nationalsecuritylaw United States v. Kaliebe (EDNY) (complaint and plea agreement in AQAP-linked case)

United States v. Kaliebe involves an American citizen named Justin Kaliebe, from New York, who allegedly attempted to travel to Yemen to join AQAP in January. He had discussed his plans with an undercover officer, including it appears a statement in which he noted the potential applicability of 18 USC 956(a) to his plans. He was arrested at the airport back in January, and has now pled guilty to attempt under both 18 USC 2339B and 2339A. The details from the press release follow below:

United States Attorney Loretta E. Lynch

Eastern District of New York

nationalsecuritylaw United States v. Crawford (N.D.N.Y. July 19, 2013) (conspiracy case)

This is a strange one in terms of the particular kind of weapon at issue, to say the least. And it is an interesting one in terms of the particular charge mentioned (conspiracy to provide material support) in the press release (I don’t have the underlying documents, so I’m not precisely sure how the charge is framed or what predicate offense the material support ostensibly linked to). Anyway, here’s DOJ’s press release:

ALBANY, N.Y. — The U.S. Attorney’s Office for the Northern District of York announced that Glendon Scott Crawford, age 49, of Galway, New York and Eric J. Feight, age 54, of Hudson, New York have been arrested and charged with conspiracy to provide material support to terrorists. The arrests followed a lengthy investigation by the Albany FBI Joint Terrorism Task Force that began in April 2012 when authorities received information that Crawford had approached local Jewish organizations seeking out individuals who might offer assistance in helping him with a type of technology that could be used against people he perceived as enemies of Israel. If convicted, each faces a maximum sentence of fifteen years imprisonment, a $250,000 fine and a term of supervised release of up to five years following any period of incarceration.

As charged in a complaint filed in U.S. District Court in Albany, the essence of the defendants’ scheme was the creation of a mobile, remotely operated, radiation emitting device capable of killing targeted individuals silently with lethal doses of X-ray radiation. The defendants plotted to use this device against unwitting victims who would not immediately be aware that they had absorbed lethal doses of radiation, the harmful effects of which would only appear days after the exposure. This was an undercover investigation and, unbeknownst to the defendants, the device that the defendants designed and intended to use was rendered inoperable at all times and posed no danger to the public. The allegations contained in the Complaint are mere accusations and the defendants are presumed innocent unless and until proven guilty in a court of law.

U.S. Attorney Richard S. Hartunian stated, “This case demonstrates how we must remain vigilant to detect and stop potential terrorists, who so often harbor hatred toward people they deem undesirable. We give special thanks to those who quickly alerted law enforcement authorities to this devious plan. I also commend the members of the Albany FBI Joint Terrorism Task force for their unwavering commitment over the past 14 months to uncover the details of this plot, before anyone could be harmed, bringing about today’s arrests.”

Special Agent in Charge Andrew Vale stated, “I would like to thank all members of our Joint Terrorism Task Force for their continued commitment in ensuring the safety of our community against all threats. It is the obligation of the FBI and our law enforcement partners to protect the public when individuals create plans to commit violent acts such as those charged today. I would like to stress that operations to thwart violent plots are only successful with the cooperation of members of the public and with collaboration among federal, state and local agencies.”

New York State Police Superintendent Joseph A. D’Amico said, “The interception of this alleged terrorist activity would not have been possible without the determination and cooperation between state police investigators and the FBI Joint Terrorism Task Force. This investigation revealed unthinkable plotting and planning of terrorist activity that targeted unsuspecting innocent citizens. We remain committed to ensuring the safety of all citizens and will work diligently to identify these types of threats and stop those who seek to cause harm.”

The charges today resulted from a long-term investigation conducted by the Albany FBI Joint Terrorism Task Force, which includes the Department of Homeland Security, New York State Police, Albany Police Department, Troy Police Department, and New York City Police Department. The U.S. Attorney’s Office also acknowledged the assistance of the Criminal Division and National Security Division of the U.S. Department of Justice. The case is being prosecuted by Assistant United States Attorneys Stephen Green and Richard Belliss, and Counterterrorism Section Trial Attorney Joseph Kaster.

nationalsecuritylaw call for papers: Harvard National Security Journal

The Harvard National Security Journal (NSJ) is seeking submissions for its milestone fifth volume.

The field of national security has grown significantly over the past several years, with a corresponding demand for critical scholarly analysis on its legal and policy dimensions. Complicated issues regarding the role of the Fourth Amendment in national security surveillance, separation of powers, executive authority in the Global War on Terror, and the legality of coercive interrogation techniques have challenged policymakers and lawyers in fields ranging from constitutional law to military law to human rights, and NSJ aims to foster dialogue about these types of critical issues.

NSJ also has an online portion of the Journal that accommodates short, targeted pieces—usually under 2,500 words. With these online features, we offer authors a quick publishing turnaround and the chance to comment on current events as they unfold.

Please visit our website, www.harvardnsj.com, to read our latest issue and to learn more about NSJ and our submissions process. Please feel free to contact us with any questions you may have.

Best,

Heather Alpino and Catherine Arney

Editors-in-Chief, Harvard National Security Journal, Volume 5

nationalsecuritylaw forthcoming scholarship

Harvard National Security Journal
Volume 4, Issue 2

“Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict

By Michael N. Schmitt, Chairman, International Law Department, U.S. Naval War College
Jeffrey S. Thurnher, Lieutenant Colonel, U.S. Army, Military Professor, International Law Department, U.S. Naval War College.

Click here to read the full text of the Article

4 Harv. Nat’l Sec. J. 231 (2013)

The introduction of autonomous weapon systems into the “battlespace” will profoundly influence the nature of future warfare. This reality has begun to draw the attention of the international legal community, with increasing calls for an outright ban on the use of autonomous weapons systems in armed conflict. This Article is intended to help infuse granularity and precision into the legal debates surrounding such weapon systems and their future uses. It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to the law of armed conflict’s prescriptive norms governing the “conduct of hostilities.” This Article concludes that an outrightban of autonomous weapon systems is insupportable as a matter of law, policy, and operational good sense. Indeed, proponents of a ban underestimate the extent to which the law of armed conflict, including its customary law aspect, will control autonomous weapon system operations. Some autonomous weapon systems that might be developed would already be unlawful per se under existing customary law, irrespective of any treaty ban. The use of certain others would be severely limited by that law.

Furthermore, an outright ban is premature since no such weapons have even left the drawing board. Critics typically either fail to take account of likely developments in autonomous weapon systems technology or base their analysis on unfounded assumptions about the nature of the systems. From a national security perspective, passing on the opportunity to develop these systems before they are fully understood would be irresponsible. Perhaps even more troubling is the prospect that banning autonomous weapon systems altogether based on speculation as to their future form could forfeit their potential use in a manner that would minimize harm to civilians and civilian objects when compared to non-autonomous weapon systems.

The Chilling Effect of the “Material Support” Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms

By Sam Adelsberg, Freya Pitts, 2013 J.D. candidates, Yale Law School & Sirine Shebaya, J.D., 2012, Yale Law School

Click here to read the full text of the Article

4 Harv. Nat’l Sec. J. 282 (2013)

Nearly fifteen years after the “material support” statute was first enacted, the Supreme Court in Holder v. Humanitarian Law Project affirmed the constitutionality of this broad grant of authority to the government to prosecute individuals providing material support—including humanitarian aid—to foreign terrorist organizations. This decision has led many charitable organizations to raise concerns about the reach of the statute and the chilling effect it has on their activities in the parts of the world most desperately in need of aid.

For the most part, the government has exercised its broad grant of discretion under the “material support” statute to prosecute those alleged to have committed serious terrorism-related offenses. Nonetheless, within both the humanitarian aid community and Muslim charitable donor community, there is still a palpable fear of prosecution of individuals or organizations that exclusively provide humanitarian aid. It has led some organizations to reconsider providing humanitarian aid, particularly in war-torn areas where terrorist organizations are active—precisely where aid is often most needed. Reducing aid in these areas may, in turn, undermine the very counterterrorism policies the statute is meant to advance by discouraging aid in high-risk areas.

This Article recommends new substantive prosecutorial guidelines to formalize safe harbors for aid that meets specific criteria based on: (1) the types of aid provided, (2) the recipient organizations, and (3) the presence or absence of a specific intent by the donor. It then offers four procedural approaches to instituting these substantive guidelines that may be used as alternatives or in combination. First, and likely to be most effective, is a formal amendment to the statute. In addition, the government could publish an advisory memorandum or statement, amend Department of Justice internal guidelines, and engage in targeted community outreach. Each of these approaches has been used in the past to address similar kinds of challenges. Together these three recommendations offer the best available options, barring statutory amendment, for addressing the chilling effect of the material support statute on humanitarian aid.

The U.N. Security Council’s Duty to Decide

By Anna Spain, Associate Professor at the University of Colorado Law School.

Click here to read the full text of the Article

4 Harv. Nat’l Sec. J. 320 (2013)

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC’s own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical duty to declare war, the UNSC lacks consensus about when it must take up a matter. As a result, UNSC members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the UNSC for their security are high, making debate about UNSC reform critical and necessary.

In contrast to conventional scholarship addressing UNSC reform, this Article focuses on improving the UNSC’s decision-making process through the adoption of new procedural measures. It presents a novel approach to thinking about UNSC reform by translating wisdom from the realm of legal process theory to the political, quasi-judicial UNSC. The central argument is that the Council itself should adopt three procedural duties aimed at improving its decision-making process. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force. After describing these duties, this Article draws upon qualitative data from within the U.N. itself to justify why this reform proposal, unlike many others, is viable. It also draws upon insights from the disciplines of legal process theory, social psychology, and negotiation to give explanatory power to why such reform matters will prove effective. Making these changes will enhance the UNSC’s decision processes in ways that will further its legitimacy and relevance in today’s world of multi-varied and evolving forms of conflict.

Valuing Speech and Open Source Intelligence in the Face of Judicial Deference

By Andrew V. Moshirnia, J.D., 2011, Harvard Law School; PhD—Informational Technology, 2008, University of Kansas

Click here to read the full text of the Article

4 Harv. Nat’l Sec. J. 385 (2013)

In seeking to more effectively wage the war on terror, the United States government has come close to declaring war on speech related to terrorism. The Government has taken steps to silence and punish foreign propagandists, foreign reporters, and even Americans who have produced “coordinated” speech with foreign terrorist organizations. While this latter attempt to chill speech raises serious constitutional concerns, the United States Supreme Court has seen little wrong with this approach. Indeed, the Court contorted existing First Amendment jurisprudence in Holder v. Humanitarian Law Project so as to uphold 18 U.S.C. § 2339B, an expansive material support statute encompassing “coordinated” speech.

These positions, no doubt taken with American safety in mind, not only damage our First Amendment jurisprudence, but also threaten to choke off the supply of open source intelligence, which derives from publicly available sources. This intelligence is especially vital in the modern war on terror taking place on the ground as well as on the Internet. This Article highlights the extraordinary deference shown by the Court in upholding a material support statute criminalizing non-violent speech and examines other governmental actions designed to chill foreign speech. This piece examines the deleterious effects chilling foreign speech will have on domestic security, detailing the importance of open source intelligence. Finally, this Article concludes by investigating the likely effect the Government’s positions will have on Crisis Mapping, an exciting new technology that leverages open source intelligence, social media, and horizontal information sharing, to empower citizens and coordinate humanitarian efforts.