI team. She was tethered to her hospital bed in soft restraints. During the course of her stay at Bagram, Siddiqui provided a number of incriminating, un-Mirandized statements to two members of the security team. In particular, she (1) asked about the penalty for attempted murder; (2) stated that she had a number of documents in her possession at the time of her arrest and recognized some of them when shown to her; (3) said that she had picked up a rifle with the intention of scaring the American team and escaping; and (4) noted that “spewing” bullets at Americans was a bad thing.

The government filed a sealed criminal complaint against Siddiqui in the Southern District of New York on July 31, 2008. On August 4, 2008, the government transferred Siddiqui to the United States for prosecution. A month later, Siddiqui was indicted.

B. Pre–Trial

Soon after the indictment was filed, the district court ordered that Siddiqui undergo psychiatric evaluations of her competence to stand trial. In a report issued on November 6, 2008, Dr. Leslie Powers opined that Siddiqui was not currently competent, citing, among other things, Siddiqui’s reports of visual hallucinations. Later, Dr. Powers revised her assessment, finding that Siddiqui was malingering to avoid prosecution. Other experts arrived at the same conclusion, although one expert commissioned by the defense opined that Siddiqui was not competent. The district court held a competency hearing on July 6, 2009. After canvassing the relevant evidence, the court found Siddiqui competent to stand trial.

In advance of trial, the district court ruled on a number of motions, some of which are relevant here. Siddiqui first moved to dismiss all of the counts of the indictment. As to Count One, Siddiqui claimed that the Attorney General failed to timely issue the required written certification that her offense (attempted murder of United States nationals) “was intended to coerce, intimidate, or retaliate against a government or a civilian population.”FN118 U.S.C. § 2332(d). Siddiqui also contended that Counts Two through Seven, charging violations of 18 U.S.C. §§ 1114, 111, and 924(c), should be dismissed because the statutes do not have extraterritorial application under the circumstances of her case. The district court denied Siddiqui’s motions.

FN1. The certification was filed on the same day as the indictment.

The district court also considered the government’s motion in limine to admit certain documents and other evidence recovered from Siddiqui at the time of her arrest by Afghan officials. These documents, some of which were in Siddiqui’s handwriting and bore her fingerprints, referred to attacks on the United States and the construction of various weapons. The court found this evidence admissible pursuant to Federal Rule of Evidence 404(b) to show Siddiqui’s “motive, intent, identity, and knowledge.” In finding the documents admissible, the court rejected the argument that the evidence would cause Siddiqui unfair prejudice, concluding that the documents were no more sensational than the crimes charged. The court also noted that it would instruct the jury that the documents were not to be considered as propensity evidence.

C. Trial

At trial, the government presented six members of the American interview team who testified that Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at them. Three more witnesses who did not directly observe the shooting testified that they heard M–4 rifle shots. A government expert testified that the fact that no gunpowder residue was found on the curtain hanging in the room did not necessarily indicate that an M–4 had not been fired because someone standing between the curtain and the weapon could have absorbed the residue. The government also introduced the 404(b) documents discussed above.FN2

FN2. The district court gave a limiting instruction to the jury, informing them that they could not consider the documents as proof that Siddiqui was predisposed to commit the crimes charged. The district court made clear that the documents could only be considered to the extent they demonstrated Siddiqui’s motive, intent, or knowledge.

The defense put forth a forensic metallurgist who, based on the lack of forensic evidence of a discharge of a M–4 rifle at the crime scene, testified that he did not believe an M–4 had been fired in the room. In particular, he found it implausible that someone could discharge an M–4 rifle in a room without bullet fragments or gunpowder residue being recovered by authorities. The defense also introduced deposition testimony of an ANP officer that when Siddiqui was arrested she possessed documents describing how to make explosive devices, among other things, and that while in Afghani custody she made anti-American statements and asked not be turned over to the United States. He also stated that he saw an American soldier walk behind the curtain prior to hearing shots fired, although he did not directly observe the shooting.FN3Significantly, the officer testified that he observed a technician remove two rifle shells from the scene.

FN3. The government elicited admissions from the officer that he previously gave inconsistent statements to American investigators.

Against the advice and over the objection of her attorneys, Siddiqui took the stand to testify in her own defense.FN4Though her testimony at times lacked focus, she was able to provide her version of the events that transpired on July 18, 2008. According to Siddiqui, she was sitting behind a curtain in a room at the ANP facility when she heard American voices. She feared being taken into American custody and peeked through an opening in the curtain with the hope of finding an escape route. Siddiqui testified that she was then shot from multiple directions. She stated that she never picked up, aimed, or fired an M–4 rifle at the Americans.

FN4. Defense counsel viewed this as a disastrous decision, and went so far as to make an application to the court to prevent Siddiqui from testifying. In their view, Siddiqui suffered from diminished capacity, such that she did not appreciate the risks inherent in testifying. Further, based on previous outbursts during the proceedings, they feared that Siddiqui would “turn the [trial] into a spectacle,” thus alienating the jury and damaging her prospects for acquittal. Prior to Siddiqui’s testimony, the defense held an ex parte conference with the judge where they aired their concerns. The judge then opened the courtroom to the public, and Siddiqui indicated on the record that she understood (1) that testifying was a significant decision, and one that her counsel had unanimously recommended against; (2) that her testimony had to be relevant; (3) that if she veered off into tangential topics the court may stop her testimony; and (4) that by testifying she would be subject to an intense cross-examination aimed at undercutting her testimony.

Siddiqui claimed that she could not confirm that she possessed documents at the time of her arrest in Afghanistan because she was “in a daze.” JA 2371. She stated that the bag in which the documents were found was not hers but rather was given to her. When confronted with the document referencing mass casualty attacks and listing New York City landmarks, Siddiqui testified that it was a “possibility” that the document was in her own handwriting. JA 2372.

After the defense rested, the government presented its rebuttal case. Two FBI agents who were members of Siddiqui’s security detail during her recovery at Bagram recounted several incriminating statements that Siddiqui made to them. Before receiving this testimony, the district court held a hearing to determine whether Siddiqui gave these un-Mirandized statements voluntarily.FN5At that hearing, the two FBI agents testified, as did Siddiqui. The district court determined that Siddiqui’s statements were voluntary.

FN5. The court conducted this voluntariness inquiry prior to admitting Siddiqui’s testimony, and the government asked Siddiqui about her statements during its cross-examination in an attempt to impeach her. On cross-examination, she denied she made the statements.

On February 3, 2010, the jury returned a guilty verdict on all counts of the indictment. The district court sentenced Siddiqui on September 23, 2010. In addition to a number of other enhancements, the court applied the terrorism enhancement pursuant to U.S.S.G. § 3A1.4. In applying the enhancement, the court found that Siddiqui’s offense was calculated to influence the conduct of the government by intimidation, namely, attempting to frustrate the interview team’s efforts to detain her. Further, based on a number of anti-American statements Siddiqui made before and at the time of the shooting, the court determined that Siddiqui’s conduct was calculated to retaliate against the United States government. The district court sentenced Siddiqui principally to 86 years’ imprisonment and five years of supervised release.

Siddiqui timely appealed her convictions and sentence.

II. DISCUSSION

A. Denial of Siddiqui’s Motion to Dismiss the Indictment

Siddiqui raised below, and now reasserts, several challenges to the indictment. According to Siddiqui, the district court should have dismissed Count One, which charged a violation of 18 U.S.C. § 2332, because the United States Attorney General did not timely issue the certification required by 18 U.S.C. § 2332(d). She also argues that the remaining counts are deficient because the underlying statutes do not apply extraterritorially in an active theater of war. We disagree.

Section 2332(d) provides that “[n]o prosecution for any offense described in this section shall be undertaken by the United States except on written certification of the Attorney General … [that] such offense was intended to coerce, intimidate, or retaliate against a government or civilian population.”Siddiqui relies on speedy trial principles to conclude that a prosecution is commenced at the time of arrest or the filing of formal charges. But Siddiqui’s argument here encounters an obstacle: the original complaint on which Siddiqui was arrested did not charge a violation of § 2332. The first instrument to do so was the indictment, which was filed the same day the Attorney General issued the § 2332(d) certification.

Siddiqui has an answer to the problem. She points out that the statute requires certification prior to a prosecution for an “offense described in this section.” 18 U.S.C. § 2332(d) (emphasis added). In her view, the Attorney General is required to issue the certification before an accusatory instrument describing facts that could constitute a violation of § 2332 is filed, regardless of whether that instrument actually charges a violation of § 2332. Siddiqui reasons that because the criminal complaint filed on July 31, 2008 described conduct proscribed by § 2332, the Attorney General’s certification filed the day of the indictment was untimely.

Siddiqui’s argument offers an unusual reading of what appears to be straightforward statutory language—a reading that would undercut the very purpose of the provision. Section 2332(d)‘s requirement that the Attorney General issue a certification before “prosecution for any offense described in [§ 2332] shall be undertaken ” is most naturally read as a requirement that the Attorney General issue the certification either at the time of or before the filing of the first instrument charging a violation of § 2332. This view furthers the purpose of § 2332(d)—namely, ensuring that the statute reaches only terrorist violence inflicted upon United States nationals, not “[s]imple barroom brawls or normal street crime.”SeeH.R. Conf. Rep. 99–783, at 87, reprinted in 1986 U.S.C.C.A.N.1926, 1960.

Under Siddiqui’s interpretation of the provision, the Attorney General would have to issue the certification any time someone engaged in conduct that could be covered by the statute. This would deprive the Attorney General of the opportunity to sort through the facts of each case to determine if it merited certification—and prosecution—under the statute. More simply put, Siddiqui’s interpretation would undercut § 2332(d)‘s primary objective. Accordingly, the district court did not err in denying Siddiqui’s motion to dismiss Count One of the indictment.

Siddiqui next contends that Counts Two through Seven of the indictment should be dismissed because the charging statutes—18 U.S .C. §§ 1114,FN6111,FN7 and 924(c)FN8—do not have application extraterritorially “in an active theater of war.”This argument is without merit.

FN6.18 U.S.C. § 1114 prohibits the murder or attempted murder of any United States officer or employee while such officer or employee is engaged in, or on account of, his or her official duties.

FN7.18 U.S.C. § 111 punishes those who assault, resist, oppose, impede, intimidate, or interfere with a United States officer or employee while he or she is engaged in, or on account of, his or her official duties.

FN8.18 U.S.C. § 924(c) prohibits the use of a firearm during the commission of a crime of violence.

“Congress has the authority to ‘enforce its laws beyond the territorial boundaries of the United States.’ “ United States v. Yousef, 327 F.3d 56, 86 (2d Cir.2003) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). The ordinary presumption that laws do not apply extraterritorially has no application to criminal statutes. United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir.2011). “When the text of a criminal statute is silent, Congressional intent to apply the statute extraterritorially must ‘be inferred from the nature of the offense.’ “ Id. (quoting United States v. Bowman, 260 U.S. 94, 98 (1922)).

The statutes underlying Counts Two through Seven apply extraterritorially. Subsequent to the filing of Siddiqui’s brief, we held that 18 U.S.C. § 1114 applies extraterritorially. Al Kassar, 660 F.3d at 118. We reasoned that “the nature of the offense-protecting U.S. personnel from harm when acting in their official capacity-implies an intent that [the statute] apply outside of the United States.”Id. We see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only. For the same reason, § 111 applies extraterritorially. See United States v. Benitez, 741 F.2d 1312, 1316–17 (11th Cir.1984); see also United States v. Hasan, 747 F.Supp.2d 642, 685–86 (E.D.Va.2010). Like 18 U.S.C. § 1114, the nature of the offense-protecting United States officers and employees engaged in official duties from harm-implies a Congressional intent that § 111 apply outside of the United States. See Al Kassar, 660 F.3d at 118.

As for § 924, which criminalizes the use of a firearm during commission of a crime of violence, every federal court that has considered the issue has given the statute extraterritorial application where, as here, the underlying substantive criminal statutes apply extraterritorially. See, e.g., United States v. Belfast, 611 F.3d 783, 815 (11th Cir.2010); United States v. Ahmed, No. 10 Cr. 131(PKC), 2012 WL 983545, at *2 (S.D.N.Y. March 22, 2012); United States v. Mardirossian, 818 F.Supp.2d 775, 776–77 (S.D.N.Y.2011). We see no reason to quarrel with their conclusions.

Siddiqui’s argument that the statutes, even if generally extraterritorial, do not apply “in an active theater of war” is unpersuasive.FN9 As the government points out, it would be incongruous to conclude that statutes aimed at protecting United States officers and employees do not apply in areas of conflict where large numbers of officers and employees operate. The district court appropriately denied Siddiqui’s motion to dismiss Counts Two through Seven of the Indictment.

FN9. Indeed, this argument is premised on a misreading of a number of cases. Siddiqui contends that international law “allow[s] an occupying force to try unlawful belligerents only in a military commission,”see Siddiqui Br. 66, and thus extraterritorial application of the statutes at issue would run afoul of the general presumption that Congress intends its statutes to comport with international law. But the portion of Ex parte Quirin, 317 U.S. 1, 30 (1942), that Siddiqui cites merely stands for the more pedestrian observation that unlawful combatants, unlike lawful combatants, may be subjected to trial before a military commission. Moreover, the case Siddiqui cites for the proposition that “[a]t least one court has expressed reservation about extending the extraterritorial reach of § 1114 into Afghanistan because of the sensitive state of the relationship between the two nations,”see Siddiqui Br. 65–66, does not mention § 1114 at all. Instead, the case addressed whether federal courts had jurisdiction to afford habeas corpus relief and the protection of the Suspension Clause to aliens held in Executive detention at Bagram Airfield. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C.Cir.2010).

B. Admission of Documents under Federal Rule of Evidence 404(b)

The district court admitted documents allegedly found in Siddiqui’s possession that explained the construction and use of various weapons and described a “mass casualty attack” on a number of New York City landmarks for the purpose of demonstrating Siddiqui’s knowledge, motive, and intent. Siddiqui argues that her defense-that she never picked up and fired the Chief Warrant Officer’s rifle-removed those issues from the case and thus admission of the documents was improper.

A district court’s evidentiary rulings encounter trouble on appeal only where the district court abuses its discretion. United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009). A district court abuses its discretion when its evidentiary rulings are “arbitrary and irrational.” Id. But even when an evidentiary ruling is “manifestly erroneous,” the defendant will not receive a new trial if admission of the evidence was harmless. Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir.2010).

Federal Rule of Evidence 404(b) provides that evidence of a defendant’s prior crimes, wrongs, or other acts cannot be used to prove that a defendant was a bad fellow and most likely remains one—that he has a criminal nature or propensity and the acts in question are consistent with his nature or tendency towards crime. However, this type of evidence may be admissible for other legitimate purposes, such as demonstrating motive, opportunity, identity, intent, and knowledge. Id. Under our “inclusionary” approach, all “other act” evidence is generally admissible unless it serves the sole purpose of showing a defendant’s bad character. United States v. Curley, 639 F.3d 50, 56 (2d Cir.2011).FN10

FN10. Of course, the strictures of Federal Rules of Evidence 401, 402, and 403 still apply to Rule 404(b) evidence. The evidence must be relevant to an issue in dispute, and its probative value must outweigh the risk of unfair prejudice. See United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989).

A defendant may, however, forestall the admission of Rule 404(b) evidence by advancing a theory that makes clear that the object the 404(b) evidence seeks to establish, while technically at issue, is not really in dispute. See United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989). For example, a defense theory that the defendant did not commit the charged act effectively removes issues of intent and knowledge from the case. See id at 657; United States v. Ortiz, 857 F.2d 900, 904 (2d Cir.1988). Siddiqui’s defense was just that—“I didn’t fire the M–4.”

But even assuming that Siddiqui’s defense theory effectively removed any issue of her intent or knowledge, the documentary evidence remained relevant to demonstrate Siddiqui’s motive. Motive has been variously defined as “the reason that nudges the will and prods the mind to indulge the criminal intent,” United States v. Benton, 637 F.2d 1052, 1056 (5th Cir.1981) (internal quotation marks omitted); “the rationale for an actor’s particular conduct,” United States v. Awan, 607 F.3d 306, 317 (2d Cir.2010); and “an emotion or state of mind that prompts a person to act in a particular way,” Charles Alan Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure: Federal Rules of Evidence § 5240. “Although it does not bear directly on the charged elements of a crime, evidence offered to prove motive is commonly admitted.” United States v. Salameh, 152 F.3d 88, 111 (2d Cir.1998). And unlike issues of knowledge and intent, the defendant’s motive—an explanation of why the defendant would engage in the charged conduct—becomes highly relevant when the defendant argues that he did not commit the crime.

For instance, in Salameh, the defendants were charged with a conspiracy to bomb the World Trade Center. Id. at 108.The district court admitted documents possessed by the defendants that “bristled with strong anti-American sentiment.” Id. at 111.On appeal, we found those documents admissible to demonstrate the conspiracy’s motive. Id.

Here, the documents the government introduced pursuant to Rule 404(b) detail, among other things, the construction of fertilizer and plastic explosives. One document in particular discusses radioactive bombs, biological weapons, and chemical weapons. That document also contains the phrase “mass casualty attack” and lists a number of New York City landmarks, including Grand Central Terminal, the Empire State Building, the Statute of Liberty, and the Brooklyn Bridge. Taken together, these documents, which were in Siddiqui’s possession at the time Afghan officials took her into custody FN11 and some of which were in her handwriting, supply a plausible rationale for why Siddiqui would fire a rifle at the American interview team, namely, she harbored an anti-American animus. This motive was relevant to the ultimate issue in dispute at trial-whether Siddiqui picked up and fired the M–4 rifle at the American interview team. Accordingly, the district court did not abuse its discretion in admitting the documents pursuant to Rule 404(b).FN12

FN11. In her brief, Siddiqui appears to contend that the government was required to call Afghan witnesses who were present at Siddiqui’s arrest to confirm this fact. We disagree. There was more than sufficient evidence to establish that the documents were in Siddiqui’s possession at the time of her arrest. Some were in her handwriting, and some bore her fingerprints. Moreover, on the day of her arrest, Afghan officials delivered the documents to American military authorities, which also tends to corroborate that Siddiqui possessed the documents when arrested by Afghan authorities.

FN12. Although Siddiqui often characterizes the admitted documents as “adverse and prejudicial,” “incendiary,” and “powerful, prejudicial, and damning,” she never argues in her briefs that the evidence should have been excluded under Federal Rule of Evidence 403 on a theory that its probative value is substantially outweighed by a danger of unfair prejudice. As such, the argument is waived. See Tolbert v. Queens College, 242 F.3d 58, 76 (2d Cir.2001); see also Frank v. United States, 78 F.3d 815, 833 (2d Cir.1996), vacated on other grounds by, 521 U.S. 1114 (1997).

But even if we agreed with Siddiqui that the district court abused its discretion in admitting the documents, that would not end the matter. There would remain the question of whether the error was harmless. An evidentiary error is harmless “if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.” United States v. Cadet, 664 F.3d 27, 32 (2d Cir.2011) (internal quotation marks omitted). Several factors bear on the inquiry: whether the evidence was tied to “an issue that [was] plainly critical to the jury’s decision”; “whether that [evidence] was material to the establishment of the critical fact or whether it was instead corroborat[ive] and cumulative”; and “whether the wrongly admitted evidence was emphasized in arguments to the jury.” Curley, 639 F.3d at 58 (internal quotation marks omitted). But the most critical factor is “the strength of the government’s case.”Id. (internal quotation marks omitted).

Here, although the government by its own admission “repeatedly referenced the documents introduced at trial,” Government Br. 37, the jury also had ample testimony before it regarding anti-American statements Siddiqui made at the time of the shooting from which it could conclude that Siddiqui harbored an animus towards the United States. And most importantly, the strength of the government’s case was overwhelming. Among other evidence, six members of the American interview team testified that Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at them. Another three government witnesses who did not observe the shooting testified that they heard M–4 rifle shots. Moreover, after Siddiqui testified, the government introduced the testimony of two FBI agents who had interviewed Siddiqui. According to those agents, Siddiqui, among other things, (1) asked what the penalty for attempted murder was; and (2) noted that “spewing” bullets at Americans was a bad thing.

Siddiqui counters that her forensic expert’s opinion that an M–4 rifle had not been fired in the room effectively neutralized the government’s case against her. However, this forensic expert’s testimony was undermined by one of Siddiqui’s own witnesses, who testified that two rifle shells were recovered from the room, and by a government expert’s testimony that the absence of certain forensic evidence from the room was not necessarily inconsistent with the firing of a weapon.

Siddiqui also asserts that our decision in United States v. Colon, 880 F.2d 650 (2d Cir.1989), requires us to grant her a new trial. She argues that Colon mandates that we assess the strength of the government’s case without reference to the government’s cross-examination of Siddiqui or the incriminating statements she made at Bagram and that Colon requires a new trial because the admission of the documents forced her to testify and she was harmed by doing so. We disagree.

In Colon, the defendant was charged with heroin distribution. Id. at 652.His defense was that he did not engage in the charged act. Id. at 658.Nevertheless, the district court admitted evidence concerning two prior instances in which the defendant had sold heroin to demonstrate knowledge and intent-an obvious error. Id. at 656.The defendant then testified, and, in the words of his counsel, “the [Assistant] U.S. Attorney made a jackass out of him.”Id. at 661 (brackets in original). Specifically, the cross-examination cast doubt on the defendant’s credibility and delved deeply into the circumstances surrounding the defendant’s prior involvement with heroin. Id. Because the record in Colon demonstrated that the defendant’s case was badly damaged by the erroneous admission of the evidence, and because the defense may have felt that there was no alternative but to have the defendant testify as a result, we granted the defendant a new trial. See id. at 661–62.

Here, we need not resolve the issue of whether Colon necessitates that we measure the strength of the Government’s case without reference to either Siddiqui’s cross-examination or the admission of the incriminating statements she made at Bagram. Even without that evidence, the government’s case against Siddiqui can only be fairly characterized as devastating.

We also disagree with Siddiqui’s claim that Colon requires a new trial because the admission of the 404(b) evidence forced her to testify and her defense was badly damaged by that testimony. Unlike in Colon, the introduction of the 404(b) evidence here did not necessitate Siddiqui’s testimony from an objective, strategic standpoint. The 404(b) evidence was somewhat cumulative on the issue of whether Siddiqui harbored an anti-American animus, given that numerous witnesses testified as part of the government’s case-in-chief that she made anti-American statements during the shooting incident. Further, even after the introduction of the 404(b) evidence, defense counsel advised Siddiqui not to testify, we presume in large part because her testimony would open the door to the admission of the incriminating statements she made while recovering at Bagram. Colon does not allow a defendant to make an otherwise harmless error harmful based on her simple assertion that the error compelled her to testify.

C. Denial of Defense Counsel’s Application to Keep Siddiqui from Testifying

It is well established that criminal defendants have the right to testify in their own defense. Rock v. Arkansas, 483 U.S. 44, 49 (1987); see Brown v. Artuz, 124 F.3d 73, 76 (2d Cir.1997).“This right … is. essential to due process of law in a fair adversary process.” Bennett v. United States, 663 F.3d 71, 84 (2d Cir.2011) (internal quotation marks omitted). That is because “the most important witness for the defense in many criminal cases is the defendant himself,” and he has the “right to present his own version of events in his own words.” Rock, 483 U.S. at 52. The ultimate decision to testify remains at all times with the defendant; defense counsel, though charged with an obligation to apprise the defendant of the benefits and risks of testifying, cannot make the decision, regardless of tactical considerations. Brown, 124 F.3d at 77–78.

Siddiqui’s counsel does not challenge these clearly established principles. Instead, she urges us to craft an exception to the general rule, arguing that in some cases a defendant may be competent to stand trial yet incompetent to exercise her right to testify without the approval of defense counsel.

In support of her argument, counsel relies heavily on the Supreme Court’s decision in Indiana v. Edwards, 554 U.S. 164 (2008). There, the Court held that a state may determine that a defendant who is competent to stand trial may nonetheless be incapable of representing himself at trial and may thus insist that the defendant have trial counsel. Id. at 167.The Court noted that a mentally ill defendant may not possess the ability to execute tasks such as organizing a defense, arguing points of law, and questioning witnesses. Id. at 176–77.It further observed that a prolonged spectacle could result from such a defendant representing himself, and that spectacle would undercut the Constitution’s goal of providing a fair trial. Id. at 177.

Counsel’s reliance on Edwards is misplaced. First, as three other circuits have recognized, Edwards holds that a court may require that trial counsel appear on behalf of a mentally ill defendant, not that it must do so. See United States v. Turner, 644 F.3d 713, 724 (8th Cir.2011); United States v. Berry, 565 F.3d 385, 391 (7th Cir.2009); United States v. DeShazer, 554 F.3d 1281, 1290 (10th Cir.2009). But even if Edwards mandated trial courts to require trial counsel for a discrete group of mentally ill defendants, the case still would have no application here. Common sense dictates that the mental capacity needed to conduct an entire trial is much greater than the mental capacity required to play the more limited role of witness on one’s own behalf. Moreover, the defendant’s right to air her version of events before a jury is “more fundamental to a personal defense than the right of self-representation.” Rock, 483 U.S. at 52. As such, Edwards does not significantly support, let alone compel, the conclusion that a district court may prevent a mentally ill defendant from testifying on her own behalf if defense counsel moves to keep the defendant off the stand.

We question whether the Constitution permits a finding that a criminal defendant is competent to stand trial, yet incompetent to determine whether to testify on her own behalf. But we need not decide that question today. Here, the district court went to extraordinary lengths to ensure that Siddiqui understood the implications of testifying and had the capacity to testify. Even were we to discern any daylight between the standards governing a defendant’s capacity to stand trial and those for assessing her capacity to determine whether to testify (and then, actually to testify), we would find no reason to upset the district court’s implicit determination that Siddiqui did in fact have the requisite capacity to make the latter decision here. That Siddiqui’s choice to testify—like many defendants’ decisions to testify—was a poor one, does not alter our analysis. See Brown, 124 F.3d at 77–78.

D. Voluntariness of Siddiqui’s un-Mirandized statements at Bagram

Siddiqui contends that the district court erred in finding that the incriminating, un-Mirandized statements she gave to two members of the FBI security team while she was hospitalized at Bagram Airfield were voluntary and thus could be used in the government’s rebuttal case after Siddiqui testified. Prior to Siddiqui’s testimony, the court held a hearing to determine the voluntariness of the statements. At that hearing, the two FBI agents testified, and the district court’s ruling credited their testimony. Their testimony established the following.

During the course of her stay at Bagram, Siddiqui was tethered to her bed in soft restraints to prevent her escape.FN13The agents endeavored to meet Siddiqui’s needs as best they could and never denied her access to the restroom, food, water, or medical attention. Further, Siddiqui had access to a medical call button that allowed her to contact the hospital’s medical staff directly; therefore, she was not entirely dependent on the agents to meet her basic needs. Although Siddiqui was at times in pain and medicated, she was coherent, lucid, and able to carry on a conversation.

FN13. These soft restraints, made of terry cloth and cotton, provided Siddiqui a fair range of mobility. In fact, the restraints provided such mobility that Siddiqui was able to remove them. After Siddiqui removed the restraints, the agents positioned the straps such that it was impossible to remove the strap on one hand with the other. The restraints were loose enough to allow her to read, drink, and wash, and were removed when Siddiqui required use of the washroom.

Special Agent Angela Sercer spent the most time with Siddiqui. She would arrive in the morning and stay approximately eight hours in Siddiqui’s room. Upon arriving, she would ask Siddiqui if she wanted to talk; if Siddiqui indicated she did not, Sercer would remain quietly in the room as a member of Siddiqui’s security detail. Although the topic of the July 18th shooting did come up, Sercer’s primary objective was to gather intelligence related to another investigation of Siddiqui commenced years earlier. Siddiqui was generally receptive to speaking with Sercer and indicated that she enjoyed their discussions. Special Agent Bruce Kamerman spent significantly less time with Siddiqui. Although he was not initially tasked with interviewing Siddiqui, supervisors instructed Kamerman to “continue the dialog” when Siddiqui made unsolicited incriminating statements to him. Siddiqui never indicated to Kamerman that she was unwilling to talk. Neither agent gave Siddiqui Miranda warnings.

Statements taken from a defendant in violation of Miranda may not be introduced by the government during its case in chief. United States v. Douglas, 525 F.3d 225, 248 (2d Cir.2008). But because a defendant “must testify truthfully or suffer the consequences,” the government may introduce un-Mirandized statements to impeach the defendant’s testimony. Id. (internal quotation marks omitted). The government cannot, however, introduce a defendant’s involuntary statements. See, e.g., Mincey v. Arizona, 437 U.S. 385, 397–98 (1978); see also United States v. Khalil, 214 F.3d 111, 121–22 (2d Cir.2000). Because Siddiqui testified at trial, the government was free to introduce the statements she made at Bagram Airfield so long as those statements were voluntary.

The government bears the burden of demonstrating that the defendant’s statements were voluntary. See United States v. Capers, 627 F.3d 470, 479 (2d Cir.2010); United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991). To determine whether a defendant’s statements were made voluntarily, courts look to the totality of the circumstances surrounding the statements. Anderson, 929 F.2d at 99. “Relevant factors … include the accused’s age, his lack of education or low intelligence, the failure to give Miranda warnings, the length of detention, the nature of the interrogation, and any use of physical punishment.” Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir.1989). A defendant’s mental vulnerability also bears on the analysis. See Colorado v. Connelly, 479 U.S. 157, 164 (1986).

A number of decisions have assessed the voluntariness of a defendant’s statements where the defendant was in medical distress. For example, in Mincy, 437 U.S. at 398–400, the Supreme Court held that a defendant’s statements to police were involuntary where the defendant (1) arrived at the hospital a few hours before the interrogation “depressed almost to the point of coma”; (2) suffered “unbearable” pain; (3) was unable to think coherently; (4) was “encumbered by tubes, needles, and [a] breathing apparatus”; (5) expressed his desire that the interrogation cease numerous times to no avail; and (6) was falling in and out of consciousness. By contrast, courts tend to view a hospitalized defendant’s statements as voluntary where the defendant was lucid and police conduct was not overbearing. See Khalil, 214 F.3d at 121–22; Pagan v. Keane, 984 F.2d 61, 63 (2d Cir.1993); Campaneria, 891 F.2d at 1019–20.

We review the factual findings underpinning the district court’s voluntariness determination for clear error while subjecting the ultimate conclusion that a defendant’s statements were voluntarily to de novo review. See Khalil, 214 F.3d at 122;see also United States v. Pettigrew, 468 F.3d 626, 633 (10th Cir.2006); United States v. Bell, 367 F.3d 452, 460–61 (5th Cir.2004). Doing so, we find no error in the district court’s determination that Siddiqui’s statements were voluntary. Although no Miranda warnings were given and Siddiqui was kept in soft restraints for the duration of her hospital stay, the agents’ conduct was not overbearing or abusive. To the contrary, the agents endeavored to meet her basic needs. Siddiqui conversed freely with the agents, and when she indicated that she did not want to engage in conversation, Special Agent Sercer sat quietly in her room. Further, Siddiqui is highly educated, having earned her undergraduate degree from Massachusetts Institute of Technology and a doctorate from Brandeis University. Most importantly, just as in Khalil, Pagan, and Campaneria, Siddiqui was lucid and able to engage the agents in coherent conversation despite the pain attendant to her injury.

Thus, the district court did not err in allowing the government to introduce the statements Siddiqui made while recuperating at Bagram Airfield to rebut her trial testimony.

E. Application of the Terrorism Enhancement to Siddiqui’s Sentence

Finally, we address Siddiqui’s challenge to the district court’s application of the terrorism enhancement under U.S.S.G. § 3A1.4. The enhancement increases by twelve the defendant’s offense level and elevates the defendant’s criminal history category to category six if the defendant’s offense “is a felony that involved, or was intended to promote, a federal crime of terrorism.”Id. A “federal crime of terrorism” is an offense that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”; and is a violation of any one of a number of enumerated statutes, including 18 U.S.C. §§ 1114 and 2332. U.S.S.G. § 3A1.4 app. n.1; 18 U.S.C. § 2332b(g)(5).

The district court found that Siddiqui’s offenses were calculated to influence or affect government conduct and that they were calculated to retaliate against government conduct. As to the former, the court determined that Siddiqui’s offenses were “calculated to influence or affect by intimidation the government’s fulfillment of its official duties including, among other things, the interview team’s efforts to interview … and … detain her.”JA 2848. The court, pointing to statements Siddiqui made while in Afghan custody, determined that Siddiqui began scheming to avoid transfer to American custody on July 17, 2008, and that the scheming came to fruition when Siddiqui gained control of the Chief Warrant Officer’s rifle and fired at the American interview team.

In support of the latter finding, the district court highlighted testimony regarding various anti-American statements Siddiqui made while in custody. In the court’s estimation, these statements demonstrated Siddiqui’s intent to retaliate against the United States government.

Siddiqui argues that the district court erred in applying the enhancement. She claims that application of both the terrorism enhancement and the Guidelines’ official victim enhancement resulted in impermissible double counting. She also contends that her conduct was not “calculated,” as required by the plain language of the enhancement. According to Siddiqui, long-term planning is a necessary condition to finding that a defendant’s offense was “calculated.”

Siddiqui’s contention that the district court committed error in applying both the official victim enhancement and the terrorism enhancement is devoid of merit. “[A] district court calculating a Guidelines sentence may apply multiple [enhancements] based on the same underlying conduct,” especially where “each of the multiple [enhancements] … serves a distinct purpose or represents a discrete harm.” United States v. Maloney, 406 F.3d 149, 152, 153 (2d Cir.2005). The terrorism and official victim enhancements both address discrete harms resulting from Siddiqui’s conduct-the official victim enhancement “deals with the selection of victims based on their status as government employees,” and the terrorism enhancement addresses those acts that are calculated to influence government conduct or to retaliate against a government. In re Terrorism Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 153 (2d Cir.2008). Accordingly, application of both the terrorism and official victim enhancements does not constitute impermissible double counting. See id.

Resolution of Siddiqui’s challenge to the district court’s finding that her offense was “calculated” merits more discussion. As previously noted, for the terrorism enhancement to apply, the defendant’s offense must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis added). When we interpret the Guidelines, we “giv[e] the words used their common meaning.” United States v. Stewart, 590 F.3d 93, 137 (2d Cir.2009). “Calculated” means “planned—for whatever reason or motive—to achieve the stated object.” Awan, 607 F.3d at 317;see Stewart, 590 F.3d at 137 (“The conventional meaning of ‘calculated’ is ‘devised with forethought.’ ”).

Many courts (including this one) interpret “calculated” as nearly synonymous with intentional. See Stewart, 590 F.3d at 137;see also United States v. Chandia, 675 F.3d 329, 333 n.3 (4th Cir.2012); United States v. El–Mezain, 664 F.3d 467, 571 (5th Cir.2011); United States v. Jayyousi, 657 F.3d 1085, 1115 (11th Cir.2011). Thus, “if a defendant’s purpose in committing an offense is to ‘influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,’ “ application of the terrorism enhancement is warranted. See Stewart, 590 F.3d at 137 (emphasis added) (quoting 18 U.S.C. § 2332b(g)(5)(A)). Where, however, “there is no evidence that the defendant sought to influence or affect the conduct of the government,” the enhancement is inapplicable. Id. (internal quotation marks omitted).

Most cases applying the terrorism enhancement have involved conduct that spanned a significantly greater length of time than the conduct here. See, e.g., Awan, 607 F.3d at 310–11; United States v. Salim, 549 F.3d 67, 70–71 (2d Cir.2008); In re Terrorist Bombings, 552 F.3d at 103–05 (2d Cir.2008); United States v. Meskini, 319 F.3d 88, 90–91 (2d Cir.2003). Relying on this observation, Siddiqui argues that “calculation,” as used in the enhancement, incorporates a long-term planning requirement. We disagree. That long-term planning is present in many of the cases applying the terrorism enhancement does not make it a condition necessary to finding that a defendant’s offense was calculated to influence government conduct or to retaliate against a government. Instead, the terrorism enhancement is applicable where a defendant acts according to a plan—whether developed over a long period of time or developed in a span of seconds-with the object of influencing government conduct or retaliating against a government.

The day before the shooting incident here, Siddiqui repeatedly implored Afghan police officials not to turn her over to American forces. Siddiqui gained control of an M–4 rifle and fired on the American interview team attempting to take her into United States custody the following day. Under these circumstances, the district court did not clearly err FN14 in its determination that Siddiqui’s offense was calculated to influence government conduct-i.e, the United States’ attempts to take Siddiqui into custody-by intimidation or coercion.

FN14. We decline Siddiqui’s invitation to apply a searching de novo review here. Because the district court’s finding on this score is factual, clear error review is appropriate. See Salim, 549 F.3d at 79;see also El–Mezain, 664 F.3d at 571.

We also find that the district court did not clearly err in determining that Siddiqui’s offense was calculated to retaliate against the United States. While in Afghan custody prior to the shooting incident, Siddiqui referred to the United States as invaders, and when queried about the bomb-making documents found in her possession, Siddiqui indicated that the target of those bombs were “the foreigners.” See JA 3022. What’s more, shortly after firing on the American interview team, Siddiqui stated: “I am going to kill all you Americans. You are going to die by my blood”; “death to America”; and “I will kill all you motherfuckers.”Taken as a whole, this evidence provides a sufficient factual basis for the district court’s conclusion that Siddiqui’s offense was calculated to retaliate against the United States.

Accordingly, the district court did not err in applying the terrorism enhancement.

III. CONCLUSION

For the foregoing reasons, and for the reasons provided in the accompanying summary order, Siddiqui’s convictions and sentence are hereby affirmed.

C.A.2 (N.Y.),2012.

U.S. v. Siddiqui

— F.3d —-, 2012 WL 5382482 (C.A.2 (N.Y.))


nationalsecuritylaw United States v. Ferdaus (D. Mass.) (sentencing)

November 1, 2012

From the DOJ press release:

BOSTON – Rezwan Ferdaus was sentenced today for plotting an attack on American soil and attempting to provide detonation devices to terrorists.

Ferdaus, 27, was sentenced by U.S. District Judge Richard G. Stearns to 17 years in prison, to be followed by 10 years of supervised release. On July 20, 2012, Ferdaus pleaded guilty to attempting to damage and destroy a federal building by means of an explosive and attempting to provide material support to terrorists. In the plea agreement, the parties agreed to a joint sentencing recommendation of 17 years in prison, to be followed by 10 years of supervised release. In exchange for the defendant’s guilty plea, the government dismissed the remaining charges against Ferdaus after the imposition of his sentence.

At the change of plea hearing, the prosecutor detailed the evidence against the defendant, which Judge Stearns concluded was “overwhelming.” Had this case gone to trial, the government would have shown through consensually recorded conversations that, beginning in 2010 and continuing until his arrest, Ferdaus planned to commit acts of violence against the United States, both here and abroad.

Beginning in January 2011, Ferdaus began designing and constructing detonation components for improvised explosive devices (IED), using mobile phones. Ferdaus supplied 12 mobile phones, which he modified to act as an electrical switch for an IED, to FBI undercover employees (UCEs), who he believed were members of al-Qaeda, with the intention that they be used to kill U.S. soldiers overseas. In June 2011, Ferdaus delivered his first mobile phone detonation device to the UCEs. At a subsequent meeting, the UCEs falsely told Ferdaus that his first phone detonation device had succeeded in killing three U.S. soldiers and injuring others in Iraq. Ferdaus responded, “That was exactly what I wanted,” and that he felt “incredible … We’re changing the world. He also suggested that he could make “20 to 30 [detonation components] per week” to send to his “brothers overseas.”

He told the UCEs that he was “100%” at “peace” with the fact that his devices “are killing American soldiers” and was “so happy to hear that and so thankful.” After each subsequent delivery to the UCEs, Ferdaus asked how each detonation device had worked and how many Americans had reportedly been killed. Ferdaus also made a 20-minute training video, which was recorded by the UCEs, giving instructions on how to make cell phone detonators. Ferdaus believed that the video would be used for training members of al-Qaeda.

Ferdaus also planned to obtain a remote-controlled aircraft similar to a small drone aircraft, fill it with grenades and fly the plane into the Pentagon using a built-in GPS system. Ferdaus told the UCEs that he conducted Internet research on remote-controlled aircraft and found a website that sells such airplanes, which can fly 100 mph.

According to the prosecutor, in May and June of 2011, Ferdaus provided two very detailed attack plans to the UCEs. The defendant’s first attack plan, among other things, contained photographs of the Pentagon and Capitol with superimposed arrows, showing where he intended to strike. The defendant stated that his plan, “ought to terrorize … it ought to result in the downfall of this entire disgusting place. That is my goal.”

In May 2011, Ferdaus traveled to Washington, D.C., where he conducted surveillance, and photographed the Pentagon and Capitol Building. He also identified and photographed sites at the East Potomac Park, in Washington, D.C., from which he planned to launch his airplanes filled with explosives.

In June 2011, Ferdaus informed the UCEs that he had decided to expand his attack plan to include a ground assault on the Pentagon and requested that the UCEs supply him with explosives, grenades, fully-automatic weapons, and a silencer. Ferdaus then rented space at a storage facility under a false name, where he planned to store and prepare the components for his attack plan. In July 2011, Ferdaus placed an order with a Florida distributor for a remote controlled aircraft under a false identity. He told the UCEs that he wanted them to get him 24 pounds of plastic explosives to maximize the attack. He explained that 15 of the 24 pounds of explosives were for the planes – five pounds per plane. Ferdaus later increased his request to 25 pounds of explosives.

In September 2011, Ferdaus instructed the UCEs to deliver C-4 explosives, three grenades, and six fully automatic AK-47 assault rifles to him, which he later received at the storage facility he rented. Ferdaus inspected the explosives and firearms, and placed some of the C-4 explosives inside the remote-controlled aircraft he had previously ordered.

Shortly after receiving the explosives and weapons in the storage facility, Ferdaus was arrested. The public was never in danger from the explosive devices, which were closely monitored by the UCEs. Ferdaus was under surveillance as his alleged plot developed and the UCEs were in frequent contact with him.

During their communications with him, the UCEs told Ferdaus more than 25 times that he did not have to go through with his plan to attack the Pentagon and Capitol, that there was no shame in backing out, and he could turn back at any time. In response to these inquiries, Ferdaus repeatedly reaffirmed his commitment to his attack plans and his hope to cause mass destruction and psychological harm to the United States.

“As is evident from the facts of this case, Mr. Ferdaus posed a significant threat to the people of the United States,” said First Assistant U.S. Attorney Jack Pirozzolo. “His actions were self-initiated, deliberate and dangerous. He intended to unleash horrific acts of violence against the people of the United States both here and abroad. His plea and 17-year sentence should send a strong message to others that our priority is to move aggressively to investigate and prosecute anyone who intends to commit acts of terrorism whether at home or abroad.”

“Mr. Ferdaus’ sentence reflects that he alone conceived the plot, was responsible for his illegal acts and acted purposefully,” said Richard DesLauriers, the Special Agent in Charge of the Boston FBI. “The FBI’s top priority and clarion mission is to detect, deter and disrupt all potential terrorist threats to the United States. Our community should be proud of the efforts of the Worcester Police Department, U.S. Attorney’s Office and all members of the Boston Joint Terrorism Task Force. Working in partnership, we seek to disrupt homegrown violent extremists like Mr. Ferdaus who attempt to use violence, rather than democratic means, to achieve their political or social goals.”

First Assistant U.S. Attorney Jack Pirozzolo and Richard DesLauriers, Special Agent in Charge of the FBI Boston Field Division, made the announcement today. Assistance was provided by the Worcester, Mass., Police Department, the Ashland, Mass., Police Department, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. The case is being prosecuted by Assistant U.S. Attorney B. Stephanie Siegmann of the U.S. Attorney’s Office’s Anti-Terrorism and National Security Unit.

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