nationalsecuritylaw United States v. Hammadi (W.D. Kentucky) (sentencing in Iraqi insurgency case)

January 30, 2013

This is a big win for DOJ. The decision to pursue civilian criminal prosecution in this case had, at the time, generated no small amount of criticism and commentary. From DOJ’s press release:

01


nationalsecuritylaw upcoming event: The U.S.-Iranian Relationship and the Future of International Order – February 15, 2013 at Penn State

January 28, 2013

Please see the attached symposium flyer, as well as the description below:

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The U.S.-Iranian Relationship and
the
Future of International Order

Featuring Vice Admiral James Houck, Professors Richard Butler, Daniel Joyner, Flynt Leverett, Hillary Mann Leverett, Mary Ellen O’Connell, and other distinguished scholars discussing the following:

  • The Iranian Nuclear Issue, the End of the American Century, and the
    Future of International Order
  • Panel I: Iran and the Future of Nuclear Nonproliferation
  • Panel II: The Iranian Case and Use of Force Doctrine as a
    Constraint on State Behavior
  • How Precipitous a Decline? U.S.-Iranian Relations and the
    Transition from American Primacy

Date: Friday, February 15, 2013

Time: 9:00 a.m. to 4 p.m. (see complete agenda)

Location: Greg Sutliff Auditorium, Lewis Katz Building, University Park, PA (Live) Apfelbaum Family Courtroom & Auditorium, Lewis Katz Hall, Carlisle, PA (Simulcast)

CLE Credits:
This program has been approved by the Pennsylvania Continuing Legal Education Board for 4.5 hours of substantive law, practice, and procedure CLE credit and 0 hours of ethics, professionalism, and substance abuse CLE credit. Lunch will be provided.

Sponsored by: the Penn State Journal of Law and International Affairs.

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JLIA 2013 symposium poster digital.pdf


nationalsecuritylaw another upcoming event: “Does the Law of Armed Conflict Apply to Drug-Related Violence?” (Columbia, Feb. 11)

January 27, 2013

See the attached invitation.

Invitation Debate 11 February 2013.pdf


nationalsecuritylaw upcoming event: International Humanitarian Law Workshop, March 23-24, 2013 – UVA Law School

January 27, 2013

This should be a very interesting event. Details and an application are attached:

APPLICATION ATTACHED. Application deadline is February 15, 2013.

UVA Law IHL Workshop Flyer.pdf

UVA Law IHL Workshop Application.docx


nationalsecuritylaw Upcoming Event: Invitation to Duke’s National Security Law Conference

January 18, 2013

Duke’s annual conference is always terrific:

The Center on Law, Ethics and National Security is pleased to announce that its annual conference will be held Friday, March 1st, and Saturday, March 2nd at Duke Law School in Durham, NC. You are cordially invited to attend.

This year’s theme is “Battlefields, Boardrooms, and Backyards” and will address such topics as cyberwar, robotic weapons, security technology and privacy, business & national security issues, military commissions, civil-military relations, piracy and maritime legal issues, ethics, and more. The full agenda is attached.

General James N. Mattis, USMC, the commander of U.S. Central Command (which is responsible for the Middle East, Southwest Asia, and the Horn of Africa) has agreed to be our dinner speaker at the magnificent Washington Duke Inn right here on campus.

There is no conference fee; you only have to pay for the meals. However, everyone must register to attend. You can register online through our conference website: http://web.law.duke.edu/lens/conferences/2013/program .

However, if you prefer, you can simply fill out the attached form and mail it (with a check if you are joining us for lunch and/or the reception and dinner) to the address on the form.

Also, if you would like to pay for your meals by credit card (and do not want to pay online), you can fax that information with your completed registration form to 919-660-1769.

Ms. Dana Norvell is the point of contact for any questions, and she can be reached at norvell or by phone at (919) 613-7080.

Again, all the details are on our conference website: http://web.law.duke.edu/lens/conferences/2013/program

I really look forward to seeing you at the conference!. Don’t miss this one!

Sincerely, Charlie Dunlap

Charles J. Dunlap, Jr.

Major General, USAF (Ret.)

http://www.law.duke.edu/fac/dunlap

Executive Director, Center on Law, Ethics and National Security and

Professor of the Practice of Law

Duke University School of Law

2013_LENS_Conference_AgendaFinal16Jan.pdf

LENSConference2013Registration_FINAL_E.pdf


nationalsecuritylaw Convening Authority for Military Commissions Declines to Withdraw Conspiracy Charge Against Alleged 9/11 Co-Conspirators Pending Appellate Ruling

January 18, 2013

From a DOD press release:

Convening Authority for Military Commissions Declines to Withdraw Conspiracy Charge Against Alleged 9/11 Co-Conspirators Pending Appellate Ruling

01/18/2013 12:26 PM CST


nationalsecuritylaw upcoming event: January 24, Luncheon Program – Keynote Speaker Mike McConnell

January 18, 2013

From the ABA Standing Committee on Law and National Security:

If you will be in Washington, DC on January 24, we invite you to join us at a luncheon featuring Mike McConnell who will discuss “America’s Challenges in Cyberspace” The registration Flyer is attached. We will also post his remarks on the cyber website, linked through www.americanbar.org/natsecurity

Our January 24 luncheon program will feature John M. (Mike) McConnell, Vice Chairman, Booz Allen Hamilton and the second Director of National Intelligence under Presidents Bush and Obama. He will discuss “America’s Challenges in Cyberspace.”

DATE: January 24

TIME: 12:00 noon to 1:30 p.m.

LOCATION: Army Navy Club, 901 17th Street, NW, Washington DC

REGISTRATION: form attached or return rsvp by email. We will accept payment at the door by check.

Holly McMahon

Staff Director

Standing Committee on Law and National Security

740 15th Street, NW, Washington, DC 20005

(202) 662-1035

holly.mcmahon

visit our website:

www.americanbar.org/natsecurity

Luncheon (Mike McConnell) – Biography.pdf


nationalsecuritylaw addendum FW: forthcoming scholarship

January 16, 2013

I forgot to mention: the Harvard National Security Journal is currently seeking submissions. If you have a paper you are looking to place at this time, click here for more info: http://harvardnsj.org/submissions/.

From: Robert Chesney
Sent: Wednesday, January 16, 2013 9:15 AM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: forthcoming scholarship

The Harvard National Security Journal has just published the first issue of its fourth volume, chock full of interesting papers from list members I’m happy to say:

Notes on a Terrorism Trial – Preventive Prosecution, “Material Support” and The Role of The Judge after United States v. Mehanna
4 Harv. Nat’l Sec. J. 1 (2012)
By George D. Brown, Boston College Law School

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence—which may show just how much of a “terrorist” the defendant is—are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”

Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions
4 Harv. Nat’l Sec. J. 58 (2012)
By Norman Abrams, UCLA Law School

This Article examines a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules already expressly apply to terrorism cases, others contain an exigent circumstance element that can and, it is recommended, should be adapted to terrorism contexts. Finally, building on both of these sets of special rules, it is proposed that a similar new exception should be applied to coerced confession rules. Specifically, in Part I, four existing “exceptions” to constitutional rules of evidentiary admissibility are examined—relating to Fourth Amendment privacy protections, compulsory process, confrontation, and Miranda. The first two of these exceptions were originally formulated in the context of terrorism investigations; the second two were developed in situations involving exigent circumstance and public safety concerns. This Article endorses the extension to terrorism investigations of the public safety exception to the requirement of Miranda warnings. (Along the same lines, recently-made-public FBI guidelines have adapted this exception for use in interrogating suspected terrorists.) It is also proposed that the public safety exception—dealing with confrontation issues—should be extended to terrorism investigations.

Part II, building on the described existing and proposed terrorism investigation exceptions, makes the case for the creation of a new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure—coerced confessions. A cabined exception is proposed that would, in exigent circumstances and to gather intelligence relevant to terrorism prevention, allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing Supreme Court precedents, might otherwise have been ruled to violate the Constitution.

Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?
4 Harv. Nat’l Sec. J. 131 (2012)
By Assaf Harel, Major, Israel Defense Forces. Presently serving as a legal advisor in the Military Advocate General’s Corps.

This Article examines what authority coastal states have under international law to protect their offshore platforms from the dire consequences of such attacks. It argues that while states have sufficient legal authority to take measures for protecting offshore platforms located in their territorial sea, they lack such authority outside that area. In particular, this Article addresses the authority given to states in the 1982 United Nations Convention on the Law of the Sea (LOSC) to restrict navigation within 500-meter-wide safety zones around offshore platforms located in the exclusive economic zone (EEZ) or on the continental shelf. In this regard, this Article argues that not only are such safety zones insufficient for protecting platforms from deliberate attacks, but they also seem to be insufficient for protecting those platforms from safety hazards.

National Security Interest Convergence

4 Harv. Nat’l Sec. J. 185 (2012)
By Sudha Setty, Western New England University School of Law

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Legislators act in their political self-interest—both in terms of responding to party forces and constituents—in casting votes that often give primacy to national security interests at the expense of civil liberties. Actions taken by legislators which are rights-protective in the national security context are largely predictable when understood as effects of both political realities and interest convergence theory. Lawmakers often will not act on the basis of civil liberties concerns, but will implement rights-protective measures only because those measures serve another interest more palatable to mainstream constituencies.

Although unmooring from deontological grounding creates numerous limitations as to how many rights-protective measures can be implemented on a long-term basis, interest convergence offers a limited opportunity for lawmakers and policy experts to leverage self-interest and create single-issue coalitions that can protect the rights of outsider groups abused by current national security policies.


nationalsecuritylaw forthcoming scholarship

January 16, 2013

The Harvard National Security Journal has just published the first issue of its fourth volume, chock full of interesting papers from list members I’m happy to say:

Notes on a Terrorism Trial – Preventive Prosecution, “Material Support” and The Role of The Judge after United States v. Mehanna
4 Harv. Nat’l Sec. J. 1 (2012)
By George D. Brown, Boston College Law School

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence—which may show just how much of a “terrorist” the defendant is—are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”

Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions
4 Harv. Nat’l Sec. J. 58 (2012)
By Norman Abrams, UCLA Law School

This Article examines a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules already expressly apply to terrorism cases, others contain an exigent circumstance element that can and, it is recommended, should be adapted to terrorism contexts. Finally, building on both of these sets of special rules, it is proposed that a similar new exception should be applied to coerced confession rules. Specifically, in Part I, four existing “exceptions” to constitutional rules of evidentiary admissibility are examined—relating to Fourth Amendment privacy protections, compulsory process, confrontation, and Miranda. The first two of these exceptions were originally formulated in the context of terrorism investigations; the second two were developed in situations involving exigent circumstance and public safety concerns. This Article endorses the extension to terrorism investigations of the public safety exception to the requirement of Miranda warnings. (Along the same lines, recently-made-public FBI guidelines have adapted this exception for use in interrogating suspected terrorists.) It is also proposed that the public safety exception—dealing with confrontation issues—should be extended to terrorism investigations.

Part II, building on the described existing and proposed terrorism investigation exceptions, makes the case for the creation of a new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure—coerced confessions. A cabined exception is proposed that would, in exigent circumstances and to gather intelligence relevant to terrorism prevention, allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing Supreme Court precedents, might otherwise have been ruled to violate the Constitution.

Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?
4 Harv. Nat’l Sec. J. 131 (2012)
By Assaf Harel, Major, Israel Defense Forces. Presently serving as a legal advisor in the Military Advocate General’s Corps.

This Article examines what authority coastal states have under international law to protect their offshore platforms from the dire consequences of such attacks. It argues that while states have sufficient legal authority to take measures for protecting offshore platforms located in their territorial sea, they lack such authority outside that area. In particular, this Article addresses the authority given to states in the 1982 United Nations Convention on the Law of the Sea (LOSC) to restrict navigation within 500-meter-wide safety zones around offshore platforms located in the exclusive economic zone (EEZ) or on the continental shelf. In this regard, this Article argues that not only are such safety zones insufficient for protecting platforms from deliberate attacks, but they also seem to be insufficient for protecting those platforms from safety hazards.

National Security Interest Convergence

4 Harv. Nat’l Sec. J. 185 (2012)
By Sudha Setty, Western New England University School of Law

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Legislators act in their political self-interest—both in terms of responding to party forces and constituents—in casting votes that often give primacy to national security interests at the expense of civil liberties. Actions taken by legislators which are rights-protective in the national security context are largely predictable when understood as effects of both political realities and interest convergence theory. Lawmakers often will not act on the basis of civil liberties concerns, but will implement rights-protective measures only because those measures serve another interest more palatable to mainstream constituencies.

Although unmooring from deontological grounding creates numerous limitations as to how many rights-protective measures can be implemented on a long-term basis, interest convergence offers a limited opportunity for lawmakers and policy experts to leverage self-interest and create single-issue coalitions that can protect the rights of outsider groups abused by current national security policies.


nationalsecuritylaw forthcoming scholarship

January 12, 2013

"Executive Branch Legalisms"

124 Harvard Law Review Forum 21 (2012)DAVID FONTANA, George Washington University Law School

The Office of Legal Counsel (OLC) and White House Counsel’s Office (WHC) have both been the subject of much recent attention in legal scholarship, and both offices are at the center of the debate between Bruce Ackerman and Trevor Morrison that this paper addresses. However, these offices remain less representative of and less important to executive branch legalism than the substantial amount of attention these offices are receiving suggests. These offices matter, and matter more than any other individual legal office in the executive branch. However, there are limitations in using these two offices as a means of understanding the executive branch’s legal operations more generally.

Executive branch lawyering is still overwhelmingly lawyering by civil service lawyers who are not appointed by the President or substantially affected by the lawyers that the President appoints. In other words, the law created and shaped by civil service lawyers — what I call “civil service legalism” — is a crucial but increasingly unappreciated part of the legal presidency (and different than the law created and shaped by the more “political lawyers” in OLC and WHC). In particular, there are differences between OLC/WHC and the large majority of other legal offices in the executive branch in terms of their legal personnel: how do these lawyers come to work in the executive branch, and what are their incentives once they are working there? The executive branch is a “‘they," not an "it,’” and so too executive branch legality is more accurately described as executive branch legalisms — a plural and not a singular, with some important implications for our understanding of separation of powers.

The Counterinsurgent’s Constitution: Law in the Age of Small Wars

Oxford University Press

Ganesh Sitaraman (Vanderbilt)

Since the "surge" in Iraq in 2006, counterinsurgency effectively became America’s dominant approach for fighting wars. Yet many of the major controversies and debates surrounding counterinsurgency have turned not on military questions but on legal ones: Who can the military attack with drones? Is the occupation of Iraq legitimate? What tradeoffs should the military make between self-protection and civilian casualties? What is the right framework for negotiating with the Taliban? How can we build the rule of law in Afghanistan?

The Counterinsurgent’s Constitution tackles this wide range of legal issues from the vantage point of counterinsurgency strategy. Ganesh Sitaraman explains why law matters in counterinsurgency: how it operates on the ground and how law and counterinsurgency strategy can be better integrated. Counterinsurgency, Sitaraman notes, focuses on winning over the population, providing essential services, building political and legal institutions, and fostering economic development. So, unlike in conventional war, where law places humanitarian restraints on combat, law and counterinsurgency are well aligned and reinforce one another. Indeed, following the law and building the rule of law is not just the right thing to do, it is strategically beneficial. Moreover, reconciliation with enemies can both help to end the conflict and preserve the possibility of justice for war crimes. Following the rule of law is an important element of success.

The first book on law and counterinsurgency strategy, The Counterinsurgent’s Constitution seamlessly integrates law and military strategy to illuminate some of the most pressing issues in warfare and the transition from war to peace. Its lessons also apply to conflicts in Libya and other hot-spots in the Middle East.

"Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case"

Vanderbilt Law Review, Vol. 66, p. 101, 2013
ANDREW KENT, Fordham University School of Law

The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post-9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation’s military had a right to access civilian courts during wartime to challenge their trial before a military commission. Even though admitted members of an enemy nation’s military had never before accessed the civilian justice system during wartime, the Court in Quirin declined to explain why it reversed course in such a significant fashion. Since and because of Quirin, it has become accepted that literally any individual present in the United States has a constitutional right to habeas corpus.

This Article first shows that on the legal merits, the Quirin Court’s ruling on court access was erroneous. The history of lack of court access for enemy fighters and nonresident enemy aliens is reviewed, starting with the English common law background on which the U.S. Constitution was written and continuing through the Founding period to the Civil War, World War I, and beyond. Second, the Article seeks to explain why the Court acted in such a surprising fashion in Quirin — ruling in favor of unsympathetic enemies during wartime, even though case law and other legal authorities provided solid reasons to reject their plea for court access. To do so, the Article draws on a diverse set of explanatory tools, including those of legal history and political science. Next, the Article shows that Quirin’s rejection of the old framework governing court access for enemy fighters and nonresident enemy aliens has had profound but underappreciated doctrinal consequences — including helping lead to the result in Boumediene v. Bush. The Article then argues that, as a policy matter, admitted or otherwise undisputed combatants in an enemy nation’s employ do not need and probably should not have a right to access U.S. courts during wartime. Quirin was thus wrong on the law and highly problematic as policy. Finally, the Conclusion highlights both current and potential future situations in which the Article’s legal analysis could be important.

"A Strategic Imperative: Legal Representation of Unprivileged Enemy Belligerents in Status Determination Proceedings"

11 Santa Clara Journal of International Law 195 (2012)

KRISTINE A. HUSKEY, Georgetown University Law Center, Physicians for Human Rights

In the ongoing “war against terrorism,” the United States has been detaining thousands of individuals without charge or trial until “the end of hostilities.” Should these individuals receive legal counsel during military administrative proceedings, which may result in long-term, if not lifelong, deprivation of liberty?

This article addresses the thorny question of why due process and, specifically, legal representation, is critical in the status determination hearings of detainees in U.S. military custody at the Bagram Theater Internment Facility. As a preliminary matter, one must recognize that the authority for preventive indefinite detention as proffered by Hamdi v. Rumsfeld may be reaching its limit given the realities in the current U.S. conflict against Al-Qaeda and affiliated groups. Factors, such as the lack of temporal and geographical boundaries, and the fact that the “enemy” is stateless and dressed as a civilian, argue that the “understanding” of preventive detention under traditional laws of war by the Hamdi Court has unraveled. This creates the need for more, not less, due process in status determination proceedings, as well as questions the authority to indefinitely detain such individuals.

Second, the Boumediene Court’s discussion of Eisentrager and its heavy criticism of the Combatant Status Review Tribunals (CSRTs) highlight the need for counsel and an adversarial process to better achieve accurate status determinations of people picked up in the “war against terrorism.” Further, a comparison of the practical concerns and challenges in the Bagram status determination hearings to those in the CSRTs reveal that while the Bagram process has improved, it has not gone far enough.

In conclusion, both the rationale underlying counsel as fundamental to due process and the practical circumstances involved in the “war against terrorism” combine to make legal representation a strategic imperative in status determinations of detainees.

This paper was originally presented as a response to Geoffrey Corn and Peter Chickris’ article, "Unprivileged Belligerents, Preventive Detention, and Fundamental Fairness: Rethinking the Review Tribunal Representation Model," at the symposium, "Emerging Issues in International Humanitarian Law," sponsored by Santa Clara University Law School.