nationalsecuritylaw United States v. Harun (E.D.N.Y. Mar. 20, 2013) (al Qaeda prosecution)

March 20, 2013

Readers should note that this is a case in which Italy had custody of the person and extradited him to the United States—something that surely could only occur pursuant to an agreement by the US not to put him into military detention, let alone a military commission prosecution process.

From DOJ’s press release (see also the indictment here):

01

United States Attorney Loretta E. Lynch

Eastern District of New York


nationalsecuritylaw a second batch of forthcoming scholarship

March 20, 2013

Kill-Lists and Accountability

Georgetown Law Journal, Volume 102 (forthcoming)

Gregory S. McNeal, Pepperdine University School of Law

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes.

The article begins by reporting the results of a case study that began with a review of hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in non-fiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community who are involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication. After explaining how targeted killings are conducted, the article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assess accountability along two dimensions, creating four accountability mechanisms. After setting forth the analytical framework, it is applied to the targeted killing program. The article concludes with accountability reforms that could be implemented based on the specified framework.

"The Power to Kill or Capture Enemy Combatants"

European Journal of International Law, Vol. 24, 2013
NYU School of Law, Public Law Research Paper No. 13-02

RYAN GOODMAN, New York University School of Law
Email: ryan.goodman

During wartime a critical legal question involves the scope of authority to choose whether to kill or capture enemy combatants. An important view, expressed by many contemporary experts, maintains that a combatant can be subject to lethal force wherever the person is found — unless and until the individual offers to surrender. I argue that, in certain well-specified and narrow circumstances, the use of force should instead be governed by a least-restrictive-means analysis. That is, I contend that the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided. The article shows how this maxim fits into the overall structure of the laws of war. It also shows how a parallel set of rules — on the definition of hors de combat — achieves many of the same effects. And it identifies plausible scenarios in which these rules would apply. Admittedly, there are all manner of caveats and conditions that will qualify the application of this maxim. However, the general formula — and its key components — should be understood to have a solid foundation in the structure, rules and practices of modern warfare. In sum, belligerents must comply with an important (albeit conditional) set of constraints in planning and conducting kill or capture operations against enemy fighters.

"Targeting and the Concept of Intent"

Cornell Legal Studies Research Paper

JENS DAVID OHLIN, Cornell Law School
Email: jens-ohlin

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

"Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict"

International Humanitarian Law and the Changing Technology of War (2012)

MARKUS WAGNER, University of Miami – School of Law
Email: mwagner

The article analyzes the use of autonomous weapon systems (AWS) and the challenges that such systems pose with respect to compliance with the law of armed conflict. Importantly, AWS pose different questions than those surrounding the current use of unmanned aerial systems. For that reason, the article briefly sketches the history of AWS. It then distinguishes the current technologies, which operate either by way of remote control or through automated mechanisms, from systems which are currently under development and which operate either wholly autonomously or at least at a higher level of autonomy and without direct human input while carrying out their missions (II.).

Part III. provides a detailed analysis of AWS under the principle of distinction and the principle of proportionality. It argues that while AWS may be able to satisfy the former principle under certain conditions, it is not clear that the same is true for the latter. The critical challenges with respect to the principle of proportionality and its applicability for AWS is manifold. The principle is difficult to apply in the abstract and thus is difficult to "translate" into machine code in a manner that allows it to be applied to real-life situations and changing circumstances. This problem originates in the lack of a generally accepted definition of what exactly the principle of proportionality requires in each situation. The article therefore concludes that current technology is incapable of allowing AWS to be operated within the existing framework of the law of armed conflict. While there may well be situations in which these requirements are met, these situations include only a fraction of modern military operations and AWS do not provide additional benefits over existing weaponry for these situations. Part IV. provides concluding observations.

The 9/11 Military Commission Motion Hearings: An Ordinary Citizen Looks at Comparative Legitimacy

Benjamin Davis

University of Toledo College of Law
Southern Illinois University Law Review, Fall 2013

Under the Military Commission Act of 2009, since May 2012 the 9/11 Military Commission has been proceeding at Guantanamo Bay. As an ordinary citizen observer in October 2012 at a remote feed in Fort Meade, Maryland and in late January 2013 at Guantanamo Bay, the author has followed the 9/11 military commission motion hearings. Numerous dualities became readily apparent: such as, Guantanamo Bay as tropical paradise and an unseen tropical detention hell; the impact of unseen detention and interrogation “offscreen” on the courtroom process “onscreen;” the virtual presence of offscreen classification authorities in the courtroom and the judge’s control; the flexible law space of a military commission act built to stand alone and its amenability to diverse interpretations with other federal law and practice (Article III courts and courts-martial); the operability/inoperability and applicability/inapplicability of the Constitution; the defendants and the families of 2976 victims; military honor and duty and the intelligence community; legitimate and illegitimate government secrets and the citizen’s right to the truth; the domestic observer and the international observer; a domestic law vision and an international law vision. All of these dualities (and others that become apparent as one processes the experience) flow together to make Guantanamo Bay more than a place but an idea. After grappling with the legitimacy of the Guantanamo Bay idea, the author suggests one ordinary citizen’s view of what should be our next choices on adjudication, torture, indefinite detention, and accountability.

Targeted Killing: When Proportionality Gets All Out of Proportion

Amos N. Guiora

University of Utah – S.J. Quinney College of Law
University of Utah College of Law Research Paper No. 1

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its core function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. Nonetheless, an effective targeted killing provides the state with significant advantages in the context of counterterrorism. Rather than relying on the executive branch making decisions in a “closed world” devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information’s admissibility. The process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

Comparing Three Wrongs of Global Concern: Terrorism, Trafficking, and Piracy

Wayne McCormack

Thode Professor of Law

University of Utah

Terrorism, slavery, and piracy may be linked in a number of ways. Terrorist tactics can be used to enslave a population, and enslaved populations can be trained in the ways of terrorism. In the modern world, human trafficking may provide both funds and camouflage for terrorist organizations. Both are linked in organized crime along with drug trafficking and piracy. It was not until 2003 that a treaty committed most nations of the world to taking effective steps to stamp out trade in humans, placing a special emphasis on children and women. Despite universal revulsion toward slavery, there are many forms of forced labor still in practice, and international law retains some definitional issues to be resolved. Similarly, terrorism is now subject to almost universal condemnation but has a number of definitional problems and virtually no transnational enforcement mechanisms. This article uses both U.S. experience with racial terrorism and the growing body of international criminal law to propose an international body of criminal law to fill some of the remaining gaps. The international experience with piracy provides a model for comparison that shows how effective militarily-aided law enforcement can be when the commercial sector exerts sufficient pressure.


nationalsecuritylaw United States v. Hayat (9th Circuit Mar. 13, 2013)

March 20, 2013

* United States v. Hayat (9th Cir. Mar. 13, 2013)

Readers may recall the material support prosecution of Hamid Hayat, a Lodi, California man who was arrested upon return from a stay in Pakistan in which he allegedly spent time among militants who convinced him to carry out an unspecified attack once back in the United States. The 9th Circuit has affirmed his conviction.


nationalsecuritylaw forthcoming scholarship

March 20, 2013

As many of you probably noticed, I’ve been lax about circulating forthcoming scholarship for quite a while. My apologies for that. I’ve assembled a series of new posts on this score, hopefully accounting for everyone who has sent me stuff recently. If after a few days you see that I’ve missed something you sent, please accept my additional apologies, and remind me by resending the item. Thanks!

"Interpretation Catalysts and Executive Branch Legal Decisionmaking"

Yale Journal of International Law, Vol. 38, 2013

REBECCA INGBER, Columbia University – Law School
Email: rebecca.ingber

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking.

This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation – which this Article terms “interpretation catalysts” – in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions whether to use force against an armed group; lawsuits filed against the U.S. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking. Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision, and thus shapes the ultimate substantive position itself. These distinct mechanisms for decisionmaking each carry their own individual pressures and biases; thus in laying bare the interpretation catalysts phenomenon, this Article demonstrates potential avenues for actors inside and external to the executive branch to predict, to explain, and even to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials.

Aspects of Leadership: Ethics, Law and Spirituality

Carroll Connelley and Paolo Tripodi (editors)

Marine Corps University Press

The Aspects of Leadership: Ethics, Law and Spirituality is a blended collection of scholarly works that address issues in the area of ethics, law and spirituality that affect military leaders at all levels. This book was created to provide Professional Military Educational institutions and the operating forces a resource of thought provoking material on the challenging ethical and legal considerations facing Marine leaders today. This project was inspired by the Commandant of the Marine Corps General Amos who in his planning guidance told the Corps that we must "better educate and train our Marines to succeed in distributed operations and increasingly complex environments." With that in mind, the editors of this work gathered 20 academic and military professionals to provide their reflections on their area of expertise to create a coherent volume with true value for the military practitioner.

Contents:

Introduction / Carroll Connelley — ETHICS: Leadership, ethics and culture in COIN operations: case examples from Marjeh, Afghanistan / Brian Christmas and Paula Holmes-Eber ; Ethics and irregular warfare: the role of the stakeholder theory and care ethics / Geoffroy Murat ; A pedagogy of practical military ethics / Clinton A. Culp ; Leadership in a world of blurred responsibilities / Emmanuel R. Goffi ; When loyalty to comrades conflicts with military duty / J. Peter Bradley ; Leadership and the ethics of dissent: reflections from the Holocaust / Paolo Tripodi ; Enacting a culture of ethical leadership: command and control as unifying mind / Clyde Croswell and Dan Yaroslaski — LAW: Training the rules of engagement for the counterinsurgency fight / Winston Williams ; Rules of engagement: law, strategy, and leadership / Laurie R. Blank ; Humanity in War: leading by example; the role of the Commander in modern warfare / Jamie A. Williamson ; Agency of Risk: the balance between protecting military forces and the civilian population / Chris Jenks ; Accountability or impunity: rules and limits of command responsibility / Kenneth Hobbs — SPIRITUALITY: Spiritual injuries: wounds of the American warrior on the Battlefield of the Soul / David Gibson and Judy Malana ; Soldier spirituality in a combat zone: preliminary findings / Franklin Eric Wester ; The spiritual as nexus for the ethical and legal / Jeffrey S. Wilson ; The religious factor in military leadership / Paula Otis ; Spiritual leadership in the battle space: Who is in charge? A personal essay / Arnold Fields.

Reconceptualizing Federal Courts in the War on Terror

Jonathan Hafetz

Seton Hall Law School
St. Louis University Law Journal, Vol. 56, 2012

Since 9/11, the United States has created a framework that allows for indefinite detention under the law of war and prosecution in military commissions as alternatives to charging terrorism suspects in federal court. These alternatives have affected how federal courts are represented and perceived. Proponents of using federal courts, for example, increasingly emphasize their toughness as a way of demonstrating their continued viability as a forum for terrorism prosecutions. At the same time, federal courts are criticized for risking disclosure of classified or other sensitive information, infringing on executive prerogatives, and undermining military and intelligence operations. These criticisms have not only helped legitimize military alternatives to federal criminal prosecution for the long-term incapacitation of terrorism suspects; they have also supplied justifications for denying civil litigants – particularly, victims of torture, arbitrary detention, and other forms of mistreatment – a judicial remedy and for dismissing legal challenges to controversial government programs under various justiciability doctrines.

This Article explores how Guantánamo and the war on terror more generally have altered the perception and operation of federal courts. Part I describes the growth after 9/11 of a new type of military detention system that provides an alternative to Article III-court prosecutions of terrorism suspects. Part II examines how this parallel military detention system has affected the way federal courts are defined and represented as a forum for terrorism prosecutions. Part III looks at federal courts from the perspective of their role in providing a forum for plaintiffs seeking redress for torture, unlawful detention, and related abuses. It describes how many of the same reasons cited in opposition of federal criminal prosecution of terrorism suspects are invoked – often by federal judges themselves – to prevent federal court adjudication of civil damages litigation arising out of government misconduct during counterterrorism operations. Part IV examines federal courts from another vantage point, describing their engagement with the new, post-9/11 military detention system through the exercise of habeas corpus jurisdiction. Here, federal courts have performed two, inter-related functions: first, articulating general rules and principles to govern military detention and trial, and second, acting as quasi national security courts by reviewing the validity of individual prisoners’ military confinement. While federal courts have imposed some constraints on the government’s ability to hold terrorism suspects outside the criminal justice system, they have largely accommodated the new forms of military detention that emerged after 9/11 under the rubric of the war on terrorism and have shown considerable deference to the government’s allegations in individual cases.

Alone in a Sea of Voices: Recognizing a New Form of Isolation Through Language Barriers

Peter Jan Honigsberg

University of San Francisco – School of Law

Sixteen-year old Uzbek, Sunnat (not his real name), was seized in Afghanistan following the attacks on September 11, 2001. He was transported to the detention center in Guantanamo Bay, Cuba in 2002. Despite being cleared for release, Sunnat waited eight years to find a country that would take him.

Sunnat was placed in a cell among other detainees in the general prison population. He spoke neither Arabic nor English, the lingua francas of the prison and the only languages spoken by the detainees in neighboring cells. Consequently, for much of his time in Guantanamo he talked to no one. He awoke each morning and cried. Sunnat could, of course, reach out and communicate through eye contact, hand signs and facial expressions. However, Sunnat never meaningfully communicated with his neighbors. Absence of meaningful human contact is a characteristic of isolation and a source of suffering caused by isolation. Sunnat suffered a new and unique form of isolation, known as "Isolation by language barriers."

In this article, I use Sunnat’s story as a lens through which to see how isolation by language barriers is a form of isolation that warrants special attention in the detention context. Similar to other forms of isolation, isolation by language barriers may rise to the level of torture or cruel, inhuman or degrading treatment, or CID. Academic literature on isolation, including literature in the social sciences and international fields, has only cursorily acknowledged the experience of being isolated by language in detention, and has not identified the experience as a distinct type of isolation. Consequently, this essay is original work.

In comparing isolation by language barriers to other forms of isolation, this article will also create a framework where isolation by language barriers is recognized as a distinct form of isolation similar to solitary confinement, incommunicado detention and administrative segregation. In addition, the article will identify circumstances outside Guantanamo where isolation by language barriers also exists, such as in immigration and asylum detention centers. The article concludes with suggestions for remedying situations of isolation by language barriers.

Gender, National Security, and Counter-Terrorism: Human rights perspectives

Edited by Margaret L. Satterthwaite, Jayne Huckerby

Published December 21st 2012 by Routledge – 288 pages

In the name of fighting terrorism, countries have been invaded; wars have been waged; people have been detained, rendered and tortured; and campaigns for "hearts and minds" have been unleashed. Human rights analyses of the counter-terrorism measures implemented in the aftermath of 11 September 2001 have assumed that men suffer the most—both numerically and in terms of the nature of rights violations endured. This assumption has obscured the ways that women, men, and sexual minorities experience counter-terrorism. By integrating gender into a human rights analysis of counter-terrorism—and human rights into a gendered analysis of counter-terrorism—this volume aims to reverse this trend. Through this variegated human rights lens, the authors in this volume identify the spectrum and nature of rights violations arising in the context of gendered counter-terrorism and national security practices. Introduced with a foreword by Martin Scheinin, former UN Special Rapporteur on Human Rights and Counter-Terrorism, the volume examines a wide range of gendered impacts of counter-terrorism measures that have not been theorized in the leading texts on terrorism, counter-terrorism, national security, and human rights. Gender, National Security and Counter-Terrorism will be of particular interest to scholars and students in the disciplines of Law, Security Studies and Gender Studies.


nationalsecuritylaw INVITATION – ICRC/Georgetown Book Launch and Panel Discussion

March 19, 2013

From our friends at the ICRC and Georgetown:

Dear friends and colleagues,

We share below an invitation to a book launch co-sponsored by the ICRC and hosted by Georgetown Law’s National Security Law Society. On the occasion of the release of two major LOAC publications, we will host a discussion on the Relevance of International Humanitarian Law in the United States after the end of hostilities. Please see the attached flyer for additional information.

We look forward to an interesting and informative dialogue and hope you will be able to join us.

Kind regards,
Anne Quintin, ICRC Washington
Sarah Harrison, National Security Law Society

RSVP: icrcevents

Book Launch:

“The Relevance of International Humanitarian Law
in the United States after the End of Hostilities”

Date: April 2nd, 2013
Time: 11:30am – 1:30pm
Place: Georgetown Law, Hotung 2000

The Law of Armed Conflict: An Operational Approach
Geoffrey S. Corn, Victor Hansen, Richard B. Jackson, Chris Jenks, Eric Talbot Jensen and James A. Schoettler Jr.

International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War
Laurie Blank and Greg Noone

*A light lunch and non-alcoholic beverages to be served

Book launch flyer.docx


nationalsecuritylaw United States v. Abu Ghayth (S.D.N.Y.) (indictment against al Qaeda senior figure)

March 7, 2013

See attached indictment, and press release below:

Indictment S13 98 Cr 1023 Stamped.pdf


nationalsecuritylaw United States v. Khan (D. Ore. Mar. 5, 2013) (charges in material support case linked to suicide bombing in Lahore in 2009)

March 6, 2013

From DOJ’s press release:

OREGON RESIDENT CHARGED WITH CONSPIRING TO PROVIDE MATERIAL SUPPORT TO TERRORISTS

IN CONNECTION WITH SUICIDE BOMBING OF ISI HEADQUARTERS IN PAKISTAN

PORTLAND, Ore. – Reaz Qadir Khan, 48, a naturalized U.S. citizen residing in Portland, has been arrested on charges of conspiracy to provide material support to terrorists for the assistance he allegedly provided to an individual who participated in a May 27, 2009, suicide bomb attack at the headquarters of Pakistan’s intelligence service in Lahore, Pakistan, that killed approximately 30 individuals and injured 300 more, announced Amanda Marshall, U.S. Attorney for the District of Oregon; Lisa Monaco, Assistant Attorney General for the Justice Department’s’ National Security Division; and Gregory Fowler, Special Agent in Charge of the FBI Portland Division.

FBI agents arrested Khan this morning without incident at his residence in Portland. He made his initial appearance today before Magistrate Paul Papak in federal court in Portland, where the charges against him were unsealed and the defendant was detained, pending a detention hearing tomorrow, March 6, 2013. Khan is charged by a federal indictment with one count of conspiracy to provide material support to terrorists. If convicted, he faces a potential maximum sentence of life in prison.

“The indictmentunsealed today set forth how Mr. Kahn allegedly supported a terrorist who killed dozens of innocent people in Lahore Pakistan,” said U.S. Attorney Marshall. “The events of May 27, 2009 remind us that terrorism is not defined by Muslims targeting non-Muslims, but is defined by violent extremists targeting anyone they perceive as a threat to their oppressive agenda without regard for the religion, race or nationality of their victims. We will find and prosecute those who use this country as a base to fund and support terrorists. Dismantling terrorist networks continues to be a top priority for this office and the Department of Justice.”

“Those who provide material support to terrorists are just as responsible for the deaths and destruction that follow as those who commit the violent acts,” said Greg Fowler, FBI Special Agent in Charge of the Portland Division. “The FBI will continue to focus on cutting off the flow of funds that help terrorists train, travel and launch their attacks.”

According to the indictment, from Dec. 14, 2005 through June 2, 2009, Khan conspired with an individual named Ali Jaleel and others to provide material support and resources, and to conceal the nature of such support and resources, knowing they would be used in a conspiracy to kill, maim or kidnap persons abroad. Jaleel was a Maldivian national who resided outside the United States. Jaleel died while participating in the suicide attack on the Inter-Services Intelligence (ISI) headquarters in Lahore on May 27, 2009, according to the indictment.

As part of the conspiracy, Khan allegedly used email and intermediaries to provide advice and financial assistance to Jaleel and his family. Khan allegedly provided Jaleel with advice to help him in his efforts to travel undetected from the Maldives to commit violent jihad and used coded language when communicating with Jaleel to avoid detection. Further, Khan allegedly provided financial assistance so Jaleel could attend a training camp to prepare for an attack such as that carried out in Lahore on May 27, 2009. Khan also allegedly provided financial support and advice to Jaleel’s family while Jaleel traveled to Pakistan and after he died.

In April 2006, Jaleel and a small group from the Maldives attempted to travel to Pakistan to train for violent jihad in Iraq or Afghanistan, but they were detained and returned to the Maldives, where Jaleel was placed under house arrest, according to the indictment.

In 2008, Jaleel allegedly emailed Khan about his plans to travel to Pakistan again, and in response, Khan provided advice to Jaleel on how to avoid detection and offered to arrange for money to be sent to Jaleel. In October 2008, Jaleel allegedly told Khan he needed “$2500 for everything” and asked that Khan take care of his family and educate his children. Khan promised to help Jaleel’s family. Khan later instructed Jaleel to pick up the money he needed to enter the training camp from an individual in Karachi, Pakistan. To arrange for this transfer, Khan allegedly contacted an individual in Los Angeles who he knew could quickly arrange for Jaleel to pick up money in Pakistan. According to indictment, the individual in Los Angeles then arranged for the money to be available for pick-up from the individual in Karachi.

On Nov. 5, 2008, Jaleel wrote Khan that he was about to gain admission to the training camp and that he would have left-over money from the funds that Khan had provided him. Khan allegedly advised Jaleel to keep the extra funds so they could be sent to Jaleel’s two wives in the Maldives and instructed Jaleel to leave a closed envelop with the individual in Karachi.

According to the indictment, on May 27, 2009, Jaleel and two others conducted the suicide attack at the ISI Headquarters in Lahore. The blast resulted in the death of approximately 30 people and injured 300 more. In a video released by the media outlet of al-Qaeda shortly after the attack, Jaleel allegedly made a statement taking responsibility for the attack and he was shown preparing for the attack at a training camp in what is believed to be the Federally Administered Tribal Area of Pakistan. In June 2009, Khan allegedly wired approximately $750 from a store in Oregon to one of Jaleel’s wives in the Maldives.

This case was investigated by the FBI. The prosecution is being handled by Assistant U.S. Attorney Ethan D. Knight from the U.S. Attorney’s Office for the District of Oregon. Trial Attorney David P. Cora, from the Counterterrorism Section of the Justice Department’s National Security Division, is assisting.

The charges contained in the indictment are merely allegations, and the defendant is presumed innocent unless and until proven guilty in a court of law.

# # #

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


nationalsecuritylaw United States v. Khan (S.D. Fla.) (jury conviction in material support case)

March 4, 2013

From DOJ’s press release:

MIAMI – A Miami federal jury today convicted Hafiz Muhammed Sher Ali Khan, 77, today on all counts of an indictment charging him with providing material support to terrorists, including the Pakistani Taliban, announced Wifredo A. Ferrer, U.S. Attorney for the Southern District of Florida, Michael B. Steinbach, Special Agent in Charge, FBI Miami Field Office, and the members of the South Florida Joint Terrorism Task Force (JTTF). According to public records, defendant Hafiz Khan was the Imam at the Miami Masjid in Miami, Florida. The indictment did not allege that the masjid participated in the defendant’s scheme.

After two months of trial, the jury convicted Khan on charges of conspiring to provide, and providing, material support to a conspiracy to murder, maim and kidnap persons overseas, and conspiring to provide material support to a foreign terrorist organization, specifically, the Pakistani Taliban. Sentencing has been scheduled for May 30, 2013. At sentencing, the defendant faces up to 15 years in prison on each count.

U.S. Attorney Ferrer stated, “Despite being an Imam, or spiritual leader, Hafiz Khan was by no means a man of peace. Instead, he acted with others to support terrorists to further acts of murder, kidnapping and maiming. But for law enforcement intervention, these defendants would have continued to transfer funds to Pakistan to finance the Pakistani Taliban, including its purchase of guns. Dismantling terrorist networks is a top priority for this Office and the Department of Justice.”

“Today, terrorists have lost another funding source to use against innocent people and U.S. interests,” said Special Agent in Charge Steinbach. “We will not allow this country to be used as a base for funding terrorists. Individuals such as Hafiz Muhammed Sher Ali Khan, who support terror, represent a threat to our safety and provide an example of why the FBI’s number one priority is counterterrorism.”

The Pakistani Taliban, also known as Tehrik e Taliban Pakistan, Tehrik I Taliban, Tehrik-e-Taliban and Tehreek e Taliban, is a Pakistan-based terrorist organization formed in or around December 2007 by an alliance of radical Islamist militants. On Sept. 1, 2010, the U.S. Department of State formally designated the Pakistani Taliban as a Foreign Terrorist Organization, under Section 219 of the Immigration and Nationality Act.

According to the evidence at trial, Khan, with the help of persons in South Florida and Pakistan, sent money and other material support to Pakistani Taliban contacts and sympathizers overseas. The Pakistani Taliban’s objectives include resistance against the lawful Pakistani government, enforcement of strict Islamic law known as Sharia, and opposition to the United States and coalition armed forces fighting in neighboring Afghanistan. The Pakistani Taliban has committed numerous acts of violence in Pakistan and elsewhere, including suicide bombings which resulted in the death of civilians as well as Pakistani police, army and government personnel, and also provided financing and training for the attempted bombing of New York’s Times Square in May 2010.

According to the evidence at trial, Khan sought to aid the Pakistani Taliban’s fight against the Pakistani government and its perceived allies, including the United States, by supporting acts of murder, kidnapping and maiming in Pakistan and elsewhere, in order to displace the lawful government of Pakistan and to establish Sharia. Khan transferred money from the United States to Pakistani Taliban supporters in Pakistan, primarily using bank accounts and wire transfer services in the United States and Pakistan. These funds were intended to purchase guns for the Pakistani Taliban, to sustain militants and their families and generally to promote the Pakistani Taliban’s cause. Khan also solicited and collected money in the United States for that purpose, taking great care to conceal his activities. In one recorded conversation introduced as evidence at trial, Khan stated that money cannot be sent openly to the Pakistani Taliban, but must instead be sent covertly through its supporters. Khan also used a madrassa he founded in Pakistan (where he was born) to provide shelter and other support to Pakistani Taliban militants. In another recorded conversation introduced as evidence at trial, Khan claimed that children from his madrassa have gone to train to kill Americans in neighboring Afghanistan.

Mr. Ferrer commended the investigative efforts of the FBI, U.S. Customs and Border Protection, U.S. Department of State, Broward Sheriff’s Office, Miami-Dade Police, City of Miami Police, City of Miramar Police, City of Margate Police, and the Florida Department of Environmental Protection, and the members of the South Florida Joint Terrorism Task Force. The case is being prosecuted by Assistant U.S. Attorneys John Shipley, Sivashree Sundaram and Michael Patrick Sullivan, from the U.S. Attorney’s Office for the Southern District of Florida, and Trial Attorney Bridget Behling from the Counterterrorism Section of the Justice Department’s National Security Division.

Related court documents and information may be found on the website of the District Court for the Southern District of Florida at www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov

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