nationalsecuritylaw upcoming event: 10th Anniversary Event for the Center for Terrorism Law

March 26, 2013

Please see the attached invitation for the details and registration information. Congratulations to the Center, and to Professor Jeffrey Addicott, on this anniversary.

Registration Info.pdf


nationalsecuritylaw ABA Standing Committee writing competition for law students

March 25, 2013

Please see the attached document for the details on the ABA Standing Committee’s student-writing competition, which entails both a cash prize and free registration for the Annual Review of the Field Conference in November—not to mention a chance to be published. Pass along to your students (or, for the students out there, give it a shot yourself!).

Nat’l Security Writing Competition 2012-2013.pdf


nationalsecuritylaw United States v. Warsame (SDNY

March 25, 2013

From DOJ’s press release (see also the attached indictment and plea agreement):

> NEW YORK, N.Y. – Preet Bharara, U.S. Attorney for the Southern District of New York and John Carlin, Acting Assistant Attorney General for National Security, announced today the unsealing of the guilty plea of Ahmed Abdulkadir Warsame to a nine-count indictment charging him with providing material support to al-Shabaab and al-Qaeda in the Arabian Peninsula (AQAP) — two designated foreign terrorist organizations — as well as conspiring to teach and demonstrate the making of explosives, possessing firearms and explosives in furtherance of crimes of violence and other violations. Warsame pleaded guilty on Dec. 21, 2011, before U.S. District Judge Colleen McMahon in Manhattan federal court as part of a cooperation agreement with the United States. >
> Warsame, a Somali national in his mid-twenties, was captured in the Gulf of Aden between Somalia and Yemen by the U.S. military on April 19, 2011, and was questioned for intelligence purposes for more than two months. Thereafter, Warsame was read his Miranda rights and, after waiving those rights, he spoke to law enforcement agents for several days. Warsame arrived in the Southern District of New York on July 5, 2011. >
> Manhattan U.S. Attorney Bharara said: “The capture of Ahmed Warsame and his lengthy interrogation for intelligence purposes, followed by his thorough questioning by law enforcement agents, was an intelligence watershed. The handling of Warsame represents a seamless orchestration by our military, intelligence, and law enforcement agencies that significantly furthered our ability to find, fight and apprehend those who wish to do us harm. Warsame’s capture, cooperation, and prosecution is a major victory for the United States, for its citizens and for justice.” >
> Acting Assistant Attorney General for National Security Carlin said: “Ahmed Warsame served as a critical link between two foreign terrorist organizations and was an operational terrorist leader, commanding hundreds of fighters. His capture, successful interrogation and guilty plea demonstrate how U.S. military, intelligence and law enforcement assets coordinate to neutralize threats and protect the country. I thank all those responsible for this important operation.” >
> According to the indictment, Warsame’s sworn guilty plea allocution before Judge McMahon and other public information: >
> From 2007 until April 2011, Warsame conspired with others, including American citizens, to provide material support to al-Shabaab. He fought as a soldier on behalf of al-Shabaab in Somalia in 2009 and provided other forms of support to the terrorist organization, including explosives, weapons, and training. In addition, Warsame possessed and used destructive devices, machine guns, and an AK-47 semi-automatic assault weapon in Somalia in support of al-Shabaab. >
> Warsame also brokered a weapons deal, arranging for al-Shabaab to purchase weapons directly from AQAP. From 2009 until April 2011, he conspired with others, including American citizens, to provide material support to AQAP in the form of money, training, communications equipment and personnel. While Warsame was in Yemen in 2010 and 2011, he received weapons, explosives and other military-type training from the terrorist organization. In addition, he possessed and used grenades and an AK-47 semi-automatic assault weapon in Yemen in support of AQAP. >
> From 2010 until April 2011, Warsame conspired to teach and demonstrate the making of explosives and instruct other terrorists and would-be terrorists how to do so. Specifically, Warsame received training in explosives directly from members of AQAP, intending to share that training with al-Shabaab when he returned to Somalia. >
> Warsame was captured at sea by the U.S. in April 2011 on his way back to Somalia from Yemen. >
> Al-Shabaab was designated by the U.S. Department of State as a foreign terrorist organization in February 2008. AQAP was so designated in January 2010. >
> Warsame pleaded guilty to all nine counts of the indictment with which he was charged, and he faces the possibility of life in prison. The charges and maximum penalties are reflected in the attached chart. >
> Mr. Bharara praised the extraordinary investigative work of the FBI’s Joint Terrorism Task Force, which principally consists of agents from the FBI and detectives from the New York Police Department. He also thanked the Department of Defense and the National Security Division of the Department of Justice. >
> This case is being handled by the Terrorism and International Narcotics Unit of the U.S. Attorney’s Office for the Southern District of New York, with assistance from the Counterterrorism Section of the Justice Department’s National Security Division. Assistant U.S. Attorneys Benjamin Naftalis, Adam S. Hickey, Sean S. Buckley and Anna Skotko are in charge of the prosecution. >
> U.S. v. Ahmed Abdulkadir Warsame Indictment
>
>
> STATUTE
> (TITLE 18)
>
>
> COUNT(S)
>
>
> DESCRIPTION
>
>
> MAXIMUM PENALTIES
>
>
> § 2339B
>
>
> 1
> 2
>
>
> Conspiracy to provide material support to a foreign terrorist organization, and provision of material support to a foreign terrorist organization, causing death (al Shabaab). >
>
> Maximum of life in prison
>
>
> § 924(c)
>
>
> 3
>
>
> Use, carrying, and possession of firearms (machine guns and destructive devices) in furtherance of crimes of violence (Counts 1 and 2). >
>
> Mandatory minimum of 30 years in prison (consecutive to any other term). Maximum of life in prison. >
>
> § 2339B
>
>
> 4
> 5
>
>
> Conspiracy to provide material support to a foreign terrorist organization, and provision of material support to a foreign terrorist organization (AQAP). >
>
> Maximum of 15 years in prison.
>
>
> § 924(c)
>
>
> 6
>
>
> Use, carrying, and possession of firearms (machine guns and destructive devices) in furtherance of crimes of violence (Counts 4 and 5). >
>
> Mandatory minimum of 30 years in prison (consecutive to any other term). Maximum of life in prison.* >
>
> §§ 842(p), 844(n)
>
>
> 7
>
>
> Conspiracy to teach and demonstrate the making of explosives. >
>
> Maximum of 20 years in prison.
>
>
> §§ 2339D, 371
>
>
> 8
>
>
>
> Conspiracy to receive military‑type training from a foreign terrorist organization. >
>
> Maximum of five years in prison.
>
>
> § 2339D
>
>
> 9
>
>
> Receipt of military‑type training from a foreign terrorist organization. >
>
> Maximum of 10 years in prison.
>
>
> *A second 18 U.S.C. § 924(c) conviction in this context would carry a mandatory term of life in prison. >
> # # #
>
> 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. >
> ________________________________
> * A second 18 U.S.C. § 924(c) conviction in this context would carry a mandatory term of life in prison.

Warsame, Ahmed Indictment.pdf
Warsame, Ahmed Abdulkadir Plea Agreement.pdf


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.